Granite City Div. of Nat. Steel Co. v. Illinois Pollution Control Bd., No. 72850

• Court: Supreme Court of Illinois
• Writing for the Court: BILANDIC
• Citation: 184 Ill.Dec. 402,613 N.E.2d 719,155 Ill.2d 149
• Decision Date: 15 April 1993
• Docket Number: No. 72850
• Parties: , 184 Ill.Dec. 402, 36 ERC 1940 GRANITE CITY DIVISION OF NATIONAL STEEL COMPANY et al., Appellants, v. The ILLINOIS POLLUTION CONTROL BOARD, Appellee.

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613 N.E.2d 719 155 Ill.2d 149, 184 Ill.Dec. 402, 36
ERC 1940 GRANITE CITY DIVISION OF NATIONAL STEEL COMPANY et al., Appellants,
v.
The ILLINOIS POLLUTION CONTROL BOARD, Appellee. No. 72850. Supreme Court of Illinois. April 15, 1993.

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[155 Ill.2d 154] [184 Ill.Dec. 404] James T. Harrington, Heidi E. Hanson, David L. Rieser, Chuck W. Wesselhoft and Darren J. Hunter, of Ross & Hardies, Chicago, and R. Eric Robertson, Lueders, Robertson & Konzen, Granite City, for appellants.

Roland W. Burris, Atty. Gen., Springfield (Rosalyn Kaplan, Sol. Gen., and James L. Morgan, Asst. Atty. Gen., of counsel), for appellee.

Martha A. Churchill, Chicago, for amici curiae Chicago Assoc. of Commerce & Industry et al.

Justice BILANDIC delivered the opinion of the court:

In this appeal, we are asked to consider the validity of recent amendments which the Illinois Pollution Control[155 Ill.2d 155] Board (Board) made to its water quality standards. Generally, water quality standards are statewide pollution control standards for Illinois waters which the Board promulgates in rulemaking proceedings. The water quality standards at issue in this appeal were adopted by the Board in a rulemaking proceeding, pursuant to the Illinois Environmental Protection Act (Act) (Ill.Rev.Stat.1989, ch. 111 1/2, par. 1001 et seq.). The water quality standards are codified in title 35, subtitle C, of the Illinois Administrative Code (Code) (35 Ill.Adm.Code §§ 301 through 309 (1992)). The instant appeal addresses the validity of the Board's amendments.

Within the Act, the legislature created the Board and granted it, inter alia, rulemaking authority. (Ill.Rev.Stat.1989, ch. 111 1/2, pars. 1003.04, 1005, 1013.) The legislature also created the Illinois Environmental Agency (Agency) and granted it authority to, inter alia, enforce Board regulations and administer permit systems established by the Act or Board regulations. (Ill.Rev.Stat.1989, ch. 111 1/2, par. 1004.) Pursuant to the Act, the Board is the body which, inter alia, determines and promulgates statewide water quality standards (Ill.Rev.Stat.1989, ch. 111 1/2, par. 1013(a)(1)), while the Agency is, inter alia, the body responsible for enforcing the Board's statewide standards (Ill.Rev.Stat.1989, ch. 111 1/2, par. 1004). The amended regulations at issue in this appeal were proposed by the Agency and adopted by the Board on an expedited basis pursuant to section 28.2 of the Act (Ill.Rev.Stat.1989, ch. 111 1/2, par. 1028.2). Thereafter, petitioners, Granite City Division of National Steel Company, Laclede Steel Company, USS Division of USX Corporation and the Illinois Steel Group, petitioned the appellate court for judicial review of the validity of the Board's amendments pursuant to section 29 and section 41 of the Act (Ill.Rev.Stat.1989, ch. 111 1/2, pars. 1029, 1041). The appellate court affirmed the Board's [155 Ill.2d 156] rulemaking and upheld the instant amendments to the Board's water quality standards. (221 Ill.App.3d 68, 163 Ill.Dec. 549, 581 N.E.2d 703.) We

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[184 Ill.Dec. 405] granted petitioners leave to appeal (134 Ill.2d R. 315). A joint amicus curiae brief has been submitted by the Chicago Association of Commerce and Industry, Illinois Chamber of Commerce, Illinois Manufacturers Association, and Mid-America Legal Foundation in support of the petitioners.

In the instant rulemaking, the Board adopted specific numeric standards which represent numeric concentration limits allowable in a discharger's waste for certain known toxics such as arsenic and cyanide. The Board also adopted regulations pertaining to its "narrative standard" and "mixing," each of which will be explained below. Before this court, petitioners challenge the validity of the regulations pertaining to: (1) the narrative standard and (2) mixing. The issues to be resolved in this appeal are whether: (a) the regulations are unconstitutionally vague; (b) the regulations constitute an improper delegation of the Board's rulemaking authority to the Agency; and (c) the Board properly considered the technical feasibility and economic reasonableness of these regulations in its rulemaking process as required by the Act (Ill.Rev.Stat.1989, ch. 111 1/2, par. 1027(a)). In order for us to address petitioners' contentions, it is necessary to briefly discuss the substance of the regulations at issue.

1. The Narrative Standard

In accordance with a guidance letter issued by the United States Environmental Protection Agency, the Board's regulations establish a dual standard system for controlling substances which are toxic to human health, or to animal, plant or aquatic life. The Board established this dual system in order to provide a complete regulatory scheme to prevent toxic polluting of Illinois waters. [155 Ill.2d 157] As stated, the regulations set forth the maximum allowable concentration limits for certain known toxics in specific numeric terms (numeric standards). (35 Ill.Adm.Code § 302.208 (1992).) For all other toxic substances, including those that are, as yet, undetected, the regulations set forth a "narrative standard." The Board's narrative standard provides:

"Waters of the State shall be free from any substances or combination of substances in concentrations toxic or harmful to human health, or to animal, plant or aquatic life." 35 Ill.Adm.Code § 302.210 (1992).

In essence, the narrative standard prohibits "actual toxicity" caused either by the nature of the substance or the quantity of the substance. Under the narrative standard, any substance or combination of substances is deemed to be toxic and in violation of the narrative standard if present in concentrations exceeding any of five basic "criteria" which relate to human health and animal, plant and aquatic life. (35 Ill.Adm.Code §§ 302.210(a) through (c) (1992).) The amendments sub judice contain an elaborate and complex series of procedures (subpart F) which the Agency is directed to follow to derive narrative "criteria." (35 Ill.Adm.Code § 302, subpart F (1992).) The narrative criteria are numeric concentrations limits which will be used to determine whether a discharger is in compliance with the Board's narrative standard. Under the regulations, the Agency would normally derive criteria when a discharger applies for a National Pollutant Discharge Elimination System (NPDES) permit and the derived criteria are then included as a permit condition or limitation in the applicant's permit.

The criteria established by the narrative standard have no fixed values. Rather, they are derived by the Agency on a case-by-case basis in accordance with the procedures, data assessment methods and test protocols [155 Ill.2d 158] set forth in subpart F. In deriving the criteria, the Agency must use data which is site-specific to the particular permit applicant because the criteria are based on, inter alia, the nature of the permittee's effluent, the nature and location of the particular body of receiving water, and the particular species which live therein. Once derived, the Agency must publish a list of derived criteria in the Illinois Register at least quarterly. (35 Ill.Adm.Code § 302.669(a) (1992).) In addition, the Agency must retain the record established in its derivation process. 35 Ill.Adm.Code § 302.210(f)(2) (1992).

A discharger may challenge both the validity of a derived criterion and the correctness

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[184 Ill.Dec. 406] of the Agency's application of the criterion to the particular discharger. (35 Ill.Adm.Code § 302.210(f) (1992).) Under the regulations, dischargers have an opportunity for case-by-case Board review of the criterion whenever that criterion is first applied to the discharger in either a permit appeal or an enforcement action brought against it for violation of the Act, the Board's regulations or its permit conditions. (35 Ill.Adm.Code §§ 302.210(f)(1), (f)(2) (1992).) On appeal, the Agency has the burden of providing the derivation record. (35 Ill.Adm.Code § 302.210(f)(2) (1992).) In permit appeals, the Agency has the burden of going forward with the basis for its derivation of the criterion. (35 Ill.Adm.Code § 302.210(f)(2) (1992).) In an enforcement action, the Agency has the burden of going forward with proof and of persuasion regarding the validity and proper application of the criterion. (35 Ill.Adm.Code § 302.210(f)(3) (1992).) There is no presumption in favor of the validity or proper application of any Agency-derived criteria. 35 Ill.Adm.Code § 302.210(f)(2) (1992).

In its order, the Board explained the purpose of the narrative standard and subpart F criteria as follows:

[155 Ill.2d 159] "The problem is that there are many substances for which we cannot identify with much precision what constitutes a 'toxic amount'. In fact, the down-side is that we cannot do this for the great majority of toxic substances; the many necessary studies simply have not yet been done, and in many cases the toxic nature of substances themselves may not have been identified or the toxic substance may not even have been yet manufactured. * * *

The Agency has proposed, and we accept, what we believe to be an innovative and constructive approach to defining what constitutes a 'toxic amount' for those substances for which we cannot yet realistically specify a numeric standard. The approach consists of setting up a tight series of procedures and directives by which the best currently-available toxicity information is used to approximate that numeric criterion which might eventually evolve into a standard as more and better data accumulate.

* * * * * *

* * * [T]he narrative standard approach allows for rapid reaction against a substance not previously present, existent or recognized as being toxic. Environmental control history is replete with examples of new needs and new technologies causing the development, and entry into the environment, of new substances. Moreover, the toxicity of some of these substances has...