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Chamber of Commerce v. Pollution Control Bd.

OPINION FILED DECEMBER 14, 1978.

THE ILLINOIS STATE CHAMBER OF COMMERCE ET AL., PETITIONERS,

v.

THE POLLUTION CONTROL BOARD, RESPONDENT.



PETITION for review of order of Pollution Control Board.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

This action involves three consolidated petitions for review filed pursuant to the Illinois Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, pars. 1029 and 1041). Petitioners seek direct review of the validity of a July 7, 1977, order of the Illinois Pollution Control Board (Board) in docket R71-23, readopting regulations 203(g)(1) and 204(a) and (c)(1)(A) relating to air quality standards.

The Board first adopted rules 203(g)(1), particulate emissions standards, and 204(a) and (c)(1)(A), sulfur dioxide emissions standards, in 1972. The declared propriety of the Board's adoption of these rules was reversed and the cause remanded to the Board for further consideration in Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill. App.3d 271, 323 N.E.2d 84, aff'd in relevant part (1976), 62 Ill.2d 494, 343 N.E.2d 459. The principal issues presented for review in this case involve the scope of that remanding order and its impact on the subsequent action taken by the Board with regard to regulations 203(g)(1) and 204(a) and (c)(1)(A).

The issues raised by the instant petitions for review were recently considered by the Illinois Appellate Court, Third District, in Ashland Chemical Co. v. Pollution Control Board (1978), 64 Ill. App.3d 169, 381 N.E.2d 56, in which the court reviewed the same rulemaking proceeding now before us. The facts relevant to this action were adequately stated in the Ashland Chemical opinion and we find it unnecessary to recite them again in detail.

In reviewing the 1972 rulemaking proceeding leading to the initial adoption of rules 203(g)(1) and 204(a) and (c)(1)(A) the appellate court in Commonwealth Edison stated: "[P]ossibly scientific evidence may have been developed since the hearing and the resultant Board opinion in this cause that may not demand a relaxation of these challenged rules." (25 Ill. App.3d 271, 288, 323 N.E.2d 84, 96.) The appellate court remanded the rules to the Board with instructions "either to validate [the rules] in accordance with section 27 of the Act or to prepare proper rules as substitutes." (25 Ill. App.3d 271, 288, 323 N.E.2d 84, 96.) The supreme court affirmed the appellate court's decision to remand rules 203(g)(1) and 204(a) and (c)(1)(A) to the Board and declined "to determine the validity of [the rules] on the basis of evidence adduced at hearings held in 1970, 1971, and 1972 * * *." 62 Ill.2d 494, 503, 343 N.E.2d 459, 465.

After remand in the spring of 1976, the Board consolidated the record in R71-23 (concerning the remanded rules) with other related proceedings in R74-2 and R75-5 then pending before the Board. A year later, the Board announced that it had received a report prepared by Marder and Associates in response to the supreme court's decision in Commonwealth Edison and that it would study the report to determine if it supported a "revalidation" of the remanded rules.

On May 12, 1977, the Board announced that it planned to readopt without change the same regulations previously held invalid in Commonwealth Edison. At that time a number of interested persons, including several of the petitioners herein, filed written comments objecting to the Board's readoption of the rules without first conducting hearings or preparing and considering an economic impact study. On July 7, 1977, without holding additional substantive or economic impact hearings, the Board issued an order which "validated" rules 203(g)(1) and 204(a) and (c)(1)(A). That order provided for a 45-day public comment period and stated that the regulations would become effective on September 1, 1977.

During the 45-day comment period which followed the July 7, 1977, order, petitioners and others objected to the Board's action. However, the Board did not respond to the objections raised in the comments, and the regulations became effective on September 1, 1977, without further comment by the Board.

On August 10, 1977, petitioners, Illinois State Chamber of Commerce, City of Rochelle, Abbott Laboratories and Caterpillar Tractor Co., filed a petition for review in case No. 77-1176. On September 23, 1977, these same petitioners filed another petition for review designated case No. 77-1385. Petitioner, Village of Winnetka, filed a petition for review in case No. 77-1440 on October 5, 1977. All three petitions for review have been consolidated for consideration.

OPINION

I.

We must preliminarily address several issues raised by motion to dismiss the petitions for review. Since the filing of the petitions the respondent Board has filed motions to dismiss the petitions for review on three separate grounds. *fn1 These motions have been taken with the case for consideration. The Board claims the petitions should be dismissed for the following reasons: (1) the petitioners did not file timely petitions for review from the 1972 rulemaking proceeding; (2) the petitioners did not file timely petitions for review from the 1977 readoption order; and (3) petitioners failed to name all necessary parties as respondents.

The Board's first request for dismissal of the petitions is premised on the argument that by failing to file petitions for review within 35 days of the Board's original adoption of rules 203(g)(1) and 204(a) and (c)(1)(A) on April 13, 1972, petitioners waived any objection which they might have raised with regard to the validity of the rules. An identical issue was raised by motion to dismiss in the Ashland Chemical case. There the court held that since the rules in question had been found invalid in Commonwealth Edison and as a result of that decision the Board was required to take new action with regard to the rules, those persons who were adversely affected by the Board's new action in 1977 were entitled to review those actions by petition for review. (64 Ill. App.3d 169, 173, 381 N.E.2d 56, 59.) We agree with the court in Ashland Chemical and refuse to dismiss the petitions for review on the basis that petitioners failed to seek review from the 1972 rulemaking proceeding.

An additional jurisdictional issue has arisen from our handling of the Board's motions based on the first theory of dismissal. On January 5, 1978, the Board moved to dismiss the petitions for review in cases 77-1385 and 77-1440 citing petitioners' failure to appeal from the 1972 rulemaking proceeding. This motion was allowed on January 26, 1978. On February 21, 1978, the Board filed a ...


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