People ex rel. Ryan ex rel. Douglas v. IBP, Inc., No. 3-99-0114

3rd District, 30 December 1999

JUSTICE KOEHLER delivered the opinion of the court:

The defendant-appellant, IBP, Inc., was granted leave by this court to file an interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308) of the Rock Island County circuit court's denial of its motion to dismiss counts I and III of the plaintiff-appellee Illinois Attorney General's (State's) complaint for failure to plead sufficient facts. The certified question we must answer is whether a plaintiff in a case filed in circuit court alleging a violation of section 9(a) of the Illinois Environmental Protection Act (415 ILCS 5/9(a) (West 1998)) must plead facts regarding the unreasonableness of the alleged emissions, including facts regarding technological practicability and economic reasonableness of additional controls. In answer to the certified question, this court concludes that, in an action brought in circuit court alleging a violation of section 9(a) of the Illinois Environmental Protection Act, the complainant is not required to plead facts regarding technological practicability and economic reasonableness. Accordingly, we affirm.

FACTS

The defendant, IBP, owns and operates a beef slaughtering and processing facility near the small unincorporated town of Jocelin, Illinois, in Rock Island County. The facility includes animal holding pens, slaughtering and rendering operations, a tannery, wastewater treatment system, and areas for the application of sludge generated from the wastewater treatment system and other materials produced at the site. The plaintiff, Attorney General, brought an action in the circuit court for injunctive relief under section 42 of the Illinois Environmental Protection Act (415 ILCS 5/42(e) (West 1998)) (Act) seeking an injunction and civil penalties against IBP. The State alleges in count I of its complaint a violation of section 9(a) of the Act, which prohibits the discharge of contaminants or emissions that cause air pollution. Count I alleges that: (1) local residents have complained of foul odors and smells emanating from the facility causing headaches, burning lips and noses, upset stomachs and nausea; (2) the odors can be smelled inside closed cars and buildings; (3) Jocelin's citizens have been forced to refrain from outdoor activities; (4) Illinois Environmental Protection Agency (IEPA) inspections of the plant have identified the tannery, gel-bone plant, rendering plant and sewer system as sources of the odor; and (5) the odors violate section 9(a) because they are air pollution within the meaning of the Act and are in sufficient quantities as to be "injurious to human, plant or animal life, or to unreasonably interfere with the enjoyment of life or property." In count I, the State seeks relief in the form of a preliminary and permanent injunction and asks the court to compel IBP to perform an odor-abatement study and take remedial action indicated by the study to prevent the nuisance.

In count III the State alleges a violation of section 9(a) and section 201.141 of the Administrative Code (35 Ill. Adm. Code