APPEAL from the Circuit Court of Cook County; the Hon. JAMES
J. MEJDA, Judge, presiding.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:
Defendant, The Environmental Protection Agency (EPA), filed a complaint with defendant Pollution Control Board (Board) alleging that plaintiffs, W.F. Hall Printing Company and its subsidiary, Rotoprint Company, were emitting solvents, hydrocarbons, particulate matter, odors, and other contaminants from their plants so as to cause air pollution, in violation of section 9(a) of the Illinois Environmental Protection Act (Act). (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1001 et seq.) After hearings had proceeded for some months, the EPA filed an amended complaint on June 11, 1973, by which the period of the plaintiffs' alleged violations was enlarged and fixed as having commenced on July 1, 1970, the effective date of the Act, thereby significantly increasing the potential fine.
Without responding to the EPA's complaint, plaintiffs filed their own complaint against the EPA, its Director, the Board and its members, seeking an injunction in the circuit court of Cook County restraining defendants from proceeding with a hearing as to odor violations. The other charges in the EPA's amended complaint against plaintiffs were not involved in the injunction suit. Plaintiffs alleged that until such time as the Board had determined standards or adopted regulations with respect to odors (which it had not done), a hearing as to odor violations would exceed the authority granted to the EPA and the Board under the Act, deny to plaintiffs due process of law and equal protection of the laws guaranteed by the United States and Illinois constitutions, and violate article VI, section 9, of the Illinois constitution of 1970, which vests original jurisdiction of all justiciable matters in the courts.
Plaintiffs filed a motion for a temporary (i.e., preliminary) injunction. In response, defendants filed a motion to dismiss the complaint, questioning the court's jurisdiction, alleging that the Board has constitutional and statutory authority to hear the EPA's complaint, that plaintiffs have an adequate remedy at law, and that plaintiffs had not exhausted their administrative remedies. The court denied defendants' motion to dismiss and entered the preliminary injunction prayed for by plaintiffs. Defendants have appealed.
Defendants' appeal is based on two major contentions. The first is that plaintiffs must exhaust their administrative remedies before seeking a court determination of the issues. The second, related argument is that injunctive relief is not available to plaintiffs because they have an adequate remedy at law and have not shown that irreparable injury would result from a failure to enjoin defendants from proceeding with an administrative hearing as provided by the Act.
• 1 The "exhaustion" doctrine provides that a party believing himself to be injured by an administrative agency's action or failure to act must pursue remedies within the administrative scheme before seeking relief from the courts. It is designed to allow administrative agencies to correct their own errors, clarify their policies, and reconcile conflicts before seeking judicial relief.
The exhaustion doctrine has been followed in Illinois (Bright v. City of Evanston, 10 Ill.2d 178, 139 N.E.2d 270), subject only to the exceptions where a statute is claimed to be void on its face (Bright, at 185), or an administrative agency's power to proceed is challenged for lack of jurisdiction (Horan v. Foley, 39 Ill. App.2d 458, 188 N.E.2d 877).
The Board, under its own rules, has established a procedure for dismissing complaints for want of jurisdiction. (Pollution Control Board Procedural Rule 308(f).) The respondent (here, plaintiffs) need only make a motion before the Hearing Officer for a Board determination. No such motion was ever made. Hence, plaintiffs have not exhausted their administrative remedies.
• 2 Ordinarily, then, judicial consideration of the case at this stage would not be appropriate, since the controversy could be resolved by the Board's determination that it lacks jurisdiction. But the Board, by pursuing this appeal on the ground that it has the authority to proceed with the part of the complaint alleging violations arising from the emission of odors, has indicated that any such motion would be futile. Furthermore, although plaintiffs' allegations were to the contrary in its circuit court complaint, on oral argument there was no disagreement with the proposition that section 9 of the Act does purport to confer jurisdiction on the Board to find violations of the Act itself, even where no regulations have been promulgated or standards determined by the Board. See our opinion filed today in accord with this concept of the Board's authority. Mystik Tape, Division of Borden, Inc. v. Pollution Control Board, 16 Ill. App.3d 778.
Plaintiffs maintain that the Act does not within itself contain sufficient standards or definitions to guide defendants in their delegated duties, and that by proceeding to a hearing without determining such standards for odors, defendants will deprive plaintiffs of their constitutional rights. Defendants concede that no odor regulations or standards have been promulgated for plants such as plaintiffs.
Plaintiffs contend, in effect, that in the absence of Board-created standards or regulations, the portion of section 9 purporting to treat the causing of air pollution as a violation of the Act is void on its face, and that, under the rule in Bright v. City of Evanston, 10 Ill.2d 178, 139 N.E.2d 270, exhaustion of administrative remedies is not required. And this, because while the Board has authority to determine that it lacks jurisdiction under a statutory delegation, it has no authority to pass on the constitutionality of the delegation itself, this being a judicial function.
We turn, then, to the merits of plaintiffs' contentions that they are entitled to injunctive relief.
• 3 Plaintiffs first argue that the absence of standards precludes adequate preparation of their defense. The Act provides that the EPA or other complainant must bear the burden of proving a violation of the Act. (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1031(c).) In doing so here, the EPA would have to show that plaintiffs' plants are emitting odors so as to cause "the presence in the atmosphere of one or more contaminants 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." (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1003(b).) If the EPA were to meet its burden in this regard, each plaintiff would then be able to defend by showing e.g., that no odor is emitted by its plants, or that any emitted odor does not interfere with life or property, or, if it did, that any such interference was reasonable in the light of the factors to be taken into consideration pursuant to section ...