APPEAL from the Circuit Court of Madison County; the Hon. JOHN
W. DAY, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
This action was brought to enjoin defendants, Leonard and Agnes Keeven, from violating section 12(a) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1012(a)) and Rules 951 and 952 of the Illinois Pollution Control Board Rules and Regulations, Chapter 3: Water Pollution (hereinafter Rules or Regulations). After a hearing on plaintiff's motion for a preliminary injunction, the Circuit Court of Madison County entered an order dismissing the complaint with prejudice, denying a preliminary injunction, dissolving a previously issued temporary restraining order and finding Rule 951 unconstitutional; although, the validity of the Rules was never challenged by the defendants.
On appeal, the plaintiff contends that the complaint is legally sufficient to state a cause of action and establishes plaintiff's right to injunctive relief. Plaintiff also contends that Rule 951 is a valid exercise of the State's police power and does not violate the Illinois Constitution nor the United States Constitution. Although the defendants have not filed a brief in this case we have, nevertheless, decided to consider the case on its merits. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133, 345 N.E.2d 493, 495 (1976).
The defendants are the owners of an 18-unit apartment building in the City of Highland, Madison County. In May 1977, shortly after the commencement of construction of the building, the defendants were notified by the Illinois Environmental Protection Agency that a permit was required for the construction, and subsequent operation, of the building's wastewater disposal system for the reason that the defendants had installed a new section of pipeline on the existing city sewer tap-in. The defendants did not comply with the Agency's mandate and did not apply to the Agency for a variance from the permit requirement.
On August 30, 1977, the Attorney General, on behalf of the People of the State of Illinois and at the request of the Illinois Environmental Protection Agency, filed a complaint for injunction and motion for a temporary restraining order against the defendants. Plaintiff's complaint alleged in substance that the defendants were constructing and intended to operate a wastewater source that was connected by a sewer to an already overloaded sewage treatment plant without an operating permit issued by the Illinois Environmental Protection Agency as required by Rule 952 of the Illinois Pollution Control Board Rules and Regulations, Chapter 3: Water Pollution. On that day, a hearing was held on the plaintiff's motion for a temporary restraining order at which the defendants were represented by counsel. After evidence was taken, the trial court entered an order restraining defendants from renting, leasing or allowing occupancy by more than 15 persons of the apartment building they were constructing. The reference to "15 persons" is not clear as Rule 951 is not based on the number of occupants.
On September 2, 1977, defendants filed a motion to dissolve the temporary restraining order and dismiss the complaint on the grounds that the complaint failed to state a cause of action. In their motion to dismiss, defendants asserted that the complaint was insufficient because it failed to allege that defendants' conduct would cause substantial injury and irreparable damage and because it failed to show a clear right of the plaintiff to relief. Thereafter, plaintiff filed a motion for preliminary injunction and on September 7, 1977, a hearing was held on that motion and on all pending motions of the defendants. In support of its contention that the defendants had violated section 12(a) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1012(a)) and Rule 952 of the Illinois Pollution Control Board Rules and Regulations, plaintiff submitted proof that defendants had constructed the 18-unit apartment building in question; that defendants had installed a new pipe to connect the building to the city sewer system; that the building was partially occupied; that defendants had not instructed the tenants to refrain from using the facilities which generated wastewater; that the wastewater generated in the building would flow into the city sewer system through the pipe that had been installed; and that defendants intended to allow the building to become completely occupied and to allow their tenants to generate wastewater. The plaintiff further showed that defendants had not obtained an operating permit as provided in Rule 952 and submitted evidence establishing the overloaded status of the City of Highland sewage treatment plant. At the close of the hearing, the trial court took all matters under advisement.
On September 8, 1977, the trial court entered an order dissolving the previously issued temporary restraining order, denying plaintiff's motion for a preliminary injunction, and dismissing plaintiff's complaint with prejudice. No challenges to the constitutionality of the provisions under which the action had been brought were advanced by the defendants in the trial court. However, the court found Rule 951 of the Illinois Pollution Control Board Rules and Regulations to be "arbitrary, discriminatory and unreasonable and without substantial relation to the public health, welfare, property, and quality of life" as applied to defendants' property and held that Rule 951 violated unspecified provisions of the Illinois and United States constitutions.
Plaintiff first contends that its complaint was improperly dismissed with prejudice by the trial court because it states a cause of action and establishes plaintiff's right to injunctive relief. As part of its argument, plaintiff also argues that the trial court abused its discretion by denying a preliminary injunction against the defendants and by dissolving the previously issued temporary restraining order. It is unclear from the trial court's order whether its dismissal of the plaintiff's complaint for failure to state a cause of action was based on its finding that Rule 951 of the Illinois Pollution Control Board Rules and Regulations is unconstitutional or on the defendants' allegations in their motion to dismiss that the complaint did not allege that substantial injury or irreparable damage would result from defendants' continued conduct; however, we are of the opinion that upon either basis the court's determination was error.
The instant complaint is based solely upon the Illinois Environmental Protection Act and regulations enacted by the Illinois Pollution Control Board pursuant to a delegation of authority from the General Assembly (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1027). In its complaint, plaintiff alleged a violation by the defendants of section 12(a) of the Act which provides that:
(a) Cause or threaten or allow the discharge of any contaminants into the environment in any State so as to cause or tend to cause water pollution in Illinois, either alone or in combination with matter from other sources, or so as to violate regulations or standards adopted by the Pollution Control Board under this Act." (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1012(a).)
The complaint further alleges that defendants threaten to violate Rule 952 of the Regulations, which requires that an operating permit be obtained for the use or operation of all wastewater sources for which a construction permit is required pursuant to Rule 951 of the Regulations. Rule 951 provides, in relevant part:
"(a) No person shall cause or allow the construction of any new treatment works, sewer, or wastewater source or cause or allow the modification of any existing treatment works, sewer, or wastewater source without a Construction ...