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Southern Illinois Asphalt v. E.p.a.

OCTOBER 10, 1973.




APPEAL from the Pollution Control Board.


Southern Illinois Asphalt Company, Inc., appeals from an order by the Illinois Pollution Control Board which found it guilty of violating the Environmental Protection Act (Ill. Rev. Stat., ch. 111 1/2, par. 1001) and certain rules established by the Board under such Act, ordered it to cease and desist operations of its newly constructed asphalt plant at McLeansboro, Illinois, and fined it $5000 for its failure to obtain a permit for the construction of the plant and the installation of pollution control equipment.

Appellant contends that the ruling of the Board is contrary to the manifest weight of evidence; that the Act itself is unconstitutionally vague and violative of the equal protection and due process clauses of the United States Constitution; that the legislative granting of power to the Board to impose monetary penalties constitutes an unlawful delegation of judicial powers to an administrative agency; that the cease and desist order was issued without authority even under the Board's own rules and regulations; and that the procedures established by the Board for hearing enforcement matters are violative of the constitutional right to due process.

The basic facts are undisputed. In the summer of 1970, with the cooperation and encouragement of the city council, appellant constructed an asphalt plant in McLeansboro. It began operation in late summer and employed about fifty men with a weekly payroll of approximately $16,000. Admittedly, it did not obtain an installation permit prior to construction of its plant, as required by the Act, but such failure was not wilful. It had previously built an asphalt plant in Mt. Vernon and in that instance the company that furnished the pollution control equipment applied for and obtained the permit. At McLeansboro each company mistakenly assumed that the other had made the appropriate application. As a result the plant was completed and it began operating and continued to do so throughout the fall without anyone being aware of the absence of an installation permit. Subsequently a number of neighbors began to complain particularly about the noise and disruptive effect of the company trucks using a city street which was the only access to the plant. Again with the cooperation of the city, additional land was purchased and a new access was constructed directly to the plant from the highway. It was at this time that the company itself discovered that no one had applied for an installation permit so it then proceeded to do so.

On February 26, 1971, the Environmental Protection Agency denied appellant's application, and two days later filed a complaint charging it with failure to obtain an installation permit, and also, with operating an asphalt plant without an operating permit. At the hearing held on April 28, 1971, before a hearing officer, the Agency presented only two witnesses neither of whom testified as to whether an installation permit had ever been issued. However, Mr. Paul Schmierbach, an enforcement officer for the Agency, did testify that he had visited the plant twice while it was operating and that in his opinion the plant met all technological standards required by law or regulation for pollution control. The Agency's other witness, Mr. Clyde Bassett, testified that he too had visited the plant on two occasions and that it was one of the cleanest plants he had ever seen, and that he did not see any particulate matter emitted from the smoke stack. Testifying for appellant, Mr. James Morton, an employee of the pollution control equipment manufacturer, stated that under the Board's new regulations the permissible particulate emission per hour for an asphalt plant of the same capacity would be approximately 56 lbs.; that under the worst possible conditions the equipment installed in appellant's plant would not permit in excess of 41 lbs. of particulate emission per hour, and that in similar plants in similar conditions the emission did not exceed 11 lbs. and could be controlled to 5 lbs.

On June 10, 1971 the Board issued its order as follows: "We find Respondent guilty of violating Section 9(b) of the Act and Rule 3-2.110 of the Rules and Regulations governing the control of air pollution. We order Respondent to cease and desist all operation of its plant at its present location without a permit. We impose a fine of $5000 on Respondent for its unexcused failure to obtain a permit. We find Respondent not guilty of the charge of operating an asphalt plant without a permit because no regulations had been adopted requiring an operation permit as distinguished from an installation permit."

The Environmental Protection Act was adopted by the legislature and became effective July 1, 1970. Section 5 of the Act created the Pollution Control Board and empowered it to determine, define and implement the environmental control standards applicable in the State of Illinois, to adopt rules and regulations in accordance with Title VII of the Act, and to conduct hearings upon complaints charging violations. Section 9 of the Act requires that "no person shall * * * (b) construct, install or operate any equipment, facility * * * capable of causing or contributing to air pollution or designed to prevent air pollution of any type designated by Board regulation, without a permit granted by the (Environmental Protection) Agency." Section 3(b) of the Act defines air pollution as "the presence in the atmosphere of one or more contaminates in sufficient quantities and of such characteristics and duration as to be injurious to human, plant, or animal life, to health, or to property, or to unreasonably interfere with the enjoyment of life or property." Subsection (d) defines contaminate as "any solid, liquid or gaseous matters, any odor, or any form of energy, from whatever source."

Rule 3-2.110 of the Board's Rules and Regulations provides that "A permit shall be required * * * for installation or construction of new equipment capable of emitting air contaminates to the atmosphere and any new equipment intended for eliminating, reducing or controlling emission of air contaminates."

We shall first consider appellant's contention that Sections 3(b) and 9(b) of the Act are unconstitutional because they make a wrongful delegation of legislative authority to an administrative board, and because their meaning is vague and undefined relative to the definition of air pollution. It is argued that when the law leaves to the discretion of an administrative office the definition of what the law shall be and to whom it shall apply, it is invalid as an unwarranted and void delegation of legislative power to an administrative officer. (Vallat v. Radium Dial Co., 360 Ill. 407.) Further it is contended that to fulfill the constitutional requirements of due process and separation of powers a statute must be complete, definite and certain when it leaves the legislature and must inform persons to be governed by it of its meaning and application. (People v. Hurley, 402 Ill. 562.) Appellee concedes that a legislative body cannot delegate its own inherent function to declare the law but argues that it may delegate to others certain powers which it might properly, but cannot advantageously, do itself. (Brotherhood of Railroad Trainmen v. Elgin, Joliet and Eastern Ry., 382 Ill. 55.) It also argues that the Act provides sufficient standards and that the word "pollution" is generally understood and is definite and certain. Metropolitan Sanitary Dist. v. United States Steel Corporation, 41 Ill.2d 440.

The constitutionality of these sections has not previously been determined in Illinois, but an extensive review of similar questions arising in analogous cases leads us to the conclusion that they are sufficient to sustain such an attack.

In Brotherhood of Railroad Trainmen v. Elgin, Joliet and Eastern Ry., 382 Ill. 55, the railroad challenged an order to the Illinois Commerce Commission requiring it to install certain equipment and supplies. Section 32 of the statute (Ill. Rev. Stat. 1941, ch. 111 2/3) provided that "Every public utility shall furnish, provide and maintain such service, instrumentalities, equipment and facilities as shall promote the safety, health, comfort and convenience of its patrons, employees, and public and as shall be in all respects adequate, efficient, just and reasonable." Section 49 authorized the commission, if it found that equipment, appliances, facilities or service of any public utility were insufficient, improper or inadequate to determine "the just, reasonable, safe, proper, adequate or sufficient rules, regulations, practices, equipment, appliances, facilities, service or methods to be observed, furnished, constructed, enforced or employed, and it shall fix the same by its order, decision, rule or regulation." Section 57 granted the commission the power "to require every public utility to maintain and operate its plant, equipment or other property in such manner as to promote and safeguard the health and safety of its employees, passengers, customers, and the public * * * and to require the performance of any other act which the health or safety of its employees, passengers, customers or the public may demand." The court rejected the railroads' contention that the powers so granted to the commission were "so indefinite as to be void for uncertainty", and cited three previous cases in which the court had sustained the act. Quoting from Chicago Motor Coach Co. v. Chicago, 337 Ill. 200, the court stated that the statute was broad enough "to subject every phase of the relations between every public utility and the public to the supervision and regulation of the Public Utilities Commission."

The second contention of the railroad was that the statute delegated legislative authority to the commission by not specifying the particular things which could be authorized and the specific manner in which they were to be installed. In rejecting this argument, the court stated:

"The Public Utilities Act requires a complaint, notice, hearings and evidence, and gives opportunity for review, and the utility has the opportunity at every step of the proceeding to be heard and to present its objections. If the position claimed by appellant were sound the commission would be rendered ineffective, because every time some new phase of utility operation affecting public safety were involved it would require a specific act of the legislature, applying to such particular object. Such a rule would prevent the commission from discharging its essential duties in the public interest, and would, in effect, overrule our previous construction of the act in many cases. We find this point without merit."

In Hill v. Relyea, 34 Ill.2d 552, Section 10-6 of the Mental Health Code was attacked as too vague a delegation of authority. The section gave the supervisor of a mental hospital authority to release a patient "as the welfare of such person and the community may require." The court stated the general rule to be:

"Absolute criteria whereby every detail necessary in the enforcement of a law is anticipated need not be established by the General Assembly. The constitution merely required that intelligible standards be set to guide the agency charged with enforcements, (Memorial Gardens Ass'n v. Smith, 16 Ill.2d 116; People v. Warren, 11 Ill.2d 420,) and the precision of the permissible standard must necessarily vary according to the nature of the ultimate objective and the problems involved. Board of Education v. Page, 33 Ill.2d 372; People ex rel. Daesch v. Mayor of Belleville, 22 Ill.2d 226."

The court then applied the general rule to the statute as follows:

"In this case the legislature gave the superintendent of the hospital the power and authority to discharge patients `as the welfare of such person and the community may require'. The legislature has determined who shall discharge patients and the criteria for discharge but it has granted authority to the Department of Mental Health and to the hospital superintendent to use discretion in executing the law and in granting the discharge. This discretion must be exercised within the standard set forth by the General Assembly. The difficulty in attempting to establish more precise legislative standards is readily apparent. The superintendent of the hospital and his staff examine, work with and treat the hospitalized person. They can determine more understandingly and advantageously when the welfare of the person and of the Community may require a discharge or continued hospitalization of such person. Therefore it is desirable to grant to the superintendent and the Department the authority to discharge hospitalized persons and the discretion as to when the welfare of such person requires it. The nature of the objects to be achieved and the problems to be solved negate the usefulness of setting more precise legislative standards. Board of Education v. Page, 33 Ill.2d 372.

The legislature has conferred authority and discretion as to the execution of a law. The authority and discretion is to be exercised under and in pursuance of the standard, `as the welfare of such person and the community may require,' which is found in section 10-6. This is a proper delegation of administrative authority."

In Dept. of Public Wks. and Bldgs. v. Lanter, 413 Ill. 581, the constitutionality of the Freeways Act was challenged. The court stated:

"It is true that the standards prescribed in the present statute to govern the Department in the designation of freeways and the regulation of the access rights are expressed in general terms — `when the safety and convenience of highway traffic will be promoted and the public interest subserved thereby.' But it is also true that the host of varied and unforeseeable conditions which may exist or arise along the State's thousand of miles of through traffic highways makes greater particularity impossible. The constitutional doctrine of separation of powers was not intended to confine the legislature to the alternatives of complete inaction or the imposition of rigidly inflexible laws which would distort, rather than promote, its objective. When it is necessary, the legislature may commit to others the responsibility for the accomplishment of the details of its expressed purpose."

In Metropolitan Sanitary Dist. v. United States Steel Corp., 41 Ill.2d 440, section 7aa of the Chicago Sanitary District Act was involved. This section gave the District authority and power to prevent pollution of any waters from which a water supply could be obtained. The circuit court had issued an injunction restraining further pollution, and the Illinois Supreme Court affirmed, stating:

"The defendant also urges that section 7aa is unconstitutionally vague because it does not define the term `pollution'. But the action authorized by the statute closely resembles the established suit in equity to restrain, as a nuisance, the pollution of a water supply (see, Martin v. Gleason (1885), 139 Mass. 183; City of Baltimore v. Karren Mfg Co. (1882) 59 Md. 96; Anno. 72 A.L.R. 673), and we are satisfied that such a statutory authorization need not delineate, with scientific precision, the characteristics of all types of pollution. We are concerned in this case only with the emission of oil in quantities sufficient to form a visible floating mass. The deleterious consequences of such a mass were described in the record, and that testimony has not been controverted."

• 1 In the case before us we are involved with air pollution control, a subject which is fairly new to the law and yet more and more important to the public welfare. By its very nature it defies the establishment of precise standards. It involves a highly specialized science, and yet covers an exceedingly broad spectrum. It is complex and not reducible to easy equations, particularly in view of our constantly growing knowledge and understanding of our environment and its effect upon our lives and our very existence. Recognizing these facts the legislature acted to prohibit or control air contamination to the extent possible in the interest of health and the enjoyment of life or property. It is true that the standards set forth are broad, but they are nonetheless adequate. Section 9(b) gives the Board the right to regulate, through granting or refusing a permit, any facility capable of causing or contributing to air pollution. Section 3(b) defines air pollution as the presence in the atmosphere of contaminates in sufficient quantities and of such characteristics and duration as to be injurious to life and health, or to unreasonably interfere with the enjoyment of life or property. Subsection (d) then defines contaminates. We find these standards intelligible and in themselves sufficient to guide the Board in its enforcement of the law, and, therefore, we conclude that the authority granted to the Board to accomplish the purpose of the law was constitutionally permissible.

We also find that the term "air pollution", as defined by the Act, is definite and understandable and not vague and indefinite as contended by appellant. Clearly, pollution is limited to a contamination of the atmosphere by any substance, sufficient in quantity, characteristics and duration as to be injurious to life and health, or to unreasonably interfere with the enjoyment of life and property. In view of the broad range of the subject matter a more precise definition could hardly be constructed.

Persuasive of our conclusions with reference to the above are a number of cases from other jurisdictions. In Houston Compressed Steel v. Texas (1970), 456 S.W.2d 768 the Texas Clean Air Act was challenged and it was contended that the definition of air pollution was too vague. The court stated:

"* * * The science of air pollution control is new and inexact, and these standards are difficult to devise, but if they are to be effective they must be broad. If they are too precise they will provide easy escape for those who wish to circumvent the law."

The court then quoted the definition, which is almost identical with ours, and stated that the definition is clear and is easily capable of understanding.

Air Pollution Com. v. Coated Materials (Pa. 1970), 1 Env. Rep. 1444 92 Dauph Co. Rep. 274, involved a similar challenge to the Pennsylvania Air Pollution Control Act. The Act defined air pollution as some substance "* * * which unreasonably interferes with the comfortable enjoyment of life or property." The court, in upholding the statute, stated:

"Surely, the present contention that the definition of `air pollution' is uncertain and not susceptible to acceptable standards of proof cannot stand. The language employed in the statute is equivalent to the definition of ...

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