## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Suprem e Court

Sierra Cl ub v. Illin ois Pollu tion C ontrol Board , 2011 IL 110882

Caption in S upreme Court: SI E R R A CL UB et al.
, Appellants, v. THE ILL I NOI S POL LUTI ON CONTROL

BO ARD et al. , Appellee s.

Docke t No. 110882

Filed October 27, 2011

Held ( Note : Thi s syl lab us

con st it ute s no pa r t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The judicial revie w for which the I llinois Environmental Protection Act provides as a means of challeng ing a Pollut ion C o n t rol Boa rd rule or reg ulation did not apply

to the Boa

rd’s g ranting of an a djusted standard wh ich delisted a substance from reg ulation as hazardous, and delisting
oppon en t s wh o , it was ag ree d, did not fall into any other statutory cate g ory for se eking revie w lacke d standing to do so.

Dec ision Under Review Ap p eal from the Appellate Court for the Third District; hear d in t h at court on a ppeal f rom an Or der of

the I llinois Pollut ion Control Board.

J udg ment Appea l dismi ssed.Counsel on

Appea l David L

. Wentworth I I
, and J ames P. L awson, of Hasselbe rg , Wil liams, Gre be, Snodg rass & Birdsa ll, of Peoria, for appellants.

Claire A. Manning
, of Br own, Hay & Stephens, LL P, of Springf ield, and Brian J

. Meg innes and J anaki Nair, of Elias, Meg innes, Riffle & Seg hetti, P.C., of Peoria, for a

ppellee Peoria Disposal Company

.

L isa Madig an, Attorney Gene ral, of Springf ield (Michae l A. Scodro, Sol i ci t o r Gene ral, and J ohn P. Schmidt, Assistant Attorney Gene ral, of Chicag o, of counse l), for a ppellee Illinois Pollut ion Control Board.

Nathan D. Eisenber g , of Previant, Goldberg
, Uelmen, Gr at z, Miller & Br ueg g eman, S.C., of Milwaukee
, Wis consin, for amicus cu r iae I nterna tional Brothe rhood of Te amsters L ocal Union No. 627.

David A. B rown, of B lack, B lack & Br own, of Washington, for amicus curiae Tazewe ll Count y , I llinois

.

J ustices J USTI CE THOMAS delivere d the judg ment of the c ourt, with opinion.
J ustices Fr eema n, Garman, Karmeier, and Bur ke concurred in the judgme nt and opinion.
J ustice Theis dissented, w ith opinion, j oined by Chief J ustice Kilbride.

OP INION

¶ 1 The dispositi ve issue in this case is whether Sierra Club and Peoria Fa m i l i es Ag ainst Tox ic Waste (the opposition g roups) had standing to see k re v iew of the I llinois Pollut ion Control Board ’s decision g ranting Peoria Disposal Company ’s delisting petition. We conclude that they

did not.

¶ 2 BA CKGROUND ¶ 3 I n 1989, the I llinois Environmental Protection Ag ency (IEPA) issued a permit to Peoria Disposal Company (PDC) to operate a waste stabiliz ation fac ility near Peoria for the storag e and trea tment of hazardous and nonhazardous waste. I n 2008, PDC filed an adjusted s ta ndard petition under section 28.1 of the I llinois Environmental Protection Act (the Act) (415 I L CS 5/28.1 (West 2008)), asking the I llinois Pollut ion Control Board ( the B oard) to delist ( i.e.
, exclude from hazar dous waste r eg ulation) certain residue g ener ated from PDC’s tre atment

-2-of K061 elec tric arc furna ce dust. F ollowing a public hear ing, the Boa

rd issued a 103-pag e order g ranting PDC a delisting adjusted standard, subject to sever al conditions. In re RCRA Delisting Adjusted Standard Petition of Peoria Disposal Co.
, I ll. Pollut ion Control Bd. Op. AS 08-10 (Jan. 8, 2009) (B oard O rder ). ¶ 4 The opposition g roups filed a timely petition for revie w of the Boa rd Orde r (Ill. S. Ct. R. 335 (ef f. Fe b. 1, 1994), and a sharply divided appellate court aff irmed. 403 I ll. App. 3d 1012. I n the appellate court, two basic issues wer e prese nted: (1) whether the opposition g roups had standing to seek revie w of the Boa rd Orde r, and (2) whether the Boa rd Orde r was corr ect on the merits. Writi ng for the court, J ustice L y t ton conclude d that the opposition g roups had standing and that the Boa

rd Orde r should be aff

irmed on the merits. I n a specia l concur renc e, J ustice Carter conclude d that the opposition g roups did not have standing and that the appea l there fore should be dismiss ed. I n partial dissent, J ustice Wright c o n c lu d e d th at th e o p p o sition
g roups had standing and that the B oard O rder should be reve rsed on the me rits. ¶ 5 The opposition gr oups appea led to this c ourt, and we g rante d their petition f or lea ve to appea l. I ll. S. C t. R. 315 (eff. F eb. 26, 2010).

¶ 6 ANAL YSI S ¶ 7 Be fore this court, the opposition g roups once ag ain argue t h at t h e Bo ar d Or d er is

err oneous for sever al rea sons and there fore must be either reve rsed or vacated. I n response , PDC and the Boa

rd re new their arg ument that this a ppeal should be dismissed bec ause the opposition g roups lack standing to seek judicial revie w of the Boa rd Orde r. I n the alternative, PDC and the Boa

rd ar g ue the B oard O rder

is corre ct on the merits and theref ore should be aff irmed. ¶ 8 We beg in with the standing question, which is a question of law that we revie w de novo

. W exle r v. W

irtz C orp. , 211 I ll. 2d 18, 23 (2004). ¶ 9 Section 2 8

. 1 of the Act, which g overns adjusted standards, states that “[a] final B oard determination made under this Section may be appea led pursuant to Section 41 of this Act.” 415 I L CS 5/ 28.1(g ) (West 2008). Section 41(a ), in turn, provides that: “Any party to a Boa

rd hearing, any person who filed a complaint on which a hearing

was denied, any person who has been denied a varia nce or permit under this Act, any party adver sely aff

ected by a final order or determination of the Boa rd, and any person who participated in the public commen t proce ss under subsection (8) of Section 39.5 of this Act may obtain judicial revie w, by filing a p et i t i o n for revie w within 35 day s from the date that a c opy of the order

or other f inal action soug ht to be revie wed was s er ved upon the party aff ecte d by the order or other final Boa rd action complained of, under the provisions of the Ad m i nistrative Review L aw, as amende d and the rules adopted pursuant there to, except that revie w shall be aff orded direc tly in the Appellate Court for the District in which the cause of action arose and
not in the Circuit Court. Review of any rule or reg ulation promulg ated by the Boa rd shall not be limit ed by this section but may also be had as provided in Section 29 of this Act.” 415 IL CS 5/ 41(a) (West 2008). Section 29(a) then s tates t hat “[ a]ny person a dverse ly

aff ecte d or threatened by

any rule or

-3-reg ulation of the Boa rd may obtain a determination of the validity or application of such rule

or re g ulation by petition f or revie w under Section 41 of this Ac t.” 415 I L CS 5/ 29(a) (West 2008). ¶ 10 Her e, the parties ag ree that the oppos ition g roups d o n o t fall into any of t he categ ories of persons enumer ated in section 41(a)

. That is, they are not a party , a person who filed a complaint on which a hearing was denied, a person who was denied a varia nce or permit, or

a participa nt in the public comment proce ss under subsection (8) of section 39.5 of the Act. Thus, th e q u es t i on become s whether the Boa rd Orde r constitutes a “rule or reg ulation promulg ated by the Boa

rd.” I f it does, then section 41(a) would allow the opposition g roups to seek revie w under section 29(a)
, provided that they wer e in some way “adve rsely aff ecte d

or threa tened” by the Boa rd Or d er. I f the Boa

rd Orde r does not constitute a “rule or reg ulation promulg ated by the Boa rd,” then the opposition g roups are out of options and have no standing to seek re view. ¶ 11 For sever al rea sons, we conclude that the Boa rd Orde r i s n o t a “r u l e o r re gu l ati on promulg ated by the Boa

rd.” For starter s, section 28.1 repe atedly draw s a distinction betwee n rules and reg ulations on the one hand, and adjusted standards on the o t h er. For example, section 28.1(a) states that, “ [a] fter adopting a regulation of general applicability
, the Boa rd
may g rant, in a subsequent adjudicatory determination, an adjusted standard for persons who

can justify such an adjustment.” (E mp h a s is a d d e d .) 415 I L CS 5/28.1(a) (West 2008). Clearly
, then, the adjusted standard is not itself the reg ulation promulg ated by the Boa rd; rathe r, it is

an i ndividualiz ed exception to that reg ulation. L ikewise, section 28.1(b) states that “ [i ] n adopting a rule of general applicability
, the Boa rd may specify the lev el o f justification require d of a p et i t i o n er for an adjusted standard.” (Emphasis added.) 415 I L CS 5/28.1(b) (West 2008). Ag ain, this lang uag e confirms that an adjusted standard is not itself a “rule of
g ener al applicability ,” but rather something se parate and distinct from such a rule. Finally
, section 28.1(a) specific ally states t h at “[t] he rule-ma king provisions of the I llinois Admini s t ra t ive Procedur e Act and Title VI I of [t he] Act shall not apply to [adjusted standard] deter m i n at i ons.” (Emphasis added.) 415 I L CS 5/28.1(a) (West 2008). I f the standards and proce dures g overning the Boa rd’s rulemaking authority do not ap p l y to the adjudication of adjusted standard petitions, then nece ssarily the Boa rd is not en gage d in rulemaking when it adjudicates such a pe tition. ¶ 12 Be low, J ustice Ly tton conclude d that, while the Boa rd Orde r may not have cre ated a rule

or reg ulation of g ener al applicability
, it did “cr eate [ ] a rule or reg ulation specific to PDC.” 403 I ll. App. 3d at 1019. The problem with this conclusion, howeve r, is that the Act draw s just as clea

r a distin ct i o n b etwee n order s g ranting adjusted standards and “re g ulations specific to individual persons , geo gra p hic are as or sites.” I ndeed, the g rant of authority to adopt re g ulations specific to individual persons or sites is found not in section 28.1, which
g overns a djusted standards, but in sec tion 27(a), whic h g overns r ulemaking : “The Boa rd may adopt substantive reg ulations as d es cr i bed in this Act. Any such regulations may *** include reg ulations specific to individual persons or sites .” (Emphasis adde d.) 415 IL CS 5/ 27(a) (West 2008).
As importantly
, section 28.1 makes expli cit that the Boa rd’s authority to adjudicate and g rant

-4-adjusted standards is entir e ly d is tinct from its authority to adopt rules and reg ulations specific

to individual persons or sites: “This Section shall not be construed so as to aff ect or limit the authority of the Boa rd
to adopt, amend or repe al reg ulations specific to individual persons, g eog raphic are as or sites pursuant to Sections 27 and 28 of this Act ***.” 415 IL CS 5/ 28.1(h) ( West 2008).
I f the Boa

rd has the specific statutory authority to adopt reg ulations specific to individual
persons or sites, and if the g ranting of an adjust ed s t andard petition can neither affect nor limit that authority , then nec essarily the gra nting of such a petition is not itself an exe rcise of that authority . J ustice Ly tton’s conclusion to the contra ry is simpl y incorre ct. ¶ 13 We also deem signific ant section 28.1(a) ’s expli cit pro n o u n ce m en t t h at the B oard’ s decision to g rant an adjusted standard is an “adjudicatory determination.” 415 I L CS 5 /2 8

. 1 ( a) (West 2008). It is well settled that the Boa rd perf orms b o t h quasi-leg islative and quasijudicial functions. Landfil l, Inc. v. Pollution C o n t r o l B oard
, 74 I ll. 2d 541, 554 (1978). Se ct i o n 2 8

. 1 establishes that the g ranting of an adjusted standard is an adjudicative determination–that is, quasi-judicial in n ature. By contra st, the adoption of a rule or reg ulation is legislative in nature

. See W ells Manufacturing Co. v. Pollution Control Board
, 73 I ll. 2d 226, 235 (1978). I f t he gra nting of an adjusted standard is judicial in nature , and the adoption of a rule or reg ulation is legislative in nature , then t h er e is simply no way to conclude the g ranting of an adjusted standard results in the adoption of a rule or reg ulation. The two func tions are f

undamentally

distinct. 1 ¶ 14 On this point, we wish to emphasize that, under the plain lang uag e of section 28.1(a)
, it is the Boa rd’s determination that is adjudicative in nature

. We emphasize this beca use, both b elow and in this court, the opposition g roups have strenuously arg ued that, while s ec t i o n 28.1(a) may require the Boa rd to conduct an adjudicatory procee ding to determine whether to g rant an adjusted standard, the resulting determination ( i.e.
, the adjusted standard itself) is reg ulatory in nature

. The plain lang uag e of section 28.1(a) prec ludes any such arg ument. Section 28.1(a) states that “[a]fter adopting a reg ulation of g ener al applicability
, the Boa rd
may g rant, in a subsequent adjudicator y determination
, an adjusted standard for persons who

can justify such an adjustment.” (Emphasis added.) 415 I L CS 5/28.1(a) (W est 2008). A “dete rmination” is no t a p ro ce ed ing. Rather, it is the “fina l decision by a court or administrative age ncy .” Black’ s L aw Dictionary 514 (9th ed. 2009). T h u s, under the plain lang uag e o f s ec t i o n 28.1(a)
, it is the result of an adjusted standard proce eding that is adjudicatory

in nature, not mer ely

the proc ess. ¶ 15 Finally , we note that, under the Illinois Administrative Procedur e Ac t, the Secre tary of State is require d to publish “the complete text of all rules of all State ag encie s” in the I llinois Administrative Code. 5 I L CS 100/5-80(f) (West 2008). Given this require ment, if a delisting

T he I ll ino is Adm ini st ra ti ve Code c o n f i rms thi s con cl usi on bot h pos it ively (a n adj ust ed 1

st and ar d is an “ad

j udi cat ive pro cee din g” tha t is “qu asi

- j udi ci al in nat ure ” ) a n d n e gat ively ( “ [ a ] d j udi cat ory pro cee din gs do not inc lud e re gulat ory, qua si

- le gisla ti ve, or inf ormati ona l
pro cee din gs”). 3 5 I ll . Adm. Code 10 1.20 2 ( 2011 ).

-5-adjusted st andar d wer e in fac t a “rule or reg ulation,” we would expect to see the complete

text of t he Board’ s order s g ranting such st andar ds published in the I llinoi s Ad m inistrative Code. But we do not. On the contra ry , the I llinois Administrative Code’s sol e refer ence to such order s is a table, much like this court’s dispositi on of petitions for leave to appea l table, which lists only the case number, the name of the petitioner, the p ro v i s ion of the I llinois Administrative Code to which the delisting adjusted standard applies, and the particula r hazardous substance involved. See 35 I ll. Adm. Code 721 app. I
, table D (2011). Far from constituting the “complete text ” of the Boa rd’s delisti n g o rd er , which in this case ran 103 single -spac ed pag es and set forth extensive terms, standards, and conditions, an entry in table D is littl e more than a case caption followed by three or four lines of summary data. For this

rea son, as well, we sim p l y ca n n o t conclude that an order g ranting a delisting adjusted standard is a

“rule or re g ulation.”

¶ 16 CONCL USI ON ¶ 17 I n sum, there are numerous compelling rea sons for us to conclude that an order g ranting

an adjusted standard is not a “rule or reg ulation promulg ated by the Boa rd.” Consequently
, such order s are not appealable under section 29(a) of the Act, and the opposition g roups are without any statutory basis for prosec uting this appea l. We there fore v acate the appellate court’s de cision below and dismiss the appea l in its entirety

.

¶ 18 Appea l dismi ssed.

¶ 19 J USTI CE THEI S, dissenting: ¶ 20 I dissent from the majority ’s decision to dismiss this appea l. I believe that the opposition
g roups have standing to seek judicial revie w of the Boa rd’s decision to g rant PDC’s adjusted standard pe tition. ¶ 21 The petition was filed pursuant to section 28.1 of the I llinois Environmental Protec tion Act (415 I

L CS 5/ 28.1 (West 2008)). Section 28.1(a ) provides:
“Af ter adopting a re gu l at i o n of g ener al applicability
, the Boa rd may g rant, in a subsequent adjudicatory d etermination, an adjusted standard for persons who can justify such an adjustment consistent with s ubsection (a) of Section 27 of t his Act. I n g ranting such adjusted standards, the Boa rd may impose such conditions as may be nece ssary to acc omplish the purposes of this Act. The rule-ma king provisions of the I llinois Administrative Procedur e Ac t [5 I L CS 100/ 1-1 et seq. ] and Title VI I of this Act [415 I L CS 5/26 et seq. ] shall not apply to such subsequent determinations.” 415 I L CS 5/ 28.1(a) (West 2008). Such a determination may be appea led pursuant to section 41 of the Act. 415 I L CS 5/28.1(g ) (West 2008). ¶ 22 Section 41(a) lists various persons and parties who may obtain judicial revie w under the Act. 415 I L CS 5/41(a) (West 2008). Section 41 further states, howeve r, that “[r]eview of any rule or reg ulation promulg ated by the Boa rd shall not be limit ed by this section but may also

-6-be had as provided in Section 29 of this Act.” Id. Section 29(a)
, in turn, offe rs an o t h er

sta t u t o ry basis for prosecuting an appeal: “Any person adverse ly aff ecte d or t hreatened by
any rule or reg ulation of the Boa rd may obtain a determination of the validity or application of such rule or reg ulation by petition for revie w under Section 41 ***.” 415 I L CS 5/29(a) (West 2008). ¶ 23 The opposition g roups acknow ledg e that they are not among those enumer ated in se ction 41(a)
, and do not have a statutory basis to appea l under that section, but they assert that they do have standing under section 29(a)

. To make a prima facie case fo r s t an d ing, the opposition g roups must show, first, that their members wer e adver sely aff ecte d or threa tened by the adjusted standa

rd and, se cond, that the a djusted standard was a rule or r eg ulation of the B oard. ¶ 24 Reg arding the first element, t h er e i s l i ttle dispute among the parties. The opposition
g roups repr esent residents of the Peoria are a who are conce rned that tox ic substances in the elec tric arc furna ce dust trea ted by PDC may neg atively impact their lives. The Boa rd’s order noted that members o f the opposition g roups–three members of Peoria Fa milies Ag ainst Tox ic Waste an d one member of the Sierra Club’s Hea rt of I llinois chapte r–made timely
reque sts for a hearing on PDC’s petition. At that hearing 27 citizens of Peoria, Tazewe ll, and DeW i t t C o unties, including members of the opposition g roups, provided oral public
comments ag ainst the deli s t i ng

. Members of the opposition g roups also submitt ed written
comments. Cara Rossom , on behalf of Peoria F amilies Ag ainst Tox ic W aste, asserted that elec tric arc furna ce dust contains heavy metals, such as hexavalent chromium, merc ury , and lead, which could prese nt a dang er to are a residents if such substances enter ed the Sankoty and Mahomet aquife rs. J oy ce B lumenshine, on beha lf of the He art of Illinois Sierra Club, 2 which includes approximately 500 members in the Peoria are a, expressed “the untold public health costs of adding d i o x i n s , fura ns, *** and other [electric arc furna ce dust] rela ted
to x i n s ” t o the environment, as well as the “re al and prese nt dang er for curr ent and future
g ener ations beca

use of the potential for leac hing of tox ins” into the g roundwa ter. T h o ug h PDC states that “the opposition g roups never established any evidentiary rationale for their claim of being ‘adve rsely impacted or threa tened’ by the Boa rd’s g rant of t h i s ad

j u s ted standard,” it is difficult t o imag ine what el s e t h ey woul d need to establish. Certainly
, they have shown sufficie ntly that they are adver sely aff ecte d, or at least threa tene d b y , the adjusted standar d delisting such w aste. ¶ 25 Reg arding the second element–whe ther the adjusted standard is a rule or reg ulation–the
matter is less clea

r. The majority conclude s that the adjusted standard is not a rule or reg ulation, for sever al rea sons. Acc ording to the majority
, section 28.1 “re peate dly draw s a distinction betwee n rules and reg ulations on the one hand, and adjusted standards on the other.” Supra ¶ 1 1. Be cause an adjusted standard is “an individualiz ed exception” ( supra ¶ 11) to a reg ulation of g ener al applicability (415 I L CS 5/28.1(a) (West 2008)), the majority

T he Sankoty- Ma homet aqu if er is a wat er sou rc e for the Peor ia ar ea. See genera ll y I ll ino is 2 Sta te Wa te r Sur vey , The Sank oty -M ahome t Aqui

fe r in the Conf

lue nce Are a of t h e Ma cki naw and Ma homet Bed roc k Va ll eys , Cen tral Il li noi s (1 994)

.
-7-states that it cannot itself be a rule or r eg ulation. This reading of the Ac t is too narrow. ¶ 26 Her e, the g ener al reg ulation comes from fede ral law. Section 22.4 of the Act require s the Boa rd t o “adopt reg ulations which are identical in substance to fede ral reg ulations” promulg ated by th e Ad m i n i strator of the United States Environmental Protection Ag ency (USEPA) to implement the Resource Co n s er v at ion and Recove ry Act of 1976 (RCRA). Under RCR A, the USEPA has listed “[e]mi ssion control dust/sludge from the primary production of steel in elec tric furna ces” (40 C.F.R. § 261.32(a) ), as well as an y materia l “g ener ated from” its trea tme nt (40 C.F.R. § 261.3(c) (2(i))
, as hazardous waste, and the Boa rd has adopted this desig nation (35 I ll. Adm. Code § 721.132 (2011))

. The USEPA had allowed hazardous waste to be “delisted” pursuant to a reg ulatory proce dure. See 40 C.F.R. § 260.22. The Boa rd has also adopted this proce dure. See 3 5 I ll. Adm. Code § 720.122 (2011). The Administrative Code further p rovi des: “De listi ng s that have not been adopted by USEPA
may be proposed to the Boa rd pursuant to a petition for adjusted standard pursuant to Section 2 8

. 1 of the Act ***.” 35 I ll. Adm. Code § 720.122(n) (2011). The Code specifie s t h e justification require d for an adjusted standard delisting hazardous waste. See 35 I ll

. Adm. Code §§ 720.122(a) throug h 720.122(g ) (2011)

. ¶ 27 After PDC develope d new technolog y to s t ab i l i z e t h e re s i d u e left afte r it processe s elec tric arc furna ce dust, it wanted relief from the g ener al reg ulation. PDC could h av e proposed a site-spec ific amendment of that reg ulation under section 27(a) of the Act. See 415 I L CS 5/27(a) (West 2008); 415 I L CS 5/28(a) (West 2008) (“A ny person may prese nt written
p ro p osals for the adoption, amendment, or repe al of the Boa rd’s reg ulations.”). I nstead, i t chose to file a petition for an adjusted standard. Section 101.202 of the Administrative Code define s an ad

j u sted standard as “an alternative standard g rante d by the Boa rd in an adjudicatory proce eding ,” which “applies instead of the rule or reg ulation of g ener al applicability .” 35 I ll. Adm. Code § 101.202 (2011). An adjusted standard, then, provides relief from a g ener al rule or reg ulation in the same way that a site -s p ecif ic amendment would. Both an adjusted standard and a site-spec ific amendment are distinct from a g ener al rule or reg ulation; they are , in ef fe ct , s pecif

ic rules or reg ulations. Section 104.400 of the Administrative Code rec og nizes this point, stating
, “An a djusted standard ha s the eff ect of

an environmenta l reg ulation that would apply to petitioner, if g rante d, in lieu of the g ener al
reg ulation that would otherwise be applicable to a petitioner and the reg ulated community .” 35 I ll. Adm. Code § 104.400 (2011). Notably
, the majority fails to addre ss this section of the code. ¶ 28 I nstead, the majority place s g reat weig ht upon a purported distinction in the Act betwe en specific reg ulations and adjusted sta n d a r d s

. S u pra ¶ 11. Acc ording to the majority
, the former

are g overne d by section 27(a) of the Act, whi ch p rovi des that the Boa rd may adopt substantive reg ulations, inc luding “re g ulations specific to individual persons or sites” (415 I L CS 5/27(a) (West 2008) ), while the latter are g overne d by section 28.1, which states that the authority to gr ant adjusted standards “shall not be construed s o as t o aff ect or limit the authority of t he Board to adopt, amend or repeal reg ulations specific to individual persons *** or sites” unde r sec tion 27 (415 I L CS 5/ 28.1(h) ( West 2008)). The majority states: “I f the Boa

rd has the specific s t at u t ory authority to adopt reg ulations specific to individual persons or sites, and if the g ranting of an adjus t ed standard petition can

-8-neither affect nor limit that authority
, then nece ssarily the g ranting of such a petition is not it self an exe rcise of that authority .” (Empha ses in orig inal.) Supra ¶ 12. ¶ 29 The majority misreads the Act. The Boa rd’s authority under section 28.1 may not a ffe ct

or limit its authority under section 27, but the Boa rd’s exercise of either authority may still

re s u lt in specific rules and reg ulations. The Boa rd may adopt a specific rule or reg ulat i o n under section 27(a)
, or u n der section 28.1(a) using the label “adjusted standard.” I n fac t, section 28.1 ev en refers back to section 27, stating that the Boa rd may g rant an adjusted standard only for those persons “who can justify such an adjustment consistent with subsection (a) of Section 27 of this Act.” 415 I L CS 5/28.1(a) (West 2008). Thus, the Boa rd, in deciding whether to g rant an adjusted standard, considers the very same fac tors that it does in deciding whe t h er t o adopt a rule or reg ulation. I n promulg ating both reg ulations and adjusted standar ds under the A ct, “the Boa rd shall take into a ccount the exis ting phy sical conditions, the char acte r of the are a involved, includi n g t h e charac ter of surrounding land uses, zoning classifications, the nature o f t h e ex isting air quality
, or receiving body of water, as the case may be, an d t h e technica l fea sibili ty and economic rea sonablene ss of measuring or reduc ing the particula r t y p e of pollution.” 415 I L CS 5/27(a) (West 2008). ¶ 30 Adjusted s t an d ar d s , in short, are specific rules and reg ulations adopted pursuant to a statutory mechanism that differ s from that of traditional rulemaking

. I n Central Il linois Public Servic e Co. v. Pollution Control Board
, 116 I ll. 2d 397, 404-05 (1987), we discussed section 27 and 28.1 of

the Act:
“All rules adopted pursuant to s ec t i o n 2 7, even site-spec ific rules, must be adopte d p u rs u ant to a detailed proce dure, including specific consideration of the economic impact of the reg ulation [citation]
, publication, hearings, and stenog raphic
transcription of tes timony [citation]

. Section 28.1, on the other hand, allows the Boa rd an alternative method of adopting site-spec ific modifications to g ener al rules. Adjusted standards may be adopted under section 28.1 without all of the proce dural

s t eps require d for the adoption of g ener al reg ulations, so long as the orig inal
reg ulation of gen er al applicability
, adopted pursuant to the full rulemaking procedures, specifie s the proce dures and levels of justification which will entitle a petitioner to an a djusted standard.” The impetus for section 2 8

. 1 came from an opinion by the Boa rd in which it adopted “streamlined proce dures wher eby site-spec ific relief could be gra nted without full rulema k in g p roce dures for eac h site-spec ific reg ulation.” Central Illinois Public Servic e Co

. , 1 1 6 I ll. 2d at 405-06 (citing In re Rev iew of Existing Regulations, Rule 602 of Chapter 3: W ater Pollution C ombined Sewe r Ove rflow , 46 I ll. Pol lution C ontrol Bd. Op. 63 ( 1982)). ¶ 31 Under section 27, the Boa rd must comply with the panoply of f ormal require ments befor e it acts. See 41 5 I L C S 5 / 2 7 (b ) (West 2008). Under section 28.1, the Boa rd may act more

ex p ed i t i ously
, and avoid those require ments, as well as the rulemaking provisions of the I llinois Administr at i v e Procedur e Act. See 415 I L CS 5/28.1(a) (West 2008). Section 28.1
may make the proc ess by which the Boa rd rea ches a decision less cumber some, but it does

-9-not transform that decision i nto something other than a spe cific r

ule or re g ulation. That i s, specific rules and reg ulations adopted under sections 27 and 28.1 are substantively simil ar, though pr ocedur ally

differ ent. ¶ 32 The majorit y p l ac es g rea t emphasis upon the phrase “adjudicatory determination” in section 28.1, stating that the dec ision to gra nt an adjusted standa rd is
“an adjudicative determination–that is, quasi-judicial in n at u re

. By contra st, the adoption of a rule or reg ulation is legislative in na ture. [C itation.] I f the g ranting of

an adjusted standard is judicial in nature, and the adoption of a rule or reg ulation is legislative in nature , then there is simply no way t o co n clude the g ranting of an adjusted st andar d results in the adoption of a rule or reg ulatio n

. T h e t wo functions

are fundame ntally

distinct.” (Emphases in orig inal.) Supra ¶ 13. ¶ 33 H o w ever , section 28.1(b) blurs the line betwee n the Boa rd’s judicial and leg islative r o le s , beca use it allows the Boa

rd, in adopting a g ener al rule or reg ulation, to indicate the level of justification, or conditions, require d for relief fr o m t h at rule. 415 I L CS 5/28.1(b) (West 2008). The Boa

rd did that here

. See 35 I ll. Adm. Code § 720.122 (2011). The Boa rd, in this context, has a dual role. Gra nting a party relief from a reg ulation is quasi-judicial, but placing conditions on such relief is quasi-leg islative. Environmental Protection Agenc y v. Pollution Control Board
, 86 I ll. 2d 390, 400 (1981). Conditi ons are like a rule, operating prospec tively

on a party who can fulfill them. See Monsanto Co. v. Pollution Control Board
, 67 I ll. 2d 276, 290 (1977) ( holding that the pow er to impose conditions on variances from environmenta l
reg ulations is quasi-leg islative). The Boa rd’s leg islative and judici al fu n ct ions are not as fundame ntally distinct as the majority insists
, but t o t h e ex tent that they are , it rema ins a distinction wi t hout a differ ence –a distinction, ag ain, betwee n the proce sses by which decisions are rea ched, not the decisions themselves. The label place d upon an ad justed standard is just that: a label. I t has no bear i n g upon who may prosec ute an appea l of its validity

. ¶ 34 Finally
, the Boa rd itself, despite its curr ent position in this case , has previously stated that
any person should be able to obtain judicial revie w of an adjusted standard. On J une 8, 1989, the Boa rd issued an opinion and order reg arding proce dural rules re v isions to various sections of Article 35 of the I llinois Administrative Code. In re Procedural Rules Rev ision
, No. R88-5(A) (I ll. Pol lution C ontrol Bd. June 8, 1989). Reg arding section 106.905, which has since been repe aled, the B oard discusse d who may appea l a djusted standard decisions 3 under se ction 28.1 of the Ac t: “Since Section 28.1 of the Act does sp ecif ically name ‘parties’ to an adjusted standard [p] roce eding the Boa rd believes that an appea l of an adjusted standard decision would be available to any person, as it is in a rulemaking context. The Boa rd
cannot see a distinction betwee n the public’s interest i n an appea l of an

Sec ti on 106. 905 pro vided, “Any fi nal ord er or det er m ina ti on of the Boar d in an adj ust ed 3

st and ar d pr oce edi ng m ay be a ppe al ed t o t he a ppe ll at e c our t p urs uan t t o se ct ion 41 of t he Ac t.” Id.
at 110

- 62. Ac cor din g to t he Bo ar d, i t “ m er el y rest at e[ d]” sec ti on 28.1( g) of the Act

. Id. at 100

- 17;

see 415 I LCS 5/ 28.1 (g) ( We st200 8).

-10-environmenta l standard wh i ch was promulgate d as a rule as opposed t o one which

was adopted pursuant to an adjusted standard proce eding

. The Act has [p] rovided for broad public participa tio n in the adoption and appea l of environmenta l standards. There is no appar ent rea son to deviate from t h at theme for adjusted standard
proce eding s.” Id. at 110-17. ¶ 35 Section 29(a) should provide per sons a ffe cted or potentially aff ecte d parties a n avenue to appea l the Boa

rd’s decision to g rant adjusted standard. I would find the opposition g roups have sta nding a nd rea ch the merits of this appeal.

¶ 36 CHI EF JUSTI CE KI L BRI DE joins in this dissent.

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