Village of Lombard v. Pollution Control Board

346 N.E.2d 196, 37 Ill. App. 3d 440, 1976 Ill. App. LEXIS 2203

• Court: Appellate Court of Illinois
• Decided: April 15, 1976
• Docket: No. 74-302
• Status: Published

Opinions

Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

The Village of Lombard (Lombard) has petitioned for a review of an order entered by the Pollution Control Board (Board) on August 29, 1974.¹ That order established a countywide Wastewater Regionalization Program (Rule 1115) for Du Page County, consisting of nine regions. On September 27,1974, the Board issued its opinion in support of that order.

On January 6, 1972, following a report on a Regional Wastewater Plan issued in July, 1969 by the Northeastern Illinois Planning Commission (NIPC)², the Board promulgated Rules 1101 through 1114 which provided for general public hearings to be conducted by a different hearing officer in each of the nine treatment regions recommended in that report.³ The hearing officers were thereupon to issue their respective recommendations to the Board as a basis for eventual action by the Board. The 1969 NIPC plan had recommended that the area consisting of the municipalities of Highland Hills, York Center and Congress Knolls (referred to as “disputed area” in the Board’s opinion of September, 1974) be included with Lombard (and other municipalities) in one of the regions.⁴

After the regional hearing in Region III were concluded the hearing officer for that region submitted his memorandum to the Board recommending that the disputed area be included in Region III, with Hinsdale Sanitary District (HSD) as regional authority.

It should be noted that the disputed area is in the northwest portion of Region III and is surrounded on the east, north and west sides by Region IV, and that representatives of local governments in the disputed area expressed a desire to be included in Region III. At those hearings Lombard’s witnesses testified regarding Lombard’s prior installation of interceptor sewers in reliance upon the inclusion of the disputed area within the same region which could be served by Lombard, as recommended by NIPC’s 1969 Regional Wastewater Plan.

Almost six months later the Region IV hearing officer, after conclusion of hearings in that region, submitted his memorandum. It criticized what it referred to as “the piecemeal approach” of the Region III hearing officer’s memorandum with respect to the disputed area because it would violate “the principle of protecting municipal integrity,” in that (a) it “would result in the construction of a sewer by Region III through portions of Region IV,” and (b) “it ignores the fact that the entire disputed area lies within the ultimate boundaries of the Village of Lombard and extends almost to the present center of Lombard.” Thereafter, the Board, on August 29, 1974, entered the order appealed from, placing the disputed area in Region III to be served by HSD.

The first issue presented by Lombard is whether the Board has power under the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1001 et seq.) to impose by order a Wastewater Regionalization Plan on the various local governmental units and municipalities in Du Page County to be affected thereby. Before considering that issue we must first dispose of the Board’s contention that the regionalization program in Du Page County was “established” by the Board’s order of January 6, 1972, and that Lombard, having failed to petition for review within 35 days of that order,⁵ is precluded from challenging the Board’s authority to enter its order of August 29, 1974, imposing countywide wastewater regionalization.

Lombard was not “adversely affected or threatened by” the Board’s 1972 order so as to require it to petition for review thereof (Ill. Rev. Stat. 1971, ch. 111/2, par. 1029). Moreover, as we stated in referring to that order in Hinsdale Sanitary Dist. v. Pollution Control Board, 30 Ill. App. 3d 860, 862, the 1972 order was no more than “a blueprint for procedures, organization and coordination necessary to achieve the regionalization of sewerage treatment.” We further stated in Hinsdale that Rule 1113 of that order “cannot, by its own terms, become effective until the investigatory work and recommendations required under paragraph 1108 have been completed.” Rule 1108 provided for the issuance by the Board of a detailed, regional program for each of the nine regions after receipt of the recommendations from the hearing officers of each region. The regional program contemplated in that rule was not accomplished until the Board, on August 29, 1974, entered the order appealed from imposing wastewater regionalization.

The Board’s opinion supporting that order quoted portions of the opinion which supported the Board’s 1972 order including the following:

“In promulgating this regulation, the Board shifts the onus of determining the manner of regionalization back to where it belongs — the people and governmental bodies of DuPage County. ” # ” It is our earnest hope that the Plan presented by the parties constitutes a detailed viable solution such that the Regional Program approved by the Board need only be a stamp of approval.”

It should also be noted that the order appealed from itself expressly states that “this proceeding is deemed by the Board to be a final action in other respects [than proposed modification] such as right of appeal.” We therefore hold that Lombard’s petition for review is timely and that Lombard is not barred from challenging the underlying validity of the 1974 Regionalization Order.

Returning to Lombard’s first issue, Lombard argues that the Board is without statutory power to impose regionalization upon local governmental bodies and municipalities. It points to the holding of our Supreme Court in North Shore Sanitary Dist. v. Pollution Control Board, 55 Ill. 2d 101, that the Board is without power under the Act to order the issuance of general obligation or revenue bonds, as distinguished from its statutory power to order abatement of pollution practices by any municipality, sanitary district or other local governmental body, and the resulting obligation of such governmental unit, in that event, expressly provided and conditioned by section 46(a) of the Act, to raise the necessary funds for those purposes by the issuance of such bonds without referendum. See Ill. Rev. Stat. 1973, ch. 111%, par. 1046(a).

While the Board asserts that it has the power to order countywide regionalization it does not point to any statutory grant of such power. The Board unquestionably has the broad power to adopt regulations to restore water quality and to prevent the threat of future pollution in Illinois. However, the Act does not give the Board any power to compel regionalization to accomplish that purpose.

Its 1972 Order was obviously intended to accomplish wastewater regionalization and co-operation by voluntary means. This had been done long since by Lombard and its neighboring municipality, Glen Ellyn, in their creation of a joint commission called the Glen Ellyn-Lombard Regional Commission which operates the Glenbard Wastewater Treatment Plant. During the course of the regional hearings diligent efforts were made by NIPC and by many of the participants to bring about the enactment of legislation to grant such power to the Board. These efforts proved unsuccessful.

Our analysis of the provisions of the Act, including those relating to the Board’s power to adopt rules and regulations, discloses no provisions that would authorize the Board to enter the order appealed from imposing regionalization. It is up to the State legislature, if it deems such power necessary and advisable, to grant such power to the Board. We decline to encroach upon the prerogatives of the State legislature.⁶ In the absence of a grant to the Board of power to impose wastewater regionalization on municipalities, sanitary districts, or other local, governmental bodies without their consent, the Board’s order purporting to do so requires reversal.

The petitioner’s second issue is that the order setting the boundaries of Region III and Region IV so as to include the disputed area in Region III is against the manifest weight of the evidence. We consider it unnecessary to address ourselves to this issue in view of our conclusion that the order appealed from must be reversed.

For the reasons stated the Board’s regionalization order of August 29, 1974, is reversed.

Judgment reversed.

T. J. MORAN, P. J., concurs.

1 The petition for review was filed within thirty-five days of the date of that order, pursuant to section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1041) and Supreme Court Rule 335 (Ill. Rev. Stat. 1973, ch. 110A, par. 335).

2 This plan was revised by NIPC on September 9 and October 21, 1971, and finally, on January 20, 1972.

3 Further details concerning the preamble and some of the provisions of those rules were stated by us in Hinsdale Sanitary Dist. v. Pollution Control Board, 30 Ill. App. 3d 860, and need not be restated here.

4 The disputed area is generally bounded on the south by 22nd Street, on the east by Meyers Road, on the north by Roosevelt Road and on the west by Lombard’s Main Street, and includes some school property west of Main Street.

5 As required by section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1041).

6 Mr. Dumelle, a member of the Board, stated several times during the hearings in February, 1971, that the power to order regionalization “is not a power that seems to be in our Act except through the mechanics of ordering bond issues on a particular case ° ° and, as follows:

“I can’t conceive that we can order a new regional government or something of that sort because then you infringe on all kinds of other acts regarding indebtedness or regarding other governments and so forth, but there may be some areas which we can be of help.”

The Board in its opinion supporting the order appealed from stated:

“Ideally, legislation clarifying the administrative responsibility and financial authority for carrying out a regionalization program would be highly desirable. Such legislation has been under consideration by the General Assembly for the last three sessions, although at this writing nothing has been enacted by either House and what is proposed would require referendum which, as noted above, has been unsuccessful when previously submitted. As the Board said in June of 1971 and reiterates three years later, it cannot continue waiting for legislative assurance that such a program will be effectuated nor can it permit the unlimited suspension of a plan which all parties recognize as essential, but on which disagreement as to implementation may still exist. The regulations ultimately adopted for Du Page regionalization were in response to this factual and legal situation.”