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City of Chicago v. Pollution Control Bd.

OPINION FILED NOVEMBER 27, 1974.

THE CITY OF CHICAGO, APPELLEE,

v.

THE POLLUTION CONTROL BOARD ET AL., APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Walter P. Dahl, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 28, 1975.

This is a consolidated appeal from two orders of the circuit court of Cook County enjoining the Illinois Pollution Control Board and the Illinois Environmental Protection Agency (EPA) from enforcing certain sections of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1001 et seq.), and certain rules and regulations adopted pursuant to the Act, against the City of Chicago in the operation of a sanitary landfill and three incinerators used for the disposal of garbage and refuse. Permits for the operation of these facilities had been granted by the Chicago Department of Environmental Control. The appeals were transferred to this court pursuant to Rule 302(b). 50 Ill.2d R. 302(b).

Four complaints were filed by the EPA against the City of Chicago before the Pollution Control Board. The first of these, filed on May 23, 1973, alleged that the City was operating a refuse disposal, known as the Stearns Quarry, in violation of sections 21(a), (b), (e) and (f) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, pars. 1021(a), (b), (e) and (f)) and Rules 3.04, 4.03, 5.06, and 5.07(a) of the "Rules and Regulations for Refuse Disposal Sites and Facilities." Before a hearing on this complaint could be held the City initiated an action in the circuit court of Cook County to enjoin the Board from hearing the case. The City alleged that as a home-rule unit under section 6 of article VII of the 1970 Constitution it was not subject to the provisions of the Environmental Protection Act. In the other three complaints the EPA alleged that three incinerators operated by the City were in violation of sections 9(a) and (b) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, pars. 1009(a) and (b)), Rule 3-3.232 of the "Rules and Regulations Governing the Control of Air Pollution," and Rule 103(b)(2) of the Board's "Air Pollution Control Regulations." The City also filed an action to temporarily enjoin further proceedings on these complaints. In both cases the circuit court granted preliminary injunctions, and subsequently granted permanent injunctions.

It is the contention of the City that its municipal disposal sites and incinerators are not subject to the provisions of the Environmental Protection Act because (1) the City is a home-rule unit under article VII of the Constitution, (2) the collection and disposal of garbage and waste is a governmental function within its home-rule powers and (3) the General Assembly has not acted pursuant to article VII to restrict the City's exercise of these home-rule powers. The City has not challenged the applicability of the Environmental Protection Act to non-municipal entities within the City. It is only the City's municipal operations which are claimed to be exempt from the Act.

Defendants, the Pollution Control Board and the Environmental Protection Agency, argue that the Environmental Protection Act and regulations enacted pursuant thereto apply to local governmental bodies, and that the State has the exclusive authority in the area of environmental protection and pollution control. They contend that section 1 of article XI of the Constitution vests exclusive legislative authority in these areas in the General Assembly and limits the home-rule powers granted by article VII. They also argue that environmental and pollution matters do not pertain to the "government and affairs" (see Ill. Const. (1970), art. VII, sec. 6(a)) of home-rule units, and that the State has preempted this area in the Environmental Protection Act. If home-rule units do have authority to act in these areas, the defendants argue that the State has concurrent authority. The defendants also argue that the judgment below should be reversed because the City has failed to exhaust its administrative remedies.

We first consider the threshold question of whether the City was required to exhaust its administrative remedies before seeking injunctive relief. The Environmental Protection Act provides for a hearing on the merits of any complaint issued by the EPA. Parties to the hearing may obtain judicial review pursuant to the provisions of the Administrative Review Act. (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1041; ch. 110, par. 264 et seq.) Defendants argue that were this procedure followed the City might prevail before the Board or on administrative review. The City answers that since the question of whether its functions are subject to the provisions of the Act is a legal one, the doctrine of exhaustion is inapplicable. We believe that where, as here, there is a dispute between the State and a home-rule unit as to jurisdiction, and a determination of the issue requires a construction of our constitution and statutes enacted implementing its provisions, there is no requirement that administrative remedies be exhausted.

As to the merits of this controversy it appears to be unnecessary to engage all of the contentions that have been raised on this appeal. The following presentation adequately presents the issues.

We shall first consider the defendants' argument that section 1 of article XI of the 1970 Constitution vests exclusive authority in the General Assembly to enact environmental legislation. Section 1 of article XI states:

"SECTION 1. PUBLIC POLICY — LEGISLATIVE RESPONSIBILITY.

The public policy of the State and the duty of each person is to provide and maintain a healthful environment for the benefit of this and future generations. The General Assembly shall provide by law for the implementation and enforcement of this public policy."

The report of the General Government Committee of the constitutional convention on the environmental article left no doubt that it was the intention of that committee that the General Assembly must provide the leadership in the fight against environmental pollution. (6 Record of Proceedings, Sixth Illinois Constitutional Convention 696-709, hereafter referred to as Proceedings.) However, the report does not indicate the exclusivity of State authority in this field for which the defendant contends. The committee report, in discussing this subject, states:

"The use of the word `State' is meant to include political subdivisions of the State. This raises the question of duplication of efforts by the State and its local governments. It is intended that the issue be left to the General Assembly for resolution. The duplication of ...


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