The Board of Education of Roxana Community Unit School District No. 1 v. The Pollution Control Board

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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