The Board of Education of Roxana Community Unit School District No. 1 v. The Pollution Control Board , 2013 IL 115473 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Supreme Court
Board of Education of Roxana Community School District No. 1 v.
Pollution Control Board, 2013 IL 115473
Caption in Supreme THE BOARD OF EDUCATION OF ROXANA COMMUNITY
Court: SCHOOL DISTRICT No. 1, Appellant, v. THE POLLUTION
CONTROL BOARD et al., Appellees.
Docket No. 115473
Filed November 21, 2013
Held Certification of a pollution control facility presents a technical question
(Note: This syllabus between its seeker and regulatory authorities, with no involvement of
constitutes no part of entities which claim this may cost them revenue but who, nevertheless,
the opinion of the court may object when taxes are assessed and seek circuit court review—school
but has been prepared board’s direct appeal to appellate court from Pollution Control Board’s
by the Reporter of certifications and its denial of leave to intervene properly dismissed for
Decisions for the lack of jurisdiction.
convenience of the
reader.)
Decision Under Appeal from the Appellate Court for the Fourth District; heard in that
Review court on direct appeal from the Illinois Pollution Control Board.
Judgment Affirmed.
Counsel on Stuart L. Whitt, Joshua S. Whitt, Brian R. Bare and Brittany F. Theis, of
Appeal Whitt Law LLC, of Aurora, and Donald M. Craven and Esther J. Seitz,
both of Springfield, for appellant.
Katherine D. Hodge and Monica T. Rios, of Hodge Dwyer & Driver, and
Larry E. Hepler, Beth A. Bauer, Thomas H. Wilson and Michael P.
Murphy, of HeplerBroom, LLC, all of Springfield, for appellee WRB
Refining LP.
Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro,
Solicitor General, and Richard S. Huszagh, Assistant Attorney General,
of Chicago, of counsel), for appellees Illinois Pollution Control Board
and Illinois Environmental Protection Agency.
Justices JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride, and Theis
concurred in the judgment and opinion.
Justice Burke took no part in the decision.
OPINION
¶1 The issue in this case is whether the appellate court ruled correctly when it concluded that
it lacked jurisdiction to entertain an appeal by the Board of Education of Roxana Community
School District No. 1 (the Board of Education) from decisions of the Pollution Control Board
which denied the Board of Education’s petitions to intervene in 28 separate proceedings for
certification of certain facilities as “pollution control facilities” and granted the subject
certifications. The basis for the appellate court’s ruling was that judicial review of a Pollution
Control Board decision to issue, refuse to issue, deny, revoke, modify or restrict a pollution
control certificate is governed by section 11-60 of the Property Tax Code (35 ILCS
200/11-60 (West 2010)). Under that provision, appeals must be filed in circuit court, not the
appellate court, and can only be brought by applicants for or holders of the certificates,
classifications into which the Board of Education did not fall. 2012 IL App (4th) 120174-U.
¶2 One justice dissented. He believed the Board of Education should have been permitted
to prosecute this appeal pursuant to section 41 of the Environmental Protection Act (415
ILCS 5/41 (West 2010)), which permits appeals directly to the appellate court by, inter alios,
“any party adversely affected by a final order or determination of the Board.”
¶3 Following entry of the appellate court’s judgment, the Board of Education petitioned this
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court for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010). We granted the petition. For
the reasons that follow, we now affirm.
¶4 BACKGROUND
¶5 The facts necessary for resolution of this appeal are straightforward and undisputed. A
company known as WRB Refining, LP (WRB), owns the Wood River Petroleum Refinery
in Madison County. Following major renovations to the refinery, WRB submitted separate
applications to the Illinois Environmental Protection Agency (IEPA) pursuant to section 11-
25 of the Property Tax Code (35 ILCS 200/11-25 (West 2010)) to have 28 of the refinery’s
systems, methods, devices, and facilities certified as “pollution control facilities” within the
meaning of section 11-10 of the Code (35 ILCS 200/11-10 (West 2010)). WRB sought those
certifications because, if approved, they would result in a preferential tax assessment of the
subject systems, methods, devices and facilities. See 35 ILCS 200/11-5, 11-15, 11-20 (West
2010).
¶6 WRB filed its 28 applications in October of 2010. The following August, the IEPA
recommended to the Pollution Control Board that it approve two of WRB’s certification
requests. The Board accepted the IEPA’s recommendations and certified the two entities at
issue as pollution control facilities.
¶7 Shortly thereafter, the Board of Education filed separate petitions for leave to intervene
in the two proceedings where certification had been granted. The Board of Education argued
that the particular applications submitted by WRB failed to satisfy statutory requirements
under the Property Tax Code and that it had a legally cognizable interest in challenging the
sufficiency of the applications because issuance of the certifications would ultimately deprive
it of tax revenue.
¶8 The Pollution Control Board considered and denied the Board of Education’s petitions
to intervene, reasoning that because the certifications in the two matters had already been
issued, the Board of Education’s petitions were now moot. The Board of Education asked
the Pollution Control Board to reconsider that decision. While the requests to reconsider
were pending, the IEPA recommended that the Pollution Control Board also approve WRB’s
applications to certify the remaining 26 systems, methods, devices, and facilities as
“pollution control facilities.”
¶9 Before the Pollution Control Board took action in these remaining 26 cases, the Board
of Education filed petitions for leave to intervene in each of them. Those petitions, filed in
December of 2011, were premised on the same arguments asserted by the Board of Education
in the initial two cases.
¶ 10 Both the IEPA and WRB objected, arguing that under the statutory and regulatory
scheme governing certification of pollution control facilities, the Board of Education had no
right to intervene. The Board of Education responded by filing a joint reply addressed to all
28 proceedings. In that reply, the Board of Education challenged the Pollution Control
Board’s view that its petitions to intervene in the initial two cases were moot. It also argued
that it possessed a legally cognizable basis for intervening and that the Pollution Control
Board had authority under the law to permit it to intervene. In addition, it took issue with the
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substance of the Pollution Control Board’s decision to issue pollution control facility
certifications in the initial two proceedings.
¶ 11 In a detailed and unanimous order entered January 19, 2012, the Pollution Control Board
denied reconsideration. Within the time permitted by law, the Board of Education sought
administrative review of the Pollution Control Board’s decision in the appellate court
pursuant to section 41 of the Illinois Environmental Protection Act (415 ILCS 5/41 (West
2010)). In the interim, the Pollution Control Board entered a separate order, also detailed and
also unanimous, denying the Board of Education’s petitions to intervene in the remaining 26
proceedings and granting WRB’s applications for pollution control facility certification in
each of those cases. The Board of Education sought administrative review of that decision
as well, and, on the Board of Education’s motion, the appellate court consolidated both
appeals.
¶ 12 As noted at the outset of this opinion, the appellate court, with one justice dissenting,
dismissed the Board of Education’s consolidated appeal on the grounds that it lacked
jurisdiction to consider it. The appellate court opined that section 41 of the Illinois
Environmental Protection Act, the provision invoked by the Board of Education in seeking
direct administrative review by that court, was inapplicable here. Section 41 is the general
provision for judicial review of final decisions of the Pollution Control Board, and it
provides that such appeals may be brought by, inter alios, “any party adversely affected by
a final order or determination of the Board.” The appellate court noted, however, that the
legislature has promulgated a separate and more specific provision for appeals in proceedings
involving the Pollution Control Board’s “issuance, refusal to issue, denial, revocation,
modification or restriction of a pollution control certificate,” which is the type of proceeding
from which this appeal emanated. That provision is section 11-60 of the Property Tax Code
(35 ILCS 200/11-60 (West 2010)). By its terms, section 11-60 authorizes appeals from such
decisions only by applicants for or holders of pollution control facility certificates who are
aggrieved by the Board’s decision. The Board of Education is neither an applicant for nor
holder of a pollution control facility certificate. Moreover, such appeals are subject to the
regular provisions of the Administrative Review Law (735 ILCS 5/3-101 et seq. (West
2010)). Unlike section 41 of the Illinois Environmental Protection Act, there is no
mechanism for bringing such appeals directly to the appellate court. They must be initiated,
instead, in the circuit court. 735 ILCS 5/3-104 (West 2010).
¶ 13 In the appellate court’s view, section 11-60 of the Property Tax Code rather than section
41 of the Illinois Environmental Protection Act must take precedence in cases such as this
for two basic reasons. First, to hold otherwise would mean that the court “would be
essentially disregarding the specific and narrow guidance provided by section 11-60,” a
course that would not only run afoul of the “long held principle that the appellate court must
construe a statute as a whole so that no part is rendered meaningless or superfluous,” but
could also “produce absurd results in that it could conceivably allow, at a minimum,
applicants seeking a pollution-control-facilities certification to engage in forum shopping any
potential appeal in either the circuit court or appellate court.” 2012 IL App (4th) 120174-U,
¶ 25. Second, applying section 11-60 of the Property Tax Code rather than section 41 of the
Illinois Environmental Protection Act to proceedings such as these, which were brought
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under the Property Tax Code, is compelled by the “well-settled axiom of statutory
interpretation that the general must yield to the specific.” Id. ¶ 26.
¶ 14 One justice dissented. Contrary to his colleagues in the majority, he believed that the
Board of Education should be permitted to appeal pursuant to section 41 of the Illinois
Environmental Protection Act. He would have allowed the appeal, reversed the Pollution
Control Board’s decisions, and reversed and remanded to the Pollution Control Board with
directions to grant the Board of Education’s petitions for leave to intervene and to conduct
further hearings on the merits. 2012 IL App (4th) 120174-U, ¶ 45 (Appleton, J., dissenting).
¶ 15 ANALYSIS
¶ 16 In its appeal to our court, the Board of Education argues that the appellate court’s
jurisdictional analysis was incorrect as a matter of law and that section 41 of the Illinois
Environmental Protection Act provides a proper basis for challenging the Pollution Control
Board’s decisions through direct appeal to the appellate court, as the dissenting justice had
reasoned. It then goes on to assert that the Pollution Control Board erred when it denied the
Board of Education permission to intervene in the pollution control facility certification
proceedings, that the Pollution Control Board erred when it concluded that the Board of
Education’s petitions to intervene in the first two proceedings were moot, and that the
Pollution Control Board erred in certifying the subject facilities as pollution control facilities.
¶ 17 We begin with the question of the appellate court’s jurisdiction. Whether the appellate
court has jurisdiction to consider an appeal presents a question of law which we review de
novo. Gardner v. Mullins, 234 Ill. 2d 503, 508 (2009); In re A.H., 207 Ill. 2d 590, 593
(2003). In this case, we agree with the appellate court’s conclusion that it lacked jurisdiction
to consider the Board of Education’s appeals. We do so, however, based on different
reasoning.
¶ 18 It is undisputed that under the statutory scheme implemented by the General Assembly,
the Board of Education’s only direct path to the appellate court for administrative review of
the Pollution Control Board’s decisions in these 28 cases is through section 41 of the Illinois
Environmental Protection Act (415 ILCS 5/41 (West 2010)). Unless the Board of Education
can avail itself of that statute, its appeal is doomed, for the appellate court has jurisdiction
to review administrative decisions only as provided by law (Ill. Const. 1970, art. VI, § 6;
Town & Country Utilities, Inc. v. Illinois Pollution Control Board, 225 Ill. 2d 103, 121
(2007); People ex rel. Madigan v. Illinois Commerce Comm’n, 394 Ill. App. 3d 382, 386
(2009)), and the only other mechanism for obtaining judicial review of decisions by the
Pollution Control Board in administrative proceedings involving certification of pollution
control facilities is section 11-60 of the Property Tax Code (35 ILCS 200/11-60 (West
2010)). As the appellate court here noted and as we have just pointed out, the express terms
of that statute authorize appeals in such proceedings only by applicants for or holders of
pollution control facility certificates who are aggrieved by the Board’s decision, categories
into which the Board of Education does not fall, and, in any case, such appeals must be
brought in circuit court. There is no statutory authorization for litigants to skip ahead and go
directly to the appellate court.
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¶ 19 While the appellate court majority in this case was of the view that section 11-60 of the
Property Tax Code leaves no room for resort to section 41 of the Illinois Environmental
Protection Act in cases involving certification of pollution control facilities, we need not go
that far in resolving the particular case before us today. That is so because even if section 41
were not completely supplanted by section 11-60 with regard to appeals in such cases, it still
would be of no aid to the Roxana Board of Education here.
¶ 20 Section 41 provides for appeals by “[a]ny party to a Board hearing, any person who filed
a complaint on which a hearing was denied, any person who has been denied a variance or
permit under this Act, any party adversely affected by a final order or determination of the
Board, and any person who participated in the public comment process under subsection (8)
of Section 39.5 of this Act.” 415 ILCS 5/41 (West 2010)). In its arguments before our court,
the Board of Education contends that it falls within the fourth of these categories and
qualifies as “any party adversely affected by a final order or determination of the Board.” It
does not. Our court has specifically held that to be a “party” within the meaning of the fourth
category of section 41, one must have been an actual party of record in the underlying
proceedings before the Board. Lake County Contractors Ass’n v. Pollution Control Board,
54 Ill. 2d 16, 21 (1973); People v. Pollution Control Board, 113 Ill. App. 3d 282, 291 (1983),
rev’d on other grounds sub nom. Pioneer Processing, Inc. v. Environmental Protection
Agency, 102 Ill. 2d 119 (1984). This is consistent with the general rule that administrative
review is limited to parties of record before the administrative agencies and then only when
their rights, duties or privileges are adversely affected by the decision. See, e.g., Williams v.
Department of Labor, 76 Ill. 2d 72, 78 (1979); Robinson v. Regional Board of School
Trustees, 130 Ill. App. 3d 509, 512-13 (1985). Because the Board of Education was denied
leave to intervene in these proceedings, it is not and cannot be deemed to have ever been a
party to the litigation. In re Veatch, 93 Ill. App. 3d 413, 415 (1981). Accordingly, the fourth
clause of section 41 could not afford it any basis for seeking administrative review in the
appellate court.1
¶ 21 In urging the exercise of jurisdiction, the dissenting appellate court justice argued that
this matter might actually fall within the third clause of section 41, which permits appeals
by “any person who filed a complaint on which a hearing was denied,” but that contention
is without merit. The Board of Education did not file a “complaint on which a hearing was
denied.” It did not file a complaint at all. In civil matters, a “complaint” is generally
understood to mean the initial pleading that starts an action, states the basis for the plaintiff’s
claim, and sets forth the demand for relief. Black’s Law Dictionary 323 (9th ed. 2009). The
1
In Reed-Custer Community Unit School District No. 255-U v. Pollution Control Board, 232
Ill. App. 3d 571 (1992), a panel of the appellate court relied on the fourth clause of section 41 to
assert jurisdiction over a school district’s appeal of the Pollution Control Board’s denial of its
attempt to revoke a company’s pollution control facility certification. Significantly, the appellate
court did not consider whether the law permitted third parties to seek revocation of a certificate, and
no challenge was raised to its jurisdiction under section 41. It is therefore scant authority for the
Board of Education’s position in this case. In any event, to the extent that it is inconsistent with our
holding today, it is overruled.
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proceedings at issue here were initiated by applications for pollution control facility
certificates. Those were filed by WRB, not the Board of Education. The Board of Education
simply requested leave to intervene. There is no meaningful sense in which a petition to
intervene can be considered a complaint. The contrary view taken by the appellate court in
Citizens Against the Randolph Landfill (CARL) v. Pollution Control Board, 178 Ill. App. 3d
686, 692 (1988), is untenable, and we reject it.
¶ 22 The dissenting appellate court justice’s interpretation of the law must be rejected for
another reason as well. Although he contends that appeals in certification proceedings are
properly brought directly to the appellate court when they are prosecuted by third parties, he
does not dispute that when the appeal is brought by an actual applicant for or holder of a
certificate, it must be pursued in circuit court. 2012 IL App (4th) 120174-U, ¶ 40 (Appleton,
J., dissenting). The dissenting justice’s approach would thus create a situation in which the
particular court to which an appeal must be brought would differ depending on the particular
litigant who brought it.
¶ 23 We are unaware of any other situation in Illinois law where this occurs, and we can
conceive of no sound reason why the legislature would possibly have wanted to create such
a dual-track system with respect to appeals in pollution control facility certification
proceedings. We therefore agree with the appellate court majority that such a construction
of the law would yield absurd results and must be rejected.
¶ 24 Finally, and in any case, a court’s refusal to entertain an appeal from the denial of
petitions to intervene in administrative proceedings cannot be error if the entity seeking to
appeal had no right to intervene to begin with. In this case, the Board of Education failed to
show that it had any such right. Under the law, the question of whether a system, method,
construction, device, building, etc., qualifies as a pollution control facility within the
meaning of section 11-10 of the Property Tax Code (35 ILCS 200/11-10 (West 2010)) is a
technical one between the entity seeking certification and state regulatory officials. See 35
ILCS 200/11-20, 11-25, 11-30 (West 2010). The General Assembly made no provision for
involvement of any other parties in the certification process. Nor has the Pollution Control
Board. There is nothing in the applicable administrative regulations authorizing participation
by third parties in the pollution control facility certification process. See 35 Ill. Adm. Code
125.200 to 125.216 (2005).
¶ 25 We recognize, of course, that legitimate concerns may arise when the only parties
permitted to participate in the regulatory process are regulators and the companies they
regulate. That, however, is a matter for the General Assembly. The responsibility for the
wisdom of legislation rests with the legislature, and courts may not rewrite statutes to make
them consistent with the court’s idea of orderliness and public policy. People v. Carpenter,
228 Ill. 2d 250, 270-71 (2008).
¶ 26 We must also point out that under this state’s property tax system, taxing bodies such as
the Board of Education have been given some voice in how certified pollution control
facilities within their borders are ultimately taxed. It is simply not at the certification stage.
It comes later, when the Department of Revenue actually assesses the value of those
facilities. At that point, any person aggrieved by the assessment may apply for review and
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correction of the assessment and ask for a hearing on the matter. 35 ILCS 200/8-35(a) (West
2010); 86 Ill. Adm. Code 110.110 (1996). That stage had not yet been reached in this case.
Even if it had, review in such proceedings lies in the circuit court. The law does not authorize
direct review by the appellate court, as the Board of Education sought here. 35 ILCS 200/8-
40 (West 2010).
¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, we hold that the appellate court did not err when it dismissed
the Board of Education’s appeal for lack of jurisdiction. In light of this conclusion, there is
no need to address the Board of Education’s remaining arguments. The judgment of the
appellate court is affirmed.
¶ 29 Affirmed.
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