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Roxana Community Unit School District No. 1 v. The Environmental Protection Agency

Court of Appeals of Illinois, Fourth District

November 14, 2013


Held [*]

In an action seeking declaratory and injunctive relief filed by several taxing bodies based on allegations that the Illinois Environmental Protection Agency violated the Freedom of Information Act and that the Illinois Pollution Control Board violated the Open Meetings Act through their conduct in connection with tax exemptions sought by a refinery in connection with the construction of pollution control facilities, the trial court erred in granting summary judgment for defendants, since the Agency failed to comply with plaintiffs’ request for documents under the Freedom of Information Act and the Board conducted closed meetings in violation of the Open Meetings Act.

Appeal from the Circuit Court of Sangamon County, No. 12-MR-224; the Hon. John Schmidt, Judge, presiding.

Stuart L. Whitt and Joshua S. Whitt, both of Whitt Law LLC, of Aurora, and Donald M. Craven (argued), and Esther J. Seitz, both of Donald M. Craven, P.C., of Springfield, for appellants.

Thomas H. Wilson, of HeplerBroom, LLC, of Springfield, and Beth A. Bauer, of HeplerBroom, LLC, of Edwardsville, for appellee WRB Refining, LLC.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Richard S. Huszagh and John P. Schmidt, Assistant Attorneys General, of counsel), for other appellees.

PRESIDING JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

Justices Appleton and Pope concurred in the judgment and opinion.



¶ 1 In March 2012, plaintiffs, Roxana Community Unit School District No. 1 (Roxana), Wood River-Hartford School District No. 15, East Alton-Wood River Community High School District No. 14, Roxana Community Park District, South Roxana Fire Protection District, and Wood River Township Hospital District, filed a complaint for declaratory and injunctive relief against defendants, the Illinois Environmental Protection Agency (Agency), the Illinois Pollution Control Board (Board), the Illinois Department of Revenue (Department), and WRB Refining, LLC (WRB). The complaint alleged, in part, that (1) the Agency violated the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 to 11.5 (West 2010)) (count I) and (2) the Board violated the Open Meetings Act (5 ILCS 120/1 to 7.5 (West 2010)) (count II).

¶ 2 In April 2012, the parties filed cross-motions for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2010)). Following a hearing on those motions conducted later that month, the trial court in August 2012 entered an order, granting summary judgment in defendants' favor.

¶ 3 Plaintiffs appeal, arguing that the trial court erred by granting summary judgment in (1) the Agency's favor as to count I and (2) the Board's favor as to count II. We agree and reverse.


¶ 5 The following information was gleaned from the parties' pleadings, depositions, affidavits, and other supporting documents filed in the trial court.

¶ 6 A. Preliminary Information

¶ 7 WRB operates the Wood River Refinery in Madison County, Illinois, which is among the largest oil refineries in the United States. Plaintiffs are local government entities in Madison County that receive varying amounts of their respective fiscal operating budget requirements from WRB through property tax assessments. From 2006 through 2011, WRB made substantial renovations to its refinery.

¶ 8 Beginning in the fall of 2010, WRB submitted approximately 60 applications to the Agency, seeking certification of over $3 billion in infrastructure improvements as pollution control facilities. (The term "pollution control facilities" is defined by the Property Tax Code (35 ILCS 200/1-1 to 32-20 (West 2010)) as "any system, method, construction, device or appliance appurtenant thereto, or any portion of any building or equipment" that eliminates, prevents, or reduces pollution (35 ILCS 200/11-10 (West 2010)).)

¶ 9 The Agency was responsible for evaluating WRB's applications and making recommendations to the Board. If the Board thereafter accepted the Agency's recommendation to certify a WRB improvement as a pollution control facility, WRB would enjoy preferential tax treatment on that improvement. Specifically, the certified improvement would be assessed at 33 1/3% of the "fair cash value of [its] economic productivity" to WRB, instead of being assessed at 33 1/3% of the improvement's actual fair cash value. Compare 35 ILCS 200/11-5 (West 2010) (pertaining to valuation of pollution control facilities), with 35 ILCS 200/9-145 (West 2010) (pertaining to general valuation procedures). In addition, the certification would supplant the county as the tax assessor in favor of the Department (35 ILCS 200/11-20 (West 2010)). In its applications for pollution-control-facilities status, WRB claimed that the economic productivity of the identified improvements was of little or no value to WRB.

¶ 10 B. The Facts Surrounding Plaintiffs' FOIA Claims

¶ 11 On November 7, 2011, plaintiffs submitted a FOIA request to the Agency, requesting copies of WRB's pending applications for pollution-control-facility certification. Although the Agency received plaintiffs' FOIA request the following day, the Agency admitted that it did not comply with section 3(d) of FOIA, which mandates that "each public body shall, promptly, either comply with or deny a request for public records within [five] business days after its receipt unless the time for response is properly extended." 5 ILCS 140/3(d) (West 2010); see 5 ILCS 140/3(e) (West 2010) (outlining the circumstances under which a public body may extend the deadline for FOIA compliance an additional five business days). The Agency also admitted that it did not seek an extension of time to satisfy plaintiffs' FOIA request.

¶ 12 On November 22, 2011, plaintiffs inquired about the unanswered FOIA request. An Agency representative informed plaintiffs that the Agency could neither respond due to a large volume of such requests at that time nor provide a future estimate on when it would respond. The Agency acknowledged that the explanations offered to Roxana did not exempt it from FOIA compliance. On February 1, 2012, the Agency provided plaintiffs the information requested.

¶ 13 On March 2, 2012, plaintiffs submitted two additional FOIA requests for (1)correspondence between the Agency, the Board, and WRB regarding WRB's certification requests and (2) "certain permit applications submitted to the [Agency] from WRB, which permit applications referenced in the application for certification as [pollution control] facilities." During the week of April 2, 2012, the Agency complied with plaintiffs' March 2012 FOIA requests.

¶ 14 C. The Facts Surrounding Plaintiffs' Open Meetings Act Claims

¶ 15 On September 2, 2011, Roxana learned of two pending applications WRB submitted for pollution-control-facilities certification by viewing the Board's website. On September 8, 2011, Roxana filed separate petitions for leave to intervene, requesting that the Board hold hearings on those two applications. Specifically, Roxana alleged that (1) WRB's two requests failed to satisfy the certification requirements and (2) the Board's certifications would adversely affect Roxana by depriving it of additional tax revenues. That same day, the Board accepted the Agency's earlier recommendation and certified both of WRB's applications as pollution control facilities. On October 20, 2011, the Board denied Roxana's petitions for leave to intervene, concluding that they were moot because it had granted the certifications, which foreclosed any further consideration.

ΒΆ 16 In November 2011, Roxana filed a motion to reconsider the Board's denial of its two petitions for leave to intervene. Later that same month, the Agency recommended that the Board approve an additional 26 certification requests that WRB had earlier submitted. In December 2011, Roxana filed 26 separate petitions ...

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