Metropolitan Sanitary Dist. of Greater Chicago v. U.S. Steel Corp.

• Decision Date: 26 June 1975
• Docket Number: No. 61503,61503
• Citation: 30 Ill.App.3d 360,332 N.E.2d 426
• Parties: The METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, Plaintiff-Appellee, v. UNITED STATES STEEL CORPORATION, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 426

332 N.E.2d 426

30 Ill.App.3d 360

The METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, Plaintiff-Appellee, v. UNITED STATES STEEL CORPORATION, Defendant-Appellant.

No. 61503.

Appellate Court of Illinois, First District, First Division.

June 26, 1975.

Rehearing Denied July 14, 1975.

Hackbert, Rooks, Pitts, Fullagar & Poust, Chicago (Jay A. Lipe, James T. Harrington and William M. Stevens, Chicago, of counsel), for defendant-appellant.

Allen S. Lavin and Phillip Rothenberg, Chicago, for plaintiff-appellee, Metropolitan Sanitary District of Greater Chicago; Leonard M. Ring, Chicago, special counsel (Ralph L. Brill, Chicago, of counsel).

GOLDBERG, Justice.

This record brings before us proceedings brought by the Metropolitan Sanitary District of Greater Chicago (plaintiff) against United States Steel Corporation (defendant) concerned with pollution of the water of Lake Michigan by the defendant. Defendant made a motion in the trial court to dismiss or alternatively to stay the proceedings. Upon denial of the motion, defendant filed an interlocutory appeal. Supreme Court Rule 307, Ill.Rev.Stat.1973, ch. 110A, Rule 307.

Our first concern was a determination of the jurisdiction of this court to hear an interlocutory appeal from the order denying a stay of the proceedings. (In re Org. of Fox Valley Comm. Airport Auth., 23 Ill.App.3d 168, 318 N.E.2d 496.) Special memoranda upon this point prepared and furnished at our request by able counsel for both sides have convinced us that we do have jurisdiction for determination of this interlocutory appeal. Bohn Aluminum & Brass Co. v. Barker, 55 Ill.2d 177, 180, 181, 303 N.E.2d 1.

In this court defendant contends generally that the trial court should have stayed the action pending completion of administrative proceedings before the United States Environmental Protection Agency which allegedly involve the same subject matter and issues and require the resolution of identical factual questions. This contention is based upon the doctrines of primary jurisdiction and exhaustion of administrative remedies. In response, plaintiff takes the position that these doctrines are not applicable here and may not defeat the power of the trial court to hear and fully resolve a nuisance action without resorting to prior hearings before the federal administrative agency.

The present proceedings commenced with the filing of plaintiff's complaint predicated upon the Illinois statute giving plaintiff specific power and authority to prevent pollution of any waters from which a water supply may be obtained by any city, town or village within the District. (Ill.Rev.Stat.1973, ch. 42, par. 326aa.) The theory expressed in plaintiff's complaint is that the operations conducted by defendant in the manufacturing and processing of steel and steel products at the southern end of Lake Michigan in close proximity to Gary, Indiana, use noxious chemical substances and fluids which severely and grossly contaminate the effluents that are discharged by the plant either directly into Lake Michigan or into the Grand Calumet River which flows into the Lake. Plaintiff also alleged that as a result the water at the southern end of Lake Michigan has been severely fouled and polluted ot the injury and detriment of the water quality and ecology of the Lake thus causing grave danger and immediate threat to the health and safety of the population within plaintiff District. The complaint prayed an injunction restraining the continuation of this pollution. It is also plaintiff's theory, as expressed in its brief, that plaintiff is acting in accordance with common law principles to enjoin pollution of public water supplies which constitutes a common law nuisance.

Defendant filed a supplementary motion verified by affidavit seeking to dismiss or alternatively to stay the proceedings. This motion set forth that on October 31, 1974, a permit had been issued to defendant under the National Pollutant Discharge Elimination System. On November 18, 1974, a request was filed by defendant with the United States Environmental Protection Agency for an adjudicatory hearing with respect to said permit.

The motion further recited that plaintiff was authorized to join and participate in said adjudicatory hearing. It alleged that the federal agency is required to make the same factual determinations, involving complex and intricate scientific, technological and economic questions, as were presented to the trial court in this cause. It alleged that the problem of the water quality of Lake Michigan involves hundreds of persons and entities and therefore coordinated and coherent solutions were required. It was, therefore, urged that the trial court should invoke the primary jurisdiction of the federal agency and require plaintiff to exhaust its administrative remedies.

Exhaustive briefs were filed by the parties in the trial court, including the citation of numerous legal authorities. Among other matters a copy of the federal permit issued by the Environmental Protection Agency is appended to defendant's material. The permit is a 58 page document setting forth effluent limitations, monitoring requirements and numerous other detailed and highly technical conditions referring to discharges by defendant from its facility in Gary, Indiana into the Grand Calumet River and Lake Michigan.

After hearing oral argument, the trial court entered an order describing the impending adjudicatory hearing upon the administrative permit and finding that the pendency of this hearing did not require a stay or dismissal of plaintiff's action by reason of the doctrines of primary jurisdiction or exhaustion of remedies and that denial of defendant's motion for stay or dismissal would not violate its rights to due process of law or other specified legal principles. The order also recited the pendency of similar proceedings against defendant brought by the United States of America in the United States District Court for the Northern District of Indiana, Hammond Division, and by the State of Illinois in the circuit court of Cook County, both of which charge defendant with discharging pollutants and contaminants into water adjacent to its Gary operation which allegedly reach Illinois waters within the jurisdiction of the State of Illinois and of the plaintiff in the instant case. The order further found that plaintiff was entitled to maintain its action for injunction as filed which sought to enjoin a common law nuisance or a nuisance under statutory description. (Ill.Rev.Stat.1973, ch. 42, pars. 326 and 326aa.) The court accordingly denied defendant's motion to stay or alternatively to dismiss the action.

For the sake of completeness, we note that in this same order the trial court certified the existence of certain issues of law raised in the cause concerning which there was substantial ground for difference of opinion and that an immediate appeal concerning the same might materially advance the ultimate termination of the litigation. S.Ct.R. 308, Ill.Rev.Stat.1973, ch. 110A, R. 308.

On February 7, 1974, defendant filed in this court an application for leave to appeal pursuant to Rule 308. (General No. 61457.) This application was later amended; objections thereto were filed by plaintiff and defendant replied to these objections. The fifth division of this court granted defendant's motion for oral argument on this application which was heard on March 25, 1975. On that date, after full consideration of the pleadings, memoranda and argument, the amended application for leave to appeal from the interlocutory order was denied by the fifth division of this court.

Turning now to the merits of the appeal before us, it is first necessary to consider the background of the pending federal administrative proceedings. In October of 1972, the Congress of the United States passed the 'Federal Water Pollution Control Act Amendments of 1972.' (92 Congress, Public Act 92--500, 33 U.S.C.A. sec. 1251 Et seq., 86 Stat. 816.) This Act recites in section 1251 thereof the laudable objective of Congress 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.' (33 U.S.C.A. sec. 1251(a).) This lengthy piece of legislation makes illegal the discharge of any pollutant by any person except in compliance with the Act. The Act requires limitations upon discharge of effluents no later than July 1, 1977, in accordance with the 'application of the best practicable control technology currently available * * *.' Not later than July 1, 1983, discharges are to be regulated and limited by 'the best available technology economically achievable * * * which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants * * *.' 33 U.S.C.A. sec. 1311(b)(1)(A) and (b)(2)(A).

As pointed out by defendant, this legislation contains water quality related effluent limitations, water quality standards and implementation plans, information and guidelines on water quality criteria and effluent limitations, provision for a water quality inventory to be presented to Congress, national standards of performance for control of the discharge of pollutants, toxic and pretreatment effluent standards to be published by the Administrator (the Administrator of the Environmental Protection Agency), and provision for inspections and monitoring as regards industrial compliance. (See 33 U.S.C.A. secs. 1312 to 1318 inclusive.) The Act also contains sanctions of various types for enforcement.

The Act also establishes the National Pollutant Discharge Elimination System. (33 U.S.C.A. sec. 1342.) Commencing January 1, 1975, a permit from the Administrator is required for every industrial discharge into the waters of the United States. As authorized by Congress, the Administrator has established procedures for issuance of the permits and administration of the program thereunder. (See 40 C.F.R., part 125 and...