PETITION for review of order of Pollution Control Board.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
On November 15, 1971, the Environmental Protection Agency, (hereinafter EPA) filed a complaint, which was twice amended, against the Aluminum Coil Anodizing Corporation (hereinafter ACA) in which it was alleged that ACA was causing air pollution in violation of section 9(a) of the Environmental Protection Act (hereinafter the Act). (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009(a).) The Pollution Control Board (hereinafter the Board) filed an opinion and order which found that ACA was causing air pollution in violation of the Act and imposed a fine of $1500. ACA appeals from this order to this court pursuant to the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.) and section 41 of the Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1041).
In its second amended complaint, the EPA alleged that ACA had, beginning on or about July 1, 1970, and continuing "until at least the filing hereof," caused air pollution within the meaning of section 3(b) of the Act and in violation of section 9(a) of the Act by emitting into the atmosphere sulphuric acid droplets or mist, nitric oxide and noxious odors. At the hearing on the amended complaint, which began in January, 1973, the EPA introduced the testimony of an environmental protection engineer and four citizen witnesses. The engineer testified that on a visit to the ACA plant in the village of Fox River Grove, he noticed a sharp, acid type odor, mild to moderate in strength downwind of the plant and a vapor plume. On a subsequent visit to the plant he noticed an odor which he described as a "rather strong overpowering acid odor" inside the plant. He also testified that he observed white spots on plants and aluminum door frames in the vicinity, "greyish smears" on automobiles in the ACA parking lot, and an asphalt roof near the plant which was deteriorated on the side facing the ACA plant and in a considerably better condition on the other side. He also testified that technology was available to control the odors. The four citizen witnesses, residents of Fox River Grove, variously testified that the air in the vicinity of the ACA plant smelled like rotten eggs, sulphur and ammonia; that the source of the odor was the ACA plant; and that the odor made breathing difficult, caused headaches, coughing and burning and watering eyes. These witnesses also indicated that the plant was located in the central shopping area of the village near several blocks of stores, businesses and industries and was located in the same building as a doctor's and dentist's office. The ACA plant was also located near single-family residences and apartment buildings. The record also discloses that an ambient air test was taken by the EPA, but the results of that test were not admitted into evidence; stack tests were not taken. ACA produced the testimony of the president of ACA and three of its employees. The employees all testified that they had not smelled any odors in the vicinity of the plant and that their automobiles were not affected by any emissions from the plant. The president of ACA, whose deposition was introduced into evidence as his testimony by stipulation of the parties, testified that he knew of no complaints from any citizens or officials of the village concerning emissions from the plant. He also described the anodizing process and indicated that in 1971 ACA began the process of moving its operation to a new facility in Streamwood, which move was completed in late 1972, at which time the Fox River Grove plant ceased operations.
In its opinion and order, the Board summarized the EPA's second amended complaint, described the anodizing process and reviewed the testimony of the witnesses. The Board found that "* * * air pollution control equipment is necessary in this process," and concluded its opinion as follows:
"We consider that the weight of evidence presented clearly shows that ACA was causing air pollution in violation of Section 9(a) of the Act and that the disappearance of the odor after the final plant shutdown (R.185) can leave no further doubt as to the origin of the pollution. The penalty is reduced from what it would have been because the phaseout of operations was under way during the period of violation.
The question of a cease and desist order is rendered moot by the closing of the plant."
The Board then entered its order imposing a $1500 penalty upon ACA for the violation of section 9(a) of the Act described in the opinion.
ACA raises five issues for review: (1) whether the opinion and order of the Board shows that ACA's emissions contained sufficient quantities and qualities of contaminants so as to constitute air pollution within the meaning of the Act; (2) whether the opinion and order of the Board shows that the Board properly considered all the facts and circumstances bearing upon the reasonableness of the emissions as required by section 33(c) of the Act; (3) whether the Board made findings of fact in violation of a certain Board procedural rule and considered matters outside the time-scope of the second amended complaint; (4) whether the Board acted improperly in deciding the case without oral argument; and (5) whether the Board erroneously assessed a penalty against ACA or, alternatively, whether the penalty was excessive.
We deem it advisable to consider ACA's first two contentions together.
The statutory framework with which we are concerned on this appeal may be summarized in the following manner. Section 9(a) of the Act prohibits the discharge or emission of "any contaminant" into the environment so as to cause "air pollution." "Contaminant" is defined by section 3(d) of the Act as "* * * any solid, liquid, or gaseous matter, any odor, or any form of energy, from whatever source." Section 3(b) of the Act creates two categories of air pollution. Air pollution is therein defined as the presence in the atmosphere of contaminant in such quantities and of such characteristics and duration as to either: (1) be injurious to human, plant, or animal life, to health or to property, or (2) to unreasonably interfere with the enjoyment of life or property. Section 31(c) of the Act governs the burden of proof in hearings before the Board. Without quoting verbatim from that section, it is sufficient to note that in Incinerator, Inc. v. Pollution Control Board (1974), 59 Ill.2d 290, 300, 319 N.E.2d 794, 799, the Supreme Court stated:
"* * * the EPA had the burden of proving all essential elements of the type of air-pollution violation charged, and the Board must then assess the sufficiency of such proof by reference to the section 33(c) criteria, basing thereon its findings and orders."
In Processing & Books, Inc. v. Pollution Control Board, 64 Ill.2d 68, the Supreme Court made clear that the EPA does not have the burden of proving the unreasonableness of the respondent's conduct in terms of the four criteria mentioned in section 33(c) of the Act, which are factors bearing upon the reasonableness of the emissions involved.
In the present case, the EPA's second amended complaint alleged that ACA had operated its plant in such a manner as to "cause, threaten, or allow the discharge, emission, and presence" of certain substances, including noxious odors, into the environment, "in sufficient quantities and of such characteristics and duration as to be injurious to human, plant, and animal life, and to health, and to property * * *." It is apparent from this second amended complaint that ACA was charged with causing air pollution of the first type set forth in section 3(b) of the Act. By its terms proof of the essential elements of air pollution of the first type set forth in section 3(b) does not require any showing by the complainant of the unreasonableness of the emissions involved, in contradistinction to air pollution of the second type set forth in section 3(b).
ACA's first argument, that the Board failed to identify the contaminant allegedly emitted from its plant, simply ignores section 3(d) of the Act which defines contaminant, inter alia, as "any odor." The opinion and order of the Board which reviews the evidence concerning the existence of odors emanating from the plant and the effects of such odors on certain individuals, ...