Peabody Coal Co. v. Illinois Pollution Control Bd.

• Decision Date: 29 January 1976
• Docket Number: No. 74--341,74--341
• Parties: PEABODY COAL COMPANY, a corporation, Petitioner, v. ILLINOIS POLLUTION CONTROL BOARD, Respondent.
• Court: United States Appellate Court of Illinois

Page 279

344 N.E.2d 279

36 Ill.App.3d 5

PEABODY COAL COMPANY, a corporation, Petitioner, v. ILLINOIS POLLUTION CONTROL BOARD, Respondent.

No. 74--341.

Appellate Court of Illinois, Fifth District.

Jan. 29, 1976.

Rehearing Denied March 11, 1976.

Henry L. Pitts, Clifton A. Lake, Hackbert, Rooks, Pitts, Fullagar & Poust, Chicago, for petitioner.

William J. Scott, Atty. Gen., Richard W. Cosby, Dennis R. Fields, Asst. Attys. Gen., Chicago, of counsel, for respondent.

KARNS, Presiding Justice.

This is a review of a decision of the Illinois Pollution Control Board, pursuant to the provisions of sections 29 and 41 of the Illinois Environmental Protection Act. Ill.Rev.Stat.1973, ch. 111 1/2, pars. 1029, 1041. Petitioner, Peabody Coal Company, seeks review in this court of certain water pollution control rules (hereinafter rules) adopted by Regulations R73--11 and R73--12, promulgated by the Illinois Pollution Control Board on August 29, and September 5, 1974.

The Pollution Control Board's (hereinafter the 'Board') Regulations R73--11 and R73--12 (hereinafter 'Illinois NPDES regulations') were adopted by the Board to enable the State of Illinois to administer, upon approval by the United States Environmental Protection Agency, the National Pollutant Discharge Elimination System (NPDES). The Board adopted the regulations in question in an attempt to satisfy the requirements of section 402(b) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1342 (hereinafter FWPCA), and thereby enable the State to assume permit granting authority for all discharges of pollutants from point sources into navigable waters within the State.

Prior to the adoption of the Illinois NPDES regulations, the General Assembly enacted certain amendments to the Environmental Protection Act (Ill.Rev.Stat.1973, ch. 111 1/2, pars. 1013(b), 1039(b)) which were designed to enable the Board to adopt NPDES regulations and allow Illinois' participation in the NPDES.

Petitioner contends that the Illinois NPDES regulations are, in certain aspects, invalid insofar as they are inconsistent with the authority conferred upon the Board by applicable provisions of the Illinois Environmental Protection Act, (hereinafter Illinois act) and in other respects unconstitutional as a denial of due process.

Prior to considering the substantive issues raised by the petitioner it is necessary to determine the appropriate standard for review of the Board's rule making function. The parties agree that the appropriate standard of judicial review of the Board's regulations is that '. . . administrative action taken under statutory authority will not be set aside unless it has been clearly arbitrary, unreasonable or capricious. (citations omitted).' Illinois Coal Operators' Assoc. v. Pollution Control Board, 59 Ill.2d 305, 310, 319 N.E.2d 782, 785 (1974). However, the parties disagree as to the factors which the Board must consider in promulgating its rules and regulations.

It is well settled that administrative agencies are limited to the rule-making power granted them by the legislature. Ruby Chevrolet, Inc. v. Department of Revenue, 6 Ill.2d 147, 126 N.E.2d 617 (1955). Petitioner contends that section 13(a) of the Illinois act (Ill.Rev.Stat.1973, ch. 111 1/ 2, par. 1013(a)) requires the Board to follow the rule-making procedures detailed in section 27 of the Act (Ill.Rev.Stat.1973, ch. 111 1/2, par. 1027), that section 27 specifies that the Board 'take into account' technical feasibility and economic reasonableness in adopting substantive regulations and where the Board does not adequately consider these two factors, the regulations are invalid as arbitrary and unreasonable. Commonwealth Edison Co. v. Pollution Control Board, 25 Ill.App.3d 271, 323 N.E.2d 84 (1974); Aff'd on this issue, 343 N.E.2d 459, filed January 20, 1976. The Board claims that the grant of power requiring it to adopt regulations for the purpose of allowing Illinois to implement and participate in the NPDES did not include a requirement to comply with section 27. The Board reasons that since the section granting its authority to promulgate NPDES regulations contains the following language, '(n) otwithstanding other provisions of this Act and for the purposes of implementing an NPDES program' (Ill.Rev.Stat.1973, ch. 111 1/2, par. 1013(b)), that the Board does not have to comply with the reguirements of section 27. The Board's interpretations of the word 'notwithstanding,' however, do not comport with our understanding of the legislative intent in adopting this section.

In our reading of section 13(b), 'notwithstanding' refers to other rules and regulations adopted under or required by the Illinois act, not to the requisite procedure for adopting these rules. Section 13(b) merely provides that regulations adopted to enable the State to participate in the NPDES program are to be enforced regardless of their possible inconsistency with other substantive regulations authorized by the act. It does not govern the manner in which these substantive rules or regulations are to be promulgated. Section 13(a) refers to the rule-making procedure and states that regulations are to be adopted in accordance with Title VII, which includes section 27. This interpretation is consistent with the procedure for promulgating standards under section 13(b)(i). The Board is given authority to adopt these standards by section 5(c) (Ill.Rev.Stat.1973, ch. 111 1/2, par. 1005(c)), which provides that these standards are to be promulgated in accordance with the rule-making procedures of Title VII (and section 27). Therefore, we believe that the Board must adhere to section 27 in aodpting NPDES regulations.

Section 27 provides that the Board 'shall take into account' various factors, among which are the economic reasonableness and technical feasibility of the regulation. This phrase has been interpreted to require that the record show that the Board 'concluded in promulgating the rules that it was technically feasible and economically reasonable for a substantial number of the individual emission sources in this state to comply . . .' Commonwealth Edison Co. v. Pollution Control Board, 25 Ill.App.3d 271, 288, 323 N.E.2d 84, 90 (1974); Aff'd on this issue, 343 N.E.2d 459, filed January 20, 1976. We think that absent a conflict with the federal requirements for participation in the NPDES program, the substantive regulations of the Board should be economically reasonable and technically feasible for a substantial number of individual emission sources in the state. But in view of the language of section 13(b) and the importance that the legislature attached to Illinois' participation in the federal program, we believe that section 27 should not be read to require actual technical feasibility and economic reasonableness for a substantial number of emission sources within the state where that interpretation would imperil the State's participation in NPDES. Even in such a situation, section 27 would at least require that the Board fully consider these technical and economic factors. Commonwealth Edison Co. v. Pollution Control Board, supra; cf. Currie, Rulemaking Under Illinois Pollution Law, 42 U.Chi.L.Rev. 457, 459, 484 (1975).

After reviewing the FWPCA, 33 U.S.C. § 1251 Et seq., it seems to us unlikely that the Board's consideration of technical feasibility and economic reasonableness would be inconsistent with Illinois' implementation of and participation in the NPDES. The Administrator of the federal Environmental Protection Agency is required to see that point source discharges of pollutants into navigable waters do not exceed effluent limitations representing the 'best practicable (water pollution) control technology currently available' by July 1, 1977, and the 'best available technology economically achievable' by July 1, 1983. 33 U.S.C., § 1311(b)(1)(A)(i), (2)(a)(i). Congress 'clearly intended to require step-by-step improvement in the quality of discharged effluent, rather than a zigzag course with total purity demanded forthwith only to be succeeded by varying stages of impurity.' Stream Pollution Control Board of Indiana v. United States Steel Corp., 512 F.2d 1036, 1043 (7th Cir. 1975). Thus, we assume that until 1977 and 1983, respectively, the requisite technological standards need not be the 'best' attainable. These goals, however, indicate that technological feasibility and economic reasonableness are primary factors in the promulgation of federal regulations. Indeed, 33 U.S.C. § 1314(b)(1)(A), and (B), specifically direct the federal Administrator to establish effluent limitation guidelines incorporating technological feasibility and economic reasonableness factors. Therefore, we can discern no problem with requiring the Board to follow section 27 of the Illinois Act in promulgating substantive effluent limitation regulations.

Moreover, the federal act provides that 'nothing in this chapter shall (1) preclude or deny the right of any State . . . to adopt or enforce . . . (B) any requirement respecting control or abstement of pollution.' 33 U.S.C. § 1370. The only qualification is that the states may not enforce limitations or standards which are less stringent than those adopted under federal law.

Respondent does not point to any evidence in the record tending to establish the feasibility or reasonableness of Rule 410(b), challenged by petitioner, which provides:

No person may discharge any pollutant subject to, or which contributes or threatens to cause a violation of any applicable federal or state water quality standard, effluent standard, guideline or other limitation, promulgated pursuant to the FWPCA or the Act, unless limitation for such a pollutant has been set forth in an applicable NPDES permit. However, the Agency may, by permit condition, provide that the permittee may discharge pollutants present in its water supply intake sources in concentrations not greater than...