Sierra Club v. Illinois Pollution Control Board

SUPREME COURT CASES

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State: Illinois

Court: 3rd District Appellate

Docket No: 3-09-0120 Rel

Case Date: 08/24/2010

Preview: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 ) AGAINST TOXIC WASTE, ) ) Petitioners-Appellants, ) ) v. ) ) ILLINOIS POLLUTION CONTROL )

Petition for Review of Opinion and Order of the Illinois Pollution Control Board

BOARD, PEORIA DISPOSAL COMPANY, ) ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, ) ) ) Respondents-Appellees, )

No. AS 08-10

) and ) ) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ) ) ) Respondents. )

_________________________________________________________________

JUSTICE LYTTON delivered the opinion of the court: _________________________________________________________________

Peoria Disposal Company (PDC) Illinois Pollution Control Board

filed a petition with the (Board) to delist residue (EAFD)

resulting from the treatment of electric arc furnace dust as a hazardous waste for disposal purposes. order granting PDC's petition.

The Board issued an

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. hearing. PDC's first

PDC presented two witnesses at the was Laura Curtis, a senior

witness

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. involved in stabilizing EAFD. He described the chemical process 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). Board stated:

In its summary, the

"Based on a thorough review of this record, the Board finds that PDC has met the of legal the tests for

delisting

under

Section

28.1

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. Ill. Pollution Control Bd. Op. AS 08-10, at 2. In its order, the Board considered many concerns raised in public comments. language used in One of those concerns was whether reopener delistings granted by the United States Board Order,

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." 10, at 77. Board Order, Ill. Pollution Control Bd. Op. AS 08The 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." AS 08-10, at 78. Board Order, Ill. Pollution Control Bd. Op.

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. 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 Board Order,

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 The

delisting "'would create a new pollution control facility.'"

Board found that local siting approval was "not a prerequisite to the Board granting this delisting petition." Pollution Control Bd. Op. AS 08-10, at 86. Board Order, Ill.

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 waste.'" 86. On February 13, 2009, the opposition groups filed a petition for review of the Board's January 8, 2009, order. I. Standing control facility,' 'transfer station' and 'special

Board Order, Ill. Pollution Control Bd. Op. AS 08-10, at

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 415

section may be appealed pursuant to Section 41 of this Act." 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 of in affected the the by a and final any order person or who under

determination participated

Board, public

comment

process

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." (West 2008). Section 29(a) states: "Any person adversely affected or threatened by any rule or regulation of the Board may obtain a determination 9 415 ILCS 5/41(a)

of the validity or application of such rule or regulation by petition for review under Section 41 of this Act." 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 415 ILCS

standing pursuant to section 29(a). It is well established that the Board serves both quasijudicial 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. 747, 721 N.E.2d at 727. Swenson Spreader Co., 308 Ill. App. 3d at 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 415

include regulations specific to individual persons or sites." 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

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