Commonwealth Edison Co. v. Pollution Control Bd.
| Decision Date | 20 January 1976 |
| Docket Number | No. 47352,47352 |
| Parties | , 8 ERC 1531 COMMONWEALTH EDISON COMPANY, Appellee, v. The POLLUTION CONTROL BOARD, Appellant. |
| Court | Illinois Supreme Court |
William J. Scott, Atty. Gen., Chicago (George Wm. Wolff, Asst. Atty. Gen., of counsel), for appellant.
Richard E. Powell, Gerald D. Mindell, and Eugene H. Bernstein, Chicago (Isham, Lincoln & Beale, Chicago, of counsel), for appellee.
Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark and Larry G. Gutterridge, Dept. of Justice, Washington, D.C. (Robert B. Schafer, Regional Counsel, Dorothy Attermeyer, Asst. Regional Counsel, and John Bonine and Jerome Ostrov, U.S. Environmental Protection Agency, of counsel), for amicus curiae United States Environmental Protection Agency.
Thomas Arthur, Chicago, and Daniel Swartzman, Research Asst., for amicus curiae Chicago Lung Assn.
On April 13, 1972, under its docket No. R 71--23, the Illinois Pollution Control Board (hereafter the Board) filed an opinion and order adopting chapter 2 of its rules and regulations. Chapter 2 was divided into eight parts and contained both new rules and previously adopted rules which had been renumbered and reclassified. Commonwealth Edison Company (hereafter Edison) was a party to the hearings held prior to adoption of the rules classified under parts I, II and III of chapter 2 (I--General Provision; II--Emission Standards and Limitations for Stationary Sources; III--Air Quality Standards). Pursuant to sections 29 and 41 of the Environmental Protection Act (Ill.Rev.Stat.1971, ch. 111 1/2, pars. 1029, 1041) Edison filed a petition in the appellate court seeking review of Rules 103(a)(5)(b), 103(b)(6)(A), 103(e), 103(i), 104, 105, 111, 202(b), 202(e), 203(g), 203(i), 204(c), 204(h), and 303 of chapter 2. The appellate court affirmed the adoption of Rule 103(e)(1); held Rule 303 to be void; and reversed the adoption of Rules 203(g)(1) and 204(a)(1) and (c)(1)(A) and remanded with directions. 25 Ill.App.3d 271, 323 N.E.2d 84.) We granted the Board's petition for leave to appeal.
This appeal is concerned only with the validity of Rules 203(g)(1), 204(a)(1), 204(c)(1)(A) and 303. Although the Board and Edison have briefed and argued a number of points, their contentions will be reviewed only to the extent necessary to the decision of this case. The United States Environmental Protection Agency and the Chicago Lung Association, pursuant to leave granted, have filed briefs as Amici curiae.
We consider first the contentions of the parties concerning Rule 303, which provided:
'Nondegradation.
Existing ambient air quality which is better than the established ambient air quality standards at the date of their adoption will be maintained in its present high quality. Such ambient air quality shall not be lowered unless and until it is proved to the Agency (Illinois Environmental Protection Agency) that such change is justifiable as a result of necessary economic and social development and will not interfere with or become injurious to human health or welfare.'
In its opinion filed at the time of adopting chapter 2 the Board stated:
The appellate court stated: (25 Ill.App.3d 271, 279, 323 N.E.2d 84, 88.) The court held that there was no legislative intent that the Board redelegate its authority to the Agency, that it was not empowered to do so, and that Rule 303 was void.
We do not agree that in adopting Rule 303 the Board delegated to the Agency its authority to establish ambient air quality standards. Ambient air quality standards were established in Board Rules 301, 302, and 304 through 312 of chapter 2, and Rule 303 does not purport to delegate to the Agency the authority to establish standards. The provision that if the existing ambient air quality was higher than that established by the Board's rules and regulations, the higher quality was to be maintained unless lowering it was justified by 'necessary economic and social development and will not interfere with or become injurious to human health or welfare' was a directive to the Agency and did not serve to delegate to the Agency the authority to set standards. In holding as it did, the appellate court erred, and that portion of its judgment must be reversed.
We consider next the contentions with respect to Rules 203(g)(1), 204(a)(1) and 204(c)(1)(A). These rules are contained in the opinion of the appellate court (25 Ill.App.3d at 282--285) and need not be repeated verbatim here. Rule 203(g)(1) established particulate emission standards and limitations for fuel combustion emission sources using solid fuel exclusively. Rule 204(a)(1) established sulfur dioxide emission standards and limitations for new fuel combustion emission sources with actual heat input greater than 250 million BTU per hour using solid fuel exclusively, and Rule 204(c)(1)(A) established sulfur dioxide emission standards and limitations for existing fuel combustion sources located in the Chicago, St. Louis (Illinois) and Peoria major metropolitan areas using solid fuel exclusively. The order provided that Rule 204(c)(1)(A) was to become effective May 30, 1975.
The record shows that 83% Of the fuel used to fire Edison's generating units was coal. These coal-fired units were designed for use with Illinois coal, which has a sulfur content of about 3.5% And a heating value of about 10,500 BTU. To comply with the sulfur dioxide emission limit in Rule 204(c)(1)(A), Edison would be required to use coal with a sulfur content of about 0.9%; and compliance with the sulfur dioxide emission limit in Rule 204(a)(1) of 1.2 pounds per million BTU for new coal-fired generating units would require it to use coal with a sulfur content of about 0.6%. Electrostatic precipitators which control particulate emissions, and which have been installed on most of Edison's coal-fired generators at a cost of $40,000,000, will comply with the 0.2 pound per million BTU particulate limit in Rule 203(g)(1), if Edison continues to burn the Illinois coal; but if low sulfur coal is used, these precipitators lose efficiency, and Edison would violate Rule 203(g)(1). It would take eight years to install new precipitators or rebuild existing precipitators for use with low sulfur coal without interrupting service.
Omitting their many facts and figures, Edison's basic arguments may be summarized as follows:
1. There are not available sufficient quantities of natural gas, low sulfur oil or low sulfur coal to comply with Rule 204.
2. The present technology on sulfurremoval equipment is not adequate to allow Edison to use high sulfur coal and comply with the sulfur dioxide limits in Rule 204.
3. The emission limits set by the Board went beyond what was needed to achieve the Federal primary and secondary ambient air quality standards.
4. The Federal primary and secondary ambient air quality standards already have a built-in margin of safety over and above what considerations of health and welfare require.
5. It would cost between $1.9 billion and.$2.7 billion over the lifetime of any equipment which could be installed to comply with Rule 203(g)(1) and Rule 204.
Section 27 of the Environmental Protection Act (Ill.Rev.Stat.1973, ch. 111 1/2, par. 1027) provides that the Board, in promulgating regulations under the Act, shall take into account, among other things, 'the technical feasibility and economic reasonableness of measuring or reducing the particular type of pollution.' The appellate court held that the record failed to show that the Board took into account the technical feasibility and economic reasonableness of a simultaneous compliance with Rules 203(g)(1) and 204. (25 Ill.App.3d 271, 287--88, 323 N.E.2d 84.) In remanding the cause to the Board for further consideration of these rules, that court stated:
25 Ill.App.3d 271, 288, 323 N.E.2d 84, 96.
The Board contends that the appellate court erred in holding that it had not, prior to the adoption of Rules 203 and 204, considered their economic reasonableness and technical feasibility. It is Edison's position that the evidence shows conclusively that it cannot in the foreseeable future comply with Rules 203 and 204 without shutting down many of its generating units resulting in 'vast interruptions of service'; that because of technological deficiencies and the unavailability of reliable sulfur-removal equipment it is not...
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