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

_________________________________________________________________ JUSTICE LYTTON delivered the opinion of the court:

_________________________________________________________________

Peoria Disposal Company ( PDC) f iled 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 purpose s. The Board issued an

or der gr anting PDC's petition. Sierra Club and Peoria Families Against Toxic Waste (collectively referred to as the opp osition 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 requiri ng PDC to address future perm it mod ifications; (3) finding that local citing approval was3

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 p et ition, 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 stabilize d r esidue" (EAFDSR). On June 12, 2008, IEPA filed a response generally supporting the petition. The Board conducted a public hearing on PDC’s petit ion on August 18, 2008. PDC presented two witnesses at th e hearing. PDC’s first witness was Laura Curtis, a senior environmental engineer for RMT, Inc., an environmental energy and engineering firm th at provides consulting services to businesses like P D C. PDC retained her to evaluate the new process it4

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 successf ul ly removed the hazardous properties from the was te. She concluded that PDC’s treatment of the EAFD waste renders it nonhazardous and subject to delisting. PDC’s next witness was A jit Ch owdhury, a chemical engineer. He testifi ed 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 t h e 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 i ssued a 1 03-page opinion and order granting PDC’s delisting petition subject to several conditi ons. In re RCRA Delisting Adjusted Standard Petition of Peoria D isp osal Company , Ill. Pollution Control Bd. Op. AS 08-105

(January 8, 2009) (hereinafter Board Order ). In its summary, the Board stated:

"Based on a thorough r ev iew of this record, the Board finds that PDC has met th e legal tests for delisting under Section 28.1 of the Environmental Protection Act *** and Section 720 .122 of the Board’s hazardous wast e regulations ***. PDC has demonstrated that (1) the treatment residue does not meet any of the criteria under whic h K061 EAF dust was listed as hazardous waste; (2) there is no reasonable b as is 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 hazard ous 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 condi tions upon PDC, including (1) requiring analytical proof that every batch of EAFDSRleaving PDC’s facility does not contain chemical con ce ntrations in excess of6

those found to be safe, (2) adding dioxin s and f urans to the constituents for which PDC will have to test, 3) tightening the description of disposal faci lit ies that may receive delisted treatment residue, and (4) narrowing the in stances when PDC can alter i ts sta bilization 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 conc erns r aised in public comments. One of those concerns was wheth er reo pener language used in delistings granted by the Un ited States Environmental Protection Agency (USEPA) should be included in PDC’s delisting. The Board found th at USE PA 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 th at "Illinois’ comprehensive environmental regulations, supplemented by corrective action and inju nctive authorities under the Act, provide the ability t o 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 B oard a ddressed concerns raised by the opposition7

groups that PDC did not provide sufficient evidence to satisfy the fact ors 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 Or de r , 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 w at er 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 ad justed 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’ argument8

tha t 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 pet ition. " 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 t he opp osition 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.9

App. 3d 465, 468, 891 N.E.2d 1039, 1042 (2008). S ecti on 28.1 of the Act, which governs adjusted standards, provides that "[a] final Boa rd det ermination 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 th e Bo ard, 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 co py of th e 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 determination10

of the validity or application of such rule or regulation by petition for review under Section 4 1 of th is 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 d elisti ng 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 s erv es 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 promulg at ing 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 747,11

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 adjud icator y det ermination, an adjusted standard for persons who can justif y such an adjustment consistent with subsection (a) of Section 27 of the Act." 415 ILCS 5/28.1(a) (West 2008). The opposition groups respo nd that the Board’s order granting PDC’s delisting petitio n

was a regulation based on section 27 of the Act, the B oard’s own rules and the placement of the adjusted standard provisions in the Act. Section 27(a) provides: "The Board may adopt s ubstantive 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). A dditionally, the Board’s rules state that "[a]n adjusted standard has the effect of an e nviron mental 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 Title12

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 s ince t he Board imposed several conditions on PDC. Cf . Monsanto Co. v. Pollution Control Board , 67 Ill. 2d 276, 2 90, 367 N. E.2d 684, 690 (1977) (power granted to the Board to impose conditio ns on variances "is tantamo u nt 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,13

the cha racte r 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 t he fac tors before promulgating it. See Granite Ci ty Divis ion 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 th e 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

on e and a matter of Board discretion, and did not intend by that14

section to impose a specific evidentiary burden on the Board"). Alt hough not required to do so, the Board specificall y addressed the section 27(a) factors, including the character of the

area involved and the technica l fe asibility and economic

r easonableness of measuring or reducing the EAFSD. The Bo ar d 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 r esu lt from the delisting. Ultimately, the Board found that the delisting could be granted "consist ent 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 g ran ting 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 Swenson15

Spreader Co. , 308 Ill. App. 3d at 747-78, 721 N.E.2d at 728. T he B oard 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 pe titioner 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 d etermined that no future permits would be

ne cessary. If IEPA later determines that permits are necessary , IEPAmust notify PDC of such and may institute proceedings to require PDC to obtain the necessar y perm its. 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 P DC 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 con tro l facility by accepting EAFDSR for the first time. They further contend that PDC is transforming its facility16

froma 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 41 5 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 a pproval to store, dispose of, transfer or incin era te, 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 nonhazardous product. PDC is not seeking an expansion beyond the17

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 permitt ed to and does treat hazardous waste. Furthermore, after treatm ent, 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 th at ter m 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 operati ng a transfer station. The WSF is a facility designed t o treat waste. A transfer station does not treat waste bu t 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 cas e. Th e Board determined that the issue before it was not the legal interpretation of terms such a s "new pollution control facility" or "transfer station" and how they mig ht be applied. Board Order , Ill. Pollution Control Bd. Op. AS 08-10, at 86. Rather, the issue was whether the delisting petition could be al lowed. We agree. The Board correctly found that the petition18

should be granted. V. Reopener Language Fin ally, the opposition groups argue that the Board shou l d have required reopener la nguage 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. 3 d 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 R egional Admin istrat or 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 susp end ing or revoking the exclusion. See 40 C.F.R. Part 261, App. IX (2008). In Illinois, I EPA an d state and local officials have broad authority to take action to protect human health and the

e nvir onment when a potentially hazardous or dangerous condition exists. Pursuant to section 4(s) of t he Act, IEPA "shall have19

authority to take whatever preventive or corrective action is necessary or appropriate *** whenever any hazardous subst ance or pesticide is released or there is a substant ial threat of such a release into the envir onment ." 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 r eq uest of IEPA, or on their own motion, institute a civil action to enjoin or restrain violations of the Act, any rule or regulatio n adopted under the Act, any permit or ter m 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 Attorn ey General, on the request of IEPA or their own motio n, to in stitute 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) . Bec ause 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 reo pener language is not only unnecessary but futile based on Illinois’ system of environmental gov e rnance. 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

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divided between IEPA and the Board. See 415 ILCS 5/4 & 5/5 (West 2008). IEPA is responsible for permitting, site in spe ctions 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 pe tit ions for varianc es 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

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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

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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,

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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

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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 undersection 28.1 of the Act is an adjudicatory decision or a rulemaking 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

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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

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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 aspectsof a decision to grant or deny an adjusted standard are quasilegislative determinations, and the court should apply the

### 27

arbitrary and capricious standard of review to those quasilegislative 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

### 28

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

### 29

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

### 30

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

### 31

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

### 32

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:

### 33 “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

### 34

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:

### 35 “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.

### 36 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

### 37

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

### 38

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 , 155Ill. 2d 149, has misdirected this court. PDC has overgeneralized the holding in Granite City for several reasons. First, Granite City did not involve an adjusted standard request as does the case at bar. In Granite City , our supreme court only considered the Board’s statutory obligation when first creating substantive environmental regulations, rather than the Board’s subsequent regulatory obligations when considering an individual adjusted standard from a regulation of general applicability. In that limited context of enacting general regulations, our supreme court held that the Board is not required by statute to recite a

### 39

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 pro vides:

“ Afteradopti

n g a re gul ati on of gen eral appl i ca b i li ty , the B oard m

ay gr an t, in a subse que nt adjud icat or y det er minatio n, a n adjus t ed s t anda rd for per so ns who

ca n ju st ify su ch an ad

jus t men t co nsis t en t wit h su bse ct io n ( a) o f Se ct io n 2 7 o f t his Act.” (Em

phasi s ad ded.) 4 15 IL CS 5/2 8.1 (W est 200 8). Section 28.1 of the A

ct fi rst requires the peti

tioner, not the Board, to jus tif y the adj usted standard. Next, section 28.1 requi res the Board to is sue an order whi ch i ncl udes f actual f in din gs and r eas ons pr esu mably explaini ng ho w t he pe t itio ner just ifi ed t he ad just ed s t anda rd befo re t he Board. The

Board’ s order i

n the ca se a

t bar do es no t co nt ain spe cific fi ndings o r r eas oning

conc ern i ng th e se cti on 27( a) f

actors i n the con text of PDC’ s ev

i den ce s ubm i tted to the Board

. T he r efo r e, I ag r ee wit h t he ap pe llant ’s vie w t ha t t he Bo ar d’ s o r de rin t his c as e c an no t be up he ld i n the ab sen

ce of the f actual f i ndi ngs and reas ons r

equi red b y section 28.1 of the A ct. Secti on 27( a) F actors Arg uably, t he Bo ar d’s failur e t o includ e sp ecific findings of fac t wit h re gar d t o t he

### 40

sec t ion 2 7( a) fact or s may be dire ct ly relat ed t o a n abse nce o f such e vidence intr od uce d int o t he record by PDC. Section 27(a) of

the Act provi des: “In p ro mulgat ing re gulat ions u nder t his Act , t he Bo ar d sha ll tak e into acc ou nt t he exist ing physical co ndit ions, t he cha ra ct er of t he ar ea invo lved, including t he char act er of su rr ou nding land u ses, zo ning classificat ions, t he nat ur e o f the exist ing air q ualit y, o r r ece iving bod y of wat er , a s t he ca se may be, and t he t echnica l feasibil

ity and e co nomic r eas ona bleness o f measur ing o r r edu cing t he par t icular t ype o f po llutio n. T he ge ner ality o f this g ra nt of a ut hor ity shall only be limit ed by t he sp ec ifica t io ns o f pa rt icu lar cla ss es o f r eg ula t io ns e lse wh er e in t his Act.” 415 IL CS 5/2 7(a) (W est 200 8). In t his case , t her e ar e t wo geo gr aphic a re as invo lved o r p ot ent ially affect ed by o per at ions allowed b y the adj usted standard. The fi rst area pot entia

ll y a ff ected is the e

xpan din g resi dentia

l neighbo rho od in Peo ria nea r P DC’s WSF. Afte r t he K06 1 is ge ner at ed by PD C’s c ust omer s, t he

was t e is de livered t o P eo ria, wher e PD C t re at s t he K06 1 wit h a ‘new ’ chemical pr oc ess a nd st or es t he K06 1 abo ve gr ou nd and ou t do or s befo re t he wa st e is ver ifi ed a s EAF DS R. Fo r t he K061 unsuccessf

ull y treated, PDC wil

l trans fer K

061 to a hazardous landf

il l f or disposal . Af

ter

v eri f i ca ti on , or i n oth er words , suc ce ss f

ul tre atm en t, PD C transf

er s EAFD SR

f rom Pe ori a to Ta zew ell Cou nt y. Thu s, t he se co nd “involved ” ar ea is lo cat ed in T aze well Co unt y, whe re t he

suc ces sfully tre at ed K0 61, now labeled E AFDS R, will be dispo sed acc or ding t o t he co ndit ions attached to the a

dj usted s tandard. Du ri n g th e pub l i c h ea ri n g, P DCdi

d n ot i n trod uc e a n y sti pul ati on s or an y ag re ed ex h i b i ts

an d f ai l ed to prov i de

ex pert or l ay testi mon y con cern i n g th e s ecti on 27 (a) f actorswi th re ga rd to

### 41

eithe r g eo gr aphic lo cat ion. In fac t , P DC p re sent ed o nly two wit nesse s and fou r e xhibits t o t he Board during the publi

c heari ng. One wi

tness, Laura Curtis , a seni or envi ronmen tal en gin eer at RMT, Inc., and PDC's i

ndependent consultant, t estifi ed about the new chem

ical pro cess developed f

or PDC to stab i l ize e l ectric arc f urnace dust (EA FD) waste. A

sec ond wi

tnes s, Dr. Aj it Ch owdhury, a f

ormer em ploy ee of RMT, testif

ie d that PDC hi

red hi m to devel

op t he n ew ch em i cal proc es s f or s tab i l izi

ng K061 wa ste . PD C wi l l

the n l i cens e the p roce ss

f rom Cho wdhu ry beca use Cho wdhu ry is co nsider ing pat ent ing his te chnique . At t he t ime of t he de li sti n g h ea ri n g, C h owd h ur y , R MT , a n d P DCrepr es en

tati v es sta ted th ey weren ot at l

i b er ty to di scu ss th e exact ch em i cals us ed i

n th i s new trea

tme nt proce ss b eca

use i t was a trade s ecret. On ce th e del i sti n g is g ra n ted , C h owd

h ur y wi l l b e p ai d l i cen si n g f ee s b y PD C. The f

our ex h i b i ts PDC introduced for the Bo ard’s consideration in cluded: Exhi

bi ts 1 and 2 which were Curtis’

re sume a nd t he o ut line of her t est imony; Exhibit 3 c ons iste d o f Dr. Cho wdhu ry’s r esu me; and Exhi bi t 4 was the list of 10 steel m il ls currently generatin g K061 waste an

d deliv erin g the K061 to PDC f or treatmen

t and on-s i te di sposa l

. Alt ho ug h t he Bo ar d s t at ed t ha t it "c ar efu lly co nsid er ed t he info rmat io n in t his r ec o r d in view of the Section 27(a) f actors, as requi

red by Section 28.1(a) and f

in ds that the delistin

g ma y be granted consi

stent with those f

actors, ” the Board does not st ate any “f acts and reasons”

whi ch

cau sed t he Bo ar d t o c onc lude P DC's evidenc e sa t isfied PDC ’s bur den o f pro of t o ju st ify t he ind ivid ua l ad

ju st ed st an da r d a s r eq ui r ed by s ec t io n 2 8. 1 o f t he Ac t . T he ab se nc e o f any specific “f acts a nd r eas ons” conc ern i ng th e se cti on 27( a) f

actors re nde rs the Board’ s de ci sion arbi

trary and caprici

ous. Board’s Deci sion is Arbi trary and Ca

prici ous

### 42

In Greer v. Illinois Housing Developme nt Authority, 12 2 I ll. 2 d 4 62 ( 19 88 ) , o ur su pr eme court provided the f

oll owing gui delin es f or t hi s court t o apply

when determi ni ng whether an adm in is trat iv e agency 's action is

arbi trary and capri

ci ous. Our supreme court held: “A gen cy action i s arbi

trary and capri cious if

the a gen cy : (1) rel i es on f actors wh i ch th e l eg i sl atu redi d n ot i n ten d f or th e a gen cy to co n si der; (2 ) e n

ti re l y f ai l s to

con si der a n i m por tan t as pe ct of th e prob l em; or (3 ) of

f er s a n ex pl an ati on f or i ts decisi on which runs counte r to the eviden ce before the agency, or which i s so i m pl au si bl e that i t coul d n ot be as cri be d to a dif f ere nc e i n v i ew or th e p roduct of agency expertis e.” Greer, 122 Ill . 2d at 505-06, ci ting Motor Ve

hicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co. , 46 3 U .S. 29 , 43 , 77L. Ed. 2d 44 3, 4 58 , 10 3 S . C t. 2856, 2 866-6 7 (198 3). In thi s c as e, I f

ocu s on th e s ec ond a

n d th i rd f actorsset out b

y our su pr em e c our t. F i rs t, t he Bo ar d failed t o c ons ider an impor t ant asp ect of t he pr oblem, namely, whet her PD C met t he burden of proo f as signed to an i

ndi vi dual adj usted standard petitioner b y s ection 104.426 of the Board’s own regulations. Sec ond, th e B oard ’s sta tem en t, th at i t ca ref ul l y consi dered the se cti on 27( a) fact or s in li

ght of t he r eco rd , o ffers a n explana t ion t hat canno t be r eco nciled wit h t he

rec ord b y thi s c ourt b ec au se

the Boa rd’ s order s i

m pl y doe s n ot con tai n w ri tten f i nd i ng s or i den tif y an y sub stan tiv e ev i den ce s upporti ng th e Board ’sconc l

usi ons f or thi s court to recon

cil e. In m y v ie w, the absen

ce of any fi ndi ngs or concl

usions stating that the i

ndi vi dual adjusted standard w ould not r esult in envi ronmental or health ef

fects more adverse than those

consi dered by the Boa rd w he n or i gi na l l y adopti ng the gene ral reg ul ati on co nsist ent wit h t he

### 43

section 27(a) f

actors, renders the Board’s rul in g purely arbi trary. For the reasons di scussed ab ove, I c oncl

ude the Board ’sdeci

sion wa s arbi

trary and capri cious, an

d m ust b e rev erse d. The Basis o f the Pet itio n In addition to app ly in g the incorrect burden of proo f concerni ng the section 27(a) facto rs, the Board does not ma

ke any fi ndi ngs concern

in g the basis of the peti

tion pursuan

t t o either sub section

(a) or (b ) of s ection 720 .122. The carele ssnes s of t he Board’s a

pproach is e

viden t in the Board’s ultimate, incomplete finding set out be low: “Based on all the foregoing, the Board finds that PDC has [blank in original] its burden of proo f under the RC RA regulat ions for r eceipt of a delis ting. See 3 5 Ill. A dm. Code 720.122( a), ( b),(d) , (h) , (i) , (p

).” Board Order , Ill. Pollution Control Bd. Op. A S 08-- 10, at 57

. Obviou sly, thi s finding set o ut by the Boa rd, on page 57 of its order, do es not stat e whether P DC “satisfied” or “did not satisfy” its burden of proof in any context. In the i ndi vi dual adj usted standard petition, PDC requested the Board to “delist stabil ized

re si du e g en erate d f rom tre atm en t of K06 1 e l ectri

c a rcf ur n ac e [ EA F] du st a t PD C’ s waste stab i lization f

aci l i ty [WSF] i

n Pe oria Coun ty.” On page 7 of the B oard’s

order, the

Board acknowledges “PDC

addresses b ot h sub sections (a) and (b) of Section 720.122.” Board Order , Ill. Pollution Control Bd. Op. AS 08

- - 10 , at 7. Ho we ve r , t he Bo ar d d o es no t sp ec ify o n w ha t ba sis t he individual ad

just ed s t anda rd was gr ant ed. The only finding ado pt ed by t he Bo ar d r ega rd ing th e reg ul ator y b as i s f or th e p eti ti on sta tes , “ [T] h e B oard f

i n dsth at P DCh as

[b l an k i n ori gi n al ] i ts burden of proo f un der the RCRA

regulations f

or receipt of a del

is ting. See 35 Il

l. A dm. Code 720.122(a), (b), (d) , (h), (i), (p).” Board Order , Ill . Poll ution Control Bd. Op. AS 08--10, at 57.

### 44

I point out t hat each paragraph of section 720.122 of Title 35 of the Code sets out distin ct but s epara

te cons i derati

ons f or an a dj usted s tandard re quest. 35 Ill . Ad m . Code §7 20.122

. Paragraph (a) requires

waste to be del

is ted by waste stream f

rom a si ngle generator. Paragraph (b) requires an anal

ysi s of the combi

ned waste mi

xture as a whole with respect t o t hose add itio nal co nst itu ent s t hat PD C ad ds t o s t abilize the F06 1 de livered t he WSF. The requi rem en ts of p aragr

aph (a) an d (b ) are n

ot in terchangeabl e. The B oard does

n ot ad dr es s w h eth er PD C s atisf

i ed th ei r b urden of proof wi th re ga rd to

su bp ar ag r ap h ( a) alo ne , su bp ar ag r ap h ( b) alo ne , o rmet so me o f t he r eq uir eme nt s s et o ut in subp ar agr aph ( a) and o t her s set ou t in subpa ra gr aph ( b) o f sect ion 7 20. 122 of T itle 3 5 o f the Code. 35 Ill . Ad

m . Code §§ 720.12 2(a), (b). The glari ng a bs ence of an y f i ndi ngs by the B oard wit h re gar d t o s ect ion 7 20. 122 (a ) o r ( b) mak es it imposs ible for t his co ur t t o e valuat e t he suff ici ency of the factual basis for the Boa rd’s or der grant in g the PDC's pet ition to delist

suc ces sf ull y treated K

061 w aste. At t he ve ry lea st , t his c o ur t sho uld no w r ema nd t he mat t er t o t he Bo ar d fo rsp ec ific findings wit h re gar d t o t he se par at e r equ irement s o f sect ion 7 20. 122 (a ) o r ( b) be for e de ciding whether th

ose f i nd i ng s a re s upp orted by the rec ord or may con f li ct w i th prev i ouspre ce dent f

rom thi s c our t. New P oll uti on Con trol Fa ci li ty PD C’ s E AFD SR invo lve s a ne w c he mica l pr o ce ss r ec en t ly de ve lo pe d fo rPD C lo ng aft er it received a permi

t for its WSF. The Bo ard’s or der acknowledges that PDC has never ma naged EAFDSR i

n a l andf i l l prior to the ha

ndf ul of dem onstra tion tria l s rel ated to thi s petiti

on. Board Order , Ill. Pollution Control Bd. Op. AS 08-10, at 20. Simi larl y, PDC has never

t ra nsferr ed t he

### 45

EAFDSR to another landfi ll for disposal. Fi

nal ly , EAFDSR has never

been di sposed in a Cl

ass D l an df i l l an d c om m i n gl ed wi th oth er wa ste ac ce pte d b y th e C l as s Dl an

d- b as ed un i t. In the past 20 y

ears, PDC has m

erely accepted K061 dust from 10 separate steel pr o du ce r s fo rdis po sa l o n sit e. Ho we ve r , be fo r e d isp o sing o f t he wa st e in it s ha za r do us lan dfill, PD C ma na ge d t he wa st e fo rt he so le p ur po se o f pla cin g it in P DC ’s Cla ss C la nd fill by t r ea t ing it in PDC’ s co nt ainment bu ilding and wa st e st abilizatio n facility (WSF) . Aft er t re at ing and temporaril

y s to rin g K061 i ndoors in the

WSF, a f ull y e ncl osed steel structure, PDC t hen dis po se d o f t he t r ea t ed K0 61 be lo w g r o un d, in ade dic at ed ha za r do us wa st e la nd fill at t he sa me loca t ion. Over t he co ur se o f the last 20 yea rs, K061 was t e has never left P DC’s site and sub seq uen tly reen tered the Peori

a com m uni ty d uri ng tra ns f er to another l

ocati on f or di sposa

l

. Now, PDC wish

es to deli st the new sub stance label ed EAFDSR a

nd, af ter deli stin

g, wil l trans fer and transport t he waste off si te for disposal

el sewhere. PD C’ s p eti

ti on , a n d th e B oard’ s or

der, a ss um es som e p orti on of th e K 06 1 w aste deliv ered to P DC will

never mee

t t he requi

remen ts for delistin

g the purport ed EAFDSR a fter i ni ti al trea tmen t an d retrea tmen t by PDC . In thi s eve nt, the Boa rd req ui res PDC to di sp ose

of K061 waste i

n a Cl ass C l andf il l. However, PDC n

o longer has

the capaci

ty to dispose of K

061

wa ste i n i ts C l as s C l an df i l l an d m us t now tran sf er u ns uc ce ss f ul l y trea ted K061 wa ste

to a dif feren t hazardous lan

dfi ll for di sposal. Thus , for the fi rst t im e PDC will

act as a transfe

r sta ti on b y tra n sf er ri n g n onde l i ste d, h

az ardou s K

06 1w aste of

f si te. It i s a l so i m por tan t to note that PDC’s

petiti on states that PDC

shoul d not be considered the

“ge nerator” of the EAFDSR

was t e, pr esu mably f

or pur po ses o f sect ion 7 20. 122 (a ), unt il after t he t re at ed w ast e meet s t he adj usted standard criteri a. See Board Order , Ill . Poll ution Control Bd. Op. AS 08--10, at 5.

### 46

I c onc lude t hat PD C's new , first -t ime ope ra t ion as an abo ve gr ou nd st or age yard and tran sf er s tation f or f uture of f -s i te di sp osa l f al l s s qua rel y wi thi n th e def i ni ti on of a n ew pol l ution

co nt r o l fac ilit y t ha t t he Co un t y mus t ap pr o ve fo rsit ing r eg ar dle ss o f wh et he rt he K0 61 wa st e is ha zardous or del i sted a s n onhaza rdous EA FDS R. 415 ILCS 5/3.33 0(b ) (We st 2006 ). Sum mary The u n den i ab l e rea

l i ty i s th at P DCNo. 1 L an

df i l l pr es um ab l y h as n ow reach

ed ca paci ty at t he t ime of t his app eal. I u nder st and t he st eel manufac t ur er s in Illinois need a co st -e ffect ive

me thod t o dispose of thei

r Ill in ois-gen erated waste. Yet , 60% of the waste deli sted for PDC

or iginat es w ith o ut -o f-st at e cu st omer s. P er haps , t hese ou t -o f-st at e ge ner at or s may have h az ardou s l

an df i l l s a v ai l ab l e i n th ei r hom e state s. Non

eth el es s, du e to th

e c ondi ti on s a ttach ed to PDC’s adj usted standard, the K061 haza rdous waste deli

vered to PDC from out-of-stat e sources wil l c ontinue to be del

iv ered to P DC and then

remai n i n Il li nois for perpetuity. The i

ndi vi dual ad j us ted sta nd ard the reb y ul ti mate l y red uc esthe avai l ab i li ty of sp ac e i n I l li noi s l an df i l l s f or Illi noi s m an uf acturers. The i n di v i du al ad j usted sta n da rd n ot onl y al l ows PD C to c on

ti n ue to ac ce pt K 06 1 w aste gen erated by outside s ources , but n

ow al so al

l ows, f or the f i rst ti me, PDC to store K06 1 outdoors and then t ransfer t reat ed K061 t o o ther facil ities for disposal. T his n

ew co mponent o f PDC’s busi ness , nam el y, transf errin g la rge quantities of treated K061 waste from Peoria to anot her l ocati on f or di sposa

l , ha s n ot recei ve d si tin g approval

by the Pe oria

Coun ty B oard. In summ ary, I agree t hat the o pposition gro ups have standin g to brin g this appeal b ecause t he ad just ed s t anda rd is a qu asi-leg islatively cre at ed e nviro nmenta l reg ulat ion. I c onc lude t he Board’s deci sion is

arbi trary and capri

ci ous because the B oard made n o factual f in din gs

### 47

regardin g the requirem

ents of ei ther section 104.426 of Ti tle 35 of the C ode (35 Ill . Adm . Code §104.4 26) or se cti on 720 .122(a ) or (b) of Ti tle 35 of the C ode (35 Il

l . Ad m . Code §§ 720.12 2(a), (b)) fo rt his c o ur t t o r ev iew

. Ad dit io na lly, t he Bo ar d imp r o pe r ly re lieve d P DC o f t he ir reg ul atory bu rde n of proof relati ng to t he section 27(a) factors of the Act. 415 ILCS 5/27(a) (West 2008). Consequentl y, I would reverse the Board's order granting PDC' s petiti on for an in div idual adjusted standard as bo th arbitrary and caprici ous. Alternative ly, I respe ctfully sugg

est the Board's orde

r cannot be

confirme d on this rec

ord and would rem and the mat

ter to the Board with directions to ente r specif ic findi ngs of f

act regarding PDC's burden to prove the se

ction 27(a) factors as w

ell as the re

quireme nts of se ctions 720.12 2(a) a

nd ( b).