*1 $20,000 imposed that fine finally Petitioner contends discretion is vested with broad arbitrary and excessive. The Board and, IIIJ2, 1005), penalty (Ill. Rev. Stat. imposing civil abuse, on review. The will not be disturbed absent an determination hearings which indicated imposed extensive penalty after time, enjoyment had interfered with petitioner, long period for a avoided. We ways reasonably could have been property life and fixing the fine. abused its discretion say cannot that the Board desist petitioner to cease and Accordingly, directing the Board’s Act, and 9(a) the Environmental Protection from violations of section violations, $20,000 is affirmed. upon petitioner past imposing a fine of Order affirmed. DEMPSEY,
MEJDA, J., J, P. concur. COMMITTEE, v. Complainant-Respondent, CLEAN AIR COORDINATING AGENCY, Respondent-Petitioner. PROTECTION ENVIRONMENTAL (3rd Division) Nos. 61518 cons. District First September 1976. Opinion *2 McGLOON, J., specially concurring. Nesburg, Maywood, petitioner.
Kathryn S. of Kates, Chicago, M. Richard opinion
Mr. PRESIDING of the court. delivered JUSTICE MEJDA (EPA) petitioned has Respondent, Agency Environmental Protection January adopted this court for direct and order on opinion review of 9, 1975, (Board), is an by the Illinois Pollution Control Board which Protection Environmental 41 of the to section appeal pursuant 335 Rev. Rule 111M, Supreme Court 1973, par. 1041) and Stat. Coordinating Air 1973, 335). Complainant, Clean lack of (CACC), appeal dismiss the Committee filed a motion to case. was taken with the jurisdiction. The motion facts pertinent The follow. We dismiss the for review. against the Board complaint CACC an amended before Briceland, director, charging EPA and its Richard violation respondent 403, Regulations four 407 Air Control on Rules 406 and Pollution complaint The amended specified regarding dates in 1974 ozone. and desist from EPA and its director cease requested an order rules, that if the Board found such and also further violations of 1, wilful, hearing A October be fined. held director’s violation was he 1975, opinion and order adopted an January 1974. On the Board 9,1974, August 403 and 406 on EPA Rules reciting inter alia that violated found as to that no violations were watch and by faffing to call ozone by ordering 1974. It concluded August 24 or or charges July 403 and 406. from violation of Rules desist immediately cease and EPA to 5, 1975, On February EPA filed a motion with the Board to reconsider its opinion and order January 9 and EPA to find that did not violate the regulations August on 1974. CACC response filed a to the motion of EPA and also filed a motion for reconsideration and clarification of the January 9 opinion further requesting that the Board find a violation on each of the four dates as charged. While the motions were pending undetermined, EPA on February filed with this court the instant opinion for review of the adopted by order 9,1975. Thereafter, the Board on January 14,1975, February on the Board adopted opinion a further and order “Therefore, which recited inter alia: although we do not disturb our basic finding that the Environmental Protection Agency did Regulation, violate the amplify we will somewhat on opinion.” opinion The latter and order by ordering concluded the motions of respondent EPA and complainant CACC each be denied.
CACC filed a motion to dismiss the instant for lack of jurisdiction EPA to which response. filed a The motion was taken with the petition for review. CACC,
Complainant as grounds for its motion this appeal, to dismiss contends that January opinion and order not a final appealable EPA order. contends that January opinion is final order *3 appealable in that the Board’s provides Procedural Rule 334 an indefinite apply Board, time to an rehearing for administrative before the the motions proceeding for reconsideration a and that instituted new the February opinion independent order constituted a new and decision, provided administrative as in section of the Administrative Act 264). Review Rev. Stat. ch.
Procedural Rule 334 of Board in provides pertinent part: the
“Within 35 days entry after the a final order and within such' allow, may any further time as the Board party may file a motion rehearing for or modification of the or to vacate the order or ° ° A apt for other relief. motion in stays time enforcement thereon and such begin the time for from order does not , upon until the Board rules the motion.” Section 1 of the Administrative Review par. 264), specifically applicable agency which is to direct review of Supreme 335(h)(2) (Ill. orders under Court Rule Rev. Stat.
par. 335(h)(2)), provides part: decision, decision’ any
‘Administrative or ‘decision’ means any agency order or determination of administrative rendered a case, particular legal rights, privileges which affects the duties or parties proceedings which terminates the before the In agency. administrative all cases in which a of the statute or a rule for a agency permits application or an requires administrative review to be filed rehearing or other method of administrative which specified (as distinguished from a statute within a time to permits rehearing or administrative review application the for Agency by the Administrative any judgment be filed at time before entry of a time after the against applicant specified or within is rehearing such for such or review judgment), application and an made, shall be final as to agency no of such administrative decision is had rehearing until such or review or party applying therefor However, permits application if an particular denied. statute to be filed rehearing for or other method of administrative review period an of time agency with the administrative for indefinite (such after has been rendered as the administrative decision any judgment such time permitting application to be filed at before a by agency against applicant the administrative or within specified entry judgment), time after of such then filing application rehearing authorization for the of such or postpone review shall not the time when the administrative decision as application to which such shall be filed would final, filing otherwise become but application rehearing or in this agency type review with the administrative proceeding case shall constitute the a commencement new agency, before such and the dispose decision rendered order to rehearing of such proceeding or other review shall constitute a new independent administrative decision.” case, In prescribes the instant there is no statute which time for Instead, rehearing or administrative time is review decision. governed by the express above Procedural Rule 334. The words “Within days entry after the of a final order and within such further time as the may Board allow” must together concluding be considered with the provides apt sentence which that a motion filed in stays time enforcement. The 35 days” words “within are must specific and be context, purpose meaning. accorded In this we construe the rule to require rehearing that a motion for must or other relief be made within 35 days of may the order and within such extension as be within the initiated days any original previously granted requirement or extensions. Such It specific. permit application definite and does not rehearing to be *4 Consequently, filed for an indefinite time. 1 provisions the of section of applications the Review Act as to rehearing Administrative for permissible period inapplicable an are indefinite to the case at bar. February opinion
EPA 14 and argues further that the order concerned reconsideration, only points that it did the motions for restate several opinion. previous materially change the decision but did not The 128 decision which was
February amplified decision the Board’s earlier reference, by findings, reaffirmed the and denied the incorporated motions for reconsideration and clarification. required by
It must noted that the statute to file and be Board leading facts and to publish opinion stating a written the reasons Tape v. Mystik Pollution 1973, IIIJ2, 1033; (Ill. par. Stat. ch. decision. Rev. mandate Control Board “* # [0] (1973), provides 16 Ill. this court with data App. 3d 778, 306 N.E.2d necessary 574.) to The a complete statutory by decision the Board. Without such and fair of the administrative review information, type, thorough judicious this and review of matters of (Allied Metal Co. v. Pollution the decision cannot be made. [Citation.]” 823, 833, 257, 264.) Control Board Ill. 318 N.E.2d The (1974), App. 22 3d February upon testimony, the facts and reasons to expanded 14 decision and substantive support and must be held a material the earlier decision Board’s earlier decision. revision CACC filed its motion for reconsideration
Complainant 9 January of the and EPA filed its motion for reconsideration clarification days specified the initial 35 the Board’s opinion and both within It is required by its terms. apt 334 and within the time Procedural Rule proceedings. Prior January 9 decision did not terminate the clear motions, speculate as to the party neither could ruling pending to a on the would this court then scope subsequent order. Neither nature or of the complete and fair review of the ultimate necessary the data to a have rehearing expeditious are more Petitions for final decision of the Board. by it action the Board while provide appropriate appeal than v. Cartage Co. Illinois See Meinhardt proceedings. has full control 546, N.E.2d 631. Com. (1959), 15 Ill. 2d 155 Commerce proceedings and order terminated February opinion The 14 final, Supreme of the Board. Under appealable order constituted the appeal. as a for review functions notice petition Rule Court Stat., par. Ann. (See to Rule Committee Comments filing 1968)).) The (Smith-Hurd at 27 Comments, Supp. Committee premature February 13 on in this court for review adopted subsequently as appeal to as a notice ineffective to serve 748, 306 v. (1974), App. 16 Ill. 3d (See People Deaton opinion and order. 151.) N.E.2d 3d v. Ault 695; (1974), App. 24 Ill. Hale N.E.2d Therefore, dismissed. must be appeal not in this court does review noted that the
We have the Administrative (See section the Board as a name However, as 271).) inasmuch Review reasons, reach the we do not for the above must be dismissed petition. sufficiency of the question of *5 appeal is allowed and the to dismiss the Accordingly, the motion is dismissed. allowed; appeal dismissed.
Motion
McNAMARA, J., concurs. McGLOON, concurring: specially Mr. JUSTICE review, but majority’s I decision to dismiss concur in the discuss. not to grounds majority prefers would do so on governing petitions Supreme Court Rules The various statutes and exception, require, without Control Board decisions review of Pollution instant Since the that the Board be a named I that the would hold respondent, Board as a review does not name the summarily without an examination must be dismissed petition for review contents. FRANKLIN, (THE STATE OF PEOPLE OF THE In ANDRE re Minor. — FRANKLIN, ILLINOIS, Petitioner-Appellee, v. ANDRE
Respondent-Appellant.) Division) (3rd No. 61793 First District 7, 1976. Opinion September