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Cobin v. Pollution Control Board

JANUARY 21, 1974.




APPEAL from the Pollution Control Board.


This is a petition for review of an order of the respondent Pollution Control Board imposing a fine of $3000 on petitioner, Frank Cobin, doing business as Cobin Salvage Company, and ordering the company to cease and desist open burning and the conduct of its salvage operation by open burning.

This case was initiated by a complaint filed by the Environmental Protection Agency (hereinafter referred to as respondent) pursuant to section 31(a) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, sec. 1001 et seq.) before the Pollution Control Board. The complaint alleged that the petitioner operated a salvage company in a manner which allowed the open burning of automobiles in violation of the Environmental Protection Act and rules and regulations adopted under it. It was also alleged that there was open burning to salvage copper wire at the salvage yard, also in violation of the Act and regulations. Four specific dates of alleged violations were stated in the complaint. Petitioner's answer to the complaint admitted the operation of the salvage yard but denied the other allegations. Prior to a hearing on the complaint petitioner filed a motion to dismiss on constitutional grounds, a demand for a jury trial, and a motion to transfer the case to the Circuit Court of Jackson County. These motions were denied by the Pollution Control Board. Petitioner moved for a view of the premises. A ruling was not made on this motion. As related in the record and specified in the complaint, employees of the Environmental Protection Agency saw black smoke coming from the vicinity of the petitioner's salvage yard, proceeded to the salvage yard, and upon three occasions saw automobiles burning on the premises and on another occasion burning materials around coiled wire. At the close of the Agency's evidence petitioner moved that the Pollution Control Board enter judgment in its favor for the reason that the Environmental Protection Agency had failed to meet its burden of proof. The hearing officer referred the motion to the Board and directed the petitioner to proceed with its case.

The substance of petitioner's testimony, briefly stated, is that the Village of Dowell, Illinois has a population of 415; that the nearest city is DuQuoin, with a population of 6800; that the area of the Cobin Salvage Yard is approximately 13 acres; that the yard has been at its present site for 25 years; that there are 10 or 15 homes within a half-mile of the yard; that there are 15 to 20 employees at the yard; that other than a tavern and grocery store, the yard is the only business in Dowell; that no complaints from citizens have been made in regard to the operations at the yard; that Cobin Salvage Co. has a contract with the City of Murphysboro to take the city's abandoned cars; that there are many auto hulls in the area; and that one salvage yard operator went out of business because he couldn't comply with the law.

Following the hearing the Illinois Pollution Control Board issued an opinion and order which ordered the petitioner to cease and desist open burning and the conduct of his salvage operation by open burning. The Board also assessed a penalty in the amount of $3000 for violations of section 9(c) of the Act and sections 2-1.1 and 2-1.2 of the Board's rules and regulations. The Board specifically found that petitioner operated the salvage yard where the alleged violations occurred and that the testimony offered by the Agency confirmed that there was a salvage operation by open burning. The Board made no finding as to whether the operation of the Cobin Salvage Co. constituted "air pollution" as set forth in section 9(a) of the Act.

Petitioner raises a number of issues: Did failure of the Board to rule on the motion to view the premises constitute reversible error?; Are the definitions of "air pollution" and "open burning" in the Act so vague as to render the Act constitutionally invalid?; Should appellant's demand for a jury trial and motion to transfer the cause to the circuit court have been granted?; Did the Board take into account all relevant facts as required by section 33(c) of the Act?; Were the opinion and order of the Board against the manifest weight of the evidence?; Were the findings of the Board based on incompetent evidence?; Is the Board's power to issue cease-and-desist orders violative of the constitutional prohibition against the taking or damaging of property without just compensation?; Is the grant of authority to the Board by the Act an unconstitutional delegation of legislative and judicial power?

• 1 Did failure of the Board to rule on the motion made by petitioner for a viewing of the premises constitute reversible error? We believe it did not. The Pollution Control Board's rule 322 provides: "Upon motion of any party or upon the hearing officer's own motion, the hearing officer and any Board members present may view the premises in question * * *." Whether or not the premises shall be viewed is discretionary with the Board. While a ruling on petitioner's motion should have been made, we do not find that such failure was prejudicial. The Board cannot possibly view the premises in all cases on which it has to rule. Only when the circumstances are so unique that viewing the premises constitutes the only means of determining essential facts would it be an abuse of discretion for the Board not to view the premises. We do not regard the facts and circumstances in this case as unique. Furthermore, the Board based its findings on the violation of section 9(c) of the Act, which prohibits open burning, rather than on section 9(a) which prohibits air pollution. In proceeding under section 9(c) it was not necessary for the Board to make findings regarding the presence or degree of air pollution as required in section 9(a).

• 2 Are the terms "air pollution" and "open burning" as used in the Environmental Protection Act so vague as to render the Act constitutionally invalid? We hold that they are not. Though the Board made no affirmative ruling regarding the violation of section 9(a) prohibiting air pollution, we have no hesitancy in stating that the legislative definition is sufficient. This question was considered and our view was expressed in Southern Illinois Asphalt Co., Inc. v. Environmental Protection Agency, 15 Ill. App.3d 66, 73, 303 N.E.2d 606, 612, where we stated: "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. * * * In view of the broad range of the subject matter a more precise definition could hardly be constructed."

With regard to the definition of "open burning," section 9(c) states that no person shall

"Cause or allow the opening burning of refuse, conduct any salvage operation by open burning, or cause or allow the burning of any refuse in any chamber not specifically designed for the purpose and approved by the Agency pursuant to regulations adopted by the Board under this Act; except that the Board may adopt regulations permitting open burning of refuse in certain cases upon a finding that no harm will result from such burning, or that any alternative method of disposing of such refuse would create a safety hazard so extreme as to justify the pollution that would result from such burning."

Respondent contends not only that the statute and rules, which essentially restate the wording of the statute, are understandable and clear, but that petitioner cites no possible instances of confusion that could result from attempts to interpret the section.

This case presents the first time that section 9(c) has been challenged on grounds of vagueness. While we find no authority in Illinois on this point, regulations prohibiting open burning in other jurisdictions have generally been sustained in the face of similar challenges. Houston Compressed Steel Corp. v. State (Tex. Civ. App. 1970), 456 S.W.2d 768, cited in Southern Illinois Asphalt, held that an air pollution regulation prohibiting open burning was not too vague to be enforcible against a scrap metal company that burned railroad boxcars in order to retrieve scrap metal. Commonwealth ex rel. Allegheny County v. Toth, 189 Pa. Super. 552, 152 A.2d 284, upheld a provision in a smoke control ordinance which required persons responsible for areas in which open burning of coal refuse was practiced to extinguish the same by a specified date or show due diligence. Supportive of this view also are State v. Mundet Cork Corp. (1952), 8 N.J. 359, 86 A.2d 1, cert. denied, 344 U.S. 819, and Commonwealth v. Glen Alden Corp. (1965), 418 Pa. 57, 210 A.2d 256. We hold, therefore, that the definition of open burning contained in section (c) is not so vague as to be unenforceable.

Did the Pollution Control Board rule correctly in denying petitioner's demand for a jury trial and motion to transfer to the circuit court?

Petitioner claims that his constitutional right to a trial by jury was violated by the Board's denial of his demand for a jury trial and motion to transfer to the circuit court, and by failure of the Act to provide for a jury in what he contends to be essentially criminal enforcement proceedings. Respondent argues that proceedings before the Board should not be characterized as criminal in nature, and thus no right to jury trial attaches.

Leaving to one side the question of whether this is a criminal proceeding, petitioner cites judicial and statutory authority for the proposition that a jury trial is required even if the proceeding is not found to be criminal. Bullock v. Geomble, 45 Ill. 218, and Willis v. Legris, 45 Ill. 289, both held a jury determination to be constitutionally required in cases involving levying of fines. It should be noted, however, that both cases preceded adoption of the fourteenth amendment; thus the operative statutory language under which these decisions were rendered was article XIII, section 6 of the 1848 Illinois Constitution, which guaranteed the right to trial by jury in all cases at law, regardless of the amount in controversy. That provision would be unworkable in the contemporary judicial system and has since disappeared from the Constitution. Bullock and Willis are also distinguishable in that they involve substantial questions of due process raised by the imposition of fines by informally constituted village tribunals.

• 3 The 1970 Illinois Constitution, article I, section 13, now provides: "The right of trial by jury as heretofore enjoyed shall remain inviolate." The language may seem ambiguous, but the courts have generally construed it as excluding special or statutory proceedings, unknown at common law, from the traditional guarantee of a jury trial. (People ex rel. Keith v. Keith, 38 Ill.2d 405, 231 N.E.2d 387.) The only rights which the section was intended to preserve are those pertaining to the right of trial by jury at common law and its essential features as known to the common law tradition. (People v. Schoos, 399 Ill. 527, 78 N.E.2d 245.) The Illinois Supreme Court held in ...

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