PETITION for review of order of Pollution Control Board.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
The Village of South Elgin and certain of its residents (petitioners) filed a complaint with the Illinois Pollution Control Board (the Board) against respondents, Waste Management of Illinois, Inc. (WMI), and the Illinois Environmental Protection Agency (the Agency), seeking revocation of permits issued to WMI by the Agency for development and operation of a sanitary landfill site adjacent to the village. Petitioners' request to withdraw their complaint with leave to reinstate it or, alternatively, to continue the matter, was denied by the Board and, on motion of WMI, it dismissed the complaint with prejudice. Petitioners now seek review of the Board's order pursuant to section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1041; also see Ill. Rev. Stat. 1975, ch. 110A, par. 335).
The Village of South Elgin lies immediately northwest of the landfill site which is the subject of this litigation. On June 17, 1976, the Agency issued to WMI a permit allowing development of a sanitary landfill upon the site. Shortly thereafter the Village of South Elgin filed an action in the Circuit Court of Kane County against WMI and the Agency seeking to enjoin the use of the site as a sanitary landfill and to have the developmental permit declared void; however, that action was dismissed by the circuit court on August 6, 1976, for failure of the village to exhaust its administrative remedies and no appeal was taken from that order.
On November 12, 1976, petitioners filed the complaint in issue with the Board seeking revocation of WMI's developmental permit, pursuant to Board Procedural Rule 503, on the grounds that it was improperly issued and that the proposed landfill activity would violate the Environmental Protection Act; a hearing on it was set for February 9, 1977. In the interim, however, on December 8, 1976, the Agency proceeded to issue a permit to WMI allowing operation of the landfill and petitioners amended their complaint to also seek its revocation. On January 25 and 26, 1977, the Board's hearing officer entered certain discovery orders requested by WMI requiring that certain matters of discovery be attended to by petitioners by January 28 and, on January 28th, WMI requested the hearing officer to impose sanctions on petitioners for their failure to do so. Petitioners responded that the delay had been primarily occasioned by the serious illness of their attorney's father in California and requested a continuance of the scheduled February 9 hearing. The continuance was granted and a new hearing date of March 7 was set. Prior to that date petitioners advised WMI that they would seek to withdraw their complaint before the Board pending the outcome of a related action brought by the Village of South Elgin and the County of Kane against WMI and the Agency on January 27, 1977, in the circuit court and the March 7 hearing was thereafter cancelled by the Board without any apparent objection.
In the January 27 circuit court action the Village of South Elgin had again sought to enjoin the operation of the landfill and to have the developmental and operational permits issued by the Agency declared void. On March 28, 1977, that action was dismissed for failure of the plaintiffs to exhaust their administrative remedies and that determination was then appealed to this court (subsequently affirmed on July 28, 1978, Village of South Elgin v. Waste Management of Illinois, Inc. (1978), 62 Ill. App.3d 815, 379 N.E.2d 349.
On May 16, 1977, petitioners requested that the Board allow them to withdraw their complaint without prejudice against their refiling it at a later date or continue the matter, asserting that before proceeding further before the Board they wished to await decision of the case on appeal (Village of South Elgin) as the validity of the procedure under which the permits were granted would be passed upon in that case. WMI opposed the motion claiming petitioners had already caused great delay in the case before the Board and moved that their complaint be dismissed with prejudice. The Board entered an order on June 9, 1976, stating that it did "not favor the forum shopping of the type being engaged in here by [petitioners]" and that the "`hearing process,' for dismissal purposes, does not require an actual adjudicatory hearing." It found that WMI was "at this late stage" entitled to dismissal of the complaint and ordered it dismissed with prejudice. Petitioner's request for review in this court followed.
Initially we note that the Agency has not submitted a brief or otherwise appeared in this court on the matter before us and, therefore, we have not been advised of its position on the questions presented. Also, in Village of South Elgin we noted the question of whether Board Procedural Rule 503, under which the instant complaint was brought, was beyond the Board's power and invalid was pending before the Illinois Supreme Court in two cases, County of Cook v. John Sexton Contractors Co. (Docket No. 50499), and Landfill, Inc. v. Pollution Control Board (Docket No. 50498). Those cases were taken by direct appeals from the trial courts> to the supreme court and are still pending there. However, that question has not been raised here and we need not consider it.
Petitioners first contend that by dismissing their complaint with prejudice the Board improperly denied them the permit revocation hearing to which they were entitled under Board Procedural Rule 503.
1 "Administrative as well as judicial proceedings are governed by the fundamental principles and requirements of due process of law. [Citations.]" (Brown v. Air Pollution Control Board (1967), 37 Ill.2d 450, 454, 227 N.E.2d 754, 756; Robert N. Nilles, Inc. v. Pollution Control Board (1974), 17 Ill. App.3d 890, 894, 308 N.E.2d 640, 643; Lake County Contractors Association v. Pollution Control Board (1972), 6 Ill. App.3d 762, 765, 286 N.E.2d 600, 602, aff'd (1973), 54 Ill.2d 16, 294 N.E.2d 259.) "[P]rocedural due process in an administrative proceeding does not require a proceeding in the nature of a judicial proceeding, (Sheldon v. Hoyne, 261 Ill. 222,) but is satisfied by a form of procedure that is suitable and proper to the nature of the determination to be made and conforms to fundamental principles of justice. (Toplis & Harding, Inc. v. Murphy, 384 Ill. 463.)" (Telcser v. Holzman (1964), 31 Ill.2d 332, 339, 201 N.E.2d 370, 373-74; Waupoose v. Kusper (1972), 8 Ill. App.3d 668, 670-71, 290 N.E.2d 903, 905.) An administrative body, as well as a court, possesses broad discretion in conducting its hearings; however, this discretion must be exercised judiciously and not arbitrarily. Wegmann v. Department of Registration & Education (1978), 61 Ill. App.3d 352, 356, 377 N.E.2d 1297, 1301; Robert N. Nilles, Inc. v. Pollution Control Board (1974), 17 Ill. App.3d 890, 894, 308 N.E.2d 640, 643.
2 Under the circumstances before us we believe the Board abused its discretion by arbitrarily depriving petitioners of the hearing to which they were entitled under the Board's own Procedural Rule 503. WMI had urged the Board to dismiss petitioners' complaint for delay on their part and the Board in its order suggested petitioners had engaged in "forum shopping" and cited the late stage of the proceedings as entitling WMI to the dismissal requested. The forum shopping involved here was apparently the two efforts by petitioners in the circuit court to enjoin WMI's proposed use of the landfill site. In those actions petitioners had challenged as unconstitutional the procedures for issuance of landfill permits employed by the Agency. They were entitled to seek such judicial relief and by so doing provided no valid grounds for dismissal of their complaint by the Board.
Neither does the record support the allegations of undue delay on the part of petitioners. The continuance of the scheduled February 9 hearing until March 7 was granted petitioners by the hearing officer because of a grave illness in the family of their attorney. In regard to the scheduled March 7 hearing, which was also later cancelled, no motion of the petitioners nor any order of the Board is found in the record which could charge the cancellation to petitioners. WMI has suggested no rule of the Board authorizing its dismissal of the petition in these circumstances and relies essentially upon the argument that the Board is inherently empowered to do so. We do not agree and find that the record presents no justification for depriving petitioners of the hearing to which they were entitled by virtue of the Board's own rule and the cause must be reversed and remanded to the Board for further proceedings.
Petitioners also contend they were entitled to withdraw their complaint before the Board without prejudice pursuant to section 52 of the Civil Practice Act (the CPA) (Ill. Rev. Stat. 1975, ch. 110, par. 52) which provides for voluntary dismissal of matters before trial or hearing. They had sought to do so, with leave to reinstate if necessary, to await the decision of this court in Village of South Elgin. That basis for withdrawal no longer exists as the opinion in Village of South Elgin was filed on July 28, 1978; however, because a further appeal to the supreme court may still be taken in that case and the Board might again be faced with a similar motion by petitioners, we will consider this issue.
Section 52 of the CPA provides, in part, that "[t]he plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action or any part thereof as to any defendant, without prejudice, by order filed in the cause." (Ill. Rev. Stat. 1975, ch. 110, par. 52.) Petitioners argue that section 52 is applicable to the administrative proceedings which we are considering in the instant case by virtue of section 1 of the CPA which describes its scope as follows:
"The provisions of this Act apply to all civil proceedings except in attachment, ejectment, eminent domain, forcible entry and detainer, garnishment, habeas corpus, mandamus, ne exeat, quo warrantor, replevin, foreclosure of mortgages or other proceedings in which the procedure is regulated by separate statutes. In all those proceedings the separate statutes control to the extent to which they regulate procedure, but this Act applies as to matters of procedure not so regulated by separate statutes. As to all ...