APPEAL from the Circuit Court of Cook County; the Hon. F.
EMMETT MORRISSEY, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendant United States Steel Corporation brings this interlocutory appeal from an order denying its motion to stay the proceedings in the trial court.
The present action was instituted in 1972 by the State of Illinois, through the Attorney General, against U.S. Steel seeking a permanent injunction to prevent the Gary, Indiana, Works of the corporation from allegedly "causing, permitting, or allowing the discharge of waste products into Lake Michigan," or the Grand Calumet River. The three count complaint alleged causes of action under specific statutory grants of authority to the Attorney General to prevent air, land, or water pollution in the State of Illinois (Ill. Rev. Stat. 1971, ch. 14, pars. 11 and 12) and to enforce the provisions of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1001 et seq.) and under the Attorney General's common law power to seek abatement of a public nuisance.
Defendant filed a motion on January 22, 1975, to stay the proceedings in the trial court pending the completion of an adjudicatory hearing before the United States Environmental Protection Agency (EPA) which was initiated by defendant with respect to a permit issued to its Gary Works under the National Pollution Discharge Elimination System (NPDES). *fn1 The motion to stay invoked the doctrines of primary jurisdiction and exhaustion of administrative remedies. The trial court heard argument with respect to the motion and denied it in an order entered April 28, 1975. This appeal followed.
Defendant appeals pursuant to Supreme Court Rule 307 (Ill. Rev. Stat. 1975, ch. 110A, par. 307) which permits an interlocutory appeal from an order denying or granting a stay of proceedings in the trial court. Valente v. Maida, 24 Ill. App.2d 144, 164 N.E.2d 538; Wiseman v. Law Research, Inc., 133 Ill. App.2d 790, 270 N.E.2d 77; and Bohn Aluminum & Brass Co. v. Barker, 55 Ill.2d 177, 303 N.E.2d 1.
During the pendency of this appeal the case of Metropolitan Sanitary District v. United States Steel Corp., 30 Ill. App.3d 360, 332 N.E.2d 426, leave to appeal denied, 60 Ill.2d 597, cert. denied, 424 U.S. 976, was decided. There the plaintiff Metropolitan Sanitary District sought, as does the Attorney General here, to enjoin defendant from continuing to discharge pollutants into Lake Michigan at its Gary Works. Defendant U.S. Steel, as in the present case, sought a stay of the trial court proceedings, setting forth the pendency of an adjudicatory hearing before the U.S. Environmental Protection Agency on the permit issued to defendant under the NPDES. *fn2 There, as here, defendant urged the trial court to invoke the doctrine of primary jurisdiction and require plaintiff to exhaust its administrative remedies. The court denied the motion.
That order was affirmed in a comprehensive opinion which recognized the statutory authority of the Sanitary District to seek relief against pollution of a water supply.
The court rejected the doctrine of primary jurisdiction as inapplicable, noting that an examination of the Federal Water Pollution Control Act (33 U.S.C. §§ 1251 et seq. (1974 Supp.)) disclosed that the continuing intention of Congress was:
"* * * not only to perpetuate rights of municipalities, such as plaintiff, to adopt and enforce requirements to abate pollution more stringent than any which may be adopted under the Federal system but also to make certain that this activity by States and municipal corporations, such as plaintiff, continues for the public benefit." Metropolitan Sanitary District, at 368.
The court also disposed of defendant's argument that the trial court and the Federal administrative agency were hearing the same matter and that the complex scientific and technological questions involved required a first resort to the agency for a consistent and uniform determination of the facts. This contention, said the court:
"* * * is based entirely upon the faulty and erroneous premise that both this court and the Federal administrative agency are dealing with the identical problem." (Metropolitan Sanitary District, at 369.)
Noting that the Federal statute had as its goal the gradual elimination of pollution, the court stated that, in contrast:
"* * * the proceedings before us involves total abatement. * * * [and] are thus completely divergent from the matter pending before the administrative body. In a situation of this type, the doctrine of primary jurisdiction is not applicable. We do not have here an issue of priority of jurisdiction but we have two tribunals which are approaching a problem from entirely different points of view and which are attempting to exercise jurisdiction in two entirely different matters." Metropolitan Sanitary District, at 370.
Finally, the court rejected the theory that exhaustion of administrative remedies by the Sanitary District was required, pointing out that the doctrine applied only where: "` * * * a party aggrieved by administrative action ordinarily cannot seek review in the courts without pursuing all administrative remedies available to him.' (Illinois Bell Telephone Co. v. Allphin, 60 Ill.2d 350, 358, 326 N.E.2d 737.)" or "`* * * where a claim is cognizable in the first instance by the administrative agency alone; * * *.' ...