Citizens Utilities Co. v. Illinois Pollution Control Bd.
| Citation | 289 N.E.2d 642,9 Ill.App.3d 158 |
| Decision Date | 16 November 1972 |
| Docket Number | No. 71--253,71--253 |
| Parties | , 4 ERC 1812 CITIZENS UTILITIES COMPANY of Illinois, Petitioner, v. ILLINOIS POLLUTION CONTROL BOARD and Illinois Environmental Protection Agency, Respondents. |
| Court | United States Appellate Court of Illinois |
Chapman & Cutler, John N. Vander Vries, Daniel J. Kucera, Chicago, for petitioner.
Wm. J. Scott, Atty. Gen., Melvyn A. Rieff, Asst. Atty. Gen., Chicago, for respondents.
The petitioner, Citizens Utilities Company of Illinois, sought a variance under the provisions of the Environmental Protection Act (Ill.Rev.Stat.1971, ch. 111 1/2, par. 1001 et seq.). The Illinois Pollution Control Board granted the variance but attached conditions to its administrative order, including a $1000 penalty.
In this appeal the petitioner argues that certain of the conditions imposed either wholly or in part are against the manifest weight of the evidence, are too vague to be enforced, and exceed the statutory authority of the Board. The monetary penalty is additionally attacked on the constitutional grounds that it is an unlawful delegation to an administrative board of judicial powers in conflict with the principle of separation of powers; and that the imposing of the penalty in a variance proceeding offends due process.
In the proceedings below, it appears that petitioner operates a secondary sewage treatment plant in connection with providing water and sanitary sewer service in an unincorporated area of DuPage County. The plant provides primary and secondary treatment and also contains a stabilization lagoon or pond which is used after secondary treatment for the settling of solids. The lagoon has been in operation for several years pursuant to the direction and approval of the Illinois Sanitary Water Board, the predecessor environmental agency. Petitioner proposed to install a tertiary sewage treatment system in the lagoon in order to provide tertiary treatment to meet new state-wide standards and to serve additional customers. The tertiary system essentially would require installing aerators in the lagoon. To properly install the aerators it would be necsary to fully clean the lagoon and place the components of the new system on its floor. This would necessitate taking the lagoon out of operation for a period of time so that it could be dewatered and accumulated quantities of sludge removed.
Citizens therefore petitioned for a variance to discontinue the operation of the lagoon for six weeks to permit cleaning of sanitary matter and solids from the lagoon and to install the tertiary treatment system. After a hearing the Board entered an order granting the variance subject to various conditions contained in paragraphs (1) through (13) of its order. The conditions in paragraphs (1) through (7) of the order were essentially those which the Illinois Environmental Protection Agency had recommended and to which petitioner agreed at the hearing.
In issue here are conditions in paragraphs (8), (10) and (12) which originated with the Board's order:
'(8) No new waste sources shall be connected to sewers tributary to the plant, nor existing discharges increased in strength or volume, until the lagoon is placed in full operation, or at any time in the future when the plant effluent exceeds regulation limits; on a monthly average, except that upon Board approval of the plan for stormwater control required by paragraph (10) of this order, the Board may allow such additions after compliance is achieved in all other respects;
(10) Within three weeks after termination of this variance the company shall file a report with the Agency and with the Board including all of the elements of the report required by paragraph (9) of this order, and in addition including a schedule for regular maintenance and cleaning of the lagoon and its associated equipment without bypassing directly to the stream, and a firm program for controlling stormwater inflow in the shortest practicable time so that compliance with the effluent standards will not be jeopardized;
(12) Within 21 days after the date of receipt of this order the company shall pay to the State of Illinois the sum of $1000 as a penalty for the violations found and described in the Board's opinion; * * *.'
We first consider petitioner's contentions that paragraphs (8) and (10) are too vague to be enforced, and additionally are not supported by the evidence.
We would agree that that portion of paragraph (8) which prohibits 'existing discharges increased in strength or volume' is vague and unenforceable as it reads. It has not been shown that Citizens has any control over the strength or volume or even the source of sewage which a home places into its system. The condition thus must be limited to circumstances relating to such discharges over which Citizens has practical control. Also, paragraph (8) in combination with paragraph (10) requires Citizens to submit for controlling the Board a 'firm program for controlling stormwater inflow'. While testimony at the hearing indicated that Citizens was presently engaged in some stormwater control measures, the extent of petitioner's ability and authority to control stormwater infiltration in its service territory was not revealed. Nor does the Board's order provide any standards for or limitations on what Citizens must do to comply with the stormwater program requirement. We therefore hold that the Board's order must be limited to allow any reasonably effective plan for stormwater control, and to include only measures in establishing a firm program for controlling stormwater inflow which Citizens has the practical ability and authority to carry out.
However, we do find support in the record for the conditions set forth in paragraphs (8) and (10), if as indicated, they are made dependent on the limitation that Citizens has a practical method of control. Tests stipulated at the hearing show that the plant effluent both entering the lagoon and after discharge from it were in violation of the limits on discharges applicable to that plant. It is therefore reasonable to condition the grant of the variance upon terms designed to insure that once the aerators are installed, the plant will be in compliance with effluent standards.
The question then becomes whether the conditions imposed in paragraphs (8) and (10) are appropriate safeguards to insure the effectiveness of the installation of the aerators. The Board's finding that the conditions are appropriate must be upheld unless against the manifest weight of the evidence. Chicago Junction Ry. Co. v. Illinois Commerce Com. (1952), 412 Ill. 579, 107 N.E.2d 758.
The prohibition against new waste sources until the lagoon is placed into full operation embodies a condition already imposed by the Environmental Protection Agency acting under its permit powers. Prohibiting additional connections after the lagoon is in operation while effluent standards are violated speaks for itself. Additional sewage shoudl not be introduced into a plant that cannot adequately process its present load. Testimony indicated the installation of the aeration equipment would not bring compliance with effluent standards if there were an overload problem. However, even this prohibition is mitigated. The Board may allow additional connections even while effluent standards are violated upon Board approval of a plan for stormwater control.
The record also supports the condition in paragraph (10) requiring a schedule for regularly cleaning and maintaining the lagoon. Citizens' district manager testified that the lagoon would have to be cleaned regularly. Yet there was no explanation in the record as to why the lagoon was allowed to deteriorate to the point where frequently the BOD 'count' 1 has been higher for effluent discharged from the lagoon than for influent entering the lagoon, a fact never in dispute at the hearing.
The condition requiring a firm program for control of stormwater inflow so that compliance with effluent standards will not be jeopardized also finds support in the record. Testimony at the hearing indicated that the ability of the plant to comply with effluent standards even after the installation of the aerators would depend upon the effectiveness of action taken to reduce excess storm flows into the plant. Other testimony and reports indicated an overload problem at the plant which reduced its ability to treat sewage. Citizens' district manager testified it was presently engaged in efforts to reduce excess water infiltration. There was no testimony showing that the installation of the aerators would compensate for the burden created by the overload problem, nor any evidence rebutting the Board's finding that compliance with effluent standards would be jeopardized without a program controlling stormwater input.
We therefore conclude that the enforceable conditions of paragraphs (8) and (10) are supported by the evidence as proper safeguards to insure the usefulness of the installation of the aerators. Pursuant to section 12(e), (f) of the Administrative Review Act (Ill.Rev.Stat.1971, ch. 110, par. 275(e), (f)) made applicable to appellate review under Supreme Court Rule 335(h)(2) (Ill.Rev.Stat.1971, ch. 110A, par. 335(h)(2)), we remand paragraphs (8) and (10) of the Board's order with instructions to clarify these provisions by limiting the conditions dealing with existing discharges and stormwater control to the extent that Citizens has a practical method of control as heretofore indicated.
It is not entirely clear, either from the wording of the order below or from...
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