SIERRA CLUB et al., Petitioners-Appellants, v. ILLINOIS POLLUTION CONTROL BOARD et al., Respondents-Appellees (United States Environmental Protection Agency, Respondent).
No. 3-09-0120
Third District
August 24, 2010
1012
JUSTICE LYTTON delivered the opinion of the court; CARTER, J., specially concurring; WRIGHT, J., concurring in part and dissenting in part.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and John P. Schmidt (argued), Assistant Attorney General, of counsel), for respondents Pollution Control Board and Environmental Protection Agency.
Janaki Nair (argued) and Brian J. Meginnes, both of Elias, Meginnes, Riffle & Seghetti, P.C., of Peoria, and Claire Manning, of Brown, Hay & Stephens, LLP, of Springfield, for respondent Peoria Disposal Company.
JUSTICE LYTTON delivered the opinion of the court:
Peoria Disposal Company (PDC) filed a petition with the Illinois Pollution Control Board (Board) to delist residue resulting from the treatment of electric arc furnace dust (EAFD) as a hazardous waste for disposal purposes. The Board issued an order granting PDC‘s petition. Sierra Club and Peoria Families Against Toxic Waste (collectively referred to as the opposition groups) seek reversal of the Board‘s order, arguing that the Board erred in (1) failing to consider the factors set forth in
BACKGROUND
In 1989, the Illinois Environmental Protection Agency (IEPA) issued a permit to PDC to operate a waste stabilization facility (WSF) near Peoria, Illinois, for the storage and treatment of hazardous and nonhazardous waste. On April 25, 2008, PDC filed a delisting adjusted standard petition under
On June 12, 2008, IEPA filed a response generally supporting the petition. The Board conducted a public hearing on PDC‘s petition on August 18, 2008. PDC presented two witnesses at the hearing. PDC‘s first witness was Laura Curtis, a senior environmental engineer for RMT, Inc., an environmental energy and engineering firm that provides consulting services to businesses like PDC. PDC retained her to evaluate the new process it developed for stabilizing EAFD waste. She summarized the delisting process. She also testified about the chemical process involved in stabilizing EAFD waste and the tests she
PDC‘s next witness was Ajit Chowdhury, a chemical engineer. He testified that PDC hired him to develop a new technology to stabilize EAFD, which he did. He described the chemical process involved in stabilizing EAFD. He testified that the process he created permanently stabilizes the EAFD.
Twenty-seven other individuals presented public comments at the hearing. Some of those individuals were members of the opposition groups, who expressed concerns about the delisting petition. After the hearing ended, the Board accepted written public comments. Many written public comments came from members of the opposition groups. In addition to the public comments, IEPA issued a recommendation, asking the Board to grant PDC‘s delisting petition.
On January 8, 2009, the Board issued a 103-page opinion and order granting PDC‘s delisting petition subject to several conditions. In re RCRA Delisting Adjusted Standard Petition of Peoria Disposal Co., Ill. Pollution Control Bd. Op. AS 08—10 (January 8, 2009) (hereinafter Board Order). In its summary, the Board stated:
“Based on a thorough review of this record, the Board finds that PDC has met the legal tests for delisting under
Section 28.1 of the Environmental *** Protection Act andSection 720.122 of the Board‘s hazardous waste regulations ***. PDC has demonstrated that (1) the treatment residue does not meet any of the criteria under which K061 EAF dust was listed as hazardous waste; (2) there is no reasonable basis to believe that factors other than those for which the K061 waste was listed warrant retaining the treatment residue as a hazardous waste; and (3) the treatment residue exhibits no characteristics of hazardous waste. The scientific evidence presented to the Board shows that the treatment residue meeting the Board‘s designated delisting levels does not pose a substantial present or potential threat to human health or the environment when considering all of the relevant factors.” Board Order, Ill. Pollution Control Bd. Op. AS 08—10, at 2.
The Board imposed several conditions upon PDC, including (1) requiring analytical proof that every batch of EAFDSR leaving PDC‘s facility does not contain chemical concentrations in excess of those found to be safe, (2) adding dioxins and furans to the constituents for which PDC will have to test, (3) tightening the description of disposal facilities that may receive delisted treatment residue, and (4) narrowing the instances when PDC can alter its stabilization process without
In its order, the Board considered many concerns raised in public comments. One of those concerns was whether reopener language used in delistings granted by the United States Environmental Protection Agency (USEPA) should be included in PDC‘s delisting. The Board found that USEPA reopener language was “unnecessary here to ensure protection of human health and the environment.” Board Order, Ill. Pollution Control Bd. Op. AS 08—10, at 77. The Board explained that “Illinois’ comprehensive environmental regulations, supplemented by corrective action and injunctive authorities under the Act, provide the ability to promptly detect and remedy problems of the sort the reopener is designed to address.” Board Order, Ill. Pollution Control Bd. Op. AS 08—10, at 78. The Board further found that Illinois’ system of environmental governance does not lend itself to reopener language. Board Order, Ill. Pollution Control Bd. Op. AS 08—10, at 78.
Next, the Board addressed concerns raised by the opposition groups that PDC did not provide sufficient evidence to satisfy the factors set forth in
Next, the Board considered the opposition groups’ concern that PDC will need permit modifications if the adjusted standard is granted. PDC responded that it conferred with IEPA and “‘confirmed that no permits or permit modifications will be required if the delisting is granted’ because PDC‘s current permit is ‘sufficient to cover PDC‘s operations in treating the EAFDSR after delisting.‘” Board Order, Ill. Pollution Control Bd. Op. AS 08—10, at 85. Based on PDC‘s response that no permit modifications were necessary, the Board found the opposition groups’ concern unfounded. Board Order, Ill. Pollution Control Bd. Op. AS 08—10, at 86.
Finally, the Board addressed the opposition groups’ argument that PDC needed local siting approval because the proposed delisting “‘would create a new pollution control facility.‘” The Board found that local siting approval was “not a prerequisite to the Board grant-
On February 13, 2009, the opposition groups filed a petition for review of the Board‘s January 8, 2009, order.
I. Standing
PDC and the Board argue that the opposition groups lack standing to challenge the Board‘s order in this case because they do not fall within any of the groups identified in
Whether the opposition groups have standing is a question of law that we review de novo. Malec v. City of Belleville, 384 Ill. App. 3d 465, 468, 891 N.E.2d 1039, 1042 (2008).
“Any party to a Board hearing, any person who filed a complaint on which a hearing was denied, any person who has been denied a variance or permit under this Act, any party adversely affected by a final order or determination of the Board, and any person who participated in the public comment process under subsection (8) of Section 39.5 of this Act [the Clean Air Act permit program] may obtain judicial review, by filing a petition for review within 35 days from the date that a copy of the order or other final action sought to be reviewed was served upon the party affected by the order or other final Board action complained of. *** Review of any rule or regulation promulgated by the Board shall not be limited by this section but may also be had as provided in Section 29 of this Act.”
415 ILCS 5/41(a) (West 2008) .
The parties agree that the opposition groups were not parties in the Board proceeding and do not fit within any other category of persons identified in section 41(a). They disagree, however, about
It is well established that the Board serves both quasi-judicial and quasi-legislative functions. Environmental Protection Agency v. Pollution Control Board, 86 Ill. 2d 390, 399, 427 N.E.2d 162, 166 (1981); Environmental Protection Agency v. Pollution Control Board, 308 Ill. App. 3d 741, 747, 721 N.E.2d 723, 727 (1999) (Swenson Spreader Co.). Quasi-legislative functions include promulgating rules and regulations and placing conditions on variances. Swenson Spreader Co., 308 Ill. App. 3d at 747, 721 N.E.2d at 727. Many aspects of ruling on a petition for an adjusted standard involve quasi-legislative determinations. Swenson Spreader Co., 308 Ill. App. 3d at 748, 721 N.E.2d at 728. “Quasi-legislative determinations are exercises of the Board‘s rule-making powers.” Swenson Spreader Co., 308 Ill. App. 3d at 747, 721 N.E.2d at 728.
PDC and the Board contend that the Board‘s decision was not a legislative or quasi-legislative determination but, rather, an adjudicatory determination, pursuant to
Here, the Board‘s granting of PDC‘s petition created a rule or regulation specific to PDC, particularly since the Board imposed
II. Section 27(a) of the Act
The opposition groups argue the Board failed to fully and properly consider the factors set forth in section 27(a) of the Act when it granted PDC‘s petition.
We review this issue under a manifest weight of the evidence standard. See Swenson Spreader Co., 308 Ill. App. 3d at 748, 721 N.E.2d at 728.
“In promulgating regulations under this Act, the Board shall take into account the existing physical conditions, the character of the area involved, including the character of surrounding land uses, zoning classifications, the nature of the existing air quality, or receiving body of water, as the case may be, and the technical feasibility and economic reasonableness of measuring or reducing the particular type of pollution.”
415 ILCS 5/27(a) (West 2008) .
The Illinois Supreme Court has held that this section requires the Board to “consider” or “weigh carefully” the factors set forth in section 27(a) when adopting a regulation; it does not require the Board to make a determination, based on evidence in the record, that the delisting complies with the factors before promulgating it. See Granite City Division of National Steel Co. v. Illinois Pollution Control Board, 155 Ill. 2d 149, 181, 613 N.E.2d 719, 733-34 (1993). The court explained: “Rather than imposing a specific evidentiary burden on the Board ***, section 27(a) provides general standards to guide the Board in the exercise of its broad authority to ensure that the regulations adopted by the Board are reasonable.” Granite City, 155 Ill. 2d at 182, 613 N.E.2d at 734; see also Shell Oil Co. v. Pollution Control Board, 37 Ill. App. 3d 264, 275, 346 N.E.2d 212, 222 (1976) (“the legislature intended the Board‘s obligation under section 27 to be a flexible one and a matter of Board discretion, and did not intend by that section to impose a specific evidentiary burden on the Board“).
Although not required to do so, the Board specifically addressed the section 27(a) factors, including the character of the area involved and the technical feasibility and economic reasonableness of measuring or reducing the EAFD. The Board responded to many of the concerns raised in public comments regarding the location of the facility, its effect on drinking water and potential air emissions that may
III. Permit Modifications
The objectors next contend that the Board erred in granting the delisting petition because it was incomplete. They argue that the petition should have addressed what permit modifications the facility will need in the future. PDC and the Board respond that its rules governing delisting do not require PDC to address potential permit modifications and that alternative measures exist to protect against changes that might occur in the future.
Because this ruling involves the Board‘s technical expertise and the interpretation of its rules, we will overturn the Board‘s decision only if it is arbitrary and capricious. See Swenson Spreader Co., 308 Ill. App. 3d at 747-48, 721 N.E.2d at 728.
The Board has adopted rules setting forth the requirements that must be contained in a petition to delist. See
It is the province of IEPA, not the Board, to grant permits. See
IV. Local Siting Approval
The opposition groups argue that PDC was required to obtain local siting approval, pursuant to
We review this issue under a manifest weight of the evidence standard. See Swenson Spreader Co., 308 Ill. App. 3d at 748, 721 N.E.2d at 728.
Here, the actions proposed by PDC do not fit the definition of a new pollution control facility. PDC filed its delisting petition so that it could process EAFD and turn it into EAFDSR, a nonhazardous product. PDC is not seeking an expansion beyond the boundaries of its current WSF or adjoining landfill. Additionally, PDC is not asking to deal with special or hazardous waste for the first time. The facility is already permitted to and does treat hazardous waste. Furthermore, after treatment, EAFDSR is not a hazardous waste. PDC‘s petition for an adjusted standard does not contemplate the creation of a “new pollution control facility” as that term is defined in section 3.330 of the Act. The Board properly found that local siting approval was not necessary.
We also reject the opposition groups’ contention that PDC is operating a transfer station. The WSF is a facility designed to treat waste. A transfer station does not treat waste but merely stores it temporarily or consolidates it for further transfer.
Nevertheless, the opposition groups suggest that PDC will be transporting all of its waste to off-site facilities in the future and thus become a transfer station. However, this is not the issue in this case. The Board determined that the issue before it was not the legal interpretation of terms such as “new pollution control facility” and “transfer station” and how they might be applied. Board Order, Ill. Pollution Control Bd. Op. AS 08—10, at 86. Rather, the issue was whether the delisting petition could be allowed. We agree. The Board correctly found that the petition should be granted.
V. Reopener Language
Finally, the opposition groups argue that the Board should have required reopener language as a condition to granting PDC‘s petition.
Because this ruling involves the Board‘s technical expertise and interpretation of the Board‘s rules, we will overturn the Board‘s deci-
When the USEPA grants delistings, its orders often contain “reopener language.” See
In Illinois, IEPA and state and local officials have broad authority to take action to protect human health and the environment when a potentially hazardous or dangerous condition exists. Pursuant to
We find that reopener language is not only unnecessary but futile based on Illinois’ system of environmental governance. Unlike the federal system, where USEPA is responsible for both creating and enforcing environmental regulations, in Illinois, the responsibility for environmental regulation and enforcement is divided between IEPA and the Board. See
VI. Conclusion
We affirm the order of the Illinois Pollution Control Board.
Affirmed.
JUSTICE CARTER, specially concurring.
It is my conclusion that the opposition groups do not have standing to bring the instant appeal. I would dismiss this appeal, which has the effect of affirming the order of the Illinois Pollution Control Board. See People v. Griffith, 212 Ill. 2d 57, 57, 58, 816 N.E.2d 353, 354 (2004) (the effect of the dismissal of an appeal is an affirmance of the decision under review). Thus, I concur in the resulting judgment of the lead decision to affirm.
Under
“(a) After adopting a regulation of general applicability, the Board may grant, in a subsequent adjudicatory determination, an adjusted standard for persons who can justify such an adjustment consistent with subsection (a) of Section 27 of this Act. *** The rule-making provisions of the Illinois Administrative Procedure Act and Title VII of this Act shall not apply to such subsequent determinations.
***
(g) A final Board determination made under this Section may be appealed pursuant to Section 41 of this Act.”
415 ILCS 5/28.1(a) (West 2008) .
Peoria Disposal Company (PDC) contends that the opposition groups lack standing to appeal the Board‘s decision to grant PDC the adjusted standard. PDC argues that section 41 of the Act governs appeals of Board decisions regarding adjusted standards, and that the opposition groups do not fit into any of the categories set forth in section 41 of those who may appeal such decisions of the Board. The opposition groups disagree. They maintain that the authority to appeal Board decisions granting an adjusted standard is found in section 29 of the Act because, they argue, the decision to grant an adjusted standard is classified as a rule or regulation. Further, they argue that they are included within the broader language of section 29 of those who may petition for review of Board rules or regulations.
Section 29 allows for review of rules and regulations promulgated by the Board by petition for review under section 41. The categorization of who may petition for review is broader under section 29 than under section 41.
The Board‘s decision to grant PDC an adjusted standard was authorized by section 28.1 of the Act.
The opposition groups argue that this court should read sections 41 and 29 together, to allow the groups standing. Section 41 does reference section 29 and specifically states that the limitations in section 41 as to who may petition for review of an adjudicatory decision shall not apply to petitions for review of rules and regulations as set forth in section 29. However, that leads back to the same question of whether a decision under section 28.1 of the Act is an adjudicatory decision or a rule-making decision. As set forth above, section 28.1 indicates that decisions made under that section are adjudicatory decisions and that the rule-making provisions of Title VII do not apply to these decisions. Thus, section 29 has no applicability to the petition for review brought by the opposition groups.
The lead opinion cites Environmental Protection Agency v. Pollution Control Board, 308 Ill. App. 3d 741, 721 N.E.2d 723 (1999) (Swenson Spreader Co.), to support its conclusion that the Board‘s decision in this matter was a quasi-legislative determination and that section 29 provided the opposition groups with standing to challenge that determination. In Swenson Spreader Co., the court was called upon to decide what standard of review to apply to the Board‘s decision. Swenson Spreader Co., 308 Ill. App. 3d at 747, 721 N.E.2d at 727. The court recognized that the Board serves both quasi-legislative and quasi-
Finally, as the opposition groups appear to concede, the opposition groups do not fit within the categories of those who may petition an adjudicatory order of the Board under section 41. The opposition groups were not parties to the proceedings below and, thus, do not fit within the first or fourth category in section 41. See Lake County Contractors Ass‘n v. Pollution Control Board, 54 Ill. 2d 16, 19-21, 294 N.E.2d 259, 261-62 (1973) (concluding that to come within the fourth category of section 41, one who seeks review must have been a party to the Board proceeding and rejecting contention that “party” means “person“). The opposition groups did not file a complaint on which a hearing was denied; they were not denied a variance or permit, nor was this case brought under
In addition, the Code provides for intervention in adjudicatory proceedings.
For all of the above reasons, I would dismiss this appeal due to a lack of standing, and therefore, I concur in the judgment of the lead decision to affirm the order of the Illinois Pollution Control Board.
JUSTICE WRIGHT concurring in part and dissenting in part:
I concur with that portion of Justice Lytton‘s opinion that concludes the opposition groups have standing to bring this appeal.
Recently, the Board has been extremely reluctant to allow intervention in an adjusted standard proceeding because there are other opportunities for either a person or a group to participate in an adjusted standard proceeding without formal intervention. In fact, after reviewing all cases requesting the Board to grant an adjusted standard since 1988, it appears to me that the Board has denied every request for intervention in an adjusted standard proceeding. See In re Petition of Peoria Disposal Co. for an Adjusted Standard From 35 Ill. Adm. Code 721. Subpart D, Ill. Pollution Control Bd. Op. AS 91—03 (March 11, 1993) (hereinafter Peoria Disposal); In re Petition of Midwest Generation, LLC, Waukegan Generating Station for an Adjusted Standard From 35 Ill. Adm. Code 225.230, Ill. Pollution Control Bd. Op. AS 07—03, at 6 (April 17, 2008) (order denying petition to intervene); In re Midwest Generating Station for an Adjusted Standard From 35 Ill. Adm. Code 225.230, Ill. Pollution Control Bd. Op. AS 07—04, at 6.
In its decision in AS 07—04, the Board noted that participants in an adjusted standard proceeding are allowed to make oral statements under oath, subject to cross-examination, pursuant to section 101.628. Midwest Generation, Ill. Pollution Control Bd. Op. AS 07—04, at 6. In the same order, the Board also noted that the Board may also grant leave to file an amicus curiae brief pursuant to section 101.110(c). Midwest Generation, Ill. Pollution Control Bd. Op. AS 07—04, at 6. Consequently, the Board stated:
“[T]he Board finds that participation by ELPC [Environmental Law & Policy Center] through oral comments at the hearing and the filing of an amicus curiae brief will address any potential prejudice suffered by ELPC and the membership of ELPC. Therefore, the Board denies the motion to intervene.” Midwest Generation, Ill. Pollution Control Bd. Op. AS 07—04, at 6.
I note that the Board has not directed this court to any previous Board decision which allows a person or group to intervene in an adjusted standard proceeding. Moreover, PDC has successfully resisted an intervenor‘s request in the past. See Peoria Disposal, Ill. Pollution Control Bd. Op. AS 91—03. In that case, the docket shows that the hearing officer denied Envirite‘s motion to intervene but allowed En-
Based on this history, in my opinion, the fact that the opposition groups did not initiate an inevitably futile request for intervention should have no significance on the issue of standing. Consequently, I respectfully suggest that the language adopted in section 41 of the Act, which does not limit judicial review of a rule or regulation to those categories of persons set out in section 41, demonstrates the legislative intent to allow persons adversely affected by an adjusted standard to seek judicial review pursuant to section 29 of the Act regardless of party status.
If standing to seek judicial review of the Board‘s final determination granting an adjusted standard is solely dependent on party status, then the Board can successfully truncate judicial review of all final orders allowing an adjusted standard by simply developing an unwritten policy to deny all nonpetitioners’ requests to intervene. Certainly, this was not the intention of the legislature nor the intention of the Board when denying the previous requests to intervene in other adjusted standard proceedings.
I respectfully suggest that the language of section 28.1(a) declaring the “rule-making provisions of the Illinois Administrative Procedure Act and Title VII of the Act” inapplicable to an adjusted standard proceeding simply means that an individual adjusted standard petitioner is relieved of the necessity for publication and cost study requirements mandated when the Board is enacting general regulations rather than individual adjusted standards.
Burden of Proof
Here, PDC requested the Board to “delist stabilized residue generated from treatment of K061 electric arc furnace [EAF] dust at PDC‘s waste stabilization facility [WSF] in Peoria County.” Presumably based on the toxicity of K061, after first considering the section 27(a) factors when adopting the general regulation, the Board itself did not define “the level of justification” for future adjusted standards. In this context, a person may request the Board to create a new individualized regulation designated as an “individual adjusted standard” under
“The burden of proof in an adjusted standard proceeding is on the petitioner. A petitioner must justify an adjusted standard consistent with Section 27(a) of the [Environmental Protection] Act.” (Emphasis added.)
35 Ill. Adm. Code §104.426 .
This appears to be a threshold requirement before the Board goes on to consider the other four factors for justification set out in section 104.426(a). Contrary to this regulation, the Board‘s order in this case states:
“[T]here is no threshold of evidence that the adjusted standard petitioner must meet with respect to those [Section 27(a)] factors.” Board Order, at 81.
Further, the Board‘s order granting the adjusted standard contains the heading “Burden of Proof” (Board Order, Ill. Pollution Control Bd. Op. AS 08—10, at 31). Within this section of the Board‘s order, the Board does not acknowledge or apply section 104.426 of Title 35 of the Illinois Administrative Code (Code).
In this appeal, we are called upon to determine whether the Board correctly decided, as a matter of law, that PDC had “no threshold of evidence” to meet with respect to the section 27(a) factors. When addressing this issue, this court must apply a de novo standard of review when construing the language of a regulation such as section 104.426 of Title 35 of the Code. Peoria Disposal Co. v. Illinois Pollution Control Board, 385 Ill. App. 3d 781 (2008), appeal denied, 231 Ill. 2d 654 (2009).
The Board‘s regulation places the burden of proof squarely on the shoulders of the petitioner. Hence, the individual adjusted standard petitioner must introduce a sufficient threshold of evidence to satisfy the section 27(a) factors. Yet, the Board‘s order states that, as to the section 27(a) factors, PDC had “no threshold of evidence” to meet in this case.
I conclude that the Board improperly relieved PDC of its burden of proof in this case by concluding that PDC had “no threshold of evidence” to meet with regard to the section 27(a) factors contrary to the mandates of section 104.426.
Quasi-legislative vs. Quasi-judicial Standards of Review
Before considering the other issues raised in the opposition groups’ appeal, it is important to determine what standard of review to apply to the separate components of the Board‘s decision in this case. In the Swenson Spreader Co. case, the court stated:
“Quasi-legislative determinations are exercises of the Board‘s rule-making powers. The supreme court has instructed that ‘[w]hen an agency has acted in its rulemaking capacity, a court will not substitute its judgment for that of the agency.’ Granite City, 155 Ill. 2d 149, 162 (1993). For this reason, the Board‘s quasi-legislative decisions will not be overturned unless they are arbitrary and capricious. Granite City, 155 Ill. 2d at 162.
The Board acts in a quasi-judicial capacity when it determines rights or liabilities in an individual case based on the particular facts of the case. *** A reviewing court will uphold a quasi-judicial determination unless it is contrary to the manifest weight of the evidence. *** When a case involves both quasi-legislative and quasi-judicial functions, the reviewing court should apply both standards of review. ***
There are three methods by which an entity can seek relief from a rule of general applicability: variances, adjusted standards, and site-specific regulations. Adjusted standards are similar to variances in certain respects. In proceedings for both variances and adjusted standards, the Board‘s decisions must be supported by a written opinion with specific findings of fact. See
415 ILCS 5/28.1(d) ,35(a) (West 1996) . Proceedings for both a petition for a variance and a petition for an adjusted standard are adversarial in nature ***. Furthermore, the Act deems petitions for an adjusted standard ‘adjudicatory’ proceedings.415 ILCS 5/28.1 (West 1996) . This being said, many aspects of a ruling on a petition for an adjusted standard involve the Board‘s technical expertise and interpretation of rules, which are quasi-legislative determinations. [Citations.]” Environmental Protection Agency v. Pollution Control Board, 308 Ill. App. 3d 741, 747-49 (1999) (Swenson Spreader Co.).
The quasi-legislative nature of an individual adjusted standard is confirmed by the Board‘s regulation which states that the effect of an adjusted standard creates an environmental regulation.
Section 28.1
The appellants challenge the Board‘s order because the order is conclusory and does not contain specific findings of fact based on the evidence presented to the Board by PDC. In response, PDC relies on Granite City after arguably conceding that the Board acted in a quasi-legislative capacity when granting the adjusted standard in this case. It is important to note that PDC asks this court to deny standing to the opposition groups because the Board was acting in a quasi-judicial capacity when adopting this adjusted standard, yet contends the Board acted in a quasi-legislative capacity for purposes of arguing that the Board did not need to state specific findings to support its conclusions under sections 28.1 and 27(a) of the Act. In Granite City, our supreme court stated:
“When acting in its quasi-legislative capacity, the Board has no burden to support its conclusions with a given quantum of evidence.” Granite City, 155 Ill. 2d at 180.
I respectfully suggest that PDC‘s reliance on Granite City, 155 Ill. 2d 149, has misdirected this court. PDC has overgeneralized the holding in Granite City for several reasons.
First, Granite City did not involve an adjusted standard request as does the case at bar. In Granite City, our supreme court only considered the Board‘s statutory obligation when first creating substantive environmental regulations, rather than the Board‘s subsequent regulatory obligations when considering an individual adjusted standard from a regulation of general applicability. In that limited context of enacting general regulations, our supreme court held that the Board is not required by statute to recite a specific quantum of proof to support its conclusions. This holding has no application to the Board‘s procedures when deciding an individual adjusted standard petition.
In fact,
“After adopting a regulation of general applicability, the Board may grant, in a subsequent adjudicatory determination, an adjusted standard for persons who can justify such an adjustment consistent with subsection (a) of Section 27 of this Act.” (Emphasis added.)
415 ILCS 5/28.1 (West 2008) .
The Board‘s order in the case at bar does not contain specific findings or reasoning concerning the section 27(a) factors in the context of PDC‘s evidence submitted to the Board. Therefore, I agree with the appellants’ view that the Board‘s order in this case cannot be upheld in the absence of the factual findings and reasons required by section 28.1 of the Act.
Section 27(a) Factors
Arguably, the Board‘s failure to include specific findings of fact with regard to the section 27(a) factors may be directly related to an absence of such evidence introduced into the record by PDC.
“In promulgating regulations under this Act, the Board shall take into account the existing physical conditions, the character of the area involved, including the character of surrounding land uses, zoning classifications, the nature of the existing air quality, or receiving body of water, as the case may be, and the technical feasibility and economic reasonableness of measuring or reducing the particular type of pollution. The generality of this grant of authority shall only be limited by the specifications of particular classes of regulations elsewhere in this Act.”
415 ILCS 5/27(a) (West 2008) .
In this case, there are two geographic areas involved or potentially affected by operations allowed by the adjusted standard. The first area potentially affected is the expanding residential neighborhood in Peoria near PDC‘s WSF. After the K061 is generated by PDC‘s customers, the waste is delivered to Peoria, where PDC treats the K061 with a “new” chemical process and stores the K061 above ground and outdoors before the waste is verified as EAFDSR. For the K061 unsuccessfully treated, PDC will transfer K061 to a hazardous landfill for disposal. After verification, or in other words, successful treatment, PDC transfers EAFDSR from Peoria to Tazewell County. Thus, the second “involved” area is located in Tazewell County, where the successfully treated K061, now labeled EAFDSR, will be disposed according to the conditions attached to the adjusted standard.
Although the Board stated that it “carefully considered the information in this record in view of the Section 27(a) factors, as required by Section 28.1(a) and finds that the delisting may be granted consistent with those factors,” the Board does not state any “facts and reasons” which caused the Board to conclude PDC‘s evidence satisfied PDC‘s burden of proof to justify the individual adjusted standard as required by section 28.1 of the Act. The absence of any specific “facts and reasons” concerning the section 27(a) factors renders the Board‘s decision arbitrary and capricious.
Board‘s Decision Is Arbitrary and Capricious
In Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462 (1988), our supreme court provided the following guidelines for this court to apply when determining whether an administrative agency‘s action is arbitrary and capricious. Our supreme court held:
“Agency action is arbitrary and capricious if the agency: (1) relies on factors which the legislature did not intend for the agency to consider; (2) entirely fails to consider an important aspect of the problem; or (3) offers an explanation for its decision which runs counter to the evidence before the agency, or which is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Greer, 122 Ill. 2d at 505-06, citing Motor
Vehicle Manufacturers Ass‘n of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 77 L. Ed. 2d 443, 458, 103 S. Ct. 2856, 2866-67 (1983).
In this case, I focus on the second and third factors set out by our supreme court. First, the Board failed to consider an important aspect of the problem, namely, whether PDC met the burden of proof assigned to an individual adjusted standard petitioner by section 104.426 of the Board‘s own regulations. Second, the Board‘s statement, that it carefully considered the section 27(a) factors in light of the record, offers an explanation that cannot be reconciled with the record by this court because the Board‘s order simply does not contain written findings or identify any substantive evidence supporting the Board‘s conclusions for this court to reconcile.
In my view, the absence of any findings or conclusions stating that the individual adjusted standard would not result in environmental or health effects more adverse than those considered by the Board when originally adopting the general regulation consistent with the section 27(a) factors, renders the Board‘s ruling purely arbitrary. For the reasons discussed above, I conclude the Board‘s decision was arbitrary and capricious, and must be reversed.
The Basis of the Petition
In addition to applying the incorrect burden of proof concerning the section 27(a) factors, the Board does not make any findings concerning the basis of the petition pursuant to either subsection (a) or (b) of section 720.122. The carelessness of the Board‘s approach is evident in the Board‘s ultimate, incomplete finding set out below:
“Based on all the foregoing, the Board finds that PDC has [blank in original] its burden of proof under the RCRA regulations for receipt of a delisting. See
35 Ill. Adm. Code 720.122(a) ,(b) ,(d) ,(h) ,(i) ,(p) .” Board Order, Ill. Pollution Control Bd. Op. AS 08—10, at 57.
Obviously, this finding set out by the Board, on page 57 of its order, does not state whether PDC “satisfied” or “did not satisfy” its burden of proof in any context.
In the individual adjusted standard petition, PDC requested the Board to “delist stabilized residue generated from treatment of K061 electric arc furnace [EAF] dust at PDC‘s waste stabilization facility [WSF] in Peoria County.” On page 7 of the Board‘s order, the Board acknowledges “PDC addresses both subsections (a) and (b) of Section 720.122.” Board Order, Ill. Pollution Control Bd. Op. AS 08—10, at 7. However, the Board does not specify on what basis the individual adjusted standard was granted. The only finding adopted by the Board regarding the regulatory basis for the petition states, “[T]he Board
I point out that each paragraph of
The Board does not address whether PDC satisfied their burden of proof with regard to subparagraph (a) alone, subparagraph (b) alone, or met some of the requirements set out in subparagraph (a) and others set out in subparagraph (b) of section 720.122 of Title 35 of the Code.
At the very least, this court should now remand the matter to the Board for specific findings with regard to the separate requirements of section 720.122(a) or (b) before deciding whether those findings are supported by the record or may conflict with previous precedent from this court.
New Pollution Control Facility
PDC‘s EAFDSR involves a new chemical process recently developed for PDC long after it received a permit for its WSF. The Board‘s order acknowledges that PDC has never managed EAFDSR in a landfill prior to the handful of demonstration trials related to this petition. Board Order, Ill. Pollution Control Bd. Op. AS 08—10, at 20. Similarly, PDC has never transferred the EAFDSR to another landfill for disposal. Finally, EAFDSR has never been disposed in a Class D landfill and commingled with other waste accepted by the Class D land-based unit.
In the past 20 years, PDC has merely accepted K061 dust from 10 separate steel producers for disposal on site. However, before disposing of the waste in its hazardous landfill, PDC managed the waste for the sole purpose of placing it in PDC‘s Class C landfill by treating it in PDC‘s containment building and waste stabilization facility (WSF). After treating and temporarily storing K061 indoors in the WSF, a
PDC‘s petition, and the Board‘s order, assumes some portion of the K061 waste delivered to PDC will never meet the requirements for delisting the purported EAFDSR after initial treatment and retreatment by PDC. In this event, the Board requires PDC to dispose of K061 waste in a Class C landfill. However, PDC no longer has the capacity to dispose of K061 waste in its Class C landfill and must now transfer unsuccessfully treated K061 waste to a different hazardous landfill for disposal. Thus, for the first time PDC will act as a transfer station by transferring nondelisted, hazardous K061 waste off site. It is also important to note that PDC‘s petition states that PDC should not be considered the “generator” of the EAFDSR waste, presumably for purposes of section 720.122(a), until after the treated waste meets the adjusted standard criteria. See Board Order, Ill. Pollution Control Bd. Op. AS 08—10, at 5.
I conclude that PDC‘s new, first-time operation as an above ground storage yard and transfer station for future off-site disposal falls squarely within the definition of a new pollution control facility that the County must approve for siting regardless of whether the K061 waste is hazardous or delisted as nonhazardous EAFDSR.
Summary
The undeniable reality is that PDC No. 1 Landfill presumably has now reached capacity at the time of this appeal. I understand the steel manufacturers in Illinois need a cost-effective method to dispose of their Illinois-generated waste. Yet, 60% of the waste delisted for PDC originates with out-of-state customers. Perhaps, these out-of-state generators may have hazardous landfills available in their home states. Nonetheless, due to the conditions attached to PDC‘s adjusted standard, the K061 hazardous waste delivered to PDC from out-of-state sources will continue to be delivered to PDC and then remain in Illinois for perpetuity. The individual adjusted standard thereby ultimately reduces the availability of space in Illinois landfills for Illinois manufacturers.
The individual adjusted standard not only allows PDC to continue to accept K061 waste generated by outside sources, but now also al-
In summary, I agree that the opposition groups have standing to bring this appeal because the adjusted standard is a quasi-legislatively created environmental regulation. I conclude the Board‘s decision is arbitrary and capricious because the Board made no factual findings regarding the requirements of either
Alternatively, I respectfully suggest the Board‘s order cannot be confirmed on this record and would remand the matter to the Board with directions to enter specific findings of fact regarding PDC‘s burden to prove the section 27(a) factors as well as the requirements of sections 720.122(a) and (b).