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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 996

## Text

adda FITS , - -

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0489%3A2. Public record. Not legal advice.