PETITION for review of order of Pollution Control Board.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 1, 1980.
Petitioner, the village of Cary, appeals from an order of the Illinois Pollution Control Board (hereinafter the Board) under sections 29 and 41 of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111 1/2, pars. 1029, 1041) (hereinafter the Act) and pursuant to the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.) Cary seeks review of an order entered by the Board after hearing Cary's petition for a variance from compliance with the barium limitation standard established by Board Rule 304B(4) (Pollution Control Board Rules and Regulations, ch. 6, Public Water Supplies, Rule 304B(4)).
In the variance proceeding before the Board, Cary challenged the validity of the regulation, contending that it is not supported by either medical or scientific evidence and is thus arbitrary, capricious and unreasonable as applied to the public water supply of the village of Cary. The barium limitation standard established by the disputed regulation prohibits a barium concentration in excess of one part per million parts of water (1 mg/1) in a public water supply. Two of the three wells which serve the village of Cary exceed that limitation; one well pumps 460 gallons per minute containing 40 parts of naturally occurring barium per million parts water (4.0 mg/1), and another pumps 780 gallons per minute with 80 parts naturally occurring barium per million parts water (8.0 mg/1). Although the barium limitation regulation was first promulgated by the Board in 1975, the village has not undertaken the removal of barium from its water supply asserting the cost of doing so is prohibitive and that there is no evidence it is harmful.
When enforcement proceedings, as provided for in title 8 of the Act (Ill. Rev. Stat. 1977, ch. 111 1/2, pars. 1030 to 1034), were threatened by the Illinois Environmental Protection Agency to require it to conform to the regulation, Cary filed its petition for variance in December 1977, pursuant to title 9 of the Act (Ill. Rev. Stat. 1977, ch. 111 1/2, pars. 1035 to 1038). The petition requested that the barium standard not be applied against it for a period of five years, the maximum allowable term for a variance under the Act. (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1036(b); Monsanto Co. v. Pollution Control Board (1977), 67 Ill.2d 276, 367 N.E.2d 684.) The hearing of this matter before the Board was continued from time to time by agreement of the parties while they waited for publication of the results of a scientific investigation being made of the effect of barium consumption conducted by the University of Illinois under the sponsorship of the United States Environmental Protection Agency. This study, the first made to consider whether or not barium might constitute a health hazard, was completed in 1979, and it concluded that no scientific evidence links higher levels of barium with any condition of ill-being considered in the study. Further, the study determined that no measurable correlation was scientifically possible between mortality rates and barium consumption in drinking water.
The hearing of Cary's petition was thereafter held by the Board on March 1, 1979, and the University of Illinois study, together with other evidence of health experts and a public health administrator, was introduced into evidence by Cary in support of its contention that there was no evidence that the barium standard had a medical or scientific basis or that naturally occurring soluble barium in drinking water was a health hazard. Cary urged that the barium regulation not be enforced against it as it was arbitrary and unreasonable on this basis. It requested the Board to grant the maximum variance from enforcement of the disputed regulation so that Cary could avoid the expenditure of many thousands of dollars in an effort to comply with the standard which, under the evidence presented, had no effect upon public health, welfare, or safety. In addition, the record discloses that the Illinois Environmental Protection Agency filed a recommendation with the Board in this case in which it concurred with Cary's assessment that the barium in its public water supply was harmless and recommended that the Board grant a variance relieving Cary from compliance with the standard for a maximum term. It noted, however, that:
"In order to maintain at least as stringent a program of enforcement, including the granting of variance as set forth in the Federal Safe Water Drinking Act, and to thus retain eligibility for primary enforcement authority of the Federal program, the State cannot grant variances for problems * * * beyond January 1, 1981."
The Board thereafter entered an order granting Cary a six-month temporary variance and denied the five-year variance which it had requested. In addition, the temporary variance was conditioned upon submission to the Board, within 90 days, of detailed information which was to include an evaluation of the expense and the timetable necessary for Cary to meet the variance standard by the January 1, 1981, Federal deadline; a laboratory analysis of the form of barium in its water supply; and an analysis of possible sources of revenue available to Cary to implement the necessary improvements to its water supply to bring it into compliance with the regulation. In reaching its determination the Board failed to pass upon the issue of the validity of the barium regulation, as urged by Cary, although it noted in its findings that the barium limitation contained in its regulation rested upon uncertain scientific data. The only evidence relating to the basis for, or validity of, the barium regulation seen in the record of this case is that introduced by Cary which we have described. Nor does this record disclose what data or evidence was considered by the Board in regulatory proceedings conducted by it pursuant to section 27 of the Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1027) when it adopted the barium standard.
In its appeal from the variance order Cary contends it was authorized by the Act to assert in the variance proceeding the invalidity of the barium regulation sought to be enforced against it. The Board, on the other hand, contends that the validity of its rules and regulations may not be raised in a variance proceeding and, as Cary did not seek judicial review of the disputed regulation under the Administrative Review Act within 35 days of its promulgation as provided in section 41 of the Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1041), the regulation may now only be brought to the attention of the Board pursuant to the provisions of section 28 of the Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1028).
There are essentially four issues presented for our consideration: (1) whether Cary waived the issue of the validity of Rule 304B(4) by failing to raise it in the variance proceeding; (2) whether the Board's order granting a temporary variance deprived Cary of standing to seek review; (3) whether Cary is barred from judicial review of the Board's order by failing to exhaust its administrative remedies; and (4) whether the validity of a substantive regulation of the Pollution Control Board may be challenged in a variance proceeding.
1 The Board asserts first that Cary waived the question of the validity of the barium regulation by not raising it in the variance proceeding. While it is established that issues that have not been presented or passed upon in an administrative hearing will not be considered on review (Armour-Dial, Inc. v. Pollution Control Board (1978), 60 Ill. App.3d 64, 376 N.E.2d 411), it is clear in this case that Cary based its petition for variance upon the contention that a barium regulation was arbitrary, capricious and unreasonable as being without a scientific or medical basis. (Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill.2d 305, 319 N.E.2d 782.) Although the Board failed to make any determination regarding the validity of its regulation it cannot now realistically contend the issue was not raised. In its findings of fact in support of the variance order the Board noted that if Cary were denied use of the two wells which do not meet the barium standard, such denial would constitute an arbitrary and unreasonable hardship in view of the unknown health effects of barium ingestion in drinking water. This finding was made, apparently, in support of the six-month variance granted by the Board as section 35 of the Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1035) requires a finding that compliance with a Board rule or regulation would impose an arbitrary or unreasonable hardship before any variance may be granted. We conclude that the issue of the validity of the barium regulation was raised, albeit unresolved, in the hearing from which this appeal was taken. See Armour-Dial, Inc. v. Pollution Control Board (1978), 60 Ill. App.3d 64, 376 N.E.2d 411; see also Ming Kow Hah v. Stackler (1978), 66 Ill. App.3d 947, 383 N.E.2d 1264.
The Board also contends that Cary lacks standing to seek judicial review of its order as it was not "adversely effected or threatened" within the meaning of sections 29 and 41 of the Act (Ill. Rev. Stat. 1977, ch. 111 1/2, pars. 1029 and 1041). Section 29 provides:
"Any person adversely affected or threatened by any rule or regulation of the Board may obtain a determination of the validity or application of such rule or regulation by petition for review under Section 41 of this Act." ...