Marblehead Lime Company v. Pollution Control Board

No. 61476 (355 N.E.2d 607, 42 Ill. App. 3d 116) (Ill. Ct. App. September 7, 1976)

ELR Digest

Concluding that the evidence in the record supports the agency's findings, the court affirms an order of the Illinois Pollution Control Board directing petitioner to cease and desist from violating the Illinois Pollution Control Act and imposing a fine of $20,000 for past violations.

Petitioner's lime kiln was built in an area zoned for heavy industrial use, but later the area east of the kiln was rezoned residential, and houses were built on the land. In 1967, petitioner began an emission reduction program which resulted in the installation of baghouses for each kiln.

In 1973, the Environmental Protection Agency filed a complaint with the Board charging that petitioner's practices caused the discharge of particulate matter into the atmosphere which caused air pollution in violation of § 9(a) of the Act, Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1009(a). The Act defines "air pollution" as "the presence in the atmosphere of one or more contaminants in sufficient quantities and of such characteristics and duration as to the injurious to human, plant, or animal life, to health, or to property, or to unreasonably interfere with the enjoyment of life or property." Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1003(b). Witnesses before the Board testified to continuous dust fallout from petitioner's plant, quantity of the emissions, and adverse health effects. An Agency engineer also testified on the effects of the dust emissions and the condition of petitioner's baghouses. Petitioner responded by submitting evidence that the control devices were "state of the art," that the emissions did not create a medical hazard to the community, and that other industrial facilities in the area emit pollutants. The Board found that emissions from petitioner's plant constituted air pollution within the meaning of the Act.

The court finds that the Board's decision is supported by the weight of the evidence. Abundant testimony was given as to the nature of the emissions, the extent of the dust problem, and petitioner's responsibility. That the evidence was presented by private citizens rather than technicians does not render it insufficient. Although the existence of other polluting sources in the neighborhood may be a mitigating factor, the Board's decision was not manifestly against the weight of the evidence.

Petitioner contended that the Agency was required to prove "unreasonable interference with the enjoyment of life and property." The court, however, concludes that this proof goes to the common law's objective standard of "substantial" interference, and there was ample evidence to support such a finding. Furthermore, the Bord examined the reasonableness of petitioner's conduct according to the relevant statutory criteria, Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1033(c), because the complaints of area residents were considered (even though the fact that the injuries were not permanent was a mitigating factor), the social and economic value of petitioner's plant was considered, and the suitability of petitioner's plant to its location was deemed a mitigating factor. While petitioner had installed sophisticated pollution control equipment, improved maintenance was required. Overall, even though the Board's findings might have been more detailed, its opinion substantially complied with the Act, and there is no need to remand for further findings.

Finally, the fine imposed by the Board was neither arbitrary nor excessive because it was fixed only after extensive hearings, and the Board did not abuse its broad discretion.

The full text of this opinion is available from ELR (7 pp. $1.00, ELR Order No. C-1099).

Counsel for Petitioner
John F. Ward, Jr.
O'Keefe, Ashenden, O'Brien, Hanson & Lyons
Suite 5100, One First National Plaza
Chicago IL 60670
(312) 263-3300

Counsel for Respondents
William J. Scott, Attorney General
Larry B. Blackwood, Asst. Attorney General
Environmental Control Division
500 S. Second St.
Springfield IL 62701
(217) 782-1090

McNamara, J., joined by Mejda & Dempsey, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]