dissenting:
Section 13(a) of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111½, par. 1013(a)), provides in part:
“The Board, pursuant to procedures prescribed in Title VII of this Act, may adopt regulations to promote the purposes and provisions of this Title. Without limiting the generality of this authority, such regulations may among other things prescribe [there follows a list of 9 specific areas of authority].” (Emphasis added.)
The Board thus has broad powers to regulate to accomplish the goals of the Act. To determine whether a particular regulation is within the Board’s power, one must look to the “purposes and provisions” of Title III.
Section 11 (Ill. Rev. Stat. 1973, ch. 111½, par. 1011) is a general declaration of legislative findings concerning water pollution. Section 11(b) provides in part:
“It is the purpose of this title to restore, maintain and enhance the purity of the waters of this State in order to protect health, welfare, property, and the quality of life, and to assure that no contaminants are discharged into the waters of the State, 0 0 0 without being given the degree of treatment or control necessary to prevent pollution, or without being made subject to such conditions as are required to achieve and maintain compliance with State and federal law e
More specifically, section 12 of the Act (Ill. Rev. Stat. 1973, ch. HIM, par. 1012), provides in part:
“No person shall:
(a) Cause or threaten or allow the discharge of any contaminants into the environment in any State so as to cause or tend to cause water pollution in Illinois, either alone or in combination with matter from other sources, or so as to violate regulations or standards adopted by the Pollution Control Board under this Act.” (Emphasis added.)
The Board may thus regulate to restore water quality and to prevent the threat of future water pollution in Illinois. The only remaining question is whether Du Page regionalization will advance these goals.
There can be no question but that the present system of wastewater treatment in Du Page County poses utterly unacceptable risks. The proliferation of small, uneconomic, inefficient treatment plants has created a continuous threat of areawide water pollution. This was made clear at a very early stage of the hearings by the testimony of Carl Blomgren, an engineer with the Illinois Environmental Protection Agency. Mr. Blomgren stated that the agency favored regionalization, and offered the following reasons:
“1. Plants at larger capacities generally are staffed with more competent personnel and provide 24 hour operator coverage to insure proper operation. Lack of proper operation is, in our opinion, one of the largest single factors for the degraded water quality in our Illinois streams.
2. Laboratory control determinations generally are performed accurately only at the plants properly staffed with qualified chemists. Control tests are required to properly operate any biological process.
3. Plants with larger capacities generally have three or more units designed for a function (such as settling or biological treatment) permitting any unit to be taken out of service for repairs with increasing the load to the other units by less than 50%. At smaller plants, generally only two units are provided for a function (to comply with the Environmental Protection Agency requirement for multiple units) which then are 100% overloaded when one unit is removed from service.
4. Plants at larger capacities are not as susceptible to plant upset due to infiltration of storm water or inadvertent slugs of industrial wastes due to the inherent dilution capabilities of the larger systems.
5. Plants at larger capacities serve larger areas and as such the daily peak flows are a smaller percentage of the design average flow resulting in better overall daily treatment.
6. Plants at larger capacities generally have lower capital costs and lower operating and maintenance costs per million gallons.”
The Board expressly incorporated these views into its opinion in support of the regulations. Lombard has not disputed them.
The need for consolidation into larger plants as soon as possible is equally clear. All of the population projections offered at the hearings predicted a steady and dramatic growth in the population of Du Page County over the next 20 to 30 years. It will be necessary to expand sewage treatment facilities to meet the enormous demand created by the increased population. This expansion cannot occur overnight: the necessary capital improvements are a long term project, requiring the kind of long term planning done by the Board in the Du Page regionalization order.
The policy of regional treatment is not unique to Du Page County or even to Illinois. In the Federal Water Pollution Control Act Amendments of 1972 (P.L. 92-500), Congress expressed a similar policy in section 208 (33 U.S.C. §1288). Our General Assembly amended sections 11,12 and 13 of the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111½, pars. 1011, 1012 and 1013), effective September 14,1973, to reflect the Federal act by reference. Also see Armstrong, Chemcon, Inc. v. Pollution Control Board, 18 Ill. App. 3d 753, 756,757 (leave to appeal denied), for authority prior to 1973 amendments.
The action of the Pollution Control Board in promulgating the regulations here under review is obviously necessary to prevent the threat of water pollution in the years to come: it is a long term solution to a long term problem. The Board is expressly empowered, is indeed required, to prevent the threat of water pollution. The regulations in question are clearly proper, and should be upheld.
Lombard relies primarily on North Shore Sanitary Dist. v. Pollution Control Board, 55 Ill. 2d 101,302 N.E.2d 50 (1973), which held in part that the Board could not direct the Sanitary District to issue general obligation bonds in order to finance pollution control facilities. Blithely assuming that the Board is thus powerless to issue specific orders in any enforcement case, the Village goes on to say that it is also powerless to do so in a rule-making context. The argument is not only a non sequitur, it ignores recent case law to the contrary.
The basis of the Pollution Control Board’s power to issue final orders in enforcement cases is section 33 of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111½, par. 1033). Section 33(a) authorizes the Board to issue and enter final orders. Section 33(b) specifically delineates the permissible scope of enforcement orders:
“Such order may include a direction to cease and desist from violations of the Act or of the Board’s rules and regulations or of any permit or term or condition thereof, and/or the imposition by the Board of civil penalties in accord with Section 42 of this Act.”
There are thus explicit statutory limitations on the scope of the Board’s final orders in enforcements proceedings. It should be noted, however, that these limitations do not prohibit the Board from making any sort of specific mandatory order. Darling & Co. v. Pollution Control Board, 28 Ill. App. 3d 258, 328 N.E.2d 122 (leave to appeal denied), was a petition for review from a Board order requiring, inter alia, that Darling submit a compliance plan “which shall include a truly effective negative pressure system and very strict housekeeping requirements to prevent material from spilling in such areas as the unloading docks to prevent odors.” The order in that case was at least as specific as that in North Shore Sanitary Dist. Although the First District did not say so, apparently North Shore Sanitary Dist. is to be confined to its facts: the Board is thus powerless to direct the issuance of general obligation bonds by special districts. It may issue specific orders in other kinds of enforcement cases.
In any event, the case law defining the enforcement powers of the Board obviously should not be blindly applied to rulemaking proceedings, as Lombard would do. In raising the issue of the Board’s power to make rules which impose specific mandatory duties, this case presents a question of first impression. An analysis of the rulemaking provisions of the Environmental Protection Act, and the policy underlying them, can only result in upholding the regionalization regulations.
The Board’s power to promulgate regulations derives from Title VII of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. HIM, pars. 1026-1029). Sections 27 empowers the Board to adopt substantive regulations, and lists a variety of different kinds of provisions which are allowable. It goes on to require the Board to “take into account” a variety of different factors, all of which are designed to ensure that a reasonable balance among competing legitimate interests is reached in Board rules; none of these has been placed in issue by Lombard. Finally, and most significantly, section 27 provides:
“The generality of this grant of authority shall only be limited by the specifications of particular classes of regulations elsewhere in this Act.”
The Board thus has broad discretion to adopt regulations. So long as its regulations meet the procedural requirements of Title VII, and are in furtherance of the Board’s power to abate air, water, land or noise pollution, they should be upheld. Nowhere in the statute is there any indication of an intention to limit this otherwise broad grant of authority to the power to merely “order certain polluters within Du Page County to abate a condition.”
There are sound reasons underlying this broad grant of power to the Board. Administrative rulemaking, like legislation, is prospective in nature. To be effective, or even comprehensible, it is sometimes necessary to be very specific: the traditional “cease and desist” order is simply not always enough when policy judgments are being made. To deprive the Board of the flexibility of issuing specific regulations would be to deprive it of effective rulemaking power in many circumstances.
The present case is a good example of the kind of situation in which specific, mandatory regulations are a necessary tool. Regionalization is necessary to eliminate continued inadequate treatment of sewage which, when combined with the rapid growth of Du Page County, will result in unacceptable levels of pollution. At that point the only remedy will be enforcement cases against the individual sanitary districts in the county, in which the cease and desist orders favored by Lombard, as well as more drastic devices such as sewer bans, could be used. Such proceedings are, at best, an extremely unsatisfactory way of dealing with complex environmental problems, and can sometimes work hardship on a large number of people. (See, e.g., League of Women Voters v. North Shore Sanitary Dist., PCB Nos. 70-7,70-12,70-13,70-14 (March 31,1971), 2 ERC 1442, the Lake County sewer ban case.) If the Board is deprived of its power to rationally regulate to prevent that kind of situation, one can only expect more piecemeal enforcement cases which impose hardships on third parties and which come only after significant environmental damage has occurred. Regionalization will allow orderly growth in Du Page County without the need for a sewer ban.
As a necessary concomitant to its authority to regulate to prevent water pollution, the Board has the authority to issue the kind of order at issue here. This court should uphold it in its entirety. Cf. Metropolitan Sanitary Dist. v. City of Des Plaines, 63 Ill. 2d 265.
I would affirm.