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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