PETITION for review of order of Pollution Control Board.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Petitioner, Freeman Coal Mining Company, files its petition for review in this court pursuant to Supreme Court Rule 335. (Ill. Rev. Stat. 1973, ch. 110A, par. 335; 50 Ill.2d R. 335.) It seeks review of an order entered by respondent Illinois Pollution Control Board finding petitioner in violation of rules and regulations governing the control of air pollution ("Air Rules") adopted by the Air Pollution Control Board, a predecessor agency, in existence before the Environmental Protection Agency (E.P.A.) and the Pollution Control Board, created by the enactment of the Environmental Protection Act (ch. 111 1/2, par. 1001, et seq.), came into being on July 1, 1970, and assessing a penalty of $1500 for such violations.
• 1 On July 28, 1972, respondent E.P.A. filed a complaint against the petitioner alleging that petitioner violated Rule 2-2.53, Rule 3-3.122, and Rule 2-2.41 of the "Air Rules." On April 18, 1973, respondent E.P.A. filed a motion for leave to file an amended complaint. The amended complaint attached to said motion added the allegation that the petitioner violated Rule 3-2.110 of the "Air Rules," in that petitioner had "installed or constructed two multiclone collectors on its coal fired boilers without first receiving permits." No order granting leave to file the amended complaint appears in the record furnished by respondents. On May 7, 1973, petitioner Freeman filed an affidavit stating that "two multiclones had been installed for the purpose of controlling the particulate emissions from those boilers, for which E.P.A. subsequently issued the appropriate permits." Petitioner's motion to dismiss the proceedings was denied by an order entered May 17, 1973. On May 21, 1973, a hearing was conducted and evidence taken. On September 6, 1973, respondent Board entered its order finding the petitioner in violation of Rule 3-3.122, Rule 2-2.41, and Rule 3-2.110 of the "Air Rules" and assessing a penalty of $1500 for such violations.
By the provisions of section 49(c) of the Environmental Protection Act:
"All rules and regulations of the Air Pollution Control Board, the Sanitary Water Board, or the Department of Public Health relating to subjects embraced within this Act shall remain in full force and effect until repealed, amended, or superseded by regulations under this Act." (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1049(c).)
Section 31 (a) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1031(a)) provided, in part:
"If such investigation discloses that a violation may exist, the Agency shall issue and serve upon the person complained against a written notice, together with 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, and a statement of the manner in, and the extent to which such person is said to violate this law or such rule or regulation and shall require the person so complained against to answer the charges of such formal complaint at a hearing before the Board at a time not less than 21 days after the date of notice, except as provided in Section 34 of this Act".
The notice and complaint so served form the basis for the respondent Board's jurisdiction over the petitioner. Said respondent has considerable discretion in allowing leave to file amended complaints, and petitioner responded to the additional charge in its affidavit.
Rule 3-3.122 of the "Air Rules" provided, in part:
"The production or emission of dense smoke is prohibited. No person shall cause, suffer or allow to be emitted into the open air from any fuel-burning equipment, internal combustion engine, premise, open fire, or stack smoke the appearance, density, or shade of which is No. 2 or darker, of the Ringelmann Chart except as provided in Rule 3-3.300.
Rule 2-2.41 of the "Air Rules" provided:
"This program, when filed with the Technical Secretary, shall schedule over a reasonable period of time either an installation of gas cleaning devices and/or the replacement and/or alteration of specified facilities such that emissions of air contaminants are reduced to the levels required by these Regulations.
The Technical Secretary shall review these programs and make recommendations to the Board concerning whether or not such programs are adequate and reasonable. The Board may approve programs upon recommendation of the Technical Secretary. * * * When an emission reduction program has been approved, the person receiving the approval shall not be in violation of this Section provided that the approval program is being implemented.
The Technical Secretary shall make frequent reports to the Board on emission reduction programs received and his recommendations on said programs. The responsible person for an approved program shall make periodic reports to the Board at their request on the progress being made toward completing a program. The burden of proof that the progress ...