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People v. Pollution Control Board

OPINION FILED NOVEMBER 15, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

THE POLLUTION CONTROL BOARD ET AL., APPELLEES.



Petition for review of order of Pollution Control Board.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

The People of the State of Illinois have petitioned this court for review of a final administrative order of the Pollution Control Board (the Board) entered on October 14, 1982. The order repealed two of the Board's water pollution regulations setting water quality standards for the State's surface waters and relaxed the requirement for the discharge of sewage treatment plant effluents into the State's surface waters. *fn1 The People contend that the Board's repeal of the water quality standards for primary contact waters violated State and Federal law; that the Board's decision to modify the effluent disinfection requirements rests upon an arbitrarily chosen 20-mile limit; and that the Board's second notice of adoption of proposals submitted to the Board by the Illinois Environmental Protection Agency (the Agency) violated section 28 of the Illinois Environmental Protection Act. (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1028.) For the reasons hereinafter stated, we affirm in part and reverse in part.

On October 14, 1982, the Illinois Pollution Control Board, over the dissent of its chairman, Jacob D. Dumell, entered a final order with respect to three regulatory proposals which the Illinois Environmental Protection Agency submitted to the Board in 1977. *fn2 The order deleted fecal coliform bacteria *fn3 as a water quality standard for general use waters (35 Ill. Admin. Code sec. 302.209) and secondary contact waters (35 Ill. Admin. Code sec. 302.406) and modified the requirements for disinfecting sewage treatment plant effluents prior to discharge into receiving bodies of water (35 Ill. Admin. Code sec. 304.121).

The Agency proposed deletion of the fecal coliform standard and modification of the effluent discharge requirement because it concluded that the disinfection process practiced in Illinois, chlorination, is harmful to the environment and that the fecal coliform standard does not indicate water quality but only the presence of fecal coliform bacteria.

The Board modified the effluent requirements so that no disinfection is required of sewage treatment plant discharges outside of the swimming season; disinfection of wastewaters is required only for those discharges whose effluent outfall to a waterway lay within 20 miles upstream of a public water supply, a food processing supply, a licensed bathing beach during the swimming season, or where such a discharge would violate the standard of another State's water. According to the Attorney General, more than 1600 of the approximately 1700 dischargers to the State's general use waters would not require disinfection at any time of the year.

The Board's order was to become effective upon its filing with the Secretary of State on November 6, 1982. The People of the State of Illinois filed a timely petition for review on November 16, 1982. On February 1, 1983, this court entered an order staying the regulatory change until further notice.

The text of the two sections of the water pollution rules and regulations deleted by the Board's order are as follows:

"Section 302.209 Fecal Coliform

Based on a minimum of five samples taken over not more than a thirty day period, fecal coliform * * * shall not exceed a geometric mean of 200 per 100 ml, nor shall more than 10% of the samples during any thirty day period exceed 400 per 100 ml." 35 Ill. Admin. Code sec. 302.209.

"Section 302.406 Fecal Coliform

Based on a minimum of five samples taken over not more than a thirty day period, fecal coliforms * * * shall not exceed a geometric mean of 1,000 per 100 ml, nor shall more than 10% of the samples during any thirty day period exceed 2,000 per 100 ml." 35 Ill. Admin. Code sec. 302.406.

Former section 304.121 provides that "[n]o effluent governed by this Part shall exceed 400 fecal coliform per 100 ml." (35 Ill. Admin. Code sec. 304.121.) The text of the revised section is as follows:

"No person shall cause or allow fecal coliform * * * to exceed 400 per ml in any effluent which discharges to the following locations:

a) During the months of May through September, within 20 stream miles (statute miles) upstream of a public bathing beach licensed under the `Illinois Swimming Pool and Bathing Beach Act' ...


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