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04/02/87 Central Illinois Public v. the Pollution Control

April 2, 1987

CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, APPELLANT AND, APPELLEE

v.

THE POLLUTION CONTROL BOARD, APPELLEE AND APPELLANT



Before the adoption of section 28.1 the Board believed it had the power to adopt site-specific regulations, and had done so on numerous occasions. (See, e.g., In re Petition of the Galesburg Sanitary District to Amend Regulations (1983), 52 Ill. P.C.B. Op. 299; In re Proposed Water Quality Standard for Wood River (1982), 49 Ill. P.C.B. Op. 307; In re Proposed Amendments to Rule 203.1 of the Water Pollution Regulations (1978), 29 Ill. P.C.B. Op. 395.) Courts will give substantial deference to the interpretation of a statute by the agency charged with its administration and enforcement (Illinois Consolidated Telephone Co. v. Illinois Commerce Com. (1983), 95 Ill. 2d 142, 152), particularly where the administrative interpretation has been long standing (95 Ill. 2d 142, 153). The Board has always interpreted the language in section 27 as a grant of authority to adopt site-specific standards, and we find this interpretation to be well founded. There is nothing in section 28.1 to suggest that this new section, added in 1984, limits any of this power as previously exercised by the Board.

SUPREME COURT OF ILLINOIS

507 N.E.2d 819, 116 Ill. 2d 397, 107 Ill. Dec. 666 1987.IL.422

Appeal from the Appellate Court for the Fourth District; heard in that court on a petition for review of an order of the Pollution Control Board.

APPELLATE Judges:

JUSTICE MORAN delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

Central Illinois Public Service Company filed a petition pursuant to section 28 of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1028), requesting that the Illinois Pollution Control Board (the Board) establish site-specific water-quality standards for groundwater at the site of CIPS' Hutsonville power plant. The Board denied the petition. On appeal the appellate court held that the Board was required to establish standards and procedures under section 28.1 of the Environmental Protection Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1028.1) before it could consider a petition for site-specific regulations. (See Central Illinois Public Service Co. v. Pollution Control Board (1986), 142 Ill. App. 3d 43, 49-50.) The court held that it was arbitrary and capricious to deny the petition without first adopting standards and procedures under section 28.1 and remanded the matter to the Board with directions to promulgate the necessary standards and procedures. 142 Ill. App. 3d 43, 50-51.

Both CIPS and the Board sought leave to appeal to this court. Each contended that the appellate court had erred in requiring the adoption of standards and procedures under section 28.1 as a prerequisite to the consideration of a petition for site-specific regulations. CIPS additionally contended that the Board should be reversed and the petition granted. The Board, on the other hand, contended that the appellate court should have affirmed the Board's denial of the petition. The Illinois Environmental Regulatory Group, Inc., as amicus curiae, filed a statement in support of both petitions, arguing that section 28.1 rulemaking should not be required.

This court granted both petitions for leave to appeal, and the cases were consolidated. Another amicus, the Illinois American Water Company, was allowed to file briefs supporting the parties' position that section 28.1 rulemaking was not required.

Both appeals raise the same two issues: (1) Does the Environmental Protection Act (the Act) require the promulgation of standards and procedures under section 28.1 as a prerequisite to the consideration of a petition for site-specific standards? and (2) If it was proper for the Board to consider CIPS' petition, was the Board's denial of the petition arbitrary and capricious?

In 1968 CIPS constructed an unlined pond on the site of the Hutsonville power station, to be used for the disposal of fly ash and other wastes from the two coal-fired units at the station. Fly ash at the station is collected from the smokestacks by means of electrostatic precipitators. The collected ash and other wastes are then sluiced to the pond, where most of them settle to the bottom. The remaining water and unsettled wastes are discharged into the Wabash River.

By 1984 the storage capacity of the unlined pond had been nearly depleted. CIPS petitioned the Illinois Environmental Protection Agency (the Agency) for a permit to construct a second unlined pond adjacent to the first pond. The Agency denied the permit, noting that monitoring wells revealed that the maximum permitted levels for various water contaminants had already been exceeded. CIPS appealed to the Board, which affirmed the Agency's decision. CIPS then filed a petition with the Board seeking site-specific water-quality standards which would allow it to exceed the maximum contaminant levels permitted in the general standards promulgated by the Board. The Agency recommended to the Board that the petition be granted. The Board, however, denied the petition.

CIPS appealed the Board's action directly to the appellate court pursuant to section 41(a) of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1041(a)). The appellate court reversed and remanded, finding that it was arbitrary and capricious to deny CIPS' petition without first promulgating standards under section 28.1, which at the time of the appellate court's opinion read as follows:

"In adopting a regulation of general applicability, the Board may provide for the subsequent determination of an adjusted standard for persons who can justify such an adjustment consistent with subsection (a) of Section 27 of this Act. The regulation of general applicability shall specify the level of justification required of a petitioner to qualify for an adjusted standard. The rule-making provisions of the Illinois Administrative Procedure Act and Title VII of this Act shall not apply to such subsequent determinations. The Board shall adopt procedures applicable to such determinations which, at a minimum, shall require a public hearing on the petition, at least 20 days notice of the hearing by advertisement in a newspaper of general circulation in the area likely to be affected, and the issuance of a Board order and opinion stating the facts and reasons leading to the final Board determination. Such Board orders and opinions shall be maintained for public inspection by the Clerk of the Board and a listing of all determinations made pursuant to this ...


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