Sierra Club v. Illinois Pollution Control Board

No. 3-09-0120
_________________________________________________________________
Filed August 24, 2010 Corrected
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2010
SIERRA CLUB and PEORIA FAMILIES ) Petition for Review of
AGAINST TOXIC WASTE, ) Opinion and Order of the
) Illinois Pollution Control
Petitioners-Appellants, ) Board
)
v. )
)
ILLINOIS POLLUTION CONTROL )
BOARD, PEORIA DISPOSAL COMPANY, ) No. AS 08-10
ILLINOIS ENVIRONMENTAL )
PROTECTION AGENCY, )
)
Respondents-Appellees, )
)
and )
)
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY, )
)
Respondents. )
_________________________________________________________________
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 section
27(a) of the Illinois Environmental Protection Act (Act) (415 ILCS
5/27(a) (West 2008)); (2) not requiring PDC to address future
permit modifications; (3) finding that local citing approval was
2
not required; and (4) not requiring reopener language. PDC and the
Board argue that the opposition groups do not have standing to
appeal the Board’s order. We find that the opposition groups have
standing but affirm the Board’s order on the merits of the case.
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 section 28.1 of the Act
(415 ILCS 5/28.1 (West 2008)). In the petition, PDC asked the
Board to delist K061 hazardous waste, EAFD, an emission from the
production of steel in electric arc furnaces, after the EAFD is
treated and stabilized. The residue resulting from PDC’s treatment
is referred to as "electric arc furnace dust stabilized residue"
(EAFDSR).
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
3
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 performed to determine if
PDC’s process successfully removed the hazardous properties from
the waste. She concluded that PDC’s treatment of the EAFD waste
renders it nonhazardous and subject to delisting.
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 Company, Ill. Pollution Control Bd. Op. AS 08-10
4
(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 *** and Section 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
5
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 having to first petition
the Board to justify an amendment to the delisting. Board Order,
Ill. Pollution Control Bd. Op. AS 08-10, at 2.
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
6
groups that PDC did not provide sufficient evidence to satisfy the
factors set forth in section 27(a) of the Act (415 ILCS 5/27(a)
(West 2008)). 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." Board Order, Ill.
Pollution Control Bd. Op. AS 08-10, at 81. The Board then went on
to specifically discuss the location of the facility, its effect on
drinking water and potential air emissions, the technical
feasability of treating the EAFD with PDC’s new technology and the
economic reasonableness of PDC’s treatment proposal. Board Order,
Ill. Pollution Control Bd. Op. AS 08-10, at 81-85.
Next, the Board considered the opposition groups’ concern that
PDC will need permit modifications if the adjusted standard was
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
7
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 granting this delisting petition." Board Order, Ill.
Pollution Control Bd. Op. AS 08-10, at 86. The Board found that in
order to rule on the delisting petition, it was not necessary for
it to "offer legal opinions on the disputed interpretations of 'new
pollution control facility,' 'transfer station' and 'special
waste.'" Board Order, Ill. Pollution Control Bd. Op. AS 08-10, at
86.
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 section 41(a) of
the Act (415 ILCS 5/41(a) (West 2008)). The opposition groups
respond that they have standing pursuant to section 29(a) of the
Act (415 ILCS 5/29(a) (West 2008)) because they are persons
"adversely affected or threatened" by the delisting.
Whether the opposition groups have standing is a question of
law that we review de novo. Malec v. City of Belleville, 384 Ill.
8
App. 3d 465, 468, 891 N.E.2d 1039, 1042 (2008).
Section 28.1 of the Act, which governs adjusted standards,
provides that "[a] final Board determination made under this
section may be appealed pursuant to Section 41 of this Act." 415
ILCS 5/28.1(g) (West 2008). Section 41(a) of the Act provides:
"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).
Section 29(a) states: "Any person adversely affected or threatened
by any rule or regulation of the Board may obtain a determination
9
of the validity or application of such rule or regulation by
petition for review under Section 41 of this Act." 415 ILCS
5/29(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
whether the Board’s order granting PDC’s delisting constitutes a
"rule or regulation." If it does, then the opposition groups have
standing pursuant to section 29(a).
It is well established that the Board serves both quasi-
judicial and quasi-legislative functions. Environmental Protection
Agency v. Pollution Control Board (United States Steel Corp.), 86
Ill. 2d 390, 399, 427 N.E.2d 162, 166 (1981); Environmental
Protection Agency v. Pollution Control Board and The Louis Berkman
Co. d/b/a Swenson Spreader Co. ("Swenson Spreader Co."), 308 Ill.
App. 3d 741, 747, 721 N.E.2d 723, 727 (1999). 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
rulemaking powers." Swenson Spreader Co., 308 Ill. App. 3d at 747,
10
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 section 28.1(a) of the Act.
Section 28.1(a) provides: "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
the Act." 415 ILCS 5/28.1(a) (West 2008). The opposition groups
respond that the Board’s order granting PDC’s delisting petition
was a regulation based on section 27 of the Act, the Board’s own
rules and the placement of the adjusted standard provisions in the
Act.
Section 27(a) provides: "The Board may adopt substantive
regulations as described in this Act. Any such regulations *** may
include regulations specific to individual persons or sites." 415
ILCS 5/27(a) (West 2008). Additionally, the Board’s rules state
that "[a]n adjusted standard has the effect of an environmental
regulation that would apply to petitioner, if granted, in lieu of
the general regulation that would otherwise be applicable to a
petitioner and the regulated community." 35 Ill. Adm. Code §
104.400 (2008). Finally, sections 27 and 28.1, which set forth the
process for obtaining an adjusted standard, are contained in Title
11
VII of the Act, which is entitled, "Regulations." 415 ILCS 5/26 et
seq. (West 2008). While section 28.1 requires the Board to conduct
an adjudicatory hearing to determine whether to grant an adjusted
standard petition, the resulting order may act as a regulation
specific to the petitioner.
Here, the Board’s granting of PDC’s petition created a rule or
regulation specific to PDC, particularly since the Board imposed
several conditions on PDC. Cf. Monsanto Co. v. Pollution Control
Board, 67 Ill. 2d 276, 290, 367 N.E.2d 684, 690 (1977) (power
granted to the Board to impose conditions on variances "is
tantamount to the quasi-legislative power to make prospective
regulations and orders"). Thus, section 29(a) applies and provides
the opposition groups with standing to challenge the Board’s order.
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.
Section 27(a) of the Act provides in pertinent part:
"In promulgating regulations under this Act, the Board
shall take into account the existing physical conditions,
12
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. Illinois 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
13
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 EAFSD. 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 result from the
delisting. Ultimately, the Board found that the delisting could be
granted "consistent with those factors." We find the Board’s
ruling on the section 27(a) factors was not against the manifest
weight of the evidence.
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
14
Spreader Co., 308 Ill. App. 3d at 747-78, 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 35 Ill. Adm.
Code. § 104.406. Those rules do not require that a petitioner
provide evidence or information regarding what permit modifications
will be necessary for the delisting.
It is the province of the IEPA, not the Board, to grant
permits. See 415 ILCS 5/4 (West 2008). Here, PDC conferred with
IEPA, and IEPA determined that no future permits would be
necessary. If IEPA later determines that permits are necessary,
IEPA must notify PDC of such and may institute proceedings to
require PDC to obtain the necessary permits. See 415 ILCS 5/31
(West 2008). Thus, safeguards are in place if future permit
modifications become necessary. For these reasons, the Board did
not err in finding that PDC’s delisting petition was complete and
should be granted.
IV. Local Siting Approval
The opposition groups argue that PDC was required to obtain
local siting approval, pursuant to section 39.2 of the Act (415
ILCS 5/39.2 (West 2008)), because the delisting creates a "new
pollution control facility." They contend that PDC has created a
new pollution control facility by accepting EAFDSR for the first
time. They further contend that PDC is transforming its facility
15
from a waste disposal facility to a waste transfer facility because
"in the very near future, none of the EAF dust treated in the waste
stabilization facility (EAFDSR) will be deposited in the PDC No. 1
Landfill."
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.
Section 39.2 of the Act requires local siting approval for new
pollution control facilities. See 415 ILCS 5/39.2 (West 2008).
The definition of a "new pollution control facility" includes (1)
"the area of expansion beyond the boundary of a currently permitted
pollution control facility," and (2) "a permitted pollution control
facility requesting approval to store, dispose of, transfer or
incinerate, for the first time, any special or hazardous waste."
415 ILCS 5/3.330(b) (West 2008). When a facility only transfers
waste, it is a "transfer station," which "accepts waste for
temporary storage or consolidation and further transfer to a waste
disposal, treatment or storage facility." 415 ILCS 5/3.500 (West
2008).
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 non-
hazardous product. PDC is not seeking an expansion beyond the
16
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. 415
ILCS 5/3.500 (West 2008). Since PDC is treating waste, it is not
operating a transfer station.
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" or "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
17
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 decision only if it is arbitrary and capricious. See
Swenson Spreader Co., 308 Ill. App. 3d at 747-78, 721 N.E.2d at
728.
When the USEPA grants delistings, their orders often contain
"reopener language." See 40 C.F.R. Part 261, App. IX (2008).
Reopener language requires a facility to report to the Regional
Administrator any data relevant to the delisted waste indicating
that any constituent is at a level higher than the delisting level.
See 40 C.F.R. Part 261, App. IX (2008). Based on such information,
the Regional Administrator may take whatever action is necessary to
protect human health or environment, including suspending or
revoking the exclusion. See 40 C.F.R. Part 261, App. IX (2008).
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 section 4(s) of the Act, IEPA "shall have
18
authority to take whatever preventive or corrective action is
necessary or appropriate *** whenever any hazardous substance or
pesticide is released or there is a substantial threat of such a
release into the environment." 415 ILCS 5/4(s) (West 2008).
Pursuant to section 42(e) of the Act, State’s Attorneys or the
Attorney General, may, at the request of IEPA, or on their own
motion, institute a civil action to enjoin or restrain violations
of the Act, any rule or regulation adopted under the Act, any
permit or term or condition of a permit or any Board order. 415
ILCS 5/42(e) (West 2008). Furthermore, section 43(a) of the Act
authorizes State’s Attorneys or the Attorney General, on the
request of IEPA or their own motion, to institute a civil action
for an immediate injunction to halt any discharge or any other
activity causing or contributing to any danger to the environment
or to the public health. 415 ILCS 5/43(a) (West 2008). Because
Illinois authorizes corrective action and injunctive relief under
the Act, reopener language like that contained in USEPA delistings
is unnecessary for delistings in this state.
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
19
divided between IEPA and the Board. See 415 ILCS 5/4 & 5/5 (West
2008). IEPA is responsible for permitting, site inspections and
enforcement actions. See 415 ILCS 5/4 (West 2008). The Board’s
duties include determining, defining and implementing environmental
control standards and conducting proceedings on complaints charging
violations of the Act, regulations or Board orders, on petitions
for variances or adjusted standards and on administrative
citations. See 415 ILCS 5/5(c) & (d) (West 2008). Once an
adjusted standard is granted by the Board, the Board no longer has
authority to take any action with respect to the facility. At that
point, IEPA is in charge of site inspections and any institute
enforcement actions that may be necessary. See 415 ILCS 5/4 (West
2008). Because the Board has no authority to initiate enforcement,
any reopener language would serve no purpose. Thus, the Board did
not err in refusing to include it in its order.
VI. Conclusion
We affirm the order of the Illinois Pollution Control Board.
Affirm.
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
20
Illinois Pollution Control Board. See People v. Griffith, 212
Ill. 2d 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 title 35, section 720.122(n), of the Illinois
Administrative Code (the Code), “Delistings that have not been
adopted by USEPA may be proposed to the Board pursuant to a
petition for adjusted standard pursuant to Section 28.1 of the
[Illinois Environmental Protection] Act [(415 ILCS 5/28.1)] and
Subpart D of 35 Ill. Adm. Code 104.” 35 Ill. Adm. Code
§720.122(n). Subpart D of Title 35, part 104, of the Code sets
forth the procedure to be followed when filing a petition for an
adjusted standard with the Pollution Control Board (the Board),
including provisions related to notice and public hearings.
Section 28.1 of the Illinois Environmental Protection Act (the
Act) grants authority to the Board to grant a petitioner an
adjusted standard. 415 ILCS 5/28.1(a) (West 2008). Section 28.1
provides:
“(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
21
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).
Title VII of the Act grants the Board the authority to adopt
rules and regulations necessary to accomplish the purposes of the
Act. In addition, Title VII of the Act sets forth statutory
guidelines for adopting rules and regulations, including
provisions for public hearings. The final section of Title VII
is section 29, entitled “Review.” 415 ILCS 5/29 (West 2008).
Section 29(a) states, “Any person adversely affected or
threatened by any rule or regulation of the Board may obtain a
determination of the validity or application of such rule or
regulation by petition for review under Section 41 of this Act.”
415 ILCS 5/29(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,
22
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 41 of the Act provides for judicial review of acts
of the Board and that judicial review shall be afforded directly
in the Appellate Court for the District in which the cause of
action arose. 415 ILCS 5/41 (West 2008). Section 41(a)
specifically delineates who may obtain judicial review of acts of
the Board: (1) “[a]ny party to a Board hearing”; (2) “any person
who filed a complaint on which a hearing was denied”; (3) “any
person who has been denied a variance or permit under this Act”;
(4) “any party adversely affected by a final order or
determination of the Board”; and (5) “any person who participated
in the public comment process under subsection (8) of Section
39.5 of this Act.” 415 ILCS 5/41(a) (West 2008). In addition
section 41(a) states, “Review of any rule or regulation
promulgated by the Board shall not be limited by this section but
23
may also be had as provided in Section 29 of this Act.” 415 ILCS
5/41(a) (West 2008).
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. Section 29(a) states
that “[a]ny person adversely affected or threatened by any rule
or regulation of the Board may obtain a determination of the
validity or application of such rule or regulation by petition
for review under Section 41 of this Act.” 415 ILCS 5/29(a) (West
2008). Thus, a determination of whether the opposition groups
have standing in this appeal hinges upon a determination of
whether a Board decision to grant an adjusted standard under
section 28.1 of the Act is an adjudicatory decision or a rule-
making decision. In other words, must the opposition groups fit
within the categories of section 41 or section 29 to have
standing to bring this appeal?
The Board’s decision to grant PDC an adjusted standard was
authorized by section 28.1 of the Act. 415 ILCS 5/28.1 (West
2008). An examination of section 28.1 indicates that this
decision is an adjudicatory decision and an appeal of such a
decision is governed solely by section 41 of the Act. Section
28.1(a) specifically states that the decision to grant an
24
adjusted standard is an “adjudicatory determination.” 415 ILCS
5/28.1(a) (West 2008). Additionally, the last sentence of
section 28.1(a) states that the rule-making provisions of “Title
VII of this Act shall not apply” to these decisions. 415 ILCS
5/28.1(a) (West 2008). Significantly, section 29, providing for
judicial review of rules and regulations, is the last section of
Title VII of the Act.
Furthermore, section 28.1(g) provides, “A final Board
determination under this Section may be appealed pursuant to
Section 41 of this Act.” 415 ILCS 5/28.1(g) (West 2008). Thus,
the statute under which the Board made the decision at issue here
directs that appeals are governed by section 41, not section 29,
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
25
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-adjudicatory functions and that different standards of
review apply to different functions. Swenson Spreader Co., 308
Ill. App. 3d at 747, 721 N.E.2d at 727. Also, the court
specifically recognized that proceedings for an adjusted standard
are adversarial in nature and, thus, are adjudicatory
proceedings. Swenson Spreader Co., 308 Ill. App. 3d at 748, 721
N.E.2d at 728. The court went on to reason that certain aspects
of a decision to grant or deny an adjusted standard are quasi-
legislative determinations, and the court should apply the
26
arbitrary and capricious standard of review to those quasi-
legislative determinations. Swenson Spreader Co., 308 Ill. App.
3d at 748-49, 721 N.E.2d at 728-29. I disagree with the lead
opinion’s conclusion that this case supports its conclusion that
a proceeding to determine whether to grant a petition for an
adjusted standard is a rule-making procedure.
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 section 39.5 of the Act
(Clean Air Act permit program). Thus, the opposition groups do
not fall within the categories of those authorized to petition
for a review of a Board’s decision to grant an adjusted standard.
In addition, the Code provides for intervention in
27
adjudicatory proceedings. 35 Ill. Adm. Code §101.402. Here, the
opposition groups did not seek leave to intervene and gain party
status in the adjudicatory proceeding before the Board. Although
the opposition groups did participate in the Board proceedings by
providing public comments, as allowed by the Code (35 Ill. Adm.
Code §§101.110, 101.628), that participation did not grant them
party status and the ability to appeal the Board’s adjudicatory
decision under section 41 of the Act (415 ILCS 5/41(a) (West
2008)).
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.
I respectfully suggest that the special concurring decision
incorrectly concludes that the Act prohibits judicial review of
an adjusted standard decision based on whether the appellant has
filed a petition to intervene with the Board. First, there is no
statutory right to intervene under the Act. The only possibility
for intervention is based on Board’s procedural rule found at
28
section 101.402(d) of Title 35 of the Code. 35 Ill. Adm. Code
§101.402(d).
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 Company for an
Adjusted Standard from 35 Ill. Adm. Code 721. Subpart D, Ill.
Pollution Control Bd. Op. AS 91--03 (Mar. 11, 1993) (hereinafter
Peoria Disposal); In re Petition of Midwest Generation, L.L.C.,
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
Petition of Midwest Generation, L.L.C., Will County Generating
Station for an Adjusted Standard from 35 Ill. Adm. Code 225.230,
Ill. Pollution Control Bd. Op. AS 07--04 at 6 (April 17, 2008)
(order denying petition to intevene) (hereinafter Midwest
Generation).
In its decision in AS 07--04, the Board noted that
participants in an adjusted standard proceeding are allowed to
29
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 Envirite's comments to
be admitted into the record as an amicus curiae brief.
Based on this history, in my opinion, the fact that the
30
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 soley 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 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
31
necessity for publication and cost study requirements mandated
when the Board is enacting general regulations rather than
individual adjusted standards. 415 ILCS 5/28.1(a) (West 2008), 5
ILCS 100/5--5 et seq. (West 2008). For the reasons set out
above, I concur in Justice Lytton’s decision that the opposition
groups have standing to seek judicial review in this appeal.
However, I dissent from that portion of the decision that affirms
the Board’s decision to allow an adjusted standard in this case.
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 Article
VII, section 28.1 of the Act. 415 ILCS 5/28.1 (West 2008).
Section 28.1 requires that the Board “shall adopt procedures
applicable to such adjusted standards determinations.” 415 ILCS
5/28.1 (West 2008). The applicable procedures adopted by the
Board for an adjusted standard petitioner, such as PDC, provide:
32
“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.” In re RCRA Delisting Adjusted
Standard Petition of Peoria Disposal Company, Ill.
Pollution Control Bd. Op. AS 08--10, at 81 (January 8,
2009) (hereinafter Board Order).
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 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
33
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:
34
“Quasi-legislative determinations are exercises of the
Board's rulemaking 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 [Division
of National Steel Co. v. Illinois Pollution Control
Board], [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. [Citation.] ***
A reviewing court will uphold a quasi-judicial
determination unless it is contrary to the manifest weight
of the evidence. [Citation.] When a case involves both
quasi-legislative and quasi-judicial functions, the
reviewing court should apply both standards of review.
[Citations.]
* * *
There are three methods by which an entity can seek
relief from a rule of general applicability: variances,
adjusted standards, and site-specific regulations.
35
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. 35 Ill. Adm. Code §104.400. It is fair to say that
an adjusted standard is a hybrid proceeding that invokes the
Board’s quasi-judicial as well as its quasi-legislative
authority. Typically, the Board relies on its technical
36
expertise when evaluating the sufficiency of the petitioner’s
evidence, specifically the section 27(a) factors in this case.
Swenson Spreader Co., 308 Ill. App. 3d at 750-51. We review all
decisions of the Board that involve the Board’s technical
expertise using an aribtrary and capricious standard of review.
See Swenson Spreader Co., 308 Ill. App. 3d at 748-49.
After the Board determines that the adjusted standard
petitioner has satisfied its burden of proof as set out in
section 104.426, then the Board exerts its quasi-legislative
authority when granting the new environmental regulation,
designated as an individual adjusted standard. Developing
conditions applicable to the individual adjusted standard also
involve the Board’s expertise and should be measured by the same
arbitrary and capricious standard of review. The additional
issues raised by appellants are discussed below with the
appropriate standard of review in mind.
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
37
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 over-
generalized 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
38
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, section 28.1(d) of the Act specifically requires
the Board to support any decision to grant an adjusted standard
with a written order and opinion which “shall” state the facts
and reasons leading to the final Board determination. See 415
ILCS 5/28.1(d) (West 2008). Section 28.1 of the Act provides:
“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).
Section 28.1 of the Act first requires the petitioner, not the Board, to justify the adjusted
standard. Next, section 28.1 requires the Board to issue an order which includes factual findings
and reasons presumably explaining how the petitioner justified the adjusted standard before the
Board.
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 appellant’s 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
39
section 27(a) factors may be directly related to an absence of such evidence introduced into the
record by PDC. Section 27(a) of the Act provides:
“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.
During the public hearing, PDC did not introduce any stipulations or any agreed exhibits
and failed to provide expert or lay testimony concerning the section 27(a) factors with regard to
40
either geographic location. In fact, PDC presented only two witnesses and four exhibits to the
Board during the public hearing. One witness, Laura Curtis, a senior environmental engineer at
RMT, Inc., and PDC's independent consultant, testified about the new chemical process
developed for PDC to stabilize electric arc furnace dust (EAFD) waste. A second witness, Dr.
Ajit Chowdhury, a former employee of RMT, testified that PDC hired him to develop the new
chemical process for stabilizing K061 waste. PDC will then license the process from
Chowdhury because Chowdhury is considering patenting his technique. At the time of the
delisting hearing, Chowdhury, RMT, and PDC representatives stated they were not at liberty to
discuss the exact chemicals used in this new treatment process because it was a trade secret.
Once the delisting is granted, Chowdhury will be paid licensing fees by PDC. The four exhibits
PDC introduced for the Board’s consideration included: Exhibits 1 and 2 which were Curtis’
resume and the outline of her testimony; Exhibit 3 consisted of Dr. Chowdhury’s resume; and
Exhibit 4 was the list of 10 steel mills currently generating K061 waste and delivering the K061
to PDC for treatment and on-site disposal.
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
41
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 Association 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
42
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 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.
43
I point out that each paragraph of section 720.122 of Title 35 of the Code sets out distinct
but separate considerations for an adjusted standard request. 35 Ill. Adm. Code §720.122.
Paragraph (a) requires waste to be delisted by waste stream from a single generator. Paragraph
(b) requires an analysis of the combined waste mixture as a whole with respect to those
additional constituents that PDC adds to stabilize the F061 delivered the WSF. The
requirements of paragraph (a) and (b) are not interchangeable.
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. 35 Ill. Adm. Code §§720.122(a), (b). The glaring absence of any findings by the Board
with regard to section 720.122(a) or (b) makes it impossible for this court to evaluate the
sufficiency of the factual basis for the Board’s order granting the PDC's petition to delist
successfully treated K061 waste.
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
44
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 fully enclosed steel structure, PDC then
disposed of the treated K061 below ground, in a dedicated hazardous waste landfill at the same
location. Over the course of the last 20 years, K061 waste has never left PDC’s site and
subsequently reentered the Peoria community during transfer to another location for disposal.
Now, PDC wishes to delist the new substance labeled EAFDSR and, after delisting, will transfer
and transport the waste off site for disposal elsewhere.
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 K061waste 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.
45
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. 415 ILCS 5/3.330(b) (West 2006).
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 allows, for the first time, PDC to store K061 outdoors
and then transfer treated K061 to other facilities for disposal. This new component of PDC’s
business, namely, transferring large quantities of treated K061 waste from Peoria to another
location for disposal, has not received siting approval by the Peoria County Board.
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
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regarding the requirements of either section 104.426 of Title 35 of the Code (35 Ill. Adm. Code
§104.426) or section 720.122(a) or (b) of Title 35 of the Code (35 Ill. Adm. Code §§720.122(a),
(b)) for this court to review. Additionally, the Board improperly relieved PDC of their
regulatory burden of proof relating to the section 27(a) factors of the Act. 415 ILCS 5/27(a)
(West 2008). Consequently, I would reverse the Board's order granting PDC's petition for an
individual adjusted standard as both arbitrary and capricious.
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).
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