The Supreme Court of Illinois recently issued a ruling that helps define “rules and regulations” and provides guidance for all consumers of legal services. In Sierra Club v Illinois Pollution Control Board, 2011 WL 5089471 (Oct. 27, 2011) , the Court held that the delisting of “electric arc furnace dust” as a hazadous substance was not a “rule or regulation” and could therefore not be challenged by environmental groups. The case arose out of a permit issued to Peoria Disposal Company (PDC). During the permit process, PDC asked the Pollution Control Board to “delist” electric arc furnace dust as a hazardous substance and, after a hearing, the delisting petition was granted. The Sierra Club challenged the ruling, using a statute that permits a challenge by “any party advesely affected” by an order.
The Court’s decision hinged onwhether the Sierra Club could be “adversely affected” by the order. If the order was a rule or regulation, it would apply to all and the Sierra Club could challenge the order. However, here the Court found the order to be an exception to a rule, granted to PDC, not a new rule or regulation. Such exceptions are not applicable to all and are, therfore, not subject to general challenge.
The decison highlights the fact that environmental agencies have many regulatory tools at their disposal and to deal with the agencies effectively, one needs to understand the legal effect of these tools. In theory, an exception made in a permit should be applicable to all similarly situated permit applications. The permit process, however, allows the Board to decide who is similarly situated on a case by case basis. Thus, the order is not applicable to all.
Regulators typically use a mix of regulatory tools and the regulated community needs to be aware of how each is used. Among the regularotory tools are reguations, permits and guidance. Regulations must go through a public comment period before they are effective. Thus, the regulated community has an opportunity to comment on them before they are effective. Permits are binding only on the permitee, but can be applied to others similarly situated. Guidance documents are binding on no one. They merely express the regulators view of what the law is or how to proceed.