Appeal from the Circuirt Court for the 14th Judicial Circuit, Rock Island, Illinois No. 97 CH 4 Honorable Martin E. Conway, Jr. Judge Presiding
The opinion of the court was delivered by: Justice Koehler
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
The defendant-appellant, IBP, Inc., was granted leave by this court to file an interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308) of the Rock Island County circuit court's denial of its motion to dismiss counts I and III of the plaintiff-appellee Illinois Attorney General's (State's) complaint for failure to plead sufficient facts. The certified question we must answer is whether a plaintiff in a case filed in circuit court alleging a violation of section 9(a) of the Illinois Environmental Protection Act (415 ILCS 5/9(a) (West 1998)) must plead facts regarding the unreasonableness of the alleged emissions, including facts regarding technological practicability and economic reasonableness of additional controls. In answer to the certified question, this court concludes that, in an action brought in circuit court alleging a violation of section 9(a) of the Illinois Environmental Protection Act, the complainant is not required to plead facts regarding technological practicability and economic reasonableness. Accordingly, we affirm.
The defendant, IBP, owns and operates a beef slaughtering and processing facility near the small unincorporated town of Jocelin, Illinois, in Rock Island County. The facility includes animal holding pens, slaughtering and rendering operations, a tannery, wastewater treatment system, and areas for the application of sludge generated from the wastewater treatment system and other materials produced at the site. The plaintiff, Attorney General, brought an action in the circuit court for injunctive relief under section 42 of the Illinois Environmental Protection Act (415 ILCS 5/42(e) (West 1998)) (Act) seeking an injunction and civil penalties against IBP. The State alleges in count I of its complaint a violation of section 9(a) of the Act, which prohibits the discharge of contaminants or emissions that cause air pollution. Count I alleges that: (1) local residents have complained of foul odors and smells emanating from the facility causing headaches, burning lips and noses, upset stomachs and nausea; (2) the odors can be smelled inside closed cars and buildings; (3) Jocelin's citizens have been forced to refrain from outdoor activities; (4) Illinois Environmental Protection Agency (IEPA) inspections of the plant have identified the tannery, gel-bone plant, rendering plant and sewer system as sources of the odor; and (5) the odors violate section 9(a) because they are air pollution within the meaning of the Act and are in sufficient quantities as to be "injurious to human, plant or animal life, or to unreasonably interfere with the enjoyment of life or property." In count I, the State seeks relief in the form of a preliminary and permanent injunction and asks the court to compel IBP to perform an odor-abatement study and take remedial action indicated by the study to prevent the nuisance.
In count III the State alleges a violation of section 9(a) and section 201.141 of the Administrative Code (35 Ill. Adm. Code §201.141 (1999) ) resulting from three separate incidents in which IBP released harmful contaminants into the environment. The first alleged incident occurred October 8, 1997, when the facility's cooling unit equipment failed, releasing anhydrous ammonia into the air. The second alleged incident occurred from January 7, 1995, until March 4, 1998, when IBP daily released between 100 to 325 pounds of ammonia into the environment as a result of "a change in source of yet unidentified equipment" at the facility. The third incident was a spill of 200 to 400 gallons of sulfuric acid in the facility causing the formation of a sulfuric acid cloud and resulting in a temporary shutdown of the tannery and release of the acid into the environment. Count III alleges all three incidents of release into the environment are air pollution because they are injurious to human, plant, or animal life and unreasonably interfere with the enjoyment of life or property. The State is asking the court to order IBP to: (1) cease and desist from further violations of the Act; (2) conduct a hazard and operability study through a state-approved independent consultant and take any remedial measures indicated to prevent further release; (3) pay civil penalties of $50,000 for each violation and $10,000 for each day of violation; and (4) pay the costs of this action. *fn1
IBP filed a motion to dismiss counts I and III of the first amended complaint because the State failed to allege whether any methods of further controlling the emissions are technically practical or economically reasonable. Concluding that the Act only requires such pleading in an administrative action and not in an action brought in the circuit court, the circuit court denied IBP's motion. In so concluding, the circuit court noted that the decision would result in different pleading requirements under section 9(a) depending on whether the claim was brought before the circuit court or the environmental protection board. The circuit court concluded that, in accordance with Supreme Court Rule 308(a) (155 Ill. 2d R. 308), an immediate appeal from its order and resolution of the contested issue would materially advance the ultimate termination of the litigation and that the order involved a question of law as to which there are substantial grounds for differences of opinion. Accordingly, the circuit court granted IBP's motion requesting it to make findings to certify the issue for interlocutory appeal. And this court allowed IBP's application for leave to appeal pursuant to Supreme Court Rule 308(a).
On interlocutory appeal, this court is limited to answering the question certified by the circuit court and our review is de novo. Lanxon v. Magnus, 296 Ill. App. 3d 377, 379, 694 N.E.2d 610, 611 (1998). The facts are not at issue in this appeal. Rather, the issue is whether the circuit court correctly interpreted the pleading requirements under section 9(a). Statutory construction is a question of law, and our review is de novo. Advincula v. United Blood Services, 176 Ill. 2d 1, 12, 678 N.E.2d 1009, 1015 (1996).
IBP argues that the circuit court should have concluded that, in an action brought in circuit court on a violation of section 9(a), the complainant is required to plead the technological practicality and economic reasonableness of reducing or eliminating the emissions resulting from the pollution source. According to IBP, when an allegation of a section 9(a) violation is brought before the Illinois Pollution Control Board (Board), in determining whether there has been such a violation, the Board must refer to other sections of the Act, specifically section 3.02 (415 ILCS 5/3.02 (West 1998)), which defines air pollution, and section 33(c), which enumerates factors the Board must consider in making its determination. In particular, section 33(c)(iv) of the Act (415 ILCS 5/33(c) (West 1998)) requires the Board to consider the technological practicality and economic reasonableness of reducing emissions. Consequently, in a Board action, the complainant must plead technological practicality and economic feasibility. In addition, the Board must remember that the Act's purpose is to create a unified statewide program for environmental protection (415 ILCS 5/2(a)(ii) (West 1998)). IBP argues that, inasmuch as the legislature conferred concurrent jurisdiction under the Act to the Board and to the circuit court, section 33(c) must also apply to circuit court actions. Otherwise, a difference in pleading requirements based on the forum in which a violation is brought results. Therefore, in the instant case, the State must plead reasonableness, including technological practicality and economic feasibility. Because it did not so plead, the circuit court should have granted the motion to dismiss for failure to plead all of the essential elements of the claim.
The State replies that section 33(c) by its own terms applies only to the Board. The action at bar is brought before the circuit court; therefore, the State is not required to plead technological practicality and economic reasonableness. The State argues that, to fulfill the Act's purpose to establish a unified statewide program for environmental protection, the Act should be liberally construed to assure that the adverse effects upon the environment are borne by those who cause them. Further, under section 31 (e) of the Act (415 ILCS 5/31(e) (West 1998)), wherein the burden of proof is set out, the Board must show that the respondent has caused or threatened to cause air or water pollution or has violated or threatens to violate any provision of the Act or Board rules or regulations. Section 33(c) only enumerates criteria the Board must consider in making its determination. Accordingly, neither a Board action nor a circuit court action requires the complainant to plead technical feasibility or economic reasonableness.
Moreover, the State argues that even if a complainant is required to so plead, section 33 applies only to Board actions. The instant case seeks an injunction pursuant to section 42, which gives the State a broad action to remedy environmental violations. In such an action, the section 33(c) factors need not be pled. To require such pleading turns the circuit court action into an administrative action. Section 33(c) provides guidance and prevents arbitrary decisions by the Board, whose members do not necessarily have legal training. Moreover, requiring different pleadings in administrative and circuit court proceedings does not undermine the goal of establishing uniformity in environmental proceedings. Uniformity refers to whether the Act controls or preempts local authority and a difference in pleading requirements does not have any affect on such question. Lastly, giving the State and the circuit court more far-reaching powers to enforce the Act enhances its remedial purpose.
"[The] court's role in interpreting statutes is to give effect to the intention of the legislature, and the language of the statute is the starting point of the court's analysis. [Citations.] When the language of the statute is clear and unambiguous, it will be given effect without resort to other tools of construction. [Citation.] A court should not depart from the language of the statute by reading into it exceptions, limitations or conditions that conflict with the intent of the legislature. [Citation.]" Gem Electronics of Monmouth, Inc. V. Department of Revenue, 183 Ill. 2d 470, 475, 702 N.E.2d 529, 532 (1998). "[T]he statute should be evaluated as a whole; each ...