dissenting:
The Illinois PoHution Control Board found the appellant, Southern Illinois Asphalt Co., Inc., in violation of section 9(b) of the Environmental Protection Act and rule 3-2.110 of the Rules and Regulations governing the control of air pollution, to-wit: the appeHant admittedly instaHed an asphalt plant without the requisite permit. The PoHution Control Board accordingly imposed two statutorily authorized sanctions: (1) Southern Illinois Asphalt Company was ordered to cease and desist operations at its McLeansboro Plant until the requisite permit was obtained, and (2) the company was ordered to pay a $5,000 fine. Ill. Rev. Stat. 1971, ch. 111½, pars. 1033(b) and 1042.
Aside from questions of constitutionality, this court is limited by law to review whether or not there has been an abuse of discretion by the Pollution Control Board in this case. A principle tenet of administrative law is that judicial review is limited to considering whether the decision of the administrative agency is arbitrary, capricious, unreasonable, or against the manifest weight of evidence. (Skokie Federal Savings & Loan Assn. v. Savings & Loan Board, 88 Ill.App.2d 373, 232 N.E.2d 167; Fenyes v. State Emp. Retirement System, 17 Ill.2d 106, 160 N.E.2d 810; Group Securities Inc. v. Carpentier, 19 Ill.App.2d 513, 154 N.E.2d 837; Board of Education of Springfield School Dist. No. 186, Sangamon County v. Scott, 105 Ill.App.2d 192, 244 N.E.2d 821; Chicago Transit Authority v. Fair Employment Practices Commission, 103 Ill.App.2d 329, 243 N.E.2d 638.
Although administrative agencies are organizationally considered within the executive branch of government, they characteristically exercise quasi-legislative power in the form of rulemaking and quasi-judicial power in the form of adjudicating specific cases in addition to traditional executive enforcement powers. Administrative agencies are usually created when policy requires governmental action that is too complex and involves too much factual investigation to be efficiently handled by a statute alone, by summary executive action or by purely judicial solutions. The Illinois legislature identified the policy of protecting the states environment as one that needs administrative agency expertise to be effectively enforced by enacting the 1970 Environmental Protection Act which established the Environmental Protection Agency and the Pollution Control Board.
Protecting the environment is no small undertaking; it requires technical knowledge about air pollution, water pollution, land pollution and refuse disposal, noise and atomic radiation. Not only the welfare, but the very lives of the people of Illinois may depend on the specialized knowledge and expertise of the Environmental Protection Agency and the Pollution Control Board. The judges of this court are legal experts, unauthorized by law to substitute their judgment in place of the Pollution Control Board’s expert judgment in this case, provided the Environmental Protection Act is constitutional and the Board did not abuse the discretion validly vested in it by the legislature.
Reviewing the record of this case, I am unable to find any abuse of discretion. The appellant admitted that it installed a portable asphalt plant in McLeansboro, Illinois, without first obtaining the permit which appellant knew was required by law.
Accordingly, the Board ordered the plant to cease operation and levied a fine. The Board is required to make its orders and determinations based on the relevant statutory standards set forth in section 33 of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1033(c)):
“(1) the character and degree of injury to or interference 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 involved;
(4) omitted because this guideline is irrelevant to this appeal; the Board found appellant guilty only of installing its plant without a permit.”
I have read the hearing record carefully and have done some independent research into the operation of asphaltic concrete plants generally, and have been unable to find any bit of information that would support the conclusion that the penalties imposed by the Board were arbitrary, capricious or against the manifest weight of evidence.
Asphalt is a natural hydrocarbon or bitumen usually found around oil producing basins. Asphalt, however, can also be manufactured by crude petroleum refineries by a variety of methods. Approximately 90% of the asphalt used in this country is pyrogenous, i.e., manufactured asphalt. There are a few small patches of natural asphalt near Chicago, but there are no known significant deposits of asphalt-bearing rocks in Illinois. Although asphalt is often confused with tar or pitch, it is distinct in that tar and pitch are distillates from wood or coal.
An asphaltic concrete plant, such as the one installed in this case, prepares a heated mixture composed of rocks, sand, other minerals and asphalt, the asphalt acting as a mastic. The completed hot mix is dispatched in trucks to the pavement site and spread before the asphalt cools and sets. Because the asphalt must stay hot long enough to allow the mix to be spread, asphalt plants are often portable, i.e., the machinery can be transported to locations near the road building site. The asphalt plant installed by appellant in McLeansboro was a portable plant; indeed, the oral hearing before this court revealed that the plant is no longer there. In addition, because the asphalt must stay hot for a while, the asphaltic concrete industry seasonably operates, starting in early spring and stopping in late autumn. The hearing record suggests this was the operational pattern of the McLeansboro plant.
It is indisputable that asphaltic concrete plants pollute the air. Asphalt, like tar and other bitumens, has a resinous odor that fills the air. Its malodor is considered non-toxic but can cause nausea and insomnia in some people. Such asphalt fumes can be oxidized by potassium permanganate solutions but rarely are, since it is an expensive procedure. More seriously, inhalation of asphalt fumes is linked, like cigarette smoking, to cancer of the lung. Aside from these ill effects, little else is known about these organic hydrocarbon contaminants.
The air pollutant that is consciously controlled at asphalt plants is dust. The dust results from the handling of the rocks, sand and other mineral material that are mixed with the asphalt. Dust is propelled into the air at the storage piles, the roads leading into the plant, the transfer points between the various operations, the dryer, the bucket elevators, the screens which grade the rocks, etc. Most asphalt plants control only the dust emissions from the dryer. Drying the rocks and sand to be mixed with the asphalt is an essential process in the manufacture of aphaltic concrete. The dryer reaches temperatures between 300° F. and 400 ° F. to remove the moisture from the material and to insure that this aggregate will not cool the asphalt when mixed. The dust that is blown off the drying rocks and sand flies up into a dust collector which is also known as a cyclone. The cyclone, while being a primary pollution control device which collects the heavy dust particles by centrifugal force and sends them back into the process, also furnishes the draft that draws the flame and hot gases through the dryer. The record in this case shows the appellant had a secondary pollution control device commonly known as a wet scrubber, in addition to the cyclone. The function of the wet scrubber is to wet down the dust that escapes the centrifugal force of the cyclone and to turn it into a sludge. Dust still escapes into the atmosphere but it is significantly less than if the wet scrubbers were not used.
Whether or not Southern Illinois Asphalt Company’s McLeansboro Plant was unacceptably polluting the air is not an issue before this court and was never an issue in this case. What is important is that the asphalt plant installed was capable of polluting the atmosphere. Both common knowledge about the operations of asphalt plants generally as I have related above and actual testimony of the residents of McLeansboro contained in the hearing record established that the plant was fully able to coat the neighborhood with layers of dust.
Dust is a threat to people’s health. The human body has several defenses to airbom dust particles, e.g., the nose hairs filter out particles larger than 10 microns. However, the tiny particles, the ones most likely to escape the asphalt plant’s cyclone and wet scrubber are the ones most likely to elude the body’s defenses and enter the lungs. There is evidence that these particles which reach the lungs may cause emphysema and lung cancer and at least can aggravate such diseases.
Using this technical background data as an informational foundation, it is necessary to consider the evidence produced at the hearing in reíationship to the statutory standards the Pollution Control Board must use in making its determinations.
1. The character and degree of injury to, or interference ivith the protection of health, general welfare and physical property of the people.
Toward the end of the hearing in this case, several residents of Mc-Leansboro testified that the dust and asphalt odor was more than just psychologically irritating. Two witnesses testified that their respiratory problems had worsened. Residents also swore that they could not enjoy their yards as they had before the instaHation of the asphalt plant, e.g., cooking outdoors, gardening, etc., were severely curtaHed. To make matters worse, the residents so affected by the plant were forced into a dilemma; there was uncontroverted testimony that the residential property value in the area had declined because of the asphalt plant. The neighbors had to endure the presence of the plant or sell their real property at a loss.
In sum, the asphalt plant curtaHed the enjoyment of the property around it and endangered the health of the neighbors.
2. The social and economic value of the pollution source.
To have asphaltic concrete pavements, it is necessary to have asphaltic concrete plants. No one associated with this hearing has expressed the desire to outlaw asphalt plants per se. The city fathers of McLeansboro apparently favored the installation of the plant because about 50 jobs would be avaffable and the plant would have a weekly payroH of about $16,000 during the months of operation. In sum, the portable asphalt plant instaHed by appellant would have social and economic value to McLeansboro.
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 involved.
This standard acts as the balancing factor in this case. Neither the Pollution Control Board nor the residents who complained about the asphalt plant wanted to establish aH locations in Illinois as unsuitable for asphalt plants. This is clear from the McLeansboro residents’ testimony and the fact that the Southern IHinois Asphalt Company did receive an instaHation permit for its Mount Vernon asphalt plant. The cease and desist order was reasonable and the $5,000 fine was reasonable because this McLeansboro Plant was too close to residential property.
There is testimony in the record that the location chosen by appeHant was not the only feasible location around McLeansboro. Had appeHant applied for a permit to instaU its asphalt plant as required by law before actuaHy installing and operating the plant, appeHant would have known that the location chosen was unsuitable in the first place. Moving a portable asphalt plant is commonplace; moving this asphalt plant to a less residential, he., less populated area, would not necessarily have meant the loss of 50 jobs and a $16,000 weekly payroU to McLeansboro. But, it would have meant cleaner, safer air to breathe for the people of Mc-Leansboro.
Dust poUution can be dispersed and diluted by natural forces and thereby cease to be pollution. Therefore, the distance between an asphalt plant and concentrations of population is the best pollution control device after the wet scrubber.
Taking into consideration that (1) the asphalt plant in this case was portable and therefore could be moved from place to place in violation of the Environmental Protection Act as weU as in compliance with the Act, (2) there is a necessity to impress upon polluting industries that violation of the Environmental Protection Act is not an inconsequential infraction to be done with impunity, and (3) this particular asphalt plant because of its location interfered with the health, general welfare and physical property of the neighboring residents of McLeansboro, I conclude that the Pollution Control Board made a reasonable order in this case against the Southern Illinois Asphalt Company, including the imposition of a $5,000 fine.
On the issue of constitutional delegation of power, I think the Environmental Protection Act is constitutional in its entirety. I do not think that the Pollution Control Board’s power to impose fines is an unconstitutional usurpation of judicial power. Ford v. Environmental Protection Agency, 9 Ill.App.3d 711, 292 N.E.2d 540; City of Monmouth v. Environmental Protection Agency, 10 IIl.App.3d 823, 295 N.E.2d 136; Bath, Inc. v. Pollution Control Board, 10 Ill.App.3d 507.
I find the reasoning in the above cases and the dissent in City of Waukegan v. Environmental Protection Agency, 11 Ill.App.3d 189, scholarly and correct. I only want to re-emphasize that the quasi-judicial powers were vested in the Pollution Control Board to enable it to successfully enforce the Environmental Protection Act. These powers, however, were not vested in the Board without limitation. Section 42 of the Act limits the amount of any fine imposed by the Board to $10,000 for a given violation. Section 41 of the Act incorporates the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, pars. 264, et seq.) by reference, whereby the judicial branch has the power to review the reasonableness of administrative decision made by the Board, including the imposition of fines. It must be concluded that sections 41 and 42 of the Act provide adequate safeguards against any abuse of power in the levy of fines by the Pollution Control Board.
I would affirm in its entirety the Pollution Control Board’s order.