PETITION for review of order of Pollution Control Board.
MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
Freeman Coal Mining Company, a division of Material Service Corporation (successor in interest to Freeman Coal Mining Corporation, the original party), owns the Freeman Crown Mine, which was in operation from 1953 to 1971. During that 18-year period, a mine refuse or gob pile was formed in the processing of the mined coal. The pile eventually reached a height of 70 feet and covered approximately 70 acres. Rainfall upon the pile reacts with the materials in it to form acidic contaminated run-off, which drains into an unnamed tributary of the Macoupin Creek. In order to treat these discharges, Freeman constructed a collection and treatment system in 1966 using a lime-treatment pond and settling pond at a capital expenditure of approximately $90,000 and a maintenance expense of approximately $25,000 per year.
Despite the system, contaminating discharges entered the unnamed tributary causing water pollution on May 20, July 8, July 23, and July 29, 1971. The parties stipulated to these findings. A complaint was filed by the Environmental Protection Agency (EPA) on December 3, 1971 (the mining operations had ceased on September 30, 1971), charging violations of section 12(d) of the Environmental Protection Act (Ill. Rev. Stat., ch. 111 1/2, § 1012(d)), depositing contaminants on land so as to cause a water pollution hazard; sections 12(a), (b) and (c), allowing pollutional discharges; and certain provisions of SWB-14, Sanitary Water Board regulations (selectively incorporated in the Act by section 49(c)). A hearing was held on September 22, 1972, at which time the parties entered into a stipulation of facts. During this period Freeman effected considerable repairs and improvements to the system, but no finding was made at the time of the hearing as to the quality and content of the discharges from the pile.
The Board entered its order on March 22, 1973, modified in part on May 17, 1973. The order found violations by Freeman of sections 12(a) and (d) of the Act, and Rules 203(a) and (b) of chapter 3, Water Pollution Regulations formerly incorporated in SWB-14. Freeman was ordered to cease and desist from such violations and to maintain its water-treatment system to meet effluent criteria of Pollution Control Board's Rule 606 of chapter 4 and its Water Quality Standards of chapter 3. To assure conformity to these standards, Freeman was required to obtain a permit for the system and file monthly reports. A $25,000 performance bond was imposed as well as a $5,000 penalty for past violations. Freeman appealed the order, except to the extent it required a permit and filing of reports.
The issues on appeal are:
1. Whether the Illinois Environmental Protection Act imposes liability on a landowner for the discharge of contaminated rain water.
a. Whether such liability can be based on passive ownership of land.
b. Whether such liability can be based on acts occurring before they were proscribed.
2. Whether the standards and regulations of the Illinois Pollution Control Board (PCB) have been properly applied to petitioner; to what extent do they impose future obligations.
3. Whether the PCB has the authority to require that a performance bond be posted in this case.
4. Whether the evidence indicates a violation by petitioner for which the PCB may impose a monetary penalty.
Section 12(a) of the Act provides:
Cause or threaten or allow the discharge of any contaminants into the environment in any State so as to cause or tend to cause water pollution in Illinois, either alone or in combination with matter from other sources, or so as to violate regulations or standards adopted by the Pollution Control Board under this Act; * * *." Ill. Rev. Stat., ch. 111 1/2, § 1012(a).
Petitioner's argument is essentially that it cannot be held liable for "allowing" the discharges because such discharges are the result of rain water, a natural force beyond the control of petitioner, interacting with the gob pile, the bulk of which was created prior to July 1, 1970, the effective date of the Act. It is argued that, if petitioner is held liable, a new estate in land will have been created, since mere passive ownership of land has not previously in Illinois given rise to the imposition of personal obligations.
The controversy appears to center around the meaning of the word "allow." Petitioner cites section 31(c) of the Act (Ill. Rev. Stat., ch. 111 1/2, § 1031(c)) to support its contention that the Board must prove more than passive ownership:
"`In hearings before the Board under this Title the burden shall be on the Agency or other complainant to show either that the respondent has caused of threatened to cause air or water pollution * * *.'" (Emphasis added by petitioner.)
• 1 Thus it is argued that the absence of the word "allow" from the provision of the Act, which sets the standard of proof, is evidence that proof of "allowing" pollution is not sufficient to sustain a violation. However, section 31(c) continues:
"* * * or that the respondent has violated or threatened to violate any provision of this Act or any rule or regulation of the Board * * *." (Emphasis added.)
The reference to other provisions of the Act clearly includes the prohibition in section 12(a) against allowing water pollution.
Even if the Act does not make allowing pollution a violation, petitioner contends this is an unconstitutional exercise of legislative power, citing Leet v. Montgomery County, 264 Md. 606, 287 A.2d 491 (1972). Leet is cited as the only case in which "a governmental body did expressly attempt to inject such an affirmative obligation," i.e., the imposition of personal liability for ownership of land, which the Supreme Court of Maryland found unconstitutional.
Leet involved a county zoning ordinance which permitted certain uses for land zoned Rural-Residential. Defendant was ordered to remove at his own expense abandoned automobiles which had accumulated on his property (other than residence) without his consent or knowledge, as constituting a violation of the ordinance. On review of the lower court order, the supreme court observed that the ordinance referred to volitional acts as comprising particular uses, i.e., the "establishment, operation or maintenance" of rubbish or junk in the R-R zone was a prohibited use. Some involvement of the landowner appears to be required, at least to the extent of knowledge or ratification. Without any such involvement:
"It would appear that the use that was thus being made of the property was by trespassers and not by the property owner or one privy with him." 264 Md. 606, 610, 287 A.2d 491, 494.
In the instant case there is no question that petitioner had knowledge of the pollutional discharges flowing from its land and the gob pile it had created. However, there are other grounds for distinguishing Leet beyond lack of knowledge and consent. In Leet one of the arguments advanced by defendant was that the order constituted a conficatory taking of his property without compensation or due process. In rejecting this contention the court distinguished between those actions of landowners which endanger the health or safety of their neighbors and those which are more properly classified as eyesores or blighted areas in the community:
We have no question but that the County would have properly been entitled to injunctive relief had the property owner used the property for the accumulation of rubbish or had suffered, permitted or consented to the accumulating and dumping of rubbish on his property. It must not be supposed that had the accumulation of rubbish in this case, although dumped upon the property by trespassers, constituted an immediate threat to the health or safety of the surrounding residents, the County would not have been entitled to a mandatory injunction requiring the property owner to abate the nuisance at his own expense. [Citation.]
However, the record fails to reveal any immediate threat to health or public safety; * * * the offensive aspect of the accumulation of abandoned vehicles lay solely in its affront to the aesthetic sense." 264 Md. 606, 611-612, 287 A.2d 491, 495.
Clearly, pollution of the waters here is a threat to the health and welfare of the surrounding residents. There was some evidence at the hearing that the seepage had rendered nearby crop land nearly unproductive and, while the pollution in one sense did cause aesthetic damage, i.e., turn the water orange and turbid, it also seriously affected the fish and insect population of the stream and adjacent vegetation.
Respondent justifies the Act's prohibition against allowing pollution as a legitimate exercise of the police power to regulate the use of land for protection of the public health, welfare and safety, citing Airtex Products, Inc. v. Pollution Control Board, 15 Ill. App.3d 238. In Airtex the petitioner was charged with violating SWB-5 and section 12(a) for discharging cyanide into the municipal sewer system, which had the effect of destroying organisms in the treatment plant that broke down wastes. Petitioner argued that it had an absolute right to use the sewer system, notwithstanding its failure to obtain a permit, by virtue of payment of a special assessment. The Fifth District Appellate Court disagreed:
"Even after a special assessment, the rule to be applied is that the right to connect to a sewer system of a municipality is subject to reasonable regulations imposed by ...