A. E. Staley Mfg. Co. v. Environmental Protection Agency

• Decision Date: 13 December 1972
• Docket Number: No. 11842,11842
• Citation: 290 N.E.2d 892,8 Ill.App.3d 1018
• Parties: , 4 ERC 2025 A. E. STALEY MANUFACTURING COMPANY, Petitioner-Appellant, v. ENVIRONMENTAL PROTECTION AGENCY and Illinois Pollution Control Board, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 892

290 N.E.2d 892

8 Ill.App.3d 1018, 4 ERC 2025

A. E. STALEY MANUFACTURING COMPANY, Petitioner-Appellant, v. ENVIRONMENTAL PROTECTION AGENCY and Illinois Pollution Control Board, Respondents-Appellees.

No. 11842.

Appellate Court of Illinois, Fourth District.

Dec. 13, 1972.

Samuels, Miller, Schroeder, Jackson & Sly, Decatur, for petitioner-appellant; Jerald E. Jackson and E. R. Stanhope, Decatur, of counsel.

William J. Scott, Atty. Gen., Springfield, for respondents-appellees; Thomas J. Immel and Thomas A. Cengel, Asst. Attys. Gen., of counsel.

SMITH, Justice:

This appeal is by the petitioner as one adversely affected or threatened by a rule or regulation of the Illinois Pollution Control Board under the provisions of Ill.Rev.Stat.1971, ch. 111 1/2, pars. 1029 and 1041. The appeal questions new provisions added on March 7, 1972 to the rules and regulations relating to water pollution. The appeal was taken on April 12 and was filed within 35 days after the adoption of the rules and regulations as required by the statute. It is the position of the petitioner that the Illinois Environmental Protection Act limits the authority of the Illinois Pollution Control Board to the control of contaminants discharged directly into the waters of the State, and specifically that the Board does not have the authority to control discharges into sanitary sewers which are tributary to a sanitary treatment plant.

The petitioner owns and operates a soybean and food processing plant located in the city of Decatur. In connection with this operation, the petitioner has constructed, owns and operates more than one mile of sewer lines located wholly within the boundaries of its private property. It performs some preliminary treatment on the material placed in its private sewer before the contents of the sewer, including certain untreated materials, are discharged into the sanitary sewer owned, operated and maintained by the Decatur Sanitary District. This district apparently operates a modern sewerage treatment works or plant and discharges its effluent into the Sangamon River below the dam which impounds the waters of Lake Decatur.

The provisions of the Environmental Control Act are cited in Ill.Rev.Stat.1971, ch. 111 1/2, pars. 1001 through 1051, and for convenience each paragraph referred to will carry its statutory paragraph number. It should be noted that par. 1011 does not prohibit the discharge of contaminants into the waters of the State, but actually permits it, provided that such contaminants have been 'given the degree of treatment or control necessary to prevent pollution'. Paragraph 1003(n) states "Water pollution' is such alteration of the physical, thermal, chemical, biological or radioactive properties of any waters of the State, or such discharge of any contaminant into any waters of the State, as will or is likely to create a nuisance or render such waters harmful or detrimental or injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate uses, or to livestock, wild animals, birds, fish, or other acquatic life'. Paragraph 1003(o) states "Waters' means all accumulations of water, surface and underground, natural, and artificial, public and private, or parts thereof, which are wholly or partially within, flow through, or border upon this State'.

It is the position of the petitioner that the legislature has cogently stated its purposes in terms of enhancing the purity of the Waters of this State. Petitioner agrees that the statute has authorized the Pollution Control Board to take action in connection with the discharge of contaminants 'into the waters of this State'. Thus, the extent of the control, it is argued, is to regulate the discharge of contaminants at the point where they reach the waters of this State. This position clearly suggests and indeed it charges that the control of the Pollution Control Board is limited to the last actor in the discharge of contaminants into the waters of the State. It would follow that any regulation going beyond the last-actor limitation is beyond the power of the Illinois Pollution Control Board. Petitioner is not a last actor. It is argued that any attempt to exercise control beyond such limits are not regulations or are not rules and regulations implementing authority given but is substantive legislation by administrative rule and is without legitimate statutory parentage.

In Part VII of the Rules and Regulations, the Board extends it authority to discharges which go into sanitary sewers rather than into the waters of the State and secs. 701, 702 and 703 of such rules prescribes and restricts the types, concentrations and quantities of contaminants which can be discharged into such sewer systems. Part IX of the Rules and Regulations covers, permits and states that it establishes basis rules for the issuance of permits for the construction, modification and operation of treatment works, sewers, waste-water sources and other discharges. These too are not limited to one who discharges contaminants into the waters of this State. Section 904 of the Rules and Regulations provides that no person who owns and operates an inter-connected system of sanitary sewers and/or combines sewers consisting of more than one mile of pipe shall cause or allow the use or operation of part or all of that system of sewers after December 31, 1974, without an operating permit issued by the Agency. This section is apparently applicable regardless of whether the sewer is privately-owned and is located entirely on private property and irrespective of whether it discharges its effluent into a municipally-operated sanitary sewer rather than into the waters of the State.

The position taken by the petitioner here is it seems to us unduly restrictive. There is a realistic and practical nexus between controlling what flows into a sewer treatment plant and what flows out of that plant and pollutes the waters of the State. Indeed the petitioner states that some of the contaminants poured into its own sewer are treated and some are not. Indeed Ill.Rev.Stat.1971, ch. 24, par. 11--141--4 recognizes that controlling what goes into a sewer system is a practical method of controlling the final effluent. The efficiency, sufficiency, adequacy and capacity of a specified sewer treatment plant are obviously controlled and patently affected by what goes into such plant. In such manner only, it would seem, can the legislative declaration contained in par. 1011 assure that no contaminants are discharged into the waters without being given the degree of treatment or control necessary to prevent pollution.

In like manner, under par. 1013(i), the authority is given to provide 'standards for equipment and procedures for monitoring contaminants discharged at their sources, the collection of samples and the collection, reporting and retention of data resulting from such monitoring'. The...