Rockford Drop Forge Co. v. Pollution Control Board

389 N.E.2d 212, 71 Ill. App. 3d 295, 27 Ill. Dec. 400, 1979 Ill. App. LEXIS 2362

• Court: Appellate Court of Illinois
• Decided: April 30, 1979
• Docket: 73-293
• Status: Published

Opinions

Mr. JUSTICE GUILD

delivered the opinion of the court:

This opinion resolves issues raised by a petition for review of stationary source noise emission regulations which have been adopted by the Pollution Control Board (hereinafter PCB) pursuant to title VI of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111M, pars. 1023— 1025). The direct petition is authorized by titles VII and XI of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. HIM, pars. 1029, 1041). The petition was brought by 22 companies that operate forging facilities within the State of Illinois, 9 of which are physically located within the boundaries of this Appellate district. This mixture of petitioners raises an interesting question which has not been argued or briefed by the parties. Section 41 of the Environmental Protection Act provides that:

“* ° ° review shall be afforded directly in the Appellate court for the District in which the cause of action arose ° * (Emphasis added.)

Regarding the declaratory review of a PCB regulation which has not yet been enforced, it is unclear exactly where the cause of action is deemed to have arisen. Is it where the headquarters of the State agency is located or is it any district wherein some or all of the petitioners are located? The Act is silent in this regard and our supreme court has not passed upon this question. In the interest of judicial economy we will assume that this petition is properly before us.

The methods by which the PCB developed and adopted the regulations disputed herein have been set forth in detail in the case of Illinois Coal Operators v. Pollution Control Board (1974), 59 Ill. 2d 305, 319 N.E.2d 782, and we will not discuss them.¹ Similarly, the evidence introduced before the PCB regarding those regulations is clearly beyond the expertise of this court to independently evaluate and we will not attempt the hopeless task of summarization.

The petitioners have presented numerous issues for our consideration. In the interest of brevity we will state those issues as they are dealt with.

The first three contentions presented by the petitioners challenge the constitutionality of title VI of the Environmental Protection Act itself. They allege that the Act is so vague as to be a violation of due process of law. They also allege that the Act is an unconstitutional delegation of legislative authority to the PCB. Lastly, they contend that the Act is overbroad and a violation of the first amendment. Unlike the ordinary appeal involving a decision by an administrative agency, as we have noted above, this petition is before our court pursuant only to the specific provisions of section 29 of the Environmental Protection Act. That section reads as follows:

“Any person adversely affected or threatened by any rule or regulation of the Board may obtain a determination of the validity or application of such rule or regulation by petition for review under Section 41 of this Act.” (Emphasis added.)

Section 41, referred to in this context, only provides the mechanics for filing a petition in this court and does not give any substantive rights to petitioners who have not had an actual case or controversy ruled upon by the Board. Any clear reading of the explicit terms of section 29 makes it obvious that this court is limited to a review only of the rules and regulations promulgated by the Board. Nowhere in the Environmental Protection Act or elsewhere is there authority for this court to consider, as a trial court of original jurisdiction, a challenge to this or any other State statute on any grounds whatsoever. It is true that a constitutional challenge to a statute may be raised during the pendency of an administrative review proceeding flowing from the enforcement of that act. This is permitted to avoid piecemeal litigation, since the declaratory judgment action attacking the statute would have to be brought in the same court as the administrative review action, and both issues could be decided at one time as a matter of judicial economy. (See Howard v. Lawton (1961), 22 Ill. 2d 331, 175 N.E.2d 556.) However, we are not proceeding under either administrative review or its equivalent. Rather, we are called upon to weigh the validity of certain regulations promulgated by the PCB in its legislative capacity without benefit of an adversary evidentiary proceeding before us or before any lower court or administrative agency. In addition, it is clear that this court is not organized or equipped to function as a trial court, and any judicial economy realized by acting as such would be illusory. In our view, the proper forum for an attack upon the Environmental Protection Act itself was, and is, in a circuit court under declaratory judgment (Ill. Rev. Stat. 1973, ch. 110, par. 57.1(1)). Accordingly, we hold that we are without jurisdiction to consider the first three questions presented by the petitioners.

As their fourth point, the petitioners contend that they are denied equal protection of the law because the regulations adopted by the board arbitrarily discriminate against stationary noise sources. Since this constitutional argument is directed against the regulations themselves rather than the authorizing statute, we will deal with it. The heart of the petitioners’ argument is that there are other categories of noise emission sources which were identified by the PCB’s advisory task force. Those three other categories, airport, ground transportation, and construction noise, have not yet had regulations promulgated to control them. The petitioners contend that the regulation of stationary noise sources alone, under these circumstances, is impermissibly arbitrary. We note that this issue has already been presented and rejected by the courts of this State. In the case of Illinois Coal Operators v. Pollution Control Board (1974), 59 Ill. 2d 305, 319 N.E.2d 782, our supreme court specifically held that these same stationary noise source regulations do not violate the equal protection clauses of either the United States or Illinois constitutions. Even if we were wont to do so, we will not contradict the finding of that court.

The petitioners next allege that the regulations are not a proper exercise of the police power of this State and are not reasonably related to the public welfare because there has been no showing that any person is harmed. An identical contention was made and rejected in the case of Union Oil Co. v. Pollution Control Board (1976), 43 Ill. App. 3d 927, 931, 357 N.E.2d 715, 718-19, where the court stated:

“We are persuaded the regulation does not exceed the broad police power of the State in that the regulation has a legitimate legislative purpose and has a reasonable relationship to the specific object sought to be attained by its enactment.”

We concur. We also point out that for the legitimate police-power of this State to apply to a subject it is not necessary to show that harm to any specific person has already occurred. It is obviously appropriate for the State to enact prophylactic regulations designed to prevent harm from occurring.

The next contention raised is that the PCB exceeded its authority under the Act because its regulations go beyond the standards developed for public nuisance. Identical arguments in this regard have been unanimously rejected by the courts of this State in the following cases: Illinois State Chamber of Commerce v. Pollution Control Board (1977), 49 Ill. App. 3d 954, 364 N.E.2d 631; Ferndale Heights Utilities Co. v. Pollution Control Board (1976), 44 Ill. App. 3d 962, 358 N.E.2d 1224; Shell Oil Co. v. Pollution Control Board (1976), 37 Ill. App. 3d 264, 346 N.E.2d 212. Wc concur with the findings of those cases and adopt their reasoning.

The petitioners next attack the regulations as being against the manifest weight of the evidence introduced at hearings before the Board. The petitioners contend that we should reweigh the evidence and invalidate the regulations. Due to the present state of the law we cannot, and do not, consider that contention. The appropriate standard of review of PCB regulations is whether they are arbitrary, capricious or unreasonable. This standard was unequivocally set forth by our supreme court in the case of Illinois Coal Operators v. Pollution Control Board, 59 Ill. 2d 305, 319 N.E.2d 782, and Union Oil Co. v. Pollution Control Board, 37 Ill. App. 3d 264, 346 N.E.2d 212. We will also follow that mandate and will not reweigh the evidence.

The next argument presented by the petitioners is that various acts of Congress have both expressly and impliedly preempted the field of noise regulation and, therefore, the State’s regulatory scheme is void. As to this argument, we are of the opinion that it is in reality an attack upon title VI of the Environmental Protection Act itself and not just upon the regulations promulgated by the Board. If we are correct, then, as we have noted above, the argument of preemption is not properly before us and should be dismissed without further comment. However, to avoid any misinterpretation, we briefly comment on this allegation. First, we note that the Federal environmental agency and the Department of Justice have filed an amicus curiae brief with this court. In that brief they deny that there has been a total preemption of the noise regulation field by the Federal Government and direct our attention to the appropriate law. In the case of Florida Lime and Avocado Growers v. Paul (1963), 373 U.S. 132, 142, 10 L. Ed. 2d 248, 257, 83 S. Ct. 1210, the court said:

“The principle to be derived from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.”

In the case before us it is clear that no Federal act expressly reserves the exclusive power to regulate the field of noise control. Secondly, the provisions of section 6(e) of the Federal Noise Control Act (42 U.S.C. §4905(e) (1976)) specifically allow State and local control of environmental noise which would result from the use of a product by its ultimate consumer, such as is the case here. Third, the legislative history of the Federal acts concerning noise control shows a clear and unmistakable intent of Congress to permit, and even encourage, local control over noise. Therefore, we reject the petitioners’ contention of express or implied preemption on its merits.

The final argument presented herein is three-fold and initially somewhat obscure. The petitioners first allege that statewide noise regulations “usurp” the power of local government to zone land, in that they affect or restrict the uses to which land is put. Second, they contend that noise is a purely local concern which should not be regulated by the State as a matter of policy. Third, and lastly, they contend that the problems involving noise are closely involved with and related to problems of public nuisance control and zoning and, therefore, they should be dealt with on the local rather than on the State level. The underlying issue which is presented by the arguments of the petitioners is that noise is a local issue and should not be subject of statewide control. This issue has been resolved by the legislature in its declaration in title VI and the duty of the PCB as prescribed by that act is to implement that mandate. It is clear that these last three arguments are directed at the validity of the Act itself rather than merely the regulations. Therefore, for the reasons we have stated above, we are without jurisdiction to consider them, and will not do so.

For the reasons set forth in this opinion, the regulations promulgated by the PCB for the control of stationary source noise emissions are valid and are affirmed.

Affirmed.

WOODWARD, J., concurs.

1 Reference is also made to that decision as to numerous public hearings throughout the State relative to the adoption of the proposed regulations.