ILLINOIS POLLUTION CONTROL BOARD

June 26, 1975

IN THE MATTER OF:

The Proposed Amendments to Air

)

R74-12

Pollution Regulations to Regulate

Smoking in Public Places

OPINION AND ORDER OF THE BOARD (by Mr. Henss):

A group called The Environmental Lawyers Clinic filed a

petition

with

the Illinois Pollution Control Board requesting

that the smoking of tobacco in public places be restricted.

Petitioner proposed that:

“No person shall smoke any tobacco product in

any public elevator, indoor theater, library, art

museum, concert hall, store, shop, restaurant, or

in

any means of mass transportation which is used

by or open to the public, or in any public portions

of any room, ward, or area of any hospital,

medical or dental clinic, or in any portion of

any room,

chamber,

place of meeting or public

assembly in

which the public business is trans-

acted; except that, the owner, manager or officer

in charge of

any

such location may designate, by

prominently displayed public sign or notice, certain

portions of such locations as “smoking” and “non-

smoking” areas, and may permit smoking only in

those

areas designated “smoking” areas notwithstanding the

provisions hereof, provided, however, that such

“smoking~ areas are located or designed so as to

proteqt the health and safety of persons outside of

such areas.”

Petitioner also found it necessary

to propose that the

current definitions of

“ambient

air” and “emission source” be

amended, We are asked to define “ambient air” as the “in-

ternal or external atmosphere surrounding emission sources.”

At the present time, ambient air is defined in our Regulation

as the atmosphere external to buildings.. The proposal would

have us redefine “emission source” to include “any article”

capable of emitting specified air contai1~inants “in such amounts

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as to endanger the health and safety of the public”. At the

present time an “emission source” is any equipment or facility

of a type capable of emitting specified air contaminants “to

the atmosphere’. Under the proposal, it would no longer be a

requirement that the emission be “to the atmosphere”.

The Pollution Control Board requested Petitioner and a

number of other organizations to file briefs regarding the

BoarcPs jurisdiction to adopt the proposed regulation. Legal

briefs were filed by The Environmental Lawyers Clinic, the

Chicago Heart Association and the Illinois Association of

Tobacco and Candy Distributors. A number of other organizations

submitted statements which did not address the jurisdictional

issue.

Section 28 of the Environmental Protection Act provides:

“Any person may present written proposals for the

adoption, amendment or repeal of the Board’s regulations,

and the Board may make such proposals on its own motion.

If the Board finds that any such proposal is supported

by an adequate statement of reasons, is accompanied by

a petition signed by at least 200 persons, is not plainly

devoid of merit and does not deal with a subject on which

a hearing has been held within the preceding six months,

the Board shall schedule a public hearing for consideration

of the proposal... The Board may also in its discretion

schedule a public hearing upon any proposal without regard

to the above conditions”.

In Gromes Supermarket vs. Pollution Control Board, 6 Ill. App. 3rd

1036 (1972) it was held that parties who are interested in

challenging the Board’s jurisdiction are not entitled to judicial

relief until after the hearings have been conducted. As a

practical matter this means that we can schedule hearings on a

proposed regulation even if we do not have the jurisdiction to

ultimately adopt that regulation. We do not accept the view,

however, that no more is required, to get a hearing before the

Illinois Pollution Control Board, than an idea (one not plainly

devoid of merit) and 200 signatures. Such a philosophy would

place our time, our efforts and our environmental program at the

mercy of any number of well—intentioned individuals who have

ideas, of one kind or another, and the ability to collect 200

signatures. We do not believe that we are mandated to hold

hearings on regulations which we have no jurisdiction to adopt.

We do not choose to hold hearings in this matter unless we have

jurisdiction to actually adopt the proposal.

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After careful consideration of the rather sparse material

available to us we find that we’do not have jurisdiction to

adopt the proposal. Therefore, we will not schedule hearings.

The petition will be dismissed. If the reviewing Court finds

that we do have jurisdiction to adopt the proposed regulation

then we wish to make it known that we will schedule hearings

upon receipt of the mandate of the Court.

As an administrative agency created by statute we exercise

only those powers conferred upon us by the enabling statute.

We do not believe that the Illinois Legislature has granted us

authority to re~ulate the quality of the indoor air. Section

10 of the Environmental Protection Act gives this Board the

authority to adopt “ambient air quality standards”, The

Legislature did not specify what definition should be given to

the term “ambient air”. However, the commonly accepted def in—

ition is that it means the outside air. The term is defined by

the U. S. Environmental Protection Agency:

“Ambient air means that portion of the atmosphere,

external to buildings, to which the general public has

access”. [40 CFR Section 50.1(e)]

The United States Supreme Court in a very recent decision stated:

“The Clean Air Act Amendme:its directed the Environmental

Protection Agency to publish regulations describing

national quality standards for the ‘ambient air’, which

is the Statute’s term for the outdoor air used by the

p~1ic.” (Emphasis supplied) Train vs. Natural

Resources Defense Council, 43 USLW 4467 (U. S. No. 73—1742,

April 15, 1975)

The definition of ambient air is sufficiently well settled

that we should not attempt to redefin~it without some expression

from the Legislature accepting a new definition and thereby

broadening our authority.

The Legislature has specifically given this Board the

authority to prescribe emission standards specifying maximum

concentrations of various contaminants that may be discharged

“into the atmosphere”. (Environmental Protection Act, Section 10)

The word “atmosphere” is used in several places in the Illinois

Statute. SectionS 8 states that it is the purpose of the Act to

assure that no air contaminants are discharged “into the atmos-

here” without the treatment or control necessary to prevent

pollution. Section 9(a) is a prohibition against the emission

of contaminants so as to cause “air pollution”. “Air pollution”

is defined as the presence “iii the atmosphere” of contaminants

17 -~-459

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of such quantity, characteristics and duration as to be

injurious to health, etc. [Environmental Protection Act,

Section 3(b))

The word “atmosphere” is not defined in the Statute.

Webster defines it as:

“1. A gaseous mass enveloping a heavenly body (as

a planet).

2. The whole mass of air surrounding the earth.

3. The air of a locality.

4. A surrounding influence or environment.

5. A unit of pressure equal to the pressure

of the air at sea level or approximately

14.7 lbs. to the square inch.”

The Board in the past has not established standards for

indoor air. Even in the adoption of the asbestos regulation

the Board noted that the indoor impact of the regulation was

“merely incidental” to the attempt to regulate asbestos in

the outside air. The Board’s Opinion by Mr. Lawton states:

“The regulation we adopt today does not control the

level of asbestos inside of a plant, largely an occu-

pational hazard beyond our jurisdiction. (Emphasis

supplied) Insofar as this Board’s regulation affects

what transpires inside a plant or on a construction

site, the impact is merely incidental to the relation-

ship between certain ‘in-plant’ activity and a sig-

nificant hazard of air pollution beyond the site of

such activity.” (R71—l6, January 6, 1972)

The Board was constrained to make this statement even though the

Legislature had recognized asbestos as a serious health hazard

~receiving special attention in Section 9(e) of the Environmental

Protection Act. That Section gave the Board especially broad

powers to regulate with regard to asbestos.

We find from a reading of the entire Statute that it was

designed for the regulation of the outside air. We draw this

inference from the absence of certain things from the Statute

as well as from the words which are actually there. For instance,

in Section

2

of

the Act there is no finding by the Legislature

that unhealthy conditions exist in work, commercial and

recreational indoor environments. There are no definitions in

Section 3 for such terms as designated smoking areas, tobacco

products, smoking, health hazard area. Section 5 fails to

state that Pollution Control Board authority does not supplant

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the express authority of the Illinois Department of Labor to

enforce occupational safety and health standards under the

Illinois

Health and Safety Act, Illinois Revised Statutes,

Chapter 48.

If we were to have authority over the indoor air,

Section 10(g) would probably have stated that “the Board may

adopt standards for the designation of health hazard areas

in any public facility

and requirements for public notice of

such health hazard areas”. The third sentence of Section 27

could have said:

“In promulgating regulations under this

Act, the Board shall take into account the e~istingphysical

conditions, the character of the area or public fecility

involved...”

When the Statute was adopted, the General Assembly mandated

the Environmental Protection Agency to operate and arrange for

the operation of devices for the monitoring of environmental

quality [Section 4(b)]. The Legislature provided only such

funds as were necessa~’yfor the monitoring of the external air.

We believe that thc’re was no intention to include inside air as

a part of the environment subject to such control.

For all of these reasons we conclude that the Board has no

jurisdiction

to adopt the proposed regulation.

Therefore,

we

find that the petition is plainly devoid of merit and we de-

cline to schedule hearings on it.

This Opinion constitutes

the findings of fact and con-

clusions of law of the Illinois Pollution Control Board.

ORDER

It is the Order of the Pollution Control Board that the

Petition for Regulation filed by The Environmental Lawyers

Clinic on October 22, 1974 be and it is hereby dismissed.

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, hereby certify the above Opinion and Order was pdopted

the

~

day of

\,~

,

1975 by a vote of ~‘.-C~

Christan L. Moffej~t~/C1erk

Pollution Control Bbard