ILLINOIS POLLUTION CONTROL BOARD

March 17, 1971

ENVIRONMENTAL PROTECTION AGENCY)

v.

)

PCB#7O—3~

GRANITE CITY STEEL CO.

Ovinion of the Board (by Hr. Currie):

Granite City Steel, charged by the Agency with numerous and

continuous violations of the Environmental Protection Act, the

Air Pollution Control Act, and assorted air pollution regulations

ever since 1967, and represented by a bevy of the State’s most

prominent lawyers, has trotted out a medley of pre—hearing arguments

that would destroy the Environmental Protection Act and make pro-

tection of the public from pollution virtually impossible. We

reject them all and order that the case proceed to hearing without

proc vast mat ion.

Granite City Steel first argues that the complaint should

be dismissed on the ground that the present statute and its predecessor

are both unconstitutional. Several arguments are advanced in support

of this contention. All of them ignore the fundamental presumption

of the validity of a statute. None of them has any merit.

1. Vagueness. The company says that the prohibition of

“air pollution” in section 9 (a) of the present Act and in section

3 of the earlier statute is “so vague, uncertain and indefinite

that. men of common intelligence must guess at its meaning and

citizens are not adequately apprised of the conduct prescribed”

(motion to dismiss, p. 2). This requires little discussion.

“Since the turn of the century”, as the Agency’s brief tells us

(p. 3), “state and federal regulations for the control of srñoke

and other forms of air pollution have consistently withstood

attack on the vagueness issue. The oases to this effect are

lepion~ See Annotation, ‘Validity of Regulation of Smoke and

Other Air Pollution,’ 78 A.L.R. 2d 1305 (1961).” E.g., Department

of Health v. Owens—Corning Fiberglas Corp., 100 N.J. Super. 366,

202 A. 2d 21 (1968), aff’d per ouriam 53 N.J. 248, 250 A. 2d

11 (1969). and other cases cited in the Agency’s brief, p. 7.

1

—

315

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The vagueness, issue was settled beyond all possibility

of dispute by the Illinois Supreme Court’s quite recent decision

in Metropolitan Sanitary District v. United States Steel Corp.

41

Ill 2d

144Q,

2~43N.E. 2d 2~49 (1968). There the Court upheld

against the charge of vagueness a statute giving the District

authority to cue “to prevent the pollution” of certain waters.

Even though “pollution” was nowhere defined in the statute, the

Court had no difficulty sustaining it, pointing out that the term

“pollution” had long since acquired a common ibeaning in nuisance

cases and adding that “such a statutory authorization need not

delineate with scientific precision, the characteristics of all

types of pollution.” As the Court said in upholding a disorderly

conduct statute that outlawed. “any act in such unreasonable sanner

as to alarm or disturb another and to provoke a breach of the

peace,” the legislature “deliberately chose to frame the provision

in general terms, prompted by the futility of an effort to

anticipate and enumerate all of the methods of disrupting public

order that fertile minds might devise.” People v, Baby, 40 Ill.

2d 392, 240 N. B. 2d 595 (1968), “Unreasonable,” as the Court said

in the Baby case, “is not a term that is impermissibly vague.”

The cases cited by the company

are

easily distinguished,

as they

dealt with statutory terms wholly unknown

to

the common

law or

to

the industry affected,

Parks v. Libby—Owens Ford Glass

Co., 360

ill.

130

(1935); Vallat v.

Radium Dial Co.

,

360 ill, 407

(1935); Rosemont Bldg. Supply, Inc. v. Illinois

Highway Trust Auth.,

4~Ill.

2d

243, 258 N.E. 2d 569 (1970).

The validity of the air pollution provisions is further

reinforced by the explicit definitions

of air polluti.on in both

statutes,

which embody numerous elements of the familiar common

law of nuisance.

To put that law in a statute would not make

it unconstitutionally

vague.

Granite City’s argument would,

as the Court held in the Baby case, make regulation

impossible.

The Metropolitan Sanitary District

case is squarely in point,

and the vagueness argument is frivolous.

2. Delegation.

Granite City next argues that the two statutes

unconstitutionally,

delegate legislative

‘authority to this Board

in its rule—making functions.

Government could not govern if this

argument were accepted.

Ever since the creation of the Interstate

Commerce Commission in

1887,

every

goveynment in

the United States,

state or federal, has found it necessary in innumerable instances

to give rule—making powers in complex technical fields to

administrative agencies. Legislatures are far too busy, and the

business of governing is far too intricate and detailed, for any

one body to prescribe precisely the particular rules governing

every aspect of human behavior that requires regulation. All the

legislature can reasonably be expected to do is to set basic

policy, subject to certain procedural and substantive safeguards,

and exercise its inherent authority by setting aside administrative

rules that do not comport with its policy.

1—316

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Such charters of delegated rule—making authority

are

common

in Illinois as elsewhere. If the company’s

argument

were accepted,

we would have to do without

many

critical functions of the Illinois

Commerce Commission (see,’e.g., Ill. Rev. Stat. ch. 111 2/3,

section

141

(1969), authorizing the Commission to fix “just,

reasonable or sufficient rates or other charges, classifications,

rules, regulations, contracts or practices”); the Industrial

Commission (see Ill. Rev. Stat. ch. 118, section 137.11 (1969),

authorizing the Commission to

make

rules, e.g.,for “the arrange-

ment

and

guarding of machinery.

.

.to

guard against

personal injuries

and diseases” and for “the prevention of personal injuries and

diseases by contact with any poisonous or deleterious materials,

dust, vapors, gases or fumes”); the Mining Board (see Ill. Rev.

Stat. ch.

93,

section 2.12 (1969), giving power to adopt “rules

and regulations in connection with new methods of coal mining

affecting the health and safety of persons employed in the coal

mines”); the Department of Public Health (see, e.g., Ill. Rev.

Stat. ch. 111 1/2, section 218 (1969), authorizing “such standards

and instructions to govern the possession and use of any radiation

source as the Department

may

deem necessary or desirable to

protect the public health, welfare and safety”); the Department

of Mines

and

Minerals (see Ill. Rev. Stat. ch. 1011, section 67

(1969) regulations, e.g., “to prevent the pollution of fresh water

supplies by oil, gas or salt water,” to “prevent

fires” in oil

and

gas fields, “to regulate the spacing of wells,”

and “to prohibit waste”); and numerous other indispensable bodies

with rule—making powers. Granite City is trying to wish away

eighty years of constitutional history and leave the state powerless

to protect the public welfare.

The cases cited by the company are completely inapposite.

Virtually without exception they concern the delegation of wholly

unlimited discretion, with no limiting standards whatever, to an

executive officer: e.g., the power of the Auditor in licensing

currency exchanges to insist on “such other information as the

Auditor may require,” McDougall v. Lueder, 389 Ill. 1111, 58 N.E.

2d 899

(19115);

the power to grant exceptions to an advertising

ban “such as

may

be directed by the authority having jurisdiction

over such highway,” City of Chicago v. Pennsylvania R.R.,111 Ill.

2d 2115, 2112 N.E. 2d 152 (1968); the require*ent that sewage treatment

facilities be “of a design and location that is approved by the

Health Authority

“

Krol v. County of Will,

38

Ill. 2d 587, 233

N.E. 2d 1117 (l96ê). In none of these cases had the General Assembly

laid down any guidelines to channel the discretion of the authorized

officer..

1. City of Kankakee v. New York Cent. R.R., 387 Ill. 31, 56 N.E.

2d 91 (191111), also cited, is based upon the well—known principle of

the limited powers of municipalities.

Any

adverse implications of

that decision regarding delegations by the General Assembly were

squarely overruled by the Metropolitan Sanitary District case, supfl.

1—317

---

The statutes in the present case are vastly different. The

Air Pollution Control Act, section 5—1.2, gave the former Air Pollution

Control Board authority to adopt “reasonable rules and regulations

consistent with the general intent and purposes of this Act.”

Not only did section 5 of the Act spell out those purposes in

some detail as a guide and limitation on the exercise of rule-

making power, specifically requiring the Board to consider the

technical and economic feasibility of compliance, but section 7

prescribed a number of additional factors which had to be taken

into account by the Board. To require any more confining legislative

standards than these would in substance require the General Assembly

itself to prescribe numbers for the maximum permissible emissions

of pollutants, which would impose an impossible burden.

The company wholly misconstrues the Environmental Protection

Act, suggesting that section 9 (a) is invalid becaune it prohibits

any discharge of contaminants “so as to violate regulations or

standards adopted by the Board under this Act.” Granite City

professes to read this section as an “unfettered” grant of “discretion

to prohibit or penalize any conduct whatever, so lOup as it

involves the discharge of a ‘contaminant,’ which (as defined in

Section 3 (d) of the Act) includes anything whatever” (moiror~

to dismiss, p. 3). But section 9 (a) is not a grant of rule-~making

power at all; it simply prescribes that it is il1e~a1 ho violate

the regulations. Power to adopt regulations on air vol lutJon is

conferred by

section

10. As in the earlier statute, thOs nowev

is expressly limited both by the detailed and careful delineation

of statutory purposes in sections 2 and 8 and by the exolicit

listing of factors relevant to the exercise of ru1e~nnaklnv,judgment

in section 27. In addition, guided by the additiona~1 experience

gained during seven years under the prior statute, the General

Assembly added a detailed list of certain types

of repulations

that might be prescribed by the Board, including amblont air quality

standards, emission standards, permit requirements,

episode

regulations,

etc. The Legislature could hardly

have been more

specific without adopting numerical standards

itself.

In Hill v. Relyea, 216 N.E. 2d

795, 797

(1966), the Hilnois

Supreme Court recognized, as have countless other

courts, ~.hnt

the General Assembly may constitutionally

“delegate

to ot.O~’o: the

authority to do those things which the legislature

mipht

p

tony

do, but cannot do as understandingly

and advantageousl:”

at

can an administrative

agency.

“The constitution

mend:.

~

that intelligible

standards be set to guide the agency

with enforcement,

. .

.and the precision of the

permissible

stdndard must necessarily

vary according to the nature

of

tir

ultimate objective and the problems involved.”

Ibid.

TH

application

of this principle to the two statutes before

ut

assured by Hill

v.

Relyea, supra, which upheld authority

of a

1—318

---

hospital superintendent to discharge mental patients “as the

welfare of such persons and of the community may require, under

such rules and regulations as may be adopted by the Department.”

The authority in the present case is much more narrowly

circumscribed by legislative standards than was that in Hill.

Moreover, the rule-making and adjudicatory authority of this

Board and of its predecessor are subject to exacting procedural

requirements designed to ensure that parties to Board proceedings

are not subjected to arbitrary action. Public notice and public

hearings are required, the present Board has adopted detailed

procedural rules to further guide the parties in all Board pro-

ceedings, and judicial review is provided.

Thus in terms of both criteria laid down by the Illinois

Supreme Court in Heft v. Zoning Board of Appeals, 31 Ill. 2d.

266, 201 N.E. 2d 364 (1964), the statutes in question pass muster.

As in that case, the pollution statutes provide both sufficient

substantive standards to guide the Board’s judgment and adequate

procedural safeguards to avoid arbitrary action, The Heft case

essentially overruled Welton v. Hamilton, 344 Ill. 82 (1931),

on which so much reliance is placed by the company; in any event

the statutes before us contain far more specific substantive and

proceduralIt

shouldlimitationsbe added

thanthatdida

growingthe

statutebody

ofin

Welton.opinion2

is of the

view that what the constitution really requires is not legislative

standards but administrative standards: “The court is on sound

ground in holding that in unguided discretionary determination

in a particular case is undesirable. But the best cure for that

is not a nullification of the entire statute; it is a judicially—

enforced requirement that the Health Authority must as far as

feasible declare the standards and rules that guide its determinations

in individual cases .,,.~Sucha decision... .would have accomplished

the purpose of the non—delegation doctrine.” See Davis, Administrative

Law Treatise, 1970 Supplement, Section 2.11. The regulatiohs of the

Air Pollution Control Board meet this requirement, and so do the

opinions of the present Board, which as required by statute are

written in every case we decide. Acceptance of the Davis position,

of course, is by no means necessary to sustain the statutes before

us, for reasons already given.

2. Both these last points apply equally to the elderly decision

in People v. Beekman & Co., 347 Ill. 92 (1932), also cited by

the company.

1 —319

---

The argument that the power to order a respondent to stop

violating the general prohibition of

air

pollution constitutes

an invalid delegation of

legislative authority has no merit;

the function of the Board in

such cases is essentially akin to

We find Granite City’s delegation argument without merit.

3.

Substantive due process. The company next puts forward

the untenable suggestion that the present Act is unconstitutional

in that it outlaws the discharge of “harmless” contaminants which

might have an adverse effect in combination with discharges from

other sources over which the respondent has no control. In the

first pl4ce, Granite City has made no showing that its emissions

would be “harmless” even in the absence of other contaminant

sources and therefore has ho standing to attack the provision

on this ground. Moreover, even if Pacesetter Homes, Inc. v. Village

of South Holland, 18 Ill. 2d 2117, 163 N.E. 2d

11611

(1960), stands

for the unusual

and

unfortunate proposition that one always has

standing to challenge the validity of a aw as applied to someone

else, the argument fails on the merits. ~ For the statute very

expressly provides a defense for anyone who can show that compliance

would impose an arbitrary or unreasonable hardship, section 31 (c);

in other words the statute does not apply in any case in which its

application would be uncontitutional.

As for the suggestion that other sources are irrelevant to the

obligations of the company, •brief reflection will show that the

presence of other contaminants in the air significantly reduces the

amount that Oranite City Steel

may

discharge without causing harm.

Activities that might be perfectly acceptable in the absence of the

acts of others, such as entering an elevator, may be made illegal

when others have filled the elevator to its safe capacity. No one

has a constitutional right to park in parking space that is already

occupied. No one has a contitutional right to be the straw that

breaks the camel’s back. The company’s position would make it tn—

possible to protect the public against the type of pollution that

most seriously plagues

our

big cities: that which results from the

cumulative effect of many individually relatively small sources in

the same area. Regulation of automotive pollution, for example,

would be out of the question.

3.

We do not believe Pacesetter stands. for

any

such broad position.

That was an overbreadth case under the First Amendment, an area in

which courts have been traditionally more willing to examine the

validity of laws on their face.

1-.

---

The company’s due process argument is rejected.

II.

In a supplementary motion the company asks that the complaint

be dismissed for vagueness and for failure to inform the reu!ondent

of the charges against it. The company invokes the authortv?’ of

our decision in #70~1l,EPA v. Commonwealth Edison Co. (Fet. 17,

1971), in which we did strike a portion of the complaint on thi.~

ground.

But

there the resemblance between

the two cases enths.

Edison does not stand for the proposition, asserted by

qranlte

City, that the complainant must plead its evidence. We there

threw out an attempt to bring sulfur dioxide emissions Into the

case on the basis of allegations that gave notice on.:; that ~:uoke

and other particulates were in issue.

We expressly upheld the sufficiency in Edison of allegat~ons,

like

those in the present case, which referred specifically to

violations of precise numerical standards. Moreover, as to the

violations of the general air pollution provisions of the ntatutcs,

the present

complaint alleges the particular equipment fro:’: which

emissions are said to

have occurred and, contrary to the

ccr,itany’3

assertion, specifies the dates of such violations.

The company has already availed itself extensivel.y of the

dIscovery procedures provided by Board rules. If an~evidence at

tt’ial nevertheless surprises the company, it will be free to argue

for its exclusion on that ground at the time. The complaint is

sufficient.

III.

We are not yet through. The company further asks that we

strike certain portions of the complaint on the ground that no

violation of the general air pollution provisions can be found

for

any

equipment that is in compliance with specific regulations.

Once again the company asserts this argument prematurely, for 1t

has not shown that its equipment is in compliance with the

regulations and thus lacks standing on the issue. Moreover, the

company’s argument is flatly contradicted by the statute, which

in plain English (with a little Latin) states that compliance with

the regulations.Is a “prima facie” defense to a violation of the

Act itself (section

119

(e)). Granite City argues that a prima

facie defense is a complete defense. To say this is to refute

it; ever~,law student knows a prima facie defense is subject to

rebuttal, in this case by showing that a nuisance exists despite

compliance with the regulation. The prima facie defense provision

was a compromise; the original bill contained no provision for

a defense, and a proposed amendment that would have given a complete

defense was rejected. (See legislative history of Environmental

Protection Act, original bill and proposed amendment no. 63).

I

—

321

---

IV.

The company argues that this Board has no jurisdiction over.

alleged violations that took place before the effective date of

the Environmental Protection Act. The result of such a holding,

since the old Boards that once enforced the pollution laws are no

longer in existence, would be to create a void in administrative

enforcement. Such could hardly hays been the intention of the

General Assembly in enacting a new and stronger pollution law.

And

no such conclusion can be drawn from the statute, which

went to some pains to preserve liability for past violations

by providing, in section

119

(b,), that “all proceedings respecting

acts done before the effective date of this Act shall be

determined in accordance with the law and regulations in force

at the time such acts occurred.” Obviously it was intended to

preserve liability for past violations; obviously, since the

old Boards were abolished, it

was

intended that complaints for

such violations be filed before this Board.

As we have already held in EPA v. Cooling, #70—2 (Dec.

9,

1970) there is nothing to the argument that changing the forum

in which a case is heard, after the act charged is committed,

offends the prohibition against cx post facto laws. The complaint

is brought for an act illegal when done, and the penalties souttlit

are those provided for by the law In force at that time. The

Illinois Supreme Court has made clear that merely procedural changes

such as giving jurisdiction to a different tribunal to apply the

same law do not raise constitutional questions when applied

retrospectively. See Nelson v. Miller, 11 111. 2d 318, 143 N.E.

2d 673 (1957), upholding retroactive application of the long—arm

statute conferring jurisdiction over cases arising from acts done

within the state:

“The law applicable in the State of Illinois is that there

is no vested right in any particular remedy or method of

procedure.

. .

.The change ‘merely establishes a new mode

of obtaining jurisdiction of the person of the de!’endent

in order to secure existing rights which are unaffected b::

the amendment.’ Retrospective

application of such a statute

creates a problem only if that application operates un-

fairly against a litigant who justifiably acted in reltance

There can have been no such reliance here.

V.

Finally,on Decemver 29,

1970, after this complaint

had

been

filed, the company wrote to the Agency asking for an extç’nston

of the Air Contaminant Emission Reduction Program (ACERP) covering

its facilities, which had expired by its own terms several weeks

before. The Agency, deeming this request an inartfully drawn

1-322

---

variance petition, moved to consolidate it with the pending

enforcement proceeding. The company’s response was violently

negative. For reasons not immediately apparent, but possibly

related to the company’s challenge to the Environmental Protection

Act,

the company insisted that what it had filed was not a

variance petition, in the teeth of the unmistakable statutory

provision that all requirements of the variance title apply to

“proposed Contaminant Reduction programs designed to secure

delayed compliance with the Act or with Board regulations”

(section 38). As we held in EPA v. Commonwealth Edison Co., supra,

such a program is a variance because it permits emission in excess

of regulation limits

and

because the statute flatly and deliberately

says so.

Granite City contends that the old program, which on its

face expired in December, 1970, “remains in effect pending action

by the Environmental Protection Agency and the Pollution Control

Board on respondent’s request for extension of the program”

(Respondent’s Memorandum, p. 6). The notion that the beneficiary

of an ACERP or other variance can obtain for himself an automatic

extension simply by filing for it at the last minute——or later——is

unsupportable. The only provision for a stay of enforcement upon

the fIling of a petition is in the case of a new regulation

(section 38); other suggested stay provisions were expressly

rejected (see legislative history, proposed amendment no. 41).

No one is entitled to a variance without “presentation of adequate

proof, that compliance...would impose an arbitrary or unreasonable

hardbhip” (section

35),

and a variance may be extended only

“by affirmative action of the Board”, and “only if satisfactory

progress has been shown,” (section 36 (b)). Section

119

(c)

preserves APCB regulations, but no regulation allows automatic

extensions or defenses while extension requests are considered,

and none would be valid if it did because it would squarely contradict

the sections of the statute quoted above.

It is also urged that Board Rule 309, which authorizes

consolidation of various claims, does not allow combining a variance

petition with an enforcement complaint. No again. The Rule

Is deliberately all—embracing:

In the intereet of convenient, expeditious, and

complete aetermination of claims, the Hearing

Officer may consolidate or sever enforcement,

variance, permit or other adjudicative claims.

. .

This language allows consolidation of different kinds of

claims involving the same or related subject matter, and it is

particularly appropriate in the case of a variance petition and

an associated complaint, because of the overlapping evidence and issues.

-m

---

We have consistently utilized the consolidation rule in such cases,

e.g., EPA v. City of Springfield, #70—9; EPA v. Amigoni, #70—15

(Feb. 17, 1971).

The request for extension was therefore properly construed

as a petition for variance, and the motion to consolidate was

entirely in order. Confronted with the Board’s resolution of

these issues, the company elected to withdraw its request. That

is its privilege; if it doesn’t want a variance it doesn’t have

to have one. The matters relevant to a variance can be presented

in defense to the enforcement claim without the necessity for

a formal petition (section 31 (c)).

But

we think the company

should understand that it now enjoys no variance, that its

ACERP has expired, and that it has no shield against prosecution

save any arbitrary or unreasonable hardship that it may be

able to prove at the hearing.

VL

The company objects to th~amended complaint on the ground

it was also designated as a counterclaim to the variance petition,

arguing

that

Board rules make no provision for counterclaims.

We think the filing of a counterclaim is entirely consistent with

the Rules and that the absence of specific authorization is im-

material. We have entertained countercomplaints before, e

•

Norfolk & Western Ry. v. EPA, #70—41 (March

3,

1971),

and

any

technical difficulty in so doing can be avoided by treating the

counterclaim as a separate proceeding and consolidating it with

the pending case under Rule 309. In the present case it is also

Conclusion

In sum, we find all the company’s arguments wholly without

The company’s motions are denied.

I,. Regina Ryan, Clerk of the Pollution Control Board,. certify

that the Board adopted the above Opinion and Order this

.‘ ‘/‘

day of

11 2

.

,

1971.

,~2

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.e

‘c)

~

)

1-324