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Monsanto v. Pollution Control Board

OPINION FILED JUNE 1, 1977.

MONSANTO COMPANY, APPELLEE,

v.

THE POLLUTION CONTROL BOARD ET AL., APPELLANTS.



Appeal from the Appellate Court for the Fifth District; heard in that court on petition for review of an order of the Pollution Control Board.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 3, 1977.

The Monsanto Company, appellee, petitioned the Pollution Control Board (hereinafter Board) for a permanent variance from the provisions of Illinois Water Pollution Regulation 702(a), dealing with mercury discharges to public sewer systems. The Board granted Monsanto a one-year variance with certain conditions limiting the amount of mercury which could be permissibly discharged. Monsanto appealed the Board's order, contending that those conditions were not supported by the evidence and that the Board was in error in concluding that it could not grant a permanent variance. The appellate court agreed, one judge dissenting, and reversed the Board's decision. (39 Ill. App.3d 333.) We granted the Board and the Illinois Environmental Protection Agency leave to appeal.

Monsanto owns and operates the William G. Krummrich Chemical Plant in Sauget, Illinois. The Krummrich plant produces more than 70 different chemical products. More than 80% of these products have as essential ingredients either chlorine, sodium hydroxide, potassium hydroxide, or hydrogen. These four products are made by a production unit known as the "chlor-alkali facility." The chlor-alkali facility uses mercury as a conductor of electricity. All effluent streams from the chlor-alkali facility are collected and passed through a mercury-treatment system prior to discharge. Nonetheless, some mercury from the chlor-alkali facility is discharged into the Sauget sewer system, which ultimately empties into the Mississippi River. In addition, small amounts of mercury are also present in the waste water discharged from other areas of the plant.

Illinois Water Pollution Regulation 702(a) provides that no effluent to any public sewer system shall contain mercury in excess of .5 parts of mercury per billion parts of water at any time. In November of 1971 Monsanto was granted a variance from the statewide standard, conditioned on it limiting all its mercury discharge to .5 pounds per day. In October of 1972 another variance was granted, this time with limits of .33 pounds per day based on a six-month moving average, and .5 pounds per day in any 24-hour period. A third variance was granted to Monsanto in November of 1973. This variance limited discharge to .25 pounds per day based on a six-month moving average, but not to exceed .4 pounds per day in any 24-hour period.

In August 1974, Monsanto petitioned for a fourth 12-month variance. Hearings were held, and in March 1975, following the hearings but before the Board ruled, Monsanto filed an amended variance petition requesting a permanent variance instead of the 12-month variance it had originally requested. On April 24, 1975, the Board ruled that it had no authority in cases such as this to grant a variance in excess of one year, and entered an order granting the one-year variance which is the subject of this appeal, retroactive to November 6, 1974, expiring November 5, 1975. The Board imposed as conditions of this variance that Monsanto limit its mercury discharge to .2 pounds per day based on a six-month moving average, with the discharge for any 24-hour period not to exceed .3 pounds. These limits are approximately five and eight times, respectively, in excess of the statewide requirement of Regulation 702(a).

The Appellate Court for the Fifth District concluded that the Board erred in ruling that it could only grant a variance for one year, and held that the conditions imposed by the Board in granting the instant variance were against the manifest weight of the evidence. There are, then, three issues which we must address in deciding this appeal. First, does the Pollution Control Board have the authority, under the Illinois Environmental Protection Act, to grant variances in excess of one year? Secondly, was the appellate court correct in using the manifest weight of the evidence standard to evaluate the conditions imposed by the Board? Finally, using the proper standard of review, was there sufficient evidence to support the Board's imposition of the interim standards limiting Monsanto's mercury discharge during the period of the variance?

Variances are governed by sections 35 through 38 of the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, pars. 1035 through 1038). Section 35 provides that the Board may grant variances whenever it finds, upon presentation of adequate proof by a petitioner, that any rule, regulation, requirement, or order of the Board would impose an arbitrary or unreasonable hardship on petitioner. At the time of the instant variance proceeding, section 36 (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1036) read, in pertinent part, as follows:

"(a) 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. * * *

(b) Any variance granted pursuant to the provisions of this section shall be granted for such period of time, not exceeding one year, except for variances for discharges for which a permit is required under Section 39(b) of the Act, which variances shall be granted for such period of time not exceeding five years, as shall be specified by the Board at the time of the grant of such variance, and upon the condition that the person who receives such variance shall make such periodic progress reports as the Board shall specify. Such variance may be extended from year to year by affirmative action of the Board, but only if satisfactory progress has been shown." (Emphasis added.)

Monsanto argues that this section does not prohibit the Board from granting permanent variances in cases like the one at bar because the one-year limitation of section 36(b) applies only to variances granted when petitioner needs a reasonable delay in which to correct a violation. This is so, says Monsanto, because only these delay variances are granted pursuant to section 36, as required by section 36(b); all other variances, including the one requested by Monsanto, are pursuant to section 35, and so are not subject to the one-year limitation of section 36(b). We disagree. A close reading of the Act indicates that all variances, including delay variances, are granted pursuant to section 35, the general enabling section of title IX of the Act. Section 36(a) merely gives the Board authority to attach conditions to a variance of any kind and requires that delay variances be conditioned upon the posting of security; it does not, as section 35 does, bestow upon the Board authority to grant any type of variance.

Since no variances are granted pursuant to section 36, paragraph (b) of that section, if read literally, is without meaning, because its application is seemingly limited to variances granted pursuant to the "provisions of this section." The Board argues, and we agree, that section 36(b) cannot be read literally because the inclusion of the word "section" was a drafting error. The one-year limitation was meant to apply to variances granted pursuant to the provisions of title IX, which includes section 35, the enabling section. The word "section," however, was erroneously inserted in place of "title" when title IX was adopted from section 11 of the Illinois Air Pollution Control Act (Ill. Rev. Stat. 1969, ch. 111 1/2, par. 240.11). Section 11(a) of that act was substantially equivalent to section 35 of the present Environmental Protection Act. Sections 11(b) and 11(c) were likewise the predecessors, respectively, of sections 36(a) and 36(b). Thus, the reference in paragraph (c) of section 11 of the former act to variances granted pursuant to this section alluded to the authority granted in paragraph (a) of the same section. When these provisions were copied in drafting the present act, however, the authority to grant variances was not placed in the same section. The draftsmen, unfortunately, neglected to change the word "section" to reflect the difference in the section numbering of the two acts. It is clear, then, that the Board was correct in concluding that its power to grant variances under section 35 was circumscribed by the one-year limitation of section 36(b).

We might add, further, that the concept of a variance which permanently liberates a polluter from the dictates of a board regulation is wholly inconsistent with the purposes of the Environmental Protection ...


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