PETITION for review of order of Pollution Control Board.
MR. JUSTICE BOYLE DELIVERED THE OPINION OF THE COURT:
This action involves a petition by United States Steel Corporation (petitioner) for direct appellate review of regulations promulgated by the Illinois Pollution Control Board (Board) pursuant to sections 29 and 41 of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1975, ch. 111 1/2, pars. 1029, 1041) and Supreme Court Rule 335 (Ill. Rev. Stat. 1975, ch. 110A, par. 335). The regulations establish standards for the control of the discharge of pollutants from point sources into the navigable waters within the State of Illinois. (See proceedings of the Illinois Pollution Control Board, No. 73-11 and No. 73-12.)
There are essentially three issues presented for review: (1) whether certain of the regulations, as promulgated, are inconsistent with the Board's authority under the Act; (2) whether certain of the regulations, as promulgated, are arbitrary, capricious and unreasonable; and (3) whether certain of the regulations, as promulgated, are unconstitutional as a denial of due process. Although the Board and petitioner have briefed and argued a number of points, their arguments will be examined here only to the extent necessary for a determination of this case.
• 1 The framework and scope of these regulations, as well as the background of their development, has been previously examined in great detail by the Fifth District of this court in Peabody Coal Co. v. Pollution Control Board (5th Dist. 1976), 36 Ill. App.3d 5, 344 N.E.2d 279. It is unnecessary to reiterate that discussion here. Likewise, we need not repeat the sound principles of judicial review of administrative regulations as set forth by our supreme court in Commonwealth Edison Co. v. Pollution Control Board (1976), 62 Ill.2d 494, 343 N.E.2d 459, and in Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill.2d 305, 319 N.E.2d 782, and again by the Fifth District of this court in Shell Oil Co. v. Illinois Pollution Control Board (5th Dist. 1976), 37 Ill. App.3d 264, 346 N.E.2d 212. We believe that these four cases are dispositive of the principal issues presented for review by petitioner. However, Peabody Coal is dispositive only to the extent that we are in accord with the Fifth District and its findings.
Petitioner contends that the Board's Administrative Rule 410(b) *fn1 is contrary to applicable provisions of the Act in that the Board exceeded the scope of its delegated authority. Rule 410(b) requires a permit applicant to determine whether or not a pollutant is present in its discharge, to any extent whatsoever, regardless of whether the discharge is in compliance with all Federal and State guidelines or whether the permit applicant even knows of a pollutant's existence. (Emphasis added.) Petitioner contends the Board has exceeded its legislative mandate (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1013(b)(i)) in requiring a National Pollution Discharge Elimination System (NPDES) permit applicant to determine every pollutant present in its discharge, no matter how minimal the amount, and to set forth this pollutant in its application for an NPDES permit. The Illinois NPDES administrator then would issue allowable discharge levels for each of the pollutants enumerated in the NPDES permit application. All other discharges of pollutants which are not specified in the Illinois NPDES permit would then be forbidden. Petitioner contends this provision is in direct contravention to the Federal NPDES permit, which, it argues, grants to the permittee a general authorization to discharge pollutants limited only by conditions in the permit which restrict in some manner the discharge of certain specified pollutants. Thus, all discharges, except those specifically limited by the Federal NPDES, would then be permissible.
Petitioner also contends that under section 12(f) "[n]o permit shall be required * * * for any discharge for which a permit is not required under the Federal Water Pollution Control Act Amendments of 1972 * * *." (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1012(f).) Petitioner argues that under section 12(f), the Illinois regulations should require an Illinois NPDES permit only where a Federal NPDES permit would be required. Petitioner further argues that the legislative intent of the Illinois NPDES program is consistency with the Federal Act and regulations (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1013(b)(i)) and contends that Rule 410(b), as promulgated, is not necessary under section 12(f) for Federal approval of Illinois' NPDES permit program. *fn2
It is clear that section 13(b)(i) of the Illinois Act, which requires the Board to promulgate regulations "necessary or appropriate" for Federal approval and regulations which are "consistent" with the FWPCA, does not limit the Board's rule-making power to that necessary to obtain Federal approval of Illinois' NPDES permit program, as petitioner contends. (Peabody Coal Co. v. Pollution Control Board (1976), 36 Ill. App.3d 5, 15-16, 344 N.E.2d 279, 285.) Such a limited interpretation of the Illinois Act would unduly hinder the Board from achieving the true goal of the NPDES permit system, which is the limitation of the discharge of point source pollutants into navigable waters by the "best practicable [water pollution] control technology currently available" by July 1, 1977, and the "best available technology economically achievable" by July 1, 1983. 33 U.S.C. § 1311 (b)(1)(A)(i), (2)(A)(i) (1975 Supp.).
In addition, under section 402(a)(1) and (b) of the FWPCA a NPDES permittee must comply with section 308 of the FWPCA and must report and monitor all regulated pollutants. The Federal Administrator also, may request additional reporting of pollutants from permit holders "as he may reasonably require." (33 U.S.C. § 1318(a)(A) (1975) Supp.).) Thus, petitioner's argument that Rule 410(b) is invalid because it exceeds the Board's delegated authority under the Illinois Act fails because under the FWPCA, a NPDES permittee may be required by the Administrator to report any pollutants present in his discharge "as he may reasonably require." 33 U.S.C. § 1318(a)(A)(1975 Supp.); Peabody, 36 Ill. App.3d 5, 14.
• 2 Thus, we hold the requirements of Rule 410(b) do not exceed the Board's delegated authority under the Illinois Act, nor is Rule 410(b) inconsistent with the FWPCA, nor is it in contravention of the requirements of section 12(f).
Petitioner also contends that Rule 410(b) is arbitrary and capricious because it failed to follow the procedure set forth in section 27 of the Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1027) and did not "take into account * * * the technical feasibility and economic reasonableness of measuring or reducing the particular type of [water] pollution."
Petitioner argues that the Board's conduct is arbitrary and capricious because the Board did not make findings of fact as to the economic reasonableness and technical feasibility of identifying each and every pollutant as required under the rationale of the First District of this court in Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill. App.3d 271, 323 N.E.2d 84, aff'd in part and rev'd on other grounds, 62 Ill.2d 494, 343 N.E.2d 459 (1976). Section 27 was interpreted by the appellate court in Commonwealth Edison to mean that rules limiting the emissions of sulphate dioxide and other particulates into the air would be valid only if it were shown to be technically feasible and economically reasonable for a substantial number of the individual emission sources in the State. 25 Ill. App.3d 271, 281-82.
The Fifth District of this court in Peabody also determined that under section 27 "the substantive regulations of the Board should be economically reasonable and technically feasible for a substantial number of emission sources in the State." (36 Ill. App.3d 5, 10.) The Fifth District in Peabody was evaluating the Board's promulgation of Rule 410(b) and determined in applying that standard that the record did not contain sufficient "evidence to support a finding that compliance with the requirement of Rule 410(b) would be technically feasible and economically reasonable for a substantial number of dischargers within the State." (Emphasis added.) 36 Ill. App.3d 5, 13.
We are not bound by the Peabody decision and choose not to follow it. In fact, the Fifth District Appellate Court subsequently determined that it is unsound to evaluate the evidence produced before the Pollution Control Board by the standard of "whether such rules are economically reasonable and technologically feasible for a substantial number of emission sources within the State." Shell Oil Co. ...