APPEAL from the Pollution Control Board.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 24, 1973.
On this appeal the City of Monmouth seeks review of an order of the Pollution Control Board which order levied a fine against the City of Monmouth in the amount of $2,000 and required the City to cease and desist from other conduct relating to odors. This is a direct review of the Board's action as provided by the Environmental Protection Act (Sec. 1001, et seq., ch. 111 1/2, Ill. Rev. Stat.), and comes to us pursuant to the Administrative Review Act. Ill. Rev. Stat., sec. 264, et seq., ch. 110.
The Pollution Control Board, pursuant to complaint instituted by the Environmental Protection Agency, found the City of Monmouth guilty of air pollution in conjunction with operation of a three-cell sewage lagoon system. The first cell was an anaerobic lagoon approximately 275 feet by 275 feet square and 15 feet deep. There were two other lagoons each of slightly less than 40 acres. These lagoons were constructed by the City of Monmouth pursuant to an agreement entered into between the City of Monmouth and Agar Packing Company on March 4, 1964. A construction permit was granted by the Sanitary Water Board of the State of Illinois on July 31, 1964 for construction of the sanitary lagoons and they were put into operation upon the completion of the construction of the packing plant facility.
All construction was done pursuant to the plans submitted to the Sanitary Water Board. After construction, the City became aware that an odor problem existed, consulted with the Sanitary Water Board regarding the operation of the lagoon and received a number of suggestions from the Sanitary Water Board regarding methods of eliminating the odor problem. The suggestions included recirculation facilities, the addition of paunch manure to create a grease cap or seal on the lagoon and the elimination of all possible blood waste from the lagoon.
The City of Monmouth installed first two and then two more pumps in an effort to aeriate the first stage of the lagoon by inducing more oxygen in the lagoon and further entered into a contract for the introduction of enzymes to combat the odor problem.
Numerous witnesses, mostly residents of the area, testified on behalf of the Agency that a strong smell like that of rotten eggs came from the area surrounding the first lagoon. It also appeared that the hydrogen sulfide fumes causing the strong smell also caused discloration of paint on houses situated in the general area.
The order of the Board found generally that there were noxious odors emitted from the lagoon system, the City of Monmouth as the operator of the lagoon, permitted the emission of such noxious odors and that therefore the Environmental Control Act was violated. The City was fined $2,000 and was ordered to cease and desist from permitting the emission of such noxious odors within six months from the date of the order.
On this appeal both the petitioner and respondent have devoted the major portions of their briefs to a discussion of the question of the constitutionality of certain provisions of the Environmental Control Act. In particular the petitioner has argued there has been an unconstitutional delegation of legislative and judicial powers to an administrative agency in violation of the separation of powers required by the Illinois constitution. Furthermore petitioner has argued the power of the administrative agency to assess a penalty deprives petitioner of property without due process of law.
• 1-3 At the time the briefs were filed in this case the constitutional question raised by the parties had not then been passed upon by any Illinois court of review. Since then this court in C.M. Ford v. Environmental Protection Agency, 9 Ill. App.3d 711, 292 N.E.2d 540, has considered such issues and resolved them in favor of the constitutionality of the Act and the authority to assess a penalty. In this regard the briefs of the parties present no reasons for considering the question anew and accordingly on the authority of the Ford case we conclude that petitioner's constitutional argument is without merit.
Appellant also argues the action of the Board was invalid because no standards relating to air pollution had been promulgated by the Board as provided by Ill. Rev. Stat. 1970, ch. 111 1/2, pars. 1009 & 1010. Additionally the City of Monmouth insists that the order of the Board is not supported by the evidence.
Section 1009 (a) provides:
(a) Cause or threaten or allow the discharge or emission of any contaminant into the environment in any State so as to cause or tend to cause air pollution in Illinois, either alone or in combination with contaminants from other sources, or so as to violate ...