PETITION for review of order of Pollution Control Board.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
This is a judicial review of air pollution control regulations promulgated by the Illinois Pollution Control Board (hereinafter "Board"). Petitioners, United States Steel Corporation and Interlake, Inc. (hereinafter respectively "U.S. Steel" and "Interlake"), maintain this action under sections 29 and 41 of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111 1/2, pars. 1029 and 1041), which, when taken together, provide for a direct review by this court of the validity of regulations adopted by the Board. The issues we consider in this review are: (1) what standard of review is applicable; (2) whether petitioners have waived the point that the regulations they challenge are arbitrary, capricious or unreasonable; and (3) whether the Administrative Review Act governs our review. We affirm. The pertinent facts follow.
On November 9, 1971, the Board commenced hearings on comprehensive air pollution control regulations proposed by the Environmental Protection Agency (hereinafter "Agency"). Over the following months such hearings were held at various locations throughout Illinois. On April 13, 1972, the Board adopted air pollution control regulations which included regulations numbered 103, 104, 105, 106, 107, 108 and 203.
U.S. Steel operates a steel production plant in Chicago which is known as the "South Works" and which consists of 10 blast furnaces, an electric furnace, a basic oxygen process shop, a sinter plant, fabricating facilities and many auxiliary buildings and facilities. The South Works is affected by the regulations mentioned above. Potential air pollutants from the South Works are controlled by several types of equipment. For example, the blast furnaces are equipped with dust catchers, venturi scrubbers and tower scrubbers; the electric furnace is equipped with flooded disc scrubbers; the sinter plant is equipped with an electrostatic precipitator; and the basic oxygen process shop is equipped with venturi scrubbers. Regulation 203(b) regulates the emissions of particulate matter from the above-mentioned equipment with the exception of the sinter plant, which is governed by regulation 203(d)(2). Regulation 203(a) governs the emissions from new facilities. It establishes more restrictive standards than are found in 203(b), which governs existing facilities on which funds have already been expended for pollution control. The formula for control under both sections is a "process weight ratio" which allows for the emission of a maximum number of pounds of material per hour of emissions. This number in turn depends upon the weight of raw material used in the process.
Interlake operates seven steel manufacturing plants within Illinois, two of which are located in Chicago. Each of the Chicago plants have coke ovens and blast furnaces. All of Interlake's Illinois plants are affected by the aforementioned regulations. Moreover, Interlake's two coke plants in Chicago are affected by regulations 202(b), 203(d)(6)(B)(i)(aa), 203(d)(6)(B)(i)(bb), and 203(d)(6)(B)(iv)(aa), all of which were adopted on April 13, 1972, along with the previously mentioned regulations.
The raw material used to make coke is a blend of low sulphur coal. The coal is passed through a sleeve into coke ovens through ports resembling manholes on the top of the ovens. The ports are manually sealed with lids as soon as this loading or "charging" process is completed.
Regulation 203(d)(6)(B)(i)(aa) went into effect on April 13, 1972, and became inoperative on January 1, 1974. While it was operative, it limited the period during which smoke or particulate matter could be emitted into the atmosphere after the sleeve has been withdrawn from the port to a span of 20 seconds. Because no emissions occur after the lid has been replaced and sealed, this limitation has the effect of specifying how fast the port lids must be replaced. Regulation 203(d)(6)(B)(i)(bb) became effective on January 1, 1974. It requires employment of "automated negative pressure charging systems" or equivalent systems to fill coke ovens.
After charging, the coal is baked in a relatively oxygen free atmosphere for an average of seventeen hours. When this "coking" cycle has been completed, the hot coke is propelled by a mechanical ram out of the oven through a side door and into a "quench car" which then travels to a quenching tower where it is deluged with water. At this point the coal has been converted to coke and is ready for use in blast furnaces in the production of iron. Regulation 203(d)(6)(B)(iv)(aa) limits the magnitude of the emissions from the doors at the sides of the coke ovens through which the baked coke is pushed to a maximum of 30 percent opacity. Regulation 201 defines "opacity" as: "A condition which renders material partially or wholly impervious to transmittance of light and causes obstruction of an observer's view." In addition, regulation 202(b) establishes a visible emission standard for all existing emission sources and equipment of 30 percent opacity, and consequently it affects coke ovens by supplementing the regulations referring specifically to them.
Shortly after their adoption, petitioners each sought review of the validity of certain aspects of regulations numbered 103, 104, 105, 106, 107, 108 and 203. In addition, Interlake challenged the validity of regulation 202(b), and the validity of portions of regulation 203 not challenged by U.S. Steel. Because of the many common issues raised and virtually identical arguments advanced, we will deal with these causes simultaneously.
Section 10 of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1010), authorizes the Board to adopt regulations designed to promote the purposes listed in section 8 of the Act, namely:
"* * * to restore, maintain, and enhance the purity of the air of this State in order to protect health, welfare, property, and the quality of life and to assure that no air contaminants are discharged into the atmosphere without being given the degree of treatment or control necessary to prevent pollution." (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1008.)
According to section 10 of the Act, such regulations include those which prescribe:
"(a) Ambient air quality standards specifying the maximum permissible short-term and long-term concentrations of various contaminants in the atmosphere;
(b) Emission standards specifying the maximum amounts or concentrations of various contaminants that may be discharged into the atmosphere;
(c) Standards for the issuance of permits for construction, installation, or operation of any equipment, facility, vehicle, vessel, or aircraft capable of causing or contributing to air ...