By WILLIAM LAMBRECHT
Springfield correspondent for the Alton Telegraph, he is now covering his fifth session of the General Assembly. Lambrecht has written numerous magazine articles on energy and coal development. He has degrees from Illinois Wesleyan and Sangamon State universities.

Surviving the shakedown

Pollution Control Board

Buffeted by legislative potshots, threatened with federal preemption and enmeshed in a jurisdictional conflict with Atty. Gen. William J. Scott, the Pollution Control Board has 'won a few and lost a few' since its creation in 1970 to 'determine, define and implement' the state's environmental control standards. By the end of 1976, the board had levied almost $2 million in penalties, won a landmark Lake Michigan decision and had at least slowed down the rate of pollution in the state

BACK IN 1970 during the fervor of Earth Week, when a cause was a cause, by God, and something had to be done about nearly everything, the environmental movement helped create the Illinois Environmental Protection Act and its enforcement agency, the Pollution Control Board (PCB). Now, nearly seven years later, the shrill and passionate outcries of reformers are muted, but the Pollution Control Board remains. The board has grown into a sharp-toothed, yet restrained regulatory agency. Although it is constantly threatened by the bureaucracy of which it has become a part, the PCB today can make the state's biggest industries cower and curse as they cough up millions for pollution control equipment.

The PCB is the only state board of its kind in the country which sets regulations and adjudicates enforcement proceedings for air, water, land and other pollutions. But courts have struck down some key regulations, such as sulfur dioxide and paniculate emission standards. And industry advocates in the General Assembly, labeling the PCB as autocratic, arbitrary and anti-business, continue to take shots at the board's structure and powers. Adding to the board's problems, many average citizens and farmers have reacted bitterly to open-burning bans and grain storage regulations.

Generally, the quasi-judicial powers of the PCB have been upheld in court. Despite major changes in its personnel, the five-member board has survived legislative attacks and the political vicissitudes of administration changes. Illinois business is also still intact, though some of its investment capital may have been diverted. "We've been here seven years now, and Illinois has not collapsed," says board chairman Jacob D. Dumelle. "When we first started, everybody said, 'My God, you're going to ruin Illinois and shut down the factories.' Well, the courts have generally upheld us, and that collapse hasn't happened."

It is uncertain whether Illinois is measurably cleaner than seven years ago, but there's evidence that the tide of pollution has been stemmed, which may be the best environmentalists can hope for. Whether because of industry compliance with PCB regulations, or the sluggishness of bureaucracy, the PCB caseload has dropped nearly 30 per cent this fiscal year to around 350. Both requests for variances from board standards and penalties have also declined. Even the PCB appropriation is down from a high of $813,000 in fiscal year 1972 to a present $748,000 — unusual for a government agency.

A few major worries
Aside from a few identity problems the limitations of a small staff of 19, and some reflections on the "true spirit of the act," the PCB has only a few major worries. One is the increasing trend towards federal preemption and the lengthy process of appeals.

Of greater immediate concern is the fact that the board has become enmeshed in the dispute between executive agencies and the Illinois attorney general over legal representation. Atty. Gen. William J. Scott, elected in November to an unprecedented third term in office, maintains he is the sole legal agent for the state and its departments, and controller of all legal funds for the PCB and other agencies. Because of the vagueness of the Constitution's definition of the attorney general as "legal officer of the state," the matter was in court for more than two years prior to a state Supreme Court ruling late last year (People ex rel. Scott v. Briceland, see p. 27).

The high court decision affirmed a


6 / February 1977 / Illinois Issues


Sangamon County Circuit Court decision holding unconstitutional section 4 (e) of the Environmental Protection Act which states that EPA shall have the function "to prepare and present enforcement cases before the board...." Even before the ruling, Scott insisted on representing the PCB and its partner in enforcement, the Environmental Protection Agency (EPA), in the same case. Both agencies, however, have clung to the wording in the Environmental Protection Act, which says the EPA is to "prepare and present" cases before the PCB, which serves as the judge.

Attorney general conflict
Board chairman Dumelle, who normally maintains a low and judicious profile, sees "basic inherent conflicts" in Scott's representation of both pollution control agencies. "There's a legal ethic that you can't be on both sides at the same time," says Dumelle, an engineer and the only member still serving from the original board. "Scott ought to say 'get your own counsel, and I'll pay for it.'"

In a number of cases, Scott has simply removed himself from proceedings, causing problems for the board. In three appeals cases late last year, Scott stepped out leaving the PCB with no counsel. Those cases left dangling were EPA v. Petersen Puritan, EPA v. Caterpillar Tractor and an appeal on a solvents regulation that had been struck down. "We're in a big fight about it right now," Dumelle says. "Scott has pulled out and told us we could represent ourselves. But he hasn't provided the funds, and we're not budgeted for it."

The major effects of the attorney general's questionable representation, however, occurred early last year when the state Supreme Court upheld an appellate court ruling that knocked down the PCB's sulfur dioxide control regulations (Commonwealth Edison v. PCB). The reversal of these embattled sulfur dioxide standards was perhaps the most traumatic event for both the board and environmentalists in recent years. Former board member David P. Currie, in a law text he authored called Pollution, indicates the frustration. "As the Illinois board after the decision, what would you do? Appeal? Start all over? Abandon the effort to regulate power plant emissions? Go back to teaching?" Currie went back to teaching.

But prior to the Supreme Court's decision. Commonwealth Edison had actually agreed to drop the proceedings and vacate the appellate ruling after working out a long-range agreement with the EPA to install more than $100 million in pollution control equipment. But Scott, as attorney for the PCB, persisted in the case, seeking a test of the controversial sulfur dioxide regulations. These regulations have been complained about by Illinois industry and coal producers since schedules for particulate emission control were laid down in the 1972 Clean Air Act.

Scott and the board could have been out of the proceedings with the sulfur dioxide regulations intact. But Scott, who has carried on a running battle with the EPA, refused to accept the arrangement. Soon after, the Supreme Court upheld the lower court decision and ordered the regulations held in abeyance for further study. Scott defends his


Illinois Environmental Protection Act of 1970

In addition to the Environmental Protection Agency and the Illinois Institute for Environmental Quality, "There is hereby created an independent board to be known as the Pollution Control Board, consisting of 5 technically qualified members, no more than 3 of whom may be of the same political party, to be appointed by the Governor with the advice and consent of the Senate ....
"The board shall determine, define and implement the environmental control standards applicable in the State of Illinois ....
"The board shall have authority to act for the State in regard to the adoption of standards for submission to the United States under any federal law respecting environmental protection." (Excerpted from Illinois Revised Statutes, 1975. Chapter 111½, section 1005.)


handling of the case, though he is reluctant to discuss details. "EPA proposed their own deal or whatever you want to call it giving the utility people the excuse to divert our case," Scott says. "Our position is that it is our responsibility to the people of the state . . . the EPA has been arbitrary and making bureaucratic decisions we don't think they have a legal obligation for making."

"He's not following the client," Dumelle counters. "He's saying, 'in the name of the people, I have a right to stand out here and go a different way.' If you give him veto power over the board, then why in the hell are we here? The attorney general cannot prejudge PCB regulations."

In another high court setback last year, the board was prohibited from assessing fines in variance cases. Under statute, the board may issue variances, or permits allowing up to a five-year delay on compliance with emission standards, while a compliance schedule is being implemented. Though restricted in variance cases, the board has retained through court decisions its use of fines in enforcement proceedings, and up until last November had levied a total of $1,809,529.12 in penalties. The largest fine issued was $149,000 in GAF Corp. v. EPA for foot-dragging in controlling a discharge of three million gallons of pollutants per day. The board, however, later accepted $50,000 in settlement.

The PCB has made an attempt to limit fines on local governments. In Springfield v. EPA, for example, the board assessed only a $1,000 penalty, despite excessive violations in sewage treatment compliance. In that decision, the board wrote: "If the city was a private individual or corporation, we think a penalty of $20,000 would be appropriate. Taking money from the public treasury, however, must be a last resort, since it punishes the relatively innocent public and diverts funds from the task of cleaning up the water."

Federal preemption
The PCB and parallel agencies such as California's water control board and Pennsylvania's appellate level pollution control agency are encountering increased federal preemption of state jurisdiction. Illinois' pollution control mechanism has always been interrelated with the federal government. Board-enacted regulations dealing with air pollution become part of the Illinois implementation plan under the federal clean air act, and federally enforceable.

Although drafters of the Illinois act gave the PCB power to issue permits for nuclear power plants and nuclear fuel reprocessing plants, states were preempted in nuclear control in a 1972 U.S. Supreme Court decision. Additionally, states (except California) are not allowed to regulate auto emissions from new cars. Also, recent indications are that aircraft noise levels may only be


February 1977 / Illinois Issues / 7


'Our regulations speak for themselves. We're pretty much set now, and people in the system know it'

regulated at the federal level. Dumelle, testifying before a subcommittee of the U.S. Senate Committee on Public Works, said, "If a governmental unit, be it state or local, feels it wants to protect its citizens, it ought to be able to do so, and ought not be preempted unless overwhelming national interest dictates otherwise."

At times, though, the board has limited its own jurisdiction. When a citizens' petition sought a PCB limit on smoking in certain public places, the board held that air indoors was not included in the scope of the 1970 enabling act, except to the extent of occupational exposure covered by other laws.

Political potshots
The opponents within the state structure, however, have provided the most constant threats to the board. At the end of 30 months of PCB regulations, the General Assembly began to drastically increase its attacks on board jurisdiction and powers. In the 1973 session, an anti-PCB coalition failed in attempts to limit regulations on grain crops and livestock operations to levels not more stringent than minimal federal standards. A similar bill restricting grain elevator regulations passed both houses but was vetoed by Gov. Dan Walker. An override attempt fell short. Victories were evenly divided in the early battles, although the General Assembly did succeed in overturning the PCB statewide ban on open burning.

In those days, the most vocal board opponent was the controversial Webber Borchers, Republican House member from Decatur who has since been drubbed out of the legislature after cTcuit court convictions on theft and official misconduct in an expense-pocketing scheme. Borchers was emblematic of frustration at the board from certain sectors. One day, when he repeatedly confused the PCB and the EPA in a House committee hearing, a fellow lawmaker pointed out his error, and Borchers replied, "Well, they're the same damn thing." Just two months after Borchers' November 1974 indictment, the PCB found the EPA guilty of violating state regulations by not properly declaring ozone watches. In an unprecedented 5-to-0 decision, the board reprimanded the agency for arbitrarily changing ozone watch and alert levels in "backroom policy sessions."

General Assembly members regularly take potshots at the PCB's unique review structure. Hoping that local courts would ease the impact of PCB regulations. House and Senate members began filing bills in 1972 to change the act's initial appeal court from the appellate level down to circuit courts where actions are initiated. The perennial legislation has failed. PCB member James L. Young says, "The biggest danger to the board is adding on layers of review like the circuit court. That could add a year or two on to the whole enforcement process."

In the most emotional battle, which included business organizations and environ mental groups, pro-industry forces in the General Assembly argued for legislation requiring economic impact statements on all board regulations. Such a bill, which would both highlight pollution control costs and slow down the enforcement process, finally passed in 1974 but was vetoed by Gov. Dan Walker. Environmental leaders argued at the time that language in the bill calling for studies of "all existing regulations" could result in court injunctions against enforcement while the studies were being carried out.

Legislative scoreboard
A year later, after some language moderations and the addition of some emergency health amendments added in bargaining, the bill passed and was signed by the governor with grudging PCB support. "We knew it was in the wind. Adding on the health amendments was the best we could do," Dumelle recalls. "You lose some, but then you win some. All you can do is tally them up," he adds. The board did win a legislative battle when a move requiring one board member to be from the agricultural sector fell short. The act presently stipulates only that the board be made up of "five technically qualified members."

In what may indicate a new respectability. General Assembly attacks on the PCB decreased markedly in the 1976 lawmaking session. Apart from another attempt to remove the board's appellate court privileges, the only anti-board bill passed last session (removing the board's control over noise pollution at sporting events) was vetoed by the governor. Much of the old bitterness appears to have waned. The only crass political attack against the board occurred late in the 1976 spring session when the confirmation of Dumelle and two other board member reappointments was held up. After nearly two months, however. Senate Democratic leadership saw the futility of gamesmanship with a lame-duck governor, and the board members were approved by the Senate Executive Committee on Appointments and Administration.

Board turnover
But what the General Assembly didn't do last session, to board members' chagrin, was agree to a proposal hiking members' salaries from $30,000 to $37,500, and the chairman's salary from $35,000 to $42,000. Those salaries have been locked in since the board began in 1970. "It somehow doesn't seem right," Dumelle laments, "when you look at the Chicago Metropolitan Sanitary District where they have five department heads earning over $50,000 and many in the $40,000 range."

The General Assembly's refusal to raise salaries, according to Dumelle, may be contributing to the high turnover rate of members except for Dumelle. Serving on what is now the third complete board are Dumelle of Oak Park, Young of Springfield, Philip Zeitlin of Chicago, Irvin G. Goodman of Medinah and Dr. Donald P. Satchell of Carbondale.

Of the nine members who have left, seven have returned to private law practices or taken government jobs, and two have returned to university slots. One former member, Sidney M. Marder of Peru, served as director of the Energy Division in the Department of Business and Economic Development in the Walker administration and has recently set up his own consulting firm.

Throughout its deliberations, the board has consciously attempted to


8 / February 1977 / Illinois Issues


avoid extralegal confrontation and publicity. It has taken nearly seven years for the PCB to shed what Dumelle calls "the wild-eyed environmentalist stigma." Board members appear anxious to stay out of the limelight. "I don't think there's any need for explosive speeches or press releases and that sort of thing," Dumelle says. "Our regulations speak for themselves. We're pretty much set now, and people in the system know it."

News coverage
The PCB operates circumspectly behind a formidable array of writs, motions and orders with virtually all its activities unnoticed by the public. Press coverage is generally limited to brief newspaper blurbs, usually on the back pages. Because variance and enforcement cases are subject to appeal within 35 days, Dumelle and members are aware that public comments could prejudice the outcome. Also, written opinions from courts are normally slow to follow decisions, making difficult any timely public release of information. In addition to sparse news coverage, the board's only regular link with the public is the twice-monthly Environmental Register, a soporific document which has usually lost its news value by the time the third-class mail has delivered it to newspaper offices. Unless one really has a stake in the dealings, the Environmental Register is quite a chore to read.

An October edition, for example, begins with the less-than-explosive headline: "Board Adopts Combined Sewer Overflow Deadline Extension." The next item announced a sludge disposal workshop. In the earlier days of environmental fervor, the mailing list was 10,000 persons long. Now only 3,500 subscribe to the free Environmental Register.

Citizen complaint power
One of the little known areas of citizen participation with the PCB is the statutory right of any person or group to bring before the board complaints against polluters. In more than six and a half years, however, only slightly more than 100 such cases have been filed. Many of these were promptly thrown out as "frivolous" or "duplicitous" because of crude, nonlegal presentation and argument. As former member Currie writes in the Northwestern University Law Review* "the complainant must establish not only the existence of the violation but also the justification for the requested order." Most citizens' initiative cases couldn't complete such a highly legalistic task.

One citizen-initiated case, launched by the League of Women Voters, resulted in what has been called a "landmark" decision. In League of Women Voters v. North Shore Sanitary Dstrict, a board decision resulted in a building ban in eastern Lake County for more than a year. The North Shore Sanitary District was required by action of the PCB to issue $55 million in bonds for the cleanup of Lake Michigan shoreline. Beaches there which had been closed later opened. "Lake Michigan may be a little safer because of that case," Dumelle says.

Another bureaucracy?
One concern which has surfaced because of the PCB's distance from the public is the maintenance of the spirit and commitment that characterized the board at the very beginning of its operation. Is the PCB simply another self-perpetuating cog in state government bureaucracy now? Or is it different? "Some people may think we're bureaucratic, but we're not," Dumelle contends. "We keep trying to examine ourselves so we don't end up in some crazy procedure just because it is a procedure. We try to keep things open, and keep the spirit of the act, with open files, open hearings, adequate notice and citizen participation." Board activities and research constantly turn up new and unfolding environmental problems such as ozone depletion, polychlorinated biphenyls in Illinois waters and asbestos pollution.

But by the structure of the Illinois Environmental Protection Act, the board is not free to forewarn the public that danger exists. It is, to some extent, both a lawmaker and a judge, but not a siren. "After all, a judge can't go out and write traffic tickets," says Dumelle, who had just skipped out of an Illinois Recreation Council picnic and returned to his Chicago Loop office. "The reason I left early," Dumelle adds, "is that they were all going coho salmon fishing. And everybody knows that the fish in Lake Michigan are loaded with polychlorinated biphenyls." ¯

•David P. Currie, "Enforcement Under the Illinois Pollution Law," Northwestern University Law Review (July-August 1976).


Property crimes increase; violent crimes drop

A PROFILE of crime in Illinois for the 1975 calendar year reveals a period of mixed blessings for the citizens of the state. Even though there was an increase in the total number of crimes within the state, up 22,767 from the previous year (about a 3.95 percent increase), the rise was largely confined to the property crime category — burglary, larceny-theft, and motor vehicle theft. The slight increase in the state's population of 14,000 could not have completely accounted for the increase.

The actual number of property crimes rose 31,304, a 6.17 per cent increase, but at the same time, there was a decrease in the violent crime category of 8,537, or a drop of 12.22 per cent. The violent crime category includes murder, forcible rape, and aggravated assault.

The breakdown in each of the categories, by specific offense, is as follows:

Violent Crime
Murder
Forcible rape
Robbery
Aggravated assault
140 less, down 10.61%
213 less, down 6.91%
4,100 less, down 11.75%
4,084 less, down 13.38%

Property Crime
Burglary
Larceny-theft
Motor vehicle theft
3,181 more, up 2.26%
30,316 more, up 9.86%
2,193 less, down 3.71%

This profile is based on figures in Crime in the United States — 1975, Uniform Crime Reports (Washington, D.C.: Federal Bureau of Investigation, August 25, 1976).


Illinois Issues in time capsule for 2076, the Tricentennial
The December 1976 Illinois Issues (Vol. II, No. 12) was one of the items placed in the Illinois time capsule during ceremonies at the Capitol Rotunda December 3 sponsored by the Illinois Bicentennial Commission. The capsule is being kept by the state Historical Society until the opening in 2076 during the nation's Tricentennial Celebration. When the 21st century rolls around, there may be a question about when to open the capsule, which has the date July 4, 2075 painted on the top.


February 1977 / Illinois Issues / 9


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