Ashland Chemical Co. v. Pollution Control Bd., 77-362

• Decision Date: 27 September 1978
• Docket Number: No. 77-362,77-362
• Citation: 21 Ill.Dec. 121,64 Ill.App.3d 169,381 N.E.2d 56
• Parties: , 21 Ill.Dec. 121 ASHLAND CHEMICAL COMPANY, Petitioner-Appellant, v. POLLUTION CONTROL BOARD, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 56

381 N.E.2d 56

64 Ill.App.3d 169, 21 Ill.Dec. 121

ASHLAND CHEMICAL COMPANY, Petitioner-Appellant, v. POLLUTION CONTROL BOARD, Respondent-Appellee.

No. 77-362.

Appellate Court of Illinois, Third District.

Sept. 27, 1978.

James W. Gladden and Percy L. Angelo, Mayer, Brown & Platt, Chicago, for petitioner-appellant.

George William Wolfe, Asst. Atty. Gen., Environmental Control Div., William J. Scott, Atty. Gen., Chicago, for respondent-appellee.

Charles B. Gustafson, Caterpillar Tractor Co., Peoria, for amici curiae Caterpillar Tractor Co.

Richard J. Kissel, Martin, Craig, Chester & Sonnenschein, Jeffrey C. Fort, Chicago, for amici curiae Illinois State Chamber of Commerce.

STOUDER, Presiding Justice.

Petitioner, Ashland Chemical Company, in this proceeding seeks to review regulations of the Pollution Control Board relating to air quality standards. On July 7, 1977, in docket R71-23, the Pollution Control Board adopted regulations which included regulations 203(g) and 204(a) and (c)(1)(A). For convenience the regulations will be referred to as 203 (particulate emission standards) and 204 (sulfur dioxide emission standards).

In 1972 the Pollution Control Board in docket R71-23 initially adopted regulations 203 and 204 although such regulations did not become effective until May 30, 1975. These regulations were adopted pursuant to the Illinois Environmental Protection Act of 1970 (Ill.Rev.Stat.1975, ch. 1111/2, par. 1001 et seq.) and superseded other air quality regulations promulgated under prior acts. The validity of sections 203 and 204 was questioned in legal actions resulting in the decision of the Illinois Supreme Court in January, 1976 in Commonwealth Edison Co. v. Pollution Control Board, 62 Ill.2d 494, 343 N.E.2d 459, which approved the decision of the Appellate Court to reverse the Board's adoption of Rules 203 and 204 and remand the cause to the Pollution Control Board for further consideration. (Commonwealth Edison Co. v. Pollution Control Board, 25 Ill.App.3d 271, 323 N.E.2d 84.) It is the nature and effect of the remanding order and the consequent procedure required of the Board which creates the initial problem to be resolved on this review. The petitioner has also questioned the substantive validity of regulations 203 and 204, but in the view we have taken of this case it will be unnecessary to discuss the substantive questions.

Pursuant to leave granted by this court, the Illinois State Chamber of Commerce and Caterpillar Tractor Company have filed an amici curiae brief in this case.

The Supreme Court and Appellate Court in the Commonwealth Edison case describe in detail the events occurring prior to the opinions in those cases and they will not be described again in this opinion. In its opinion of December 19, 1974, the Appellate Court in Commonwealth Edison Co. v. Pollution Control Board, 25 Ill.App.3d 271, 288, 323 N.E.2d 84, 96, declared:

"We recognize that possibly scientific evidence may have been developed since the hearing and the resultant Board opinion in this cause that may not demand a relaxation of these challenged rules. Accordingly, we remand this cause on this matter with instructions to the Board either to validate Rules 203(g) and 204(a)(1) and (c)(1)(A) in accordance with section 27 of the Act or to prepare proper rules as substitutes."

Although the Illinois Supreme Court in the Commonwealth Edison case upheld the Appellate Court decision regarding Rules 203 and 204, it declined to consider the substantive validity of the regulations from the record before it believing that resolution of this issue should depend on new information which had been developed since the original hearings.

"In view of the Board's order of March 7, 1974, directing new inquiry hearings on the precise issues we are here asked to consider, the extensive hearings that have been held and the 'wealth of new information' that has been gathered in those hearings, and the recent legislation authorizing the use of intermittent control systems until December 31, 1985, under conditions prescribed by the Board in lieu of compliance with sulfur dioxide emission standards, we decline to determine the validity of Rules 203(g)(1), 204(a)(1) and 204(c)(1)(A) on the basis of evidence adduced at hearings held in 1970, 1971, and 1972 and the Board's opinion of April 13, 1972." Commonwealth Edison Co. v. Pollution Control Board, 62 Ill.2d at 503, 343 N.E.2d at 465.

In the spring of 1976, hearings were still continuing on two of the regulatory proposals cited in the Supreme Court decision, a proposal to relax sulfur dioxide standards outside the Chicago, Peoria and St. Louis MMA's (major metropolitan area) and a sulfur dioxide "inquiry" proceeding in PCB R74-2. These proceedings had been consolidated. On March 30, 1976, Ashland appeared at a hearing in that consolidated proceeding and asked that it be broadened to permit consideration of the issues raised by the Commonwealth Edison remand, I. e., the status of particulate regulations and sulfur dioxide regulations within the Peoria, Chicago and St. Louis MMA's. No action was taken by the Board on Ashland's request.

On April 8, 1976, the Board issued an order reopening the record in R71-23 and mutually incorporating the records in R71-23, R74-2 and R75-5.

A year later, on April 11, 1977, it was announced in the Environmental Register, the official publication of the Board in which public notice is given of variance and enforcement proceedings and regulatory matters, that the Board had received a study prepared by Marder and Associates in response to the Supreme Court's remand in Commonwealth Edison. The announcement stated that the Board was reviewing the study to determine whether it supported a revalidation of the regulations in question. It was further announced that the Board would issue an order on May 12, 1977, which would be subject to public comment prior to final action by the Board (Environmental Register # 145).

At its regular meeting May 12, 1977 the Board announced that it planned, on June 9, 1977, to readopt without change the rules invalidated by the Supreme Court in the Commonwealth Edison decision. Ashland thereupon filed, on May 20, 1977, a Motion for Hearing and Preparation of Economic Impact Study. In its motion, Ashland argued that under the Act publication of proposed regulations, preparation of an economic impact study and hearings on the regulations and the study were required before the adoption of regulations. Ashland represented that it was prepared to present evidence at such hearings on the regulations and on the Marder Report, on which the Board was apparently relying. A number of other interested persons submitted comments to the Board at this time, urging that the Board hold substantive and economic impact hearings as required by the Act. Among these were Caterpillar Tractor Co., the Illinois Municipal Utilities Association, Illinois Power Company, and the cities of Rochelle and Mascoutah.

Despite the notice in the April 11th Environmental Register that the Board would issue an order on May 12, 1977 which would be subject to public comment, no such order was issued and no public comment period was established. Instead, at its regular meeting July 7, 1977, the Board issued an order "validating" rules 203(g)(1), 204(a)(1) and 204(c)(1)(A), to become effective September 1, 1977. Board member Young dissented from the Board's order, arguing that an economic impact statement and hearings were required prior to adoption.

The validation of the regulations was "subject to a public comment period to run for 45 days from the date of this Order." Ashland was one of a number of interested persons who submitted comments during the "public comment period."

The September 1, 1977 "effective date" of the regulations came and went without any comment by the Board to indicate that it had ever considered in any way the filings made by Ashland and others during the "public comment period." No ruling was ever made by the Board on Ashland's motion for hearing which had been filed in May. No hearings were ever held on the regulations or on the Marder Report. No economic impact study was prepared. No further action was taken by the Board in this matter.

Before embarking further, we must decide whether Ashland's petition for review should be dismissed. Prior to oral arguments, respondent filed two motions to dismiss Ashland's petition. Both motions were taken with the case for consideration. Respondent's two motions involve sections 29 and 41 of the Illinois Environmental Protection Act (Ill.Rev.Stat.1975, ch. 1111/2, pars. 1029, 1041). Section 29 governs appeals from rules and regulations and allows "any person adversely affected or threatened by any rule or regulation" to file a petition for review pursuant to section 41. Section 41 requires that a petition for review be filed within 35 days after the entry of the order or other final action complained of.

According to respondent's first motion, since Ashland failed to file a petition within 35 days of the Board's adoption on April 13, 1972, of Rules 203 and 204, petitioner has "waived any objection which it might have had to regulations and thereby acquiesced in the regulations as adopted by the Board in 1972." The difficulty with respondent's position is that the Board's adoption of Rules 203 and 204 in 1972 was held invalid in Commonwealth Edison Co. v. Pollution Control Board, 25 Ill.App.3d 271, 323 N.E.2d 84, and this portion of the Appellate Court decision was affirmed in Commonwealth Edison Co. v. Pollution Control Board, 62 Ill.2d 494, 343 N.E.2d 459. Once these rules were held invalid, new action was required of the Board with regard to formulating rules and regulations on particulate emission standards and sulphur dioxide emission standards, action which was subject to judicial review at the behest of "persons adversely affected or threatened" by the Board's subsequent...