PETITION for review of order of Pollution Control Board.
MR. PRESIDING JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 13, 1977.
This is an appeal from proceedings before the Illinois Pollution Control Board pursuant to sections 29 and 41 of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1029, 1041). Petitioner, Olin Corporation, seeks direct review in this court of an order of the Pollution Control Board entered on June 3, 1976. This case concerns copper discharges into the East Fork and the Main Channel of the Wood River by an industrial plant operated by Olin in East Alton, Illinois. The contested order of June 3, 1976, granted Olin a variance from the Board's water quality standards for copper discharges, denied Olin's request for a permit for construction of a collection and water treatment system, and refused Olin's request to classify the lower portion of the east fork and the main channel of the Wood River as a Secondary Contact and Indigenous Aquatic Life Water under Pollution Control Board Rule 302(k).
Although several issues are raised by Olin's petition for review of the Pollution Control Board Order the primary and dispositive issue of the case concerns the appropriate interpretation of Pollution Control Board Rule 302(k). Board Rule 301 provides that:
"All waters of the State of Illinois are designated for general use except those designated as Secondary Contact and Indigenous Aquatic Life Waters."
Rule 302 provides in pertinent part that:
"Secondary Contact and Indigenous Aquatic Life Waters are those waters which would be appropriate for all secondary contact uses and which will be capable of supporting an indigenous aquatic life limited only by the physical configuration of the body of water characteristics and origin of the water and the presence of contaminants in the amounts that do not exceed the applicable standards."
The Rule then designates several specific bodies of water classified by the Board as secondary contact waters and contains a final provision, Section (k), which provides that in addition to the specifically identified waters, secondary contact waters shall include "all waters in which by reason of low flow or other conditions a diversified aquatic biota cannot be satisfactorily maintained even in the absence of contaminants."
Rules 301 and 302 essentially determine the applicability of the Board's water quality standards. The standards applicable to general use water are more strict than those applicable to secondary use water. Olin is meeting all applicable general use standards at its plant in East Alton with the exception of the copper standard.
The contested order of the Pollution Control Board dismissed Olin's request to recognize the east fork and main channel of the Wood River as secondary contact water pursuant to Pollution Control Board Rule 302(k) on the ground that such a determination can only be made in a regulatory proceeding. Since Olin made this request in the context of a variance and permit proceeding, it thus failed to comply with the requirements of the regulatory procedure. Olin contends that Rule 302(k) is self-executing; that it establishes criteria by which the Pollution Control Board and Environmental Protection Agency can recognize specific bodies of water as meeting the requirements of Rule 302(k) without the necessity of a regulatory proceeding. For the reasons specified below we concur in the Pollution Control Board's construction of Rule 302(k) as requiring a regulatory proceeding and affirm the Board's dismissal of Olin's petition.
1, 2 It is a well-settled rule in Illinois that an administrative action taken under statutory authority will not be disturbed unless clearly arbitrary, unreasonable or capricious. (Illinois Coal Operators Association v. Pollution Control Board, 59 Ill.2d 305, 319 N.E.2d 782.) Petitioner, however, does not challenge the factual basis of the Board's decision but raises the legal question of whether the Board correctly interpreted its regulation number 302(k). The interpretation and construction of the rules of an administrative agency generally are governed by the same rules applicable to statutes in the same field. (See Rucker v. Wabash R.R. Co. (7th Cir. 1969), 418 F.2d 146.) In construing an administrative rule or regulation a reviewing court must necessarily look to the construction given the rule by the agency. Although the construction of statutes and rules by an administrative agency is not binding on the courts> such construction should be persuasive. (Hardway v. Board of Education, 1 Ill. App.3d 298, 274 N.E.2d 273.) The court should accord substantial weight to the agency's construction and actual application of its own rule and should not interfere unless the agency's interpretation is plainly erroneous or inconsistent with long settled constructions. Scheffki v. Board of Fire & Police Commissioners, 23 Ill. App.3d 971, 320 N.E.2d 371.
The Pollution Control Board has contended that Rule 302(k) is not self-executing and that designation of a particular body of water as a secondary contact water can only be achieved in a regulatory proceeding pursuant to sections 27 and 28 of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, pars. 1027, 1028). While this interpretation would normally be accorded great weight, the Board's apparently inconsistent construction of Rule 302(k) since its promulgation prevents us from treating the Board's interpretation of its own rule with the usual deference.
Although the Board contends that it has consistently administered Rule 302(k) so as to require a regulatory proceeding before a specific body of water can be reclassified as a secondary contact water, petitioner cites instances in which the Board apparently made substantive evaluations of requests for Rule 302(k) classifications in nonregulatory proceedings. In one case the Board admits to having treated Rule 302(k) as a self-executing procedure not requiring a regulatory proceeding for reclassification of waters as secondary contact waters. (Modine Manufacturing Co. v. Environmental Protection Agency, 13 Ill. P.C.B. Op. 15, 14 Ill. P.C.B. Op. 169, aff'd sub nom. Modine Manufacturing Co. v. Pollution Control Board, 40 Ill. App.3d 498, 351 N.E.2d 875.) In Modine the Board granted a request for reclassification under Rule 302(k) in a variance proceeding. The Board later reversed its decision, however, and on rehearing denied the request. This denial was supported by a thorough evaluation of the evidence in the case which resulted in a finding that the tributary under consideration could not be classified as a secondary contact water under Rule 302(k) because a diversified aquatic biota was found to be present. A similar finding was made by the Board in LaClede Steel Co. v. Environmental Protection Agency, 14 Ill. P.C.B.Op. 463. LaClede had petitioned for a variance and during the variance proceeding made an additional request that a certain stream be designated secondary contact water under Rule 302(k). The Board denied the request, concluding that "[i]nsufficient evidence was presented which could convince the Board to apply Rule 302(k)." 14 Ill. P.C.B. Op 463, 474.
In each of these cases involving variance proceedings, the Board evaluated the evidence presented by the parties requesting a Rule 302(k) classification and determined on the merits of each that a reclassification would be inappropriate. Yet in the case now before this court the Board dismissed Olin's petition requesting among other things a 302(k) designation on the grounds that Olin had failed to conform to the required procedures for a regulatory proceeding. Olin now claims that this dismissal was an abrupt change in the Board's procedural policy and that the Board has acted arbitrarily in that it has adopted a procedural stance on Rule 302(k) determinations which effectively denies Olin's right to present evidence in support of its claim. The Board contends that it has ...