ILLINOIS POLLUTION CONTROL BOARD
    December
    3,
    1987
    IN THE MATTER OF:
    PUBLIC AIRPORT NOISE REGULATIONS
    )
    R 77-4
    35
    ILL. ADM., CODE PART
    904
    ORDER OF THE BOARD
    (by J.
    Marlin):
    The public comment period concerning
    these proposed rules
    adopted April 10,
    1986 had initially been closed by the Board
    as
    of December
    15,
    1986.
    It was, however, reopened by the Board
    for
    further argument concerning Bryski,
    et al.~ v.
    City of Chicago,
    et
    al.,
    148 Ill. App.
    3d
    556,
    499 N.E.
    2d 162
    (2d Dist.
    1986),
    a
    decision by the Illinois Appellate Court which relates to the
    Board’s authority under federal
    and
    state law to regulate airport
    noise.
    The last argument concerning this case was ordered
    to be
    filed
    by April
    22,
    1987,
    and the comment period was again closed.
    (See RES 87—1,
    January 26,
    1987,
    and Orders
    of February 19 and
    April
    16,
    1987.)
    On November
    2,
    1987,
    the Suburban O’Hare Commission
    (SOC)
    filed
    a “motion to defer
    rulemakingu which essentially requests
    that the Board stay these proceeding
    until entry of a final
    decision
    in
    a case pending
    in the United States Court of appeals
    for the Seventh Circuit, Lawrence
    ~.
    Bieneman,
    et
    al.
    v.
    City of
    chicago, et al,
    No. 87—2077.
    On November
    3,
    1987 SOC
    supplemented the motion by filing copies of the District Courts
    decision
    in Bieneman,
    as well
    as certain appellate briefs filed
    in the case.
    There has been only one response to this motion,
    that filed
    by the Air Traffic Association of America
    (ATA)
    on
    November
    16,
    1987.
    ATA alternatively requests that the motion be
    dismissed
    or denied.
    In support of
    its motion, SOC recites that the Illinois
    Appellate Courts decision in Bryski relied,
    in large part,
    on the
    decision
    in Luedtke
    v.
    County of Milwaukee,
    521 F.2d 387 (7th
    Cir.
    1975), decided by the United States Court of Appeals
    for the
    Seventh Circuit, which
    the Bryski court felt bound to follow.
    SOC asserts that the Bieneman case concerns many of the same
    issues which were before the courts
    in both Bryski and Luedtke.
    The United States District Court,
    in the Bieneman case,
    held
    that
    it was bound
    by the Luedtke decision.
    In the Bienemari
    appeal,
    Plaintiff—Appellant Bieneman has requested that the
    Seventh Circuit reverse
    the decision
    in Luedtke.
    SOC argues
    that,
    should the Bieneinan case result
    in
    a reversal
    or
    abandonment of the Luedtke decision, the Bryski decision would
    no
    84—71
    —2—
    longer warrant
    the consideration
    of any additional action by the
    Illinois Pollution Control Board.
    SOC did not provide an estimated decision date, noting only
    that the Bieneman appeal has been fully briefed,
    and that it
    is
    anticipated that
    a date
    for oral argument will be set shortly.
    In response, ATA asserts
    that:
    “There
    is
    no
    reasonably
    predictable
    basis
    to
    surmise
    that
    the
    Bryski
    decision
    could
    be
    changed
    as
    the
    Motion
    tries
    to
    suggest.
    The
    Board’s
    deliberations
    should
    go
    forward
    in
    the
    normal
    course under
    the authority of Bryski, and
    of
    other
    judicial
    authorities
    on
    federal
    preemption
    of the aviation field.
    The SOC Motion refers only
    to Luedtke
    v.
    County
    of Milwaukee,
    521 F.2d 387
    (7th Cir.
    1975).
    It
    ignores
    that
    the
    decision
    in
    Bryski
    is
    also
    based
    on
    prior
    Illinois decisions
    in County
    of
    Cook
    v.
    Priester,
    22
    Ill.App.3d
    964
    (1st
    Dist.
    1974)
    and
    Village
    of
    Bensenville
    v.
    City
    of
    Chicago,
    16
    Ill.Apo.3d
    733
    (1st
    Dist.).
    Whatever might
    flow
    from some
    fut~.ir~ereading
    of
    Luedtke,
    the determination of federal preemption
    in
    Bryski
    has
    other
    foundation
    in
    the
    law
    of
    Illinois.
    In view of the length of time the proceeding has
    been
    pending
    and
    its
    posture
    in
    respect
    of
    statutory
    requirements
    governing
    agency
    rulemaking,
    all
    considerations
    of
    sound
    and
    efficient
    agency
    administration
    require
    that
    SOC’s
    request
    for
    an
    indeterminate delay of
    the
    Board’s
    processes
    for
    the
    most
    speculative
    of
    reasons be denied.
    The Board
    is persuaded
    by ATA’s reasoning.
    Even assuming
    that the result of the Bieneman case
    ——
    after any appeal
    to the
    U.S. Supreme Court
    ——
    is
    reversal
    of the Luedkte decision,
    the
    Illinois court’s rulings
    in Bryski remain binding on
    the Board
    pursuant
    to the principles of stare decisis unless and until they
    are modified
    in
    a subsequent
    case.
    Thus,
    the Board would
    be
    deferring action for two indeterminate
    time periods:
    the period
    during which the federal courts
    take action
    in Bieneman, and the
    period during which some unknown case raising Luedtke
    issues
    makes
    its way through
    the Illinois Appellate and Supreme Court.
    To defer
    action
    in this docket
    for what could well
    be several
    years would
    be unfair
    to the many participants
    in this action,
    and
    an unsound
    use of the Board’s discretion.
    In the event
    that
    84--72
    —3—
    any legal or other developments occur subseqeunt to
    the Board’s
    actions
    in this docket, any person is free to file
    a new petition
    for rulemaking before
    the Board pursuant
    to Section
    27 of the
    Environmental Protection Act for consideration of such
    developments.
    The motion to defer
    rulemaking
    is denied.
    The Board will
    continue deliberations
    in this matter.
    IT IS SO ORDERED.
    J.
    T. Meyer abstained.
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certif~that the above Order was adopted on
    the
    31’-~-(
    day of
    Jjz_.~~_~’
    ,
    1987, by a vote of
    ~-Q
    Illi
    Pollution Control Board
    84—73

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