Supreme Court Summaries
Opinions filed October 27, 2011
Sierra Club v. Illinois Pollution Control Board, 2011 IL 110882
Appellate citation: 403 Ill. App. 3d 1012.
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.
The production of steel in electric arc furnaces generates toxic waste. Peoria Disposal Company, which has had an EPA permit since 1989 to store and treat hazardous waste at its facility near Peoria, developed a new process to stabilize this hazardous residue, or electric arc furnace dust, by converting it into material that is not hazardous. It filed a “delisting” petition for an adjusted standard with the Pollution Control Board, which was granted in 2009, with conditions. Delisting removes a material from regulation as hazardous.
The Sierra Club and Peoria Families Against Toxic Waste, opposition groups, sought review in the appellate court. That court found they had standing, but affirmed the Board on the merits.
Because it was agreed that the purported appellants here did not fall within any other statutory category which would permit them to appeal, the supreme court said that these appellants would have to show that they were contesting a “rule or regulation,” under section 29(a) of the Illinois Environmental Protection Act, before they had standing to seek review. The supreme court found that the adjusted standard granted here is not, in itself, a rule or regulation. It is an individualized exception to a regulation. It is an adjudicatory determination which is quasi-judicial in nature, unlike a rule or regulation, which is legislative in nature.
In this decision, the supreme court did not reach the merits. It found that the opposition groups lacked standing to bring their appeal and vacated the appellate court’s decision. The appeal was dismissed.