United States Steel Corporation v. Illinois Pollution Control Board

No. 74-327 (367 N.E.2d 327, 52 Ill. App. 3d 1) (Ill. App. Ct. August 23, 1977)

ELR Digest

On direct appellate review of regulations promulgated by the Illinois Pollution Control Board pursuant to the state's Environmental Protection Act (ILL. REV. STAT. 1975, ch. 111 1/2, paras. 1029,1041) and Supreme Court Rule 335 (ILL. REV. STAT. 1975, ch. 110A, para. 335), the court affirms and finds valid Rules 410(b), 909(h), 910(a)(6), and 910(1). The regulations establish standards for the control of pollutant discharges from point sources into the navigable waters within the State of Illinois. The issues addressed by the court are whether (1) the regulations are inconsistent with the Board's authority under the Act, (2) the regulations are arbitrary, capricious, and unreasonable, and (3) the regulations are unconstitutional as a denial of due process. The court upholds the regulations under each test, relying upon Commonwealth Edison v. Pollution Control Bd., 62 Ill. 2d 494, 343 N.E.2d 459 (1976); Illinois Coal Operators Ass'n v. Pollution Control Bd., 59 Ill. 2d 305, 319 N.E.2d 782 (1974); Shell Oil Co. v. Illinois Pollution Control Bd., 37 Ill. App. 3d 264, 346 N.E.2d 212 (Ill. Ct. App., 5th Dist., 1976), and, to the extent that this court is in accord, Peabody Coal Co. v. Illinois Pollution Control Bd., 36 Ill. App. 3d 5, 344 N.E.2d 279 (Ill. Ct. App., 5th Dist., 1976).

The Board's Rule 410(b) requires a permit applicant to determine whether or not a pollutant is present in its discharge to any extent whatsoever, regardless of whether the discharge is in compliance with all federal and state guidelines or whether the applicant even knows of the pollutant's existence. Petitioner argues that under the Board's legislative mandate (ILL. REV. STAT. 1975, ch. 111 1/2, para. 1013(b)(i)), all discharges except those specifically limited by the applicant's federal national pollution discharge elimination system (NPDES) permit are permissible. Rejecting this contention, the court holds that § 13(b)(i) of the Act does not limit and Board's rule-making power to that necessary to obtain federal approval of Illinois' NPDES permit program. Peabody Coal, supra. Furthermore, an NPDES permittee may be required to report any pollutants in his discharge which the federal Environmental Protection Agency Administrator "may reasonably require." Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1318(a)(A), ELR STAT. & REG. 41116.

Petitioner argued that Rule 410(b) is arbitrary and capricious because the Board failed to make findings of fact as to the economic reasonableness and technical feasibility of the requirement that every pollutant be identified. Refusing to follow Peabody Coal, supra, in this regard, the court rejects this argument. The burden of establishing the invalidity of the water effluent regulations rests with the petitioner. Shell Oil, supra. The Board conducted hearings, took written submissions, and considered every request for a modification of the proposed regulations. The fact that five corporations submitted comments alleging their inability to comply with the proposed regulations fails to support petitioner's contention that Rule 410(b) is therefore arbitrary and capricious. Specifics of the Board's evaluations are a matter of administrative discretion, and the Board is not required to produce a record regarding the economic and technical capabilities of polluters. Finally, Rule 410(b) is not an unlawful and unreasonable extension of the state's police power because the methods chosen by the Board to achieve the goals of the FWPCA and the Act are reasonable "considering the evil to be corrected." Peabody Coal, supra.

Rule 909(h), under which an NPDES permit is effective when issued, does not deny procedural due process to permit applicants because safeguards exist to protect petitioner's due process rights and because the significant governmental interest at stake outweighs petitioner's hardship. Peabody Coal, supra.

Rule 910(a)(6), which directs the Environmental Protection Agency to impose effluent conditions necessary to carry out the provisions of the FWPCA, is not invalid for conferring substantive rulemaking authority on the Agency in violation of the Act. This rule is a directive from the Board to the Agency consistent with the Agency's grant of authority to set conditions and terms for the issuance of NPDES permits under § 39(b) of the Act (ILL. REV. STAT. 1975, ch. 111 1/2, para. 1039(b)). See also Commonwealth Edison, supra.

Rule 910(1), which imposes stringent standards on NPDES permits for toxic effluents, does not invalidly work a unilateral modification in a permit without an opportunity for a hearing because petitioners due process rights were protected in federal hearings held prior to the implementation of the new toxic standard, 33 U.S.C. § 1317, ELR STAT. & REG. 41115, and are further protected by the availability of judicial review of the new toxic regulation, 33 U.S.C. § 1369, ELR STAT. & REG. 41127. Furthermore, Rule 910(1) is consistent with the FWPCA and federal regulations as part of a state plan which allows modification of all toxic pollutant standards. Peabody Coal, supra.

The Board's rules are upheld.

The full text of this opinion is available from ELR (10 pp. $1.25, ELR Order No. C-1147).

Counsel for Petitioner
Henry L. Pitts, Clifton A. Lake
Hackbert, Rooks, Pitts, Fullagar & Proust
208 South LaSalle St., Suite 1776, Chicago IL 60604
(314) 372-5600

Counsel for Respondent
William J. Scott, Attorney General; Russell R. Eggert, Marvin I. Medintz, Richard W. Cosby, Dennis R. Field, Ass't Attorneys General
500 South 2d St., Springfield IL 62701
(217) 782-1090

Boyle, J., with Seidenfeld & Nash, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]