Petition for Writ of Certiorari — Lloyd A. Fry Roofing Co. v. Illinois Pollution Control Board

Supreme Court brief1975

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IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1974. |

No. @4- 86

LLOYD A. FRY ROOFING COMPANY,

A CORPORATION,

Petitioner,

ILLINOIS POLLUTION CONTROL BOARD, ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY, THE

COUNTY OF COOK, a Bopy POLitic, VILLAGE OF SUM-

MIT, REV. LOUIS HEMMERICH, ET AL.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

BuRTON Y. WEITZENFELD,

ARTHUR L. KLEIN,

PauL L. LEEDs,

120 South LaSalte Street,

Chicago, Illinois 60603,

Counsel for Petitioner.

ARNSTEIN, GLUCK, WEITZENFELD

& MINow,

Of Counsel.

Gunthorp-Warren Printing Company, Chicago @ 346-1717

TABLE OF CONTENTS.

Opinion Below ........seeeeees WITTTTT TTT TTT TTT re

This Court’s Jurisdiction ...........++ eTTT TTT TT Ty

Questions Presented ..... secceetodess PrvT TTT rity

Constitutional Amendments and Statutes Involved ......

Sentomnamt OF Ge CABS wc cece scccccecdaccoccasese

Reasons Why The Writ Should Be Granted ............

I. The Decision Below Conflicts with and Indeed Flaunts

the Holdings of This Court in Cases Such as United

States v. L. Cohen Grocery, 225 U. S. 81 (1920), Con-

nally v. General Construction Company, 269 U. S.

385 (1926), Cline v. Frink Dairy Company, 274 U. S.

445 (1927), Giaccio v. Pennsylvania, 382 U. S. 399

(1966) and Papachristou v. City of Jacksonville, 405

U. S. 156 (1972) That Statutes as Vague, Indefinite

and Uncertain as the Illinois Environmental Control

Act Violate Due Process. If the Decision Beiow Is

Permitted to Stand, There Will Be No Guidelines

Whatsoever Upon Which Persons May Base Their

Conduct So As to Prevent a Conviction for “Air Pol-

lution” Under the Illinios Act and Similar Statutes ..

II. Under the Illinois Environmental Protection Act, a

Charge of Violation May Be Brought in Criminal

Court or in a So-Called “Administrative” Proceeding.

But an Administrative Defendant Is Subject to a

Greater Monetary Penalty Than a Criminal Defendant

Charged with the Same Offense. Yet an Administrative

Defendant Is Denied the Right to a Trial by Jury,

Denied the Right to a Trial Under the Rules of

Evidence and Denied the Right to Proof of Guilt

Beyond a Reasonable Doubt. Since the State May

Arbitrarily Pick and Choose Between These Two

Means of Enforcement, the Act Violates Equal Pro-

tection and Due Process .....csccccccccccccecs

RR RDe PLO PON ROT game

CAO Re Oe

Ill. The Illinois Environmental Protection Act and the

Pollution Control Board’s Procedural Rules Guarantee

That a Defendant Has the Right to Submit Written

and Oral Argument. But the Board Here Refused to

Permit Fry to Submit Written or Oral Argument and

the Appellate Court’s Decision Upholding the Board

Is in Clear Conflict wich the Statute, the Board Rules,

the Constitution and the Law of This Court ......

Appendix A:

Lloyd A. Fry Roofing Company v. Pollution Con-

trol Board, et al. (Appellate Court of Illinois

Gpliom) ww ccc cess cccscccccsvcess

Appendix B:

Lloyd A. Fry Roofing Company v. Pollution Con-

trol Board, et al. (Supreme Court of Illinois

RRP pred aera an eae ee

Appendix C:

Illinois Environmental Protection Act ........

Appendix D:

Environmental Protection Agency, et al. v. Lloyd

A. Fry Roofing Company (Tlinois Pollution

Control Board Opinion) ................

Appendix E:

Environmental Protection Agency, et al. v. Lloyd

A. Fry Roofing Company (Illinois Pollution

Control Board Supplemental Opinion) .....

Appendix F:

Excerpt from Board Hearing ...............

Appendix G:

Excerpts from Illinois Poliution Control Board

PE SE 00 oa we Cowen evened exes

TABLE OF CITATIONS.

Cases.

Barbier v. Connolly, 113 U. S. 27 (1885) ............ 11

Cline v. Frink Dairy Company, 274 U. S. 445 (1927) .. 7,9

Connally v. General Construction Company, 269 U. S. 385

SET 445s + esa cheats bel Raber adeeb i ecekecens 8

Giaccio v. Pennsylvania, 382 U. S. 399 (1966) ........ 8

Jenkins v. McKeithen, 395 U. S. 411 (1969) .......... 13

Morgan v. United States, 304 U. S. 1 (1938) ........ 15, 17

Mystik Tape v. Illinois Pollution Control Board, 16 Ill.

App. 3d 778, 306 N. E. 2d 574 (1973) ............ 7

Papachristou v. City of Jacksonville, 405 U. S. 156

COE ORNS eR denecawnt Ad MES Gad ee hcdanusas 8

Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922) . 14

People v. Harter, 86 Il. App. 2d 461 (1967) ........ 12

People v. Sweetland, 210 Ill. App. 432 (1918) ........ 12

Rasche v. Board of Trustees, 353 F. Supp. 973 (N. D.

Se SOD ede CER G 6066 Nw ee eekdanbaceesus benex 9

Small Co. v. American Sugar Refining Co., 267 U. S. 233

| Preeee ree ET Te ECOL e TTC TT CET TCE Te PCT Tee 8

Truax v. Corrigan, 257 U. S. 312 (1921) ............ 11

United States v. L. Cohen Grocery, 255 U. S. 81

SOWE Casas ks bxneaede tented esse sasaae 6, 7,9, 10

Constitutional Provisions.

United States Constitution:

Federal Statutes.

ee EE hbings Od k 60 N66050 be ansncnee ves 2

Re Toe eg rrr ee ere rer rrr rere 2

Illinois Statute. |

Illinois Environmental Protection Act (Ill. Rev. Stats., ch.

i). Web Ry ” § Serre re eee 3, 6, A19-38

Illinois Criminal Code (Ill. Rev. Stats., ch. 38, §17(j)) .. 12

IN THE

Supreme Court of the Gnited States

OcTOBER TERM, 1974.

No.

LLOYD A. FRY ROOFING COMPANY,

A CORPORATION,

Petitioner,

ILLINOIS POLLUTION CONTROL BOARD, ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY, THE

COUNTY OF COOK, a sBopy Po.itic, VILLAGE OF SUM-

MIT, REV. LOUIS HEMMERICH, ET AL.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TC THE SUPREME COURT OF ILLINOIS

Lloyd A. Fry Roofing Company petitions for a Writ of

Certiorari to review the decision of the Appellate Court of

Illinois entered on May 28, 1974, and the Order of the Supreme

Court of Illinois entered on September 27, 1974, denying Fry’s

petition for leave to appeal from the Appellate Court decision.

OPINION BELOW

The Appellate Court decision is reported at 20 Ill. App. 3d

301 and is reprinted in full as Appendix A to this Petition.

The Illinois Supreme Court rendered no opinion and its Order

denying the petition for leave to appeal is not reported. The

Clerk’s notice of the entry of said Order is reproduced as Ap-

pendix B to this Petition.

THIS COURT’S JURISDICTION

The Illinois Supreme Court denied Fry’s petition for leave to

appeal on September 27, 1974 and this Petition is filed within

ninety days thereafter pursuant to 28 U.S.C. § 2101. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

1. Are sections 9(a), 3(b) and 3(d) of the Illinois En-

vironmental Protection Act (Ill. Rev. Stats, ch. 111%,

§§ 1009(a), 1003(b) and 1003(d)), including the prohibition

therein against “unreasonably interfer[ing] with the enjoyment

of life or property”, so vague, indefinite and uncertain as to

violate due process?

2. Does the Illinois Environmental Protection Act deny

equal protection and due process by permitting the State to

arbitrarily choose between enforcement in a criminal proceeding

or in a proceeding which is denominated as “administrative”, but

is literally identical in substance and effect to a criminal pro-

ceeding except that an “administrative” defendant is denied

substantial rights guaranteed to a criminal defendant?

3. Does an administrative Board deny due process when

it convicts and fines a defendant without g’ving it the oppor-

tunity to submit argument as guaranteed by Statute, by the

Board’s own Rules and by decisions of this Court?

CONSTITUTIONAL AMENDMENTS AND

STATUTES INVOLVED

“Amendment XIV . . . Section 1 . . . No State shall make

or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.”

7 —

Ch. 111% IIL. Rev. Stats.

“§ 1009. Acts prohibited. § 9. N> person shall:

(a) Cause or threaten or allow the discharge or emis-

sion of any contaminant into the environment in any State

so as to cause or tend to cause air pollution in Illinois, either

alone or in combination with contaminants from other

sources, 07 so as to violate regulations or standards adopted

by the Board under this Act;”

“§ 1003. Definitions. § 3...

(b) ‘Air Pollution’ is 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.”

“(d) ‘Contaminant’ is any solid, liquid, or gaseous mat-

ter, any odor, or any form of energy, from whatever

source.”

STATEMENT OF THE CASE

Petitioner Lloyd A. Fry Roofing Company (herein some-

times called “Fry”) is a manufacturer of roofing materials. In

February of 1971, Fry was charged with air pollution, in

alleged violation of the newly enacted Illinois Environmental

Protection Act, before the newly created Illinois Pollution

Control Board. Prior to the commencement of the Board pro-

ceeding, an action had been filed in Circuit Court by the

State’s Attorney of Cook County also charging Fry with air

pollution, this in alleged violation of a County ordinance. A

Consent Decree was subsequently entered in the County action

by which Fry denied any violation of law, but agreed nonethe-

less to install control equipment. The Consent Decree was sub-

mitted to the Board along with a request by Fry that the ad-

ministrative proceeding be dismissed. The Board ignored that

request and the hearings continued.

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The hearings were held before a Hearing Officer appointed

by the Board. They resulted in a record containing more than

900 pages of testimony and numerous, lengthy documents.

Under the Environmental Protection Act and Board Rules,

the Hearing Officer is not to provide a summary or report con-

cerning the evidence or the case. In fact, he is to take no part at

all in the decision-making process. He is, however, required to

set a schedule for the parties to submit written briefs to the Board

“after the close of the hearing[s]”. He did so in this case (Ap-

pendix F hereto). A request for oral argument was also made

after the close of the hearings, pursuant to the Act and Rules.

But the Board refused to await written briefs and refused to

hear oral argument. Ratier, ignoring those guaranteed rights, it

held Petitioner in violation of the Statute and emission regula-

tions, entered a cease and desist order and imposed a $50,000

fine (Appendix D hereto).

Fry appealed the Board’s decision to the Illinois Appellate

Court. There Fry argued that the Act violated the due process

and equal protection guarantees contained in the Illinois and

United States Constitutions, that it unconstitutionally permitted

the Board to exercise the legislative and judicial powers, that the

Board had denied Fry its constitutional and statutory right to

submit argument, that the Hearing Officer was biased and the

hearings unfair and that there was no competent or material evi-

dence which could support the Board’s decision.

The Appellate Court, however, affirmed the Board’s finding

of statutory violation and its imposition of a fine. In so holding,

the Court virtually ignored the proposition that the Act is un-

constitutionally vague and uncertain. Indeed, the Court held

that the Board could convict one of a statutory violation by

begetting its own language and applying it in lieu of the

statutory provisions.

The Appellate Court also held that a State may create an

administrative Board to hear the same charges as might be

heard by a criminal court and jury. In fact the Board may im-

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pose a higher fine than a criminal court. Yet, a defendant before

the Board is denied the safeguards guaranteed to a criminal

defendant.

And the Appellate Court further held that, notwithstanding

specific language to the contrary contained in the Statute, the

Board’s own Rules and the law of this Court, an administrative

defendant may be convicted and fined without the opportunity

to submit argument.

Notwithstanding the devastating impact of these holdings upon

future proceedings, as well as this defendant, the Illinois Su-

preme Court refused to consider the matter and denied Fry’s

petition for leave to appeal. Certiorari is sought before this

Court.

REASONS WHY THE WRIT SHOULD BE GRANTED

The Decision Below Conflicts with and Indeed Flaunts the

Holdings of This Court in Cases Such As United States v.

L. Cohen Grocery, 255 U.S. 81 (1920), Connally v. General

Construction Company, 269 U.S. 385 (1926), Cline v. Frink

Dairy Company, 274 U.S. 445 (1927), Giaccio v. Pennsyl-

vania, 382 U.S. 399 (1966) and Papachristou v. City of

Jacksonville, 405 U.S. 156 (1972) That Statutes As Vague,

Indefinite and Uncertain As The Ilinois Environmental Con-

trol Act Violate Due Process. If the Decision Below Is Per-

mitted to Stand, There Will Be No Guidelines Whatsoever

Upon Which Persons May Base Their Conduct So As to

Prevent a Conviction for “Air Pollution” Under the Ilinois

Act and Similar Statutes.

The Illinois Appellate Court affirmed an administrative deci-

sion that Fry had violated Sections 9(a) and 3(b) of the

Illinois Environmental Protection Act.* But, as Fry argued be-

fore the Illinois Courts, these provisions clearly fail to meet due

process.

* Til. Rev. Stats., ch. 111%, §§ 1009(a) and 1003(b).

RR Rae ——

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Section 9(a) of the Act provides that:

“No person shall: (a) Cause or threaten or allow the

discharge or emission of any contaminant into the environ-

ment in any State so as to cause or tend to cause air

pollution in Ilinois, either alone or in combination with

contaminants from other sources, or so as to violate regula-

tions or standards adopted by the Board under this Act;”

(emphasis supplied )

Section 3(b) defines “Air Pollution” as:

“. . . the presence in the atmosphere of one or more

contaminants in sufficient quantities and of such charac-

teristics 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

supplied )

Section 3(d) defines a “contaminant” as:

“. .. any solid, liquid, or gaseous matter, any odor, or

any form of energy, from whatever source.”

Surely such vague and indefinite language violates the well-

settled requirements for a valid statute.

In United States v. L. Cohen Grocery, 255 U.S. 81 (1920),

this Court held that the so-called Lever (or Food Control)

Act was unconstitutionally vague. Much like the Illinois statute,

the Lever Act made it unlawful “to make any unjust or un-

reasonable rate or charge” and Petitioner submits that this

Court’s language is dispositive here:

“The sole remaining inquiry, therefore, is the certainty or

uncertainty of the text in question; that is, whether the

words, ‘That it is hereby made unlawful for any person

wilfully . . . to make any unjust or unreasonable rate or

charge in handling or dealing in or with any necessaries,’

constituted a fixing by Congress of an ascertainable stand-

ard of guilt, and are adequate to inform persons accused

of violation thereof of the nature and cause of the accusa-

tion against them. That they are not, we are of opinion so

clearly results from their mere statement as to render

elaboration on the subject wholly unnecessary. Observe that

SELON DW SARIS a r PISANI A NRE LEM St NITE BLES EE ALO EMEA PMID LA IG

the section forbids no specific or definite act. It confines

the subject matter of the investigation which it authorizes

to no element essentially inhering in the transaction as to

which it provides. It leaves open, therefore, the widest

conceivable inquiry, the scope of which no one can foresee,

and the result of which no one can foreshadow or ade-

quately guard against. In fact, we see no reason to doubt

the soundness of the observation of the court below in its

opinion to the effect that, to attempt to enforce the section

would be the exact equivalent of an effort to carry out a

statute which in terms merely penalized and punished

all acts detrimental to the public interest when unjust and

unreasonable in the estimation of the court and jury.”

(255 US. at p. 89.)

Similarly, in Cline v. Frink Dairy Company, 274 U.S. 445

(1927), this Court struck down a Colorado antitrust statute

which provided that combinations otherwise illegal would be

exempted from the act if they conducted operations “at a

reasonable profit”. Citing L. Cohen Grocery for the proposition

that a standard of “reasonable” was so vague and uncertain

that it necessarily violated due process, this Court went on to

say:

“*That the terms of a penal statute creating a new offense

must be sufficiently explicit to inform those who are subject

to it what conduct on their part will render them liable to

its penalties, is a well-recognized requirement, consonant

alike with ordinary notions of fair play and the settled

rules of law. And a statute which either forbids or re-

quires the doing of an act in terms so vague that men of

common intelligence must necessarily guess at its meaning

and differ as to it ener a violates the first essential

of due process of law. .. ..” (274 US. at p. 459.)

As the Illinois Appellate Court has held in another case, the

Environmental Protection Act creates a new offense (Mystik

Tape V. Illinois Pollution Control Board, 16 Il. App. 3d 778,

306 N.E. 2d 574 (1973)).

Decisions similar to L. Cohen Grocery and Cline v. Frink

Dairy are legion and include cases such as Connally v. General

ee ete |

Construction Company, 269 U.S. 385 (1926), Giaccio v.

Pennsylvania, 382 U.S. 399 (1966) and Papachristou v. City

of Jacksonville, 405 U.S. 156 (1972), where Mr. Justice

Douglas stated:

“This ordinance is void for vagueness, both in the sense

that it ‘fails to give a person of ordinary intelligence fair

notice that his contemplated conduct is forbidden by the

statute,’ . . . and because it encourages arbitrary and

erratic arrests and convictions.” (405 U.S. at p. 162.)

Nor does it matter that the Illinois Act might be characterized

as imposing a civil rather than a criminal penalty where a

charge of violation is made before the Board. This Court has

repeatedly held that whether statutes be civil or criminal, they

must all be construed within the framework of the constitutional

right to due process—they must give fair warning of the pro-

scribed conduct. As this Court stated in Small Co. v. American

Sugar Refining Co., 267 U.S. 233 (1925):

“The defendant attempts to distinguish those cases because

they are criminal prosecutions. But that is not an adequate

distinction. The ground or principle of the decisions was

not such as to be applicable only to criminal prosecutions.

It was not the criminal penalty that was held invalid, but

the exaction of obedience to a rule or standard which was

so vague and indefinite as really to be no rule or standard at

all.” (267 U.S. at p. 239.)

Petitioner submits that a statute which proscribes conduct

with words like “tend to cause air pollution . . . either alone or in

combination with contaminants from other sources” and “con-

taminants in sufficient quantities and of such characteristics . . .

as to be injurious to human, plant, or animal life, to health or

to property” is void for vagueness. No statute may properly con-

tain prohibitions such as “threaten”, “allow”, and “tend to

cause” or define “contaminant” so broadly as to literally forbid

breathing. And of critical importance here, this statute states and

the Appellate Court held that one may be convicted if he

POEL a COND AELTAR SLENE AT BLE DAG LB

has “unressonably inserfere[d| with the enjoyment of life or

property”, the very language which this Court held to be un-

constitutionally vague in L. Cohen Grocery and Cline v. Frink

Dairy Company.

There can be imagined no more eloquent proof of the in-

validity of this Act than the opinion of the Pollution Control

Board below. The Board said that it need only determine “. . .

whether Fry’s operation substantially interfered with the en-

joyment of life and property . . .” (Appendix D, p. A44). But

the Act does not contain the term “substantially” interfered.

The statutory standard, such as it is, is “unreasonably” interfered

and even the Appellate Court said the Board had misapplied

the Act (Appendix A, p. Al4). As a three. judge Federal Court

recently noted, while voiding a statute which provided for the

termination of aid to college students “convicted . . . of any

crime .. . of a serious a and [which] contributed to a sub-

stantial daragtion rs;

“It may be urged that the hearing officer simply misapplied

the language of the statute, but vague language is suspect-

ible of subjective interpretation or complete misinterpre-

tation. This is nrccicel;; whv reno! or punitive statutes must

be sufficientiy precise as to give fair notice to persons whose

actions may be subject to them as well as to provide ef-

fective standards for adjudication of their applicability.

If a statute is so obscure that men of common intelligence

must guess at its meaning or differ as to its applicability,

it is unconstitutionally vague”. (Rasche v. Board of Trus-

tees, 353 F. Supp 973, at p. 977 (N.D. Ill. 1972).)

The Illinois Environmental Protection Act is so vague and

obscure that “men of common intelligence” could not possibly

do more than “guess at its meaning and differ as to its appli-

cation”; surely, it fails to inform potential defendants “what

conduct on their part will render them liable to its penalties”

(Cline v. Frink Dairy Company, supra, at p. 459). As stated

above, this Court has specifically held that the very prohibitions

which formed the basis for Fry’s conviction are unconstitutionally

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vague. Fry cited and argued those decisions to the Illinois Courts.

But the Illinois Courts ignored thos> decisions. Rather, the Ap-

pellate Court cited an Illinois case completely irrelevant to this

Act and the statutes of three other States which it said were

similar to the one at bar (Appendix A, pp. A7-8).

If the decision below is permitted to stand, one may now be

found guilty of “pollution” at the unfettered whim of a State

court or administrative board. Unless it is set aside, States may

now blithely ignore this Court’s oft repeated admonition that

statutes must be sufficiently precise so that persons subject thereto

may intelligently guide their conduct. Unless review is granted

by this Court, the Illinois Environmental Protection Act and

“similar” statutes may now be used to conduct “the widest

conceivable inquiry, the scope of which no one can foresee, and

the result of which no one can foreshadow or adequately guard

against.” (United States v. L. Cohen Grocery, supra, at p. 89).

Petitioner earnestly prays that its Petition be allowed.

Il.

Under the Ilinois Environmental Protection Act, a Charge

of Violation May be Brought in Criminal Court or in a

So-Called “Administrative” Proceeding. But an Administra-

tive Defendant Is Subject to a Greater Monetary Penalty

Than a Criminal Defendant Charged with the Same Offense.

Yet an Administrative Defendant Is Denied the Right to a

Trial by Jury, Denied the Right to a Trial Under the Rules

of Evidence and Denied the Right to Proof of Guilt Beyond

a Reasonable Doubt. Since the State Mzy Arbitrarily Pick

and Choose Between These Two Means of Enforcement,

the Act Violates Equal Protection and Due Process.

As Petitioner argued below, one of the most critical defects

in the Illinois Environmental Protection Act involves the dual

method of enforcement contained therein. As this Court held in

the leading case of Barbier v. Connolly, 113 U.S. 27 (1885):

“The 14th Amendment, in declaring that no State ‘Shall

deprive any person of life, liberty or property without due

process of law, nor deny to any person within its jurisdic-

tion the equal protection of the laws,’ undoubtedly intended,

not only that there should be no arbitrary deprivation of

life or liberty or arbitrary spoliation of property but that

equal protection and security should be given to all under

like circumstances in the enjoyment of their personal and

civil rights; that all persons should be equally entitled to

pursue their happiness and acquire and enjoy property;

that they should have like access to the courts of the country

for the protection of their persons and property, the pre-

vention and redress of wrongs, and the enforcement of con-

tracts; that no impediment should be interposed to the

pursuits of anyone except as applied to the same pursuits

by others under like circumstances; that no greater burdens

should be laid upon one than are laid upon others in the

same calling and condition, and that in the administration

of criminal justice no different or higher punishment should

be imposed upon one than such as is prescribed to all for

like offenses.” (113 U.S. at p. 31, emphasis supplied.)

And, in Truax v. Corrigan, 257 U.S. 312 (1921):

“Thus, the [equal protection] guaranty was intended to

secure equality of protection not only for all, but against

all similarly situated. Indeed, protection is not protection

unless it does so.”

“*These provisions are universal in their application, to all

persons within the territorial jurisdiction, without regard

to any differences of race, of color, or of nationality; and

the equal protection of the laws is a pledge of the protec-

tiom of equal laws.’” (257 U.S. 333, emphasis by the

Court.)

But the Illinois Act clearly violates these well settled maxims.

Thus, Section 1042 permits a charge of statutory violation to

be brought before the Pollution Control Board which can im-

pose a fine of up to $10,000 for each violation and $1,000 more

for each additional “day of violation”. On the other hand,

Section 1044 states that it shall be a misdemeanor to violate

the Act. A misdemeanor is a crime (People v. Harter, 86 Il.

App. 2d 461 (1967); People v. Sweetland, 210 Ill. App. 432

(1918)) and where, as here, the statute is silent as to the

criminal penalty, a defendant may receive a maximum fine of

$1,000, and/or up to one year in jail. (Ill. Rev. Stats., ch. 38,

§ 17(j)).

Yet no basis for such a distinction between the two methods

for charging violation appears anywhere in the Act. Of course,

one who is charged with a misdemeanor has the right to a trial

by jury. He also has the right to a fair trial under the rules of

evidence, a burden of proof beyond a reasonable doubt and

numerous other guarantees not available to a defendant charged

before the Board. And while the Board cannot imprison, it may,

unlike a criminal court, order one to cease and desist. Both

may impose a monetary penalty, the Board being empowered

to impose a fine far in excess of that which could be imposed by

a criminal court. Obviously, there is a difference in burdens

between persons thus differently charged with the same offense.

The fact that the State may arbitrarily pick and choose between

these two procedures, so widely different in terms of their

guaranteed rights, but both giving rise to substantial penalties,

is a clear violation of equal protection and due process. The

Illinois Appellate Court either misapprehended or ignored

Petitioner’s argument in this regard, for its sole answer appears

to be that the Act savs proceedings may be brought before the

Board (Appendix A.. p. A9). This is precisely why the Act

violates the Constitution.

And since the same charges may be brought before the Board

or in criminal court, a defendant charged before the Board must

surely be permitted the same right to a jury trial as one

charged with a crime. A criminal defendant could not be denied

a trial by jury because he might have been charged with the

same offense before the Board. The Appellate Court, however,

looked only to form, not substance, stating that the “right to

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trial by jury was never intended to apply to administrative pro-

ceedings.” (Appendix A, p. Al0.) But this was not the

ordinary administrative proceeding involving licensing, rate-

making or the like. This proceeding was literally identical in

substance and effect to a criminal proceeding under the Act.

As Mr. Justice Black said, concurring with a decision of

this Court striking down a statute which created a commission to

investigate violations of labor-management law:

“The Louisiana law here . . . is, in my judgment, nothing

more nor Jess than a scheme for a nonjudicial tribunal to

charge, try, convict, and punish people without courts,

without juries, without lawyers, without witnesses—in short

without any of the procedural protections that the Bill of

Rights provides. . . . For these reasons I believe that the

Louisiana law denies due process of law.” (Jenkins v.

McKeithen, 395 U. S. 411, at pp. 432-33 (1969).)

So too, the Illinois Environmental Protection Act has created

“nothing more nor less than a scheme for a nonjudicial tribunal

. try [and] convict . . . without courts, without juries . . .

(and] without . . . the procedural protections that the Bill of

Rights provides.” The Board here decided an obvious adversary

proceeding. It convicted Fry of statutory violation and ordered

it to cease and desist. It fixed and imposed a $50,000 penalty.

The substance of such a proceeding simply cannot be determined

on the basis of a label ascribed by a State legislature or Appel-

late Court.

Petitioner submits that if the decision below is permitted to

stand, States are free to provide that any charge at all may now

be heard by a nonjudicial “administrative” tribunal, instead

of a court and jury. But Petitioner also submits that the

Constitution cannot and does not permit the elevation of labels

over substance and the denial of substantial rights so that a

State may “expedite” a socially prominent cause.

As government regulation of all walks of life increases, the

words of Mr. Justice Holmes bear repetition:

“We are in danger of forgetting that a strong public desire

to improve the public condition is not enough to warrant

achieving the desire by a shorter cut than the constitutional

way of paying for the change.” (Pennsylvania Coal Co. v.

Mahon, 260 US. 393, at p. 416 (1922).)

For the reasons set forth above, this Court should grant review.

Il.

The Ilinois Environmental Protection Act and the Pollution

Control Board’s Procedural Rules Guarantee That a Defend-

ant Has the Right to Submit Written and Oral Argument. But

the Board Here Refused to Permit Fry to Submit Written or

Oral Argument and the Appellate Court’s Decision Upholding

the Board Is in Clear Conflict with the Statute, the Board

Rules, the Constitution and the Law of This Court.

Perhaps no single aspect of the Appellate Court’s decision

so clearly violates guaranteed rights as its holding that Fry

could be denied the opportunity to submit argument to the

Pollution Control Board.

‘The Environmental Protection Act itself is unquestionably

to the contrary. Thus, Section 1032 specifically provides that

“Any party to a [Board] hearing . . . may make oral or written

argument .. .”, while Section 1033(a) states that the Board

may decide the case only “{a]fter due consideration of the

written and oral statements . . .” (Appendix C, pp. A33-34).

Moreover, could there remain any doubt that a defendant has

the right to at least submit a written brief, the Board’s own

procedural Rules mandate without equivocation that:

“The parties may submit written briefs to the Board within

ten days after the close of the hearing, or such other rea-

sonable time as the Hearing Officer shall determine con-

sistent with the Board’s responsibility for expeditious deci-

sion. Upon request at the time of submission of briefs or

on its own motion, the Board may permit oral argument

by the parties before the whole Board.” (Illinois Pollution

Control Board Procedural Rules § 330, 1970, emphasis

supplied. )

While it could perhaps be suggested that oral argument is

discretionary (although Petitioner submits that this too would

be both: unconstitutional and contrary to the Act), it is per-

fectly clear that the right to file a written brief simply cannot be

_ denied. Indeed, Rule 330, above, requires the Hearing Officer

to set a briefing schedule. The Hearing Officer here did set a

briefing schedule (Appendix F, p. A52), but the Board ignored

this, as well as the Statute and Rules, deciding the case before

briefs could be filed. And when Fry objected in its motion for

rehearing, the Board replied with near incredible arrogance:

“The Board chose not to await the filing of briefs for the

rendering of its decision, but took the case on the record

. Likewise, the Board chose to proceed without hearing

oral argument.” (Appendix E, p. A49, emphasis supplied. )

But the Board cannot “ciioose” to proceed without briefs

and it cannot “choose” to foreclose oral argument. As stated

above, those rights are clearly guaranteed by Statute and Board

Rule. Of even more importance, they are also guaranteed by

the Constitution and the law of this Court.

Thus, in the so-called “second” Morgan case (Morgan v.

United States, 304 U.S. 1 (1938), this Court reviewed a pro-

ceeding in which an administrator, much like the Board here,

read, but did not hear, a written transcript of evidence. He

also read (but did not hear) a transcript of defendants’ oral

argument and reviewed their written briefs. But, the Govern-

ment made no formal argument at all. Rather, its prosecutors

conferred with the administrator outside the presence of de-

fendants who, of course, had no opportunity to reply. Ac-

cordingly, this Court reversed the administrative decision and

held that due process is only satisfied if (1) the decision-maker

physically hears the evidence and arguments of both parties

and decides the case on the spot; (2) the decision is made after

both parties have the opportunity to submit proposed findings

-and arguments; or (3) the hearing examiner were to prepare a

report to be used as a basis for subsequent exceptions and argu-

ment by the parties.

While we do not suggest that the sort of collusion described in

Morgan occurred below, that decision nonetheless highlights

the manifest injustice of this proceeding. Under the Illinois Act,

the Hearing Officer plays no part in the decision making proc-

ess. Indeed, he has no duties except to “conduct” the hearings

and to rule upon matters which do not go to the merits of the

case. Only the Board may rule on substantive matters; only the

Board may decide the case. (Illinois Pollution Control Board Pro-

cedural Rules §§ 308(f) and 315, 1970; Appendix G, p. A53.)

But unless a member of the Board attends the hearings, and

none did here, its decision is made oniy on the basis of the

raw written record and without any knowleage of such critical

factors as credibility, bias, attitude and demear.ior. Since the Hear-

ing Officer supplies no summary or analysis and makes no

recommendations, the Board is all bui completely isolated

from the hearing. These, no doubt, ar: some of the very rea-

sons why the Statute and Rules specifically give parties the right

to submit written and oral arguraent and require that the Hear-

ing Officer set a schedule for “the parties . . . [to] submit

written briefs to the Board . . .. after the close of the hearing{[s]’.

' Should those rights be denied in light of this Statute, due proc-

ess has surely failed.

But the Illinois Courts ignored the foregoing propositions and

held that Fry could be denied the right to submit argument to

the Board. To the extent that the Appellate Court appears to

suggest that due process is satisfied merely by a “hearing” with

counsel present, it has tortured the Statute and Board Rules

beyond recognition. Moreover, it has clearly denied due process

as defined by this Court. As stated above, the Hearing Officer

who presides at the hearings has nothing to do with the Board’s

decision; “argument” to him concerning the merits would be

useless. Furthermore, as the Statute, the Rules and second

Morgan obviously recognize, argument or the moans is Am

possible until the hearings have been concluded. Any “argument”

during a hearing necessarily concerns matters such as evidence,

procedure and the like in the heat of trial. It is not the same as

and indeed has nothing to do with the guaranteed right to argue

the case as a whole to the Board “after the close of the hearing”

(Illinois Pollution Control Board Procedural Rules § 330,

1970) ) and after at least a minimum opportunity to review the

evidence and the law. This much, at least, is surely required

by due process.

The decision below has resulted in a grave miscarriage of

justice with respect to this Petitioner. But more than that, the

decision will permit still other State administrators and courts

to ignore clear statutory language and thereby deny unpopular

defendants due process, as guaranteed by the Constitution

and this Court. Petitioner submits that the Constitution must

prevail over the passions of a socially prominent cause, and a

desire to quickly convict, no matter what the law. For these

reasons too, this Petition should be allowed.

CONCLUSION

Petitioner respectfully prays that its Petitiun for Writ of

Certiorari be granted.

Respectfully submitted,

BuRTON Y. WEI1ZENFELD,

ARTHUR L. KLEIN,

Paut L. LEEDs,

120 South LaSalle Street,

Chicago, Illinois 60603.

Counsel for Petitioner.

ARNSTEIN, GLUCK, WEITZENFELD

& MINow,

Of Counsel.

et nF pe ad

rom 2 ee Ln a SRI BIEN AS NRE CG AN CRA ISES. SBN ES RE ee

APPENDIX A.

56629 i,

LiLoyp A. Fry ROOFING COMPANY, @

corporation,

Petitioner,

VS. Petition for Review

+ from the Pollution

POLLUTION CONTROL BOARD, ENVI- Control Board.

RONMENTAL PROTECTION AGENCY,

THE COUNTY OF COOK, a body

politic, VILLAGE OF SUMMIT, REV.

Louis HEMMERICH, et al.,

Respondents. }

Mr. Justice STAMOS delivered the opinion of the court.

This is a petition for review of an order of the Pollution

Control Board.’ The Board denied petitioner Fry Roofing Com-

pany (hereinafter Fry) a variance from the Environmental

Protection Act,? found that Fry has caused air pollution as de-

fined by Sections 3(b) and 9(a) of the Act® and has emitted

particulates into the atmosphere in an amount exceeding the

limits set forth in the Rules and Regulations Governing the

Control of Air Pollution. The Board ordered Fry to cease and

desist the emission of particulates, and assessed a penalty against

Fry in the amount of $50,000 for violation of the Act and the

Rules and Regulations.

On appeal Fry contends that: 1) the Environmental Protec-

tion Act is unconstitutional in that: (a) it is vague and in-

1. Il. Rev. Stat. 1971, ch. 111%, par. 1041; Ill. Rev. Stat.

1971, ch. 110A, par. 335.

2. Ill. Rev. Stat. 1971, ch. 111%, par. 1001 et seq.

3. Ill. Rev. Stat. 1971, ch. 111%, pars. 1003(b), 1009(a).

BEE nee ee ERA eR ee TER ees ertemenye

ee a ee

SNS i Pt AO ORIEN. ae

definite; (b) unlimited discretion and legislative power is dele-

gated to the Pollution Control Board; (c) the Act confers

judicial power upon an administrative agency; (d) application

of the Act results in a denial of equal protection of law; and

(e) the Act denies the right to a jury trial; 2) the hearing was

unfair in that: (a) the Board did not “hear” the evidence be-

cause the Board members are not required to attend the hearing;

(b) the hearing officer did not comply with his duty to exclude

immaterial and prejudicial evidence as required by the Act;

denied its right to submit a brief and argument before the

Board; and 3) the decision of the Board is not supported by

competent, sufficient evidence.

Fry is one of the world’s largest manufacturers of asphalt

roofing operating 24 plants in various parts of the United States.

The facility involved in the present proceeding is located in

Summit, Illinois, The Vollney Felt Mill occupies the same

premises, supplying the felt used in the operation. The Trum-

bull Asphalt Company, while purportedly being a separate en-

tity unconnected with Fry, is located contiguous to the Fry

plant in Summit as it is in other parts of the country where

Fry plants are located, and supplies the asphalt used in Fry’s

manufacturing process.

On January 7, 1971, Fry filed a petition for a variance from

the provisions of the Environmental Protection Act. The peti-

tion stated that Fry had installed no control equipment because

of possible relocation problems caused by the proposed South-

West Expressway. On February 26, 1971, a complaint was

filed before the Pollution Control Board by members of a com-

munity group known as S.O.R.E.* The complaints alleged

4. At the time of the filing of this complaint, another cause was

pending in the Circuit Court of Cook County against Fry. (County

of Cook v. Lloyd A. Fry Roofing Co., Inc. 71 Ch. 585.) A consent

order, in which Fry agreed to install emission control equipment,

was entered in that suit before the termination of the instant hearing

before the Board.

gr eae NE EE ITE OEIC LAAT ENS BON te ry pare ta Sabon spree pce, with

a ee een Pen ee Le ENCORE IR eT OPN LR ACCP ORR ater IE aaa

“that Respondent Fry did, on February 17, 1971, cause and

allow the discharge and emission into the environment of con-

taminants so as to cause or tend to cause air pollution in Illinois,

and further that Respondent Fry has engaged and continues

to engage in a pattern of conduct such as to cause and allow

the discharge and emission into the environment of contaminants

SO as to Cause or tend to cause air pollution in Illinois.” Such

allegations clearly allege violaticus of Section 9(a) of the Act

and inform Fry of the manner of the alleged pollution. How-

ever, the complaint does not allege violations of the Rules and

Regulations promulgated by the Board.

Section 31 of the Act® requires that the complaint state “the

manner in, and the extent to which such person (the person

complained against) is said to violate this law.” Notice to the

alleged violator is a fundamental element of due process.

Charges in an administrative proceeding need not be drawn

with the same refinements as pleadings in a court of law, but

the charges must be sufficiently clear and specific to allow prep-

aration of a defense. (Greco v. State Police Merit Board, 105

Ill. App.2d 186, 245 N.E.2d 99.) Section 31 requires notice

of a specific violation charged and notice of the specific conduct

constituting the violation. See Citizens Utilities Co. v. Pollu-

tion Control Board, 9 Ill.App.3d 158, 289 N.E.2d 642. In

addition P. C. B. Procedural Rule 304(c) (2) requires that the

complaint contain “a concise statement of the facts upon which

the respondents are claimed to be in violation.”

In the instant case the complaint did not allege violations

of the Rules and Regulations Governing the Control of Air

Pollution. Therefore, the Board improperly found Fry in viola-

tion of the Rules and Regulations, and we reverse that part of

the Board’s order. We do not believe that this defect was cured

by the facts that the hearing on Fry’s petition for a variance

from the Rules and Regulations was consolidated with the

enforcement proceedings based upon the complaint, and that

5. Ill. Rev. Stat. 1971, ch. 111%, par. 1031.

SEES OLLIE LIP GON LIAL EEOC Tg ng OR CNETE DIDI DEE LOOT RY eats ere area?

= .~ * ues ae a ie ane ee

OCT BREEAM. Le 7

— = a

Fry introduced evidence regarding its emission rates which are

governed by the Regulations. Therefore we will consider only

: that evidence concerning a violation of Section 9(a) of the

: Act.

3 A lengthy hearing covering more than 900 pages in the

: record was held before the hearing officer. In order to con-

: sider defendant’s contentions, the testimony and evidence ad-

‘ duced must be summarized. Geddam Reddy, an engineer em-

ployed by the Environmental Protection Agency, testified on

direct examination that, from a reading of generally accepted

treatises on air pollution emission factors, he was convinced that

emissions from asphalt roofing companies are carcinogenic and

dangerous to human health. He stated that since Fry had no

emissicn control equipment, it was emitting carcinogenic mate-

rials. Near the end of the hearing, the hearing officer struck

the direct testimony of this witness on the basis that he had

never visited the Fry plant and had not inspected it. Reddy

was later called by Fry and stated that Fry Exhibit 1, United

States Environmental Protection Agency Manual (1971 pre-

liminary draft), was a generally accepted emission standard

manual.

Ronald Kluszewski, a trustee of the Village of Summit, testi-

fied as to the contents and background of a resolution passed

by the trustees on January 18, 1971, requesting a denial of

Fry’s variance application, and also requesting that Fry be re-

quired to comply with pollution control laws and regulations.

He also testified to complaints from citizens and to his opinion

| as to public feeling. Finally, he testified that he was able to

| pinpoint the “obnoxious” odor as emanating from Fry and that

it interfered with his enjoyment of his home.

The Summit Chief of Police also testified to complaints re-

garding the odors emitted by Fry. 63 complaints from 1966

were introduced into evidence; many of these pertained to

Trumbull Asphalt Company and did not name Fry. The wit-

ness stated that he had gotten approximately 20 complaints per

ALLELE DE DCES 8S MA ACEP. a LG ROA SON i PA é r Zi EAS tangs.

year since he became chief in 1966; none of these were intro-

duced into evidence.

As Vista volunteer testified to being present at a meeting on

December 18, 1970 with Lloyd Fry, Jr. and members of

S.O.R.E. Mr. Fry told the group that he knew that he was

polluting, but S.O.R.E. could take him to court to make him

stop. This witness also testified that his understanding of the

law was that Fry would be compensated for control equipment

if the plant was condemned for the proposed highway, and that

this was discussed at the meeting.

Approximately 12 members of S.O.R.E. then testified. Affida-

vits from all these witnesses were introduced into evidence.

These affidavits related that on February 17, 1971 the affiants

observed gray smoke and a sickening odor being emitted from

the Fry smokestacks, and that this odor interfered with their

enjoyment of their property and environment. Many of these

affidavits related incidents prior to February 17, 1971 and sub-

sequent to that date in which the smoke and odor emanating

from Fry produced ill effects. One of the affidavits contained

newspaper articles reflecting public concern over Fry’s opera-

tion; two 2fdavits contained information regarding Fry’s opera-

tions and lawsuits in three other states. One witness testified

that S.O.R.E. has received 111 complaints regarding Fry during

December and January of 1971 and 1972. These witnesses

were cross-examined extensively by Fry as to their certainty in

identifying the source of the odors they attributed to Fry, and

as to the contents of their affidavits.

The complainants also called Lloyd Fry, Jr. and Harvey

Hoffman, the former Director of Environmental Controi at the

Fry plant, as adverse witnesses. Fry stated that he did not know

what type of particulates the plant was emitting, and did not

know of an injunction against the Fry plant in California. Hoff-

man was questioned regarding the pollution control equipment

installed in Fry’s other plants.

RD ae

SO 8 nl sea

William Zenisek, an expert witness for the Environmental

Protection Agency testified that he visited Fry in 1968 and

1971 and estimated the emissions rate from the United States

Environmental Protection Agency Manual, 1968 (E.P.A. Ex-

hibit 1). No tests were conducted on the Fry plant to deter-

mine actual emission rates. This witness testified that there

is no Official update of the 1968 manual, only preliminary re-

visions. Air Pollution Engineering Manual, U.S. Department

of Public Health, 1967 was also introduced into evidence

(E.P.A. Exhibit 3) as depicting the state of the art as it relates

to asphalt saturators and the control of emissions.

Steven Rosenthal, an environmental protection engineer em-

ployed by the Environmental Protection Agency testified that he

visited the Fry plant two or three times in 1971, and observed a

disagreeable odor. He computed the Fry emission rate from the

1968 Environmental Protection Agency Manual. He stated that

in his opinion the wood flour he observed on the premises was

the result of a violation. The recommendation of the Environ-

mental Protection Agency, which stated that Rosenthal had made

three inspections of the area and had noted a piercing stench,

was introduced into evidence. The recommendation also stated

that Fry was not complying with Section 9(a) of the Act and

Rule 3-3.11 of the Rules and Regulations regarding emission

rates. Fry made a motion to call Mr. McCreery of the Agency

who purportedly wrote the recommendation; the hearing officer

held that Rosenthal signed it and only he was required to testify.

Fry called its plant manager who testified to the saturating

process, and stated that to his knowledge “nothing goes out of

the stacks,” with the exception of steam. He also testified that the

stacks did not have hoods to catch emissions, but that the

installation of such hoods was planned.

Petitioner’s first constitutional argument is that the Environ-

mental Protection Act is unconstitutionally vague and indefinite.

Section 9(a) of the Act® provides:

6. Ill. Rev. Stat. 1971, ch. 111%, par. 1009(a).

tN aia! Al dia ce,

RES PP, LIES OE GEMS IRON AE IEG SLE LING WEDS wR Chey thier eg esse. - ee

PADRE LEG LTE PS OBL ty cop ig

“No person shall:

(a) Cause or threaten to 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, either alone or in combination with con-

taminants from other sources, or so as to violate

regulations or standards adopted by the Board under

this act; * * *.”

Section 3(b) of the Act’ states that:

“ ‘Air Pollution’ is 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 un-

reasonably interfere with the enjoyment of life or property.”

Section 3(d)* states that:

“*Contaminant is any solid, liquid, or gaseous matter, any

odor, or any form of energy, from whatever source.”

At the outset, we acknowledge that all presumptions are in

favor of the constitutionality of legislation (Gadlin v. Auditor of

Public Accounts, 414 Ill. 89, 110 N.E.2d 234), and petitioner

has the burden of clearly proving unconstitutionality. Statutes

directed at control of pollution in the environment are intended

to encompass infinitely variable conditions. Therefore, flexibility

and adaptability are required. In addition, the above definitions

in this Act, taken together, are clear and easily understandable.

All types of contaminants and “pollution” need not be scientif-

ically delineated in a statute of this kind.® Metropolitan Sanitary

7. Ill. Rev. Stat. supra, par. 1003(b).

8. Ill. Rev. Stat. supra, par. 1003(d).

9. We note that these sections are as clear as those used in

the statutory framework of other states’ pollution statutes. See

Houston Compressed Steel Corp. v. Texas (Tex. Civ. App.), 456

S.W.2d 768; Air Pollution Commission v. Coated Material Co.

(Pa. Ct. Comm. Pl.) IERC 1444; Department of Health v. Owens-

Corning Fiberglas Corp., 100 N.J. Sup. 366, 242 A.2d 21, Affd. 53

N.J. Sup. 248, 250 A.2d 11.

CLP CGN NTA oe an . =

TT Agata EPR MA er ee oe

POET ON TERRY es

District v. United States Steel Corp., 41 Tll.2d 440, 243 N.E.2d

249.

Petitioner’s next contenuons are that the Act confers unlimited

legislative discretion and judicial power upon the Pollution Con-

trol Board. Petitioner’s argument that the delegation of authority

to interpret the Act and to make rules and regulations is an

abdication of legislative responsibility is not persuasive. There is

no clear line separating excessive and permissive delegations of

legislative authority. A reading of Sections 9(a), 3(b) and

3(d) indicates that the legislature has provided some standards

in the Act.

Section 5(b) provides:

“The Board shall determine, define and implement the

environmental control standards applicable in the State of

Illinois and may adopt rules and regulations in accordance

with Title VII of this Act.”

The discretionary power delegate to the Board is clearly limited

by the Section 5(b) requirement that the Board determine

standards. We are in agreement with the decisions of the courts

in Ford v. Environmental Protection Agency, 9 Ill.App.3d 711,

292 N.E.2d 540, Bath, Inc. v. Pollution Control Board, 10

ll.App.3d 507, 294 N.E.2d 778, and City of Monmouth v.

Environmental Protection Agency, 10 Ill.App.3d 823, 295

N.E.2d 136, that the authority and powers bestowed on the

Board to make rules and adjudicate cases are in keeping with

the spirit of the Environmental Protection Act for the practical

application and operation of the Act. See also Reif v. Barrett, |

355 Ill. 104, 188 N.E. 889.

In addition, we hold that the authority to impose monetary

penalties granted by Sections 33(b) and 42 of the Act’® does

not constitute a prohibited grant of judicial power.* Our

10. Til. Rev. Stat. 1971, ch. 111%, pars. 1033(b), 1042.

‘11. The proceeding before the Board was a combination variance

and enforcement proceeding. Therefore, the Board did not exceed

adaiiin 1. temnenuememmeniaceer serena 6x omens tenses

Supreme Court has recently decided the issue by holding that

the discretionary power to impose penalties is reasonably neces-

sary to accomplish the legislative purpose of the agency, and

therefore, does iot violate the constitutional separation of

powers. City of Waukegan v. Environmental Protection Agency,

didn TH 2d ene ones N.EL2d4 ............ (NO. 45984 filed March

29, 1974).

Petitioner’s final constitutional arguments are that the Act

denies it equal protection of law and its rights to trial by jury.

Petitioner argues that Section 44 of the Act’* provides that

violations shall constitute misdemeanors, and that, therefore,

one person may be charged with a violation before the adminis-

trative agency while another person may be charged with the

same violation in a criminal proceeding.

The fourteenth amendment requires that all persons subject to

legislation “shall be treated alike, under like circumstances and

conditions, both in privileges conferred and in liabilities im-

posed.” (Hayes v. Missouri, 120 U.S. 68, 71-72.) The provi-

sions of the Environmental Protection Act and the regulations of

the Board are equally applicable to all persons in Illinois. Peti-

tioner has shown no discrimination or abuse of discretion in

bringing administrative actions. On the contrary, the Act pro-

vides that enforcement actions be brought before the Board.

Ford v. Environmental Protection Agency, supra. See also State

v. Lloyd A. Fry Roofing Co.,.495 P.2d 751 (Ore. App. Ct.),

remanded on other grounds, 502 P.2d 253 (Ore.).

We are also unable to agree with petitioner that the Act is

applied in a capricious or arbitrary manner because actions for

violation of the Act can be brought against persons, even though

its statutory authority to impose fines in enforcement proceedings.

Ill. Rev. Stat. 1971, ch. 111%, pars. 1033(b), 1042. The Board

may not impose fines in the context of a variance proceeding.

Citizens Utilities Co. v. Pollution Control Board, 9 Tl.App.3d

158, 289 N.E.2d 642; City of Mattoon v. Illinois Environmental

Protection Agency, 11 "TILApp.3d 259, 296 N.E.2d 383.

12. Ill. Rev. Stat. 1971, ch. 111%, par. 1044.

Al0

they may be in compliance with the regulations, and even though

Section 49(e) of the Act"* states thyt compliance with the regu-

lations is a prima facie defense to ‘an action. It is sufficient to

point out that violations of the Act occur whenever a person

causes or tends to cause “air pollution” or violates the rules and

regulations adopted by the Board. (Ill. Rev. Stat. 1971, ch.

111%, par. 1009(a).) Compliance with the regulations is a

prima facie defense, but it is not a complete defense.

Petitioner’s contention that the Act deprives it of its constitu-

tional right to trial by jury is also without merit. The Constitution

of 1970** provides that “[t]he right of trial by jury as heretofore

enjoyed shall remain inviolate.” This language is identical to

that in the Constitution of 1870, and has been interpreted to

secure the right of jury trial as it existed at common law.

(Stephens v. Kasten, 383 Ill. 127, 48 N.E.2d 508.) dn the

instant case, the Act provides for the creation of an administra-

tive agency to enforce the Act. The constitutional guarantee of

right to trial by jury was never intended to apply to administra-

tive proceedings which were unknown at common law, and

therefore, petitioner cannot argue that this right has been

abridged. Ford v. Environmental Protection Agency, supra.

Petitioner next argues that the Pollution Control Board’s

order must be reversed because petitioner was denied a fair and

impartial hearing. Due process of law requires that an adminis-

trative hearing be fair. (Smith v. Department of Registration and

Education, 412 Til. 332, 106 N.E.2d 722.) In administrative

review, it is our duty to review the manner in which evidence

was adduced before the administrative agency. From petitioner's

specific allegations of unfairness, we cannot conclude that, the

administrative hearing in this case was not fair and impartial.

Petitioner asserts that the Act itself precludes a fair hearing

because none of the Board members personally hear the evi-

13. Tl. Rev. Stat. 1971, ch. 111%, par. 1049(e).

14. Ill. Rev. Stat. 1971, Const., art. I, § 13. \

All

dence and the hearing officer merely receives the evidence with-

out participating in the decision-making process. The United

States Supreme Court has held that in administrative proceedings

“there must be a hearing in a substantial sense.” (Morgan Vv.

United States, 298 U.S. 468, 481.) In the instant case, the Act

requires the Board to make its determinations after “due con-

sideration of the written and oral statements, the testimony and

arguments that shall be submitted at the hearing * * *.” (II.

Rev. Stat. 1971, ch. 111%, par. 1033(a).) Thus we must con-

clude that the decision-making procedure set forth in the Act

conforms to the Morgan requirement that “the officer who makes

the determinations must consider and appraise the evidence.”

Morgan V. United States, supra, at 582; see also Des Plaines Cur-

rency Exchange, Inc. v. Knight, 29 Tll.2d 244, 194 N.E.2d 89.

Petitioner also argues that the hearing was unfair because

the hearing officer failed to exclude irrelevant, prejudicial testi-

mony as required by Procedural Rule 320(b). Although we

agree that incompetent evidence was admitted into evidence—

(we note that evidence was adduced regarding events outside

the time scope of the complaint), we are not compelled to con-

clude that substantial unfairness or an overall denial of justice

resulted. The Act requires the Board to file a written opinion

stating the facts and reasons for its decision (Ill. Rev. Stat.

1971, ch. 111%, par. 1033(a)), and its decision must be based

upon competent evidence. The admission of incompetent evi-

dence is not reversible error if there is substantial evidence to

sustain the decision of the Board. See Yiannopoulos v. Robinson,

247 F.2d 655 (7th Cir.). A failure to observe the technical

rules of evidence is not sufficient reason to set aside an agency’s

decision unless the error materially affects the rights of a party

and results in substantial injustice to him. (Administrative

Review Act, Ill. Rev. Stat. 1971, ch. 110, par. 275(2).) Our

perusal of the record reveals no instance where the ruling of the

hearing officer resulted in substantial injustice to Fry.

Al2

Likewise, we are not convinced that the hearing officer was

biased, and actively participated in proving petitioner’: guilt.

It is an established priaciple that the decision of an admin-

istrative agency will be set aside if the prejudice or bias of the

hearing officer results in an unfair hearing. (Gigger v. Board of

Fire and Police Commissioners, 23 Wl.App.2d 433, 163 N.E.

2d 541.) Upon our review of the record, we are satisfied that

the hearing officer conducted the proceedings in a fair and im-

partial manner. The “expert” testimony of the Agency’s engi-

neer, Reddy, was stricken from the record when the hearing

officer became aware that Reddy had no personal knowledge of

the Fry plant. The hearing officer’s instructions to complainant’s

attorney regarding foundation for a witness’s testimony, a letter

to the Board stating that the evidence from the Agency would

hopefully produce a “knowledgeable expert”, the introduction

of police reports from 1966, the introduction of testimony re-

garding comraunity feeling and lawsuits against Fry in other

States, the narrative testimony of certain witnesses, and the hear-

ing officer’s interrogation of the witnesses are interpreted by us as

a conscientious effort by the hearing officer to “insure develop-

ment of a clear and complete record,” as required by the Board’s

regulations. (Pollution Control Board Regulations, Section 115.)

In addition, petitioner was represented by counsel and was

‘ offered the opportunity to prepare a defense and introduce evi-

dence, and all of the testimony adduced at the hearing was

subject to cross-examination. From the above state of the record,

we are of the opinion that the hearing was conducted as a

fact-finding proceeding with a view toward achieving substantial

justice. — | '

As a final assertion of procedural unfairness, petitioner argues

that it was denied its right to file. a written brief to the Board

as ‘permitted by the Board’s regulations. (Pollution Control —

Board Regulations, Section 330.) Petitioner does not contend

that it was denied the opportunity to present argument, offer

testimony or cross-examine witnesses as required by the Act,”*

15. Ill. Rev. Stat. 1971, ch. 111%, par. 1032.

Al3

or that the Board issued its order without considering the state-

ments, testimony and arguments submitted at the hearing as

required by the Act."* The intent of the legislature, as seen from

the Act itself, was to afford parties procedural due process.

In the case at bar, the hearing conformed to fundamental prin-

ciples of justice, and we construe the regulation providing that

written briefs may be filed as a discretionary provision only.

The Board did not abuse its discretion in rendering its order

without considering briefs from the parties.

Petitioner’s final contention is that the decision of the Board

must be overturned because there is not substantial, competent

evidence upon which to base that decision. Petitioner main-

taias that the decision was based on irrelevant allegations and

prejudicial conclusions.

It is well established that a reviewing court may examine

firdings of an administrative agency to determine if they are

supported by sufficient, competent evidence. (St. James Temple

of the A.O.H. Church of God, Inc. v. Board of Appeals, 100 Tl.

App.2d 302, 241 N.E.2d 525; Russell v. License Appeal Com-

mission, 133 T.App.2d 594, 273 N.E.2d 650.

In the instant case, the complaint charged plaintiff with viola-

tions of the Act in discharging contaminants into the atmosphere

on February 17, 1971, and causing or tending to cause air

pollution. Complainants sought a cease and desist order and

a $1,000 fine for the February 17th incident and every other

day during which Fry discharged contaminants. The order

of the Board ordered Fry to cease and desist and assessed a

$50,000 penalty for violations of the particulate emissions pro-

visions of the Rules and Regulations Governing the Control

of Air Pollution; for failure to file a Letter of Intent and Air

Contaminant Emission Reduction Program; and for causing air

pollution.

Upon our review of the record, we are convinced that the

Board’s finding of air pollution by Fry, in violation of Section

16. Til. Rev. Stat. supra, par. 1033(a).

Al4

9(a), is supported by substantial, competent evidence. Section

3(b) of the Act defines air pollution as the presence of sufficient

quantity and quality of contaminants as to (1) be injurious to

human life, (2) be injurious to plant life, (3) be injurious to

animal life, (4) be injurious to health, (5) unreasonably inter-

fere with the enjoyment of life or property. The Board’s finding

of a violation must rest upon a finding that the alleged pollution

resulted in one or more of the above-mentioned situations.

The opinion of the Board erroneously states that it need only

find. “substantial interference” with the enjoyment of life or

property in order to support a finding of violation of the statute.

The Board found that the evidence:

“amply supports a finding of severe nuisance and air pol-

lution as defined in the statute * * * (and that Fry’s opera-

tion caused) a severe burden and nuisance on the com-

munity.”

These statements do not provide a necessary recognition of the

elements of Sections 9(a), 3(b) and 3(d) which are required

to support a finding of air pollution. Nowhere in the Board’s

opinion is there an explicit finding of “unreasonable” inter-

ference with the enjoyment of life or property of nearby resi-

dents. Our court has recently held that neither a finding of

nuisance nor burden on the community amounts to a sufficiently

specific finding that Fry “unreasonably” interfered with the en-

joyment of life. See Mystik Tape v. Illinois Pollution Control

Board, 16 Ill.App.3d 778, 306 N.E.2d 574.

However, we believe that sufficient, competent evidence was

adduced at the hearing to support a finding of unreasonable

interference with life and property. Affidavits of members of

S.O.R.E. were introduced into evidence. These affidavits related

specific instances of pollution by Fry on February 17, 1971

and on subsequent dates (in addition to irrelevant mention

of instances prior to February 17, 1971). The affiants testified

at the hearing that smoke and odors emanating from Fry

interfered with the enjoyment of their property, and that they

were able to identify the harmful and irritating odors as emanat-

Al5

ing from Fry. Fry was afforded opportunity, of which they

availed themselves, to thoroughly cross-examine each of these

witnesses.

One of the affiants, James Johnstone, testified that he lives

four blocks from the Fry plant. He observed gray smoke and

was aware of the odor of asphalt and felt emanating from the

Fry smoke stacks. He testified that the smoke and odor “makes

you sick * * * it makes your eyes water, parches your throat.”

He observed the smoke and was aware of the odor prior to

February 17, 1971 and subsequently. He testified that the odor

in the park across from the Fry plant is “bad,” and that he could

not jog in the park because of the odor and smoke.

Another affiant, Mary Younkers, who lives three blocks from

Fry, testified that on April 16, 1971, she was in the park and

was aware of odors emanating from Fry. The odors pervaded

the area and caused her to leave the park. She also was aware

of the odor in her home subsequent to February 17, 1971, and

it caused her headaches and nausea.

Other witnesses testified that the odors being emitted from

the Fry smoke-stacks were “obnoxious” or “disagreeable.” More

importantly, witnesses testified that the odor caused headaches,

nausea, coughing and eye irritation. Therefore, we conclude

that the evidence adduced supports a finding of unreasonable

interference with the enjoyment of life and property of the resi-

dents. Section 33(c) of the Act provides:

“In making its orders and determinations, the Board shall

take into consideration all the facts and circumstances

bearing upon the reasonableness of the emissions * * *.”

We note that, in its order, the Board failed to demonstrate

compliance with this section in that the order did not indicate

consideration of the factors enumerated therein. Fry does not

raise this issue on appeal, and moreover, we are of the opinion

that sufficient evidence was adduced as to each enumerated

factor to support the Board’s findings.

Section 33(c)(1) concerns “the character. and degree of

injury to, or interference with the protection of health * * *.”

Al6

The testimony of the affiants, as previously set forth in this

opinion, is sufficient to indicate the character and. degree of in-

jury. Concerning “the social and economic value of the pollu-

tion source” (§ 33(c)(2)), Fry introduced evidence of the

operation of the plant. As to the “suitability or unsuitability of

the pollution source to the area in which it is located * * *”

(§ 33(c)(3)), evidence was adduced as to the presence in the

’ general area of the Chicago Metropolitan Sanitary District slush

ponds, The Trumbull Asphalt Co. and the Corn Products Co.

plant, in addition to residences and a public park. Finally, evi-

dence concerning “the technical practicability and economic

reasonablencss of reducing or eliminating the emissions * * *

resulting from such pollution source” (§ 33(c) (4) ) was adduced

through testimony regarding the availability of pollution devices

to asphalt plants and the existence of pollution control devices

on Fry plants in other areas of the country. In addition, the

Fry plant manager testified that no emission control devices

were employed, but that plans for installation of such devices

had been made.

Based upon the evidence previously alluded to, the Board

properly concluded that air pollution caused by Fry unreason-

ably interfered with enjoyment of life and property, and that

Fry is in violation of Section 9(a) of the Act. Accordingly,

we affirm that part of the order of the Pollution Control Board

ordering Fry to comply with Section 9(a) of the Act; we reverse

that part of the order finding Fry in violation of the Board’s

Rules and Regulations. Because the Board imposed a penalty of

$50,000 for violations of the Act and the Regulations, and did

not indicate what portion of the penalty was imposed for the

statutory violation, we remand this cause to the Board for a

redetermination of an appropriate penalty.

AFFIRMED IN PART;

REVERSED IN PART;

REMANDED IN PART,

Hayes, P. J., and LEIGHTON, J., concur.

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APPENDIX C.

ILLINOIS ENVIRONMENTAL CONTROL ACT.

TITLE I: GENERAL PROVISIONS.

§ 1001. Short title and citation.] §1. This Act shall be

known and may be cited as the “Environmental Protection

Act”.

§ 1002. Legislative declaration.] §2.(a). The General

Assembly finds:

(i) that environmental damage seriously endangers the

public health and welfare, as more specifically described in

later sections of this Act;

(ii) that because environmental damage does not respect

political boundaries, it is necessary to establish a unified state-

wide program for environmental protection and to cooperate

fully with other States and with the United States in protecting

the environment;

‘iij) that air, water, and other resource pollution, public

wz er supply, solid waste disposal, noise, and other environ-

menial problems are closely interrelated and must be dealt

with as a unified whole in order to safeguard the environment;

(iv) that it is the obligation of the State Government to

manage its own activities so as to minimize environmental

damage; to encourage and assist local governments to adopt

i and implement environmental-protection programs consistent

with this Act; to promote the development of technology for

environmental protection and conservation of natural resources;

and in appropriate cases to afford financial assistance in pre-

venting environmental damage; and

eee SIE IEG SS DONORS BOL IE LEGER Big POON CLE EL EL AIA LIE EEE, Tip PAGS

ET ASS I he ae

A20

(v) that in order to alleviate the burden on enforcement

agencies, to assure that all interests are given a full hear-

ing, and to increase public participation in the task of pro-

tecting the environment, private as well as governmental reme-

dies must be provided.

(b) It is the purpose of this Act, as more specifically de-

scribed in later sections, to establish a unified, state-wide pro-

gram supplemented by private remedies, to restore, protect

and enhance the quality of the environment, and to assure that

adverse effects upon the environment are fully considered and

borne by those who cause them.

§ 1003. Definitions.] §3.(a). “Agency” is the Environ-

mental Protection Agency established by this Act.

(b) “Air Pollution” is 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.

this Act.

(d) “Contaminant” is any solid, liquid, or gaseous mat-

ter, any odor, or any form of energy, from whatever source.

(e) “Garbage” is waste resulting from the handling, proc-

essing, preparation, cooking, and consumption of food, and

wastes from the handling, processing, storage, and sale of

produce.

(f) “Institute” is the Illinois Institute for Environmental

Quality established by this Act.

(g) “Open burning” is the combustion of any matter in

the open or in an open dump.

(h) “Open dumping” means the consolidation of refuse

from one or more sources at a central disposal site that does

not fulfill the requirements of a sanitary landfill.

oem eee eee ee

A21

(i) “Person” is any individual, partnership, copartnership,

firm, company corporation, association, joint stock company,

trust, estate, political subdivision, state agency, or any other

legal entity, or their legal respresentative, agent or assigns.

(j) “Public water supply” means all mains, pipes and struc-

tures through which water is obtained and distributed to the

public, including wells and well structures, intakes and cribs,

pumping stations, treatment plants, reservoirs, storage tanks

and appurtenances, collectively or severally, actually used or

intended for use for the purpose of furnishing water for drinking

or general domestic use in incorporated municipalities; or un-

incorporated communities where 10 or more separate lots or

properties are being served or intended to be served; State-

owned parks and memorials; and State-owned educational,

charitable, or penal institutions.

(k) “Refuse” is any garbage or other discarded solid ma-

terials.

(1) “Sanitary landfill” means the disposal of refuse on land

without creating nuisances or hazards to public health or safety,

by confirming the refuse to the smallest practical volume and

covering it with a layer of earth at the conclusion of each day’s

operation, or at such more frequent intervals as may be neces-

sary.

(m) “Sewage works” means individually or collectively those

constructions or devices used for collecting, pumping, treating,

and disposing of sewage, industrial waste or other wastes or

for the recovery of by-products from such wastes.

(n) “Water pollution” is such alternation of the physical,

thermal, chemical, biological or radioactive properties of any

waters of the State, or such discharge of any contaminant into

any waters of the State, as will or is likely to create a nuisance

or render such waters harmful or detrimental or injurious to

public health, safety or welfare, or to domestic, commercial,

industrial, agricultural, recreational, or other legitimate uses,

or to livestock, wild animals, birds, fish, or other aquatic life.

A22

(0) “Waters” means all accumulations of water surface

and underground, natural, and artificial, public and private,

or parts thereof, which are wholly or partially within, flow

through, or border upon this State.

(p) “Municipality” means any city, village or incorporated

town.

§ 1004. Environmental Protection Agency—Estiblishment

—Director—Term and appointment—Duties and powers of

agency. § 4.(a). There is established in the Executive Branch

of the State Government an agency to be known as the Environ-

mental Protection Agency. This agency shall be under the super-

vision and direction of a Director who shall be appointed by

the Governor with the advice and consent of the Senate. The

term of office of the Director shall expire on the third Monday

of January in odd numbered years provided that he shall hold

his office until his successor is appointed and qualified. The

Director shall receive an annual salary of $35,000. The Direc-

tor, in accord with the Personnel Code, shall employ and direct

such personnel, and shall provide for such laboratory and other

facilities, as may be necessary to carry out the purposes of this

Act. In addition, the Director may by agreement secure such

services as he may deem necessary from any other Depart-

ment, agency, or unit of the State Government, and may

employ and compensate such consultants and technical as-

sistants as may be required.

(b) The Agency shall have the duty to collect and dis-

seminate such information, acquire such technical data, and

conduct such experiments as may be required to carry out

the purposes of this Act, including ascertainment of the

quantity and nature of discharges from any contaminant source

and data on those sources, and to operate and arrange for

the operation of devices for the monitoring of environmental

quality.

A23

of continuing surveillance and of regular or periodic inspection

of actual or potential contaminant or noise sources, of public

water supplies, and of refuse disposal sites.

(d) The Agency shall have authority to enter at all reason-

sonable times upon any private or public property for the

purpose of inspecting and investigating to ascertain possible

violations of the Act or of regulations thereunder, in accord-

ance with constitutional limitations.

(e) The Agency shall-have the duty to investigate violations

of this Act or of regulations adopted thereunder, to prepare

and present enforcement cases before the Board and to take

such summary enforcement action as is provided for by Sec-

tion 34 of this Act. °

(f) The Agency shall appear before the Board in any hear-

ing upon a petition for variance, the denial of a permit, or

the validity or effect of a rule or regulation of the Board, and

shall have the authority to appear before the Board in any

hearing under the Act.

(g) The Agency shall have the duty to administer, in accord

with Title X of this Act, such permit and certification systems

as may be established by this Act or by regulations adopted

thereunder.

(h) The Agency shall have authority to require the sub-

mission of complete plans and specifications from any applicant

for a permit required by this Act or by regulations ‘hereunder,

and to require the submission of such reports regarding actual

or potential violations of the Act or of regulations thereunder, as

may be necessary for purposes of this’ Act.

(i) The Agency may prescribe reasonable fees for permits

required pursuant to this Act.

(j) The Agency shall have authority to make recommenda-

‘ tions to the Board for the adoption of regulations under Title

VII of the Act.

‘A24

(k) The Agency shall have the duty to represent the State

of Illinois in any and all matters pertaining to plans, procedures, '

or negotiations for interstate compacts or other governmental

arrangements relating. to environmental protection.

(1) The Agency shall have the authc.rity to accept, receive,

and administer on behalf of the State a1:7 grants, gifts, loans, or

other funds made available to the State from any source for

purposes of this Act or for air or water pollution control, public

water supply, solid, waste disposal, noise abatement, or other

environmental protection activities, surveys, or programs. Any

federal funds received by the Agency pursuant to this subsection

shall be deposited in a trust fund with the State Treasyrer and _

held and disbursed by him in accordance with “An Act in rela-

tion to the receipt, custody, and disbursement of money allotted

by the United States of America or any agency thereof for

use in this State,” approved July 3, 1939, as amended, provided

that such monies shall be used only for the purposes for which

they are contributed and any balance remaining shall be re-

turned to the contributor. — |

The Agency is authorized to promulgate such regulations and

enter into such contracts as it may deem necessary for carrying

out the provisions of this subsection.

(m) The Agency is hereby designated as water pollution

agency for the state for all purposes of the Federal Water

Pollution Control Act, Public Law 80-845, approved June 30,

1948, as amended, as air pollution agency for the state for all

purposes of the Federal Air Quality Act, Public Law 90-148,

approved November 21, 1948, as amended; and as solid waste

"agency for the state for all purposes of the Federal Solid waste

Disposal Act, Public Law 89-272, approved October 20, 1965.

The Agency is hereby authorized to take all action necessary or |

appropriate to secure to the State the benefits of such federal

Acts, provided that the Agency shall transmit ‘to the United {

States without change any standards adopted by the Pollution

Control Board pursuant to Section 5(c) of this Act.

POR I RE ee

A25

. Any municipality, sanitary district, or other political subdivi-

sion, or any Agency of the State ~r interstate Agency, which

makes application for loans or grants under such federal Acts

shall notify the Agency of such application; the Agency may

participate in proceedings under such federal Acts.

§ 1005. Pollution Control Board—Creation—Membership

— Terms — Compensation — Chairman — Meetings — Quo-

rum—Duties and powers.] § 5.(a). There is hereby created

an independent board to be known as the Pollution Control

Board, consisting of 5 technically qualified members, no more

than 3 of whom may be of the same political party, to be

appointed by the Governor with the advice and consent of the

Senate. One of the members of the Board first appointed shall

be appointed for an initial term expiring July 1, 1971; two

members shall be appointed for initial terms expiring July 1,

1972; two members shall be appointed for initial terms expiring

July 1, 1973. All successors shall hold office for three years

from the first day of July in the year in which they were ap-

pointed except in case of an appointment to fill a vacancy. In

case of a vacancy in the office when the Senate is not in session,

the Governor may make a temporary appointment until the next

meeting of the Senate when he shall nominate some person to

fill such office; and any person so nominated, who is confirmed

by the Senate, shall hold his office during the remainder of the

term. If the Senate is not in session at the time this Act takes

effect, the Governor shall make temporary appointments as in

case of vacancies.

Members of the Board shall hold office until their respective

successors have been appointed and qualified. Any member may

resign from his office, such resignation to take effect when his

successor has been appointed and has qualified.

Board members shall be paid $30,000 per year, and the

Chairman $35,000 per year. Each member shall be reimbursed

for expenses necessarily incurred, shall devote full time to the.

A26

performance of his duties and shall make a full financial dis-

closure upon appointment. Each Board member may employ one

secretary and one assistant, and the Chairman one secretary

and two assistants. The Board also may employ and compensate

hearing officers to preside at hearings under this Act, and such

other personnel as may be necessary. Hearing officers shall be

attorneys licensed to practice law in ‘illinois.

The Governor shall designate one Board member to be

Chairman, who shall serve at the pleasure of the Governor.

The Board shall hold at least one meeting each month and

such additional meetings as may be prescribed by Board rules.

In addition, special meetings may be called by the Chairman or

by any two Board members, upon delivery of 24 hours written

notice to the office of each member. All Board meetings shall be

open to the public, and public notice of all meetings shall be

given at least twenty-four hours in advance of each meeting. In

emergency situations in which a majority of the Board certifies

that exigencies of time require the requirements of public notice

and of twenty-four hour written notice to members may be dis-

pensed with, and Board members shall receive such notice as is

reasonable under the circumstances.

Three members of the Board shall constitute a quorum, and

three votes shall be required for any final determination by the

Board, except in a proceeding to remove a seal under paragraph

(d) of Section 34 of this Act. The Board shall keep a complete

and accurate record of all its meetings.

(b) The Board shall determine, define and implement the

environmental control standards applicable in the State of

Illinois and may acopt rules and regulations in accordance with

Title VII of this Act.

regard to the adoption of standards for submission to the United

States under any federal law respecting environmental protec-

tion. Such standards shall be adopted in accordance with Title

A27

Vill of the Act and upon adoption shall be forwarded to the

Environmental Protection Agency for submission to the United

States pursuant to Section 4(m) of this Act. Nothing in this

paragraph shall limit the discretion of the Governor to delegate

authority granted him under any federal law.

(d) The Board shall have authority to conduct hearings upon

complaints charging violations of this Act or of regulations

thereunder; upon petitions for variances; upon petitions for

review of the Agency’s denial of a permit in accordance with

Title X of this Act; upon petition to remove a seal under Section

34 of this Act; and such other hearings as may be provided

by rule.

(e) In connection with any hearing pursuant to subsections

(b) or (d) of this section the Board may subpoena and compel

the attendance of witnesses and the production of evidence

reasonably necessary to resolution of the matter under considera-

tion. The Board shall issue such subpoenas upon the request of

any party to a proceeding under subsection (d) of this section

or upon its own motion.

* * * * *

TITLE II: AtRk POLLUTION.

§ 1008. Legislative declaration.] §8. The General As-

sembly finds that pollution of the air of this State constitutes a

menace to public health and welfare, creates public nuisances,

adds to cleaning costs, accelerates the deterioration of materials,

adversely affects agriculture, business, industry, recreation,

climate, and visibility, depresses property values, and offends

the senses.

It is the purpose of this Title to restore, maintain, and

enhance the purity of the air of this State in order to protect

health, welfare, property, and the quality of life and to assure

that no air contaminants are discharged into the atmosphere

without being given the degree of treatment or control necessary

to prevent pollution.

A28

-§ 1009. Acts prohibited.] §9. No person shall:

(a) Cause or threaten or allow the discharge or emission of

any Coutaminant into the environment in any State so as to cause

or tend to cause air pollution in Illinois, either alone or in com-

bination with contaminants from other sources, or so as to violate

regulations or standards adopted by the Board under this Act;

(b) Construct, install, or operate any equipment, facility,

vehicle, vessel, or aircraft capable of causing or contributing to

air pollution or designed to prevent air pollution, of any type

designated by Board regulations, without a permit granted by

the Agency, or in violation of any conditions imposed by such

permit;

salvage operation by open burning, or cause or allow the burn-

ing of any refuse in any chamber not specifically designed for

the purpose and approved by the Agency pursuant to regulations

adopted by the Board under this Act; except that the Board

may adopt regulations permitting open burning of refuse in

certain cases upon a finding that no harm will result from such

burning, or that any alternative method of disposing of such

refuse would create a safety hazard so extreme as to justify the

pollution that would result from such burning;

(d) Sell, offer, or use any fuel or other article in any areas in

which the Board may by regulation forbid its sale, offer, or use

for reasons of air-pollution control.

§ 1010. Regulations.) §10. The Board, pursuant to pro-_

cedures prescribed in Title VII of this Act, may adopt regula-

tions to promote the purposes of this Title. Without limiting the

generality of this authority, such regulations may among other

things prescribe:

(a) Ambient air quality standards specifying the maximum

permissible short-term and long-term concentrations of various

contaminants in the atmosphere;

RA RIRS d e ie ek A ene

A29

(b) Emission standards specifying the maximum amounts or

concentrations of various contaminants that may be discharged

into the atmosphere;

installation, or operation of any equipment, facility, vehicle,

vessel, or aircraft capable of causing or contributing to air

pollution or designed to prevent air pollution;

(d) Standards and conditions regarding the sale, offer, or use

of any fuel, vehicle, or other article determined by the Board to

constitute an air-pollution hazard;

(e) Alert and abatement standards relative to air-pollution

episodes or emergencies constituting an acute danger to health

or to the environment;

(f) Requirements and procedures for the inspection of any

equipment, facility, vehicle, vessel, or aircraft that may cause or

contribute to air pollution;

(g) Requirements and standards for equipment and pro-

cedures for monitoring contaminant discharges at their sources,

the collection of samples and the collection, reporting and

retention oi data resulting from such monitoring.

oa « * * *

TITLE VII: REGULATIONS.

§ 1026. Procedural rules—Adoption.] § 26. The Board

may adopt such procedural rules as may be necessary to accom-

plish the purposes of this Act. Notice of the proposed adop-

tion of procedural rules shall be given in accord with Section

28 of this Act, and any person may submit written statements

regarding such proposals.

$1027. Adoption of substantive regulations—Charges.]

§ 27. The Board may adopt substantive regulations as de-

scribed in Sections 10, 13, 17, 22 and 25 of this Act. Any

such regulations may make different provisions as required by

A30

circumstances for different contaminant sources and for different

geographical areas; may apply to sources outside this State

causing, contributing to, or threatening environmental damage

in Illinois; and may make special provision for alert and abate-

ment standards and procedures respecting occurrences or emer-

gencies of pollution or on other short-term conditions con-

stituting an acute danger to health or to the environment. In

promulgating regulations under this Act, the Board shall take

into account the existing physical conditions, the character of

the area involved, including the character of surrounding land

uses, zoning classifications, the nature of the existing air quality,

or receiving body of water, as the case may be, and the technical

feasibility and economic reasonableness of measuring or reducing

the particular type of pollution. The generality of this grant of

authority shall only be limited by the specifications of particular

classes of regulations elsewhere in this Act.

No charge shall be established or assessed by the Board

or Agency against any person for emission of air contaminants

from any source, for discharge of water contaminants from any

source, for the sale, offer or use of any article, or for disposal

of any refuse.

§ 1028. Proposals for adoption, amendment or repeal of

regulations—Hearing—Notice.] § 28. Any person may pre-

sent written proposals for the adoption, amendment, or repeal

of the Board’s regulations, and the Board may make such pro-

posals on its own motion. If the Board finds that any such

proposal is supported by an adequate statement of reasons, is

accompanied by a petition signed by at least 200 persons, is

not plainly devoid of merit and does not deal with a subject

on which a hearing has been held within the preceding 6 months,

the Board shall schedule a public hearing for consideration of

the proposal. If such proposal is made by the Agency or by

the Institute, the Board shall schedule a public hearing without

regard to the above conditions. The Board may also in its

BO ees, Gd dee UN ee

A31

discretion schedule a public hearing upon any proposal without

regard to the above conditions.

No substantive regulation shall be adopted, amended, or

repealed until after a public hearing within the area of the State

concerned. In the case of state-wide regulations hearings shall

be held in at least two areas. At least 20 days prior to the

scheduled date of the hearing the Board shall give notice of

such hearing by public advertisement in a newspaper of general

circulation in the area of the state concerned of the date, time,

place and purpose of such hearings; give written notice to any

person in the area concerned who has in writing requested notice

of public hearings; and make available to any person upon

request copies of the proposed regulations, together with sum-

maries of the reasons supporting their adoption.

Any public hearing relating to the adoption, amendment, or

repeal of Board regulations under this subsection shall be held

before a qualified hearing officer, who shall be attended by at

least one member of the Board, designated by the Chairman. All

such hearings shall be open to the public, and reasonable oppor-

tunity to be heard with respect to the subject oi the hearing

shall be afforded to any person. All testimony taken before

the Board shal! be recorded stenographically. The transcript

so recorded, and any written submissions to the Board in

relation to such hearings, shall be open to public inspection,

and copies thereof shall be made available to any person

upon payment of the actual cost of reproducing the original.

After such hearing the Board may revise the proposed regula-

tions before adoption in response to sugestions made at the

hearing, without conducting a further hearing on the revisions.

Any person heard or represented at a hearing or requesting

notice shall be given written notice of the action of the Board

with respect to the subject thereof.

No rule or regulation, or amendment or repeal thereof, shall

become effective until a certified copy thereof has been filed with

A32

the Secretary of State, and thereafter as provided in “An Act

concerning administrative rules,” approved June 14, 1951, as

amended.

§ 1029. Review.] §29. Any person adversely affected

or threatened by any rule or regulation of the Board may obtain

a determination of the validity or application of such rule or

regulation by petition for review under Section 41 of this Act.

TiTLe VIII: ENFORCEMENT.

§ 1030. Investigations.] § 30. The Agency shall cause

investigations to be made upon the request of the Board or

upon receipt of information concerning an alleged violation

of this Act or of any rule or regulation promulgated thereunder

and may cause to be made such other investigations as it shall

deem advisable.

§ 1031. Notice of violation—Service—Complaint by third

persons—Burden of proof.] §31.(a). if such investigation

discloses that a violation may exist, the Agency shall issue and

serve upon the person complained against a written notice,

together with a formal complaint, which shall specify the pro-

vision of this law or the rule or regulation under which such

person is said to be in violation, and a statement of the manner

in, and the extent to which such person is said to violate this

law or such rule or regulation and shall require the person so

complained against to answer the charges of such formal com-

plaint at a hearing before the Board at a time not less than 21

days after the date of notice, except as provided in Section 34

of this Act. A copy of such notice and complaint shall also be

sent to any person who has complained to the Agency respecting

the respondent within the six months preceding the date of the

complaint, and to any person in the county in which the offend-

ing activity occurred who has requested notice of enforcement

proceedings; 21 days notice of such hearings shall also be pub-

EEA et at er RA gS

A33

lished in a newspaper of general circulation in such county. The

respondent may file a written answer, and at such hearing the

rules prescribed in Sections 32 and 33 of this Act shall apply.

In the case of actual or threatened acts outside illinois con-

tributing to environmental damage in Illinois, the extra-ter-

ritorial service-of-process provisions of sections 16 and 17 of

the Civil Practice Act sha! apply.

(b) Any person may file with the Board a complaint,

meeting the requirements of subsection (a) of this section,

against any person allegedly violating this Act or any rule or

regulation thereunder. The complainant shall immediately serve

a copy of such complaint upon the person or persons named

therein. Unless the Board determines that such complaint is

duplicitous or frivolous, it shall schedule a hearing and serve

written notice thereof upon the person or persons named therein,

in accord with subsection (a) of this section.

shall be on the Agency or other complainant to show either

that the respondent has caused or threatened to cause air or

water pollution or that the respondent has violated or threatens

to violate any provision of this Act or any rule or regulation of

the Board. If such proof has been made, the burden shall be

on the respondent to show that compliance with the Board’s

regulations would impose an arbitrary or unreasonable hardship.

§ 1032. Hearings.] §32. All hearings under this Title

shall be held before a qualified hearing officer, who may be

attended by at least one member of the Board, designated

by the Chairman. All such hearings shall be open to the

public, and any person may submit written statements to the

Board in connection_with the subject thereof. In addition, the

Board may permit any person to offer oral testimony.

Any party to a hearing under this subsection may be repre-

sented by counsel, may make oral or written argument, offer

testimony, cross-examine witnesses, or take any combination of

A34

such actions. All testimony taken before the Board shall be

recorded stenographically. The transcript so recorded, and any

additional matter accepted for the record, shall be open to

public inspection, and copies thereof shall be made available to

any person upon payment of the actual cost of reproducing the

‘ginal

§ 1033. Orders and determinations.] § 33.(a). After due

consideration of the written and oral statements, the testi-

mony and arguments that shall be submitted at the hearing,

or upon default in appearance of the respondent on return

day specified in the notice, the Board shall issue and enter

such final order, or make such final determination, as it

| shall deem appropriate under the circumstances. In all such

| matters the Board shall file and publish a written opinion

stating the facts and reasons leading to its decision. The Board

shall immediately notify the respondent of such order in

writing by registered mail.

(b) Such order may include a direction to cease and

desist from violations of the Act or of the Board’s rules and

regulations and/or the imposition by the Board of money

penalties in accord with Title XII of this Act. The Board may

also revoke the permit as a penalty for violation. If such

order includes a reasonable delay during which to correct a

violation, the Board may require the posting of sufficient ;

performance bond or other security to assume the correction of

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;

A35

(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 reasonable-

ness of reducing or eliminating the emissions, discharges or

deposits resulting from such pollution source.

TiTLe XI: JUDICIAL REVIEW

§ 1041. Administrative Review Act applicable—Validity of

orders.] §41. Any party to a Board hearing, any person

who filed a complaint on which a hearing was denied, any

person who has been denied a variance or permit under this

Act, and any party adversely affected by a final order or

determination of the Board may obtain judicial review, by

filing a petition for review within thirty-five days after entry

of the order or other final action complained of, pursuant to

the provisions of the “Administrative Review Act,” approved

May 8, 1945, as amended and the rules adopted pursuant

thereto, except but review shall be afforded directly in the

Appellate Court for the District in which the cause of action

arose and not in the Circuit Court. Review of any rule or

regulation promulgated by the Board shall not be limited by

this section but may also be had as provided in Section 29

of this Act.

No challenge to the validity of a Board order shall be made

in any enforcement proceeding under Title XII of this Act

as to any issue that could have been raised in a timely petition

for review under this Section.

TiTLe XII: PENALTIES

§ 1042. Violation of Act, regulation, determination or order

—Liability for value of fish or aquatic life destroyed—Actions

by State’s Attorney or Attorney General.] § 42. Any person

who violates any provision of this Act, or any regulation adopted

A36

by the Board, or who violates any determination or order of

the Board pursuant to this Act, shall be liable to a penalty of

not to exceed $10,000 for said violation and an additional

penalty of not to exceed $1,000 for each day during which

violation continues, which may be recovered in a civil action,

and such person may be enjoined from continuing such viola-

tion as hereinafter provided. Any person who violates this Act,

or an order or other determination of the Board under this

Act and causes the death of fish or aquatic life shall, in addition

to the other penalties provided by this Act, be liable to pay to

the State an additional sum for the reasonable value of the fish

or aquatic life destroyed. Any money so recovered shall be

placed in the Game and Fish Fund in the State Treasury.

The State’s Attorney of the county in which the violation

occurred, or the Attorney General shall bring such actions in

the name of the people of the State of Illinois.

§ 1043. Injunctions.) § 43. In circumstances of extreme

emergency creating conditions of immediate danger to the

public health, the State’s Attorney or Attorney General may

institute a civil action for an immediate injunction to halt any

discharge or other activity causing the danger. The court may

issue an ex parte order and shall schedule a hearing on the

matter not later than 3 working days from the date of in-

junc

§ 1044. Violation of act or regulations—Misdemeanors—

duty to enforce.] §44. It shall be a misdemeanor to violate

this Act or regulations thereunder, or knowingly to submit any

false information under this Act or regulations adopted there-

under. It shall be the duty of all state and local law-enforcement

Officers to enforce such Act and regulations and all such officers

shal] have authority to issue citations for such violations.

A37

§ 1045. Civil and criminal remedies not impaired by Act

—Construction with Conservation of Oil and Gas etc. Act—

Actions by persons adversely affected—Cost and attorney’s fees. ]

§ 45. (a) No existing civil or criminal remedy for any wrong-

ful action shall be excluded or impaired by this Act. Nothing

in this Act shall be construed to limit or supersede the provisions

of “An Act in relatioa to oil, gas, coal and other surface and

underground resources and to repeal an Act herein named”, filed

July 29, 1941, as amended, and the powers therein granted to”

prevent the intrusion of water into oil, gas or coal strata and

to prevent the pollution of fresh water supplies by oil, gas or

salt water or oil field wastes, except that water quality standards

as set forth by the Pollution Control Board apply to and are

effective within the areas covered by and affected by permits

issued by the Department of Mines and Minerals. Providing

that if the Department of Mines and Minerals fails to act upon —

any complaint within a period of ten working days following

the receipt of said complaint by the Department, the Environ-

mental Protection Agency may proceed under the provisions of

this Act.

(b) Any person adversely affected in fact by a violation

of this Act or of regulations adopted thereunder may sue for

injunctive relief against such violation. However, no action

shall be brought under this Section until 30 days after the

plaintiff has been denied relief by the Board under paragraph

(b) of Section 31 of this Act. The prevailing party shall be

awarded costs and reasonable attoraeys’ fees.

81049. Transitional provisions—Compliance with rules

and regulations as prima facie defense.] § 49.(a) Until the

Board and the Agency established by this Act has been ap-

pointed and taken office, the functions assigned to the Board

and to the Agency shall be performed by the members of the

existing Air Pollution Control Board and Sanitary Water Board

and by the Department of Public Health.

A38

(b) All proceedings respecting acts done before the ef-

fective date of this Act shall’ be determined in accordance with

the law and regulations in force at the time such acts occurred.

All proceedings instituted for actions taken after the effective

‘date of this Act shall be governed by this Act.

Board, the Sanitary Water Board, or the Departwent of

Public Health relating to subjects embraced within this Act

shall remain in full force and effect until repealed, amended,

or superseded by regulations under this Act.

(d) AM onders catered, permits of certifications granted,

and vending proceedings instituted by the Air Pollution Con-

trol Board, the Sanitary Water Board, or the Department of

Public Health relating to subjects embraced within this Act

remain in full force and effect until superseded by actions taken

under this Act.

(e) Compliance with the tules and regulations promul-

gated by the Board under this Act shall constitute a prima facie

defense to any action, legal, equitable, or criminal, or an ad-

ministrative proceeding for a violation of this Act, brought by

any person.

* + \ * * ; s

§ 1051. Severability of unconstitutional provisions. ]

§ 51. If any section, subsection, sentence or clause of this

Act shall be adjudged unconstitutional. such adjudication shall

not affect the validity of the Act as a whole or of.any section,

subsection, sentence or clause thereof not adjudged uncon-

_ $titutional.

A39

APPENDIX D.

ILLINOIS POLLUTION CONTROL BOARD

ENVIRONMENTAL PROTECTION )

AGENCY,

Complainant-Respondent,

REVEREND Louis HEMMERICH, et al.,

: No. 71-4

Complainant-Respondent, : No. 71-33

vs. No. 72-85

Lioyp A. Fry ROOFING COMPANY,

a Delaware corporation,

Respondent-Petitioner. )

OPINION OF THE BoARD (by Mr. Lawton):

Petition for variance from the particulate regulations of the

Rules and Regulations Governing the Control of Air Pollution

was filed by Lloyd A. Fry Roofing Company (Fry), received by

the Board on January 20, 1971. The petition describes the

nature of the company’s manufacturing process and the general

nature of its emissions alleged to be at a rate of nine pounds per

hour. The variance requests continuance of particulate emis-

sions in excess of regulation limits for a period of “at least six

months awaiting the determination of the route of the new south-

west expressway, plus the twenty weeks time to fabricate and

install the air pollution systems.” The substance of the request is

that petitioner fears the routing of the expressway might require

acquisition of its property and that petitioner does not want to

incur the cost of abatement equipment installation unless the

continuity of its operation at its present location is assured. The

A40

Board authorized hearing on this petition. On February 21,

1971, a citizen’s complaint was filed with the Board by Louis

Hemmerich and four other individuals all members of SORE

(Save Our Resources and Environment), against Fry alleging:

“that Respondent Fry did, on February 17, 1971, cause

and allow the discharge and emission into the environment

of contaminants so as to cause or tend to cause air pollution

in Illinois, and further that Respondent Fry has engaged

and continues to engage in a pattern of conduct such as to

cause and allow the discharge and emission into the environ-

ment of contaminants sc as to cause or tend to cause air

pollution in Illinois.”

Hearing was authorized on this complaint by which order of

the Board was consolidated with Fry’s variance petition for pur-

poses of hearing.

At the initial hearing on the consolidated petition and com-

plaint, Fry declined to introduce evidence in support of its

variance petition but stated, through its counsel, “that the plans

[for construction and installation of emission control equipment]

will be off the drawing board and the company is going to pro-

ceed and that is what is in the record as far as Fry is concerned

as far as the proceedings are concerned”. (R. 18.) No details of

this program, either as to the nature of the abatement equipment

proposed to be installed or the time schedule for its installation

appear on the record nor does any motion appear to have been

made by Fry to withdraw its variance petition. On this state of

the record, the Board has no alternative but to deny the variance

as petitioner has failed to establish the statutory requisites for

its allowance. Section 35, Environmental Protection Act.

IT IS THE ORDER Of the Board that the petition for variance

filed by Lioyd A. Fry Roofing Company be and the same is

hereby denied.

The record of the proceeding, concluded on August 12, 1971

after six hearings, the transcript of which contains 906 pages,

clearly establishes that Fry has caused air pollution as defined in

A4l

the Environmental Protection Act, Section 3(b) and has violated

Section 9(a) of the Act, has emitted particulates into the atmos-

phere in an amount exceeding the limits set forth in the Rules

and Regulations Governing the Control of Air Pollution, Section

3-3.111, which violations have continued since 1968 and are

inherent in its daily operation, and has failed to file a letter of

intent and an Air Contaminant Emission Reduction Program

(Acerp) as required by the regulations, Sections 2-2.3 and 2-3.4.

_ Fry is ordered to cease and desist the emissions of particulates

into the atmosphere in violation of the Environmental Protection

Act and the Rules and Regulations Governing the Control of Air

Pollution. Penalty is assessed against Fry in the amount of

$50,000.00 for the violations aforesaid. Further hearing will be

held in this matter as hereinafter provided.

Lloyd A. Fry Roofing Company is one of the world’s largest

manufacturers of asphalt roofing, operating 24 plants in various

parts of the United States. The facility involved in the present

proceeding is located in Summit, Illinois, where it has been

engaged in production of asphalt roofing and allied products for

many years. The Vollney Felt Mill appears to be a subsidiary or

division of Fry and occupies the same premises, supplying the

felt used in the operation. The Trumbell Asphalt Company,

while purportedly being a separate entity in no way connected

with Fry, is located contiguous to the Fry plant in Summit as it

is in other parts of the country where Fry plants are located, and

supplies the asphalt used in Fry’s manufacturing process.

The recommendation of the Environmenial Protection Agency

filed in the variance proceeding, describes the manufacturing

process. Since nothing has been introduced to refute these allega-

tions, these statements will be accepted as true. Lloyd A. Fry, Jr.

did testify to certain aspects of the operation which testimony

appears consistent with the Agency’s assertion. The manufactur-

ing process may be briefly described as follows:

A42

Woodchips are converted into fine wood flour which is com-

bined with rags and cardboard scraps and placed in water-

bearing tanks where a slurry is formed. The slurry, in turn, is

processed through mashers after which the slurry is pumped into

chests where specific thicknesses of the solid material are re-

moved by a belt. This product constitutes the wet felt which is

further processed through a battery of steam-heated drying

rollers. After drying, the felt is processed through an asphalt

saturator where the heated asphalt is absorbéd by the felt. Coat-

ing is then applied and colored granules added. The finished

product is then cooled, cut into shingles or wound in rolls.

Approximately 4.7 tons of asphalt are consumed in the process.

The Agency alleges that 165,000 gallons of No. 5 fuel oil of

1.5% sulphur content are consumed annually, and that 530

pounds of particulates and 106 pounds of SO? are emitted daily,

resulting in emissions of 63.6 tons of particulates and 12.7 tons

of SO? annually. The principal sources of emissions causing air

pollution are the saturators. There is no control device of any

sort located on the stacks connected with these units. No Air

Contaminant Emission Reduction Program was ever submitted

to the Air Pollution Control Board although Fry has been in

constant operation at its present location since prior to 1967

when this requirement was enacted as a regulation of the Air

Pollution Control Board.

On June 20, 1968, C. W. Klassen, Technical Secretary of the

Illinois Air Pollution Control Board wrote (Environmental Pro-

tection Agency Exhibit No. 2) to Francis Nelson, Chief Engi-

neer of Fry, as follows:

“Dear Mr. Nelson:

This is to confirm the conversation between you and our

Engineer, Mr. William Zenisek, during his visit to your

Plant on June 11, 1968.

The information which you furnished on the Asphalt

Saturators has been reviewed with the following conclusions:

1. Process Weight Rate

6250 lbs/hour (Saturant)

sats.

A43

2. Allowable Emission Rate

8.8 lbs/hour

3. Estimated Emission Rate

65 lbs/hour

“(Compilation of Air Pollutant Emission Factors.”

(U. S. Public Health Service Publication No.

99-AP-42, page 33.)

Since the estimated emission rate exceeds the allowable

emission rate, an Air Contaminant Emission Reduction

Program must be filed for this source operation in com-

pliance with the State Regulations, as soon as possible, as

the due date for these programs was April 15, 1968.

We shall appreciate learning of your plans in this matter.

If our Technical Staff can assist you, please feel free to

No Air Contaminant Emission Reduction Program was

ever submitted by Fry to the Air Pollution Control Board or

to this Board. Violation of this requirement is manifest. Like-

wise, particulate smissions in excess of those allowable based

on the process weight are clearly demonstrated by the record.

While the estimated emissions are 65 pounds per hour (R. 719,

753-60), it should be noted that the Environmental Protec-

tion Agency Exhibit No. 3, show emission rates ranging from

20 to 70 pounds per hour. However, even assuming the lowest

figure, it is evident that Fry’s emissions would be two and one-

half times those permitted by the regulations. We have held

(EPA v. Lindgren Foundry Co., 370-1) that standard emis-

sion factors may be used as a basis for determining violation

in the absence of an affirmative showing that the specific

pollution source involved or the circumstances relating to its

operation are such as to make it substantially different from

the elements considered in the standard emission factor com-

putation. (See EPA v. Norfolk & Western Railway, +70-41.)

The record in this case contains no evidence to call for a distinc-

tion, and, accordingly, we are justified in placing reliance on

these figures. (See EPA Exhibit No. 1,. Page 33.)

A44

Even using the figures contained in the Air Pollution En-

gineering Manual, EPA Exhibit No. 3, showing a range of

20 to 70 pounds per hour (P. 378), a violation is clearly

demonstrated. From the foregoing, it is evident that Fry has

violated the regulations in its failure to file an Air Con-

taminant Emission Reduction Program and in failing to abate

the emissions generated by its saturators, which are demon- /

strably in excess of the allowable emission limits of 8.8 pounds {

per hour. Fry operates today as it did in 1968 when these |

circumstances were originally brought to its attention. While i

the failure to file an Acerp and the continuation of unabated

emissions in violation of the relevant regulations would be

sufficient basis for imposing a substantial fine, it is also neces-

sary to ascertain whether Fry’s operation constitutes air pollu-

tion as defined in the statute.

In order to make such finding, it is necessary to go beyond

the technical violation implicit in exceeding regulatory num-

bers and make a determination of whether Fry’s operation

substantially interfered with the enjoyment of life and property

in the community. The record amply supports such finding.

The record is replete with testimony by witnesses residing in the

community who have suffered as a consequence of Fry’s con-

tinuing indifference to their well-being.

Numerous witnesses testified to having observed heavy smoke

emanating from Fry’s stacks and at the same time, being acutely

aware of the odors caused by these emissions. Witnesses testi-

fied to the unique nature of the asphalt odor and indicated j

their capability of distinguishing this particular smell from those /

caused by the sludge ponds of the Sanitary District, emissions

from the Corn Products facility and odors characteristic of

Diesel truck exhaust. The observations were frequent during

the years 1970 and 1971, both up to and during the period of

the trial. The emissions caused headache, nausea, burning of

the eyes, nose and throat, coughing, upset stomach, and in many

instances, foreclosed outdoor activities. Typical is the statement

222

A45

of James S. Johnston, (R. 189). The smoke and odor “makes

you sick . . . it makes your eyes water, parches your throat and

you get sick from it.” Observations were made by this witness

during September and October, 1970 on four occasions, and

four dates during 1971. Mary Younker testified to having ob-

served emissions over a period of one-half year and stated that

the odors filled her home and gave her headaches and nausea.

She made observations on at least three occasions in 1970 and

nine occasions in 1971.

Affidavits were introduced into evidence by the members of

SORE, which further confirmed the severe burden Fry’s opera-

tion has imposed on the neighborhood. In addition to the specific

February 17, 1971 date set forth in the complaint, numerous

other dates of observation and nuisance are observed. These

affidavits were the subject of intensive cross-examination by

Fry’s counsel and all affiants were present at the hearing. We

find no error in the admission of these affidavits, and feel that

the testimony of these witnesses, both written and oral, amply

support a finding of severe nuisance and air pollution as defined

in the statute.

In addition to the personal distress created by Fry's opera-

tion, these witnesses testified to the inability to conduct Little

League baseball and football in contiguous areas as a con-

sequence of Fry’s emissions. Typical of the affidavits is that of

Katherine B. Massa:

“She was, on Wednesday, February 17, 1971, at Walsh

School, one block north of Fry Roofing on Archer Roard,

and observed the following:

The temperature was 20-30° and the sky was partly

cloudy. The wind was from the southwest.

Gray smoke was coming from the stacks on Fry Roofing

Co. as pictured in Complainants’ Exhibit No. 10.

The odor of the smoke was exceptionally noxious, a

heavy, tarry smell. The smoke and odor affected her and

caused her eyes to tear and sting and caused her throat

A46

to burn. She felt she would gag because of the sick feeling

in her stomach.

She can recognize the smell of exhaust from diesel

operated trucks, the odor emitted from Corn Products

Corporation, and the odors from the sludge ponds and

Sanitary District plant, all of which are different and dis-

tinct from the characteristic obnoxious odor of Fry Roofing.

She was again in the vicinity of Fry Roofing on Wednes-

day, February 24, 1971, at approximately 10:00 A. M.,

and 2:00 P. M. at which times she observed the following:

The wind was from the south.

Odor and smoke, of the same description as in paragraph

3.b. and 3.c. above were coming from the Fry plant.

On Wednesday March 24, 1971, at 10:00 A. M. and

2:00 P. M. and on March 25, 1971, at 10:00 A. M. and

2:00 P. M. she again saw smoke and smelled odor of the

same description as that described in paragraphs 3.b and

3.c above.

On Friday, April 16, 1971, she was in the vicinity of

Summit Park, which is immediately north of and adjoining

the Fry Co. property, and observed the following:

Smoke was coming out of the stacks located on the

Fry building, pictured in Complainants’ Exhibit No. 10.

The smoke had the characteristic Fry odor.

When she walked into the park, she was enveloped in

the smoke, as if by fog, which covered the entire basin

of the park area.

She experienced the following physical effects: She was

sickened, her stomach was turned, she had to cough, her

eyes and throat burned, and she was forced to leave the

park.”

On the state of the record, it is abundantly clear that Fry’s

operation during the years 1970 and 1971 and continuing down

to the present, have caused a severe burden and nuisance on

the community. Our order will direct Fry to cease its opera-

tion until its pollutional discharges have been abated so as to

comply with the regulations. If Fry had pursued the program

A47

of emission control it represented it would follow at the first

hearing in this case, it would now undoubtedly be in compliance

with the regulations and the nuisance impact would be sub-

stantially lessened. The serious burden placed on the community

by Fry’s uncontrolled operation necessitates this course of action.

IT IS THE ORDER of the Pollution Control Board:

1. That Lloyd A. Fry Roofing Company cease and desist

emissions from its Summit operation until such time

as air pollution abatement equipment has been in-

stalled and is properly operating, which equipment

shall bring Fry’s emissions within the particulate regu-

lations, as set forth in the Rules and Regulations Gov-

erning the Control of Air Pollution, Sections 2-2.11

and 3-3.111.

2. Fry shall advise this Board when such installation has

been completed. This proceeding shall remain open

and the Board shall conduct a further hearing not

less than 30 nor more than 60 days after notice of the

installation of said air pollution abatement equipment

in order to ascertain whether odors being emitted by

Fry’s operation have been abated as a consequence of

the air pollution control equipment installed. Such

further orders shall be issued by this Board as are

appropriate in consideration of the hearings.

3. Penalty in the amount of $50,000.00 is assessed

against Fry for violations of the particulate emissions

provisions of the Rules and Regulations Governing the

Control of Air Pollution, for failure to file a Letter

of Intent and Air Contaminant Emission Reduction

Program as required by the Rules and Regulations

Governing the Control of Air Pollution, Sections 2-2.3

and 2-2.4, and for causing air pollution as defined

within the Environmental Protection Act, Section 9.a.

1, Regina E. Ryan, Clerk of the Board, certify that the Pollu-

tion Control Board adopted the above Opinion this 14 day of

October, 1971.

/s/ Reomna E. RYAN.

ee =

ILLINOIS POLLUTION CONTROL BOARD

ENVIRONMENTAL PROTECTION

AGENCY, .

Complainant-Respondent,

REVEREND Louis HEMMERICH, et al., No. 71-4

Complainant-Respondent, q No. 71-33

ee No. 72-85

ee Te

Lioyp A. Fry ROOFING COMPANY,

a Delaware corporation,

Respondent-Petitioner. |

SUPPLEMENTAL OPINION AND ORDER OF THE BOARD (by

Mr. Lawton):

On October 14, 1971, we entered an order in the above con-

solidated proceeding as follows:

IT IS THE ORDER OF THE POLLUTION CONTROL BOARD:

1. That Lloyd A. Fry Roofing Company cease and desist

emissions from its Summit operation until such time as

air pollution abatement equipment has been installed

and is properly operating, which equipment shaii bring

Fry’s emissions within the particuate regulations, as set

forth in the Rules and Regulations Governing the

Control of Air Pollution, Sections 2-2.11 and 3-3.111.

2. Fry shall advise this Board when such installation has

been completed. This proceeding shall remain open and

the Board shall conduct a further hearing not less than

30 nor more than 60 days after notice of the installation

of said air pollution abatement equipment in order to

ascertain whether odors being emitted by Fry's opera-

tion have been abated as a consequence of the air

od nee edo Bd ater ee de:

TR tend | ede et be

+ Ameen =

A49

ere ycentn 9-1 tivarcpeatleyenticcro

in consideration of the hearings.

gram as required by the Rules and Regulations Govern-

ing the Control of Air Pollution, Sections 2-2.3 and

On November 12, 1971, we received from respondent, Lloyd A.

Fry Roofing Company, a Petition for Rehearing and a separate

Motion to Stay the Order and Decision of the Board of October

14, 1971. The Petition for Rehearing is denied. The Motion to

Stay the Order of the Board is granted with respect to the assess-

ment of the penalty subject to the conditions hereinafter pro-

vided, and is denied in all other respects.

The Petition for Rehearing is premised on the failure of the

Board to enter an Order establishing a briefing schedule and

permitting oral argument, and on its failure to enter a separate

Order on complainant's Motion to Reopen the case. However, it

is manifest that the October 14, 1971 Order of the Board is dis-

positive of all issues raised in Fry’s Motion. The Board chose not

to await the filing of briefs for the rendering of its decision, but

took the case on the record. Furthermore, since no Brief was

filed by complainant, there was no occasion for respondent to

file an Answering Brief. Likewise, the Board chose to proceed

without hearing oral argument.

Nor is respondent in any position to complain because of the

Board's failure to reopen complainant's case. Indeed, respondent

filed an Answer to the Motion to Reopen the complainant's case

praying that the Motion be denied. In this respect respondent has

prevailed and cannot now challenge the action of the Board in

compliance with its prayer.

A50

Respondent's Motion to Stay the October 14, 1971 Order of

the Board was filed pursuant to Supreme Court Rule 335 which

governs procedure where judicial review of our proceedings is

sought. While we do not accept the legal argument of respondent

in support of its Motion, we do stay our Order with regard to

the assessment of penalty on condition that a bond to secure

payment of the penalty in the event of an adverse judicial deci-

sion is filed with the Environmental Protection Agency within 15

days after receipt of this Order. As we said in Spartan Printing

Company v. EPA, PCB 71-19, dated October 14, 1971:

“, . . [W]e see no point in requiring the money to be paid

now if it may have to be repaid after judicial review. The

purposes of the order will be as well served by hater pay-

ment if the appeal fails.”

However, we decline to stay the other portions of our Order.

If in fact respondent is proceeding with an Air Pollution Abate-

ment Program and the installation of suitable equipment as

alleged, and such equipment brings respondent's operation into

compliance with the law, it has nothing to fear from either the

Board or the Environmental Protection Agency by having com-

plied with our Order. Further delay in this regard would only

continue the obnoxious burden to the community caused by

respondent which was the basis of the original Order of the Board.

IT IS THE ORDER OF THE POLLUTION CONTROL BOARD:

1. The Petition of Lloyd A. Fry Roofing Company for

Rehearing is denied.

2. The Motion of Lloyd A. Fry Roofing Company to Stay

the Order and Decision of the Pollution Control Board

of October 14, 1971, is granted as to the penalty pro-

visions of the Order (4 3) on condition that a bond to

secure payment of the penalty in the event of an adverse

judicial decision is filed with the Environmental Protec-

tion Agency within 15 days after receipt of this Order,

and is denied im all other respects.

—s

AS1

I, Christian Moffett, Acting Clerk of the Illinois Pollution

Control Board, certify that the Board adopted the above Opinion

and Order on this 15th day of November, 1971.

/s/ CHRISTIAN L. MoFFET,

Christian Moffett,

Acting Clerk.

A52

APPENDIX F.

EXCERPT FROM BOARD HEARING.

R1038 Mr. Keenan: “. . . I believe the Board is about to go

on vacation for a couple of weeks, and I would like to

reserve the right to submit a brief within a reasonably short

period of time, but longer than 10 days because of a heavy

litigation load.” .

Hearing Officer Freeman: “Why don’t you do it within

a reasonable time after you receive a copy of the tran-

script.” ,

R1039 Mr. Weitzenfeld: “How long after he submits his brief

do I get to submit my replies?”

Hearing Officer Freeman: “What do you need?”

‘Mr. Weitzenfeld: “Whatever you set.”

Mr. Keenan: “I will get it out in ten days after the

transcript is available.”

Hearing Officer Freeman: “Why don’t you take ten days

to answer.”

AS3

APPENDIX G

EXCERPTS FROM ILLINOIS POLLUTION CONTROL

BOARD PROCEDURAL RULES (1970)

308 Motions and Answer.

315

(f) The Hearing Officer shall rvle upon all motions,

pap Ad seage emp staging vor. dyna dp 97

on the merits, or for failure to state a claim,

ot tes eek ft lain, or os tot Ge oe

fense for insufficiency or want of proof. The Hearing Of-

ficer shall refer any such motion to the Board. The Board

may decide such motions at any time, but its inaction shall

not stay proceedings nor preclude the Board from grant-

ing or denying the motion at a later time.

Authority of Hearing Officer. The Hearing Officer shall

have the duty to conduct a fair hearing, to take all neces-

sary action to avoid delay, to maintain order, and to en-

sure development of a clear and complete record. He shall

have all powers necessary to these ends, including (but

not limited to) the power to:

(1) administer oaths and affirmations;

(2) issue discovery orders;

(3) rule upon objections to subpoenas and discovery

(4) rule upon offers of proof and receive evidence, sub-

ject to Rule 320;

(5) regulate the course of the hearings and the conduct

of the parties and their counsel therein;

(6) hold pre-hearing converences [sic] for settlement,

simplification of the issues, or any other proper purposes;

(7) consider and rule upon, as justice may require,

motions appropriate to an adjudicative proceeding, subject

to Rule 308;

(8) interrogate witnesses.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.