Chicago Allis Mfg. Corp. v. Metropolitan Sanitary Dist. of Greater Chicago

• Decision Date: 02 October 1972
• Docket Number: No. 45024,45024
• Citation: 52 Ill.2d 320,288 N.E.2d 436
• Parties: , 4 ERC 1642, 3 Envtl. L. Rep. 20,054 CHICAGO ALLIS MFG. CORP. et al., Appellants, v. The METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, Appellee.
• Court: Illinois Supreme Court

Page 436

288 N.E.2d 436

52 Ill.2d 320, 4 ERC 1642, 3 Envtl.

L. Rep. 20,054

CHICAGO ALLIS MFG. CORP. et al., Appellants, v. The METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, Appellee.

No. 45024.

Supreme Court of Illinois.

Oct. 2, 1972.

Lee A. Monroe, Chicago (Sidney & Austin, Chicago, of counsel), for appellants.

Allen S. Lavin, Chicago (Fred F. Herzog and Sanford R. Gail, Chicago, of counsel), for appellee.

WARD, Justice, delivered the opinion of the court:

On April 14, 1971, the plaintiffs, seventeen companies with plants located within the jurisdiction of the Metropolitan Sanitary District of Greater Chicago, brought an action for declaratory judgment against the District in the circuit court of Cook County, contending that section 7a of the Sanitary District Act (Ill.Rev.Stat.1971, ch. 42, par. 326a), and the Industrial Waste Surcharge Ordinance, which had been enacted under the statute by the District, violate the constitutions of Illinois and the United States. At the conclusion of the plaintiffs' case the court allowed the District's motion for judgment. The appeal of the plaintiffs has been presented to this court under the provisions of our Rule 302(b). 50 Ill.2d R. 302.

The challenged statute (Ill.Rev.Stat.1969, ch. 42, par. 326a) in subsection (a) forbids '* * * any industrial or manufacturing plant to discharge into the sewers or works of the Sanitary District or into any sewer connected therewith, any waste matter of any nature whatever resulting from or the residue of any industrial or manufacturing operation or process carried on in such plant, where the mixture of such waste matter, sewage and water discharged by such industrial or manufacturing plant into such sewers or works equals in any twelve-month period an aggregate volume of three million, six hundred fifty thousand (3,650,000) gallons.' Subsection (b), however, empowers the district, '* * * in the interest of public health and safety, to permit the discharge into the sewers and works of the Sanitary District and into sewers connecting therewith from any industrial or manufacturing plant, a mixture of waste matter, sewage and water as described in paragraph (a) hereof, in excess of an aggregate volume of three million, six hundred fifty thousand (3,650,000) gallons in any twelve-month period, upon reasonable terms and conditions, including a requirement for the payment of compensation to the Sanitary District for the conveying, pumping, treatment and disposal of such excess.' Subsection (c) empowers the Sanitary District '* * * to pass all necessary ordinances to carry into effect the powers * * * conferred * * *.'

Under the statute, on December 10, 1970, the District enacted an ordinance allowing the discharge of industrial waste into District sewers from any plant coming under the statute which would exceed 3,650,000 gallons annually and providing for the payment of a surcharge for the treatment of the waste by the District. Industrial wastes are defined as: 'Any solid, liquid, or gaseous wastes, including cooling water, resulting from any industrial or manufacturing process or from the development, recovery or processing of natural resources.' The ordinance declares that an industrial plant is '(a)ny facility which discharge industrial wastes. Each separate industrial plant will be considered and assessed individually even though an owner may operate two or more industrial plants within the Sanitary District.' The computation of the surcharge is based upon three factors: the amount of liquid discharged, the '5 day, Biochemical Oxygen Demand,' or BOD, of the sewage and the suspended solid content of the sewage. Biochemical Oxygen Demand is defined as 'the quantity of dissolved oxygen required for biochemical oxidation of decomposable matter under aerobic conditions in a period of five days at a temperature of 20 degrees centigrade.' Suspended solids are: 'Solids that either float on the surface or are in suspension in an industrial waste mixture and which are removable by loboratory filtering.'

The measurement of the amount and content of the waste subject to the surcharge is made the responsibility of the plant. The ordinance further requires: 'In order to provide for accurate sampling and measurement of industrial wastes, each industrial plant shall provide, on each of its industrial waste outlet sewers, a large manhole or sampling chamber * * *.' And, '(e)ach sampling chamber shall contain a Parshall flume, accurate weir, or similar device, with a recording and totalizing register for measurement fo the liquid quantity; or the metered water supply to the industrial plant may be used as the liquid quantity where it is substantiated that the metered water supply and waste quantities are approximately the same, or where a measurable adjustment can be made in the metered supply to determine the liquid quantity.'

On this appeal, the plaintiffs first contend that the sampling chamber and metering device requirements under the ordinance constitute an unlawful taking of their property in violation of due process. After acknowledging that '(u) ncompensated obedience to a regulation enacted for the public safety under the police power of the State is not taking or damaging without just compensation of private property' (Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed.2d 979), the plaintiffs first argue that the surcharge ordinance does not fall within the police power and that its 'sole purpose * * * is * * * to raise money for the Sanitary District * * *.'

The contention that the surcharge ordinance is unrelated to the exercise of the police power is unimpressive. A system for waste disposal and sewage treatment has long been regarded as necessary for public health (Hutchinson v. City of Valdosta, 227 U.S. 303, 33 S.Ct. 290, 57 L.Ed. 520, 523; Judge v. Bergman, 258 Ill. 246, 101 N.E. 574; People ex rel. Village of South Chicago Heights v. Bergin, 340 Ill. 20, 25, 172 N.E. 60). The plaintiffs, here and in the trial court, have acknowledged that industrial wastes impose a special burden on the District's facilities in comparison with residential wastes, and that the ordinance was designed to compensate the District for the additional cost burden. It is clear that the surcharge ordinance relates to the disposal of waste which obviously poses a potential hazard to public health.

Alternatively, the plaintiffs argue that less costly and equally effective methods for the measurement of industrial waste are available, and that there is a denial of due process through the failure of the ordinance to permit the use of these less costly measuring techniques. The plaintiffs found this contention upon a dictum in Goldblatt v. Town of Hempstead, 369 U.S. 590, 595, 82 S.Ct. 987, 990, 8 L.Ed.2d 130, 134: 'The ordinance in question was passed as a safety measure, and the town is attempting to uphold it on that basis. To evaluate its reasonableness we therefore need to know such things as the nature of the menace against which it will protect, the availability and effectiveness of other less drastic protective steps, and the loss which appellants will suffer from the imposition of the ordinance.' Here, the plaintiffs say that the record establishes both the availability of the 'less drastic' steps and the allegedly considerable expenditure they and others similarly situated will make. In particular, they tell us that '* * * in the case of the companies subject to the ordinance, some 2,000 in all, the capital outlay is approximately $150,000,000 and as much as $200,000,000 if plant shutdowns and business interruptions are considered.'

The record shows that the evidentiary support for these claims consists of the testimony of three representatives of companies subject to the ordinance. Thomas J. Walsh, the manager of environmental conservation for the Glidden Durkee Division, Smith-Corona Corporation, testified regarding the costs his company expected to incur for the installation of the required equipment. The witness, who is assigned to a branch of the company in Ohio, said that his company has four plants within the jurisdiction of the sanitary district, which have 28 outlets into the District's sewers. He estimated that to install the necessary manholes and sampling equipment his company would spend an average of $13,000--$15,000 per manhole, or a total of approximately $405,000. He did say, however, that by combining sewer outlets, it should be possible to reduce the installation costs to about $100,000. Walsh also testified that installation of the equipment would in his opinion require the company to shut down part of its operation temporarily.

The witness testified that there were between 5 and 8 manholes already on the premises of these plants, and acknowledged that if his company were able to modify them to meet the requirements of the ordinance, the cost of the installation would be reduced. He did not know if any of the manholes could be so modified. Regarding the basis for his estimates, the witness stated that the $13,000--$15,000 estimates for the cost of a manhole and sampling chamber came from the company's engineering department and were bottomed on an analysis made in Reading, Pennsylvania, in anticipation of the enactment of a surcharge ordinance there. He also testified that the cost of installing a manhole was dependent upon the soil conditions, and admitted that soil conditions in Chicago might very well differ from those in Reading. He did say that he was '* * * of course, going to have better estimates before we get very far down the line and start working.' The witness acknowledged that most of his company's sewers discharged storm wastes which would not be within the ordinance.

Arthur C. Thomas, the production manager of the Sherwin-Williams Company, testified that his plant has 22 outlets into sewers of the Sanitary District, 16 or 17 of which discharge...