Sierra Club Appeal Of Delisted Contaminant Dismissed For Lack Of Standing

The Peoria Disposal Co. had a permit from the Illinois Environmental Protection Agency to operate a storage and treatment site for hazardous waste. The company asked the Illinois Pollution Control Board to delist (exclude from regulation) electric arc furnace dust. After a public hearing, the Board ordered the furnace dust to be delisted.

The Sierra Club and the Peoria Families Against Toxic Waste asked the Illinois Appellate Court to reverse the Board’s order. The appellate court decided that the Sierra Club and the Peoria Families both had standing to ask for review of the Board’s order, and that the order should be affirmed.

The Sierra Club and the Peoria Families then appealed to the Illinois Supreme Court. But the supreme court did not consider whether the order was correct. Instead, the court dismissed the appeal because neither the Sierra Club nor the Peoria Families had standing to ask for review.

The supreme court’s decision was based chiefly on two reasons:
• The statute that allows appeals of Board orders lists three kinds of parties who are allowed to appeal. Neither the Sierra Club nor the Peoria Families fell into the categories – they were not parties in the Board hearing; they had not filed a complaint to the Board; they had not given public comments to the Board.
• The Board’s order was not a “rule or regulation.” If it were either, the Sierra Club or the Families could have appealed. Peoria Disposal got an “adjusted standard,” not a rule or a regulation. “[T]he adjusted standard is not itself the regulation promulgated by the Board; rather, it is an individualized exception to that regulation.”

So the delisting stood, and there weren’t any parties contest it under Illinois law. Read the whole case, Sierra Club v. Illinois Pollution Control Board, 2011 IL 11088,by clicking here.

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