APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
COHEN, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Defendant appeals from an $8900 fine imposed against it by the circuit court of Cook County for violating section 9(a) of the Environmental Protection Act. (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009(a).) Defendant contends that: (1) the fine was improper because compliance with Pollution Control Board Rules, established by an emission test, constitutes a prima facie defense for each and every day similar conditions exist; (2) the fine was improper because the trial court erred in ruling that its prima facie defense was rebutted; and (3) the fine violates due process of law and the Environmental Protection Act.
On January 8, 1973, the State filed a verified 17-count complaint against defendant alleging that its fence-post-coating operations were causing air pollution. Counts I and II sought to enjoin common-law statutory nuisances; Counts III through XVII sought fines for specific instances of air pollution in violation of section 9 of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009). Defendant filed a verified answer which denied polluting the air. On February 14, 15 and 16, 1973, an evidentiary hearing was held on the State's motion for a preliminary injunction. As a result of this hearing, the court issued a preliminary injunction which it subsequently modified. Defendant then moved to dismiss the complaint, but before any action was taken, trial on the merits commenced.
At trial, the parties stipulated that the evidence taken at the hearing for the preliminary injunction would be considered in addition to other evidence adduced. Since the facts are not essentially in dispute we need not summarize the testimony of each witness. However, the following statement of facts is necessary to understand the case.
The State introduced evidence indicating that the odors and emissions from defendant's plant caused considerable physical irritation to the residents living near the plant and restricted those residents' use and enjoyment of their property. The State, primarily through the testimony of a number of residents of the area, was able to substantiate forty-three separate occasions when such hardships resulted. Those dates extended over the period of a year from April of 1972 to March of 1973. There were seven occasions in April; four in May; four in June; two in July; five in October; four in January; nine in February; and seven in March.
Defendant introduced evidence that it began its fence-post-coating operations in Blue Island in September of 1971 and operated without any pollution control equipment until February of 1972 when an electrostatic precipitator system was installed. This system did not operate satisfactorily and modifications in the system and in the chemical compound for coating the fence posts were made at various times. On July 17, 1972 (which was not a day complained of by the State), at defendant's direction, a 9-hour emission test was conducted by an independent chemical engineering firm. Although the comprehensiveness of this test is subject to question, as a result of the test, the rate of organic emissions from defendant's stack was determined to be 2.49 pounds per hour. Other evidence, primarily the testimony of defendant's employees, indicated that while the emissions from the plant had once been severe, they were hardly a problem at all when the matter came to court.
Following the trial, the State amended its complaint to conform to the proofs, combining and amending Counts III through XVII of the original complaint into a single count. On the basis of the evidence presented, the court issued a permanent injunction against defendant. This injunction is not in issue here. Subsequently, after the parties briefed the question of imposing a fine, the court denied defendant's motion to dismiss Count III of the amended complaint which requested that a fine be imposed and fined defendant a total of $8900 ($500 for the first violation and $200 for each of 42 subsequent violations). Defendant appeals from the imposition of this penalty.
Defendant first contends that the fine was improper because compliance with Pollution Control Board (PCB) Rules, established by an emission test, constitutes a prima facie defense for each and every day similar conditions exist. Defendant argues that it cannot be expected to conduct an emission test every day it operates and complains that the court erred in the consideration it gave to the emission test.
Section 49(e) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1049(e)) provides:
"Compliance with the rules and regulations promulgated by the Board under this Act shall constitute a prima facie defense to any action, legal, equitable, or criminal, or an administrative proceeding for a violation of this Act, brought by any person."
Defendant contends that its emissions test shows compliance with PCB Rule 205(f) which provides:
"Use of Organic Material. No person shall cause or allow the discharge of more than 8 pounds per hour of organic material into the atmosphere from any emission source, except as provided in paragraphs (f)(1) and (f)(2) of this Rule 205 and the following: Exception: If no odor nuisance exists the ...