specially concurring.
It is my conclusion that the opposition groups do not have standing to bring the instant appeal. I would dismiss this appeal, which has the effect of affirming the order of the Illinois Pollution Control Board. See People v. Griffith, 212 Ill. 2d 57, 58, 816 N.E.2d 353, 354 (2004) (the effect of the dismissal of an appeal is an affirmance of the decision under review). Thus, I concur in the resulting judgment of the lead decision to affirm.
Under title 35, section 720.122(n), of the Illinois Administrative Code (the Code), “Delistings that have not been adopted by USEPA may be proposed to the Board pursuant to a petition for adjusted standard pursuant to Section 28.1 of the [Illinois Environmental Protection] Act [(415 ILCS 5/28.1)]; and Subpart D of 35 Ill. Adm. Code 104.” 35 Ill. Adm. Code §720.122(n). Subpart D of Title 35, part 104, of the Code sets forth the procedure to be followed when filing a petition for an adjusted standard with the Pollution Control Board (the Board), including provisions related to notice and public hearings. Section 28.1 of the Illinois Environmental Protection Act (the Act) grants authority to the Board to grant a petitioner an adjusted standard. 415 ILCS 5/28.1(a) (West 2008). Section 28.1 provides:
“(a) After adopting a regulation of general applicability, the Board may grant, in a subsequent adjudicatory determination, an adjusted standard for persons who can justify such an adjustment consistent with subsection (a) of Section 27 of this Act. *** The rule-making provisions of the Illinois Administrative Procedure Act and Title VII of this Act shall not apply to such subsequent determinations.
Hi * H<
(g) A final Board determination made under this Section may be appealed pursuant to Section 41 of this Act.” 415 ILCS 5/28.1(a) (West 2008).
Title VII of the Act grants the Board the authority to adopt rules and regulations necessary to accomplish the purposes of the Act. In addition, Title VII of the Act sets forth statutory guidelines for adopting rules and regulations, including provisions for public hearings. The final section of Title VII is section 29, entitled “Review.” 415 ILCS 5/29 (West 2008). Section 29(a) states, “Any 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 under Section 41 of this Act.” 415 ILCS 5/29(a) (West 2008).
Peoria Disposal Company (PDC) contends that the opposition groups lack standing to appeal the Board’s decision to grant PDC the adjusted standard. PDC argues that section 41 of the Act governs appeals of Board decisions regarding adjusted standards, and that the opposition groups do not fit into any of the categories set forth in section 41 of those who may appeal such decisions of the Board. The opposition groups disagree. They maintain that the authority to appeal Board decisions granting an adjusted standard is found in section 29 of the Act because, they argue, the decision to grant an adjusted standard is classified as a rule or regulation. Further, they argue that they are included within the broader language of section 29 of those who may petition for review of Board rules or regulations.
Section 41 of the Act provides for judicial review of acts of the Board and that judicial review shall be afforded directly in the Appellate Court for the District in which the cause of action arose. 415 ILCS 5/41 (West 2008). Section 41(a) specifically delineates who may obtain judicial review of acts of the Board: (1) “[a]ny party to a Board hearing”; (2) “any person who filed a complaint on which a hearing was denied”; (3) “any person who has been denied a variance or permit under this Act”; (4) “any party adversely affected by a final order or determination of the Board”; and (5) “any person who participated in the public comment process under subsection (8) of Section 39.5 of this Act.” 415 ILCS 5/41(a) (West 2008). In addition section 41(a) states, “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 allows for review of rules and regulations promulgated by the Board by petition for review under section 41. The categorization of who may petition for review is broader under section 29 than under section 41. Section 29(a) 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 under Section 41 of this Act.” 415 ILCS 5/29(a) (West 2008). Thus, a determination of whether the opposition groups have standing in this appeal hinges upon a determination of whether a Board decision to grant an adjusted standard under section 28.1 of the Act is an adjudicatory decision or a rule-making decision. In other words, must the opposition groups fit within the categories of section 41 or section 29 to have standing to bring this appeal?
The Board’s decision to grant PDC an adjusted standard was authorized by section 28.1 of the Act. 415 ILCS 5/28.1 (West 2008). An examination of section 28.1 indicates that this decision is an adjudicatory decision and an appeal of such a decision is governed solely by section 41 of the Act. Section 28.1(a) specifically states that the decision to grant an adjusted standard is an “adjudicatory determination.” 415 ILCS 5/28.1(a) (West 2008). Additionally, the last sentence of section 28.1(a) states that the rule-making provisions of “Title VII of this Act shall not apply” to these decisions. 415 ILCS 5/28.1(a) (West 2008). Significantly, section 29, providing for judicial review of rules and regulations, is the last section of Title VII of the Act. Furthermore, section 28.1(g) provides, “A final Board determination under this Section may be appealed pursuant to Section 41 of this Act.” 415 ILCS 5/28.1(g) (West 2008). Thus, the statute under which the Board made the decision at issue here directs that appeals are governed by section 41, not section 29, of the Act.
The opposition groups argue that this court should read sections 41 and 29 together, to allow the groups standing. Section 41 does reference section 29 and specifically states that the limitations in section 41 as to who may petition for review of an adjudicatory decision shall not apply to petitions for review of rules and regulations as set forth in section 29. However, that leads back to the same question of whether a decision under section 28.1 of the Act is an adjudicatory decision or a rule-making decision. As set forth above, section 28.1 indicates that decisions made under that section are adjudicatory decisions and that the rule-making provisions of Title VII do not apply to these decisions. Thus, section 29 has no applicability to the petition for review brought by the opposition groups.
The lead opinion cites Environmental Protection Agency v. Pollution Control Board, 308 Ill. App. 3d 741, 721 N.E.2d 723 (1999) (Swenson Spreader Co.), to support its conclusion that the Board’s decision in this matter was a quasi-legislative determination and that section 29 provided the opposition groups with standing to challenge that determination. In Swenson Spreader Co., the court was called upon to decide what standard of review to apply to the Board’s decision. Swenson Spreader Co., 308 Ill. App. 3d at 747, 721 N.E.2d at 727. The court recognized that the Board serves both quasi-legislative and quasi-adjudicatory functions and that different standards of review apply to different functions. Swenson Spreader Co., 308 Ill. App. 3d at 747, 721 N.E.2d at 727. Also, the court specifically recognized that proceedings for an adjusted standard are adversarial in nature and, thus, are adjudicatory proceedings. Swenson Spreader Co., 308 Ill. App. 3d at 748, 721 N.E.2d at 728. The court went on to reason that certain aspects of a decision to grant or deny an adjusted standard are quasi-legislative determinations, and the court should apply the arbitrary and capricious standard of review to those quasi-legislative determinations. Swenson Spreader Co., 308 Ill. App. 3d at 748-49, 721 N.E.2d at 728-29. I disagree with the lead opinion’s conclusion that this case supports its conclusion that a proceeding to determine whether to grant a petition for an adjusted standard is a rule-making procedure.
Finally, as the opposition groups appear to concede, the opposition groups do not fit within the categories of those who may petition an adjudicatory order of the Board under section 41. The opposition groups were not parties to the proceedings below and, thus, do not fit within the first or fourth category in section 41. See Lake County Contractors Ass’n v. Pollution Control Board, 54 Ill. 2d 16, 19-21, 294 N.E.2d 259, 261-62 (1973) (concluding that to come within the fourth category of section 41, one who seeks review must have been a party to the Board proceeding and rejecting contention that “party” means “person”). The opposition groups did not file a complaint on which a hearing was denied; they were not denied a variance or permit, nor was this case brought under section 39.5 of the Act (Clean Air Act permit program). Thus, the opposition groups do not fall within the categories of those authorized to petition for a review of a Board’s decision to grant an adjusted standard.
In addition, the Code provides for intervention in adjudicatory proceedings. 35 Ill. Adm. Code §101.402. Here, the opposition groups did not seek leave to intervene and gain party status in the adjudicatory proceeding before the Board. Although the opposition groups did participate in the Board proceedings by providing public comments, as allowed by the Code (35 Ill. Adm. Code §§101.110, 101.628), that participation did not grant them party status and the ability to appeal the Board’s adjudicatory decision under section 41 of the Act (415 ILCS 5/41(a) (West 2008)).
For all of the above reasons, I would dismiss this appeal due to a lack of standing, and therefore, I concur in the judgment of the lead decision to affirm the order of the Illinois Pollution Control Board.