ILLINOIS POLLUTION CONTROL BOARD
August
18,
1988
CONTAINER CORPORATION OF
AMERICA,
Petitioner,
v.
)
PCB 87—183
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by B.
Forcade):
On July 29,
1988, Container Corporation of America
(“CCA”)
filed
a Motion
to Reconsider or Certify Question.
That motion
requests that the Board review and modify its June
2,
1988
Interim Order which defined the degree of regulatory review
that
would
be allowed
in this proceeding,
or
to certify the issue
for
interlocutory appeal.
The Illinois Environmental Protection
Agency
(“Agency”)
filed
a response on August
17,
1988
The Board grants reconsideration, but declines
to expand the
scope of regulatory review or certify
the question
for review.
CCA contends that the Board has misunderstood the relevant
law, and that the statutory language and applicable Court
Opinions all
recognize CCA’s ability,
in
a variance proceeding,
to challenge the validity of
a regulation as applied.
CCA
asserts that Village of Cary v. Pollution Control Board,
82
Ill.
App.
3d
793, 403 N.E.
2d
83
(1980),
requires this Board to
entertain challenges to regulations
in
a variance pi~oceeding.
In
a similar manner other practitioners assert that Celotex
v-.
Pollution Control Board,
94
Ill.
2d 107,
445 N.E.
2d 752
(1983),
requires this Board
to entertain challenges
to regulations
in
a
permit appeal.
Upon reconsideration,
the Board affirms the
reasoning and analysis of its June
2,
1988 Interim Order.
As
explained below,
the Board believes that the new Section 29
(b)
of the Environmental Protection Act (“Act”) provides added
support
to the Board’s view that
it is not required
to entertain
post—promulgation challenges to the validity of its
regulations
within a variance proceeding.
The prior arguments and opinions on whether
regulations may
be challenged before
the Board have been affected by recent
action of
the General Assembly.
On June
27, 1988,
the General
Assembly passed SB—1834 which was signed by the Governor on July
14,
1988.
That bill included the following amendment adding
Section 29(b)
to the Act:
91—363
—2—
Action by the Board
in adopting any regulation
for
which
judicial
review
could
have
been
obtained
under
Section
41
of
this
Act
shall
not
be
subject
to
review
regarding
the
regulation’s
validity
or
application
in
any
subsequent proceeding
under Title
VIII,
Title
IX or Section 40 of this Act.
The Act has always specifically and clearly allowed
adversely affected persons
to seek judicial review of Board
regulations pursuant to Section 41.
That Section requires that a
Petition for Review be filed within 35 days of the final order.
The Act has previously not addressed whether
or
to what extent
the validity of
a regulation may be challenged after
that 35 day
period.
As some regulated entities raised such challenges,
the
Courts were called upon to speak where
the Act was silent.
Cary
and Celotex represent the seminal cases
in which
the courts have
addressed the possibility of post—promulgation challenges
to the
validity
of
a regulation.
Both cases involve
a court engaging
in
the interpretation of
statutory language,
and both courts
specifically noted
the absence of statutory language
to conflict
with their
interpretation.
In Cary
the court stated,
“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
citation
omitted,
and no section of the
Environmental Act provides otherwise.”
(Emphasis added)
Cary at
89.
In Celotex the Supreme Court stated,
“The Act provides for
judicial review of denials of permits.
There
is nothing
in the
statute
to indicate that the General Assembly intended to deprive
one of an opportunity to challenge
a regulation that is being
applied
to deny him a permit simply because he did not contest
the regulation immediately after
its adoption.”
(Emphasis added)
Celotex at
756.
Since Section 29
(b)
represents the General Assembly’s
first
and only utterance on post—promulgation review,
the Board
concludes
that the new section represents
the General Assembly’s
original intent.
Subsequent enactments may be used
to help
determine the legislature’s original intent, particularly where
the amendment is enacted shortly after the interpretation of the
statute
it amends comes
into dispute.
Central Illinois Public
Service Company
v. Pollution Control Board,
116 Ill.
2d
397,
507
N.E.2d 819
(1987),
In re Marriage of Semmler,
107 Ill.
2d
130,
137,
481 N.E.2d 716
(1985).
Although the Cary and Celotex cases
are respectively eight and five years
old, assertions regarding
the validity of regulations as applied to particular facilities
based
on
these
cases
have
been
recently
presented
before
the
Board.
Since
interpretation
of
Section
29
and
41
review
have
been
of
recent
dispute,
it
follows
that
the
Legislature’s
original intent
is shown by the enactment of Section
29
(b).
The
fact that the SB 1834 revisions
to the Act do not become
‘)1—364
—3—
effective until January
1,
1989 has no bearing on
a showing of
intent.
Since
the Act has now been specifically revised
to deny
subsequent review,
neither Celotex nor Cary, to the extent that
they may or may not have allowed for post—promulgation challenges
to the validity of
a regulation,
remain good law.
The Board further notes
that CCA has raised
its concerns
about the validity of
the particular regulation at issue
in at
least
three proceedings
so
far:
In R85—21B, CCA participated
in
the general rulemaking proceeding and opposed adoption of
regulation
for essentially
the same reasons asserted here today;
In R88—4
CCA is requesting that the Board adopt site—specific
regulatory language exempting CCA from the general rule adopted
in R85—2lB for the same reasons;
In this proceeding CCA
is
asserting that the rule adopted
in R85—2lB cannot be validly
applied
to CCA.
CCA
is not the only facility to seek review of
a single
fundamental regulatory conflict
in multiple proceedings before
the Board.
In the last six months the Board has docketed at
least ten variance
or permit appeal proceedings filed by entities
that challenge the validity of
a recently adopted regulation.
These post—promulgation adjudicatory challenges
raise the same
technical and economic arguments against the regulation’s
validity as
the entity asserted
in the recently completed
regulatory proceeding.
Some of
those entities have now docketed
a permit appeal,
a variance,
and a site—specific regulatory
proposal.
The Board is not convinced that CCA or any other
facility must
be given three or four opportunities
to present
evidence and seek judicial review of the Board’s position on
a
single concept.
These multiple reviews present logistic problems
if nothing
else.
The record
in R85—2lB
comprises two full file boxes of
pleadings,
exhibits, public comments,
and transcripts.
Under
the
theory
of Cary the Board should “consider” thisevid,ence
of, the
variance hearing for purposes of judicial review”.
Cary at 89.
Under
the theory articulated by CCA the Board would have great
difficulty
in simply reproducing the respective regulatory
records
into the subsequent variance and permit appeal cases.
Thorough review and consideration of such voluminous evidence by
the Board
in the limited time frames allowed by statute for the
adjudicatory proceeding poses unworkable problems.
The Board believes that the issues presented here and in the
June
2,
1988 Order do not involve
a question of law of which
there
is substantial ground for a difference of opinion,
and that
immediate appeal would prolong
the termination
of this
litigation,
rather than advance
it.
Therefore,
the Board
declines
to certify the questions posed
by CCA
for interlocutory
appeal.
In conclusion,
the Board believes that the language
of
Section
29
(b)
is clear
and unambiguous
in
its meaning,
and that
~fl—365
—4—
it
absolutely
precludes
the
type
of
post—promulgation
challenge
to the validity of
a regulation which CCA asserts here.
The
regulation at issue was promulgated by the Board on November
20,
1987.
Not only could review of the regulation
in question have
been obtained,
but as the Board noted
in its June 2,
1988 Interim
Order,
review
is currently pending
in the Second District
(No.
2—
87—1143).
IT IS SO ORDERED.
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi~,ythat the above Order was adopted on the
/A~~
day
of
_________________,
1988, by
a vote of
4~
~
Dorothy
M.
G
n,
Clerk
Illinois Pollution Control Board
91— 366