APPEAL from the Circuit Court of Cook County; the Hon.
NATHAN M. COHEN, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Hyon Waste Management appeals from an order of the circuit court of Cook County denying its request for a preliminary injunction against the City of Chicago (City). Hyon, a corporation in the business of destroying hazardous and toxic industrial wastes, sought the injunction to compel removal of a seal placed on its kiln which effectively halted its operations. Hyon contends that the action taken by the City, under the authority of the Chicago Environmental Control Ordinance, is beyond its home rule powers and also that the action was violative of Hyon's due process rights to prior notice and hearing. Since we believe that Hyon was not afforded due process, we consider it unnecessary to reach the issue of the validity of the environmental control ordinance.
The parties stipulated to the facts in the trial court without an evidentiary hearing. In May 1976, the Illinois Environmental Protection Agency (Agency) issued two operating permits to Hyon. Hyon appealed to the Illinois Pollution Control Board (Board) challenging certain operating conditions contained in the first permit. On December 16, 1976, the Board issued an opinion finding several of the contested conditions unreasonable. The Board remanded the matter to the Agency for issuance of a permit within 90 days in accordance with the Board's findings.
In 1969 the City passed an ordinance entitled "The Chicago Environmental Control Ordinance." This ordinance is administered and enforced by the Chicago Department of Environmental Control (hereinafter the Department) which acts independently of the Illinois Environmental Protection Agency.
On September 1, 1976, following the issuance of a notice of violation by the Department Commissioner, the Department entered into an agreement concerning the resumption of Hyon's operations. The agreement, which set forth several "milestones" to be met by Hyon, was to be effective for 90 days, at which time a field inspection would be conducted prior to the issuance of a certificate of operation. During the interim period, the Department issued three tickets to Hyon for violation of emission standards. On December 7, 1976, the Department informed Hyon by letter that its temporary permits would terminate on December 14 and that any operation after that date would constitute a violation of the environmental control ordinance. Although the agreement of September 1, 1976, provided for a field inspection, the City conducted no such inspection. On December 13, Hyon sent the Department a telegram requesting "timely issuance of appropriate permits." The Department made no response to that request.
A reinspection of Hyon's facilities was made on January 3, 1977. On January 5, Hyon was informed that its permit applications would be denied. On January 11, 1977, by authority of an order to seal issued by the Commissioner on the previous day, Department personnel placed a seal on Hyon's kiln, thus closing down its operation.
Between December 14, 1976, and January 11, 1977, seven tickets were issued to Hyon by the Department. Five of these tickets were for operating an incinerator without a permit and two were for violations of emission standards. Apart from the facts set forth above, there was no other communication between the Department and Hyon regarding Hyon's kiln or its sealing. On March 25, 1977, the trial court entered the order denying Hyon's request for a preliminary injunction.
• 1, 2 The City initially contends that the summary action taken was in accordance with the procedure authorized by section 17-2.36 of the Chicago Environmental Control Ordinance which provides:
"17-2.36. If an installation permit for which an application is required by section 17-2.28 is not procured prior to the start of any work for which such a permit is required or if any work for which an installation permit has been issued fails to comply with the plans and specifications filed in connection therewith or with the terms of such permit, the commissioner shall have authority to stop all work and seal the installation or equipment and further work or operation shall not proceed until the commissioner has issued an installation permit and has been assured that work will proceed in accordance with the installation permit."
Hyon maintains that this section is inapplicable in the present case because the parties, at the time the seal was ordered, had moved beyond the installation permit stage. On the basis of the stipulated facts, we agree with Hyon. The seal was ordered only after the Commissioner had denied Hyon's request for issuance of a certificate of operation. It seems apparent that the Department would not allow nearly three weeks to elapse before sealing the kiln if the action were based upon the expiration of the 90-day installation permit or upon Hyon's failure to comply with the permit's conditions. Moreover, even assuming that the foregoing section is applicable, it cannot be construed as authorizing the Commissioner to seal a plant without notice or hearing. To do so would imply a legislative intent to abrogate the due process clauses of both Federal and State constitutions. (See Drukin v. Hey (1941), 376 Ill. 292, 33 N.E.2d 463.) In order to dispel any doubt on this issue, it should be noted that the ordinance was amended in 1974 to add the following section:
"17-2.57. Upon notice and hearing, if notice and hearing has not previously been provided, the Commissioner may order that the use of any fuel-burning, combustion or process equipment or device shall be disconnected and may seal such equipment or process.
(1) As provided in Sections 17-2.36 and 17-2.56 of this chapter;
(2) When a certificate of operation is refused in the case of any original, annual or subsequent inspection, because the person required to procure such certificate has not complied with the provisions of this chapter; * * *."
By explicit reference to section 17-2.36, this amended section incorporates its notice and hearing provisions into the summary procedure provided for in the prior section. It therefore cannot be contended by the City that its own ordinance permits the sealing of equipment without prior notice and hearing. "It is basic due process that the Government cannot set up ...