{ "id": 2462621, "name": "Airtex Products, Inc., Petitioner, v. The Pollution Control Board et al., Respondents", "name_abbreviation": "Airtex Products, Inc. v. Pollution Control Board", "decision_date": "1973-10-12", "docket_number": "No. 72-80", "first_page": "238", "last_page": "245", "citations": [ { "type": "official", "cite": "15 Ill. App. 3d 238" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "292 N.E.2d 540", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "9 Ill.App.3d 711", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2849379 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0711-01" ] }, { "cite": "364 Ill. 213", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2585885 ], "opinion_index": 0, "case_paths": [ "/ill/364/0213-01" ] }, { "cite": "412 Ill. 579", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2664745 ], "opinion_index": 0, "case_paths": [ "/ill/412/0579-01" ] }, { "cite": "265 N.E.2d 608", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "pin_cites": [ { "page": "610" } ], "opinion_index": 0 }, { "cite": "47 Ill.2d 498", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2906453 ], "year": 1970, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0498-01" ] }, { "cite": "178 N.E.2d 415", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "33 Ill.App.2d 1", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5235129 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-app-2d/33/0001-01" ] }, { "cite": "13 N.E.2d 987", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1938, "pin_cites": [ { "page": "990" } ], "opinion_index": 0 }, { "cite": "368 Ill. 282", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2571593 ], "year": 1938, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/ill/368/0282-01" ] }, { "cite": "216 N.E.2d 795", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "34 Ill.2d 552", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2877831 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-2d/34/0552-01" ] }, { "cite": "4 N.E.2d 847", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1936, "opinion_index": 0 }, { "cite": "364 Ill. 406", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2586588 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/ill/364/0406-01" ] }, { "cite": "230 N.E.2d 833", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "38 Ill.2d 231", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2861664 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-2d/38/0231-01" ] }, { "cite": "15 Ill.App.3d 66", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2461709 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0066-01" ] } ], "analysis": { "cardinality": 779, "char_count": 16201, "ocr_confidence": 0.738, "pagerank": { "raw": 1.4395087032774907e-07, "percentile": 0.6528759012591081 }, "sha256": "9d1b37bad675487ca9b2e65b8349b68452dab69268f08df1acb2a62679b69840", "simhash": "1:e6f234aa721dcc77", "word_count": 2632 }, "last_updated": "2023-07-14T19:38:17.475453+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Airtex Products, Inc., Petitioner, v. The Pollution Control Board et al., Respondents." ], "opinions": [ { "text": "Mr. JUSTICE CREBS\ndelivered the opinion of the court:\nThis is a petition to review an order of the respondent, Pollution Control Board, imposing a fine of $11,000 on petitioner, Airtax Products, Inc. The order was the result of an enforcement action brought by the Environmental Protection Agency before the Pollution Control Board, an administrative agency, for alleged violations of the Environmental Protection Act and certain regulations adopted by the Pollution Control Board.\nThe Board found the petitioner guilty of violating section 12(a) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111\u00bd, sec. 1012(a)), which provides:\n\u201cNo person shall: (a) cause or threaten or allow the discharge of contaminants into the environment in any State so as to cause or tend to cause water pollution in Illinois, either alone or in combination with any matter from other sources, or so as to violate regulations or standards adopted by the Pollution Control Board under this Act; * *\nPetitioner was also held to have violated Illinois Sanitary Water Board Rules and Regulations SWB-5, Article I, Rule 1.01, which provide:\n\u201cAny person, firm or corporation engaged in manufacture or other process, including deactivation of processes, in which cyanides or cyanogen compounds are used shall have each and every room, where said compounds are used or stored, so constructed that none of said compounds can escape therefrom by means of building sewer, drain or otherwise directly or indirectly into any sewer system or watercourse.\u201d\nAgents of the Environmental Protection Agency took water samples on May 4 and May 14, 1971, and stated that on both dates petitioner discharged cyanide into the storm sewer of the City of Fairfield. One inspector testified that samples taken on May 4 from a street drain and from a storm sewer showed 12.0 and 4.3 milligrams cyanide per liter, respectively. Another inspector testified that three samples taken May 14 from the junction of a storm sewer and a creek, a street drain, and a tributary to a creek near Fairfield, showed readings of 1.5 ppm, .3 mg/1, and .08 ppm cyanide respectively.\nSWB-5, Article I, Rule 1.02 provides:\n\u201cOn application by a municipality to and approval by the Sanitary Water Board, limited amounts not to exceed two (2) milligrams per liter, may be permitted to be discharged to a municipal sewer system and sewage treatment works, when determined it would not be detrimental to public health or municipal sewage treatment works operations or which would not pollute any lake, river, stream, drainage or roadside ditch or other watercourse.\u201d\nOn October 27, 1967, petitioner received a copy of a letter from the Sanitary Water Board. The letter was addressed to the Mayor and City of Fairfield, where petitioner\u2019s two factories were located, and advised that cyanide was found in the storm sewer and that enforcement action would be directed against the city. On December 15, 1967, petitioner was advised by letter from the Sanitary Water Board, copy to the dty, that no discharge containing cyanide was permitted. Regulation SWB-5 was enclosed. The letter outlined the permit procedure to be followed in order to discharge cyanide into the city sanitary sewer system.\nIn 1969 petitioner applied to the State to discharge cyanide in the Fairfield sanitary sewer system. Petitioner was advised that it should apply for a permit to the city, which would then apply to the State for a permit. On July 25, 1969, petitioner formally requested authority from the city to connect to the sewer system and asked the city to obtain the necessary permit from the Sanitary Water Board. On August 5, 1969, the Sanitary Water Board wrote to the city and petitioner advising them both of the requirements to obtain a permit under regulation SWB-5. The letter stated that no construction or alterations should be started until the plans had been approved by the Sanitary Water Board.\nIn December of 1969 petitioner submitted its proposed plans for treating and disposing of its cyanide to engineering consultants for the City of Fairfield, but the city did not file an application because the consultants felt that the plans lacked detail. Petitioner was not informed that its plans were unsatisfactory.\nThe engineering consultants completed a study which revealed that the city\u2019s treatment plant would have to be enlarged in order to handle all of petitioner\u2019s industrial waste. One of the consultants stated that cyanide was considered toxic to the organisms that break down wastes in the sewage plant and that once the organisms were affected, only time could repair the damage.\nPetitioner was fined under section 42 of the Environmental Protection Act (Ill. Rev. Stat. 1971 ch. 111\u00bd, sec. 1042), which provides:\n\u201cAny person who violates any provision of this Act, or any regulation adopted by tire 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 violation as hereinafter provided.\u201d\nPetitioner contends first that the imposition of a discretionary penalty by an administrative agency is an exercise of judicial authority and violative of the separation of powers doctrine of Section 1 of Art. II of the Illinois Constitution of 1970. We have so held in Southern Illinois Asphalt Co. v. Environmental Protection Agency, 15 Ill.App.3d 66, and we make the same ruling here.\nPetitioner\u2019s second contention is that Sanitary Water Board Regulation SWB-5 is unconstitutional and void, as being contrary to the statute, constituting an unlawful delegation of legislative authority, and taking property without due process.\nRegulation SWB-5 is not contrary to the Environmental Protection Act. Section 39 of the Act (Ill. Rev. Stat. 1971, ch. 111\u00bd, sec. 1039) provides:\n\u201cWhen the Board has by regulation required a permit * * # it shall be the duty of the Agency to issue such a permit (upon proof that the facility will not cause a violation of the Act * * *. In granting permits the Agency may impose such conditions as may be necessary to accomplish the purposes of this Act * * *. If there is no final action by the Agency within 90 days after the filing of the application for permit, the applicant may deem the permit issued.\u201d\nPetitioner contends that because Regulation SWB-5, Article I, Rule 1.02 requires the municipality to file the application, the above provision of the Environmental Protection Act is contravened.\nPetitioner\u2019s contention is without merit. When the municipality applies for a permit, section 39 is triggered into action. What petitioner really disputes is the involvement of the city in the application procedure. But it is the municipality\u2019s sewer system into which petitioner wishes to dump its cyanide, and the municipality is equally hable under the Environmental Protection Act if cyanide is found therein. Since it is the city\u2019s sewer system which carries the cyanide, it is reasonable to require that the city obtain a permit.\nFurther, section 39 itself provides that the Environmental Protection Agency may impose such conditions as may be necessary to accomplish the purposes of the Act. One of those purposes is to maintain the purity of the waters of this State. Since it is known that cyanide is destructive of sewage treatment plants, which function to maintain the purity of water, it is a reasonable condition necessary to maintain the purity of the water to require disposers of cyanide to work in close cooperation with the owners of those plants.\nCases cited by petitioner on this point are not applicable because they deal with delegation of powers to municipalities, and not administrative agencies.\nRegulation SWB-5 is also criticized by petitioner as unconstitutional in delegating legislative authority unlawfully. Petitioner states that the regulation fails to state who shall make the determination, when it shall be made, or the standards and conditions to be utilized. It is a matter of construction, and a simple one at that, that the Environmental Protection Agency is to make the determination. There is an initial presumption in favor of the constitutionality of a statute; and this presumption includes the provisions of the Sanitary Water Board Act: all doubt and uncertainty as to its constitutionality should be resolved in favor of its validity if it can be upheld by a reasonable construction although a contrary construction is equally available. (North Shore Post No. 21 of American Legion v. Korzen, 38 Ill.2d 231, 230 N.E.2d 833 (1967); People v. Wilson Oil Co., 364 Ill. 406, 4 N.E.2d 847 (1936).) Since the municipality, the only other likely party to be approving the permit, is itself mentioned in the regulation as applicant, a contrary construction is not even available.\nThe determination is to be made within 90 days, as required by section 39 of the Act.\nThe standards and conditions to be utilized are as definite as can be expected in the context: \u201cdetrimental to public health, or the municipal sewage treatment works operations or which would not pollute * * *\u201d is no more indefinite than the standard upheld in Hill v. Relyea, 34 Ill.2d 552, 216 N.E.2d 795 (1966): \u201cto grant absolute discharge or a conditional discharge to a patient as the welfare of such person and of the community may require.\u201d Here, as there, the Environmental Protection Agency can determine more understandingly and advantageously when cyanide discharges are detrimental to public health, or to the city\u2019s sewage treatment works, or when they would not pollute. The words of the court in Hill, at 556, are equally applicable here: \u201cThe nature of the objectives to be achieved and the problems to be solved negate the usefulness of setting more precise standards.\u201d\nPetitioner also complains that neither the phrase \u201cdetrimental to public health\u201d nor the phrase \u201cmunicipal sewage treatment works operation\u201d is defined. But, as the court stated in City of Chicago v. Ben Alpert, Inc., 368 Ill. 282, 288, 13 N.E.2d 987, 990 (1938):\n\u201cWhere words assailed, taken in connection with the context, are commonly understood, their use does not render a statute invalid. [Citation.] Moreover, the legislature is not required to define words in common and daily use. [Citation.]\u201d\nBoth phrases about which petitioner complains are commonly understood and in daily use; and it would be unnecessary for the Environmental Protection Agency to indulge in long and intricate definitions of their meaning.\nPetitioner finally contends that SWB-5 is unconstitutional because property is taken without due process. Cases cited by petitioner to support its contention that the right to connect to the Fairfield city sewer system is a property right which cannot be divested are all cases dealing with property rights acquired after paying a special assessment levy. Even after a special assessment, the rule to be applied is that the right to connect to a sewer system of a municipality is subject to reasonable regulations imposed by the State and city. (Frank v. State Sanitary Water Board, 33 Ill.App.2d 1, 178 N.E.2d 415 (1961).) It was not unreasonable for the city to require that petitioner treat the effluent prior to discharging it into the municipal sewage treatment operations because the introduction of too much cyanide into the operation could do damage that \u201conly time could repair.\u201d (A. 87) Since petitioner did not even take the primary step of having its plans for a pretreatment operation approved by the Sanitary Water Board, it is in a poor position to be assailing the SWB-5 as unreasonable. If petitioner had submitted plans, acquired approval, and constructed a predischarge facility which could meet the standards of Rule 1.02, then it would have reason to be asserting a property right here. But as it is, there is no basis to assume any property right.\nPetitioner next contends that the agencies of the State of Illinois are estopped from bringing an enforcement action because of the arbitrariness in requiring petitioner to deal with both the city and the Environmental Protection Agency. Again, the Frank case, supra, relied upon by the petitioner to support this point, can be distinguished on the basis that it dealt with a situation in which the property owner had paid a special assessment levy.\nPetitioner made no good-faith effort to see that the permit required by Rule 1.02 was obtained. Petitioner has done nothing which entitles it to connect into the city\u2019s sewer\u2019s works; so there has been no reason for the city to apply for the permit. This is not a case of capriciousness where the city and the Agency are playing fast and loose with a vested right which petitioner has acquired. Rather, it is a case where petitioner has failed to take even the first step in complying with the law.\nPetitioner next contends that the order of the board is unsupported by required findings of fact and conclusions of law and is therefore void. Cases cited by the petitioner to support its position all deal with the need to make written findings of fact, and to that extent are inapplicable because the first nine pages of the Board\u2019s order consist of findings of fact and conclusions of law.\nPetitioner might be contending that the Board did not make specific findings about certain factors that the statute mentioned should be considered by the Board in arriving at an order. Examples include the reasonableness of the discharge of cyanide, the character and degree of injury to, or interference with, protection of health, general welfare, and physical property of the people, and the technical practicability and economic reasonableness of reducing or eliminating the discharge. Although all of these matters are discussed in general terms in the Board\u2019s order, it seems that petitioner is claiming error in that specific findings of fact and conclusions of law were not made in regard to each one separately. The law does not require such specificity. The principle is well stated in United Cities Gas Co. v. Commerce Com., 47 Ill.2d 498, 501, 265 N.E.2d 608, 610 (1970):\n\u201cWe have held, however, that it is not necessary to make a particular finding as to each evidentiary fact or claim. (Chicago Junction Ry Co. v. Illinois Commerce Commission, 412 Ill. 579; Chicago, Burlington & Quincy RR Co. v. Commerce Commission ex rel. Brotherhood of Railroad Trainmen, 364 Ill. 213.)\u201d\nThe court in Ford v. Environmental Protection Agency, 9 Ill.App.3d 711, 292 N.E.2d 540 (1973), used the above principle when confronted with the assertion that the Board had not made specific determinations in considering the mitigating circumstances listed by the Act. The principle is equally applicable here.\nPetitioner last contends that the order of the Board was contrary to law and unsupported by the evidence. This point is easily disposed of by recalling that since petitioner neither sought nor received the permit required by Rule 1.02, the zero effluent standard of Rule 1.01 was in effect at the time of the violations. That the violations occurred is clearly supported by the evidence, so petitioner\u2019s contention is without merit.\nFor the foregoing reasons the order of the Pollution Control Board is reversed in so far as it assesses a fine against Airtex Products, Inc. and is otherwise confirmed.\nConfirmed in part and reversed in part.\nJONES, J., concurs.\nMr. PRESIDING JUSTICE GEORGE J. MORAN dissenting in part:\nI dissent from that portion of the majority opinion which holds section 42 of the Environmental Protection Act unconstitutional. I concur with the remainder of the opinion.", "type": "majority", "author": "Mr. JUSTICE CREBS" } ], "attorneys": [ "Arvey, Hodes & Mantynband, of Chicago, (Charles J. O\u2019Connor and Lawrence C. Rubin, of counsel,) for appellant.", "William J. Scott, Attorney General, of Springfield, (Larry R. Eaton, Assistant Attorney General, of counsel,) for appellees." ], "corrections": "", "head_matter": "Airtex Products, Inc., Petitioner, v. The Pollution Control Board et al., Respondents.\n(No. 72-80;\nFifth District\nOctober 12, 1973.\nG. MORAN, P. J., dissenting in part.\nArvey, Hodes & Mantynband, of Chicago, (Charles J. O\u2019Connor and Lawrence C. Rubin, of counsel,) for appellant.\nWilliam J. Scott, Attorney General, of Springfield, (Larry R. Eaton, Assistant Attorney General, of counsel,) for appellees." }, "file_name": "0238-01", "first_page_order": 258, "last_page_order": 265 }