concurring in part and dissenting in part:
I concur with that portion of Justice Lytton’s opinion that concludes the opposition groups have standing to bring this appeal.
I respectfully suggest that the special concurring decision incorrectly concludes that the Act prohibits judicial review of an adjusted standard decision based on whether the appellant has filed a petition to intervene with the Board. First, there is no statutory right to intervene under the Act. The only possibility for intervention is based on the Board’s procedural rule found at section 101.402(d) of Title 35 of the Code. 35 Ill. Adm. Code §101.402(d).
Recently, the Board has been extremely reluctant to allow intervention in an adjusted standard proceeding because there are other opportunities for either a person or a group to participate in an adjusted standard proceeding without formal intervention. In fact, after reviewing all cases requesting the Board to grant an adjusted standard since 1988, it appears to me that the Board has denied every request for intervention in an adjusted standard proceeding. See In re Petition of Peoria Disposal Co. for an Adjusted Standard From 35 Ill. Adm. Code 721. Subpart D, Ill. Pollution Control Bd. Op. AS 91 — 03 (March 11, 1993) (hereinafter Peoria Disposal); In re Petition of Midwest Generation, LLC, Waukegan Generating Station for an Adjusted Standard From 35 Ill. Adm. Code 225.230, Ill. Pollution Control Bd. Op. AS 07 — 03, at 6 (April 17, 2008) (order denying petition to intervene); In re Midwest Generating Station for an Adjusted Standard From 35 Ill. Adm. Code 225.230, Ill. Pollution Control Bd. Op. AS 07 — 04, at 6.
In its decision in AS 07 — 04, the Board noted that participants in an adjusted standard proceeding are allowed to make oral statements under oath, subject to cross-examination, pursuant to section 101.628. Midwest Generation, Ill. Pollution Control Bd. Op. AS 07 — 04, at 6. In the same order, the Board also noted that the Board may also grant leave to file an amicus curiae brief pursuant to section 101.110(c). Midwest Generation, Ill. Pollution Control Bd. Op. AS 07 — 04, at 6. Consequently, the Board stated:
“[T]he Board finds that participation by ELPC [Environmental Law & Policy Center] through oral comments at the hearing and the filing of an amicus curiae brief will address any potential prejudice suffered by ELPC and the membership of ELPC. Therefore, the Board denies the motion to intervene.” Midwest Generation, Ill. Pollution Control Bd. Op. AS 07 — 04, at 6.
I note that the Board has not directed this court to any previous Board decision which allows a person or group to intervene in an adjusted standard proceeding. Moreover, PDC has successfully resisted an intervenor’s request in the past. See Peoria Disposal, Ill. Pollution Control Bd. Op. AS 91 — 03. In that case, the docket shows that the hearing officer denied Envirite’s motion to intervene but allowed Envirite’s comments to be admitted into the record as an amicus curiae brief.
Based on this history, in my opinion, the fact that the opposition groups did not initiate an inevitably futile request for intervention should have no significance on the issue of standing. Consequently, I respectfully suggest that the language adopted in section 41 of the Act, which does not limit judicial review of a rule or regulation to those categories of persons set out in section 41, demonstrates the legislative intent to allow persons adversely affected by an adjusted standard to seek judicial review pursuant to section 29 of the Act regardless of party status.
If standing to seek judicial review of the Board’s final determination granting an adjusted standard is solely dependent on party status, then the Board can successfully truncate judicial review of all final orders allowing an adjusted standard by simply developing an unwritten policy to deny all nonpetitioners’ requests to intervene. Certainly, this was not the intention of the legislature nor the intention of the Board when denying the previous requests to intervene in other adjusted standard proceedings.
I respectfully suggest that the language of section 28.1(a) declaring the “rule-making provisions of the Illinois Administrative Procedure Act and Title VII of the Act” inapplicable to an adjusted standard proceeding simply means that an individual adjusted standard petitioner is relieved of the necessity for publication and cost study requirements mandated when the Board is enacting general regulations rather than individual adjusted standards. 415 ILCS 5/28.1(a) (West 2008); 5 ILCS 100/5 — 5 et seq. (West 2008). For the reasons set out above, I concur in Justice Lytton’s decision that the opposition groups have standing to seek judicial review in this appeal. However, I dissent from that portion of the decision that affirms the Board’s decision to allow an adjusted standard in this case.
Burden of Proof
Here, PDC requested the Board to “delist stabilized residue generated from treatment of K061 electric arc furnace [EAF] dust at PDC’s waste stabilization facility [WSF] in Peoria County.” Presumably based on the toxicity of K061, after first considering the section 27(a) factors when adopting the general regulation, the Board itself did not define “the level of justification” for future adjusted standards. In this context, a person may request the Board to create a new individualized regulation designated as an “individual adjusted standard” under article VII, section 28.1 of the Act. 415 ILCS 5/28.1 (West 2008).
Section 28.1 requires that the Board “shall adopt procedures applicable to such adjusted standards determinations.” 415 ILCS 5/28.1 (West 2008). The applicable procedures adopted by the Board for an adjusted standard petitioner, such as PDC, provide:
“The burden of proof in. an adjusted standard proceeding is on the petitioner. A petitioner must justify an adjusted standard consistent with Section 27(a) of the [Environmental Protection] Act.” (Emphasis added.) 35 Ill. Adm. Code §104.426.
This appears to be a threshold requirement before the Board goes on to consider the other four factors for justification set out in section 104.426(a). Contrary to this regulation, the Board’s order in this case states:
“[T]here is no threshold of evidence that the adjusted standard petitioner must meet with respect to those [Section 27(a)] factors.” In re RCRA Delisting Adjusted Standard Petition of Peoria Disposal Co., Ill. Pollution Control Bd. Op. AS 08 — 10, at 81 (January 8, 2009) (hereinafter Board Order).
Further, the Board’s order granting the adjusted standard contains the heading “Burden of Proof” {Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 31). Within this section of the Board’s order, the Board does not acknowledge or apply section 104.426 of Title 35 of the Illinois Administrative Code (Code).
In this appeal, we are called upon to determine whether the Board correctly decided, as a matter of law, that PDC had “no threshold of evidence” to meet with respect to the section 27(a) factors. When addressing this issue, this court must apply a de novo standard of review when construing the language of a regulation such as section 104.426 of Title 35 of the Code. Peoria Disposal Co. v. Illinois Pollution Control Board, 385 Ill. App. 3d 781 (2008), appeal denied, 231 Ill. 2d 654 (2009).
The Board’s regulation places the burden of proof squarely on the shoulders of the petitioner. Hence, the individual adjusted standard petitioner must introduce a sufficient threshold of evidence to satisfy the section 27(a) factors. Yet, the Board’s order states that, as to the section 27(a) factors, PDC had “no threshold of evidence” to meet in this case.
I conclude that the Board improperly relieved PDC of its burden of proof in this case by concluding that PDC had “no threshold of evidence” to meet with regard to the section 27(a) factors contrary to the mandates of section 104.426.
Quasi-legislative vs. Quasi-judicial Standards of Review
Before considering the other issues raised in the opposition groups’ appeal, it is important to determine what standard of review to apply to the separate components of the Board’s decision in this case. In the Suienson Spreader Co. case, the court stated:
“Quasi-legislative determinations are exercises of the Board’s rule-making powers. The supreme court has instructed that ‘[w]hen an agency has acted in its rulemaking capacity, a court will not substitute its judgment for that of the agency.’ Granite City [Division of National Steel Co. v. Illinois Pollution Control Board], [155 Ill. 2d 149, 162 (1993)]. For this reason, the Board’s quasi-legislative decisions will not be overturned unless they are arbitrary and capricious. Granite City, 155 Ill. 2d at 162.
The Board acts in a quasi-judicial capacity when it determines rights or liabilities in an individual case based on the particular facts of the case. [Citation.] *** A reviewing court will uphold a quasi-judicial determination unless it is contrary to the manifest weight of the evidence. [Citation.] When a case involves both quasi-legislative and quasi-judicial functions, the reviewing court should apply both standards of review. [Citations.]
***
There are three methods by which an entity can seek relief from a rule of general applicability: variances, adjusted standards, and site-specific regulations. Adjusted standards are similar to variances in certain respects. In proceedings for both variances and adjusted standards, the Board’s decisions must be supported by a written opinion with specific findings of fact. See 415 ILCS 5/28.1(d), 35(a) (West 1996). Proceedings for both a petition for a variance and a petition for an adjusted standard are adversarial in nature ***. Furthermore, the Act deems petitions for an adjusted standard ‘adjudicatory’ proceedings. 415 ILCS 5/28.1 (West 1996). This being said, many aspects of a ruling on a petition for an adjusted standard involve the Board’s technical expertise and interpretation of rules, which are quasi-legislative determinations. [Citations.]” Environmental Protection Agency v. Pollution Control Board, 308 Ill. App. 3d 741, 747-49 (1999) (Swenson Spreader Co.).
The quasi-legislative nature of an individual adjusted standard is confirmed by the Board’s regulation which states that the effect of an adjusted standard creates an environmental regulation. 35 Ill. Adm. Code §104.400. It is fair to say that an adjusted standard is a hybrid proceeding that invokes the Board’s quasi-judicial as well as its quasi-legislative authority. Typically, the Board relies on its technical expertise when evaluating the sufficiency of the petitioner’s evidence, specifically the section 27(a) factors in this case. Swenson Spreader Co., 308 Ill. App. 3d at 750-51. We review all decisions of the Board that involve the Board’s technical expertise using an arbitrary and capricious standard of review. See Swenson Spreader Co., 308 Ill. App. 3d at 748-49.
After the Board determines that the adjusted standard petitioner has satisfied its burden of proof as set out in section 104.426, then the Board exerts its quasi-legislative authority when granting the new environmental regulation, designated as an individual adjusted standard. Developing conditions applicable to the individual adjusted standard also involve the Board’s expertise and should be measured by the same arbitrary and capricious standard of review. The additional issues raised by appellants are discussed below with the appropriate standard of review in mind.
Section 28.1
The appellants challenge the Board’s order because the order is conclusory and does not contain specific findings of fact based on the evidence presented to the Board by PDC. In response, PDC relies on Granite City after arguably conceding that the Board acted in a quasi-legislative capacity when granting the adjusted standard in this case. It is important to note that PDC asks this court to deny standing to the opposition groups because the Board was acting in a quasi-judicial capacity when adopting this adjusted standard, yet contends the Board acted in a quasi-legislative capacity for purposes of arguing that the Board did not need to state specific findings to support its conclusions under sections 28.1 and 27(a) of the Act. In Granite City, our supreme court stated:
“When acting in its quasi-legislative capacity, the Board has no burden to support its conclusions with a given quantum of evidence.” Granite City, 155 Ill. 2d at 180.
I respectfully suggest that PDC’s reliance on Granite City, 155 Ill. 2d 149, has misdirected this court. PDC has overgeneralized the holding in Granite City for several reasons.
First, Granite City did not involve an adjusted standard request as does the case at bar. In Granite City, our supreme court only considered the Board’s statutory obligation when first creating substantive environmental regulations, rather than the Board’s subsequent regulatory obligations when considering an individual adjusted standard from a regulation of general applicability. In that limited context of enacting general regulations, our supreme court held that the Board is not required by statute to recite a specific quantum of proof to support its conclusions. This holding has no application to the Board’s procedures when deciding an individual adjusted standard petition.
In fact, section 28.1(d) of the Act specifically requires the Board to support any decision to grant an adjusted standard with a written order and opinion which “shall” state the facts and reasons leading to the final Board determination. See 415 ILCS 5/28.1(d) (West 2008). Section 28.1 of the Act provides:
“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.” (Emphasis added.) 415 ILCS 5/28.1 (West 2008).
Section 28.1 of the Act first requires the petitioner, not the Board, to justify the adjusted standard. Next, section 28.1 requires the Board to issue an order which includes factual findings and reasons presumably explaining how the petitioner justified the adjusted standard before the Board.
The Board’s order in the case at bar does not contain specific findings or reasoning concerning the section 27(a) factors in the context of PDC’s evidence submitted to the Board. Therefore, I agree with the appellants’ view that the Board’s order in this case cannot be upheld in the absence of the factual findings and reasons required by section 28.1 of the Act.
Section 27(a) Factors
Arguably, the Board’s failure to include specific findings of fact with regard to the section 27(a) factors may be directly related to an absence of such evidence introduced into the record by PDC. Section 27(a) of the Act provides:
“In promulgating regulations under this Act, the Board shall take into account the existing physical conditions, the character of the area involved, including the character of surrounding land uses, zoning classifications, the nature of the existing air quality, or receiving body of water, as the case may be, and the technical feasibility and economic reasonableness of measuring or reducing the particular type of pollution. The generality of this grant of authority shall only be limited by the specifications of particular classes of regulations elsewhere in this Act.” 415 ILCS 5/27(a) (West 2008).
In this case, there are two geographic areas involved or potentially affected by operations allowed by the adjusted standard. The first area potentially affected is the expanding residential neighborhood in Peoria near PDC’s WSF. After the K061 is generated by PDC’s customers, the waste is delivered to Peoria, where PDC treats the K061 with a “new” chemical process and stores the K061 above ground and outdoors before the waste is verified as EAFDSR. For the K061 unsuccessfully treated, PDC will transfer K061 to a hazardous landfill for disposal. After verification, or in other words, successful treatment, PDC transfers EAFDSR from Peoria to Tazewell County. Thus, the second “involved” area is located in Tazewell County, where the successfully treated K061, now labeled EAFDSR, will be disposed according to the conditions attached to the adjusted standard.
During the public hearing, PDC did not introduce any stipulations or any agreed exhibits and failed to provide expert or lay testimony concerning the section 27(a) factors with regard to either geographic location. In fact, PDC presented only two witnesses and four exhibits to the Board during the public hearing. One witness, Laura Curtis, a senior environmental engineer at RMT, Inc., and PDC’s independent consultant, testified about the new chemical process developed for PDC to stabilize electric arc furnace dust (EAFD) waste. A second witness, Dr. Ajit Chowdhury, a former employee of RMT, testified that PDC hired him to develop the new chemical process for stabilizing K061 waste. PDC will then license the process from Chowdhury because Chowdhury is considering patenting his technique. At the time of the delisting hearing, Chowdhury, RMT, and PDC representatives stated they were not at liberty to discuss the exact chemicals used in this new treatment process because it was a trade secret. Once the delisting is granted, Chowdhury will be paid licensing fees by PDC. The four exhibits PDC introduced for the Board’s consideration included: Exhibits 1 and 2 which were Curtis’ resumé and the outline of her testimony; Exhibit 3 consisted of Dr. Chowdhury’s resumé; and Exhibit 4 was the list of 10 steel mills currently generating K061 waste and delivering the K061 to PDC for treatment and on-site disposal.
Although the Board stated that it “carefully considered the information in this record in view of the Section 27(a) factors, as required by Section 28.1(a) and finds that the delisting may be granted consistent with those factors,” the Board does not state any “facts and reasons” which caused the Board to conclude PDC’s evidence satisfied PDC’s burden of proof to justify the individual adjusted standard as required by section 28.1 of the Act. The absence of any specific “facts and reasons” concerning the section 27(a) factors renders the Board’s decision arbitrary and capricious.
Board’s Decision Is Arbitrary and Capricious
In Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462 (1988), our supreme court provided the following guidelines for this court to apply when determining whether an administrative agency’s action is arbitrary and capricious. Our supreme court held:
“Agency action is arbitrary and capricious if the agency: (1) relies on factors which the legislature did not intend for the agency to consider; (2) entirely fails to consider an important aspect of the problem; or (3) offers an explanation for its decision which runs counter to the evidence before the agency, or which is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Greer, 122 Ill. 2d at 505-06, citing Motor Vehicle Manufacturers Ass’n of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 77 L. Ed. 2d 443, 458, 103 S. Ct. 2856, 2866-67 (1983).
In this case, I focus on the second and third factors set out by our supreme court. First, the Board failed to consider an important aspect of the problem, namely, whether PDC met the burden of proof assigned to an individual adjusted standard petitioner by section 104.426 of the Board’s own regulations. Second, the Board’s statement, that it carefully considered the section 27(a) factors in light of the record, offers an explanation that cannot be reconciled with the record by this court because the Board’s order simply does not contain written findings or identify any substantive evidence supporting the Board’s conclusions for this court to reconcile.
In my view, the absence of any findings or conclusions stating that the individual adjusted standard would not result in environmental or health effects more adverse than those considered by the Board when originally adopting the general regulation consistent with the section 27(a) factors, renders the Board’s ruling purely arbitrary. For the reasons discussed above, I conclude the Board’s decision was arbitrary and capricious, and must be reversed.
The Basis of the Petition
In addition to applying the incorrect burden of proof concerning the section 27(a) factors, the Board does not make any findings concerning the basis of the petition pursuant to either subsection (a) or (b) of section 720.122. The carelessness of the Board’s approach is evident in the Board’s ultimate, incomplete finding set out below:
“Based on all the foregoing, the Board finds that PDC has [blank in original] its burden of proof under the RCRA regulations for receipt of a delisting. See 35 Ill. Adm. Code 720.122(a), (b), (d), (h), (i), (p).” Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 57.
Obviously, this finding set out by the Board, on page 57 of its order, does not state whether PDC “satisfied” or “did not satisfy” its burden of proof in any context.
In the individual adjusted standard petition, PDC requested the Board to “delist stabilized residue generated from treatment of K061 electric arc furnace [EAF] dust at PDC’s waste stabilization facility [WSF] in Peoria County.” On page 7 of the Board’s order, the Board acknowledges “PDC addresses both subsections (a) and (b) of Section 720.122.” Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 7. However, the Board does not specify on what basis the individual adjusted standard was granted. The only finding adopted by the Board regarding the regulatory basis for the petition states, “[T]he Board finds that PDC has [blank in original] its burden of proof under the RCRA regulations for receipt of a delisting. See 35 Ill. Adm. Code 720.122(a), (b), (d), (h), (i), (p).” Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 57.
I point out that each paragraph of section 720.122 of Title 35 of the Code sets out distinct but separate considerations for an adjusted standard request. 35 Ill. Adm. Code §720.122. Paragraph (a) requires waste to be delisted by waste stream from a single generator. Paragraph (b) requires an analysis of the combined waste mixture as a whole with respect to those additional constituents that PDC adds to stabilize the K061 delivered to the WSF. The requirements of paragraph (a) and (b) are not interchangeable.
The Board does not address whether PDC satisfied their burden of proof with regard to subparagraph (a) alone, subparagraph (b) alone, or met some of the requirements set out in subparagraph (a) and others set out in subparagraph (b) of section 720.122 of Title 35 of the Code. 35 Ill. Adm. Code §§720.122(a), (b). The glaring absence of any findings by the Board with regard to section 720.122(a) or (b) makes it impossible for this court to evaluate the sufficiency of the factual basis for the Board’s order granting the PDC’s petition to delist successfully treated K061 waste.
At the very least, this court should now remand the matter to the Board for specific findings with regard to the separate requirements of section 720.122(a) or (b) before deciding whether those findings are supported by the record or may conflict with previous precedent from this court.
New Pollution Control Facility
PDC’s EAFDSR involves a new chemical process recently developed for PDC long after it received a permit for its WSF. The Board’s order acknowledges that PDC has never managed EAFDSR in a landfill prior to the handful of demonstration trials related to this petition. Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 20. Similarly, PDC has never transferred the EAFDSR to another landfill for disposal. Finally, EAFDSR has never been disposed in a Class D landfill and commingled with other waste accepted by the Class D land-based unit.
In the past 20 years, PDC has merely accepted K061 dust from 10 separate steel producers for disposal on site. However, before disposing of the waste in its hazardous landfill, PDC managed the waste for the sole purpose of placing it in PDC’s Class C landfill by treating it in PDC’s containment building and waste stabilization facility (WSF). After treating and temporarily storing K061 indoors in the WSF, a fully enclosed steel structure, PDC then disposed of the treated K061 below ground, in a dedicated hazardous waste landfill at the same location. Over the course of the last 20 years, K061 waste has never left PDC’s site and subsequently reentered the Peoria community during transfer to another location for disposal. Now, PDC wishes to delist the new substance labeled EAFDSR and, after delisting, will transfer and transport the waste off site for disposal elsewhere.
PDC’s petition, and the Board’s order, assumes some portion of the K061 waste delivered to PDC will never meet the requirements for delisting the purported EAFDSR after initial treatment and retreatment by PDC. In this event, the Board requires PDC to dispose of K061 waste in a Class C landfill. However, PDC no longer has the capacity to dispose of K061 waste in its Class C landfill and must now transfer unsuccessfully treated K061 waste to a different hazardous landfill for disposal. Thus, for the first time PDC will act as a transfer station by transferring nondelisted, hazardous K061 waste off site. It is also important to note that PDC’s petition states that PDC should not be considered the “generator” of the EAFDSR waste, presumably for purposes of section 720.122(a), until after the treated waste meets the adjusted standard criteria. See Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 5.
I conclude that PDC’s new, first-time operation as an above ground storage yard and transfer station for future off-site disposal falls squarely within the definition of a new pollution control facility that the County must approve for siting regardless of whether the K061 waste is hazardous or delisted as nonhazardous EAFDSR. 415 ILCS 5/3.330(b) (West 2006).
Summary
The undeniable reality is that PDC No. 1 Landfill presumably has now reached capacity at the time of this appeal. I understand the steel manufacturers in Illinois need a cost-effective method to dispose of their Illinois-generated waste. Yet, 60% of the waste delisted for PDC originates with out-of-state customers. Perhaps, these out-of-state generators may have hazardous landfills available in their home states. Nonetheless, due to the conditions attached to PDC’s adjusted standard, the K061 hazardous waste delivered to PDC from out-of-state sources will continue to be delivered to PDC and then remain in Illinois for perpetuity. The individual adjusted standard thereby ultimately reduces the availability of space in Illinois landfills for Illinois manufacturers.
The individual adjusted standard not only allows PDC to continue to accept K061 waste generated by outside sources, but now also allows, for the first time, PDC to store K061 outdoors and then transfer treated K061 to other facilities for disposal. This new component of PDC’s business, namely, transferring large quantities of treated K061 waste from Peoria to another location for disposal, has not received siting approval by the Peoria County Board.
In summary, I agree that the opposition groups have standing to bring this appeal because the adjusted standard is a quasi-legislatively created environmental regulation. I conclude the Board’s decision is arbitrary and capricious because the Board made no factual findings regarding the requirements of either section 104.426 of Title 35 of the Code (35 Ill. Adm. Code §104.426) or section 720.122(a) or (b) of Title 35 of the Code (35 Ill. Adm. Code §§720.122(a), (b)) for this court to review. Additionally, the Board improperly relieved PDC of its regulatory burden of proof relating to the section 27(a) factors of the Act. 415 ILCS 5/27(a) (West 2008). Consequently, I would reverse the Board’s order granting PDC’s petition for an individual adjusted standard as both arbitrary and capricious.
Alternatively, I respectfully suggest the Board’s order cannot be confirmed on this record and would remand the matter to the Board with directions to enter specific findings of fact regarding PDC’s burden to prove the section 27(a) factors as well as the requirements of sections 720.122(a) and (b).