Granite City Div. of Nat. Steel Co. v. Pollution Control Bd.

• Decision Date: 15 October 1991
• Docket Number: No. 5-90-0101,5-90-0101
• Citation: 221 Ill.App.3d 68,581 N.E.2d 703,163 Ill.Dec. 549
• Parties: , 163 Ill.Dec. 549 GRANITE CITY DIVISION OF NATIONAL STEEL COMPANY, Laclede Steel, and the Illinois Steel Group, Petitioners, v. The POLLUTION CONTROL BOARD, Respondent. USS DIVISION OF USX CORPORATION, Petitioners, v. The POLLUTION CONTROL BOARD, Respondent.
• Court: United States Appellate Court of Illinois

Page 703

581 N.E.2d 703

221 Ill.App.3d 68, 163 Ill.Dec. 549

GRANITE CITY DIVISION OF NATIONAL STEEL COMPANY, Laclede

Steel, and the Illinois Steel Group, Petitioners, v. The POLLUTION CONTROL BOARD, Respondent.

USS DIVISION OF USX CORPORATION, Petitioners, v. The POLLUTION CONTROL BOARD, Respondent.

No. 5-90-0101.

Appellate Court of Illinois,

Fifth District.

Oct. 15, 1991.

James T. Harrington, Heidi E. Hanson, David L. Rieser, Joshua M. Levin, Darren J. Hunter, Ross & Hardies, Chicago, Eric R. Robertson, Lueders, Robertson & Konzen, Granite City, for petitioners.

James L. Morgan, Asst. Atty. Gen., Environmental Control Div., Springfield, of counsel, Illinois Pollution Control Bd. Roland W. Burris, Atty. Gen., Rosalyn Kaplan, Sol. Gen., for respondent.

Justice HARRISON delivered the opinion of the court:

In a rulemaking proceeding designated as R88-21, Dockets A and B, the Illinois Pollution Control Board (the Board) adopted various amendments to its existing water quality regulations as codified in Title 35, Subtitle C, of the Illinois Administrative Code (35 Ill.Adm.Code 301-309). The amendments made in R88-21, Docket A, were adopted in an opinion and order entered by the Board on January 25, 1990, while those made in R88-21, Docket B, were adopted in an opinion and order entered by the Board on June 21, 1990. Petitioners, the Granite City Division of National Steel Company, Laclede Steel Company, USS Division of USX Corporation, and the Illinois Steel Group, filed separate petitions in the appellate court to obtain judicial review of these amendments. (See Ill.Rev.Stat.1989, ch. 111 1/2, pars. 1029(a), 1041.) Their petitions have been consolidated and are now before us for consideration on the merits. We find the challenged amendments to be valid and therefore affirm.

Title 35, Subtitle C, Part 302 of the Illinois Administrative Code (35 Ill.Adm.Code 302) sets forth the water-quality standards applicable to the surface waters of this State. It provides that "[w]aters 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.) As was done under the previous version of the regulations, the maximum allowable concentrations for certain substances, such as arsenic, cyanide, and zinc, are expressed by the regulations in numeric terms. (35 Ill.Adm.Code 302.208.) For all other toxic substances, however, a new "narrative" standard has been created. (35 Ill.Adm.Code 302.210.) Under the narrative standard, any substance or combination of substances is deemed to be toxic if present in concentrations that exceed any of five basic "criteria" relating to human health and animal, plant, and aquatic life. 35 Ill.Adm.Code 302.210(a)-(c).

The criteria established by the narrative standard have no fixed values. Rather, they are to be determined on a case-by-case basis by following the requirements, test protocols, and data-assessment methods set forth in Subpart F of Subtitle C of Title 35 (35 Ill.Adm.Code 302.601-302.669). (35 Ill.Adm.Code 302.210(e).) The amended regulations contemplate that criteria will normally be derived under these procedures when a person discharging effluent to surface waters applies to the Illinois Environmental Protection Agency (the Agency) for a National Pollutant Discharge Elimination System (NPDES) permit. The "validity and correctness of application of numeric criteria derived [by the Agency] pursuant to [these regulations] may be challenged" (1) when the criteria are first applied in the permit proceeding or (2) in an action pursuant to Title VIII of the Environmental Protection Act (Ill.Rev.Stat.1989, ch. 111 1/2, pars. 1030-1034). (35 Ill.Adm.Code 302.210(e), (f).) The latter statute, entitled "Enforcement," governs the procedures to be followed when an individual is alleged to have violated the Environmental Protection Act (Ill.Rev.Stat.1989, ch. 111 1/2, par. 1001 et seq.) or "any rule or regulation promulgated thereunder or * * * any permit granted by the Agency or any term or condition of any such permit * * *." Ill.Rev.Stat.1989, ch. 111 1/2, par. 1030.

Another feature of the Board's amended regulations is their provision for "mixing zones." Under this provision a discharger may be allowed to comply with the applicable water-quality standards, including the new narrative standard, "by mixture of an effluent with its receiving waters * * *." (35 Ill.Adm.Code 302.102(a).) The "mixing zone" is that portion of the receiving water where the regulations permit mixing with the effluent to occur. (35 Ill.Adm.Code 302.102(b).) The regulations also include the concept of a "zone of initial dilution" (ZID) in waters "within which effluent dispersion is immediate and rapid." 35 Ill.Adm.Code 302.102(e).

The significance of having a mixing zone or ZID recognized is that it alters the point in the receiving waters at which the various water-quality standards must be met. Where a mixing zone exists, all water-quality standards prescribed by the regulations, both chronic and acute, must be met at every point outside of the area and volume of the receiving water where mixing is allowed. Inside the mixing zone, only the acute-toxicity standards of sections 302.208 and 302.210 of the regulations (35 Ill.Adm.Code 302.208, 302.210) must be met, subject to the possible existence of a ZID. (35 Ill.Adm.Code 302.102(c), (e).) Where a ZID is allowed, the acute-toxicity standards will not apply within the ZID. (35 Ill.Adm.Code 302.100, 302.208(c)(1), 302.210(d).) A mixing zone or ZID may be recognized by the Agency as part of an NPDES permit (35 Ill.Adm.Code 302.102(d), (e)), or a polluter may invoke the mixing zone or ZID rules by way of a defense in an action against him under 35 Ill.Adm.Code 304.205 for violations of the regulations' water-quality standards. 35 Ill.Adm.Code 302.102(i).

In this proceeding, petitioners first argue that section 302.210 and Subpart F of the amended regulations (35 Ill.Adm.Code 302.210, 302.601-302.669), which govern the derivation and application of "criterion" under the narrative standard, are invalid. They are invalid, in petitioners' view, because they represent an impermissible attempt by the Board to delegate to the Agency its statutory responsibility for setting water-quality standards. This argument is wholly untenable.

As we have previously indicated, the regulations provide that the "[w]aters 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.) This is the standard. It was set by the Board, and the Agency has been given no authority to alter or vary it. The Agency's responsibility is simply to derive and apply criteria according to detailed guidelines in order to ascertain whether the standard prescribed by the Board is being met. The power of the Agency to apply standards promulgated by the Board for water toxicity inheres in its statutorily-mandated authority to enforce the Environmental Protection Act (Ill.Rev.Stat.1989, ch. 111 1/2, par. 1001 et seq.), and the rules and regulations promulgated thereunder (see Ill.Rev.Stat.1989, ch. 111 1/2, par. 1030), and to issue NPDES permits for the discharge of contaminants (see Ill.Rev.Stat.1989, ch. 111 1/2, par. 1039(b)). See United States Steel Corp. v. Illinois Pollution Control Board (1977), 52 Ill.App.3d 1, 10, 9 Ill.Dec. 893, 900-01, 367 N.E.2d 327, 334-35.

The right of the Agency to derive and apply criteria according to the procedures established by the Board no more constitutes an improper delegation of Board authority than did the rule at issue in Commonwealth Edison Co. v. Pollution Control Board (1976), 62 Ill.2d 494, 497-98, 343 N.E.2d 459, 461-62, which authorized the Agency to lower ambient-air-quality standards upon proof to the 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." We note, moreover, that during the pendency of this proceeding, the General Assembly expressly amended the Environmental Protection Act to incorporate the "criterion" concept. The Act now provides that a criterion is "the numerical concentration of one or more toxic substances calculated by the Agency as a basis for establishing a permit limitation or violation of a water quality standard pursuant to standards and procedures provided for in board regulations." (Ill.Rev.Stat., 1990 Supp., Ch. 111 1/2, par. 1003.80.)

The Act, as amended, further provides that if

"the Agency issues an NPDES permit that imposes limits which are based upon a criterion or denies a permit based upon application of a criterion, then the Agency shall have the burden of going forward with the basis for the derivation of those limits or criterion which were derived under the Board's rules." Ill.Rev.Stat., 1990 Supp., Ch. 111 1/2, par. 1040(a)(1).

What is significant about this is that in amending the statute as it did, the General Assembly did not deem it necessary to also include some express authorization allowing the Agency to derive and apply criteria. The only reasonable inference that can be made from this is that the General Assembly assumed that such power already existed and was proper at the time the regulations challenged here were promulgated.

Petitioners next argue that the new narrative standard violates due process because it is vague. Where, as here, a due process vagueness challenge is raised and the first amendment (U.S. Const., amend. I) is not involved, two requirements must be fulfilled. The enactment must give a person of ordinary intelligence a reasonable opportunity to know what conduct is lawful or unlawful, and it must provide standards sufficient to avoid arbitrary and discriminatory enforcement and application. (In re...