may please the court my name is stuart whitten i represent the board of education of roxana community unit school district number one the primary issues involved in this appeal of whether the pollution control board is precluded from allowing a  bali such as the roxana school district to intervene in pollution control facilities certification proceedings even though the board has found that the district has sufficient interest to do so and whether the jurisdiction to review the pollution control board's decisions on intervention these issues are critically important because neither the environmental protection agency nor the board is applying the proper primary purpose test and considering applications for pollution control sort of creation they choose instead to apply but for test analyzing the briefly analyzing the underlying purpose of the equipment the course of the fourth district in the first district  universally rejected any consideration of a but for test and pollution control certification these proceedings started just as w r b was completely three point eight billion dollar expansion of its wood river refinery a completing its expansion it filed twenty eight separate applications for pollution control certification with the environmental protection agency in the pollution control board and for improvements valued at one point two billion dollars at the same time it was proceeding before the madison county board of review and it represented to the board of the view that it had more applications on file for a grand total  excess of three billion dollars of equipment that they claim to be pollution control facilities and madison county all of these refining that units are in fact real property subject real estate taxation now the only general assembly has deemed it advisable to provide incentives for industries for farm operations and others to make improvements designed for the primary purpose of reducing or eliminating pollution to incentives were originally provided exemption from sales and use tax and preferential treatment for property taxes while the exempt from exemption for sales and use tax dollar exists the preferential property tax treatment continues the rationale here is simple if an owner of manufacturing a farming operation installs improvements designed for the primary purpose of reducing or eliminating pollution caused by its operation caused by the manufacturing operation then the owner should receive preferential property tax  e for those improvements but if the primary purpose of the improvements is not condition control that is it's not the reduction of pollution from the operation of the plant then no preferential treatment should be granted and the tax payers fair share of the local property tax burden should be determined just like every other business owner and every other property owner and tonight a school districts or requests have petitions to intervene the pollution control board is ensuring that i determination and its interpretation of the primary purpose test will be left unchallenged and not subject to judicial review because what happens here is this the agency makes a recommendation the board receives the recommendation that one approves the application and that's the end of it so low in the twenty eight cases currently before the court in a matter of less than two weeks from receiving the e p a s recommendation the board will write one point two billion dollars awful awful local cesspools with no notice to taxing body with no notes to anybody when we discover that they had a fact filed these applications and  discovered that in fact they were on the docket of the pollution control board we immediately filed petitions to intervene alleging our interests as initially the agency acknowledge that the taxi that the school district had a substantial interest in whether or not these items could certified as pollution control facilities but w r t the taxpayer came in and said no no under the supreme court's ruling in landfill you can consider petition to intervene you cannot allow the law the school district to participate in the proceedings because the property tax code in their view assumes a circumscribed proceeding the statutory primary purpose test s determine the function and the ultimate objective of the improvement at issue though only those facilities directly involved in the pollution abatement process are to be afforded special status the test and mint that has absolutely no substantial function in the manufacturing or processing or refining process other than to abate pollution caused by the plant's operation now there is not absolutely nothing in the property tax code that precludes intervention and pollution control certification proceedings the only pollution control board statutorily charged with receiving and reviewing applications and then making a determination of whether the primary purpose of the improvements is the reduction or prevention of air or water pollution as those terms are defined in the act if and only if the primary purpose is the reduction of prevention of pollution then the board is to issue a certificate and the property is removed from the local assessment rolls notwithstanding the statutory process the agency the board has delegated to the agency the responsibility effectively before this court the fourth district basically washed its hands of this matter and did not want to consider it and for that reason i think it's all up here in a dozen not have to go back and forth that's for the obviously we need to understand we took it for the jurisdiction work provision you think applies only with respect to the jurisdiction with regard to the issue of jurisdiction at least as it pertains to parties who are attempting to intervene in proceedings before the pollution specifically provides that app potential hoarder may seek administrative review under the administrative review law section eleven sixty doesn't say you go to the circuit court section eleven six it doesn't say you go to the  section eleven sixty is silent on the issue of where applicants and and holders though the concept here at the fourth district was that and just to step up and recognize this the concept is that are it's a more specific statute and therefore they go to the circuit court but all of the environmental profile of the activities of the pollution control board while they're under the property tax code they're also under the admitted environmental protection act because they don't have any affordable they don't exist without the environmental protection and so when the the property tax code says you'd receive applications and review them and then your to make a determination of whether or not brought the statute makes no reference to interveners the statute makes no reference to the environmental protection agency which the pollution could drop make board makes an adversary in these types of proceedings when the files an application with the pollution control board the pollution control board sets it up as an adjudicatory case under part one of one of its rules it makes the applicant the petitioner the agency the respondent so in the unlikely event that the agency were to recommend denial of the application but the board said no we're going to grant the application under their instruction of the statute the agency who is definitely a party to the proceeding would have no right to appeal because in their view section forty one a can't convey appeal rights the only thing the eleven sixty does and it is specific it says that applicants and holders are to go under the administrative review  interesting only enough since nine hundred ninety two are not the pollution control board has never granted a property tax certification or ruled on a certification issue without sending all the parties to the appellate court in each of the cases that we have before us in each of the twenty eight applications they certify the requested items a pollution control facilities and said if anybody's unhappy with this order to go to the public order under section forty one and there were two orders that they entered in number thirty nine number forty before the pollution control board on i think that what the author will but then they said w r t agency if you wish to appeal from this order you go to the appellate court under section forty one and page fifteen of the be all b s brief they call the court's attention  last thing in the brief right about the signature they call the boards the court's attention six different pollution control orders who should control board orders where other equipment at other refineries have been certified as pollution control facilities and every one of those orders the pollution control board tells the applicant you go to the phone you go to the appellate court under section forty one eight and supreme court rule three thirty five every one of those orders no do they say you go to you go to the circuit court so that's their interpretation now the attorney general has argued that the agency because it's vested with the expertise and the knowledge that their interpretation of their statutes claiming that they were not pushing control facilities that they were essential to the manufacturing process the pollution control that come about assumed tried to get the petition to revoke dismissed on the basis that third parties couldn't participate the pollution control board embrace the school district and said come and participate in this proceeding the pollution control board alternately had a hearing and decided no this is in fact the pollution control facility under section from the pollution control board under section forty one of the attlee environmental protection act and pursuant to supreme court rule three thirty five and that was it so it was just in more in terms of the historical content but there wasn't the answer my question  not a detail analysis there was no holiness there's no there was no holding as it related the issue of jurisdiction but significantly the pollution control board the environmental protection agency never objected jurisdiction as they are doing here so why is it different now why is it different now because they don't want local taxing bodies weighing in on their determination of what's a pollution control facility you have an ultra low sulfur diesel expansion project a four hundred million dollar project it produces diesel fuel for use in diesel engines in this country diesel fuel and less it's also all software that will destroy catalytic converters the real pollution control is the catalytic converters of this court back in one nine hundred seventy five i think and how are indicated catalytic converters or not pollution control facilities exempt from sales and  company to produce diesel fuel that can be sold at the pump to us here in chicago in or wheaton or wherever the case may be so that we can drive our cars up here and that would pollute the community up here but the people who are bearing the brunt of it under the board's analysis their very brief analysis the people who are going to bearing the brunt of it are the folks at the local community where the main faction operation takes place we maintain and we believe that the courts have held that that is not the intention of the primary purpose that's the whole purpose of the primary purpose test is so that people who enjoy the benefits of pollution control  containing facilities on farms the people who enjoy the benefits of that bear the burden of it and that's what it's designed to do we believe that the pollution control board to deny these matters because they basically didn't want to take them out because they got their preconceived notions when we found a petitions to intervene the agency while the acknowledge that we had a substantial interest in this proceeding call this the tejas ok got it because of the fact that we wanted to participate and because of the fact that we wanted to protect about the tech space and we all know and you well know that the real parties in interest in matters of this type are the local taxi lines it's the case with appeals to the public texaco board tax objection kate cases as you all recognize the madison two it's also the and don't qualify under the court's rules they're throwing them going i'm about to make life easier when they have other enforcement actions now does the record reflect that no but do we believe that to be the case absolutely jurisdiction to review the p c p s decisions in this case on of the governing statutes is there any right to any appeal of intervention by the p c b there are there is not out of the statutes and  i want to put one issue to rest which is the the attacks on the integrity of the p c b as a governmental body there is a well established legal presumption that government officials and agencies act in good faith and to overcome their presumption you would need something more than speculation surmise an ad hominem attacks on their integrity here the p c b finds this unprofessional and beneath the dignity of any response other than to say that the plaintiff's counsel has just admitted that there is nothing in the record to support these attacks on their integrity the fact of the matter is that these petitions were pending before the only way and by a protection agency for an extended period they were subject to technical review these types of proceedings have been conducted many times in the past the question however is what is the legislative intention here the if a court rules that the p c be decisions in these cases denying intervention in a case are not subject to the ruling in landfill inc and that there is a thirty under section forty one a of the environmental protection act for review of these things then the p c b is glad to have a definitive ruling by the court and to proceed accordingly we have respectfully submitted that that is not the correct interpretation of the statute but the p c b is essentially a temporary way station for the ultimate rulings on those matters that this court to decide and the issue is one strictly of state strong interpretation there's no constitutional right to intervene there are many statues that in which the general assembly has given rights to intervene in tax proceedings those include tax objection cases if the p c b certifies property as a pollution control of the city so there's no constitutional right to intervene these cases there's no due process principle involved really what the court is here to resolve is is there any statute that provides authority for review of p c b decisions the deny in no that is not the case you have two separate statutes here you have article levon of the property tax code that's part of the revenue act that gives the p c b a very small part of it stashed for you matters and then there's the environmental protection act which is separate in that meant that provides for the greatest authorisation of p c b functions promulgating was regarding emissions requirements adjudicating claim to with respect to landfill siting court the p c b said nothing on the issue the appellate court said nothing i mean issue so that i think the point made was that there is no polling on the jurisdictional question to read custer case it can't be presidential but obviously that's an inferior court and that's an issue for this  court it was not the subject of any of the briefing here certainly not in their opening brief so i didn't take time to address it but the reality is that the p c b inadvertently and by mistake as a pro forma provision in its orders has included the language that if you don't like the result of this order then go to the appellate court under section forty one day we explained that that was an inadvertent inclusion of standard language that spark of the p c b is orders generally because almost all of those orders are for matters of the  but to say that in that little language at the bottom of these words this routinely included should trump a specific holding in the body of the p c b his decision in this case that says and i quoted page nine of my brief is that the environmental protection act does not give an appeal route for decisions of the border under the property tax code that was their specific reasoning that was their specific holding and so this pro forma language that was inadvertently concluded cannot be characterized as the p c b taking a form position and telling them that they have to go to the appellate court i do want to say that if they had relied upon that it would be of no prejudice to them anyway because if they had filed in the appellate court but in fact as the p c b firm there was no jurisdiction to do so there'd be no prejudice because there was no jurisdiction if they had filed in the appellate court but in fact they only had authority to proceed for administrative review in the circuit court then there's a supreme court rule that governs that situation and provides for a transfer of the wrong court to the quick court so there was no prejudice from that inadvertent goal mistaken notice i would say it was full of it because it wasn't in the opening brief nor was it in the reply brief it's being brought up for the first time at oral argument which i think the supreme court rules for close reliance on but in any event it's wrong the specific form of holding of the p c b in this case to the extent that the court should give any deference to it on this jurisdiction question is that there is no authority under section forty one a for this place for the plaintiffs to go if they're unhappy with that statutory restriction on administrative review rights is the legislature there are equitable arguments that can be made both ways we've laid them out in our brief there is the benefit of moving these things along because the person entitled to a property tax certification tax advantage doesn't get that until the certification is finally granted there might be a fairness concern about not letting these people get involved but there's a competing to serve out how much it would delay the proceedings and it seems to me that those are the types of things that the legislature can weigh in has in fact already weighed when compared to all these other statutory regimens where they have granted rights of intervention and granted rights of review in this case specifically they did not do so and the actual legislative history i think is revealing on that point before the e p a the p c b ever came into existence and the environmental protection act was  hundred seventy there was always this certification for pollution control facilities in the statute books that had been created in the sixty's it existed for years the authority to make these certifications was in the sanitary water board in the air pollution have the authority to review something that they didn't even have jurisdiction over makes no sense then of course when they transferred that authority from these two other bodies to the p c b they did not change anything in the  property tax code governing who can participate and who has a right to review they left in place section eleven they're sixty which also makes no sense if they intended to have on top of it all as the plaintiffs argue this hybrid provision where you can go to the circuit court if you are an applicant or holder but through no expressed language sort of by implication if you're somebody else you can go to the park or it makes no sense at all there's no precedent for any such situation where a single administrative were is going to be subject simultaneously to review in two different courts under two different statutes one of which doesn't even make reference to the to the right of review that they claim to exist even if all the reasons that the a protection act does provide a vehicle for review of decisions on the property tax code there's still problems with that the problem is that they work they don't meet any of the criteria for review under section forty one that they're not a party to one of these proceedings filing a motion to intervene does not make you a party i think the law is pretty clear on that and the alternative as they realize rely upon an inferior court decision is citizens against random randolph landfill case that says well under the e p a act a denial of a motion to intervene constitutes the denial of a hearing on a complaint i think in a brief we've sort of explained fairly what that specific language in the  section forty one a day was intended to refer to it's intended to refer to the right of anybody to file a petition with each with the p c b arguing that somebody is in violation of the act or rule or permit and there's a specific provision in that that says that the p c be made tonight hearing on such a complaint if it deems the complaint to be frivolous or duplicative that provision was intended to allow a right of administrative review for exactly that it doesn't mean that if they have all the paper clearing up attention to intervene and deny it it's the same as the denial of a hearing on a complaint so even if they get past the first threshold issue of section eleven sixty of the property tax code being the exclusive avenue for administrative review of property affected by an order terminations the board i believe under that such an important one if that's limited to the actual parties and what's the purpose of having both a clause in the very first clause which says any party to a board here why the additional language and personally affected aren't they already included with i believe that they're not identical i believe that there are parties to board hearings but there are also situations in which the p c b e makes a decision that does not involve a hearing and there is a party to that proceeding in which those that party could be adversely affected i'm not an expert on p c b jurisdiction but i believe that the two are not co identical and that that would explain the reason for the multiple references or bardie were different ways that they talk about orders here in forty one here but that is correct me i e answer justice thomas final question i would just add that in the lake county contractors case this court specifically addressed that issue and said that the general assembly consciously used the word person and party and when they used party they meant party record consistent with the two point two chestnut in winston cases that say you have to be a part of your record in misrata proceeding to seek administrative review and a person does not fall within that category and so back appears to be a clear holding we believe on point with respect to the proper to pollution control board's actions on tax or cation proceedings intended to circumscribe proceeding and that is because the pollution control board has expertise in these matters and of their powers they delegate it to the e p a to make recommendations course also has expertise regarding pollution control facility analysis when allegedly trying times for a taxing body to be a participant to these types of proceedings it specifically so states and there are several sections of the statute referenced in the briefs regarding border review hearings pull a property tax appeal board hearings department of revenue hearings in the department revenue specifically places of value on the pollution control facilities for taxation purposes but each of those instances the legislature either specifically mentions taxing bodies or mentions in the case of the department of revenue aggrieved parties or agree anyone aggrieved can participate  contrast that with the property tax code provisions at issue here that specifically mention applicants and holders only the legislature specifically was more narrow in its language with respect to the capitec certifications before the pollution control board and while the school district to throw out to be a party it does have other means to make its concerns known such as public comment process or filing and seeking leave to file an cost there's another item in which the people like to set the record straight and there is throughout the briefing the district has missed portrayed the financial consequences of pollution control facilities certifications which is evident from the applications for pollution control w r be paid thirty percent of the school district's taxes in two thousand and ten under the tax agreement that existed between the parties at the time what their papers and they did not mention here today is that in their submissions to the appellate court as well as in public records of which the court can take judicial notice they say i wish that for at for texture two thousand and eleven the first year in which the parties did not have an agreement the district successfully petitioned the board of review for an increase in the assessed value of the refinery but increase the value by more than four times that value that increased by more than four times already accounts for the deduction for the pollution control facilities that they have challenge here when the value increased by that amount the district then went on to increase its tax levy from nine million dollars for texture two thousand and ten under the agreement to more than thirty six million dollars in two thousand and eleven and so the perception that may exist that the school district is somehow being in that they will not be able to provide for the needs of their students is just inaccurate but finally mr witt mentioned a certain pollution control facility that he has challenged before the pollution control work on behalf of the district and that would be the low sulfur diesel unit which like to correct a misperception about that he said that the project produces diesel fuel which is not actually correct at the refinery can produce diesel fuel aside from a low sulfur diesel unit the low sulfur diesel unit remove from that particular product stream one of the complaints of the district has is that the pollution control board certified pollution control facilities that do not directly impact the community rather it reduces emissions end user such as vehicle emissions yet the twenty eight applications that they've challenge also include projects such as flaring and leak detection and repair systems that do exist at the refinery those are specifically designed to reduce air emissions and to keep hydrocarbons from reaching soil and groundwater so his chant there the district is challenging both types of pollution control facilities before the board but illinois treatment of this equipment a pollution control facilities is not unique to the w r b refinery the other refineries in the state also have these similar types of equipment certified as pollution control facilities in roy's treatment is not unique among our neighboring states several neighboring states also provide similar types of equipment pollution control facility status and either provide a tax a preferential tract tax treatment as illinois does or a complete tax exemption so to the extent that you would find looking to other states instructive that's what you'll find so w r b asked that this court affirmed the decision of the fourth district concerning jurisdiction and if it so inclined to move on to the does its decision on intervention we would ask that the court affirm the pollution control board's decision the value of the facility for the author also for diesel they poured down three hundred six million dollars they didn't indicate which of that was for flaring they didn't indicate which of that was for the production of short for diesel fuel because the number at all and four hundred six million dollars it's a two page application then they have a one to two page narrative report that's very technical in nature the agency the environmental protection agency to whom the board has delegated these matters under the board's rules not the statute it's rules the agency then does it goes through an analysis and the a d c does a one to two page report a technical review or to the attorney at the agency on those occasions when the technical reviewer says this equipment does not qualify as a pollution control facility on at least two occasions and it's  the record the attorney for the agency says never mind technical review or we're going to recommend certification even when the technical review or the engineer finds that doesn't qualify they  absolutely no application to the case of bar in landfill think the court recognizes this court recognized that the state of illinois established two agencies with two distinct rules pollution control board had its things to do the environmental protection agency had its wings to do the environmentally protection agency had the site landfills at the landfill site name was granted that's the end of it for the statute it's there it's the night that it goes to the pollution control board for agency that's got nothing to do with the appellate court jurisdiction here the attorney general said that there is nothing in request for the references rule forty one or section forty one of the environmental protection act and i think the to regardless of what they said whenever they said the court either has jurisdiction or it doesn't go to the core of the court either has jurisdiction of the court doesn't have jurisdiction and as well as what i would say with regard to that is only for those items that reduce pollution in the in the in the refining function only when it's on there in the state of wyoming to wyoming supreme court has looked at all knowing and heralded on the way for the fact that we have the primary purpose  for the pollution control board  t the pollution control board below the agency specifically now it's the school district had an interest in the outcome of the proceedings the pollution control board acknowledge that it can grant intervention or i'm sorry  or one for two of the board's rules so that you can grant intervention of the person may be materially prejudiced absent intervention or the person is so situated that the person may be of adversely affected by a final border or rob ninety intervention under landfill in the board specifically said that it had never before seen one source file thirty five applications for thirty five pollution control facilities  course of six months ever they said that the school district had presented a compelling case that he is singularly affected by the certification process they said that it is unlikely that any other school district is  similar potential loss of several billion dollars worth of real property from its property tax rules and that if we were a legislative body creating a certification procedure to no go which we submit they did when they had rules that our policy arguments for our intervention might prevail they also said that they had the powers of the neck with the court such as that sound policy arguments would prevail so there's no reason to send those back to have the board determine whether or not we should intervene they've already said we should be allowed to intervene they just stormed their hands and said landfilled in keeps us from being able to do so just yesterday in the courts the union response to justice come out just yesterday we had an argument in the fourth district appellate court on the allegation that the pollution control board violated the open meeting set in its consideration of these petitions to intervene and counsel you mentioned the issue of a paper he party adversely affected by that hearing so we brought by under off three sex three of the four sections under forty one we respectfully submit the request that you were reversed the decision of the fourth thirteen nine thirty