By Gabrielle Sigel and Phoebe B. Scott
On October 27, 2011, the Illinois Supreme Court, in a 5-2 decision, held that the Sierra Club and Peoria Families Against Toxic Waste ("the opposition groups") did not have standing to seek review of an Illinois Pollution Control Board ("Board") decision granting a company's petition to be relieved of compliance with a hazardous waste regulation. Sierra Club v. The Illinois Pollution Control Board, No. 110882 (Ill. Oct. 27, 2011).
In 1989, the Illinois Environmental Protection Agency ("IEPA") issued a permit to Peoria Disposal Company ("PDC"), allowing it to operate a waste stabilization facility for the storage and treatment of hazardous and nonhazardous waste, which waste is regulated by federal and substantially similar state law. In 2008, PDC filed a petition asking the Board to delist certain residue in order to exclude it from hazardous waste regulation. After a public hearing in which the opposition groups provided comments, the Board issued an order granting PDC an adjusted standard, thereby granting PDC's request to delist certain residues as hazardous waste. The opposition groups filed a petition for court review of that order. Both the Board and the PDC argued that the opposition groups did not have standing to appeal.
The appellate court, in a divided decision, affirmed the Board's decision, holding that the opposition groups had standing and that the Board order was correct on the merits. The opposition groups then appealed the decision on the merits to the Illinois Supreme Court, which first reviewed whether the opposition groups had standing to seek judicial review of the Board's order.
The Illinois Supreme Court analyzed the opposition groups' standing under the provisions of the Illinois Environmental Protection Act ("the Act"). The Act establishes certain categories of persons and procedures which can be appealed. Specifically, Section 29(a) of the Act provides that any person adversely affected by a "rule or regulation" of the Board, can appeal the issuance of that rule or regulation. The parties disputed whether the adjusted standard issued to delist PDC's residue as a hazardous waste was such an appealable "rule or regulation."
The Court held that the Board's order is not an appealable rule or regulation by the opposition groups. Notably, although the opposition groups had participated in public comment, they were not officially parties to the Board proceedings and, thus, were not listed among the specific entities entitled to appeal the issuance of an adjusted standard. The Court found that, as a matter of statutory language and administrative practice, an adjusted standard, which had been issued to PDC, is distinct from a regulation of general application, the latter of which is appealable. Therefore, the Court held that persons who participate in public comment proceedings do not have the right under Illinois law to appeal the Board's determination of individualized adjustments to state rules or regulations.
In dissent, two Justices wrote that the majority's distinctions between rules of general application and individualized adjusted standards are distinctions without a difference with respect to appellate rights. The dissenting Justices urged that all those adversely affected by an adjusted standard should have the right to appeal.
