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Lake Forest v. Pollution Control Board

OPINION FILED AUGUST 28, 1986.

THE CITY OF LAKE FOREST, APPELLANT,

v.

THE POLLUTION CONTROL BOARD ET AL., APPELLEES.



Petition for review of order of Pollution Control Board.

PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

The city of Lake Forest appeals for review of an administrative decision of the Pollution Control Board (PCB) pursuant to Supreme Court Rule 335 (87 Ill.2d R. 335). The primary issue which we consider is whether the PCB was authorized to order Lake Forest to repeal an ordinance it has adopted.

Thomas E. Greenland, a citizen of Lake Forest who appeared pro se before the PCB and in this court, filed a complaint before the PCB in which it was alleged that Lake Forest had violated sections 9(a) and 9(c) of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. 111 1/2, pars. 1009(a), (b)) and also certain air pollution regulations adopted by the PCB. The basis for the claimed violations was the enactment of an ordinance by the city council of Lake Forest which allowed, under specified conditions, the burning of leaves within the municipal boundaries. The complaint alleged that the open burning of leaves thus permitted caused air pollution within the city in violation of the Environmental Protection Act and the rules and regulations of the PCB and sought injunctive and other relief from the PCB.

Lake Forest sought dismissal of the complaint before the PCB, alleging inter alia that the PCB had no authority to declare a municipal ordinance to be in violation of a statute or PCB rules and regulations and that it lacked authority to enjoin the open burning of leaves within a city. The motion was denied by the PCB and the complaint was referred to a hearing officer who held evidentiary hearings. The PCB subsequently considered that record and found Lake Forest to be in violation of sections 9(a) and 9(c) of the Environmental Protection Act by reason of the adoption of its leaf-burning ordinance and ordered the city to cease and desist from further violations of the Act.

Lake Forest contends (1) that the PCB, in effect, declared its ordinance to be invalid and ordered appellant to repeal it, and has no authority to do so; (2) the mere existence of the ordinance cannot be considered as a violation of the Environmental Protection Act; and (3) that the PCB erred in considering hearsay evidence and facts outside the record of this case in making its decision.

The record discloses that by an ordinance of the city council of Lake Forest adopted on October 13, 1984, all open fires are prohibited within the city except that the burning of dry leaves is permitted between October 15 and December 15 and between April 1 and May 15 during daylight hours. Burning of leaves is permitted in two wards of the city on even numbered days and the other two wards on odd numbered days in those periods. All burning is prohibited when winds exceed 10 miles per hour or inversion conditions exist, and leaf burning is not allowed within 20 feet of any building and must be supervised by a person 16 years of age or older. On October 17, 1984, appellee, Thomas Greenland, filed the earlier described complaint against the city of Lake Forest with the PCB pursuant to section 31(b) of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1031(b)). The following evidence was received by the hearing officer and considered by the PCB in rendering its decision.

Bob Ryan, a physician who resides in Lake Forest, testified that he and his children suffer from asthmatic conditions which are aggravated by leaf smoke, making it difficult to breathe. Ryan stated that Lake Forest is heavily wooded and he has over a hundred trees on his own property. He stated that he is also adversely affected by leaves burned in other municipalities, by automobile exhaust and wood smoke. Patricia Ryan testified their children miss five to six weeks of school in the fall and suffer hearing losses when their allergies and asthma are aggravated by leaf smoke. Both witnesses stated the present ordinance was an inadequate solution to the problem, and that all leaf burning should be prohibited.

Anthony Daddono, who resides in Lake Forest and is a physician specializing in allergies, testified that wheat pollens and molds which are generated in leaf burning cause asthmatic persons to have difficulty in breathing. The smoke itself is irritating to anyone with a respiratory disease. He stated that 10 to 12% of the population suffer from a lower-respiratory allergy which would be aggravated to some extent by leaf smoke. Daddono agreed that people with allergies suffer more in the fall, in any event, as the molds on leaves and grass can be stirred up by simply cutting the grass, and that persons are also adversely affected by wood smoke. He also stated residents living in northern Lake Forest could be affected by the leaf burning which occurs in neighboring Lake Bluff.

Vito Lubes, another Lake Forest resident, testified he cannot use his porch when people burn leaves in his neighborhood and must keep his house and car closed. He stopped burning leaves himself two years previously, and feels he is breathing better air. Lubes testified his respiratory problems are aggravated by leaf burning and cigarette smoke.

Rita Kawula, a part-time nurse, testified her two asthmatic children can't attend school or participate in sports on days when leaves are burned and they therefore mulch their leaves.

The city manager of Lake Forest, John Fischbach, was called by both parties as a witness. Fischbach testified the estimated 1984 population of Lake Forest was 16,029 and that there are approximately 30,000 trees in the city. Approximately 17% of the population burn their leaves, while 45% use landscape services and 38% use the city's refuse collection system with leaf bags purchased from the city. The city has a full-time forestry staff and a tree planting and preservation program.

In 1984, Fischbach undertook two studies of leaf disposal and burning. The short-term study led to the ordinance in question, which generally restricts leaf burning, and the second study focused on alternative methods of leaf disposal. Approximately 44,500 cubic feet of leaves are generated each fall and the city currently disposes of 21,288 cubic feet through its leaf-bag program. During the fall of 1984, the city picked up 30 to 40% additional bags than in previous years. Fischbach further testified his study recommends a ban on leaf burning and estimated the increase cost to the city to be $88,530 in the first year, assuming the same number of people who currently use private scavengers and landscape services continue to do so.

Appellee Greenland also offered in evidence, without other foundation, a copy of a study made under the auspices of the Illinois Institute of Natural Resources entitled "Advisory Report on the Potential Health Effects of Leaf Burning," which was admitted over the objection of Lake Forest that it was hearsay. Lake Forest offered no evidence relating to the effect of leaf burning on the environment.

In its opinion and order, the PCB found that leaf smoke contains contaminants and that by adoption of the ordinance that Lake Forest "caused or allowed" the discharge of such contaminants in violation of section 9(a) of the Environmental Protection Act. It also found that Lake Forest "caused or allowed" the open burning of refuse in violation of section 9(c) of the Act. The PCB further determined that Lake Forest was not in violation of open-burning (35 Ill. Admin. Code 237.102) and burning-of-landscape-refuse ...


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