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City of Chicago v. Pollution Control Bd.

OPINION FILED FEBRUARY 6, 1978.

THE CITY OF CHICAGO, PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



PETITION for review of order of Pollution Control Board.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Respondent Illinois Environmental Protection Agency filed four complaints against petitioner City of Chicago. The complaints were filed before respondent Illinois Pollution Control Board and involved three incinerators and one landfill operated by petitioner. However, only that portion of respondent Pollution Control Board's order concerning the Southwest Incinerator is the subject of this action.

The substance of the complaint alleged that petitioner operated the incinerator without a State permit in violation of section 49(c) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1049(c)) and that the incinerator discharged particulate matter in violation of section 9(b) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009(b)).

Petitioner stipulated to the violations and both parties later reached a settlement. However, after a hearing, respondent Illinois Pollution Control Board assessed a fine of $10,000 against petitioner.

From that order and pursuant to statute section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1041), petitioner filed an administrative review proceeding directly with this court. Petitioner argues that imposition of the fine was arbitrary and capricious inasmuch as petitioner cooperated fully with the Illinois Environmental Protection Agency and could take no further action to remedy the violations.

We reverse and remand with directions.

In 1973, respondent Illinois Environmental Protection Agency (hereinafter referred to as EPA) filed four complaints with respondent Illinois Pollution Control Board against petitioner City of Chicago. The subject of three of the complaints was three large incinerators operated by petitioner for the disposal of solid waste. The incinerators are known as the Southwest Incinerator, the Northwest Incinerator, and the Calumet Incinerator. Involved in the fourth complaint was a large sanitary landfill known as Stearns' Quarry, used for the disposal of the residue from the three incinerators. On motion of the EPA, the four cases were consolidated by order of the Pollution Control Board (hereinafter referred to as the Board).

Petitioner does not question the final disposition of three of the cases. It is only the action taken by the Board with regard to the Southwest Incinerator which caused this proceeding to be brought. Consequently, our discussion will be limited primarily to the circumstances surrounding the Board's order concerning that facility.

Count I alleged that the Southwest Incinerator, which is comprised of four furnaces and two chimneys, was operated by petitioner so as to cause the discharge of various contaminates into the atmosphere. The discharge was alleged to be of sufficient duration to constitute air pollution as defined by section 3(b) of the Environmental Protection Act. Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1003(b).)

Count II accused petitioner of allowing the discharge of particulate matter into the atmosphere in amounts in excess of and in violation of section 9(c) of the Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009(c)).

Count III alleged that petitioner operated the Southwest Incinerator without a State permit in violation of section 9(b) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009(b)). Count III, as well as counts I and II, prayed for a cease and desist order and the imposition of a fine.

Petitioner was aware of problems with its method of solid waste disposal before the complaints were filed in 1973. In 1970, a study of the solid waste problem facing petitioner was undertaken by an interdepartmental committee representing the Department of Streets and Sanitation, Public Works, and Environmental Control. The study concluded that alternative methods were necessary to achieve an optimum program because existing facilities were operating on extended schedules. In 1972, as a direct result of this study, petitioner converted the Medill Incinerator, the oldest of petitioner's four incinerators, into a transfer station. It was determined that upgrading the incineration equipment to meet modern air pollution standards was not economically feasible.

In 1973, the EPA filed the four complaints against petitioner. Before a hearing on these complaints could be held, petitioner initiated an action in the circuit court of Cook County to enjoin the board from hearing the three incinerator cases. Petitioner also filed a companion suit to enjoin administrative action against the landfill. The position argued by petitioner in these suits was that as a home-rule unit under section 6 of article VII of the 1970 Illinois Constitution, it was not subject to the Illinois Environmental Protection Act. The circuit court accepted this view and granted both preliminary and permanent injunctions.

Further proceedings in these cases were suspended by the Board until November 27, 1974, when the Illinois Supreme Court reversed the judgment of the circuit court. (City of Chicago v. Pollution Control Board (1974), 59 Ill.2d 484, 322 N.E.2d 11.) The court held that the Environmental Protection Act is not inconsistent with the 1970 Constitution and is binding upon local ...


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