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Meadowlark Farms, Inc. v. Pollution Control Bd.

FEBRUARY 22, 1974.

MEADOWLARK FARMS, INC., PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



APPEAL from the Pollution Control Board.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

Meadowlark Farms, Inc., petitions for review of an order by the Illinois Pollution Control Board which found it guilty of violating the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, § 1012(a)) and certain rules of SWB-14 of the Sanitary Water Board's rules and regulations; ordered it to cease and desist the pollution, pay a penalty of $141.66, submit an abatement plan along with a performance bond, and abate the pollutional discharge.

Petitioner contends that its motion to dismiss should have been granted; that it does not have ownership and control over the property from which the discharge originates; that it has not caused, threatened and allowed the discharge of contaminants within the meaning of section 12(A) of the Act (Ill. Rev. Stat. 1971, ch. 111 1/2, § 1012(a)); that its lack of knowledge that the discharge of contaminants was occurring is a defense to the complaint; that it is regulated by chapter 4, Mine Related Pollution Control Board Regulations, and the complaint does not charge it with a violation of chapter 4 provisions; that the Illinois Environmental Protection Act as applied in this instance is retroactive and therefore unconstitutional and void; and finally that the Pollution Control Board decision is not supported by a reasoned opinion.

There is no dispute as to the facts in this case. Petitioner, Meadowlark Farms, Inc., is a wholly owned subsidiary of American Metal Climax, Inc. In November of 1967 the petitioner acquired its interest in the surface estate of a piece of property known as Peabody 43. Although the land was acquired with the expectation of surface mining the No. 6 Coal underlying the property, the petitioner's primary business is farming, and its chief function is to hold and manage the land reserves of its parent company.

Peabody 43 is an abandoned, slope-entry deep mine site, which was used to gain access to the No. 5 Coal Seam. The mine was operated between the years 1943 and 1957. During that period, refuse material was hand picked from the raw coal and spread over an 18-acre area, from one to eight feet thick. This refuse material absorbs rainfall and releases water gradually in the form of seepage. Associated with this refuse material is a mineral commonly known as "pyrite." When air and water move through the refuse material, they react with the pyrite to form acid mine drainage, commonly called AMD.

An unnamed tributary of Brushy Creek flows across the Peabody 43 mine site, which prior to the operation of the mine flowed only when it rained. Since the creation of the refuse pile, the seepage which contains AMD has created a flow in this tributary which is continuous throughout most of the year. Brushy Creek itself is a larger stream into which the tributary flows and, even though it too is an intermittent stream, it contains several deep holes which do not dry up. Prior to the creation of the Peabody 43 refuse pile there were fish in Brushy Creek, particularly in those deep holes, but since the creation of the refuse area these fish were subject to periodic kills.

On several occasions since December of 1971 a surveillance engineer for the Illinois Environmental Protection Agency (EPA) visited the Peabody 43 mine site and conducted inspections, recording his observations and taking water samples from Brushy Creek and its tributary. From these analyses it was established that AMD was seeping from the refuse area on petitioner's property into the tributary of Brushy Creek and Brushy Creek itself. On June 16, 1972, when the surveillance engineer visited the area, he observed some dead fish in Brushy Creek near one of his sampling stations. He immediately notified an official of the Division of Fisheries of the Department of Conservation who determined the extent of the fish kill and placed the value on the dead fish at $141.66. There was no question that the fish died as a result of the AMD seeping from the Peabody 43 refuse pile.

Petitioner was informed of the discharge of contaminants from its property by the Environmental Protection Agency through a letter dated June, 1972. Amax Coal Company, a division of the petitioner's parent company, immediately began an investigation of the refuse area and became convinced that seepage from the Peabody 43 property was contaminating the waters of Brushy Creek and its tributary. Thereafter Amax requested a meeting with EPA officials to discuss abatement plans, but prior to this meeting the complaint was filed. The meeting resulted solely in settlement discussions, but Amax later undertook abatement action on its own. A hearing was held November 15, 1972, and the Pollution Control Board issued its order January 16, 1973.

Petition first contends that its motion to dismiss should have been granted, and in support of this point argues that the Illinois Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, § 1001 et seq.) grants to an administrative agency both legislative and judicial powers in violation of section 1 of article II and section 1 of article VI of the Constitution of the State of Illinois. It is argued that under section 5(b) and (c) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, § 1005(b) and (c)), the Pollution Control Board is delegated powers which are legislative in nature, to-wit, the power to adopt rules, regulations and standards in accordance with the Act. And under section 5(d) of the Act (Ill. Rev. Stat. 1971, ch. 111 1/2, § 1005(d)), the Board is delegated powers which are judicial in nature, to-wit, the power to conduct hearings upon complaints charging violations of the Act. This, according to the petitioner, constitutes a violation of the separation-of-powers doctrine of section 1 of article II of the Illinois Constitution and therefore renders the Environmental Protection Act unconstitutional.

• 1, 2 This argument is totally without support. The Pollution Control Board has been delegated powers which enable it to exercise both regulatory and adjudicatory functions in furtherance of the Act, just as many other State agencies have been delegated powers which are legislative and judicial in nature. This delegation is perfectly compatible with the separation-of-powers doctrine. The Illinois Supreme Court has stated that the separation-of-powers clause was not designed to achieve a complete divorce between the three departments of government, but rather was a recognition of the fact "that the whole power of two or more of these departments shall not be lodged in the same hands, whether of one or many. Field v. People ex rel. McClernand, 2 Scam. 79." (People v. Reiner (1955), 6 Ill.2d 337, 129 N.E.2d 159.) Separation of powers, therefore, is a method to prevent the accumulation of power in the hands of one breach of government. This principle does not prevent the legislature from delegating to an administrative agency the power to do those things which it might properly but not understandingly or advantageously do itself. Accordingly, when the legislature has the power to enact a law, it also has the power, as a necessary adjunct, to adopt a procedure for its administration and may do so through commissions, boards or committees, and may grant to such administrative bodies certain authority and powers in keeping with the spirit of the act, for its efficient and practical application and operation. Reif v. Barrett (1934), 355 Ill. 104, 188 N.E. 889.

By enactment of the Environmental Protection Act the General Assembly declared the public policy of the State of Illinois with reference to water pollution, and subsequently the public policy of the State, by adoption of the 1970 Constitution, was declared to be that every person has an inherent right to a clean and healthful environment (Ill. Const. (1970), art. XI, sec. 1). Under title III of the Act, dealing with water pollution, the General Assembly stated its purpose to purify, cleanse and enhance the waters of Illinois (Ill. Rev. Stat. 1971, ch. 111 1/2, § 1011). Section 12 defined the acts prohibited by the statute (Ill. Rev. Stat. 1971, ch. 111 1/2, § 1012), and section 13 granted the Pollution Control Board the power to make rules and regulations in furtherance of title III (Ill. Rev. Stat. 1971, ch. 111 1/2, § 1013). And under section 3(n) of the Act "water pollution" is defined as:

"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 aquatic life." (Ill. Rev. Stat. 1971, ch. 111 1/2, § 1003(n)).

Thus, the legislature has conferred authority and discretion as to the execution of the law. However, this authority and discretion is to be exercised under and in pursuance of the standards described by section 13(a)-(i) (Ill. Rev. Stat. 1971, ch. 111 1/2, § 1013(a)-(i)) and the procedures prescribed by title VII (Ill. Rev. Stat. 1971, ch. 111 1/2, §§ 1026-1029). This is a proper delegation of administrative authority. (Southern Illinois Asphalt Co. v. Environmental Protection Agency (1973), 15 Ill. App.3d 66, 303 N.E.2d 606.) In Southern Illinois Asphalt this court was faced with a similar challenge to the delegation of authority to the Pollution Control Board in the area of air pollution control. There we upheld the constitutionality of the Act as a valid delegation of legislative power to an administrative agency. That case is controlling here.

• 3 Regarding the delegation of adjudicatory functions to the Pollution Control Board under section 5(d) of the Act (Ill. Rev. Stat. 1971, ch. 111 1/2, § 1005(d)), we can find no unlawful delegation. The grant of authority to conduct hearings upon complaints charging violations of the Act is merely a delegation of quasi-judicial powers to the Pollution Control Board incidental to its duty of administering the law. (Department of Finance v. Gandolfi (1940), 375 Ill. 237, 30 N.E.2d 737; Department of Finance v. Cohen (1938), 369 Ill. 510, 17 N.E.2d ...


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