ILLINOIS
POLLUTION
CONTROL BOARD
March
24,
1988
IJSL
CHE~4ICALS COMPANY,
Petitioner,
v.
)
PCB 87—149
87—199
ILLINOIS ENVIRONMENTAL
)
88—9
PROTECTION AGENCY,
)
Consolidated
Respondent.
ORDER OF THE BOARD
(by J.D.
Dumelle):
USI Chemicals Company
(USI)
filed
the first of the three
above—docketed permit appeals on October
8,
1987.
On November
9,
1987
the Illinois Environmental Protection Agency (Agency)
filed
a motion
to dismiss.
The Agency argued that
the statutory period
for declaration of invalidity of the rule
in question had passed
and
that
rio case law supported
the seeking of
a declaration of
invalidity
of
a rule
in
a permit appeal proceeding.
In response
to the Agency’s motion, USI asserted
that a regulation may be
challenged
in
a permit appeal action,
and
to support
this
assertion,
cited Celotex
Corp.
v.
IPCB,
94 Ill.
2d
107,
445
N.E.2d 752
(1983).
On November
25,
1987 the Board
issued
an
Order stating
that “tjhe
issue appears settled that
a permit
denial applicant may challenge
a regulation as applied
to that
applicant”
and requesting briefs on burden of proof, standard
of
review,
and other relevant evidence.
Both parties
filed briefs
on February 23,
1988.
Discovery has been postponed pending
guidance from the Board concerning
the scope of review
appropriate
for the
issues raised
in these appeals.
USI asserts that the nature of these permit appeals,
i.e.,
challenging
the validity of
a rule “as applied”,
is fundamentally
different
from an ordinary permit appeal proceeding
in that the
Agency does not make
the initial determination on
the
issue
presented.
USI has correctly cited Celotex Corp.
v.
Illinois
Pollution Control Board,
94
Ill.
2d 107,
445 N.E.2d 752
(1983)
and Central
Illinois Public Service
Co.
v.
Illinois Pollution
Control Board,
36 Ill.
App.
3d 397,
344 N.E.2d
229
(1976)
for the
proposition that
a permit applicant has the right
to challenge
the validity of a Board rule
in
a permit appeal proceeding.
However,
USI has not persuaded
the Board
that the Celotex and
CIPS cases can be extended by Village of Cary
v. Pollution
Control
Board,
82
Ill. App.
3d 793,
403 N.E.2d 83
(1980),
to
allow a
permit applicant to challenge the validity of
a
regulation
“as applied”
to
a particular
facility
in
a permit
87—175
—2—
appeal.
The validity
“as applied” argument
is the result of
language
in the Cary decision.
Cary was
an appeal from
a
Board
decision denying
a variance request.
The ultimate Court holding
was that
“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
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.”
Cary, supra.
The Board believes that the issue of the validity of
a regulation
as applied
to
a particular
facility
is not appropriate
for review
in
a permit appeal proceeding.
In support of this belief,
the
Board notes that one of the principal drafters of the
Environmental Protection Act
(Act), Professor David
P.
Currie,
has stated:
“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 that the avenue
for
challenging
the validity
of
a
regulation
as
applied
to particular
facts
is
to petition
for
a
variance,
not
to
seek
direct
review
under
Sections
29
and
41.”
David
Currie,
Rulemaking Under
Illinois Pollution Law,
42
U.
Chi.
L.
Rev.
457,
at 475.
In Commonwealth Edison Co.
v.
PCB,
25
Ill. App.
3d
271,
323
N.E.2d
84
(1975),
the Appellate Court
stated that it did not
believe an
“as applied” argument could
be successfully urged
in
a
Section
29 appeal.
Further,
the Court
stated:
“Substantive
rules
of
this
nature
are
promulgated
for
general,
not
special,
87—176
—3—
application.
Consequently,
investigators
for
the
Board
gather
facts
and
solicit
expert
advice
in
regard
to
pollution
problems
affecting
all
types
of
companies
in
a
particular
trade.
In
a case
like
the present
one,
the
Board
would
have
been
charged
with
investigating
facts
and
operations
of
all
types
of
generating
units—single
and
multi—
unit,
commercial,
industrial,
and
public
utility
——
and
from
these
surveys
extrapolate
the
appropriate
principles
and
propose
the
necessary
regulations.
The
Board
cannot
be
expected
to
research,
evaluate,
and
make
allowance
for
every
special,
unusual,
or
unique
problem
involving
every
producer
of
electrical
energy.
Where
one
fails
to
challenge
the
rules
generally
and
instead
seeks
to
relax
their
enforcement
against
him
exclusively due
to arbitrary
and
unreasonable
hardship,
the
legislature
has determined
that
the
appropriate
remedy
is
for
the
aggrieved
party
to
seek
a
variance
in
accordance
with
Title
9
of
the
Act.
If
that
is
denied,
the
aggrieved
can
petition
to
this
court
for
review
based
on
the
record
at
that
proceeding.”
Commonwealth
Edison,
323 N.E.2d
84, at 90.
Although Commonwealth Edison involved
a Section 29 appeal,
the
Board believes that
the same considerations apply
to the permit
appeal proceeding,
and that,
therefore,
the variance petition
is
the proper method by which to challenge the validity of a
regulation
as applied
to particular
facts.
The Board notes also
that
it has
no
investigators of its own with which
to investigate
the facts and operations attendant
to each regulated facility.
Nor has USI persuaded the Board that Cary provides guidance
on the
issue of the scope
of relevant evidence
in
a permit appeal
proceeding.
The scope of relevant evidence depends on the type
of action presented,
and Cary
involved
a variance proceeding.
Section 35 of the Act establishes variance procedures
to provide
a mechanism whenever
it
is found, “upon presentation of adequate
proof, that compliance with any rule or regulation, requirement
or
order
of the Board would
impose
an arbitrary or unreasonable
hardship.”
A determination of arbitrary or unreasonable hardship
in certain circumstances necessarily includes
a consideration of
relevant evidence
in the rulemaking
record.
Here, however, the actions presented are permit appeals
——
USI
is challenging
the imposition of certain Board
air pollution
regulations as
a condition of its permit.
Pursuant
to Section 40
of the Act,
USI may “petition
for a hearing before
the Board
to
87—177
—4—
contest
the decision of
the Agency.”
It
is, therefore,
the
decision of
the Agency that
is being appealed:
USI’s claim as
to
the nature of these proceedings notwithstanding.
Consistent with
the dictates of Celotex and CIPS,
the Board will
accept evidence
on the validity and applicability of the regulation
in question
as it relates
to the Agency’s decision.
To demonstrate that
a
regulation
is invalid,
a party must show that the regulation,
in
general
and not “as applied”
to particular
facts,
is arbitrary,
capricious, unreasonable,
or otherwise not
in accordance with the
law.
To demonstrate that
a regulation
is inapplicable,
a party
must show that the facility in question does not fall within the
purview of the regulation.
The Board notes that these constitute
two separate and distinct determinations.
Finally,
there can be no question but that the burden of
proof on these
issues lies with USI.
Section 40
of the Act
states that “the burden of proof
shall
be on the Petitioner.”
USI’s assertion that
“the Agency should have
the burden of coming
forward with the evidence
in the rulemaking proceeding which
shows that the rules are valid
as applied
to the Petitioner and
that the rules were validly adopted”
(USI Brief on Procedural
Issues,
filed
February 23,
1988,
p.
16)
is ludicrous.
As the
Agency correctly notes,
rules and regulations
promulgated by the
Board have the force and effect of law, and like statutes,
are
presumed valid.
Celotex, citing Eastman Kodak Co.
v.
Fair
Employment Practices
Corn.,
86 111.
2d
60,
71,
55
Ill.
Dec.
552,
426 N.E.2d 877
(1981).
The Act and case law are further
reinforced
in
that
policy
reasons
mandate
that
the
Agency
not
be
required
to reprove
a regulation each
time
a permit condition
is
challenged
——
the time, energy, and expense involved
in
rejustifying
an already presumptively valid regulation would be
too
great.
The
Hearing
Officer
is hereby directed
to proceed with
hearing
in
a
manner
consistent
with this Order.
The Board notes
that the standard
of review issue will be addressed
in
the final
opinion
and order.
USI
is cautioned
that any attempts
to exceed
the
scope of review outlined herein will not be favored.
IT
IS SO ORDERED.
I,
Dorothy
M. Gunn, Clerk of
the Illinois Pollution Control
Board, hereb
certify
that
the above Order was adopted on
the
______________
day of
____________,
1988 by
a vote
of
-
o
.
Dorothy
M.
Gunn,
Clerk
Illinois
Pollution
Control
Board
87—178