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Wells Mfg. Co. v. Pollution Control Bd.

OPINION FILED OCTOBER 6, 1978.

WELLS MANUFACTURING COMPANY, APPELLEE,

v.

THE POLLUTION CONTROL BOARD ET AL. — (THE ENVIRONMENTAL PROTECTION AGENCY, APPELLANT.)



Appeal from the Appellate Court for the First District; heard in that court on petition for review of an order of the Pollution Control Board.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 1, 1978.

This case involves consolidated complaints by the Environmental Protection Agency (Agency) and Citizens for a Better Environment (CBE) against Wells Manufacturing Company (Wells). The complaints allege violations of sections 9(a) and 9(b) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, pars. 1009(a), (b)) concerning air pollution and failure to possess an operating permit. After extensive hearings, the Illinois Pollution Control Board (Board) found Wells guilty of air pollution and failure to possess a permit and levied fines of $8,500 and $500 respectively. The Board additionally ordered that an abatement plan, a performance bond, and periodic progress reports be submitted. On review (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1041; ch. 110, par. 264 et seq.) the Appellate Court for the First District found the Board had inadequately considered certain statutory factors, and after itself reviewing the relevant criteria, determined the Board's order was unreasonable, capricious and arbitrary. Accordingly, the appellate court reversed the Board's order and instructed the Board to grant Wells an operating permit. (48 Ill. App.3d 337.) We granted leave to appeal.

Wells operates an iron foundry in an industrial area of Skokie, immediately adjacent to Niles Township Community High School, West Division, and about one-half mile from a residential section of the village of Morton Grove. The foundry, which employs approximately 500 persons, was constructed in 1947 and produces castings for use in various industries. Wells is, in fact, the sole supplier of certain parts for automobile-power-steering units. A casting is a part formed by adding molten metal to a mold. As relevant here, Wells' use of phenol-formaldehyde resins to mold the castings in shell molds produces odors characterized as resembling those from burning rubber.

The amended complaints filed by the Agency and CBE against Wells allege these odors violate section 9(a) of the Environmental Protection Act, which specifies that no person shall "[c]ause or threaten or allow the discharge or emission of any contaminant into the environment in any State so as to cause or tend to cause air pollution in Illinois * * *" (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009(a)). A "contaminant" is defined to include "any odor" (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1003(d)); and "air pollution" is defined as "the presence in the atmosphere of one or more contaminants in sufficient quantities and of such characteristics and duration as to be injurious to human, plant, or animal life, to health, or to property, or to unreasonably interfere with the enjoyment of life or property." (Emphasis added.) (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1003(b).) The Agency's amended complaint also alleges a related violation of section 9(b) of the Environmental Protection Act, which proscribes the operation of any facility capable of causing air pollution without a permit (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009(b)).

The principal difficulty in cases such as this lies in the need to define the level at which interference becomes "unreasonable" in this statutory context. (See Processing & Books, Inc. v. Pollution Control Board (1976), 64 Ill.2d 68, 76-77.) The Board must balance the costs and benefits of abatement in an effort to distinguish "the trifling inconvenience, petty annoyance or minor discomfort" from "a substantial interference with the enjoyment of life and property." See Processing & Books, Inc. v. Pollution Control Board (1976), 64 Ill.2d 68, 77, and cases there cited; Currie, Enforcement Under the Illinois Pollution Law, 70 Nw. U.L. Rev. 389, 416-19 (1975).

Section 33(c) of the Environmental Protection Act specifies several factors which the Board must consider in arriving at its decisions:

"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 ...


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