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Mystik Tape v. Pollution Control Bd.

OPINION FILED MARCH 24, 1975.

MYSTIK TAPE, DIVISION OF BORDEN, INC., APPELLEE,

v.

THE POLLUTION CONTROL BOARD ET AL. — (ENVIRONMENTAL PROTECTION AGENCY, APPELLANT.)



Appeal from the Appellate Court for the First District; heard in that court on petition for review of an order of the Pollution Control Board.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:

The Environmental Protection Agency (EPA) filed a complaint against Mystik Tape (Mystik), a division of Borden, Inc., charging that Mystik had violated section 9(a) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009(a)) in causing air pollution. The complaint also charged that Mystik had violated section 9(b) of the Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009(b)), and Rule 3-2.110 of the rules and regulations in installing certain equipment without first obtaining a permit.

The Pollution Control Board (Board) found that Mystik had violated both of the sections of the Act and Rule 3-2.110, and ordered Mystik to submit an odor-abatement program which would result in the abatement of the odor no later than June 1, 1973. The Board further assessed a fine of $3,500, apparently solely for installing certain equipment without first obtaining a permit.

On appeal to the appellate court by Mystik, the order of the Board was set aside. The appellate court reversed the Board, holding, inter alia, (1) that the Board could not find a violation of section 9(a) of the Act until the Board first had adopted standards, in addition to those contained in the Act, and thereafter allowed a reasonable amount of time to comply with those standards, (2) that the Board misconstrued the elements necessary to a finding of a violation of section 9(a) of the Act, (3) that the finding of a violation of section 9(a) was against the manifest weight of the evidence, and (4) that Mystik had not violated section 9(b) of the Act in failing to obtain certain installation permits. (Mystik Tape v. Pollution Control Board (1973), 16 Ill. App.3d 778.) We allowed the petition of the EPA for leave to appeal.

Four issues are raised in this appeal: (1) Do sections 9(a), 3(b), 3(d) and 33(c) of the Act set forth sufficient standards to permit a finding of a violation of the Act without the Board first announcing additional standards and allowing a reasonable time to comply therewith; (2) Must the Board, in making its determinations and orders, consider each and every one of the factors listed in section 33(c) of the Act; (3) Did the appellate court err in holding that there was no burden upon Mystik to obtain a permit to install certain odor-counteractant and other equipment; and (4) Were the findings of the Board with regard to the violation of section 9(a) of the Act contrary to the manifest weight of the evidence?

Certain sections of the Act must be quoted for an understanding of the parties' contentions and their resolution.

Section 9(a) of the Act provides:

"No person shall:

(a) Cause or threaten or allow the discharge or emission of any contaminant into the environment in any State so as to cause or tend to cause air pollution in Illinois, either alone or in combination with contaminants from other sources, or so as to violate regulations or standards adopted by the Board under this Act." Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009(a).

Section 3(b) of the Act defines air pollution as follows:

"`Air Pollution' is 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).

Section 5 of the Act describes the Board, its composition, functions, duties and powers. Section 5(b) thereof states:

"The Board shall determine, define and implement the environmental control standards applicable in the State of Illinois and may adopt rules and regulations in accordance with Title VII of this Act." Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1005(b).

Section 33 of the Act refers to the orders and determinations of the Board, requiring a written opinion reciting the facts and reasons leading to a decision and suggesting the broad scope permitted in any order. Section 33(c) 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 ...


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