concurring in part and dissenting in part:
I respectfully dissent from that part of the majority opinion declaring invalid the October 23, 1986, emergency rule of the Pollution Control Board (Board). I agree with the majority, however, that Board member J. Theodore Meyer did not act improperly in refusing to recuse himself from the proceedings that resulted in the adoption of the emergency rule.
I believe that the Board’s adoption of the emergency rule was a valid exercise of its rulemaking powers. Section 39(h) of the Environmental Protection Act authorized the Board to promulgate regulations implementing the statute. (Ill. Rev. Stat. 1985, ch. 111½, par. 1039(h).) The Board determined that an emergency existed pursuant to section 5.02 of the Administrative Procedure Act (Ill. Rev. Stat. 1985, ch. 127, par. 1005.02) and, accordingly, bypassed the general rulemaking procedures requiring notice and comment.
Administrative action taken under statutory authority will not be set aside unless it has been clearly arbitrary, unreasonable, or capricious. (Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305, 310, 319 N.E.2d 782, 785.) Courts adopted this high standard of review because administrative agencies are inherently more qualified to decide technical problems and the mechanics of dealing with those problems. We should hesitate to find a regulation unreasonable because we lack the expertise that administrative agencies possess. (Shell Oil Co. v. Pollution Control Board (1976), 37 Ill. App. 3d 264, 271, 346 N.E.2d 212, 218.) Further, the burden of establishing the invalidity of agency regulations is on the petitioner. Illinois State Chamber of Commerce v. Pollution Control Board (1977), 49 Ill. App. 3d 954, 960, 364 N.E.2d 631, 635.
Applying these principles to the instant case, I conclude that the CBE failed to establish that the October 23, 1986, emergency rule was arbitrary, unreasonable, or capricious. Although 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, 170, aff'd (1984), 104 Ill. 2d 169, 470 N.E.2d 1029), I believe that the Board was in a better position than this court to make the determination. We should not be quick, therefore, to dismiss these regulations as based on mere speculation. I would affirm the Board’s October 23, 1986, emergency rule as a valid exercise of its rulemaking powers.