also dissenting:
After extensive hearings involving numerous disputed questions of fact, the Pollution Control Board (Board) found that the appellee, Wells Manufacturing Company (Wells), had violated sections 9(a) and 9(b) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1971, ch. lll½, pars. 1009(a), (b)), in that Wells had caused air pollution, and had, without a permit, operated a facility capable of causing pollution.
“Air pollution” is defined in section 3(b) of the Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1003(b)) to include the “presence in the atmosphere of one or more contaminants in sufficient quantities and of such characteristics and duration as to *** unreasonably interfere with the enjoyment of life or property.” (Emphasis added.)
Under section 31(c) of the Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1031(c)), complainants’ burden of proof was to show that Wells had caused or threatened to cause air pollution. Accordingly, under the theory pursued in this case, complainants’ burden was to show that the odors emitted by Wells’ facility unreasonably interfered with the enjoyment of life or property. (See Processing & Books, Inc. v. Pollution Control Board (1976), 64 Ill. 2d 68, 75-77.) The majority apparently holds that the term “unreasonably” in section 3(b) of the Act (defining air pollution) means that the complainant must “come forward with evidence that emission reduction is practicable.” (See 73 Ill. 2d at 237, accord Currie, Enforcement Under the Illinois Pollution Law, 70 Nw. U.L. Rev. 389, 461.) Certainly, the majority cannot contend that the use of the word “unreasonable” in defining the respondent’s burden of proof somehow defines the complainant’s burden of proof. See Ill. Rev. Stat. 1971, ch. 111½, par. 1031(c).
In my opinion, this holding both misconstrues the Act and directly contradicts the unanimous decision of this court in Processing & Books, Inc. v. Pollution Control Board (1976), 64 Ill. 2d 68, 75-77. Section 33(c) of the Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1033(c)) requires that, “[i]n making its orders and determinations, the Board shall take into consideration all the facts and circumstances bearing upon the reasonableness of the emissions, discharges or deposits involved,” and goes on.to list several such factors, including “the technical practicability *** of reducing or eliminating the emissions, discharges or deposits” (Ill. Rev. Stat. 1971, ch. 111½, par. 1033(c)(iv)). In Processing & Books, the appellate court had reversed an order of the Board on the ground that the complainant had failed to meet its burden of proof on the question of the unreasonableness of the odor involved in that case, because the complainant had failed to introduce evidence on several factors stated in section 33(c) of the Act, including the factor which is involved in this case, the technical practicability of reducing or eliminating the odor. See 28 Ill. App. 3d 115, 118-19.
This court unanimously reversed, holding that the word “unreasonable” in section 3(b) of the Act does not include the technical practicability of abatement. Rather, the court unanimously held that the word “unreasonably” was intended only to “exclude the trifling inconvenience, petty annoyance or minor discomfort.” (64 Ill. 2d 68, 77.) The majority’s opinion in the instant case silently overrules the foregoing unanimous holding of this court. Even if it were to do so expressly, however, I would not concur, because I believe that Processing & Books was correctly decided and should not be overruled.
Section 33(c) does not purport to, nor ought it be construed to, allocate burdens of proof. The only provision of the Act relevant to this case which does purport to allocate burdens of proof is section 31(c), which states that a complainant must show that the respondent has caused or threatened to cause air pollution, and which, in this case, means that the complainants were required to demonstrate that Wells’ release of contaminants unreasonably interfered with the enjoyment of life or property. (See Ill. Rev. Stat. 1971, ch. 111½, par. 1003(b).) Contrary to what the majority apparently assumes, the factors listed in section 33(c) as being relevant to the “reasonableness of the emissions, discharges or deposits involved” do not (with the exception of (i) “the character and degree of injury to, or interference with the protection of the health, general welfare and physical property of the people”) further define the term “air pollution” and therefore are not elements of the complainant’s burden of proof.
Rather, that these factors (as well as “all the facts and circumstances bearing upon the reasonableness of the emissions, discharges or deposits”) must be considered by the Board means only that these factors are available as affirmative defenses in actions before the Board. Thus, not all those factors which the Board must consider in determining the reasonableness of respondent’s conduct need be shown to demonstrate the unreasonableness of the harm caused by that conduct. As a general rule, in an action to enforce a right conferred by statute a complainant’s burden normally is only to demonstrate the injury and its cause (cf., e.g., Calvetti v. Seipp (1967), 37 Ill. 2d 596, 598-99; see generally, W. Prosser, Torts 190, 198-99 (4th ed. 1971))—in this case, that the odor unreasonably interfered with the enjoyment of life or property, and that Wells caused the odor. Matters within the peculiar knowledge of the respondent, e.g., reasons why it ought not be punished for or prevented from causing the odor, such as the impossibility of profitably operating its business otherwise, or, as in this case, the alleged physical impossibility of significantly reducing or eliminating the odor, normally are not elements of a complainant’s burden of proof. Even a massive and highly intrusive amount of discovery frequently would not enable a diligent but inexpert complainant to meet its burden of proof on this question, thereby frustrating the purposes of the Act. I do not believe that the General Assembly intended the remedies provided by this Act to be so illusory; nor do I believe that the General Assembly thought it feasible for complainants to meet the burden of proof established by the majority.
I therefore respectfully dissent.