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

Supreme Court of Illinois

November 21, 2013

THE BOARD OF EDUCATION OF ROXANA COMMUNITY SCHOOL DISTRICT No. 1, Appellant,
v.
THE POLLUTION CONTROL BOARD et al., Appellees.

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

KARMEIER JUSTICE

¶ 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 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 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 or holder of a pollution control facility certificate. Moreover, such ...


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