SIERRA CLUB et al., Petitioners-Appellants, v. ILLINOIS POLLUTION CONTROL BOARD et al., Respondents-Appellees (United States Environmental Protection Agency, Respondent), 403 Ill. App. 3d 1012

JUSTICE LYTTON delivered the opinion of the court: Peoria Disposal Company (PDC) filed a petition with the Illinois Pollution Control Board (Board) to delist residue resulting from the treatment of electric arc furnace dust (EAFD) as a hazardous waste for disposal purposes. The Board issued an order granting PDC’s petition. Sierra Club and Peoria Families Against Toxic Waste (collectively referred to as the opposition groups) seek reversal of the Board’s order, arguing that the Board erred in (1) failing to consider the factors set forth in

section 27(

a) of the Illinois Environmental Protection Act (Act) (415 ILCS 5/27(a) (West 2008)); (2) not requiring PDC to address future permit modifications; (3) finding that local citing approval was not required; and (4) not requiring reopener language. PDC and the Board argue that the opposition groups do not have standing to appeal the Board’s order. We find that the opposition groups have standing but affirm the Board’s order on the merits of the case.

BACKGROUND In 1989, the Illinois Environmental Protection Agency (IEPA) issued a permit to PDC to operate a waste stabilization facility (WSF) near Peoria, Illinois, for the storage and treatment of hazardous and nonhazardous waste. On April 25, 2008, PDC filed a delisting adjusted standard petition under

section 28.1 of the Act (415 ILCS 5/28.1 (West 2008)). In the petition, PDC asked the Board to delist K061 hazardous waste, EAFD, an emission from the production of steel in electric arc furnaces, after the EAFD is treated and stabilized. The residue resulting from PDC’s treatment is referred to as “electric arc furnace dust stabilized residue” (EAFDSR). On June 12, 2008, IEPA filed a response generally supporting the petition. The Board conducted a public hearing on PDC’s petition on August 18, 2008. PDC presented two witnesses at the hearing.

PDC’s first witness was Laura Curtis, a senior environmental engineer for RMT, Inc., an environmental energy and engineering firm that provides consulting services to businesses like PDC. PDC retained her to evaluate the new process it developed for stabilizing EAFD waste. She summarized the delisting process. She also testified about the chemical process involved in stabilizing EAFD waste and the tests she performed to determine if PDC’s process successfully removed the hazardous properties from the waste. She concluded that PDC’s treatment of the EAFD waste renders it nonhazardous and subject to delist-ing.

PDC’s next witness was Ajit Chowdhury, a chemical engineer. He testified that PDC hired him to develop a new technology to stabilize EAFD, which he did. He described the chemical process involved in stabilizing EAFD. He testified that the process he created permanently stabilizes the EAFD. Twenty-seven other individuals presented public comments at the hearing. Some of those individuals were members of the opposition groups, who expressed concerns about the delisting petition. After the hearing ended, the Board accepted written public comments.

Many written public comments came from members of the opposition groups. In addition to the public comments, IEPA issued a recommendation, asking the Board to grant PDC’s delisting petition. On January 8, 2009, the Board issued a 103-page opinion and order granting PDC’s delisting petition subject to several conditions. In re RCRA Delisting Adjusted Standard Petition of Peoria Disposal Co. Ill. Pollution Control Bd. Op. AS 08 — 10 (January 8, 2009) (hereinafter Board Order). In its

summary, the Board stated: “Based on a thorough review of this record, the Board finds that PDC has met the legal tests for delisting under

Section 28.1 of the Environmental Protection Act *** and

Section 720.122 of the Board’s hazardous waste regulations ***. PDC has demonstrated that (1) the treatment residue does not meet any of the criteria under which K061 EAF dust was listed as hazardous waste; (2) there is no reasonable basis to believe that factors other than those for which the K061 waste was listed warrant retaining the treatment residue as a hazardous waste; and (3) the treatment residue exhibits no characteristics of hazardous waste.

The scientific evidence presented to the Board shows that the treatment residue meeting the Board’s designated delisting levels does not pose a substantial present or potential threat to human health or the environment when considering all of the relevant factors.” Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 2.

The Board imposed several conditions upon PDC, including (1) requiring analytical proof that every batch of EAFDSR leaving PDC’s facility does not contain chemical concentrations in excess of those found to be safe, (2) adding dioxins and furans to the constituents for which PDC will have to test, (3) tightening the description of disposal facilities that may receive delisted treatment residue, and (4) narrowing the instances when PDC can alter its stabilization process without having to first petition the Board to justify an amendment to the delisting. Board Order, Ill. Pollution Control Bd. Op.

AS 08 — 10, at 2. In its order, the Board considered many concerns raised in public comments. One of those concerns was whether reopener language used in delistings granted by the United States Environmental Protection Agency (USEPA) should be included in PDC’s delisting. The Board found that USEPA reopener language was “unnecessary here to ensure protection of human health and the environment.” Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 77.

The Board explained that “Illinois’ comprehensive environmental regulations, supplemented by corrective action and injunctive authorities under the Act, provide the ability to promptly detect and remedy problems of the sort the reopener is designed to address.” Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 78. The Board further found that Illinois’ system of environmental governance does not lend itself to reopener language. Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 78.

Next, the Board addressed concerns raised by the opposition groups that PDC did not provide sufficient evidence to satisfy the factors set forth in

section 27(

a) of the Act (415 ILCS 5/27(a) (West 2008)). 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.” Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 81. The Board then went on to specifically discuss the location of the facility, its effect on drinking water and potential air emissions, the technical feasability of treating the EAFD with PDC’s new technology and the economic reasonableness of PDC’s treatment proposal. Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 81-85. Next, the Board considered the opposition groups’ concern that PDC will need permit modifications if the adjusted standard is granted.

PDC responded that it conferred with IEPA and “ ‘confirmed that no permits or permit modifications will be required if the delisting is granted’ ” because PDC’s current permit is “ ‘sufficient to cover PDC’s operations in treating the EAFDSR after delisting.’ ” Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 85. Based on PDC’s response that no permit modifications were necessary, the Board found the opposition groups’ concern unfounded. Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 86.

Finally, the Board addressed the opposition groups’ argument that PDC needed local siting approval because the proposed delisting “ ‘would create a new pollution control facility.’ ” The Board found that local siting approval was “not a prerequisite to the Board granting this delisting petition.” Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 86. The Board found that in order to rule on the delisting petition, it was not necessary for it to “offer legal opinions on the disputed

interpretations of ‘new pollution control facility,’ ‘transfer station’ and ‘special waste.’ ” Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 86. On February 13, 2009, the opposition groups filed a petition for review of the Board’s January 8, 2009, order. I. Standing PDC and the Board argue that the opposition groups lack standing to challenge the Board’s order in this case because they do not fall within any of the groups identified in

section 41(

a) of the Act (415 ILCS 5/41(a) (West 2008)). The opposition groups respond that they have standing pursuant to

section 29(

a) of the Act (415 ILCS 5/29(a) (West 2008)) because they are persons “adversely affected or threatened” by the delisting. Whether the opposition groups have standing is a question of law that we review de novo. Malec v. City of Belleville, 384 Ill. App. 3d 465, 468, 891 N.E.2d 1039, 1042 (2008).

Section 28.1 of the Act, which governs adjusted standards, provides that “[a] final Board determination made under this

section may be appealed pursuant to

Section 41 of this Act.” 415 ILCS 5/28.1(g) (West 2008).

Section 41(

a) of the Act provides: “Any party to a Board hearing, any person who filed a complaint on which a hearing was denied, any person who has been denied a variance or permit under this Act, any party adversely affected by a final order or determination of the Board, and any person who participated in the public comment process under subsection (8) of

Section 39.5 of this Act [the Clean Air Act permit program] may obtain judicial review, by filing a petition for review within 35 days from the date that a copy of the order or other final action sought to be reviewed was served upon the party affected by the order or other final Board action complained of. *** 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(

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). The parties agree that the opposition groups were not parties in the Board proceeding and do not fit within any other category of persons identified in

section 41(a). They disagree, however, about whether the Board’s order granting PDC’s delisting constitutes a “rule or regulation.” If it does, then the opposition groups have standing pursuant to

section 29(a). It is well established that the Board serves both quasi-judicial and quasi-legislative functions. Environmental Protection Agency v. Pollution Control Board, 86 Ill. 2d 390, 399, 427 N.E.2d 162, 166 (1981); Environmental Protection Agency v. Pollution Control Board, 308 Ill. App. 3d 741, 747, 721 N.E.2d 723, 727 (1999) (Swenson Spreader Co.). Quasi-legislative functions include promulgating rules and regulations and placing conditions on variances. Swenson Spreader Co., 308 Ill. App. 3d at 747, 721 N.E.2d at 727.

Many aspects of ruling on a petition for an adjusted standard involve quasi-legislative determinations. Swenson Spreader Co., 308 Ill. App. 3d at 748, 721 N.E.2d at 728. “Quasi-legislative determinations are exercises of the Board’s rule-making powers.” Swenson Spreader Co., 308 Ill. App. 3d at 747, 721 N.E.2d at 728. PDC and the Board contend that the Board’s decision was not a legislative or quasi-legislative determination but, rather, an adjudicatory determination, pursuant to

section 28.1(

a) of the Act.

Section 28.1(

a) 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.” 415 ILCS 5/28.1(a) (West 2008). The opposition groups respond that the Board’s order granting PDC’s delisting petition was a regulation based on

section 27 of the Act, the Board’s own rules and the placement of the adjusted standard provisions in the Act.

Section 27(

a) provides: “The Board may adopt substantive regulations as described in this Act. Any such regulations *** may include regulations specific to individual persons or sites.” 415 ILCS 5/27(a) (West 2008). Additionally, the Board’s rules state that “[a]n adjusted standard has the effect of an environmental regulation that would apply to petitioner, if granted, in lieu of the general regulation that would otherwise be applicable to a petitioner and the regulated community.” 35 Ill. Adm. Code §104.400(a).

Finally, sections 27 and 28.1, which set forth the process for obtaining an adjusted standard, are contained in Title VII of the Act, which is entitled, “Regulations.” 415 ILCS 5/26 et seq. (West 2008). While

section 28.1 requires the Board to conduct an adjudicatory hearing to determine whether to grant an adjusted standard petition, the resulting order may act as a regulation specific to the petitioner. Here, the Board’s granting of PDC’s petition created a rule or regulation specific to PDC, particularly since the Board imposed several conditions on PDC. Cf. Monsanto Co. v. Pollution Control Board, 67 Ill. 2d 276, 290, 367 N.E.2d 684, 690 (1977) (power granted to the Board to impose conditions on variances “is tantamount to the quasi-legislative power to make prospective regulations and orders”). Thus,

section 29(

a) applies and provides the opposition groups with standing to challenge the Board’s order. II.

Section 27(

a) of the Act The opposition groups argue the Board failed to fully and properly consider the factors set forth in

section 27(

a) of the Act when it granted PDC’s petition. We review this issue under a manifest weight of the evidence standard. See Swenson Spreader Co., 308 Ill. App. 3d at 748, 721 N.E.2d at

Section 27(

a) of the Act provides in pertinent part: “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.” 415 ILCS 5/27(a) (West 2008). The Illinois Supreme Court has held that this

section requires the Board to “consider” or “weigh carefully” the factors set forth in

section 27(

a) when adopting a regulation; it does not require the Board to make a determination, based on evidence in the record, that the delisting complies with the factors before promulgating it. See Granite City Division of National Steel Co. v. Illinois Pollution Control Board, 155 Ill. 2d 149, 181, 613 N.E.2d 719, 733-34 (1993). The court explained: “Rather than imposing a specific evidentiary burden on the Board ***,

section 27(

a) provides general standards to guide the Board in the exercise of its broad authority to ensure that the regulations adopted by the Board are reasonable.” Granite City, 155 Ill. 2d at 182, 613 N.E.2d at 734; see also Shell Oil Co. v. Pollution Control Board, 37 Ill. App. 3d 264, 275, 346 N.E.2d 212, 222 (1976) (“the legislature intended the Board’s obligation under

section 27 to be a flexible one and a matter of Board discretion, and did not intend by that

section to impose a specific evidentiary burden on the Board”). Although not required to do so, the Board specifically addressed the

section 27(

a) factors, including the character of the area involved and the technical feasibility and economic reasonableness of measuring or reducing the EAFD. The Board responded to many of the concerns raised in public comments regarding the location of the facility, its effect on drinking water and potential air emissions that may result from the delisting. Ultimately, the Board found that the delist-ing could be granted “consistent with those factors.” We find the Board’s ruling on the

section 27(

a) factors was not against the manifest weight of the evidence. III. Permit Modifications The objectors next contend that the Board erred in granting the delisting petition because it was incomplete. They argue that the petition should have addressed what permit modifications the facility will need in the future. PDC and the Board respond that its rules governing delisting do not require PDC to address potential permit modifications and that alternative measures exist to protect against changes that might occur in the future. Because this ruling involves the Board’s technical expertise and the

interpretation of its rules, we will overturn the Board’s decision only if it is arbitrary and capricious. See Swenson Spreader Co., 308 Ill. App. 3d at 747-48, 721 N.E.2d at 728. The Board has adopted rules setting forth the requirements that must be contained in a petition to delist. See 35 Ill. Adm. Code §104.406. Those rules do not require that a petitioner provide evidence or information regarding what permit modifications will be necessary for the delisting. It is the province of IEPA, not the Board, to grant permits. See 415 ILCS 5/4 (West 2008).

Here, PDC conferred with IEPA, and IEPA determined that no future permits would be necessary. If IEPA later determines that permits are necessary, IEPA must notify PDC of such and may institute proceedings to require PDC to obtain the necessary permits. See 415 ILCS 5/31 (West 2008). Thus, safeguards are in place if future permit modifications become necessary. For these reasons, the Board did not err in finding that PDC’s delisting petition was complete and should be granted. IV Local Siting Approval The opposition groups argue that PDC was required to obtain local siting approval, pursuant to

section 39.2 of the Act (415 ILCS 5/39.2 (West 2008)), because the delisting creates a “new pollution control facility.” They contend that PDC has created a new pollution control facility by accepting EAFDSR for the first time. They further contend that PDC is transforming its facility from a waste disposal facility to a waste transfer facility because “in the very near future, none of the EAF dust treated in the waste stabilization facility (EAFDSR) will be deposited in the PDC No. 1 Landfill.” We review this issue under a manifest weight of the evidence standard. See Swenson Spreader Co., 308 Ill. App. 3d at 748, 721 N.E.2d at

Section 39.2 of the Act requires local siting approval for new pollution control facilities. See 415 ILCS 5/39.2 (West 2008). The definition of a “new pollution control facility” includes (1) “the area of expansion beyond the boundary of a currently permitted pollution control facility,” and (2) “a permitted pollution control facility requesting approval to store, dispose of, transfer or incinerate, for the first time, any special or hazardous waste.” 415 ILCS 5/3.330(b) (West 2008).

When a facility only transfers waste, it is a “transfer station,” which “accepts waste for temporary storage or consolidation and further transfer to a waste disposal, treatment or storage facility.” 415 ILCS 5/3.500 (West 2008). Here, the actions proposed by PDC do not fit the definition of a new pollution control facility. PDC filed its delisting petition so that it could process EAFD and turn it into EAFDSR, a nonhazardous product. PDC is not seeking an expansion beyond the boundaries of its current WSF or adjoining landfill.

Additionally, PDC is not asking to deal with special or hazardous waste for the first time. The facility is already permitted to and does treat hazardous waste. Furthermore, after treatment, EAFDSR is not a hazardous waste. PDC’s petition for an adjusted standard does not contemplate the creation of a “new pollution control facility” as that term is defined in

section 3.330 of the Act. The Board properly found that local siting approval was not necessary. We also reject the opposition groups’ contention that PDC is operating a transfer station. The WSF is a facility designed to treat waste. A transfer station does not treat waste but merely stores it temporarily or consolidates it for further transfer. 415 ILCS 5/3.500 (West 2008). Since PDC is treating waste, it is not operating a transfer station. Nevertheless, the opposition groups suggest that PDC will be transporting all of its waste to off-site facilities in the future and thus become a transfer station.

However, this is not the issue in this case. The Board determined that the issue before it was not the legal

interpretation of terms such as “new pollution control facility” and “transfer station” and how they might be applied. Board Order, Ill. Pollution Control Bd. Op. AS 08 — 10, at 86. Rather, the issue was whether the delisting petition could be allowed. We agree. The Board correctly found that the petition should be granted. V. Reopener Language Finally, the opposition groups argue that the Board should have required reopener language as a condition to granting PDC’s petition. Because this ruling involves the Board’s technical expertise and

interpretation of the Board’s rules, we will overturn the Board’s decision only if it is arbitrary and capricious. See Swenson Spreader Co., 308 Ill. App. 3d at 747-48, 721 N.E.2d at 728. When the USEPA grants delistings, its orders often contain “reopener language.” See 40 C.F.R. pt. 261, app. IX (2008). Reopener language requires a facility to report to the Regional Administrator any data relevant to the delisted waste indicating that any constituent is at a level higher than the delisting level. 40 C.F.R. pt. 261, app. IX (2008).

Based on such information, the Regional Administrator may take whatever action is necessary to protect human health or environment, including suspending or revoking the exclusion. See 40 C.F.R. pt. 261, app. IX (2008). In Illinois, IEPA and state and local officials have broad authority to take action to protect human health and the environment when a potentially hazardous or dangerous condition exists. Pursuant to

section 4(

s) of the Act, IEPA “shall have authority to take whatever preventive or corrective action is necessary or appropriate *** whenever any hazardous substance or pesticide is released or there is a substantial threat of such a release into the environment.” 415 ILCS 5/4(s) (West 2008). Pursuant to

section 42(

e) of the Act, State’s Attorneys or the Attorney General may, at the request of IEPA, or on their own motion, institute a civil action to enjoin or restrain violations of the Act, any rule or regulation adopted under the Act, any permit or term or condition of a permit or any Board order. 415 ILCS 5/42(e) (West 2008). Furthermore,

section 43(

a) of the Act authorizes State’s Attorneys or the Attorney General, on the request of IEPA or their own motion, to institute a civil action for an immediate injunction to halt any discharge or any other activity causing or contributing to any danger to the environment or to the public health. 415 ILCS 5/43(a) (West 2008). Because Illinois authorizes corrective action and injunctive relief under the Act, reopener language like that contained in USEPA delistings is unnecessary for delistings in this state.

We find that reopener language is not only unnecessary but futile based on Illinois’ system of environmental governance. Unlike the federal system, where USEPA is responsible for both creating and enforcing environmental regulations, in Illinois, the responsibility for environmental regulation and enforcement is divided between IEPA and the Board. See 415 ILCS 5/4, 5 (West 2008). IEPA is responsible for permitting, site inspections and enforcement actions. See 415 ILCS 5/4 (West 2008).

The Board’s duties include determining, defining and implementing environmental control standards and conducting proceedings on complaints charging violations of the Act, regulations or Board orders, on petitions for variances or adjusted standards and on administrative citations. See 415 ILCS 5/5(c), (d) (West 2008). Once an adjusted standard is granted by the Board, the Board no longer has authority to take any action with respect to the facility. At that point, IEPA is in charge of site inspections and any institute enforcement actions that may be necessary. See 415 ILCS 5/4 (West 2008).

Because the Board has no authority to initiate enforcement, any reopener language would serve no purpose. Thus, the Board did not err in refusing to include it in its order. VI. Conclusion We affirm the order of the Illinois Pollution Control Board. Affirmed.