Monsanto Co. v. Illinois Pollution Control Bd.

• Decision Date: 03 June 1976
• Docket Number: No. 75--236,75--236
• Citation: 350 N.E.2d 289,39 Ill.App.3d 333
• Court: United States Appellate Court of Illinois
• Parties: MONSANTO COMPANY, Petitioner-Appellant, v. ILLINOIS POLLUTION CONTROL BOARD and Illinois Environmental Protection Agency, Respondents-Appellees.

Page 289

350 N.E.2d 289

39 Ill.App.3d 333

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

No. 75--236.

Appellate Court of Illinois, Fifth District.

June 3, 1976.

Rehearing Denied July 8, 1976.

Richard J. Kissel, Thomas H. Donohoe, Martin, Craig, Chester & Sonnenschein, Chicago, for petitioner-appellant.

William J. Scott, Atty. Gen., Springfield, for respondents-appellees; Larry R. Eaton, Barry Forman, Asst. Attys. Gen., of counsel.

JONES, Justice.

This case comes before us as a direct appeal of a decision of the Pollution Control Board, pursuant to section 41 of Illinois Environmental Protection Act (Ill.Rev.Stat., ch. 111 1/2, sec. 1041), Supreme Court Rule 335 (Ill.Rev.Stat., ch. 110A, sec. 335), and the Administrative Review Act (Ill.Rev.Stat., ch. 110, sec. 264 Et seq.). The Monsanto Company, petitioner-appellant (hereinafter 'Monsanto'), filed an amended petition with the Pollution Control Board (hereinafter 'Board') seeking a permanent variance from the provisions of Illinois Water Pollution Regulation 702(a), which pertains to mercury discharges to public sewer systems. That regulation provides, 'No effluent to any ublic sewer system shall include mercury or any of its compounds in excess of 0.0005 mg/1 as Hg (0.5 parts of mercury per billion parts of water) at any time.'

On April 24, 1975, the Board entered its opinion and order granting Monsanto a variance from November 6, 1974, to November 5, 1975. The Board imposed as conditions of the variance the requirements that Monsanto limit its mercury discharge to 0.20 pounds per day based on a 'six-month moving average' with the mercury discharge for any 24 hour period not to exceed 0.30 pounds. Monsanto on this appeal raises two issues: (1) whether the conditions imposed by the Board in granting the variance are supported by the evidence, and (2) whether the Board erred in concluding that it could only grant a variance for a one-year period.

Monsanto operates a large chemical plant in the Village of Sauget, Illinois, known as the William G. Krummrich plant. Monsanto owns approximately 350 acres in Sauget, of which 100 acres are occupied by the plant's main operating area. Waste water from the plant is discharged into the Village of Sauget sewer treatment system which empties into the Mississippi River.

The Krummrich plant produces approximately 1.2 billion pounds of chemicals each year, consisting of more than seventy different chemical products for use in the steel, rubber, agricultural, construction, drug, cosmetic, and other industries. Essential to the production of eighty per cent of the chemical products made at the plant are chlorine, hydrogen, sodium hydroxide, and potassium hydroxide. These four chemicals are produced by a production unit known as the 'chlor-alkili facility.' Mercury is used solely as a conductor of electricity within the chlor-alkili facility. Although the system is designed for the complete recycling of the mercury used, and although all effluent streams from the chlor-alkili facility are collected and passed through a mercury treatment system prior to discharge to the Sauget sewer system, nevertheless, some mercury is discharged into the Sauget sewer system.

The chlor-alkili facility is the only area of the Krummrich plant where mercury is used as part of the production process, although mercury is present in other parts of the plant in thermometers, switches, and other instruments, and in raw materials brought into the plant. Mercury is also present in the wastewater discharged into the Sauget sewer system from these other areas of the plant. The Board found that in 1974 the mercury discharged from the chlor-alkili facility averaged less than 0.1 lb/day and the mercury discharged from the other areas of the plant averaged approximately 0.15 lb/day, making a total average mercury discharge of 0.25 lb/day. ¹

In the past Monsanto has requested and been allowed variances for its discharge of mercury into the Sauget sewer system. In November of 1971 Monsanto was granted a variance limiting its discharge of mercury to 0.5 lb/day. In October of 1972 it was granted a variance limiting the discharge to 0.33 lb/day, based on a six-month moving average, but not to exceed 0.5 lb/day in any given 24-hour period. And in November of 1973 it was granted a variance limiting its discharge to 0.25 lb/day, based on a six-month moving average, but not to exceed 0.4 lb/day in any given 24-hour period. Because of its continued inability to meet the standards of Regulation 702(a), Monsanto sought the variance which is presently before us.

Before reaching the issues raised by Monsanto on this appeal it is necessary that we consider two motions which were taken with the case. The first is Monsanto's motion to strike portions of the brief and designation of excerpts from the record filed by respondents. The material objected to consists of data regarding mercury discharges, filed by Monsanto with the Board after the Board rendered the opinion which is the subject of the instant appeal. The data is from quarterly reports submitted by Monsanto the Board during June and September 1975 and shows that in five of the nine months from November 1974 through July 1975 Monsanto's average mercury discharge per day was within the 0.20 standard imposed by the Board.

The second motion taken with the case is respondents' 'Motion to Correct Record' (which would more appropriately be called a 'motion to supplement the record.'). By this motion respondents ask this court to consider as part of the record the abovementioned data as well as data from a quarterly report submitted by Monsanto to the Board in December 1975. The data from the latter report shows that Monsanto's six-month average daily mercury discharge was 0.17 lb/day, 0.17 lb/day, and 0.16 lb/day at the end of September, October and November 1975, respectively.

The arguments with respect to both of these motions are the same. Monsanto argues that the data consists of 'new or additional evidence in support of' the decision of the Board and, as such, cannot properly be considered by this court because of section 11 of the Administrative Review Act. (Ill.Rev.Stat., ch. 110, sec. 274.) Respondents, on the other hand, argue that this information demonstrates that compliance with the Board's order was achievable without arbitrary or unreasonable hardship. Respondents further argue that this court should take notice of this information in the interest of judicial economy and efficiency and that this court can take such notice because the information renders moot the first issue on this appeal.

Section 11 of the Administrative Review Act provides:

'Every action to review any final administrative decision shall be heard and determined by the court with all convenient speed. The hearing and determination shall extend to all questions of law and of fact presented by the entire record before the court. No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court. The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.' (emphasis added.)

The constant statement of the Supreme and Appellate Courts of this State, consistent with the clear language of the portion of section 11 of the Administrative Review Act emphasized above, has been that upon administrative review the court is limited to considering only the evidence submitted in the administrative hearing and may not hear further evidence or conduct a hearing De novo. (Strohl v. Macon County Zoning Board of Appeals, 411 Ill. 559, 104 N.E.2d 612; Pipe Trades v. Rauch, 2 Ill.2d 278, 118 N.E.2d 319; West End Sav. and Loan Ass'n v. Smith, 16 Ill.2d 523, 158 N.E.2d 608; Curtis v. State Police Merit Board, 349 Ill.App. 448, 111 N.E.2d 159; Zito v. Illinois Liquor Control Comm'n., 113 Ill.App.2d 103, 251 N.E.2d 727; Lake County Contractors Ass'n. v. Illinois Pollution Control Board, 6 Ill.App.3d 762, 286 N.E.2d 600, aff'd. 54 Ill.2d 16, 294 N.E.2d 259.) Overriding this clear mandate however, is the rule, recognized in Illinois both before and after enactment of section 11 of the Administrative Review Act, that a court reviewing an administrative decision will dismiss the case, subject to certain limited exceptions, if the question presented has become moot. This rule has been applied both in cases in which the court on its own has become aware of facts making the question moot and in cases in which one of the parties has brought those facts to the court's attention by way of a motion to dismiss. National Jockey Club v. Illinois Racing Comm'n., 364 Ill. 630, 5 N.E.2d 224; Railway Express Agency v. Illinois Commerce Comm'n., 374 Ill. 151, 28 N.E.2d 116; Central States Import & Export Corp. v. Illinois Liquor Control Comm'n., 405 Ill. 58, 89 N.E.2d 903; Maywood Park Trotting Ass'n., Inc. v. Illinois Harness Racing Comm'n., 15 Ill.2d 559, 155 N.E.2d 626; Goers v. Carpentier, 27 Ill.App.2d 355, 169 N.E.2d 858; Daley v. License Appeal Comm'n., 55 Ill.App.2d 474, 205 N.E.2d 269.

A moot question has been defined as a question which presents or involves no actual controversy, interest, or rights of the parties, or which involves issues that have ceased to exist. (People v. Redlich, 402 Ill. 270, 83 N.E.2d 736; LaSalle Nat. Bank v. City of Chicago, 3 Ill.2d 375, 121 N.E.2d 486.) It is obvious from this definition that the question presented by the first issue on this appeal has not been made moot by the facts not part of the record made before the Board, which respondents have brought to our attention. We do not know what action Monsanto may be subjected to for those months during the variance period in which Monsanto was not able to comply. Nor do we know that Monsanto would ever again be...