dissenting:
I am compelled to dissent from the views expressed by my colleagues in their majority opinion in this case.
If my colleagues are correct, then in my opinion they have opened the door to the administrators of the Environmental Protection Act so that they will be able to regulate working conditions of employees within factories. I do not agree that the elimination of the term “out-door” from the definition of atmosphere evidences a legislative intent to encompass indoor, as well as outdoor, atmospheric pollution within the scope of pollution control legislation. The word “out-door” could well have been eliminated because the words “out-door atmosphere” were redundant in that atmosphere subject to air pollution which is to be regulated by the Environmental Protection Act has historically and consistently referred to outside air. There is a plethora of Federal and State laws which concern themselves with the working conditions of industrial employees, i.e., Clean Air Act of 1963 (42 U.S.C. §1857 et seq.), Health and Safety Act of 1936 (Ill. Rev. Stat. 1937, ch. 48, par. 137.1 et seq.), Occupational Safety and Health Act of 1970 (29 U.S.C. §651 et seq. (1970)). These particular acts and many more concerning the working conditions of industrial employees predated the Environmental Protection Act and indicate that this latter act was not enacted for the purpose of regulating the internal working conditions of industry.
I believe that the pivotal question in this appeal is, what was the primary purpose of the facilities, devices and/or equipment installed in Caterpillar’s Mapleton plant. The plaintiff repeatedly refers to its installation as a pollution control facility, however, with the exception of the dust collector which prevented a pollution of the air outside the factory, the installation of the plaintiff was a ventilating system.
At Caterpillar’s Mapleton plant, in various areas referred to as pits, working conditions had become intolerable as the result of the diffusion of sand, dust, fumes and minute particles of slag. Respiratory equipment was required and the air was so dense that visibility was limited to a distance of 10 feet. Mr. William J. Williams, Vice President of the plaintiff company, testified that when he visited pit four the dust collection was so bad “I don’t know how our men worked down there in putting in the systems.” Mr. Don Nell, an employee of Caterpillar Tractor Company’s Mapleton plant who was in charge of all air moving devices, when asked about the installation of the plaintiff answered as follows:
“Yes, sir. My plant wouldn’t operate. To make it very brief with you, the required ventilation in pit two and four was generated around an OSHA requirement for people that have to work in that area. Without it, I don’t have people working there and without them working in there, I don’t have a process.”
When asked what the term “OSHA” meant, Mr. Nell explained that it meant the Occupational Safety and Health Act, a Federal act.
I dissent because it is clear to me from examining the record that the primary purpose of the equipment installed by the plaintiff was to enhance production by Caterpillar Tractor Company. Its installation was also a response to Federal and State safety and health requirements. Such being the primary purpose the decision of the circuit court of Peoria County should have been affirmed. See Illinois Cereal Mills, Inc. v. Department of Revenue (1976), 37 Ill. App. 3d 379, 346 N.E.2d 69.