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May v. Pollution Control Board

OPINION FILED FEBRUARY 20, 1976.

ARNOLD N. MAY ET AL., PETITIONERS,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



PETITION for review of order of Pollution Control Board. MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Pursuant to section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1041) (hereinafter the Act) and the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 264 et seq.) petitioners Arnold N. May and Hillview Farms, Inc., seek review of an order of the Illinois Pollution Control Board (hereinafter the Board) commanding petitioners to cease and desist from violating sections 9(a) and 12(b) of the Act (Ill. Rev. Stat. 1973, ch. 111 1/2, pars. 1009(a) and 1012(b)) and imposing a $2500 fine.

Petitioners own and operate certain farmlands in and around the village of Richmond in McHenry County. Since approximately March, 1971, petitioners have been receiving sludge from the North Shore Sanitary District for which petitioners receive $30 per load. The sludge consists of sewage which has been treated at a sewage treatment plant. The treatment process consists of passing sewage through a settling tank where much of the solid materials settle to the bottom of the tank. The settled solids are then placed in thickeners to increase the percentage of solids. Following the thickening, the material is placed in anaerobic digesters where bacteria further decompose the waste. This thickened material, termed digested sludge, which is still 95% water, is, upon receipt from the North Shore Sanitary District, dumped into a holding pit containing hog and cattle manure. The resulting mixture is then spread on certain tracts of farmland by the use of a spray irrigation device for purposes of crop fertilization and soil enrichment. In 1972, May, without advice of counsel, inquired of the Environmental Protection Agency as to whether a permit for such activity was required. May was advised that a permit was required and on June 6, 1972, a permit was in fact issued by the Agency. This permit granted petitioners permission:

"* * * to install, own and operate spray irrigation facilities and related appurtenances for the purpose of applying a mixture of anaerobically digested and properly stabilized liquid sludge from the North Shore Sanitary District (Waukegan Plant) together with confined animal feedlot waste to a forty (40) acre site * * *."

In its amended complaint, the Agency alleged that petitioners had, on certain specified days, violated section 12(b) of the Act by spreading sludge on land other than that specified in the permit; that such violation created a water pollution hazard in violation of section 12(d) of the Act; and that petitioners' operations caused air pollution by the creation of a noxious odor in violation of section 9(a) of the Act. Following substantial discovery and extensive hearings, the Pollution Control Board issued its opinion and order, wherein it was found that petitioners had violated section 12(b) of the Act by spreading sludge on locations other than the permit area and had violated section 9(a) of the Act in that odors emanating from the sludge constituted air pollution. The Board further found no water pollution hazard and thus no violation of section 12(d) of the Act. The Board then ordered petitioners to cease and desist from violating section 9(a) and 12(b) of the Act; forbade petitioners from spreading sludge on nonpermit areas; forbade petitioners from accepting sludge or similar materials from any source other than the North Shore Sanitary District; and made petitioners jointly and severally liable to pay a $2500 fine.

Petitioners make two contentions on appeal. First, petitioners assert that the Board's finding that petitioners violated section 12(b) of the Act by violating the conditions of its permit is in error because no permit was required for the operations involved herein. The Board based its findings that a permit was required upon its conclusion that petitioners' operations were a "treatment works" as defined by the Board's rules and regulations. Petitioners contend that its operation is not a treatment works, and that therefore no permit was required for its operations. It is argued that in granting the permit herein the Agency engaged in a gratuitous act. Since no permit was required, petitioners conclude that it cannot be held to have violated section 12(b) of the Act by violating the conditions of its permit. Petitioners' second contention is that the Board erred in imposing a monetary penalty for violation of section 9(a) of the Act. In their brief, petitioners argued that to impose a fine without allowing a reasonable opportunity to comply with the "standards" which the Board set forth in its opinion and which had not theretofor existed violates due process of law. At the oral argument of this cause petitioners argued that the fine imposed was improper because it was not supported by the record.

We first consider whether an operating permit was required for the petitioners' operation from the Illinois Environmental Protection Agency. Section 12(b) of the Act, which petitioners were found to have violated, provides in part as follows:

"No person shall:

(b) Construct, install, or operate any equipment * * * capable of causing or contributing to water pollution * * * of any type designated by Board regulations, without a permit granted by the Agency, or in violation of any condition imposed by such permit."

Chapter 3, rule 902 of the Illinois Pollution Control Board Rules and Regulations prohibits the operation of any "treatment works" without an operating permit issued by the Environmental Protection Agency. Chapter 3, rule 104 of the regulations includes the following definitions of "sewage," "treatment works," and "wastewater":

"`Sewage' means water-carried human and related wastes from any source together with associated land runoff;

"Treatment Works' means individually or collectively those constructions or devices, except sewers, used for collecting, pumping, treating, or disposing of wastewaters or for the recovery of byproducts from such wastewater;

`Wastewater' means sewage, industrial waste, or other waste, or any combination of these, whether treated or untreated, plus any admixed land runoff."

It is clear that if petitioners' spray irrigation devices for the spreading of sludge and feedlot wastes is a "treatment works" then an operating permit is required for its use under rule 902 and section 12(b) of the Act, and petitioners may properly be held to have violated section 12(b) of the Act by using the devices on areas beyond that authorized by the permit.

• 1, 2 At the outset, it is to be observed that petitioners do not challenge the factual basis underlying the Board's decision, nor do they assert that the Board erred in interpreting the Act. Rather, petitioners contend that the Board erred in interpreting its own rules and regulations. In construing regulations, the same rules which apply to the construction of statutes apply. (See Rucker v. Wabash R.R. Co. (7th Cir. 1969), 418 F.2d 146.) Generally when a statute (or regulation) promotes the public health or welfare, it should be construed liberally. (Zehender & Factor, Inc. v. Murphy (1944), 386 Ill. 258, 53 N.E.2d 944; Prosk v. Allstate Insurance Co. (1967), 82 Ill. App.2d 457, 226 N.E.2d 498). The prime concern in construing a statute is to give effect to the true intent and meaning of the body which adopted it. (Cherin v. R. & C. Co. (1957), 11 Ill.2d 447, 143 N.E.2d 235.) In Bowles v. Seminole ...


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