Reply Brief — Lloyd A. Fry Roofing Co. v. Illinois Pollution Control Board

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Supreme Court of the United-‘States: —

Octoszr Term, 1974

No. 74-786

LLOYD A. FRY ROOFING COMPANY, a corporation,

Petitioner,

vs.

ILLINOIS POLLUTION CONTROL BOARD, ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY, THE

COUNTY OF COOK, a body politic, VILLAGE OF

SUMMIT, REV. LOUIS HEMMERICH et al.,

Respondciuls.

REPLY TO PETITION FOR

WRIT OF CERTIORARI

WILLIAM J. SCOTT,

Attorney General, State of Ilinois,

Attorney for Illinois Pollution

Control Board and Illinois

Environmental Protection Agency.

Frep F. Henrzoc,

First Assistant Attorney General

Ricnarp W. Cossy,

Dennis R. Fierps,

Assistant Attorneys General,

188 West Randolph Street—Suite 2315,

Chicago, Illinois 60601—-(312) 793-2491,

Of Counsel.

Printed by Authority of the State of [ilinois <gmses

FEB 28 1975

TABLE OF CITATIONS

CasEs :

City of Monmouth v. Pollution Control Board, 57 Ill.

2d 482, 313 N.E, 2d 161 (1974) ..........-+++-- 4, 6, 8

Incinerator, Inc. v. Pollution Control Board, —— I.

24 ——, —— N.E. 2d —— (No. 46369, November

BF, WIG). cccccccnrcescevscsvcsvcvnscesesuesveess 4, 6

Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct. 2908

CROGEY on cns snccncassccdcnctecpuseniuveescunvonas 5

Jaffe v. Cruttenden, 412 Ill, 606, 107 N.E. 2d 715

CMO ccccccevenscvcsccosenecessesonsedescteves 5

Department of Mental Hygiene of California v. Krich-....

ner, 380 U.S. 194, 85 S. Ct. 871 (1965) ............ 5

Asbury Hospital v. Cass County, 326 U.S. 207, 66 S.

OL G1 (IDEB) oc ccccccvcsivcescocccsencecceeecess 5

Cameron v. Johnson, 390 U.S. 611, 88 S. Ct. 1335

+ | PPPrrrrerrrrrrrT Tr rrr rr rerri irri rrr rere 5, 6

City of Waukegan v. Pollution Control Board, 57 Ul.

2d 170, 311 N.E. 2d 146 (1974) .........scceceee 7, 8

Helvering v, Mitchell, 3203 TS. 630, 58 S. Ct, 644

(19DB) . cccvsccssecsevcacsevaccvecvcccvcscevecss 7, 8

Gooding v. Wilson, 405 U.S, 518, 92 S. Ct. 1103 (1972) 9

Morgan v. United States, 298 U.S. 468, 56 S. Ct. 906

(19088). cccccccccccccccccsccccccccccocccocoeccce 9

Estate of Varian v. Commissioner of Internal Reve-

nue, 396 F. 2d 753 (9th Cir, 1968), cert. den. 393

U.S. 962, 89 S. Ct. 402 ........ scuseauaceseniuaws 9

ii.

Morgan v. United States, 304 US. 1, 58 8S. Ct. 773

ERE) evdesdedecnetavseesbeasssdeccesdecesses ar 9

Inuunois StratTute:

Illinois Environmental Protection Act, IL Rev. Stat.,

FET, FE Bi GOR voce vvcvcsccces 4, 5, 6, 7, 8, 9

™N THE

Supreme Court of the United States

Octoser TreEm, 1974

No. 74-786

LLOYD A. FRY ROOFING COMPANY, a corporation,

Petitioner,

vs.

ILLINOIS POLLUTION CONTROL BOARD, ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY, THE

COUNTY OF COOK, a body politic, VILLAGE OF

SUMMIT, REV. LOUIS HEMMERICH et al,

Respondents.

REPLY TO PETITION FOR

WRIT OF CERTIORARI

ADDITIONAL STATUTES INVOLVED

Ill. Rev. Stat., ch. 11144, § 1033(c), in pertinent part:

In making its orders and determinations, the Board

shall take into consideration all the facts and circum-

stances bearing upon the reasonableness of the emis-

sions, discharges, or deposits involved including, but

not limited to:

1__‘the character and degree of injury to, or interfer-

ence with the protection of the health, general welfare

and physical property of the people;

2 the social and economic value of the pollution

source ;

3 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 in-

volved; and

4 the technical practicability and economic reason-

ableness of reducing or eliminating the emissions, dis-

charges or deposits resulting from such pollution

source.

ADDITIONAL STATEMENT OF THE CASE

The Complaint filed by the Illinois Environmental] Pro-

tection Agency before the Illinois Pollution Control Board

alleged, in part, that Fry Roofing Company violated the

prohibition against air pollution contained in Section 9(a)

of the Illinois Environmental Protection Act. In its Opin-

ion and Order, the Board stated that it is necessary, when

reviewing the record before it, to determine ‘‘whether Fry’s

operation substantially interfered with the enjoyment of

life and property in the community”’. The Board then dis-

cussed the evidence contained in the record and found that

Fry’s operation ‘‘caused a severe burden and nuisance on

the community’’.

The Illinois Appellate Court specifically addressed it-

self to the issue of whether the Board applied the proper

statutory standard when reviewing the evidence in the rec-

ord. The Appellate Court noted that one definition of air

pollution, contained in Section 3(b) of the Act, refers to

causing an unreasonable interference with the enjoyment

of life or property. Following a discussion of applicable

case law and of the evidence in the record, the Appellate

Court construed the Opinion and Order of the Pollution

Control Board as properly finding that Fry had caused an

unreasonable interference with the enjoyment of life and

property, and, therefore, that Fry violated the prohibition

against air pollution contained in Section 9(a) of the Act.

ARGUMENT

I.

THE PROHIBITION AGAINST AIR POLLUTION, CON-

TAINED IN SECTION 9(2) OF THE ILLINOIS ENVI-

RONMENTAL PROTECTION ACT, IS DEFINITE

AND CERTAIN SO AS TO ENABLE CITIZENS TO

UNDERSTAND WHAT CONDUCT IS PROSCRIBED.

The Illinois Appellate Court affirmed that portion of the

Dilinois Pollution Contro] Board’s decision finding that

Fry caused air pollution im violation of Section 9(a) of

the Act. Specifically, the Appellate Court interpreted the

Board’s decision as finding that Fry had caused an umnrea-

sonable interference with the enjoyment of life and prop-

erty, and affirmed that decision. The above statutory defi-

nition of air pollution, as interpreted by Illinois courts, is

well within this Court’s requirements for a valid statute.

The Illinois Supreme Court has interpreted Section 9(a)

of the Act as establishing a statutory prohibition against

‘air pollution’’, independent of the existence or violation

of regulations or standards adopted by the Illinois Pollu-

tion Control Board, City of Monmouth v. Pollution Control

Board, 57 Til. 2d 482, 313 N.E. 2d 161 (1974). The Illinois

Supreme Court has also interpreted the definition of air

pollution contained in Section 3(b) of the Act as com-

prising two distinct categories of ‘‘air pollution’’. The first

category is the presence in the atmosphere of contami-

nants injurious to human, plant or animal life, to health,

or to property. The second eategory is the presence in the

atmosphere of contaminants which unreasonably interfere

with the enjoyment of life or property. Incinerator, Inc. v.

Pollution Control Board, ——Ill. 2d——, ——N.E. 2d-——

(No. 46369, November 27, 1974).

5

The Illinois Appellate Court and the Illinois Pollution

Control Board found that Fry violated Section 9(a) of the

Act by causing an unreasonable interference with the en-

joyment of life and property. Fry was not found to have

violated Section 9(a) of the Act by ‘‘threatening’’, or ‘‘al-

lowing’’, or ‘‘tending to cause air pollution’’ or ‘‘causing

air pollution in combination with contaminants from other

sources’’. The constitutionality of these latter provisions

was therefore not before the Illinois Appellate Court for

decision. Breoadrick v. Oklahoma, 413 U.S. 601, 610, 93

S. Ct. 2908, 2915 (1973); Jaffe v. Cruttenden, 412 Ill. 606,

613, 107 N.E. 2d 715, 720 (1952). Fry, therefore, may not

claim the exercise of jurisdiction by this Court for the

purpose of having the constitutionality of provisions re-

viewed which were not involved in the Illinois court pro-

ceedings. Department of Mental Hygiene of California v.

Kirchner, 380 U.S. 194, 197, 85 8S. Ct. 871, 873 (1965).

Additionally, no Illinois court has yet addressed itself to

the construction or constitutionality of those provisions.

This Court has refused to review state statutes under such

circumstances. Asbury Hospital v. Cass County, 326 U.S.

207, 215, 66 S. Ct. 1, 65 (1945).

Fry’s primary objection to the air pollution prohibi-

tion is, therefore, that it prohibits the emission of con-

taminants which unreasonably interfere with the enjoyment

of life or property. Fry erroneously argues that no per-

son of common intelligence could possibly guide his con-

duct so as to comply with this standard. A decision by this

Court reviewing similar statutory language has held that

such a statute clearly and precisely delineates the required

conduct in words of common understanding. In Cameron vy.

Johnson, 390 U.S. 611, 88 S. Ct. 1335 (1968), petitioner

sought a judgment declaring the Mississippi Anti-Picket-

ing Statute unconstitutional on vagueness grounds. That

statute provided in pertinent part:

6

It shall be unlawful for any person . . . to engage in

picketing or mass demonstrations in such a manner

as to obstruct or unreasonably interfere with free in-

gress or egress to and from any public premises... .

[emphasis added] .

Against the same challenge that Fry makes here, this

Court upheld the statutory provision, stating, at 390 U.S.

616, that

... the statute prohibits only ‘‘picketing’”’ . . . in such

a manner as to obstruct or unreasonably interfere with

free ingress or egress to and from any... county... —

courthouses ... .The terms ‘‘obstruct’’ and unreason-

ably interfere’’ plainly require no ‘‘guess(ing) at

(their) meaning. Appellants focus on the word ‘‘un-

reasonably’’. [footnote omitted] It is a widely used

and well understood word and clearly so when juxta-

with ‘‘obstruct’’ and ‘‘interfere’’. We conclude

that the statute clearly and precisely delineates its

reach in words of common understanding. [footnote

omitted]

The statute ir Cameron involved no guidelines or stand-

ards other than those provided by the common under-

standing of the phrase ‘‘unreasonably interfere’? when

taken in its statutory context. While these guidelines, by

themselves, are sufficiently precise, the Illinois Supreme

Court has interpreted the Illinois Environmental Protec-

tion Act as containing additional statutory guidelines and

standards. The [ilinois Supreme Court held that the un-

reasonableness of the interference with the enjoyment of

life or property is to be determined with reference to those

specific factors enumerated in Section 33(c) of the Act.

Incinerator, Inc. v. Pollution Control Board, —Ill. 24—,

——N.E. 2d —— (No. 46369, November 27, 1974) ; City of

Monmouth v. Pollution Control Board, 57 Tl. 2d 482, 313

7

N.E. 2d 161 (1974) ; City of Waukegan v. Pollution Control

Board, 57 Ill 2d 170, 311 N.E. 2d 146 (1974). Such a

statutory construction eliminates any question of consti-

tutional infirmity.

II.

PROCEEDINGS BEFORE THE ILLINOIS POLLUTION

CONTROL BOARD ARE CIVIL IN NATURE.

Section 42 of the Illinois Environmental Protection Act

specifies sanctions which the Illinois Pollution Control

Board may impose for violations of the Act. Fry contends

that the sanctions authorized by Section 42 are criminal

in nature. Bevause the State of Illinois may bring crimi-

nal actions for violations of the Act in Illinois trial courts,

Fry contends that the State is permitted by the Act to

arbitrarily choose to initiate criminal proceedings either

before the Pollution Control Board or in the State courts.

Therefore, Fry argues, a respondent before the Illinois

Pollution Control Board is unconstitutionally denied the

procedural guarantees to which a defendant in a criminal

action is entitled. Decisions by the Illinois Supreme Court

interpreting the Illinois Environmental Protection Act in-

validate such assumptions and foreclose Fry’s contention

that the Act is unconstitutional.

Both civil and criminal sanctions may be imposed in

respect to the same act or omissiov.. It is only when the

sanction sought to be imposed is criminal in nature that

the constitutionally required procedures governing crimi-

nal prosecutions must be afforded parties to the proceed-

ing. Helvering v. Mitchell, 303 U.S. 630, 58 S. Ct. 644

(1938). Whether a particular statutory sanction is civil or

criminal in nature is a question of statutory construction.

PERE BAGH RPM DT IEIEGA ELE EERE AND Be LIPS CURLS me PRES LTTRNSS. Hate tae

8

Helvering v. Mitchell, 303 U.S. 630, 58 S. Ct. 644 (1938).

In cases challenging the constitutionality of the Environ-

mental Protection Act, the Illinois Supreme Court has

been required to construe the nature of the sanctions au-

thorized by Section 42 of the Act and has held that such

sanctions are civil. City of Monmouth v. Pollution Control

Board, 57 Til. 2d 482, 313 N.E. 2d 161 (1974); City of

Waukegan v. Pollution Control Board, 57 Ml. 2d 170, 311

N.E. 2d 146 (1974). Fry’s constitutional challenge, based

upon the contention that proceedings before the Pollu-

tion Control Board are criminal in nature, is therefore with-

out merit.

II!.

THE ILLINOIS ENVIRONMENTAL PROTECTION ACT

AND THE POLLUTION CONTROL BOARD’S REGU-

LATIONS CONCERNING THE SUBMISSION OF

WRITTEN OR ORAL ARGUMENTS ARE IN ACCORD

WITH THIS COURT’S STANDARDS FOR A FAIR

HEARING.

Fry lastly argues that, by permitting the Pollution Con-

trol Board to enter its Decision and Order prior to the

submission of written briefs by the parties, the Environ-

mental Protection Act and the Pollution Control Board’s

regulations violate due process. The Illinois Appellate

Court interpreted the Environmental Protection Act as

not requiring the Pollution Control Board to await the

filing of written briefs by the parties prior to its render-

ing a decision. The Appellate Court also held that, based

upon the facts before it, the Board did not abuse its dis-

cretion by rendering its decision without considering briefs

from the parties. Fry asks this Court to review the con-

a ae ee ed

PAPE SBM

stitutionality of the Environmental Protection Act as in

terpreted by the Illinois Appellate Court. Gooding v. Wil-

son, 405 U.S. 518, 92 S. Ct. 1103 (1972).

The Act requires that the Pollution Control Board, when

making its orders and decisions, consider the written and

oral statements submitted at the hearing [Sections 33(a)

and 32] and the testimony and arguments submitted at the

hearing [Section 33(a)]. Fry has not contended that the

Board in any way violated these requirements. In Morgan

v. United States, 298 U.S. 468, 56 S. Ct. 906 (1936), this

Court specified the requirements for a full and fair hear-

ing. In discussing the issuance of an order by a tribunal

or person who had not considered the evidence or the

argument of the parties, this Court stated, at 56 S. Ct. 912,

that:

. . . there must be a hearing in a substantial sense.

And to give the substance of a hearing, which is for

the purpose of making determinations upon evidence,

the officer who makes the determinations must consider

and appraise the evidence which justifies them.

{emphasis supplied]

Morgan has been interpreted to require ‘‘that the officer

who makes the findings must have considered evidence or

argument’’. Estate of Varian v. Commissioner of Internal

Revenue, 396 F. 2d 753, 755 (9th Cir. 1968), cert. den. 393

U.S. 962, 89 S. Ct. 402. The so-called ‘‘second’’ Morgan

ease [Morgan v. United States, 304 U.S. 1, 58 S. Ct. 773

(1938)] simply does not contain the holdings enumerated

by Fry in its argument. (Pet. brief, pp. 15-16).

The requirement placed upon the Pollution Control

Board by the Illinois General Assembly to consider and

appraise t! idence when making its determinations is

fully in ag#ord with this Court’s prior case law.

a CO AST ED gO OS 2 ah BET A AOI RU Ee ip

10

CONCLUSION

Respondents respectfully pray that Fry Roofing Com-

pany’s Petition For Writ of Certiorari be denied.

Respectfully submitted,

Wu.um J. Scort,

Attorney General, State of Illinois,

Attorney for Illinois Pollution

Control Board and Illmois

Environmental Protection Agency.

Frep F. Herzoe,

First Assistant Attorney General,

Ricuarp W. Cossy,

Dennis R. FYExps,

Assistant Attorneys General,

188 West Randolph Street—Suite 2315,

Chicago, Illinois 60601—(312) 793-2491,

Of Counsel.

APY EAE pbeiaia