Judical Rulings

Illinois Supreme Court
U.S. Steel not in violation of
Pollution Control Board rules

A DECISION by the Pollution Control Board allow operation of four blast furnaces located at the U.S. Steel Corporation's "South Works" in` Chicago was upheld by the Illinois Supreme Court September 30.

In Environmental Protection Agency [IEPA] v. Pollution Control Board [PCB] et al, the IEPA had denied operating permits for the fur-naces, staling thai they emitted paniculate mat-ter in excess of the amount allowed in rules set by the PCB. U.S. Steel asked the PCB to review the denial. After review, the PCB ordered the IEPA to grant the permits. The IEPA appealed to the appellate court which reversed the board's decision. U.S. Steel then appealed to the Supreme Court.

At issue was whether emissions produced dur-ing the casting operation (in which molten iron is lapped into ladle cars and transported to the steelmaking furnaces) should be regulated as par-ticulate emissions from new process sources or as "fugitive" paniculate emissions. In rejecting the IEPA's permit denial the PCB stated that because "a casting operation could entail everything from a snort tapping operation . . . to a very widespread operation containing literally acres of area," ihe company would actually be releasing fugitive paniculate matter which is matter that is not emitted through a stack and cannot be readily collected. Fugitive matter which is subject to more lenient standards than those im-posed upon sources that emit paniculate matter.

The Supreme Court upheld the PCB ruling adding that "technological advances . . . [may] resolve the collectibility problem, in which event we assume appropriate rules will be adopted."

Department of Revenue has first say on whether AT&T owes messages tax

THE ILLINOIS Supreme Court dismissed a suit brought by Atty. Gen. Tyrone Fahner charging that American Telephone and Telegraph Com-pany (AT&T) has never filed a state messages tax return or paid the tax. Fahner sought a court dec-laration that AT&T is liable for the tax and must pay it in the future as well as for past years as "deemed appropriate." In its October 21 ruling the Supreme Court upheld an earlier circuit court dismissal of the case.

AT&T argued that since its revenues are de-rived from interstate services, they are exempt from this tax and that Illinois Bell Telephone Company is the AT&T subsidiary which provides message services in Illinois and pays the messages tax. AT&T noted that the Department of Reve-nue had never made an assessment of AT&T's messages tax liability or taken the necessary ac-tions preliminary to filing a law suit. A prelimi-nary audit of AT&T was begun by the depart-ment in April 1980 but was "suspended" in

30/'January 1982/Illinois Issues

August after the trial court dismissed the attor-ney general's complaint because the state had in-voked its administrative remedy by beginning the audit. The attorney general, AT&T contended, "is improperly trying to bypass the statutory scheme for enforcement of the Act by challenging AT&T's position directly in court instead of following prescribed administrative procedures."

the attorney general's position was that he "has the inherent authority to maintain this action on behalf of the People of the State and to seek a declaration that AT&T is a taxpayer under the Act." The attorney general contended that once this threshhold question is determined by the courts, the Department of Revenue can then proceed administratively. A court declaration on the question before administrative proceedings are initialed would save time, the attorney general argued.

In the high court's decision. Justice Howard C. Ryan pointed out that ". . . in revenue cases it islhe rule, applying general equitable principles, that relief by way of declaratory judgment is not available if the statute provides an adequate remedy a law." In this case, Ryan stated, "The legislature. . .has provided in a detailed way for the assessment and collection of the messages tax.. .including a review of all final administrative decisions of the Department of Revenue by the courts under the Administrative Review Act (Ill. Rev. Suit. 1979, ch. 110. sec. 264 el seq.)." These administrative remedies, the high court ruled, must be exhausted before the matter can be brought to the courts, thus precluding the declaratory judgment sought by the attorney general.

Although conceding that time might be saved by first obtaining a declaratory judgment, Ryan said that this possibility could not justify taking an action which would "oust the Department of Revenue from the jurisdiction conferred upon it by statute."

Due process and 'just cause'

DENYING licensed harness racing drivers access to racetrack premises because of indictment by a grand jury on bribery charges was ruled constitutional by the Illinois Supreme Court September 30. In Robert i. Phillips v. Robert H. Graham I Bernard Scott v. Larry Cassavant el ul.. Phillips anil Scott, both harness racing drivers and owners, had previously applied for and received injunctions which burred the racetrack owners atrd the Illinois Racing Board from en-forcing an order excluding Phillips and Scott from the track.

The drivers claimed that section 9e of the Illinois Horse Racing Act, which authorizes licensed operators io be excluded from the tracks by racing organizers for "just cause," violated their rights to due process and was an unconstitutional delegation of legislative authority to private persons.

In the court's ruling, Justice Daniel P. Ward stated that the Racing Board and racetrack owners had "just cause to exclude the plantiffs." Allowing people under indictment for bribery to participate in racing "can only serve to provoke public suspicion and criticism and to reduce the substantial revenues derived by the state from racing," he said.

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