United States: Illinois Supreme Court Affirms Pollution Control Board's Clean Construction Or Demolition Debris Rules, And Articulates Guidelines For Determining If Agency Action Is Arbitrary Or Capricious

Seyfarth Synopsis: The Illinois Supreme Court recently affirmed that the Illinois Pollution Control Board's clean construction or demolition debris (CCDD) rules were not arbitrary and capricious. County of Will v. Pollution Control Board, Docket Nos. 122798 and 122813 (June 20, 2019).

In 2011, following a 2010 legislative directive, Pub. Act 96-1416 (eff. July 30, 2010), the Illinois Environmental Protection Agency (IEPA) proposed rules for the use of clean construction or demolition debris (CCDD) and uncontaminated soil (US) as fill material at so-called "clean construction or demolition debris fill operations." The underlying legislation included a provision requiring that the rules must include "standards and procedures necessary to protect groundwater" and provided an unexclusive list of 12 ways to do so that the Board may consider. One of those ways was groundwater monitoring. As a result, IEPA's initial proposed rules included a requirement for groundwater monitoring at fill sites.

Starting later in 2011, the Illinois Pollution Control Board Board (Board) held hearings on IEPA's proposed rule and received comments from the public. In 2012, the Board issued its first opinion and order regarding IEPA's proposed rule, accepting the majority of the rule, but declining to adopt IEPA's proposal to require groundwater monitoring at fill sites. In the Matter of: Proposed Amendments to Clean Construction or Demolition Debris (CCDD) Fill Operations: Proposed Amendments to 35 Ill. Adm. Code 1100, R2012-009 (Feb. 2, 2012). The Board indicated that "the record does not included evidence to demonstrate that CCCD or [US] are a source of groundwater contamination" and are not otherwise "wastes." Id.

At the request of IEPA and several State legislators, the Board opened a subdocket to consider the question of groundwater monitoring and held more hearings on the proposed rule. Id. (Aug. 23, 2012). After multiple hearings and two more opinions and orders, the Board affirmed its decision to remove groundwater monitoring requirements from IEPA's proposed rule. Id. (Aug. 6, 2019).

IEPA and the Will County then brought an appeal before the Illinois Appellate Court, which affirmed the decision of the Board. 2017 IL App (3d) 150637-U (September 12, 2017). Thereafter, a further appeal was brought before the Illinois Supreme court.

We had previously blogged about Board's rulemaking on CCDD. New Illinois Proposed Rule Eliminates Groundwater Monitoring Requirement for Clean Construction and Uncontaminated Soil Fill Operations. Significantly, we noted, the Board's proposal eliminated provisions previously proposed by the IEPA requiring groundwater monitoring for fill operations accepting CCDD and uncontaminated soil. After hearing testimony and considering comments on IEPA's proposal, the Board considered the question and concluded that there was no evidence showing that CCDD or uncontaminated soil fill operations caused groundwater contamination. In addition, the Board found that the significant cost of groundwater monitoring outweighed any environmental benefit.

The rules ultimately promulgated by the Board required stronger 'front-end' testing and certification requirements for CCDD and US, but not a 'back-end' groundwater monitoring requirement."

Before the Illinois Supreme Court was the issue of whether the appellate court ruled correctly that the Board's decision was not arbitrary or capricious. In affirming the appellate court's judgment, the Illinois Supreme Court, for the first time in a case reviewing action by the Board, used a three-part analysis that it had initially employed in a non-environmental case, Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 495-96, 524 N.E.2d 561, 120 Ill. Dec. 531 (1988). Quoting Greer, the Court stated:

"While it is probably not possible to enumerate all the kinds of acts or omissions which will constitute arbitrary and capricious conduct, the following guidelines apply. Agency action is arbitrary and capricious if the agency: (1) relies on factors which the legislature did not intend for the agency to consider; (2) entirely fails to consider an important aspect of the problem; or (3) offers an explanation for its decision which runs counter to the evidence before the agency, or which is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id. at 505-06."

The Supreme Court did not pronounce that this three-part test necessarily applies for future decisions involving review of the Board's decision. Rather, the Supreme Court concluded that the Greer "approach provides a useful rubric in this case where the parties' arguments would be otherwise difficult to cabin analytically" because the parties exclusively discussed "the Greer guidelines" in their briefs.

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