PETITION for review of order of Pollution Control Board.
MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Shell Oil Company petitions for review of an order of the Illinois Pollution Control Board denying petitioner's motion for reconsideration of an order denying petitioner's petition for variance.
The issues presented by the petition are (1) whether the opinion and order of the Illinois Pollution Control Board denying petitioner's motion for reconsideration and the opinion and order of the Board denying the petition for variance are against the manifest weight of the evidence, and (2) whether the Illinois Pollution Control Board denied petitioner due process of law and equal protection of the law.
On March 19, 1973, Shell Oil Company, hereinafter referred to as "Shell," filed a petition for variance with the Illinois Pollution Control Board, hereinafter referred to as the "Board." The Illinois Environmental Protection Agency recommended that the variance be granted upon performance of certain conditions not in issue on appeal. On June 29, 1973, a hearing was held, and on October 5, 1973, the Board entered an opinion and order denying Shell's petition for variance, without prejudice. (Shell Oil Co. v. Environmental Protection Agency, PCB 73-116.) Petitioner filed a motion for reconsideration which was subsequently amended and augmented by an affidavit in support of the amended motion. The motion and affidavit were filed on November 27, 1973. Once again, the Illinois Environmental Protection Agency recommended approval, but the Board in its opinion and order of January 10, 1974, denied the motion for reconsideration. (Shell Oil Co. v. Environmental Protection Agency, PCB 73-116.) We affirm.
Shell operates an oil refinery in Wood River, Illinois. The refinery has a peak crude-oil capacity of 284,000 barrels per day. Waste water from the refinery is treated and discharged into the Mississippi River. Among the constituents of this discharge is cyanide. Rule 408(a), Part IV, Illinois Pollution Control Board Water Quality Regulation requires that effective December 31, 1973, waste-water discharge discharged from a facility such as petitioner's refinery must not contain more than 0.025 milligrams per liter (mg/1) of cyanide. Although the amount of cyanide in the refinery's effluent was quite small, it consistently exceeded the limit set by Rule 408(a). At the hearing, the sole witness, an employee of Shell, testified concerning Shell's previously unsuccessful efforts at compliance, including consultations with experts from other companies. He testified that the technology did not currently exist to reduce cyanide levels to the required level but that Shell had developed "a potentially applicable cyanide-removal process" and that "laboratory investigations are continuing." The details of the process were not given. The witness also testified that for Shell to presently comply with Rule 408(a) it would have to shut down its catalytic cracking units, drastically cutting the refinery's production and requiring Shell to lay off many of its employees. Evidence was introduced that the adverse environmental impact of Shell's discharge was minimal, but the Board commented that the evidence was not persuasive. The Illinois Environmental Protection Agency did not cross-examine the witness or attempt to elicit the details of the process. In its affidavit in support of the motion for reconsideration, Shell gave a brief explanation of the process and additional discharge data compiled since the date of the hearing.
The petitioner first contends that the Board failed to base its decision on the manifest weight of the evidence in the record before it and therefore denied petitioner due procss of law. We believe that the issues in this case may be more clearly considered by discussing how petitioner's objection separately relates to the Board's orders. The Board's earlier order will be considered first.
• 1 Section 2(b) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1002(b)) states the purposes of the Act:
"* * * to restore, protect and enhance the quality of the environment, and to assure that adverse effects upon the environment are fully considered and borne by those who cause them."
Section 26 (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1026) gives the Board the power to adopt "such procedural rules as may be necessary to accomplish the purposes of this Act." Section 35 provides in part:
"* * * the Board may grant individual variances beyond the limitations prescribed in this Act, whenever it is found, upon presentation of adequate proof, that compliance with any rule or regulation, requirement or order of the Board would impose an arbitrary or unreasonable hardship."
Pursuant to these provisions, the Board formulated Rule 405(b), Rules and Regulations of the Illinois Pollution Control Board, Chapter 1: Procedural Rules, Rule 405, which states in part:
"No variance shall be granted, with or without hearing, without adequate proof by the petitioner that compliance would impose an arbitrary or unreasonable hardship."
The burden of proof is thus on the petitioner seeking a variance to prove that compliance with an applicable Board regulation would create an arbitrary or unreasonable hardship for the petitioner. Section 36(a) adds:
"In granting a variance the Board may impose such conditions as the policies of this Act may require. If the hardship complained of consists solely of the need for a reasonable delay in which to correct a violation of this Act or of the Board regulations, the Board shall condition the grant of such variance upon the posting of sufficient performance bond or other security to assure the completion of the work covered by the variance." (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1036(a).)
The section requires that when the arbitrary or unreasonable hardship alleged in the petition consists of reasonable delay in complying with the Board regulations, the Board shall require ...