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Next, for the opposition groups’ challenge that the Board
erred in failing to require that PDC provide proposed permit
modifi cations, if any, the court applied the “arbitrary and
capricious” standard of review, noting that the Board’s
ruling involved the Board’s technical expertise and
interpretation of its rules. PDC, 403 Ill. App. at 1021, citing
Swenson Spreader. The court observed that the Board’s
procedural rules do not require adjusted standard petitions
to include information on what permit modifi cations would
become necessary if an adjusted standard is granted. Id.
at 1021, citing 35 Ill. Adm. Code 104.406. The court further
recognized that permitting is the “province” of IEPA, not the
Board, and that “safeguards are in place if future permit
modifi cations become necessary.” Id, citing 415 ILCS 5/31
(enforcement). The court held that the Board did not err in
fi nding that PDC’s petition was “complete and should be
granted.” Id.
For the opposition groups’ challenge that the Board erred
in failing to require PDC to obtain local siting approval,
the court applied the manifest weight of the evidence
standard of review. PDC, 403 Ill. App. at 1021, citing
Swenson Spreader. The court ruled that the actions
proposed by PDC do not fi t within the statutory defi nition
of “new pollution control facility.” Id. at 1022, citing 415
ILCS 5/3.330(b). The court noted that PDC is not seeking
to expand its WSF or adjoining landfi ll, nor is PDC asking
to handle special or hazardous waste for the fi rst time. Id.
The court also found that because PDC is treating waste,
not just storing it temporarily or consolidating it for further
transfer, PDC is not operating a “transfer station.” Id. The
court held that the Board “properly found that local siting
approval was not necessary.” Id. The Board ruled that local
siting approval was not a prerequisite to delisting, but the
Board declined to determine whether PDC proposed a
“new pollution control facility” or “transfer station.” Id. The
court agreed that these were not relevant issues before
the Board in a delisting proceeding and held that the Board
correctly found that the petition should be granted. Id.
Finally, for the opposition groups’ challenge that the Board
should have required reopener language as a condition of
the adjusted standard, the court applied the arbitrary and
capricious standard of review. PDC, 403 Ill. App. at 1022-
23, citing Swenson Spreader. The court noted that USEPA
delistings often contain reopener language, allowing the
USEPA Regional Administrator to take whatever action is
necessary to protect human health and the environment,
including revoking the delisting. Id. at 1023. The court
then reviewed the broad authorities available to State
and local offi cials in Illinois under the Act to take action to
protect human health and the environment. Id, citing 415
ILCS 5/4(s), 42(e), 43(a). In light of these authorizations
for corrective action and injunction, the court ruled that
reopener language is “unnecessary for delisting in this
state.” Id. The court further noted that Illinois splits between
the Board and IEPA responsibilities that are USEPA’s alone
under the federal system. Id. A reopener would “serve no
purpose” because once an adjusted standard is granted,
the Board “no longer has authority to take any action with
respect to the facility,” but IEPA does. Id. at 1024. The
court held that the Board did not err in refusing to include
reopener language. Id.
Special Concurrence
Justice Carter concluded that the opposition groups do not
have standing. PDC, 403 Ill. App. at 1024. He would have
dismissed the appeal on that ground, which would have the
effect of affi rming the Board. Justice Carter therefore wrote
to “concur in the resulting judgment of the lead decision to
affi rm.” Id.
Justice Carter reasoned that the standing issue “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.” PDC, 403
Ill. App. at 1025. Justice Carter found that Section 28.1
“indicates that this decision is an adjudicatory decision and
an appeal of such a decision is governed solely by section
41.” Id at 1026.
Justice Carter observed that Section 28.1(a) of the Act
states that the decision to grant an adjusted standard is
an “‘adjudicatory determination’” and that the rulemaking
provisions of Title VII, in which Section 29 is located, do not
apply. PDC, 403 Ill. App. at 1026, citing 415 ILCS 5/28.1(a).
Justice Carter further noted that Section 28.1(g) provides
that fi nal Board determinations under Section 28.1 “‘may
be appealed pursuant to Section 41 of this Act.’” Id, quoting
415 ILCS 5/28.1(g). Accordingly, “the statute . . . directs
that appeals are governed by section 41, not section 29, of
the Act.” Id.
Justice Carter recognized that Section 41 references
Section 29 and “specifi cally 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.” PDC,
403 Ill. App. at 1026. For Justice Carter, 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.” Id. According to Justice Carter,
because Section 28.1 indicates that adjusted standards are
adjudicatory decisions and that the rulemaking provisions
of Title VII do not apply, Section 29 is inapplicable. Id.
Justice Carter disagreed with the lead decision’s reasoning
that Swenson Spreader supports fi nding a delisting to be a
rulemaking procedure, as that decision merely recognized
that adjusted standards involve both quasi-legislative and
quasi-adjudicatory functions, warranting multiple standards
of review. Id. at1027.
Justice Carter next noted that the opposition groups do not
fall within any of the Section 41 categories of persons who
may appeal this Board decision. PDC, 403 Ill. App. at 1027.
Finally, Justice Carter observed that the opposition groups
could have sought leave of the Board to intervene to gain
party status, which would have given them appeal rights
under Section 41.