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Sierra Club et al v. the Illinois Pollution Control Board et al

October 27, 2011

SIERRA CLUB ET AL., APPELLANTS,
v.
THE ILLINOIS POLLUTION CONTROL BOARD ET AL., APPELLEES.



The opinion of the court was delivered by: Justice Thomas

JUSTICE THOMAS delivered the judgment of the court, with opinion.

Justices Freeman, Garman, Karmeier, and Burke concurred in the judgment and opinion.

Justice Theis dissented, with opinion, joined by Chief Justice Kilbride.

OPINION

¶ 1 The dispositive issue in this case is whether Sierra Club and Peoria Families Against Toxic Waste (the opposition groups) had standing to seek review of the Illinois Pollution Control Board's decision granting Peoria Disposal Company's delisting petition. We conclude that they did not.

¶ 2 BACKGROUND

¶ 3 In 1989, the Illinois Environmental Protection Agency (IEPA) issued a permit to Peoria Disposal Company (PDC) to operate a waste stabilization facility near Peoria for the storage and treatment of hazardous and non-hazardous waste. In 2008, PDC filed an adjusted standard petition under section 28.1 of the Illinois Environmental Protection Act (the Act) (415 ILCS 5/28.1 (West 2008)), asking the Illinois Pollution Control Board (the Board) to delist (i.e., exclude from hazardous waste regulation) certain residue generated from PDC's treatment of K061 electric arc furnace dust. Following a public hearing, the Board issued a 103-page order granting PDC a delisting adjusted standard, subject to several conditions. In re RCRA Delisting Adjusted Standard Petition of Peoria Disposal Co., Ill. Pollution Control Bd. Op. AS 08--10 (Jan. 8, 2009) (Board Order).

¶ 4 The opposition groups filed a timely petition for review of the Board Order (Ill. S. Ct. R. 335 (eff. Feb. 1, 1994), and a sharply divided appellate court affirmed. 403 Ill. App. 3d 1012. In the appellate court, two basic issues were presented: (1) whether the opposition groups had standing to seek review of the Board Order, and (2) whether the Board Order was correct on the merits. Writing for the court, Justice Lytton concluded that the opposition groups had standing and that the Board Order should be affirmed on the merits. In a special concurrence, Justice Carter concluded that the opposition groups did not have standing and that the appeal therefore should be dismissed. In partial dissent, Justice Wright concluded that the opposition groups had standing and that the Board Order should be reversed on the merits.

¶ 5 The opposition groups appealed to this court, and we granted their petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).

¶ 6 ANALYSIS

¶ 7 Before this court, the opposition groups once again argue that the Board Order is erroneous for several reasons and therefore must be either reversed or vacated. In response, PDC and the Board renew their argument that this appeal should be dismissed because the opposition groups lack standing to seek judicial review of the Board Order. In the alternative, PDC and the Board argue the Board Order is correct on the merits and therefore should be affirmed.

¶ 8 We begin with the standing question, which is a question of law that we review de novo. Wexler v. Wirtz Corp., 211 Ill. 2d 18, 23 (2004).

¶ 9 Section 28.1 of the Act, which governs adjusted standards, states that "[a] final Board determination 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), in turn, provides that:

"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 the Board, and any person who participated in the public comment process under subsection (8) of Section 39.5 of this Act may obtain judicial review, by filing a petition for review within 35 days from the date that a copy of the 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, under the provisions of the Administrative Review Law, as amended and the rules adopted pursuant thereto, except that review shall be afforded directly in the Appellate Court for the District in which the cause of action arose and not in the Circuit Court. 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) then 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 ...


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