U.S. Steel Corp. v. Pollution Control Bd.
| Decision Date | 18 August 1978 |
| Docket Number | 57468,Nos. 57467,s. 57467 |
| Citation | 20 Ill.Dec. 700,380 N.E.2d 909,64 Ill.App.3d 34 |
| Parties | , 20 Ill.Dec. 700 UNITED STATES STEEL CORPORATION and Interlake, Inc., Petitioners-Appellants, v. The POLLUTION CONTROL BOARD, Respondent-Appellee. Consolidated. |
| Court | United States Appellate Court of Illinois |
Joseph S. Wright, Jr., Clifton A. Lake, Rooks, Pitts, Fullagar & Poust, Chicago, for petitioners-appellants.
William J. Scott, Atty. Gen., State of Illinois (Marvin I. Medintz, Chicago, of counsel), for respondent-appellee.
This is a judicial review of air pollution control regulations promulgated by the Illinois Pollution Control Board (hereinafter "Board"). Petitioners, United States Steel Corporation and Interlake, Inc. (hereinafter respectively "U.S. Steel" and "Interlake"), maintain this action under sections 29 and 41 of the Environmental Protection Act (), which, when taken together, provide for a direct review by this court of the validity of regulations adopted by the Board. The issues we consider in this review are: (1) what standard of review is applicable; (2) whether petitioners have waived the point that the regulations they challenge are arbitrary, capricious or unreasonable; and (3) whether the Administrative Review Act governs our review. We affirm. The pertinent facts follow.
On November 9, 1971, the Board commenced hearings on comprehensive air pollution control regulations proposed by the Environmental Protection Agency (hereinafter "Agency"). Over the following months such hearings were held at various locations throughout Illinois. On April 13, 1972, the Board adopted air pollution control regulations which included regulations numbered 103, 104, 105, 106, 107, 108 and 203.
U.S. Steel operates a steel production plant in Chicago which is known as the "South Works" and which consists of ten blast furnaces, an electric furnace, a basic oxygen process shop, a sinter plant, fabricating facilities and many auxiliary buildings and facilities. The South Works is affected by the regulations mentioned above. Potential air pollutants from the South Works are controlled by several types of equipment. For example, the blast furnaces are equipped with dust catchers, venturi scrubbers and tower scrubbers; the electric furnace is equipped with flooded disc scrubbers; the sinter plant is equipped with an electrostatic precipitator; and the basic oxygen process shop is equipped with venturi scrubbers. Regulation 203(b) regulates the emissions of particulate matter from the above-mentioned equipment with the exception of the sinter plant, which is governed by regulation 203(d)(2). Regulation 203(a) governs the emissions from new facilities. It establishes more restrictive standards than are found in 203(b), which governs existing facilities on which funds have already been expended for pollution control. The formula for control under both sections is a "process weight ratio" which allows for the emission of a maximum number of pounds of material per hour of emissions. This number in turn depends upon the weight of raw material used in the process.
Interlake operates seven steel manufacturing plants within Illinois, two of which are located in Chicago. Each of the Chicago plants have coke ovens and blast furnaces. All of Interlake's Illinois plants are affected by the aforementioned regulations. Moreover, Interlake's two coke plants in Chicago are affected by regulations 202(b), 203(d)(6)(B)(i)(aa), 203(d)(6)(B)(i)(bb), and 203(d)(6)(B)(iv)(aa), all of which were adopted on April 13, 1972, along with the previously mentioned regulations.
The raw material used to make coke is a blend of low sulphur coal. The coal is passed through a sleeve into coke ovens through ports resembling manholes on the top of the ovens. The ports are manually sealed with lids as soon as this loading or "charging" process is completed.
Regulation 203(d)(6)(B)(i)(aa) went into effect on April 13, 1972, and became inoperative on January 1, 1974. While it was operative, it limited the period during which smoke or particulate matter could be emitted into the atmosphere after the sleeve has been withdrawn from the port to a span of 20 seconds. Because no emissions occur after the lid has been replaced and sealed, this limitation has the effect of specifying how fast the port lids must be replaced. Regulation 203(d)(6)(B)(i)(bb) became effective on January 1, 1974. It requires employment of "automated negative pressure charging systems" or equivalent systems to fill coke ovens.
After charging, the coal is baked in a relatively oxygen free atmosphere for an average of seventeen hours. When this "coking" cycle has been completed, the hot coke is propelled by a mechanical ram out of the oven through a side door and into a "quench car" which then travels to a quenching tower where it is deluged with water. At this point the coal has been converted to coke and is ready for use in blast furnaces in the production of iron. Regulation 203(d)(6)(B)(iv)(aa) limits the magnitude of the emissions from the doors at the sides of the coke ovens through which the baked coke is pushed to a maximum of 30 percent opacity. Regulation 201 defines "opacity" as: "A condition which renders material partially or wholly impervious to transmittance of light and causes obstruction of an observer's view." In addition, regulation 202(b) establishes a visible emission standard for all existing emission sources and equipment of 30 percent opacity, and consequently it affects coke ovens by supplementing the regulations referring specifically to them.
Shortly after their adoption, petitioners each sought review of the validity of certain aspects of regulations numbered 103, 104, 105, 106, 107, 108 and 203. In addition, Interlake challenged the validity of regulation 202(b), and the validity of portions of regulation 203 not challenged by U.S. Steel. Because of the many common issues raised and virtually identical arguments advanced, we will deal with these causes simultaneously.
OPINIONSection 10 of the Environmental Protection Act (Ill.Rev.Stat.1977, ch. 1111/2, par 1010), authorizes the Board to adopt regulations designed to promote the purposes listed in section 8 of the Act, namely:
"to restore, maintain, and enhance the purity of the air of this State in order to protect health, welfare, property, and the quality of life and to assure that no air contaminants are discharged into the atmosphere without being given the degree of treatment or control necessary to prevent pollution." (Ill.Rev.Stat.1977, ch. 1111/2, par. 1008.)
According to section 10 of the Act, such regulations include those which prescribe:
"(a) Ambient air quality standards specifying the maximum permissible short-term and long-term concentrations of various contaminants in the atmosphere;
(b) Emission standards specifying the maximum amounts or concentrations of various contaminants that may be discharged into the atmosphere;
(c) Standards for the issuance of permits for construction, installation, or operation of any equipment, facility, vehicle, vessel, or aircraft capable of causing or contributing to air pollution or designed to prevent air pollution;
(d) Standards and conditions regarding the sale, offer, or use of any fuel, vehicle, or other article determined by the Board to constitute an air-pollution hazard;
(e) Alert and abatement standards relative to air-pollution episodes or emergencies constituting an acute danger to health or to the environment;
(f) Requirements and procedures for the inspection of any equipment, facility, vehicle, vessel, or aircraft that may cause or contribute to air pollution;
(g) Requirements and standards for equipment and procedures for monitoring contaminant discharges at their sources, the collection of samples and the collection, reporting and retention of data resulting from such monitoring. " (Ill.Rev.Stat.1977, ch. 1111/2, pars. 1010(a) through 1010(g).)
Section 10 of the Act requires that any regulation designed to promote the aforementioned purposes must be adopted pursuant to the procedures prescribed in Title VII of the Act (Ill.Rev.Stat.1977, ch. 1111/2, pars. 1026 through 1029). One of the provisions of Title VII, section 27, specifies the factors to be taken into account in the course of enacting substantive regulations:
"(a) * * * In promulgating regulations under this Act, the Board Shall take into account the existing physical conditions, the character of the area involved, including the character of surrounding land uses, zoning classifications, the nature of the existing air quality * * * and the Technical feasibility And Economic reasonableness of measuring or reducing the * * * pollution." Ill.Rev.Stat.1977, ch. 1111/2, par. 1027(a). Emphasis added.
Petitioners assert that the technical feasibility and the economic reasonableness of certain features of regulations 103, 104, 105, 106, 107, 108, 202 and 203 are not established by substantial evidence in the record. In support of this assertion petitioners first contend that section 29 of the Environmental Protection Act (Ill.Rev.Stat.1977, ch. 1111/2, par. 1029), combines with Supreme Court Rule 335(h)(2) (Ill.Rev.Stat.1977, ch. 110A, par. 335(h)(2)), to make the Administrative Review Act () applicable to the instant judicial review. Petitioners then argue that decisions of the Board, like those of other administrative agencies, must be based upon substantial evidence and must not be contrary to the manifest weight of the evidence. Petitioners additionally urge that the Board's order should not be presumed valid and that this court is not required to affirm the order simply because the Board heard the witnesses and made findings. According to petitioners, the scope of our review includes a weighing of the testimony. Finally, they submit that while an...
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