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Village of Glencoe v. Metropolitan San. Dist.

OCTOBER 23, 1974.

THE VILLAGE OF GLENCOE, PLAINTIFF-APPELLANT,

v.

THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. F. EMMETT MORRISSEY, Judge, presiding.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

In July of 1972 the Metropolitan Sanitary District of Greater Chicago (District) notified the Village of Glencoe (Village) that it was discharging wastes into the waters of the District in violation of its Sewage and Waste Control Ordinance. The parties conferred, but were unable to reach a successful conciliation. Shortly thereafter, a pollution control officer of the District took grab samples of the Village's discharge. On November 22, 1972, the District notified the Village that it was to appear before a hearing officer and show cause why such a discharge should not be discontinued. A hearing was held before a hearing officer, and evidence was received including the results of samples and tests taken by both parties at a tap near the point of discharge. The hearing officer concluded that the Village was discharging pollutants in violation of the ordinance. Subsequently, the Village appeared before the Board of Trustees of the District. After a hearing before the Board, the Village was ordered to cease and desist from violating the ordinance. The Village filed an action in the circuit court seeking review under the Administrative Review Act. The trial court affirmed the order of the Board of Trustees, and the Village appeals.

The Village operates a water filtration plant which is located on the shoreline of Lake Michigan. The plant receives raw lake water and passes it through a succession of purification devices. In the ordinary course of cleaning the component parts of its plant, the Village back-washes into Lake Michigan the sludge accumulated in the bottom of its settling basins. This backwash is generally conducted biannually. It is estimated that the discharge amounts to 50 tons of solids and 2,000,000 gallons of water being returned to the Lake each year. Approximately one-half of the solid matter is in reality a concentrated return of particles filtered out of the raw lake water. The other one-half principally consists of alum which is added to the water during the purification process to precipitate out turbidity.

• 1 The Village primarily contends that the District exceeded its statutory authority by enacting its Sewage and Waste Control Ordinance. As pointed out by the Village, article VII, section 8, of the Illinois Constitution of 1970 provides that "* * * special districts * * * which exercise limited governmental powers or powers in respect to limited governmental subjects shall have only powers granted by law." Thus, the District derives its powers exclusively by statute, and has only that authority which is expressly conferred upon it. (People ex rel. Illinois Highway Transportation Co. v. Biggs, 402 Ill. 401.) As stated in Oliver v. Civil Service Commission, 80 Ill. App.2d 329, 334, 224 N.E.2d 671, 674, "The law is clear * * * that regulatory agencies have no inherent powers. They are creatures of statute, vested only with those powers specifically conferred upon them by the legislature * * *."

The grant of authority to the District is found in section 4 et seq. of "An Act to create sanitary districts * * *" (Ill. Rev. Stat., ch. 42, par. 323 et seq.). Section 4 provides in material part that:

"The board of trustees has full power to pass all necessary ordinances, orders, rules resolutions and regulations for the proper management and conduct of the business of the board of trustees and the corporation and for carrying into effect the object for which the sanitary district is formed. * * *"

Section 7aa of the same act provides that:

"The sanitary district has the power and authority to prevent the pollution of any waters from which a water supply may be obtained by any city, town or village within the district. * * *" (Ill. Rev. Stat., ch. 42, par. 326aa.)

Section 7bb of the same act provides that:

"The term `Pollution' means such alteration of the physical, thermal, chemical, biological or radio-active properties of any waters of the State, or such discharge of any contaminant into any waters 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.

(2) The sanitary district acting through the general superintendent shall study, investigate, and from time to time determine ways and means of removing from the waters within such sanitary district so far as practicable, all pollution, and to determine methods of abating pollution that is detrimental to the public health or to animals, fish or aquatic life, or detrimental to the practicable use of the waters for purposes of recreation, industry, or agriculture. * * *" Ill. Rev. Stat., ch. 42, par. 326bb.

In September of 1969 the District adopted its Sewage and Waste Control Ordinance pursuant to the grant of power in section 423. The last clause of Appendix A to the ordinance provides that "no sewage, industrial wastes or other wastes of any kind may be discharged into the waters of Lake Michigan." The District's position is that this backwash discharge violates Appendix A, and, therefore, must be discontinued.

There appears to be no conflict that the Village is in violation of Appendix A. This is expressly admitted by the Village. It also concedes the District's authority to prevent the discharge of pollutants into Lake Michigan. The Village argues, however, that there is no statute giving the District the express power or even implied authority to prohibit a nonpolluting discharge; and that Appendix A is an unlawful attempt by the District to ban a discharge without regard to its reasonableness, or without a consideration of the public health, safety or welfare. In short, the Village contends that the order to cease and desist must be contingent upon actual proof of pollution.

Throughout these proceedings, the Village has strenuously and sincerely maintained that its discharge does not pollute the waters of Lake Michigan. At the hearings before both the hearing officer and the Board of Trustees, the Village offered to so prove. It is contended that the refusal of this evidence was improper, and that the limitation of the issue to whether or not the Village violated the ordinance was reversible error. The Village strongly believes that it would be improper to expend ...


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