Illinois State Chamber of Commerce v. Pollution Control Bd.

Decision Date14 December 1978
Docket NumberNos. 77-1176,77-1385 and 77-1440,s. 77-1176
Citation384 N.E.2d 922,24 Ill.Dec. 55,67 Ill.App.3d 839
Parties, 24 Ill.Dec. 55 ILLINOIS STATE CHAMBER OF COMMERCE, et al., and Village of Winnetka, Petitioners, v. POLLUTION CONTROL BOARD of the State of Illinois, Respondent.
CourtUnited States Appellate Court of Illinois

Harvey M. Sheldon and Ronald Lipinski, Chicago, Plunkett, Nisen, Elliott & Meier, Chicago, of counsel and Richard J. Kissel, Jeffrey C. Fort, Martin, Craig, Chester & Sonnenschein, Chicago, Ronald L. Scherubel, North Chicago, Terry Dobbins, Sheldon A. Zabel, Chicago, of counsel, for petitioners.

William J. Scott, Atty. Gen. of State of Illinois, George William Wolff, Chicago, of counsel, for respondent.

LINN, Justice:

This action involves three consolidated petitions for review filed pursuant to the Illinois Environmental Protection Act. (Ill.Rev.Stat.1975, ch. 1111/2, pars. 1029 and 1041.) Petitioners seek direct review of the validity of a July 7, 1977 order of the Illinois Pollution Control Board (Board) in docket R71-23, readopting regulations 203(g)(1) and 204(a) and (c)(1)(A) relating to air quality standards.

The Board first adopted rules 203(g)(1), particulate emissions standards, and 204(a) and (c)(1)(A), sulfur dioxide emissions standards, in 1972. The declared propriety of the Board's adoption of these rules was reversed and the cause remanded to the Board for further consideration in Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill.App.3d 271, 323 N.E.2d 84, Aff'd in relevant part (1976), 62 Ill.2d 494, 343 N.E.2d 459. The principal issues presented for review in this case involve the scope of that remanding order and its impact on the subsequent action taken by the Board with regard to regulations 203(g)(1) and 204(a) and (c)(1)(A).

The issues raised by the instant petitions for review were recently considered by the Illinois Appellate Court, Third District, in Ashland Chemical Co. v. Pollution Control Board (1978), 64 Ill.App.3d 169, 21 Ill.Dec. 121, 381 N.E.2d 56, in which the court reviewed the same rulemaking proceeding now before us. The facts relevant to this action were adequately stated in the Ashland Chemical opinion and we find it unnecessary to recite them again in detail.

In reviewing the 1972 rulemaking proceeding leading to the initial adoption of rules 203(g)(1) and 204(a) and (c)(1)(A) the appellate court in Commonwealth Edison stated: "possibly scientific evidence may have been developed since the hearing and the resultant Board opinion in this cause that may not demand a relaxation of these challenged rules." (25 Ill.App.3d at 288, 323 N.E.2d at 96.) The appellate court remanded the rules to the Board with instructions "either to validate (the rules) in accordance with Section 27 of the Act or to prepare proper rules as substitutes." (25 Ill.App.3d at 288, 323 N.E.2d at 96.) The supreme court affirmed the appellate court's decision to remand rules 203(g)(1) and 204(a) and (c)(1)(A) to the Board and declined "to determine the validity of (the rules) on the basis of evidence adduced at hearings held in 1970, 1971, and 1972 * * * ." 62 Ill.2d at 503, 343 N.E.2d at 465.

After remand in the spring of 1976, the Board consolidated the record in R71-23 (concerning the remanded rules) with other related proceedings in R74-2 and R75-5 then pending before the Board. A year later, the Board announced that it had received a report prepared by Marder and Associates in response to the supreme court's decision in Commonwealth Edison and that it would study the report to determine if it supported a "revalidation" of the remanded rules.

On May 12, 1977, the Board announced that it planned to readopt without change the same regulations previously held invalid in Commonwealth Edison. At that time a number of interested persons, including several of the petitioners herein, filed written comments objecting to the Board's readoption of the rules without first conducting hearings or preparing and considering an economic impact study. On July 7, 1977, without holding additional substantive or economic impact hearings, the Board issued an order which "validated" rules 203(g)(1) and 204(a) and (c)(1)(A). That order provided for a 45-day public comment period and stated that the regulations would become effective on September 1, 1977.

During the 45-day comment period which followed the July 7, 1977 order, petitioners and others objected to the Board's action. However, the Board did not respond to the objections raised in the comments, and the regulations became effective on September 1, 1977, without further comment by the Board.

On August 10, 1977, petitioners, Illinois State Chamber of Commerce, City of Rochelle, Abbott Laboratories and Caterpillar Tractor Co., filed a petition for review in case No. 77-1176. On September 23, 1977, these same petitioners filed another petition for review designated case No. 77-1385. Petitioner, Village of Winnetka, filed a petition for review in case No. 77-1440 on October 5, 1977. All three petitions for review have been consolidated for consideration.

OPINION:

I

We must preliminarily address several issues raised by motion to dismiss the petitions for review. Since the filing of the petitions the respondent Board has filed motions to dismiss the petitions for review on three separate grounds. 1 These motions have been taken with the case for consideration. The Board claims the petitions should be dismissed for the following reasons: (1) the petitioners did not file timely petitions for review from the 1972 rulemaking proceeding; (2) the petitioners did not file timely petitions for review from the 1977 readoption order; and (3) petitioners failed to name all necessary parties as respondents.

The Board's first request for dismissal of the petitions is premised on the argument that by failing to file petitions for review within 35 days of the Board's original adoption of rules 203(g)(1) and 204(a) and (c)(1)(A) on April 13, 1972, petitioners waived any objection which they might have raised with regard to the validity of the rules. An identical issue was raised by motion to dismiss in the Ashland Chemical case. There the court held that since the rules in question had been found invalid in Commonwealth Edison and as a result of that decision the Board was required to take new action with regard to the rules, those persons who were adversely affected by the Board's new action in 1977 were entitled to review those actions by petition for review (64 Ill.App.3d at 173, 21 Ill.Dec. at 124, 381 N.E.2d at 59). We agree with the court in Ashland Chemical and refuse to dismiss the petitions for review on the basis that petitioners failed to seek review from the 1972 rulemaking proceeding.

An additional jurisdictional issue has arisen from our handling of the Board's motions based on the first theory of dismissal. On January 5, 1978, the Board moved to dismiss the petitions for review in cases 77-1385 and 77-1440 citing petitioners' failure to appeal from the 1972 rulemaking proceeding. This motion was allowed on January 26, 1978. On February 21, 1978 the Board filed a similar motion to dismiss the petition for review in 77-1176. This motion was granted on March 3, 1978.

In the meantime, apparently confused by this court's granting of extensions of time to file briefs after the dismissal of the petitions in 77-1385 and 77-1440, petitioners, on March 1, 1978, filed two separate motions to reconsider the orders of dismissal. The motions seeking reconsideration were taken under advisement. While petitioners awaited a determination of their motions for reconsideration the petitioners in 77-1385 sought to protect their interests by filing a petition for leave to appeal to the Illinois Supreme Court from this court's order of dismissal.

We requested and heard oral argument on petitioners' motions to reconsider the orders of dismissal. After considering the arguments presented by counsel, we vacated our previous orders of dismissal and, on April 14, 1978, reinstated all the petitions for review. The supreme court thereafter dismissed the petition for leave to appeal in 77-1385.

The Board contends that this court lacked the jurisdiction to vacate the orders of dismissal. We do not agree.

Power to vacate and set aside judgments is inherent in all courts of record including courts of appellate jurisdiction. (Czyzewski v. Gleeson (1977), 49 Ill.App.3d 655, 7 Ill.Dec. 396, 364 N.E.2d 557.) A trial court usually loses jurisdiction of a final order entered upon the passing of 30 days. (Pape v. Department of Revenue (1968), 40 Ill.2d 442, 240 N.E.2d 621.) However, within that 30-day period the court retains the inherent power to vacate any of its judgments upon the showing of good cause. Trojan v. Marquette National Bank (1967), 88 Ill.App.2d 428, 232 N.E.2d 160.

A reviewing court, having obtained jurisdiction over a case, is not divested of jurisdiction until the parties' rights of appeal have been exhausted. As stated in People v. McCloskey (1971), 2 Ill.App.3d 892, 898, 270 N.E.2d 126, Supplemental opinion 274 N.E.2d 358, 360, Additional supplemental opinion 276 N.E.2d 349:

"(A) reviewing court in Illinois is divested of jurisdiction in a cause before it when its mandate issues to a lower court (thereby restoring jurisdiction in that court) or when a petition for leave to appeal from the appellate court to the Illinois Supreme Court has been allowed or when a petition for leave to appeal or Certiorari to the United States Supreme Court has been granted (thereby passing jurisdiction to the higher court)."

When petitioners filed their motions to reconsider the orders of dismissal this court's mandate had not issued to the Board and the time for filing a petition for leave to appeal had not expired. Although a petition for leave to appeal was subsequently filed before this court entered an order reinstating the petitions for review...

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