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01/26/87 Citizens For A Better v. the Pollution Control

January 26, 1987

CITIZENS FOR A BETTER ENVIRONMENT ET AL., PETITIONERS-APPELLANTS

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

504 N.E.2d 166, 152 Ill. App. 3d 105, 105 Ill. Dec. 297 1987.IL.52

Petition for review of order of Pollution Control Board.

APPELLATE Judges:

JUSTICE JIGANTI delivered the opinion of the court. McMORROW, P.J., concurs. JUSTICE JOHNSON, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

The petitioners-appellants, Citizens for a Better Environment and the People of the State of Illinois, challenge the propriety of the use by the Illinois Pollution Control Board (Board) of the emergency rulemaking procedures under the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1985, ch. 127, par. 1005.02).

Preliminarily, the relationship between the Environmental Protection Agency (Agency) and the Board should be noted. The Environmental Protection Act (Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1001 et seq.) directs the Agency to administer the provisions of the Act and provides the Agency with some specific regulatory powers. Generally, however, the rulemaking authority rests with the Board. The Agency has the authority to appear before the Board in any hearing under the Act and to make recommendations to the Board for the adoption of regulations. (Ill. Rev. Stat. 1985, ch. 111 1/2, pars. 1004(f), (i).) In the instant case, the positions of the Agency and Board with regard to section 39(h) of the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039(h)) and the emergency rules for the implementation of that section are antagonistic.

Generally, administrative rulemaking is conducted according to the notice-and-comment procedures set forth in section 5.01 of the IAPA (Ill. Rev. Stat. 1985, ch. 127, par. 1005.01). Section 5.02, however, provides for emergency rulemaking and states that "[w]here any agency finds that an emergency exists which requires adoption of a rule upon fewer days than is required by Section 5.01, and states in writing its reasons for that finding, the agency may adopt an emergency rule without prior notice or hearing, upon filing a notice of emergency rule making with the Secretary of State." This section defines emergency as "the existence of any situation which any agency finds reasonably constitutes a threat to the public interest, safety or welfare." (Ill. Rev. Stat. 1985, ch. 127, par. 1005.02.) Similar authority to adopt emergency rules according to the standards set forth in section 5.02 is granted to the Board under section 27(c) of the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1027(c)).

On October 23, 1986, the Board, pursuant to section 5.02, adopted emergency rules which were to guide the implementation of section 39(h) of the Act. Section 39(h) was enacted by the Illinois General Assembly in order to prohibit the deposit of hazardous waste streams in a permitted hazardous waste site unless the waste generators and site owners and operators obtain specific authorization from the Agency. Although this section was enacted in 1981, it was not to become effective until January 1, 1987. Implementation action as to this section began in February of 1986 when the Board opened a docket to conduct inquiry hearings regarding the implementation of section 39(h) and to solicit regulatory proposals. No proposals, however, were filed.

In June of 1986, both the Agency and Board took action regarding section 39(h). The agency issued a set of implementation guidelines detailing the manner in which the Agency would apply section 39(h) to a hazardous waste generator's request for authorization. The Board convened and issued a proposed rule to govern the implementation of section 39(h). Four days of hearings were held on the Board's proposed rule at which the CBE, the Agency, and various industrial trade associations presented testimony and conducted cross-examination.

Following those hearings, the Board requested the parties to file written comments on the legal authorization of the Board to issue an emergency rule. The CBE responded with a legal memorandum which argued that under the circumstances present, the Board lacked statutory authority to issue an emergency rule and that several provisions of the Board's proposal were not in keeping with section 39(h).

On October 2, 1986, the Board convened and issued an order proposing an emergency rule with regard to the implementation of section 39(h). On October 3, 1986, the CBE moved Board member, J. Theodore Meyer, to recuse himself from deliberations as to the Board's proposed rule on the grounds that Meyer had exhibited an unalterably closed mind on certain pertinent issues regarding section 39(h). Meyer declined to recuse himself. Further details concerning the motion for recusal will be provided in connection with the Discussion of that issue. On October 6, 1986, the Board voted to vacate the order of October 2, 1986. However, three days later the Board reconsidered and issued a proposed emergency rule which established an 11-day period for the filing of public comment prior to final adoption. The Board's order adopting the emergency rule and declining to disqualify Meyer was issued on October 23, 1986. It is from this order that the CBE and the People appeal raising the issues of whether the Board lacked authority to adopt an emergency rule under section 5.02 of the IAPA; whether Board member Meyer should have been disqualified; and whether the Board properly interpreted section 39(h) when it adopted the emergency rules.

The CBE and the People first contend that the Board lacked authority to adopt the October 23, 1986, emergency rule because there was no emergency, as defined by section 5.02 of the IAPA, to justify bypassing the general notice-and-comment rulemaking procedures. We recognize that the existence of an emergency is primarily a matter of agency discretion, yet courts are not conclusively bound by an agency's determination that an emergency exists. Senn Park Nursing Center v. Miller (1983), 118 Ill. App. 3d 733, 744, 455 N.E.2d 162 (citing Schenley Affiliated Brands Corp. v. Kirby (1971), 21 Cal. App. 3d 177, 194-95, 98 Cal. Rptr. 609, 623, and Poschman v. Dumke (1973), 31 Cal. App. 3d 932, 941, 107 Cal. Rptr. 596, 602), aff'd (1984), 104 Ill. 2d 169, 470 N.E.2d 1029.

In this case several reasons were propounded by the Board in support of its position that emergency rulemaking under section 5.02 was proper. *fn1 First, the Board argues that the emergency rules will clarify the generally worded provisions of section 39(h), especially regarding the scope of that section and the extent of the Agency's discretion as to issuing waste stream authorizations. This clarification, the Board points out, will reduce the uncertainty within the regulated community. Moreover, clarifying section 39(h), the Board contends, will reduce the number of appeals to the Board from an Agency determination with respect to the waste stream authorizations and reduce the need for judicial interpretation of section 39(h). Additionally, the Board argues that the adoption of the emergency rules would ease the ...


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