may please the court my name is david one worth and i represent the we've been calling ourselves the opposition groups sierra club in peoria families against tax equation i would also like to say good morning to the  and the members of the public who are present on both sides of this issue there is cross relief requested in this case by the at bally's pursuant to supreme court rule three fifty two after consultation with the clerk a consultation with both attorneys for the i believe is i'm going to at the pleasure of the court obviously limit my comments to the main issue for which the petition for leave to appeal was granted during this twenty minutes then i believe the  employees are going to going to talk about both the standing issue which is their issue on cross relief as well as the twenty seven a and then i would do the bottle for the final ten minutes again up to the pleasure of the court there are two basic issues associated with section twenty seven ebay and by twenty seven a i mean section twenty eight point one of the environmental protection act as it makes reference to  what we call the section twenty seven a factors where the two issues have two different standards of review first whether it's the burden of the petitioner or the board to justify consistency with section twenty seven day and that would be as a matter of law obviously with statutory construction the second issue is whether the board failed to fully improperly consider section twenty seven a factors based on the evidence in the record that would be subject to an arbitrary and capricious standard of review regarding the as a matter of law and the petitioner from adjusted standard has to justify essentially the issue comes down to whether or not the burden is on the petitioner in this case purely dispose of company p c or on the board to justify compliance or consistency with the section twenty seven a factors in a site specific delisting an adjusted standard for one particular site or one particular type of waste the on that point it makes sense to require the petition proceeding kind of a contested case to have the burden to present evidence that what the petitioner wants to do with that waste at that particular facility or wherever it may ultimately be disposed is done in full n control board code and regulations establishing procedures for justice standards also indicates in section one hundred four point four two six that the burden of proof in an adjusted standard proceeding is on the petitioner it petitioner must justify an adjusted standard consistent with section twenty seven a of the act that last section last part of that quote essentially mimics amir's the language of section twenty eight point one itself so the state the primacy of the statute controls we respectfully submit that it's the burden of the petitioner in this case predispose a company to set forth evidence in the record of a delisting to analyze section twenty seven a requires the board or the petitioner to take into account the surrounding land uses and does mention the word zoning so it is a very local control or a local issue not unlike a typical zoning case it would be this court is also done out of several cases on landfill site in appeals which that the issues on zoning location etc we submit in our brief that twenty eight point one which references twenty seven a that twenty seven a is years or is very similar to section thirty nine point two which again goes to the zoning the aspect of the problem in this regard i'd like to illustrate how the board acted in an arbitrary and capricious manner the board essentially couldn't see the forest for the treats i focused too much on certain aspects of the but then ignored and missed the point about the section twenty seven a factors regarding the area affected by pc's activities the board focused pretty much solely on where the end product mistreated board could pick and choose which of the section twenty seventy factors it needed to consider were they even required of wilder's ninety seven absolutely a section twenty eight point one requires the final order a determination to be filed and other sections of the environmental protection act as well as the i believe the administrative procedures act require the board to follow through to a final order on an adjusted standard the board couldn't see the forest for the trees by focusing only on where the yaf dust was going to be disposed of and not what happened at the p t c number one landfill with the way stabilization facility on the doorstep of the city of curia it ignored the treatment process and all of our concerns were reflective of that location that site and  in point of fact and law the code regarding adjusted standards that section one zero four point four zero six d requires a petitioner in this case p c to quote provide to provide quote a description of the nature of the petitioners activity that is subject of the propose adjusted standard the description must include the location  area affected by the petitioners activity this is not a section twenty seven a requirement this is authorized by twenty eight point one be adjusted standard statute itself but it's a board requirement in the board's own rules now as set forth in our briefs the p t c didn't really put anything in the record about the surrounding land area of the zoning of the surrounding area but impacts that the continued operation of the way civilisation for somebody may have on the fifty three thousand or so people that live within three miles of the site the agency that only e p a was also required under the code to file a response to the petition which they separate heading in titled section twenty eight point one factors which they incorporated the twenty seven day the agency calls them twenty eight point one factors but i've been referring to them as the twenty seven day factors quote in accordance with section twenty eight point one of the require wasted listing must justify the requirement consistent with section twenty seven day the comments made above for the factors set forth in section one or four point four six including fo applied to the section twenty eight point one factors as well as the seven twenty point one twenty two factors thus in the same sentence the agency the only e p a said it's the petitioners responsibility to comply with the section twenty seven a factors they gave them a pass by impermissibly substituting the level of the justification under said code section seven twenty point one twenty two substituted that for  surrounding area for the locality issues of section twenty seven day now the board did the same thing in its opinion and its i called a hundred three pages with the attachments but it's ninety seven single spaced type pages the board did the same thing by substituting its technical compliance with a level of justification for a robust analysis of the section twenty seven a factors the board relied on dry ass the delisting risk assessment law by failing to require the petitioner to meet its burden of proof the board misinterpreted twenty seven a and as a matter of law should be reversed because it did it didn't follow the law what i've been speaking on now is  exactly that the arbitrary and capricious standard that they failed to properly consider all aspects of the problem or injected things that the legislature did not intend and to conclude on this point i don't want to also not see the forest for the trees and go on this issue too long but p t c the agency the board and dress itself all focus on the disposal but disposal is only half of the story if the stuff is a treatment process and that treatment process is located at the waste stabilisation facility and p t c number one on the doorstep of peoria when section twenty seven a came up in the order the board ignored the character of the land involved ignored the care of the surrounding land uses and zoning classifications essentially thinking that if you meet the level of justification well then all the other stuff must be ok that's not what the statute says and that's not what the box requires the board stated in its opinion on page eighty one that carefully considered the information in this record in view of the section twenty seven a factors as required by section twenty eight point one but that begs the question of what was in the record but really is nothing in the record that allows it that evidence submitted by of those focus on the surrounding area they only focus on the waste stabilisation facility they do talk about the indian creek landfill which is a controlled landfill of p v c where which the treated successfully treated waste ultimately gets disposed essentially treated electric arc furnace trust is still hazardous unless and until it meets the screening levels for each constituent of concern seventy five of the order so when the waste is initially treated they still are using the entire footprint of the landfill which is just two hundred feet from some nearby residences  respectfully submit that the board did not sufficiently and fully consider those issues it failed to fully and properly consider the treatment process and the effects of the treatment process on the surrounding area general quick ability it's everywhere in the state so if it works if it's safe environmentally responsible in one place it's safe everywhere on the other hand or on the others in this case this was an adjudicatory kind of a contested case involving one specific petitioner with a finite known location so this isn't in a you know in a broad sense anywhere in the state of illinois this is in peoria illinois that this treatment process is happening so there really the section twenty eight point one d three states that the board must state the facts and reasons leading to the final board determination and this is the sentence that the board left out of its order that is the the quote that ties everything together in the granite city case so even though green at city held that there was no burden of proof for a rule making of general a quick ability that the board as a acting as a legislative quasi legislative body didn't have to hang its head on yeah we looked at this issue yeah we looked at that issue there was the legislature and their discretion they could do that in this mandated purpose and function of protecting our environment and public health that sentence does not appear in the ninety seven one hundred three page board opinion that sentence is essentially the common thread that is weave through our entire argument regarding the section twenty seven a factors we respectfully submit that the judgment that the order of the board should be reversed as a matter of law in the alternative if the board if the court finds that the board properly construed section twenty seven a from a statutory interpretation perspective we nonetheless believe that the board as purely a disposal company i will be focusing on the standing issue and arguing that the opposition groups did not have standing to pursue this appeal because they do not fall within any of the five categories of persons who may appeal final board determinations that as set forth in section forty one of the act you ask you about something mr smith just a lead off that argument  eleventh last wednesday the board filed additional authority in support of the argument concerning the board's compliance with section twenty seven a right yeah that's correct you're out and in that  order and of page twenty two of that document but i want to focus on a page that wasn't cited in that same order page twenty three and there seems to be at least at first blush a statement that completely undermines the position on the standing questions so i would i i do want you to address this even though it wasn't cited and let me just read from that page twenty three the board believes that an appeal of an adjusted standard decision would be available to any person as it is in a room making context the board cannot see a distinction between the public's interest in an appeal of an environmental standard which was promulgated as a rule as opposed to one which was adopted pursuant to an adjusted standard proceeding now does go on to say all to minutely those for the courts to decide who has standing to appeal  board's decision made pursuant to section twenty eight one and i know there's been twenty plus years since that and certainly you're entitled to change your position but i think it should at least be  is a portion of the statement in which the board indicated that an adjusted standard is not a rule and that is very important in that case because in  because the opposition groups are hanging their hat on in terms of the standing argument on an adjusted standard being rule making they are claiming standing under section twenty nine a the act which allows appeals from rule making orders of the board by any person who is adversely affected so if this is not rule making they do not have standard editor schmidt let me back up what is the basis for the board's change of position that you just reference i believe the fact that in this case in a direct administrative review action on the appellate court's authority must have a statutory basis and that's under the only constitution article service section six says that the  court will have jurisdiction such jurisdiction to consider direct administrative review actions as provided by law so this is one instance where the court's authority would have a statut basis and in this so subtle what the relevant statutes tell us is section twenty eight point one says that these are adjudicatory determinations and it says that rule making provisions in the administrative procedure act and in the environmental protection act itself do not apply so section twenty eight point one tells us the legislature says this is not rule making and then section twenty eight point one g says that word final board determinations may be appealed under section forty one but the opposition groups simply don't fit within the section forty one categories that is the difference of opinion now that back in eighty nine you were saying it was analogous to rule making and now you're saying that's not good enough that actually actually asked to be rulemaking is that your position now yes and that legislature and what we're saying is it's up to the legislature and the legislature has said this is not real night and we admit there are some compliments of this certainly that have some similarity to rule making and the main thing in that regard would be the fact that the word can impose conditions on a deal less state and that honor i realize that if the change that you're referencing on why the board changes position is there a corresponding provision in the statute now that indicates in this context there's nothing that specifically says in an adjusted standard proceeding these these are the people who have standing but it's a matter of but section twenty eight point one g which governs a justice standard proceedings says that appeals are taken under section forty one and then section forty one sets out the categories and the opposition groups don't fit in any and they don't argue that they do either they don't claim to fit within any of those categories their entire argument is that standing exists under twenty nine day but twenty nine day only confers standing tempt to say that section twenty eight point one that that language is only concerned with process and not results but section twenty eight point one refers to the final word determinations and that's the result that final board determination is a result and the appeal from that result is governed by section forty one under the plain terms the plain meaning of section twenty eight point one g refers us to forty one the opposition groups simply don't fit within any of those categories and that's why they are not they made not a play could not have standing t including the effects on the surrounding area in that context what public commenters were concerned about was the possibility of their emissions the board pointed out several water minimizes the possibility of error missions so the board believes that they did address the section twenty seven a factors adequately and we also believe that they do not form part of the burden of proof as the granite city case would indicate indeed it's difficult to see how they really could section twenty seven they doesn't really instruct the board as to exactly how they are to weigh the factors little bit on the stand because she was well and speak to justice thomas and just to kilbride's question related to ride the board might have changed in the course of the twenty years first of all the supplemental authority that the attorney general's office put in was in fact the first the board's first procedural rule on the adjusted standard and the information there is really dicta that followed various court decisions followed after that where the board was instructed follow the law don't allow for rights that are to prescribed in the law for example in the landfill in case where the board allowed third parties to come in and challenge permit decisions the courts reversed on that ground so basically the board in two thousand completely redid its procedural rules allowing intervention on the part of parties to become party status the law goes changed in terms of section forty one there's a provision if you're a public commenter in a clean air act rulemaking you have authority to a final appeal under section forty one so there's all kinds of changes that occurred over the course of twenty years and those are all referenced in the period disposals motion to dismiss that opponents would like to turn this into a landfill site in case this is just not with the context of this case s this is one of the most highly technical decisions that the board could make so what do we really and on the environmental law and the environmental regulations on the questions of the environmental science the pollution problem was absolutely right and it's ninety three or one hundred three pages decision it was absolutely right on all of them what to do number one it authorize an environmentally safe chemical process and protocol which would not kill a to certain kind of hazardous waste allowing it to instead of being sent to a hazardous waste facility to be sent to any subtitle d facility in the state of illinois that is right this is not a suitability of location issue this is not a zoning case this is pure and simple a hazardous waste listing case which is prescribed by federal law the board made a decision pursuant to a very thoughtful well analyzed decision of the board utilize its technical expertise it had its engineers asked questions prior to the hearing and i did volved complicated state and to ensure in fact that the decision could be affirmed and the waste would be to list it and what this really is is it's alchemy if you well as chemistry that turns what otherwise would be hazardous waste not allowed to expand that hazardous waste landfill so this decision that authorized them to take that waste and now move it and allow it to be sent to any rind subtitle delian for the state of illinois that decision i would suggest is in fact a very technical one and what the opponents are attempting to do is argue that some twenty seven a factors the twenty seven eight factors are those factors which forty years of jurisprudence under the environmental protection act instruct the board to look at those factors as they might be a political bull in any given context of any given case people want them in this case the context was a hazardous waste a listing it was not a review of the local government's decision on whether a landfill should be expanded or should not be expanded so what the board was doing was as best as possible in the context of this hazardous waste listing utilise the factors as they were a political there is no burden of proof on the part of the petitioner to establish any of those kinds of factors in fact what the interested standard doesn't says is the adjusted standard section twenty eight point one of the act says that in fact the board is supposed to look at it and be of that section if the board has a general rule bill put ability a could do in the federal context of what the state will do and that is determine where the waste is absolutely capable of being to listed if it's not too weighted sufficiently in order to be safely disposed in and on hazardous waste landfill and that's what the board did and the board has hazardous waste regulations that are based directly on federal law at seven twenty point one twenty two prescribe is the level of justification disposal was supposed to it here to peoria disposal did that they hired an independent consultant the independent consultant ted an independent laboratory they had all kinds of and a little i could i could you know sort of sway your head with all of the testing that was done but in terms of the m v p testing that t c lp testing all of this was done for the point that the act and the board's regulations allow this particular procedure they allow a particular waste to be taken out of the hazardous category and be trained into evacuated such that it's no longer hazards the key considerations of what the board really had to find is number one that the residue after treatment  doesn't even meet the criteria for which the waste was listed originally as being hazardous number two that there's no reasonable basis to believe that there were any other factors already of their constituents in that waste that other than those the visually caused it to be listed as hazardous and number three that the residue exhibits no characteristic of hazardous waste that's what the board was supposed to do that's what the board did it intentionally that because the legislature said to the board whenever you make a decision also consider the twenty seven eight factors the board took that the board put it consistent with the granite city case consistent with the shell oil case consistent with the stepan case all of which challenge the board you know in terms of how the board did the twenty seven eight factors the opponents would have you say that some p t c was supposed to figure out why a particular twenty seven day factors were a political or not a clickable and somehow had some level of the burden of proof related to the twenty seven eight factors i would submit that if the court would find that that would really turn forty years of environmental law jurisprudence on attack because we nobody would know exactly what it was they were supposed to be proving because those twenty seven eight factors are borne specters the attorney general's office did a very nice job of explaining how those worked much like child custody kinds of issues much like the discretion the circuit court has in criminal sentencing matters that's what those considerations are supposed to be on the part of the board and i would submit the board to the very good job in its very lengthy decision of trying to figure out how those factors apply they they knew that one of the landfills probably the most likely landfill that this waste would go to would be the indian creek landfill in town as well county and so they looked at that particular landfill to ensure that it was well done and those kinds of things so they didn't look at the twenty seven eight factors as they believe them to be a political ball that's what the law allows and that's what the law requires and i would submit that the poor did a fine job in analyzing all of these very highly getting standing first and i do have two comments at the end if i saw the time back on the twenty seven a factor but i thought i'd better get some standing stuff before the court and the a said we have claimed that the process first is the result and that the adjudicatory moniker is merely the process by which a rule of the board doesn't say it has to go through rule making or the process to get a rule but it's a rule of the board section of the code one o four point four hundred a state's quote an adjusted standard has the effect of environmental regulation so the net product of this large order is that p t c gets a pass on the a f dust if it treats it according to the adjusted standard it's not deemed hazardous any more  think you're arguing that maybe i'm wrong that in adjudicatory process and nevertheless result crack in the legislative result correct right so but twenty eight point one says that the standard  just the the adjusted standard proceeding is  terms of the process by which as we keep arguing a rule or regulation of the board is developed the board itself says that it has an effect an effect of environmental regulation so when you look at the enabling statutes for judicial review twenty eight point one in conjunction with forty one and twenty nine they all speak in terms of the net result and they don't process can result in a legislative result that is my position right and twenty eight point one says that the board's determination the board's result is a right the board's deter you are saying it could end up with a legislative result and i think what i see is the problem with that argument is twenty one says that the board's determination the board's result tory not legislated in the if i may in the context of twenty eight point one one it then goes on to say that the rule making provisions of the illinois ministry of procedure act entitle seven of the environment protection act don't apply to these adjusted standards uses the phrase the rule making provisions the illinois administrative procedure act talks in terms of publishing with the joint commission and  the notice on the economic impact study and all of the bat the legislative history that we've set forth in the brief states that the section twenty eight point one was added to the act to streamline the rule making process for site specific places to avoid the cumbersome nature of a site specific rulemaking that's always been available under section twenty seven day so in context of the whole subsection of twenty eight point one justice thomas we submit that it's more the focus is on the process there that it's adjudicatory but the net result what the board the final board determination which is subject to the enabling statutes for administrative review to the act after twenty nine and forty one were already there twenty nine and forty one have been there since the environmental protection act went on the books the legislature could have said in section twenty eight that but the legislature could have said something like pursuant to section forty one but limited to parties and adjusted standard case they didn't do that at all times the language has been  that section forty one a provides that if it's the net effect as a rule or regulation there's a administrative review under section twenty nine the statutes have never changed since the point of the qu of the one nine hundred eighty eight rule the justice thomas mentioned that i believe is on page thirteen of our reply brief the statutes never changed in that forty years or thirty years the attorney general was unable a case or a judicial pronouncement that made the board change its position it's a rule of the board the only reason why we're arguing about this now is this is the first time that an adjusted standard case got this much attention given the dynamics of dislocation and it's the first time that an adjusted standard case first for site specific have this level of public involvement to make sure that they judge everything is your position that all of justice standards that may be adopted under twenty eight point one or rules they're not really the rules yes  and it's our position that a relief from a rule done by an order of the board is a rule i'm mr wentworth yes what is the effect of a violation of an adjusted standard versus the violation of the rule of justice standards modify or do whatever to be still consistent with section twenty seven rules right correct or what is the your question chief justice co broad if the adjusted standard of the order the requirements of the board put on period disposal to comply with these things and if you do then it's deemed not hazardous and can go to a some title deed if they don't follow those rules then yes they would be subject to the normal course of environmental violations available in other parts of the act the  to the point of the the net result is a rule or regulation of the board section seven point three b three of the act requires that an adjusted standard be published in the on i register that may not go through the normal joint commission rule making procedure and the secretary of state's office may not like it because it's not an official rule that went through that procedure but it still is a public document that is published in the on i register and has the effect of force he see that rule applies that adjusted standard applies for what they do if i made a try and i'm out of time and  the court for consideration of you a few seconds include on my one point as justice thomas reference the supplemental authority that was filed in point on the rule eighty one dash seventeen predated was the combined sewer overflow that was the precursor in the legislative initiative to do twenty eight point one which came out a couple years later in one nine hundred eighty four if you look at those rules they had section twenty seven a factors buried at the end of the proposed rules kind of as an afterthought what the legislature did when they adopted twenty eight point one is phone modem twenty seven day right up in the front of twenty eight point one day that it applies to anything else that follows a wall in the statute yes you can do a specific level of justification but you still have that burden on the section twenty seven a factors