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Chamber of Commerce v. Pollution Contr. Bd.

OPINION FILED JUNE 14, 1977.

ILLINOIS STATE CHAMBER OF COMMERCE, PETITIONER,

v.

THE POLLUTION CONTROL BOARD, RESPONDENT. — COMMONWEALTH EDISON COMPANY, PETITIONER,

v.

THE POLLUTION CONTROL BOARD, RESPONDENT. — ASSOCIATION FOR MOTOR SPORTS OF ILLINOIS ET AL., PETITIONERS,

v.

THE POLLUTION CONTROL BOARD, RESPONDENT.



PETITION for review of order of Pollution Control Board.

MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

In this case, we consider three petitions for direct appellate review of regulations promulgated by the Illinois Pollution Control Board (PCB) pursuant to sections 29 and 41 of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1975, ch. 111 1/2, pars. 1029, 1041) and Supreme Court Rule 335 (Ill. Rev. Stat. 1975, ch. 110A, par. 335). The regulations establish standards for the control of noise pollution from stationary noise sources. (See proceedings of the Illinois Pollution Control Board, No. R72-2.) Because of the common issues presented by these petitions, the cases have been consolidated in this court for argument and opinion.

In essence, there are four issues to be resolved: (1) whether petitioner Illinois State Chamber of Commerce (Chamber) has standing to bring its petition; (2) the adequacy of the published notices of public hearings on the proposed regulations; (3) whether certain of the regulations, as promulgated, are an excess of PCB's authority under the Act; and (4) whether certain of the regulations, as promulgated, are arbitrary, capricious, and unreasonable.

I.

The scheme and scope of these regulations, as well as the history of their development, have been previously discussed in detail by our supreme court in Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill.2d 305, 319 N.E.2d 782, and by the fifth district of this court in Shell Oil Co. v. Pollution Control Board (5th Dist. 1976), 37 Ill. App.3d 264, 346 N.E.2d 212. We need not repeat that discussion here. We believe that those two cases are dispositive of the principal issues presented by these petitioners.

II. Standing

PCB contends that the Chamber lacks standing under the Act to seek review of PCB regulations. *fn1 The Environmental Protection Act sets forth its own standing requirements. Section 29 of the Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1029) provides:

"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."

Section 41 (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1041) provides, in relevant part:

"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, and any person adversely affected by a final order or determination of the Board may obtain judicial review, * * * pursuant to the provisions of the `Administrative Review Act,' * * *. 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."

The Chamber in its brief asserts it is adversely affected by these regulations in its representative capacity for business and industry and as a citizen of Illinois. The PCB suggests that the record may not support the Chamber's assertion. As PCB assumed that the Chamber's claim is supported by the record, so do we for purposes of resolving this point. It is also to be noted that the Chamber participated as a party in the proceedings before the PCB. *fn2

PCB does not argue that the Chamber is not a "person" within the meaning of section 29 (see Lake County Contractors Association v. Pollution Control Board (1973), 54 Ill.2d 16, 294 N.E.2d 259), but contends that section 29 limits standing to those "persons" whose "legal rights" (defined by the PCB as rights arising out of contract, those protected against tortious invasion, and those founded upon a statute which confers a privilege) are "adversely affected" and that the Chamber is not adversely affected by its noise pollution regulations. PCB cites Dolnick v. Redmond (1st Dist. 1972), 4 Ill. App.3d 1037, 283 N.E.2d 113, and Swain v. County of Winnebago (2d Dist. 1969), 111 Ill. App.2d 458, 250 N.E.2d 439, in support of its position. However, both of those cases are distinguishable because neither involved a statute setting forth standing requirements such as we now consider.

In response to these arguments, the Chamber contends that the unfavorable business climate which will result in Illinois from the enactment of poorly conceived noise pollution regulations will cause it to lose the financial support of those of its members who choose to relocate in other states, as well as the financial support of businesses which choose not to locate new facilities in Illinois as a result of the regulations. This is the "adverse effect" upon which the Chamber bases its standing.

While the supreme court raised the question of standing in the Coal Operators case (59 Ill.2d 305, 308), it nevertheless decided the case on its merits. Although the court declined to discuss the issue because it had not been raised, it can be urged that by noting the issue and then proceeding to discuss the merits of the case, the court was not troubled by the standing of the ...


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