APPEAL from the Pollution Control Board.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 25, 1974.
On this appeal, Mystik Tape, a division of Borden, Inc., (Mystik), seeks review of an order of the Pollution Control Board (Board) which "assessed" a "penalty" of $3500 against Mystik and required it to submit to the Board within 45 days a program which "shall result in the complete abatement" no later than June 1, 1973, of odor pollution caused by its facility. Mystik was also directed to post security of $100,000 to insure compliance with the abatement order. The pollution found by the Board to have been caused by Mystik was stated to be in violation of sections 9(a) and 9(b) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009) and Rule 3-2.110 of the Air Pollution Control Regulations. This is a direct review of the Board's action as provided by the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.), and by Supreme Court Rule 335 (Ill. Rev. Stat. 1971, ch. 110A, par. 335).
The Illinois Environmental Protection Agency (EPA) filed a complaint with the Board under section 31 of the Act alleging odor violations by Mystik. Hearings were held before a Hearing Officer, as provided in sections 31 and 32 of the Act. Witnesses testified for both EPA and Mystik, and a transcript was made of all the testimony. The record of the hearings was presented to the Board for consideration on December 15, 1972, and the Board's order was entered on January 16, 1973.
There are six issues raised in the appeal of this case. The first two deal with the adequacy of the complaint. These issues concern whether a violation of the Act itself, absent the existence of any pertinent regulations, is a permissible basis for Board action, and whether the complaint gives Mystik adequate information as to the alleged violation. The third issue concerns the propriety of the Board's order with respect to some of its references to the record. The fourth issue, also bearing on the validity of the Board's order, relates to the introduction of irrelevant or immaterial evidence. The fifth issue is whether Mystik can be held in violation of the Act in view of the fact that the Board has failed to determine standards applicable to this type of case, as mandatorily required by section 5(b) of the Act. The sixth issue is whether the Board's order was proper under the terms of the Act and was supported by adequate evidence. We shall consider these points in order.
1. Complaint alleging a violation of the Act
The language of section 31 indicates three possible kinds of violation which may be made the basis for the filing of a complaint by EPA:
"* * * [T]he Agency shall issue * * * a formal complaint, which shall specify the provision of this law or the rule or regulation under which such person is said to be in violation, * * *. (Emphasis added.)
Other sections of the Act also indicate that alternate kinds of violation are possible. For example, section 30 states that
"The Agency shall cause investigations to be made upon the request of the Board or upon receipt of information concerning an alleged violation of this Act or of any rule or regulation promulgated thereunder * * *." (Emphasis added.)
Section 9, the provision allegedly violated in this case, states that no person shall:
"(a) Cause or threaten or allow the discharge or emission of any contaminant into the environment * * * so as to cause * * * air pollution in Illinois * * * or so as to violate regulations or standards adopted by the Board under this Act * * *." (Emphasis added.)
• 1 On review, it has also been recognized that alternate kinds of violation are possible. (City of Monmouth v. Environmental Protection Agency (1973), 10 Ill. App.3d 823, 295 N.E.2d 136.)
The complaint in the instant case alleges:
"Respondent did and does operate said plant * * * in such a manner as to cause, threaten or allow the discharge, emission, and presence of such duration of such quantities and characteristics of odors * * * and other air contaminants * * * into and in the outdoor atmosphere and environment * * * as to be injurious to human, plant, or animal life, to health, or to property, or to interfere unreasonably with the enjoyment of life or property, and so as to cause or tend to cause air pollution in Illinois, either alone or in combination with contaminants from other sources, in violation of Section 9(a) of the Act."
Since the complaint specifically alleges violation of the Act itself, it has, in our opinion, satisfied one of the three alternative requirements of section 31 noted above. Indeed, the language of the complaint borrows heavily from sections 3(b) and (d) and section 9(a) of the Act. These sections, taken together, prohibit the discharge of contaminants (including odors) into the atmosphere 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 interfere unreasonably with the enjoyment of life or property.
2. Notice and information as to the charge in the complaint
Section 31 also requires that the complaint state both "the manner in, and the extent to which [the person complained against] is said to violate this law." Notice to such person is, of course, a fundamental element of procedural due process, and the Illinois courts have frequently recognized its necessity. In a recent case under the Administrative Review Act, the court said:
"It is true that charges in an administrative proceeding need not be drawn with the same nice refinements and subleties [sic] as pleadings in a court of record, but the charges must be sufficiently clear and specific to allow the preparation of a defense [citation]." Greco v. State Police Merit Board (1969), 105 Ill. App.2d 186, 190, 245 N.E.2d 99.
In Citizens Utilities Co. v. Pollution Control Board, 9 Ill. App.3d 158, 289 N.E.2d 642 (1972), the court noted in dicta that section 31 requires "notice of a specific violation charged," "notice of the specific conduct constituting the violation," and "the benefit of a favorable burden of proof." 9 Ill. App.3d 164, 289 N.E.2d at 647.
It appears from the language of previous orders that the Board itself requires that complaints conform to the notice requirement of section 31. In EPA v. Commonwealth Edison, Board No. 70-4 (February 17, 1971), the Board said that a count charging air pollution (as defined in the Act) without mentioning the particular contaminant involved was a "bare conclusion" insufficient to inform the respondent of the nature of the charges against it. In Commonwealth Edison, the complainant attempted to introduce evidence of a particular contaminant, sulphur dioxide, to prove up the count charging section 9(a) air pollution. The Board refused to consider this evidence, saying:
"It is important here to distinguish the degree of specificity required in a statute from that required in a complaint. In the case of a statute a good deal of latitude is allowed the legislature, since that body could not possibly foresee the myriad fact situations that might give rise to excessive pollution * * *. The case is quite different, however, with regard to a complaint. There is no excuse for lack of specificity in filing a complaint except the desire to obtain an unfair advantage by surprise. To permit such an advantage is foreign to the entire concept that a tribunal is to make every effort to ascertain the true facts, and it deprives a respondent of his day in court." 70-4 at pp. 3-4.
The Board also cited Pollution Control Board Procedural Rule 304(c) (2), which requires that the complaint contain "a concise statement of the facts upon which the respondents are claimed to be in violation."
However, in a later Board order, EPA v. Granite City Steel Co., Board No. 70-34 (March 17, 1971), it was noted that in Commonwealth Edison, the Board had upheld the sufficiency of those allegations referring to violations of precise numerical standards. The Board said that Commonwealth Edison did not require that a complaint plead evidence, and said that since the complaint in Granite City alleged the particular equipment from which emissions were said to have occurred and specified the dates of such alleged violations, it met the requirements of section 31. The Board also noted that Granite City had availed itself extensively of the discovery procedures provided by Board rules. Thus, if any evidence at the hearing had nevertheless surprised the steel company, it would have been free to argue for its exclusion on that ground at the hearing. A later Board order, EPA v. City of Champaign, Board No. 71-51C (September 16, 1971), reiterated the Board's belief that the discovery procedures provided by the Board's Procedural Rules can cure notice defects of a complaint. In that case, the Board rejected the city's contention that the complaint was insufficient for failure to specify the pollutants involved and failure to allege the facts complained of with sufficient particularity, saying that even if the city's contentions were true,
"* * * the points raised by these arguments could have all been covered, and actually were covered, * * * by the ample discovery procedures afforded to all parties by the Hearing Officer pursuant to the Rules of the Pollution Control Board." 71-51C at p. 2.
The complaint in this case states that Mystik's plant contains
"* * * vessels wherein natural bale rubber * * * is mixed with natural resins in a hexane-type bath and vented to the atmosphere, twelve (12) tanks wherein said coating solution was and is stored and vented to the atmosphere, and nine (9) polymerization ovens wherein the selected coating solution was and is continuously applied to the backing sheets * * *."
The complaint also states that Mystik used this equipment in such a manner as to "cause, threaten or allow the discharge, emission and presence" of volatile, perfume-like and other odors and odor-producing gases, aliphatic hydrocarbons, liquids, vapors and particulate matter.
It appears to us that this language in the complaint satisfies the statutory requirement that Mystik be informed of the "manner" of the alleged pollution. Here, unlike Commonwealth Edison, the complaint states the source of the odor and its nature. In addition, as noted above, section 31 requires that the complaint state the "extent" of the alleged violation. This complaint states that Mystik violated the Act to such an extent as to
"* * * be injurious to human, plant, or animal life, to health, or to property, or to interfere unreasonably with the enjoyment of life or property and so as to cause or tend to cause air pollution in Illinois, either alone or in combination with contaminants from other sources, in violation of Section 9(a) of the Act."
This allegation of the extent of the violation is sufficient in light of the fact that the complaint does not allege the violation of a specific regulation. The complaint alleges a violation of the Act itself, and the language of the Act states (Section 3 (b)) that a violation occurs only when some form of air pollution is injurious to human, plant or animal life, to health, or to property or unreasonably interferes with the enjoyment of life or property. In the latter clause, which as we shall see is the one pertinent to this case, the key word is "unreasonably." The Act itself, in section 33(c), in effect defines the term "unreasonably" by directing the Board as to what factors it shall take into consideration in determining that essential element of a violation. Section 33(c), in pertinent part, states:
"In making its orders and determinations, the Board shall take into consideration all the facts and circumstances bearing upon the reasonableness of the emissions, discharges or deposits involved including, but not limited to:
(i) the character and degree of injury to, or interference with the protection of the health, general welfare and physical property of the people;
(ii) the social and economic value of the pollution source;
(iii) the suitability or unsuitability of the pollution source to the area in which it is located, including the question of priority of location in the area involved; and
(iv) the technical practicability and economic reasonableness of reducing or eliminating the emissions, discharges or deposits resulting from such pollution source."
• 2 In summary, the complaint in this case alleges a violation of a particular statutory provision. It specifies the equipment and the nature of the contaminants which are involved in the alleged pollution. The record indicates that there was adequate time for making use of the broad discovery provided by Pollution Control Board Procedural Rule 313. The complaint also indicates the extent of the alleged violation; using the language of the Act, the complaint indicates that the alleged violation was either injurious or an unreasonable interference with the enjoyment of life or property. It is our conclusion that when the various sections of the Act referred to are taken together, the meaning of the complaint's allegations are sufficiently clear and specific.
3. The propriety of some of the Board's references to the record
There is another problem concerning the complaint with which we must deal. The original complaint in this case was filed on April 27, 1972; it alleged a violation of the Act on each day from July 1, 1970, to the date of filing. An amended complaint, filed June 8, 1972, also alleged violation to the date of filing. A second amended complaint alleging violation of section 9(a) "continuing until the close of the record" was rejected by the Board. During the hearings, however, the Hearing Officer received evidence of numerous events subsequent to June 8, 1972, and the Board granted Mystik's motions, made many times during the hearings, to exclude all such evidence from its consideration. Nevertheless, in its order the Board made findings of fact, each with reference to "principal supporting items of evidence," as required by the Board's own Procedural Rule 331. These record references form an extremely critical part of the Board's order as they purport to contain the evidentiary factual basis for its conclusion as to violations by Mystik, yet much of the testimony cited concerned dates after June 8, 1972 (and two items prior to July 1, 1970), thus falling outside the time scope of the complaint and the Board's own decision in regard thereto. Thus, in our view, they inescapably weaken the Board's conclusion. Examples of such references in the Board's order are to record pages 127, 248 (249), 298-300, 340-344, 388, 389-92, 393, 432, 461-462, 493, 648, 652, and 655.
• 3 One of the most important findings concerning the existence of an odor violation of the Act is set forth in the introductory sentence to the part of the Board's order ...