ILLINOIS POLLUTION CONTROL BOARD
June 2, 1988
CONTAINER CORPORATION OF
AMERICA,
Petitioner,
v.
)
PCB 87—183
ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
INTERIM ORDER OF THE BOARD (by R. C. Flemal):
Container Corporation of America (“CCA”) filed a petition
for variance from 35 Ill. Adm. Code 215, Subpart P and 35 Ill.
Adm. Code 215.245 on November 30, 1987. In its petition, CCA
further requested the Board find that 35 Ill. Adm. Code 215.245
and Subpart p are “invalid as applied to its Carol Stream Plant”
(Pet, at 2). On December 3, 1987, the Board noted the validity
challenge and ordered the parties “to present arguments
concerning the burdens of proof, standards of review and relevant
evidence to be considered at
...
hearing.” CCA and the Illinois
Environmental Protection Agency (“Agency”) subsequently filed
their briefs on February 23, 1988. Discovery has been postponed
pending guidance from the Board concerning the scope of review
appropriate
The initial
for the
question
issues
to
raised
be addressed
in this
is:
variance
What
proceeding.
challenge to
1
the validity of regulations is allowable in variance
proceedings? That some right of challenge does exist is manifest
in the holding of the Second District:
In our view it is manifestly appropriate that a
regulation which is asserted to be arbitrary,
unreasonable or capricious as applied to a party be
first considered by the Pollution Control Board when
raised in a variance proceeding (see Monsanto v.
Pollution Control Board (1977), 67 Ill.2d 276, 288—
91, 10 Ill. Dec. 231, 367 N.E.2d 684, 689—90), and no
section of the Environmental Protection Act provides
The Board notes that CCA participated in R85—21B, the
rulemaking proceeding involving these regulations, and that the
regulations are currently on appeal before the Second District
(Illinois State Chamber of Commerce v. PCB, Second Dist.
Appellate Court No. 2—87—1143).
90—51
—2—
otherwise. We conclude that the issue of the
validity of a Board regulation as applied to a party
may be raised in a variance proceeding and that
direct review of the order thereafter entered may be
sought pursuant to sections 29 and 41 of the Act.
(Village of Cary v. PCB, 82 Ill. App. 3d 793, 403
N.E.2d 83 (1980).
In reaching this holding, the Second District relied upon D.
Currie, Rulemaking Under Illinois Pollution Control Law, 42
U.Chi.Ill.Rev. 457, 475 (1975). Professor Currie is the author
of the legislation which ultimately became the Illinois
Environmental Protection Act (“Act”). Professor Currie noted
that in the original bill which created the Act there had been
included a remedy for petition to the Board to determine the
scope of validity of its own regulations. This provision was
later dropped and as Currie comments:
Elimination of the Board remedy for determining the
applicability of a regulation seems to have created a
gap in the statute. For section 41 speaks only of
“judicial review” of what the Board has done, and
“review” implies a determination of the correctness,
not of the meaning, of Board action
...
Uncertainty
as to the meaning of a regulation can often be
clarified by filing a petition for variance if there
is no need for a variance because the regulation is
inapplicable, the Board can say so in its opinion.
The same considerations——utilizing the experience of
the specialized Board, and the awkwardness of
conducting a trial at the appellate level——support
the decision in Commonwealth Edison Co. v. EPA, 25
Ill.App. 3d 271,281, 323 N.E.2d 84, 90 (1st Dist.
1974). that the avenue for challenging the validity
of a regulation as applied to particular facts is to
petition for variance, not to seek direct review
under sections 29 and 41. (Id.; emphasis added)
It is clear from the Currie text that it is the uncertainty
as to the meaning of a regulation which is proper for review in a
variance proceeding. It is therefore logical, and proper, that
in some circumstances a variance determination would include
matters such as consideration of the applicability of the rule to
a particular facility (i.e., the meaning of the rule together
with the scope of its applicability) prior to the determination
of whether such regulations impose an arbitrary or unreasonable
hardship upon a petitioner. Such determinations might also
necessarily include relevant evidence from the rulemaking
record. However, this is not to say that any and all questions a
petitioner may have regarding a regulation are properly addressed
within a variance proceeding.
90—52
—3—
It is a matter of stare decisis that a variance by its
nature constitutes temporary relief from the need to comply with
regulations. For example, in commenting on the nature of the
variance process, the Illinois Supreme Court has concluded:
Compliance by all polluters with board regulations is
an ultimate goal. The variance provisions afford
some flexibility in regulating the speed of
compliance, but a total exemption from the statute
would free a polluter from the task of developing
more effective pollution—prevention technology and
would impair the ability of the Board to protect
health, welfare, property, and the quality of life.
Obviously, this would be inconsistent with the Act’s
objectives. (Monsanto v. Pollution Control Board, 67
Ill.2d 276,287 (1977); emphasis added).
Since a variance can only provide for temporary relief, it
follows that findings which would permanently excuse a polluter
from compliance with an otherwise applicable regulation would be
inimical to the variance process. It further follows that it is
beyond the authority of the Board to grant permanent relief in a
variance proceeding, and that arguments directed towards
permanent relief cannot be entertained therein.
Based upon the foregoing, the Board finds that the issue
regarding the validity of the regulations as applied is limited
within the variance proceeding to matters concerning uncertainty
of meaning of the regulations.
The Board next turns to the issue of the burden of proof.
Section 37 of the Act clearly states that in a variance
proceeding, “the burden of proof shall be on the petitioner”.
This notwithstanding, CCA contends that the Agency should have
the burden of coming forward with evidence which shows that the
rules are valid as applied and that the rules were validly
adopted. This contention can be given no weight. For the
reasons noted above, much of what CCA would require the Agency to
prove is not germane in a variance proceeding. Moreover, rules
and regulations promulgated by the Board have the force and
effect of law, and like statutes, are presumed valid. Celotex
Corporation v. IPCB, 94 Ill.2d 107, 445 N.E.2d 752 (1983); citing
Eastman Kodak Co. v. Fair Employment Practices Co., 86 Ill.2d 60,
71, 55 Ill. Dec. 552, 426 N.E.2d 877 (1981). Policy
considerations further mandate that the Agency not be required to
reprove a regulation each time a petitioner may wish to challenge
it; the time, energy, and expense involved in rejustifying an
already presumptively valid regulation would be beyond reason.
Consistent with the above, the Board finds that such burden
of proof as may exist in the instant matter resides with
Petitioner.
90—53
—4—
Lastly, the Board addresses the issue of standards of review
as they apply in the instant matter. In its brief CCA opines:
In determining whether or not Subpart P rules are
invalid as applied to CCA’s Carol Stream Plant,
the
Board should determine whether there is any
technically feasible and economically reasonable
means by which CCA can comply with those rules. If
the Board finds that no such means exist, it should
rule that the Subpart P regulations are invalid as
applied to the Carol Stream Plant because they impose
an arbitrary and (sic) unreasonable hardship.
(emphasis added).
The Board notes that CCA thereby attempts to introduce into
the instant matter two distinctly different standards of
review. The first is the technically feasible and economically
reasonable standard, which is the standard of review imposed upon
the Board in regulatory proceedings pursuant to Section 27(a) of
the Act. The second is the arbitrary or unreasonable hardship
standard, which is the standard of review imposed upon the Board
in variance proceedings pursuant to Section 35(a) of the Act.
The Board does not believe that
it
has the authority to
entertain a standard of review other than that specifically
provided for in the Act. The Act does not provide for a
technically feasible or economically reasonable standard of
review in variance proceedings, and therefore the Board cannot
entertain that standard.
Moreover, if the Board were to find rules invalid using the
same standard as it uses in a variance determination, and based
upon criteria used in rulemaking determinations, anyone who made
such a showing could then have the rule declared “invalid” as
applied to them. This was not the standard that was used by the
Cary court, which affirmed that the standard of review of Board
rules is whether such rules are arbitrary, unreasonable or
capricious (Cary citing Monsanto, supra). The Board could not
therefore logically or equitably declare a general rule invalid
for one facility using a variance standard, and at the same time
cause it to be applied to another facility on a basis of a
regulatory standard. Such action would, of itself, constitute an
arbitrary and capricious action. Moreover, the Board concurs
with the rationale of the Agency, which stated in its brief:
Tihe invalidity of a Board regulation is not to be
determined by the impact that the rule has on a
particular facility. Compliance with a particular
regulation may create an unreasonable and arbitrary
hardship for an individual facility, but this does
not automatically render that regulation invalid.
All this does is create a basis for seeking variance
90—54
—5—
relief under Section 35 of the Act (Ill. Rev. Stat.
ch. 111 1/2, par. 1035 (1985)) (~gencyBrief at 13).
The Hearing Officer is hereby directed to proceed with
hearing in a manner consistent with this Order.
IT IS SO ORDERED.
Board Member Bill Forcade concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Interim Order was adopted on
the
~
day of
_______________,
1988, by a vote of
7~0
Dorothy M Gunn, lerk
Illinois Pollution Control Board
9 0—55