Grigoleit Co. v. Pollution Control Board , 245 Ill. App. 3d 337 ( 1993 )

JUSTICE GREEN

delivered the opinion of the court:

Petitioner Grigoleit Company, a corporation (Grigoleit), takes administrative review from an order of respondent Illinois Pollution Control Board (Board) entered December 6, 1991. (Grigoleit Co. v. Illinois Environmental Protection Agency (Dec. 6, 1991), _ Ill. PCB Op. 89 — 184.) The order was mostly favorable to Grigoleit as it reversed the ruling of respondent Illinois Environmental Protection Agency (Agency) denying for the second time Grigoleit’s application for renewal of an operating permit and ordered that the permit be issued. However, Grigoleit had requested that the Agency be sanctioned in various ways. The Board ruled that the requirement for the issuance of a renewal permit was a sanction and refused to impose further sanctions. Grigoleit has filed for judicial review by this court pursuant to section 41 of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1991, ch. IIIV2, par. 1041). We affirm all aspects of the order except in regard to the imposition of sanctions. We remand with directions to impose an additional sanction on the Agency.

The Agency maintains the Board’s December 6, 1991, order was not final because (1) no request for a rehearing was made by Grigoleit, and (2) the remand to it prevented the order from being final. Accordingly, as section 41 of the Act provides for judicial review only from final administrative orders, the Agency maintains we do not have jurisdiction. The Board and Grigoleit contend that we do have jurisdiction. We agree we have jurisdiction.

The Board maintains its order should be affirmed in its entirety. The Agency has not cross-appealed, and Grigoleit’s only contention on appeal is that greater sanctions should have been imposed on the Agency. A major portion of Grigoleit’s theory of the case is that it was automatically entitled to the renewal of the permit under the provision of section 39(a) of the Act (Ill. Rev. Stat. 1987, ch. lll1^, par. 1039(a)) because the Agency was tardy in ruling on its request. The Agency and the Board strongly disagree with Grigoleit’s contention in this regard. For reasons we explain, we will not need to pass upon this question.

This case began on July 12, 1989, when Grigoleit placed in the United States mail, as certified mail, and addressed to the Agency, the instant application for renewal of its permit to operate a decorative metal fabrication plant. The Agency denied the request by a letter to Grigoleit dated and mailed October 11, 1989. On November 13, 1989, Grigoleit filed with the Board an administrative appeal of the permit denial. On November 29, 1990, the Board entered an order finding two of the three grounds upon which the denial by the Agency was based were not substantiated. (Grigoleit Co. v. Illinois Environmental Protection Agency (Nov. 29, 1990), _ Ill. PCB No. 89 — 184.) That order then remanded the matter to the Agency to reconsider the other ground for the denial.

After the matter was remanded to the Agency, it sent a letter to Grigoleit on January 10, 1991, requesting information not only as to the issue upon which the Board order of November 29, 1990, directed further consideration but also upon other matters which the Agency deemed appropriate in regard to whether the permit should be renewed. Grigoleit objected to the latter, disputes arose as to the discovery and, eventually the Agency again denied the permit on April 25, 1991. A request for sanctions was filed by Grigoleit on May 30, 1991, and apparently treated by the Board as an appeal from the order of denial as well as a request for sanctions. The Board denied some sanctions requested but declared the two previous permit denials listed above null and void and remanded to the Agency with directions to consider only the issue set forth in the original order of remand. (Grigoleit Co. v. Illinois Environmental Protection Agency (June 20, 1991),_Ill. PCB No. 89 — 184.) Further disputes arose. Grigoleit again requested sanctions on October 2, 1991, and the Board thereafter entered the December 6, 1991, order from which this administrative review has been taken.

We consider first the issue of our jurisdiction. The most complicated aspect of that matter is the question of whether Grigoleit was required to request a rehearing so as to obtain a final order and thereby preserve its rights of administrative review. Section 3 — 101 of the Code of Civil Procedure (Code) states in part as follows:

“In all cases in which a statute or a rule of the administrative agency requires or permits an application for a rehearing or other method of administrative review to be filed within a specified time (as distinguished from a statute which permits the application for rehearing or administrative review to be filed at any time before judgment by the administrative agency against the applicant or within a specified time after the entry of such judgment), and an application for such rehearing or review is made, no administrative decision of such agency shall be final as to the party applying therefor until such rehearing or review is had or denied.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 110, par. 3 — 101.

Sections 101.246 and 101.300 of title 35 of the Illinois Administrative Code have been enacted by the Board pursuant to authority under section 5(d) of the Act (Ill. Rev. Stat. 1991, ch. HV-lz, par. 1005(d)) and provide: “Any motion for reconsideration or modification of a final Board order shall be filed within 35 days of the adoption of the order” (35 Ill. Adm. Code §101.246(a) (1991)); and “[m]otions for reconsideration or modification of a final Board order shall be filed within 35 days of the order, pursuant to Section 101.246” (35 Ill. Adm. Code §101.300 (1991)). Thus, rules of the Board “permit” filing of a petition for rehearing of a final order of the Board but no “application for such rehearing” was made. This court has held that under these circumstances, the quoted portions of section 3 — 101 of the Code do not render an administrative order unappealable for failure of the party seeking review to ask for a rehearing. City of Springfield, v. Carter (1989), 184 Ill. App. 3d 1, 540 N.E.2d 536; Danison v. Paley (1976), 41 Ill. App. 3d 1033, 355 N.E.2d 230.

The Agency maintains that the foregoing decisions of the court have been overruled by Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 547 N.E.2d 437. There, in a proceeding before the Human Rights Commission (Commission), an administrative law judge held a hearing on a complaint brought by the Commission against an employer charging discrimination in employment. The judge found no discrimination had occurred and recommended dismissal of the complaint. The employee was then entitled to a hearing before a three-member panel of the Commission. (See Ill. Rev. Stat. 1987, ch. 68, pars. 8 — 102(G), 8 — 107(E).) Such a panel heard the employee’s claim and ruled against him. Section 8— 107(F) of the Illinois Human Rights Act (Human Rights Act) then permitted the employee to apply for a rehearing before the whole Commission upon a request made within 30 days of service of the order of the three-member panel. (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 107(F).) No request for such a rehearing was made.

The Castaneda court affirmed a decision of the appellate court (Castaneda v. Human Rights Comm’n (1988), 175 Ill. App. 3d 1085, 530 N.E.2d 1005) dismissing the petition of the claimant for judicial review of the decision of the three-member panel of the Commission. The supreme court decision was based upon the failure of the claimant to seek rehearing before the Commission. The supreme court stated: “The sole issue before this court is whether petitioners seeking judicial review of decisions by three-member panels of the *** Commission must seek an en bloc rehearing before the Commission in order to exhaust their administrative remedies ***.” (Castaneda, 132 Ill. 2d at 308, 547 N.E.2d at 438-39.) The supreme court based its decision upon section 3 — 101 of the Code and spoke, to some extent, as to its general application but, as the foregoing language would indicate, did seem to limit its interpretation of section 3 — 101 of the Code to the circumstances where judicial review is sought from three-member panels of the Commission without a rehearing being sought.

The Castaneda court did disagree with the decision of this court in Carter which also involved the question of judicial review of a decision of a three-member panel of the Commission in regard to a claim of discrimination under the Human Rights Act. The supreme court noted that the Carter decision was based upon an interpretation of section 3 — 101 of the Code which emphasized that both the existence of a statutory right to rehearing upon request within a specified time and an actual filing of a petition for rehearing were necessary to prevent an otherwise final decision of an administrative agency from being subject to judicial review. The supreme court held that portion of section 3 — 101 was ambiguous because of “basic policies underlying the doctrine” of exhausting remedies, a major one being that the rehearing would be before the entire Commission, which could “consider the facts of the cause more thoroughly than a three-member panel.” Castaneda, 132 Ill. 2d at 321, 547 N.E.2d at 445.

The Castaneda court did indicate that a policy of requiring requests for rehearings to administrative agencies, which the agency could grant or deny, before judicial review can be obtained promotes the public policies by (1) obtaining maximum use of the agency’s expertise, and (2) limiting the matters that ultimately burden courts. However, this was stated in the context of a discussion of the desirability of having a full Commission rather than a three-member panel sitting upon rehearing. In explaining the difference between the rationale of the Code in not requiring a post-judgment petition as a condition of preserving issues for review in a nonjury civil case (see Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1203) and the rationale of section 3 — 101 of the Code, the supreme court explained that in such civil cases the rehearing would “typically be before the very same judge or judges” whereas a rehearing before the Commission would include six additional commissioners who did not sit in the earlier determination. Castaneda, 132 Ill. 2d at 326, 547 N.E.2d at 447.

Because of the statement by the Castaneda court that “[t]he sole issue before [it was] whether petitioners seeking judicial review of decisions by three-member panels of the *** Commission must seek an en bloc rehearing before the Commission in order to exhaust their administrative remedies” (Castaneda, 132 Ill. 2d at 308, 547 N.E.2d at 438-39), we conclude that precedent does not bind us here where the decision from which judicial review is sought was made by the whole Board. Recently, in Strube v. Pollution Control Board (1993), 242 Ill. App. 3d 822, the Third District Appellate Court agreed with our conclusion that Castaneda does not apply to petitions for review from the Pollution Control Board and that a petition for rehearing by the Board is not necessary to perfect a petition for judicial review by the appellate court. Grigoleit was not required to file a petition for rehearing from the December 6, 1991, order to obtain judicial review.

We now turn to the other question concerning our jurisdiction, namely, the issue of whether the December 6, 1991, order has finality. We reject the Agency’s assertion that it lacked finality because it permits the Agency the discretion as to whether to grant Grigoleit a renewal permit and as to the conditions of such a permit. In the decretal portion of the order the Board states that it “directs the Agency to issue Grigoleit’s operating permit.” The order then concludes by explaining the appeal procedures from “final orders” of the Board. Prior to those statements the order explained that the Agency had given no valid reason why a permit should not issue.

The clear direction of the order is for the Agency to perform the ministerial task of issuing the permit without any conditions other than those automatically imposed by law. In a civil proceeding when a higher tribunal remands to a lower tribunal merely for the performance of a ministerial function, that order is final for the purpose of appeal and the same rule applies on judicial review of an administrative decision. Wilkey v. Illinois Racing Board (1983), 96 Ill. 2d 245, 249-50, 449 N.E.2d 843, 844-45; Rauschenberger v. Board of Education, Heritage Community Unit School District No. 8 (1991), 223 Ill. App. 3d 412, 416-17, 584 N.E.2d 1050, 1054.

Much of the dispute concerning the finality of the December 6, 1991, order and, indeed, the merits of the case arises from the Agency’s conception of its statutory function in granting operating permits. Section 39(a) of the Act states that “[i]n granting permits the Agency may impose such conditions as may be necessary to accomplish the purposes of [the] Act, and as are not inconsistent with the regulations promulgated by the Board,” and that the Agency has a “duty” to issue a permit only upon “proof by the applicant that the facility *** will not cause a violation of” the Act or regulations thereunder. Ill. Rev. Stat. 1991, ch. IllV2, par. 1039(a).

The Agency maintains the described duties placed upon it and the discretion it has in conditioning permits (see Browning-Ferris Industries of Illinois, Inc. v. Pollution Control Board (1989), 179 Ill. App. 3d 598, 534 N.E.2d 616) remain even after its decision in regard to a permit application has been reversed by the Board and the cause remanded to it with directions to issue the requested permit. This position is untenable. It is not supported by any citation to principles of administrative law or by analogy to procedures in matters before courts.

Only the Agency can actually issue an operating permit of the type involved here. If the Agency’s theory of its powers and duties in this respect is carried to its logical conclusion, the Agency could permanently thwart a Board determination that a party is entitled to a particular type of permit by continuing upon each remand, after appeal to the Board, to impose conditions upon the issuance of a permit to which the Board deems an applicant to be entitled without condition.

The Agency also seeks to have us consider matters which it maintains have taken place since the December 6, 1991, order on judicial review. The Agency states it placed certain conditions upon a permit which it issued upon the last remand and that Grigoleit has taken a further administrative review of that order to the Board. The Agency cites this information as a reason for us to hold that the December 6, 1991, order was not final. The information as to matters occurring after the order on appeal is not properly before us and will not be considered. However, to some extent, the possible existence of such a situation does illustrate the problems which would arise from the operation of the Agency’s interpretation of its function. The grant of a permit under these circumstances only prevents prosecution for failure to possess a permit; the permit is not a grant of any right to violate obligations otherwise imposed by law.

After deciding we have jurisdiction but before we consider the issues upon which we decide the case, we deem appropriate to discuss a major prong of Grigoleit’s theory of recovery, the validity of which we need not decide. It arises from the portion of section 39(a) of the Act which states that “[i]f there is no final action by the Agency within 90 days after the filing of the application for permit, the applicant may deem the permit issued” (emphasis added) (Ill. Rev. Stat. 1987, ch. lll1^, par. 1039(a)). Grigoleit maintains that the action of the Agency in denying its application on October 11, 1989, was untimely. The record showed that it made a proper mailing of the application on July 13, 1989, which was the 91st day before the decision to deny was issued.

Grigoleit contends its mailing of the application on July 13, 1989, should be considered a “filing” within the meaning of section 39(a) of the Act even though the Act does not further define the word “filing.” Grigoleit relies upon section 1.25(1) of the Statute on Statutes, which states as follows:

“Unless An Act otherwise specifically provides, any writing of any kind or description required or authorized to be filed with, and any payment of any kind or description required or authorized to be paid to, the State or any political subdivision thereof, by the laws of this State:

(1) if transmitted through the United States mail, shall be deemed filed with or received by the State or political subdivision on the date shown by the post office cancellation mark stamped upon the envelope or other wrapper containing it.” Ill. Rev. Stat. 1991, ch. 1, par. 1026(1).

The significance to be given to the foregoing is tempered by section 1 of the Statute on Statutes, which provides:

“In the construction of statutes, this Act shall be observed, unless such construction would be inconsistent with the manifest intent of the General Assembly or repugnant to the context of the statute.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 1, par. 1001.

The “filed as mailed” rule was applied by the supreme court in regard to whether an applicant made a timely appeal to the Board from an Agency denial of a supplemental permit in order to uphold the timeliness of filing in M.I.G. Investments, Inc. v. Environmental Protection Agency (1988), 122 Ill. 2d 392, 523 N.E.2d 1. However, the question of whether a mailbox filing theory is appropriate to protect a party from default when a document is timely mailed but tardily delivered differs from the question of whether a party who must respond to the document can be defaulted when the document to which it must respond is tardily delivered. If the “filed as mailed” rule is applied to the time frame for issuing operating permits, a timely filed permit request could evolve into a permit by lapse of time even though the application never reached the Agency or did so in such a short span that little time would be available to act upon it.

We need not decide the applicability of the “filed as mailed” rule because the permit Grigoleit is entitled to is the same as the one which would be ordered issued if the Agency’s ruling had been tardy. As we need not decide this question, we need not respond to the Agency’s contention that the issue of whether Grigoleit was entitled to a permit for that reason was in some way eliminated from consideration by being merged into the December 6, 1991, order from which judicial review has been taken. However, the fact that we determine Grigoleit is entitled to a permit without specific conditions does not render its request for review moot on the grounds Grigoleit received all the relief it requested from the Board. (See Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 457 N.E.2d 9.) Grigoleit did not receive the benefit of all sanctions it requested.

Finally, we turn our attention to the question of sanctions. Grigoleit’s request for sanctions was based upon the Agency’s repeated refusal to follow the Board’s mandate upon remand. Grigoleit asked that the Board pay its attorney fees and require the Agency to dismiss a pending land pollution violation complaint. The Board refused these sanctions but deemed its requirement for issuance of a renewed permit without conditions to be a sanction. Grigoleit contends that was no sanction because the Board had determined Grigoleit was entitled to that on the basis of the proof. Our interpretation of the record is in agreement with that of Grigoleit in that respect. Section 101.280(a)(7) of the Board’s rules includes as a sanction which can be imposed against parties for “refus[al] to comply with *** any, order entered by the Board,” an order “[t]hat the offending person pay the amount of reasonable expenses incurred in obtaining an order pursuant to this Section.” (35 Ill. Adm. Code §101.280(a)(7) (1991).) The Board has broad discretion in determining whether to impose such a sanction. (Environmental Protection Agency v. Celotex Corp. (1988), 168 Ill. App. 3d 592, 597, 522 N.E.2d 888, 891.) Examination of the totality of the actions by the Agency which took place here leads us to conclude that the Board did abuse its discretion in not imposing more severe sanctions against the Agency.

On October 11, 1989, the Agency issued a letter listing three reasons why it was denying Grigoleit’s request for permit renewal. One ground was that Grigoleit had denied Agency personnel access to its operations. The second was that Grigoleit’s application failed to provide certain proof in regard to Grigoleit’s compliance with certain Agency rules. The third was that an outstanding land pollution violation existed. On appeal from this ruling, the Board issued an order on November 29, 1990, which found that the Agency’s first and third grounds of denial were not proper and remanded for reconsideration of the second ground. (Grigoleit Co. v. Illinois Environmental Protection Agency (Nov. 29, 1990), _Ill. PCB No. 89 — 184.) On remand, the Agency sought information from Grigoleit which concerned not only the issue which it was directed to reconsider but also that concerning Grigoleit’s alleged land violation. Grigoleit responded by providing information concerning the issue to be considered but refused to give other information. On April 25, 1991, the Agency again denied renewal, maintaining the information provided on both issues was inadequate.

After the second permit denial, Grigoleit filed a petition with the Board for sanctions and other relief because of the failure of the Agency to follow Board mandates. On June 20, 1991, the Board found the Agency had exceeded the scope of its authority and remanded to the Agency “for the sole purpose of eliciting the information” that concerned Grigoleit’s compliance with certain Agency rules. (Grigoleit Co. v. Illinois Environmental Protection Agency (June 20, 1991),_Ill. PCB No. 89 — 184.) As sanctions, the Board declared the Agency’s January 10, 1991, letter and the April 25, 1991, letter and permit denial null and void. The Board refused Grigoleit’s request that (1) the Agency be barred from filing further pleading, and (2) the Agency reimburse Grigoleit for its costs in regard to its latest motion. Grigoleit Co. v. Illinois Environmental Protection Agency (June 20, 1991),_Ill. PCB No. 89 — 184.

On the second remand, the Agency persisted in exceeding the scope of the remand by again requesting from Grigoleit, in a letter dated July 29, 1991, not only information in regard to Grigoleit’s compliance with the various rules upon which information had been previously requested but also information concerning its compliance with other regulations not previously raised and not referred to in the two orders of remand. On October 2, 1991, the Agency then again denied Grigoleit a permit based upon Grigoleit’s lack of proof as to both the matters set forth in the remand orders and also the new grounds which the Agency had interjected. This ruling gave rise to the instant petition for sanctions and the Board’s order which is the subject of this judicial review.

As has been shown, the Agency continued to exceed the scope of its mandate after being directed by the Board not to do so. The apparent reason for this was the Agency’s contention that the provisions of section 39(a) of the Act, which set forth grounds upon which permits should be issued, authorized it to take a fresh approach to the grant of a permit on a remand from an appeal of a previous denial regardless of the Board’s mandate in that respect. The record shows that the Board had rejected that theory and as we have indicated, we deem it without merit. Once the Board had ruled against its use of this theory, proper procedure for contesting that ruling requires that it follow the mandate of the Board and then raise the issue in an ultimate appeal of a final order. The procedure of continued thwarting of the Board’s mandates, which mandates turned out to be proper, caused needless delay and expense to the Board and to Grigoleit.

While we recognize the great discretion granted the Board in ruling upon sanctions, we are compelled to conclude that granting Grigoleit a renewal permit which it was apparently entitled to anyway, was, as a matter of law, an insufficient sanction for the Agency’s unnecessary stubborn defiance of the Board. We fully agree with the Board’s rejection of Grigoleit’s request that a collateral complaint against Grigoleit should be dismissed as a sanction. However, Grigoleit is entitled to some expense reimbursement as a sanction.

Accordingly, we affirm all aspects of the December 6, 1992, Board order on judicial review except to the extent it refuses an award of attorney fees. We reverse that portion of the order and remand to the Board with directions to award Grigoleit attorney fees in regard to the proceeding after the second remand.

Affirmed in part, reversed in part, and remanded with directions.

COOK, J., concurs.