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Union Oil Co. v. Pollution Control Bd.

OPINION FILED NOVEMBER 24, 1976.

UNION OIL COMPANY OF CALIFORNIA, PETITIONER,

v.

THE POLLUTION CONTROL BOARD, RESPONDENT.



PETITION for review of order of Pollution Control Board.

MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Petitioner is a corporation that owns and operates a petroleum refinery with related equipment and facilities located within the Third Appellate District. Petitioner has also filed an identical petition in the First Appellate District (No. 59461). Both petitions involve the initial judicial review, pursuant to section 29 of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1029), challenging the validity of the Illinois Pollution Control Board's Regulation R72-2 adopted on July 26, 1973. Said section 29 provides:

"Any person adversely affected or threatened by any rule or regulation of the Board may obtain a determination of the validity or application of such rule or regulation by petition for review under Section 41 of this Act." (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1029.)

Thus the Environmental Protection Act makes express provision for judicial review of the Board's rule-making function under terms of the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.).

Regulation R72-2 is a comprehensive noise pollution control regulation. In 1970, after the effective date of the Illinois Environmental Protection Act, the Illinois Environmental Protection Agency presented a proposal to the Illinois Institute for Environmental Quality suggesting the creation of a task force to develop proposals for regulations to abate noise pollution. Pursuant to the authority of the Environmental Protection Act the Task Force on Noise was formed in 1971. It drafted suggested standards to be used for the regulation of noise. The Task Force was composed of Mr. John S. Moore of the EPA division of Noise Pollution Control and nine members of the University of Illinois faculty. The acoustical firm of Bolt, Beranek & Newman entered into a contract to assist the Task Force in preparation of its formal report. Early in 1972 the Task Force submitted its report. Between June 1972 and May 1973 the Illinois P.C.B. conducted 16 public hearings throughout the State to consider the proposed regulations. As a result of these public hearings the original proposed regulations were substantially modified and made more lenient in regulating noise in the final version adopted.

For rulemaking purposes, noise sources were broadly grouped into four categories:

(1) Stationary or property line noises

(2) Ground transportation noises

(3) Construction sites

(4) Airports. The regulations relevant to this appeal concern themselves only with the first category, stationary or property line noises.

The structure of the challenged regulation adopts a classification scheme in which there are in effect, four classes of "receivers" and four classes of "emitters." This classification of actual land users was accomplished by assigning each land use to a particular category as defined by the Standard Land Use Coding System (SLUCM Code). Class A receivers are those most sensitive to noise and hence are given the highest degree of protection, including among others, residences, hospitals, schools and libraries. Class B receivers are less sensitive and receive correspondingly less protection, including among others, retail and wholesale establishments, banks, courthouses and some parks. Class C receivers are the least sensitive of those protected. They include industrial plants, mining operations and agricultural land. Finally, there are receivers which are unclassified and therefore receive no protection and include undeveloped and unused land, vacant floor area, and water areas.

Emitters are classified according to the amount of noise they produce and the difficulty of silencing. In general the classification of an emitter — A, B, C or unclassified — is the same as its classification as a receiver.

This comprehensive noise pollution regulation combines the receiver and emitter categories with varying maximum permissible noise emission limits in an effort to balance the most protection for each class of receivers with the ability and requirements of the various class of emitters to abate noise.

Petitioner, Union Oil Company, seeks a preenforcement judicial review of the applicability of regulation R72-2 of the Pollution Control Board. The three issues presented for ...


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