Illinois Power Co. v. Illinois Pollution Control Bd.

• Decision Date: 30 September 1981
• Docket Number: No. 81-34,81-34
• Citation: 426 N.E.2d 1258,55 Ill.Dec. 884,100 Ill.App.3d 528
• Parties: , 55 Ill.Dec. 884 ILLINOIS POWER COMPANY, Petitioner-Appellant, v. The ILLINOIS POLLUTION CONTROL BOARD, and The Illinois Environmental Protection Agency, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 1258

426 N.E.2d 1258

100 Ill.App.3d 528, 55 Ill.Dec. 884

ILLINOIS POWER COMPANY, Petitioner-Appellant, v. The ILLINOIS POLLUTION CONTROL BOARD, and The Illinois Environmental Protection Agency, Respondents-Appellees.

No. 81-34.

Appellate Court of Illinois, Third District.

Sept. 30, 1981.

Sheldon A. Zabel and Carolyn A. Lown, Schiff, Hardin & Waite, Chicago, for petitioner-appellant.

William J. Barzano, Jr., Asst. Atty. Gen., Tyrone C. Fahner, Atty. Gen., Environmental Control Div., Chicago, forrespondents-appellees.

HEIPLE, Justice:

The petitioner, Illinois Power Company ("Illinois Power"), asks us to review an order of the Illinois Pollution Control Board ("the Board"), the respondent. Our jurisdiction stems from the Environmental Protection Act ("the Act") (Ill.Rev.Stat.1979, ch. 1111/2, par. 1041). The facts follow.

On November 21, 1979, Illinois Power filed a petition for review with the Board concerning the reissuance of a National Pollution Discharge Elimination System (NPDES) permit. The Illinois Environmental Protection Agency ("the Agency") reissued the permit on October 23, 1979, with certain conditions. The permit, originally issued in 1975, covered the discharge of effluents into the Illinois River by petitioner's utility plant.

Prior to analyzing petitioner's claims before the Board, we believe it valuable to describe briefly some pertinent aspects of petitioner's Hennepin facility. The utility plant is a coal-fired power plant located on the Illinois River. It draws water from the river for cooling purposes. Because nutrients in the water generate the growth of slime inside the piping of the cooling system, the river water must be treated with chlorine from time to time. If neglected, the pipes would block, resulting in permanent damage to the cooling system. After the cooling process is completed, the chlorinated water is returned to the river in the plant's discharge.

Like the pipes in the cooling system, the plant's condensors must be protected. To implement this, the river water passes through a series of racks and mesh screens to remove residue which might foul and ruin the condensors. Large items are removed by hand by plant personnel and returned to the river. Smaller debris, such as fish, are backwashed. In backwashing, the screens and racks are raised and flushed with a high-powered water spray so that materials caught are dislodged. The matter then flows back into the river.

Previous to filing its petition for review before the Board, Illinois Power and the Agency settled many of their differences. Agreement could not be reached on permit limitations concerning the monitoring of chlorine discharge, as well as backwash screening controls. With respect to the former, petitioner argued, the Agency's technical requirements (i.e., weekly river water tests, and graphic representation of results) to monitor chlorine levels were unnecessary. The additional costs in personnel to do the testing, and that no appreciable deviation in chlorine levels occurred on a weekly basis, petitioner maintained, militated against permit restraints. The Agency countered that seasonal deviations might occur.

With respect to backwash screening, the aim of the permit restriction was to impose curbs on the plant's discharge of dead or dying fish above certain levels. The Agency concluded dead fish returned to the river were pollutants, since impinged on the backwash screens or racks. No tests were conducted to establish how many fish were dead or dying when entering the flume leading up to petitioner's screening apparatus. Thus, petitioner was placed in the position of proving that such devices were not the cause of death or disability of those dead or dying fish which eventually re-entered the Illinois River in the plant's discharge.

Illinois Power also argued the Agency erred in refusing to allow its proposal to Standard Condition 27 of the NPDES permit. Finally, in a petition for rehearing, petitioner contended the Board's denial of its motion to complete the record was wrong.

The Board filed its final order on December 19, 1980. It stated the chlorine monitoring conditions were left to the option of the Agency: that is, the Agency could require Illinois Power, on a weekly basis, to conduct discharge sampling after periodic chlorination, and then graph the results, or impose another method of measuring chlorine at its discretion. A similar prerogative was accorded the Agency with respect to permit limitations concerning screen backwashing. The Board rejected the petitioner's proposal to Condition 27 as surplusage. It also denied its motion to complete the record. The Board remanded the permit to the Agency for rewriting consistent with its opinion.

On appeal to this court, Illinois Power says the Board failed to adjudicate its administrative appeal. Specifically, it maintains the Board left to the Agency the resolution of chlorine monitoring standards and backwash discharge restrictions, which is inconsistent with the Board's adjudicatory role under the Act. We agree. It also claims the Board's action in remanding to the Agency, with respect to both issues, is against the manifest weight of the evidence. Furthermore, it urges, that its proposal to Condition 27 should have been allowed. Finally, it says, allowing its motion to complete the record is indispensable for complete appellate review.

We reverse and remand. We will address all of petitioner's complaints except those two concerning whether the Board's decisions on chlorine and backwash discharge limitations are against the manifest weight of the evidence. Because further hearings must be conducted before the Board, our resolution of such issues would be untimely.

In the context of petitioner's appeal, it is important to distinguish between the roles the Board and Agency assume in the resolution of permit issuance and disputes arising therefrom. The Board is a creature of the legislature (Ill.Rev.Stat.1979, ch. 1111/2, par. 1005). As such, it undertakes both quasi-legislative and quasi-judicial functions. In the former capacity, it drafts procedural rules and may adopt substantive regulations pursuant to its rule making authority, as long as such are consistent with the purposes of the Act. In its adjudicative role, the Board has the authority to conduct hearings concerning violations of the Act, its regulations, or the denial of a permit. In the latter instance it is the Board's principal function to interpret regulations defining the requirements of the permit system. Landfill, Inc. v. Pollution Control Board (1978), 74 Ill.2d 541, 557, 25 Ill.Dec. 602, 387 N.E.2d 258.

The Agency, on the other hand, is empowered by statute with the technical, licensing, and enforcement functions in carrying out the Act. It must investigate violations of the Act and determine whether specific applicants are entitled to permits. The Agency has the authority to require permit applicants to submit detailed plans, as well as technical reports, concerning the issuance or reissuance of permits, or possible violations of the Act or Board regulations. Landfill, Inc. v. Pollution Control Board.

Quite clearly, the Board and the Agency have separate functions in the permit application procedure. Just as the Board is not the permit granting authority, neither is the Agency the Board's retainer in the interpretation of Board regulations.

When the Agency places prohibitions on a permit which an applicant finds objectionable, the applicant has the right to appeal those modifications to the Board (Ill.Rev.Stat.1979, ch. 1111/2, par. 1040). When such administrative appeal is lodged, two things occur: the applicant and Agency legally solidify their adversarial positions; and, the adjudicatory posture of the Board is triggered to resolve the dispute.

The Board's order depreciates its functions as an adjudicative body. In remanding the permit, the Board gave the Agency the identical options to consider as permit conditions which petitioner originally contested as objectionable. The Board did not rule on petitioner's complaint that weekly graphs and water samplings were useless, but left such resolution up to the Agency as it saw fit. As to backwash screening, the Board...