10
to grant the delisting; and (4) the Board did not impose
“reopener” language as a condition of the delisting. Id. PDC
and the Board argued that the opposition groups lacked
standing to appeal. The court ruled as follows: “We fi nd that
the opposition groups have standing but affi rm the Board’s
order on the merits of the case.” PDC, 403 Ill. App. at 1015.
Background. In 1989, IEPA issued a permit to PDC to
operate a waste stabilization facility (WSF) near Peoria for
the storage and treatment of hazardous and nonhazardous
waste. On April 25, 2008, PDC fi led a delisting adjusted
standard petition under Section 28.1 of the Act, 415
ILCS 5/28.1(2008). PDC asked the Board to delist K061
hazardous waste, EAFD, an emission from the production
of steel in electric arc furnaces, remaining after PDC
treats and stabilizes the EAFD. The residue resulting from
PDC’s treatment is referred
to as “electric arc furnace
dust stabilized residue”
(EAFDSR). On June 12,
2008, IEPA fi led a response
generally supporting PDC’s
request. PDC, 403 Ill. App.
at 1015.
On August 18, 2008, the
Board held a public hearing
on PDC’s petition. PDC,
403 Ill. App. at 1015. PDC
presented two witnesses
at hearing, both engineers.
Id. at 1015-16. Twenty-seven
other individuals
provided public comment at
hearing. Id. at 1016. After
hearing, the Board accepted
written public comments.
IEPA ultimately issued a
recommendation that the
Board grant the delisting.
Id. On January 8, 2009, the
Board issued an opinion
and order granting the
delisting petition, subject
to conditions. Id. The court
quotes the Board’s summary of fi ndings, describes some
of the conditions imposed upon PDC by the Board, and
notes that the Board considered many of the concerns
raised in public comment, including concerns over reopener
language, the Section 27(a) factors, permit modifi cations,
and local siting approval. Id at 1016-18.
Standing. PDC and the Board argued that the opposition
groups lacked standing to appeal this grant of an adjusted
standard because the groups do not fall within any of the
categories of persons identifi ed in Section 41(a) of the
Act (415 ILCS 5/41(a)). PDC, 403 Ill. App. at 1018. The
opposition groups asserted that they have standing to
appeal under Section 29(a) of the Act (415 ILCS 5/29(a)) as
persons “‘adversely affected or threatened’” by the delisting
(quoting 415 ILCS 5/29(a)). Id.
The court observed that there was no dispute that the
opposition groups were not parties to the Board proceeding
and did not fi t within any of the categories of persons
in Section 41(a) of the Act. PDC, 403 Ill. App. at 1018.
The court ruled, however, that the delisting is a “rule or
regulation specifi c to PDC,” particularly since the Board
used its quasi-legislative power to impose conditions
on PDC, and that the opposition groups therefore have
standing under Section 29(a) of the Act. Id. at 1019.
The court conceded that Section 28.1(a) of the Act (415
ILCS 5/28.1(a)) describes an adjusted standard as an
“‘adjudicatory determination.’” Id., quoting 415 ILCS
5/28.1(a). Nevertheless, the court was persuaded by the
placement of Section 28.1 in
Title VII of the Act (entitled
“Regulations”), the fact
that Section 27(a) refers
to “regulations specifi c
to individual persons or
sites,” and the description
of adjusted standards in a
Board procedural rule. Id.,
quoting 415 ILCS 5/Title VII
& 27(a). Id. at 1019-20.
Merits. For the opposition
groups’ challenge that
the Board failed to fully
and properly consider the
Section 27(a) factors, the
court applied the “manifest
weight of the evidence”
standard of review, citing
the Second District’s 1999
decision in IEPA v. IPCB
and the Louis Berkman Co.
d/b/a Swenson Spreader
Co., 308 Ill. App. 3d 741,
721 N.E.2d 723 (1999)
(Swenson Spreader). PDC,
403 Ill. App. at 1020. The
Third District turned to the
Illinois Supreme Court’s 1993 decision in Granite City Div.
of Nat. Steel Co. v. PCB, 155 Ill. 2d 149, 613 N.E.2d 719
(1993) (Granite City). The court observed that the Granite
City decision held that Section 27(a) required the Board to
“consider” or “weigh carefully” the Section 27(a) factors.
PDC, 403 Ill. App. at 1020, quoting Granite City. Section
27(a), continued the Third District, “does not require the
Board to make a determination, based on evidence in the
record, that the delisting complies with the factors.” Id. at
1020. The court then stated that the Board, “[a]lthough
not required to do so,” specifi cally addressed the Section
27(a) factors. The court held that the Board’s ruling, that
the delisting could be granted consistent with the Section
27(a) factors, was not against the manifest weight of the
evidence. Id at 1021.
