PETITION for review of order of Pollution Control Board.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Hillside Stone Corporation (Hillside) has petitioned for review of an opinion and order of The Illinois Pollution Control Board (Board) which, after a hearing on a complaint by The Illinois Environmental Protection Agency (EPA), found Hillside to be operating in violation of section 9(a) of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1009(a)) and Rule 102 of the Air Regulations, fined Hillside $10,000, ordered Hillside to cease and desist from operating existing equipment without properly maintained pollution control devices, and ordered Hillside to file a "corporate approved plan" to effect compliance with section 9(a) of the Environmental Protection Act and Rule 102 of the Air Regulations. Hillside contends: (1) the opinion and order of the Board are erroneous for failure to comply with section 33 of the Act and Illinois Pollution Control Board Procedural Rule 332(a); (2) the finding of the Board that Hillside violated section 9(a) and Rule 102 is against the manifest weight of the evidence; (3) the $10,000 fine is improper; and (4) the order to submit a corporate approved compliance plan is improper.
Hillside owns and operates a limestone quarry in Cook County, Illinois. During its operation a white dust is emitted. The EPA claimed Hillside allowed this dust to be blown by the wind into the neighboring residential community. Several of the residents in the area testified that dust covered their property, affected their eyes and breathing and that the dust was from Hillside's quarry because they could see it being blown from there onto their property. Hillside claimed the bulk of the dust in the residential area was from the limestone gravel alleys behind the residents' homes. Hillside also contended it had a pollution control program in operation, had expended $600,000 to suppress the dust and that it had taken all the dust control steps that were technologically available. The EPA recognized that Hillside had installed a dust suppressant system, but claimed the system was not working properly because of improper maintenance. The EPA also argued that there were several additional steps which Hillside could have taken that would have substantially reduced the air pollution caused by the dust emissions.
By section 3(b) of the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1003(b)), the legislature has created two categories of air pollution. (Incinerator, Inc. v. Pollution Control Board (1974), 59 Ill.2d 290, 295, 319 N.E.2d 794, 796, 797.) The first is that which is "injurious to human, plant, or animal life, to health or to property." The second, the one involved here, is air pollution which "unreasonably interfere[s] with the enjoyment of life or property." *fn1 Section 33(a) of the Act requires the Board to "file and publish a written opinion stating the facts and reasons leading to its decision." (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1033(a).) Section 33(c) of the Act sets the criteria for determining whether there is an unreasonable interference with the enjoyment of life or property. These criteria must be considered by the Board before a finding can be made that air pollution of the second category exists and the Board's opinion must show that the 33(c) factors were considered as part of the facts and reasons leading to its decision. Incinerator, Inc. v. Pollution Control Board (1974), 59 Ill.2d 290, 296, 319 N.E.2d 794, 797.
"* * * The requirement of section 33(a) that the opinion must set forth the facts and reasons for the decision serves to insure that the necessary considerations were given, and enables the court to fully and completely review the determinations made by the Board, and provides those affected by the Act with certain additional guidelines for their conduct. [Citations.]" Mystik Tape v. Pollution Control Board (1975), 60 Ill.2d 330, 336, 328 N.E.2d 5, 8.
Hillside's first contention is that the Board did not comply with section 33(c) of the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1033(c)) and the Board's procedural rule 332. Section 33(c) provides:
"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 deposits involved including, but not limited to:
(i) the character and degree of injury to, or interference with the protection of the health, general welfare and physical property of the people;
(ii) the social and economic value of the pollution source;
(iii) the suitability or unsuitability of the pollution source to the area in which it is located, including the question of priority of location in the area involved; and
(iv) the technical practicability and economic reasonableness of reducing or eliminating the emissions, discharges or deposits resulting from such pollution source."
"332. Contents of Orders and Opinions.
The Board shall prepare a written order and opinion for all final determinations ...