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Shell Oil Co. v. Pollution Control Bd.

OPINION FILED APRIL 5, 1976.

SHELL OIL COMPANY ET AL., PETITIONERS,

v.

THE POLLUTION CONTROL BOARD, RESPONDENT.



PETITION for review of order of Pollution Control Board.

MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

This action involves a petition for judicial review of Illinois Pollution Control Board Regulation R72-2, which regulates permissible levels of sound emissions from stationary sources. Petitioners maintain this action under sections 29 and 41 of the Illinois Environmental Protection Act (Ill. Rev. Stat., ch. 111 1/2, §§ 1029, 1041) *fn1 providing for direct review in this court of regulations promulgated under the Act. As grounds for review, petitioners, corporations that own petroleum refineries and related facilities throughout the State, contend that the Illinois Pollution Control Board in adopting regulation R72-2 exceeded the authority delegated to it by the Environmental Protection Act, *fn2 and that the Rule as adopted infringes upon their due process rights. On appeal petitioners also argue that Rule 72-2 is invalid because it is contrary to the manifest weight of the evidence in the record.

The facts and background to this dispute are as follows. After the Illinois Environmental Protection Act became effective in 1970, the Illinois Institute for Environmental Quality formed a task force on noise to develop a proposed set of regulations for abating noise pollution. The Institute contracted with two consulting firms to provide expert assistance to the task force. Early in 1972, the task force presented a set of proposed regulations to the Illinois Pollution Control Board. Between June 22, 1972, and November 11, 1972, the Board conducted a series of public hearings throughout the State at which various criticisms and suggestions were offered.

The original proposal set up a system of land use classifications based on the Standard Land Use Coding Manual (SLUCM) devised by the U.S. Department of Transportation, which classified all land into Classes A, B, and C, corresponding to residential, business and manufacturing uses. A special provision regulated undeveloped land. The maximum permissible noise levels emitted to abutting Class A, B, and C property was based on the classification of the emitter. Emissions were to be measured at the property line of the emitter. For Class A receivers more stringent nighttime limits were imposed. There were also special provisions pertaining to emissions to nonabutting receivers, discrete tones, and the like.

After the initial series of hearings, several major modifications were made in the regulation as proposed, and a second round of hearings was scheduled between May 7, 1973, and May 12, 1973. The final draft incorporated several major changes in the applicability of the numerical limits to various noise situations. Under the final proposal, emissions were to be measured at the point of reception, not less than 25 feet from the emitter. Existing property line noise sources were exempted from the more stringent nighttime limits contained in Rule 203. Undeveloped land was unclassified and thus no longer subject to the numerical limits. Farmlands were reclassified as a Class C rather than as a Class B use. A rule regulating impulsive sound was added and the rule regulating nonabutting property deleted. The definition of discrete tones was revised so as to include fewer noise sources. Exemption from the numerical limits were broadened to cover certain equipment and land uses. This draft also added delayed compliance dates of from 12 months to three years for certain existing sources. The Board invited additional comment on this modification, and, on the basis of the comments received, some additional modifications were made, only two of which are important for the purposes of this appeal. First, petroleum refining land uses received a two-year compliance date in Rule 209(i). Second, a new Rule 201(d) was added which provided that where agricultural or undeveloped land abuts "B" or "C" land, such agricultural or undeveloped land could be classified as Class "B" or "C" by a government with zoning jurisdiction over such land. The purpose of this provision was to assure developers of "B" and "C" properties that they would not become subject to development of abutting properties that would require noise regulations more stringent than what was contemplated at the time of development.

The Pollution Control Board promulgated its final set of regulations on July 26, 1973. Subsequently, approximately 20 corporations and associations petitioned for judicial review of the noise regulations in various districts of the Illinois Court of Appeals. On January 7, 1974, one of those petitioners, the Illinois Coal Operators Association, moved for leave to take a direct appeal to the Supreme Court, which motion was granted. Thereafter, petitioners in this cause, together with others from different districts, moved for leave to participate as amicus curiae in the Coal Operators proceeding in the Supreme Court, which motion was granted on February 14, 1974. After petitioners were informed by counsel for the Coal Operators Association that the Supreme Court proceedings would be more limited in scope than petitioners had believed, petitioners moved for leave to withdraw as amicus curiae, which motion was granted. On February 10, 1975, the Supreme Court filed an order transferring certain petitions for review pending in the First District *fn3 to this district for consolidation with Cause No. 73-279.

• 1 Petitioners first contend that the Board in promulgating its noise pollution regulations exceeded the authority delegated to it under the Environmental Protection Act. Section 23 of the Illinois Environmental Protection Act (Ill. Rev. Stat., ch. 111 1/2, par. 1023), provides in pertinent part that "[i]t is the purpose of this Title [sections 23-25 of the Act] to prevent noise which creates a public nuisance." It is petitioner's theory that under this section the Board is limited to promulgating a set of regulations that incorporate the definition of "public nuisance" as the term has developed at common law. Thus, under this analysis, the Board unlawfully has attempted to regulate noise emissions that do not reach the level of the traditional public nuisance because the Board based its emission standards in part on such considerations as speech interference, and community response to indoor and outdoor noise levels. We believe that petitioner's position is without merit. Even if we were to assume, for the sake of argument, that the legislature did in fact intend the Board to codify in a set of regulations only the conditions under which the emission of noise would constitute a public nuisance, *fn4 we cannot say that the Board is limited to any one set of criteria as a basis for regulating maximum permissible noise emissions. It is clear by now that the term "nuisance" is incapable of any exact or comprehensive definition. (See W. Prosser, Handbook of the Law of Torts 571 (4th ed. 1971).) The term "public nuisance" is said to comprehend "a miscellaneous and diversified group of minor criminal offenses, based on some interference with the interests of the community, or the comfort and convenience of the general public." We cannot say, therefore, that the criteria used by the Board do not fall within this broad concept.

Petitioners also contend that the Board has exceeded its authority in promulgating Rule 102. Rule 102, a general provision preceding those rules establishing numerical limitation on sound emissions for property line noise sources, provides as follows:

"No person shall cause or allow the emission of sound beyond the boundaries of his property so as to cause noise pollution in Illinois, or so as to violate any provision of this chapter or the Illinois Environmental Protection Act."

Petitioners read the terms of this provision literally. Thus, under their analysis, a violation can occur either through the emission of sound which exceeds the decibel limitations established in Rules 202 through 207 or which unreasonably interferes with the enjoyment of life or lawful business as the term "noise pollution" is defined in Rule 101(j). The terms of the legislative prohibition of noise pollution contained in section 24 of the Environmental Protection Act would appear, however, to contemplate the use of such an alternative standard. Section 24 of the Act provides:

"No person shall emit beyond the boundaries of his property any noise that unreasonably interferes with the enjoyment of life or with any lawful business or activity so as to violate any regulation or standard adopted by the Board under this Act." Ill. Rev. Stat., ch. 111 1/2, § 1024.

• 2 We believe petitioners' position to be without merit. The Supreme Court's recent decision in Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill.2d 305, 319 N.E.2d 782, is controlling here. Section 25 of the Act states that the Board shall categorize the types of noise emissions that unreasonably interfere with the enjoyment of life and lawful business activities and empowers the Board to establish maximum permissible limits for noise emissions. Thus, reading this section in connection with section 24, it is clear that "[t]he basic violation was to be unreasonably interfering through noise with the enjoyment of life or lawful activity, and it is clear that it was contemplated by the legislature that the Board would adopt standards or regulations to define or identify noise emissions which constituted such unreasonable interference." (Illinois Coal Operators Association v. Pollution Control Board, at 309.) Rule 102, as construed in Coal Operators Association, simply prohibits emissions that unreasonably interfere with life or activities whether such emissions violate section 24 generally or a particular Board regulation.

We next consider petitioners' challenge to the general validity of the rules in question here. Section 27 of the Act mandates that certain factors be considered by the Board in exercising its rule-making authority. Section 27 provides in pertinent part as follows:

"In promulgating regulations under this Act, the Board shall take into account the existing physical conditions, the character of the area involved, * * *, and the technical feasibility and economic reasonableness of measuring or reducing the particular type of pollution." (Ill. Rev. Stat., ch. 111 1/2, § 1027.)

Petitioners maintain that the rules are invalid because the manifest weight of the evidence in the rule-making record does not support the Board's conclusions that the noise emission standards and compliance dates are technically feasible and economically reasonable. Respondent contends that the proper standard for review is whether the Board's action is arbitrary and capricious.

In the Coal Operators case, the Illinois Pollution Control Board contended that the Supreme Court should not set aside the Board's action unless it found that the Board's action was arbitrary and capricious. In its brief, the respondent carefully delineated the difference in the standard the courts use for reviewing the decisions of an administrative body performing an adjudicatory function as contrasted with the situation when the body is performing a rule-making function. In an adjudicatory proceeding the courts will uphold the decision of the administrative body unless the decision is contrary to the manifest weight of the evidence; however, in a ...


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