author: JUSTICE GREEN PRESIDING JUSTICE STEIGMANN,

text:
    GRIGOLEIT COMPANY, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Fourth District
    No. 4 — 92—0029
    Argued January 20, 1993.
    Opinion filed May 6, 1993.

      STEIGMANN, P.J., specially concurring.
    Thomas E. Little, of Booth & Little, and A. James Shafter (argued), James E. Peckert, Catherine L. Mannweiler, and Gregory Q. Hill, all of Kehart, Shafter, Hughes & Webber, P.C., both of Decatur, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Mark E. Wilson, Assistant Attorney General (argued), of Chicago, of counsel), for respondent Illinois Environmental Protection Agency.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Deborah Stonich, Special Assistant Attorney General (argued), of Chicago, of counsel), for respondent Pollution Control Board.
   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.

PRESIDING JUSTICE STEIGMANN,

specially concurring:

Although I fully agree with the majority opinion, I write specially because I fear that it does not fully convey the outrageous conduct of the Agency in this case. The record before us demonstrates that the Agency has arrogated to itself a role in which it— and it alone — can be trusted with the important task of protecting our environment. (See States Land Improvement Corp. v. Environmental Protection Agency (1992), 231 Ill. App. 3d 842, 849, 596 N.E.2d 1164, 1168 (Steigmann, J., specially concurring).) The Agency’s position in this case essentially is that not even the Board can be trusted when it comes to protecting the environment. In the Agency’s view, only it possesses that moral high ground, and normal legal rules and procedures be damned.

This case also suggests that the Agency views the Board as gutless and ineffective. Although I share the Agency’s view of the Board, I view the Board in that way because it tolerates unbelievably contumacious conduct from the Agency with nary a whimper. Indeed, as I observed at oral argument, I do not know what is more shocking: the Board’s spinelessness or the Agency’s lawlessness.

In my two decades’ experience in the criminal law, I have occasionally encountered an attitude among law enforcement officers similar to that displayed by the Agency in this case. In a criminal context, the out-of-control police officer muses with himself essentially as follows:

“I know that the defendant really is guilty and that his presence on the streets endangers society. Prosecutors are overworked and negligent, judges are confused and lazy (if not corrupt), and defense attorneys are just plain sleazy and will concoct lies in order to help their clients beat the rap. Thus, it’s morally O.K. for me to ‘tilt the scales slightly’ by how I handle this case [usually offering perjurious testimony regarding what defendant supposedly said or what supposedly was found on his person] because that is the only way I can ensure that ‘real justice’ will be done.”

I have set forth the above rationale in blunt, ugly terms because doing so best conveys how renegade cops think and why they are so dangerous. In this case, a renegade governmental agency — an agency empowered and entrusted by the General Assembly with the important task of protecting our environment — has run amok and, by its lawlessness, has demeaned the important task the State of Illinois has given it. Just as the renegade cop who commits perjury because of his distorted belief that that is the only way justice can be done perverts the criminal justice system and ensures precisely the opposite of what he hoped to achieve, so governmental agencies that view themselves above the law tarnish the good that they do, diminish public confidence, and deflect attention from their good works.

I have used some strong language in describing the Agency’s conduct, but the reader ought not have to rely upon my assessment of the record. Instead, the Agency’s conduct is best revealed by quoting what it has said to this court in its oral argument and appellate briefs.

At oral argument, the Agency’s lawyer was asked the following questions and gave the following responses:

“[Appellate Judge]: [I]s the relationship [between the Board and the Agency] essentially the same [as that between a court and prosecutor] with regard to the fact that the Agency is stuck with the rulings of the Board, just like prosecutors are stuck with the rulings of the court, whether the prosecutor or the Agency likes them or not?
[Agency Lawyer]: Your Honor, the Agency believes that it is required to abide by its statutes, and if the Board orders the Agency to do something which is not in compliance with the statute, then it [(apparently, the Board)] is exceeding its scope under its own provisions of the statute.
[Appellate Judge]: So the answer to that question is, ‘No?’
[Agency Lawyer]: The answer is: on occasion the Board exceeds its authority; and, yes, it is not akin to a prosecutor.
[Appellate Judge]: Within this system of law, counsel, who decides these matters? The individual members of the Agency, the Agency head, the Board, the Governor? Who decides this stuff? *** If you adjudicate matters before the Board pursuant to Illinois law, and they make a ruling that you don’t like, you can just simply say, as you do several times in your brief, ‘We strongly disagree and strongly adhere to our earlier views,’ and just kind of blow them off, is that it?
[Agency Lawyer]: Well, that’s why you have judicial review.
[Appellate Judge]: Pending judicial review.
[Agency Lawyer]: Pending judicial review?
[Appellate Judge]: Pending judicial review. The trial judge rules that the evidence is not admissible, and the prosecutor wants to appeal. Pending that, is that question still up for doubt, or what?
[Agency Lawyer]: Uh, I agree your Honor, that ... the Agency—
[Appellate Judge]: In fact, you never appealed anything here, did you?
[Agency Lawyer]: That’s correct. That’s correct.
[Appellate Judge]: So, you’re the prosecutor who says, T don’t like that ruling, and I am not going to abide by it, but we’re not going to appeal.’
[Agency Lawyer]: Well, that ... that’s true. They ... they elected not to appeal in this case.
[Appellate Judge]: Tell me why this isn’t just an example of, frankly, lawlessness by the Agency, counsel.
[Agency Lawyer]: Well your Honor, now, specifically, you are referring to the ... the four sanctions motions.
[Appellate Judge]: I am referring to pretty much everything the Agency has done and said in this case.
[Agency Lawyer]: The...
[Appellate Judge]: You can take your pick on the lawless aspects of Agency behavior.
[Agency Lawyer]: *** [Regarding the discovery dispute,] the Agency believed that certain information was privileged and, if I recall, frankly, it involved information in deposition and in introduction documents ...
[Appellate Judge]: What was that theory again — ‘predecisional deliberative privilege’ — is that right?
[Agency Lawyer]: Uh, I believe that is what they call it.
[Appellate Judge]: Does that [theory] exist anywhere outside of the front door of the Agency? Weinstein on Evidence, Graham on Evidence, any cases, anywhere?
[Agency Lawyer]: I ... don’t ... can’t cite you anything, your Honor. ***
[Appellate Judge]: I could understand your argument if it had just happened once, if the Board had just sent the case back to you once. But they had to send it back two times, and maybe even a third time. How can you justify that?
[Agency Lawyer]: I would justify it the way the dissent justified it, your Honor, the two Board members who dissented.
[Appellate Judge]: But the dissent is not the opinion. Don’t you have to abide by the decision of Board. When the Board says ‘Do this,’ you can’t just thumb your nose at the Board and do something else.
[Agency Lawyer]: The Agency, and the way the Agency is set up, is to review these permit applications and to issue permits based on what they know about the source.
[Appellate Judge]: Counsel, what happens if there is a two-to-one decision out of this court ***? What happens when we issue an order from this court [and] our mandate to the Agency is: ‘Issue the permit.’ Will you say ‘No, hey, it was two to one; and it was a brilliant dissent agreeing with our position. We are not going to do it.’ Any problems with that?
[Agency Lawyer]: Yes, I have a problem with that.
[Appellate Judge]: What is the difference between that case and what happened here?
[Agency Lawyer]: The difference is that this is a court of law ordering ... issuing an order that must be followed; [but] those two agencies [(apparently, the Board and the Agency)] are part and parcel of the same administrative scheme.
[Appellate Judge]: You mean the Board’s orders don’t have to be followed by the Agency?
[Agency Lawyer]: The Board has to, itself, respect the law and the final order ...
[Appellate Judge]: [Do] the Board’s orders have to be followed by the Agency?
[Agency Lawyer]: Uh, yes, and it can be appealed. A party can appeal a final Board order and get review.
[Appellate Judge]: Well, then go back to [the earlier] question. You’re ordered on multiple occasions, to *** issue a permit, and you refused to do so. Because of the dissent? That was the best you could do in response to that question? Do you have some other excuse that you want to tell me about?
[Agency Lawyer]: The dissent shows that this was a reasonable dispute among the parties.
[Appellate Judge]: It was until the Board resolved it.
[Agency Lawyer]: *** [T]he majority of the Board was letting Grigoleit supplement the record as they went along, but [at the same time] was holding the Agency to its initial prehearing record. That was the problem. See, the Agency gets stuck in these situations....
[Agency Lawyer]: As I understand it, your Honor, the way the Agency is set up, is that the permitting people are compelled *** to look at the situation at the source, and, *** with what we know at this time, [to decide whether to] give them a permit with these sorts of conditions.
[Appellate Judge]: But [the] second time the case went to the Board, the Board disagreed. The Board said, ‘You have exceeded the scope of our remand. Don’t ask for any more information. Just go ahead with what you have ***.’ For a second time, you said, ‘No.’ You went ahead and exceeded the requirements of the Board. [Isn’t the Board] entitled to decide that? What gives you the right to say, ‘Board, you are wrong. We are not going to appeal; we are just going to do what we think we ought to do.’
[Agency Lawyer]: Well, I’m not so sure that the Agency could have appealed because there was ... because there wasn’t a final order.
[Appellate Judge]: Why wasn’t that final? It said ‘Issue the permit. Forget about adding all this other stuff on.’ But you didn’t issue the permit without forgetting about adding this [other] stuff. Why didn't you appeal?
[Agency Lawyer]: The reason is that the Agency cannot appeal an order that says ‘Issue a permit.’ Nor could anyone else because those orders refer the Agency to section 39(a) of the statute [(Ill. Rev. Stat. 1991, ch. Ill%, par. 1039(a))]. And that statute says, ‘The Agency in deciding whether to issue a permit must consider conditions,’ and conditions require discretion.
[Appellate Judge]: So, then, the order of the Board is no different from an order of this court. If we issue that order and refer to section 39 then, by God, those guys [at the Agency] — guardians of everything that is safe and pure in our environment — have to make sure our order, our mandate, meets with their approval before they’re going to comply with it. Isn’t that right?
[Agency Lawyer]: No, because this court can remand cases ... it can issue an order of ... it can issue an order remanding a case.
[Appellate Judge]: Our orders have merit or have power and authority, and the orders of the Board don’t?
[Agency Lawyer]: No, if this court orders a remand to go do some further act, that, by law, that is an appealable order.
[Appellate Judge]: How about, ‘We reverse the Agency’s denial of Grigoleit’s application for an operating permit, and order the Agency to issue it.’ How’s that sound?
[Agency Lawyer]: You can do that, yes.
[Appellate Judge]: And would the Agency do it?
[Agency Lawyer]: Yes, it most certainly would.
[Appellate Judge]: But not for the Board’s order, saying the same thing. I’m quoting from the Board’s order, by the way.
[Agency Lawyer]: I recognize that your Honor ***.
[Appellate Judge]: I want you to explain the difference between the orders of the Board and their authority, and the orders of this court and our authority. I always thought they were the same.
[Agency Lawyer]: They are not exactly the same, because the Board’s orders are only final if they are final under the administrative review law.
[Appellate Judge]: You mean, ‘We only have to follow them if they are final.’ If they are not final, you don’t have to follow them?
[Agency Lawyer]: Well—
[Appellate Judge]: You keep promising that you are going to abide by the mandates of this court, but your track record of following mandates of the Board isn’t too good. I want to know, how do you draw that distinction? Why are their orders, with the same effect as ours, not being followed?
[Agency Lawyer]: Because the Board ... I sense from your previous questions [that] you, at this point you are not going to accept this response. But ... the reason the Agency did what it did is because it believes it has no statutory authority; and the crux, the difference, between ... orders from your court and orders from the Board is that orders from the Board come from the same statute and they are part and parcel of the same regulatory scheme.
[Appellate Judge]: You don’t have to obey them?
[Agency Lawyer]: We have ... [The Agency] should obey the orders unless they exceed the scope of the Board’s authority. And once....
[Appellate Judge]: *** Your position then is, as a matter of law, the Board does not have authority to order you to issue a permit without [your] making a further investigation as to the situation at that time.
[Agency Lawyer]: The answer is yes.
[Appellate Judge]: [In other words,] [t]he Board is without jurisdiction, so to speak, without authority, *** [to tell] you to issue a permit without making a further investigation^ Such an order] is void as beyond [the Board’s] power.
[Agency Lawyer]: Your Honor, the Agency has never issued, as far as I know ...
[Appellate Judge]: Did you answer his question, counsel?
[Agency Lawyer]: The answer is yes. The answer is yes to that question, your Honor, as far as I know.
[Appellate Judge]: What authority do you have for that, because I didn’t understand where you were coming from until now.
[Agency Lawyer]: The authority is section 39(a) of the statute — the only statutory grant in all of Illinois law, as far as I know, that permits the Agency to issue a permit — and that is what the Board ordered them to do: issue a permit.
[Appellate Judge]: We are talking about the power of the Board, not the power of the Agency.
[Agency Lawyer]: Right. The power of the Agency to do what the Board ordered the Agency to do comes from section 39(a); and that section says, ‘In granting a permit, it must consider conditions.’ And considering conditions requires *** the agency to use technical staff....
[Appellate Judge]: What you say is that the Board cannot order you to issue a permit without conditions, without exercising your discretion regarding conditions.
[Agency Lawyer]: Precisely.
[Appellate Judge]: Wouldn’t that be the same as far as we are concerned under your theory?
[Appellate Judge]: The statute makes no exceptions. Why isn’t it the same thing for this court?
[Agency Lawyer]: Your Honor, if ... if you ordered ... the Board ... [or] ordered the remand saying ‘Agency go issue without ... issue a permit without conditions,’ then we believe that ... respectfully, I have to say that the Agency would take the position that you misapplied the statute and would seek a further appeal. But, I mean, that is a legal issue; and we say that that is an incorrect application of the statute.
[Appellate Judge]: The supreme court takes the case; they agree with us; now what?
[Agency Lawyer]: Now the law has changed, and we would have to follow it. I mean, our position would be necessarily void.
[Appellate Judge]: The supreme court doesn’t take the case; are you going to accept our mandate?
[Agency Lawyer]: Yes.
[Appellate Judge]: But the statute hasn’t changed. The statute makes no distinction between orders of this court in administrative review and orders of the Board, does it?
[Agency Lawyer]: But, I mean, your opinion would be precedential value and would amend [sic] the statute.
[Appellate Judge]: The Board’s orders are without...
[Agency Lawyer]: *** That’s right, without precedential effect. They are a part of the same administrative scheme.
[Appellate Judge]: Precedent has to do with following it for some other case; it has nothing to do with the authority in any particular case, [does] it?
[Appellate Judge]: Counsel, I must say, for an attorney on behalf of a litigant who is arguing that the Board properly imposed the minimal sanctions it did, the posture you are taking before this court is hardly one of repentance for the errors of the ways of the Agency. It sounds to me like it is more, ‘In your face.’
[Agency Lawyer]: Well, I don’t intend it like that your Honor. *** I’m trying to explain why the Agency did what it did.
[Appellate Judge]: [In other words, it’s] the higher moral ground, [because] the Board *** can’t be trusted to understand what is really at stake here.
[Agency Lawyer]: There is an ongoing dispute between the Agency and the Board on the scope of each agency’s power under their common statute.
[Appellate Judge]: Under your theory, there can’t be an appeal if you refuse to issue a permit. Is that right? If the Board says to you, ‘You were wrong, issue the permit,’ and you refuse to do it, there can be no appeal because you have not exercised your discretion regarding conditions?
[Agency Lawyer]: Oh, that is absolutely right; because there is no ... the only ... under section 41 of the Act [(Ill. Rev. Stat. 1991, ch. HV-k, par. 1041)], the only final Board order ... the only final order is from the Board.
[Appellate Judge]: So all you have to do to prevent appeals is, when the Board tells you to issue a permit, just say ‘No.’ And then there can be no appeal because you have not exercised your discretion regarding conditions.
[Agency Lawyer]: *** Only the Board can issue a final and appealable order under section 41 of the Act. And ... you know ... the Agency does not mean to completely disregard the Board orders and all....
[Appellate Judge]: Just those they disagree with.
[Agency Lawyer]: Only when .... The Agency feels that it is required by the statute to protect the public interest, to abide ... do in good faith what its employees in its different departments are required to do.
[Appellate Judge]: Maybe it’s time, counsel, for a definitive statement putting the Agency in its place in [this statutory] scheme, and telling it that it follows the directions of the Board because it is the Board. Do you suppose [it] is about time for that?
[Agency Lawyer]: Well, your Honor it is up to you; and I would say that this is not the kind of case where some strong sanction is necessary, because there was no bad faith on the part of the Agency here. There was only an attempt to follow the statute.” (Emphasis in original.)

Eight days after the above oral argument, this court received a truly remarkable document, literally unprecedented as far as anyone connected with this court can recall. The document was entitled, “The Illinois Environmental Protection Agency’s Motion To Clarify Statements Made At Oral Argument.” In that motion, the Agency stated the following:

“Because of the peculiar overlap of the issues discussed at oral argument, the Agency believes that the Court may have a mistaken impression of the Agency’s and the Board’s positions in this case. As discussed at oral argument, these issues present significant public policy concerns that the Agency and the Board grapple with in many cases. The Agency believes, therefore, that the Court should consider the points presented in this motion before drafting its decision.
□First, the Agency does not believe that it may disobey Board orders. The record in this case reflects no intentional disregard of any Board order, and the Board has never found that the Agency intentionally disrespected one of its orders in this case. The good-faith dispute between the Agency and the Board does not relate to whether the Agency must comply with Board orders, for clearly it must; the dispute relates to the scope of the Agency’s obligations in following the Board’s orders.
[ ]In this case, for example, the Agency believed that it was following the Board’s order when it issued the permit with conditions. [Because at this point in its motion, the Agency makes factual assertions not in the record, we omit those assertions.]
[ ]If any statements by counsel suggested any other legal position, counsel misspoke. The Agency believes that the public interest requires the Court to consider these points before issuing its decision.” (Emphasis in original.)

Grigoleit objected to the Agency’s motion, and this court has today denied it. In support of its objections, Grigoleit wrote the following:

“The AGENCY’S position is clearly described in the AGENCY’S Brief, and the position was confirmed at oral argument in this cause. Now, apparently experiencing discomfort as a result of this Court’s inquiries during oral argument, the AGENCY wishes to amend its argument. ***
ARGUMENT
The AGENCY seeks to alter its position after two years (at a minimum) of refusing to comply with repeated orders of the BOARD. The AGENCY apparently had no uncertainty in its position that the AGENCY alone determines when, and if, a permit is to be granted when the AGENCY appeared before the BOARD, or when the AGENCY filed its Brief in this Court, or even when the AGENCY argued the matter on January 20, 1993. After this Court inquired as to the basis of the AGENCY’S position, the AGENCY now has qualms about its arguments.
The spurious attempt by the AGENCY to modify the position which it has taken throughout this case is improper. The AGENCY’S pleading, entitled Motion to Clarify, is not only misleading, it is also contrary to the arguments made by the AGENCY in its Brief, as well as contrary to the position taken by the AGENCY at oral argument herein. The Motion is not truly one seeking clarification, but rather, seeks to add confusion.”

The accuracy of Grigoleit’s objection is best shown by the following excerpts from the brief the Agency submitted to this court:

“The December 6th order directed the Agency to issue Grigoleit a permit. [Citation to Record.] Settled law vests broad discretion in the Agency to impose appropriate conditions on permits that it issues. ‘In granting permits the Agency may impose such conditions as may be necessary to accomplish the purposes of this Act, and as are not inconsistent with the regulations promulgated by the Board.’ IEPA §39(a), 111. Rev. Stat. ch. lll1^, par. 1039(a) (1991). See also id. (the Agency has a ‘duty’ to issue a permit only upon ‘proof by the applicant that the facility ... will not cause a violation of this Act or of regulations hereunder’). Under these provisions, the Agency had an obligation to use its discretion to impose appropriate conditions on Grigoleit’s permit.
*** Because the Agency has such discretion to impose conditions on permits, the December 6th order — which merely directed the Agency to ‘issue’ a permit — was not final.
Browning-Ferris and Jurcak arguably differ from this case because those cases involved no remand from the Board. They should not control this case, the argument goes, because the December 6th order effectively ordered the Agency to issue the permit without exercising any discretion regarding conditions. This argument, however, conflicts with the [Act] itself. With regard to conditions, the [Act] does not distinguish between initial permit reviews and remands from the Board that order the Agency to issue a permit. To the contrary, the [Act] establishes only one mechanism for granting permits: ‘[i]n granting permits the Agency may impose such conditions as may be necessary to accomplish the purposes of this Act, and as are not inconsistent with the regulations promulgated by the Board.’ IEPA §39(a), Ill. Rev. Stat. ch. HV-k, par. 1039(a) (1991) (emphasis added). The General Assembly did not give the Agency authority to issue a permit without considering conditions.
Any other construction of the [Act] risks real environmental danger.”

The General Assembly has charged the Agency with the important task of protecting our environment, and the Agency’s conduct in this case is unworthy of the General Assembly’s confidence. Vigorously advocating environmental concerns is not mutually exclusive with abiding by the law, and the conduct of the Agency in this case serves to denigrate — not further — its ability to protect our environment.


source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
    B M S CATASTROPHE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Pamela Groene, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4 — 91—0613WC
    Opinion filed April 22, 1993.
    Rehearing denied June 21, 1993.

      Richard R. Harden, of Thomas, Mamer & Haughey, of Champaign, for appellant.
    John E Martin, of Dukes, Martin, Helm & Ryan, Ltd., of Danville, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Claimant, Pamela Groene, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.) for injuries sustained in a work-related accident on February 27, 1987, while employed by BMS Catastrophe, employer. Following a hearing on her application, the arbitrator held that claimant’s injuries arose out of and in the course of her employment and that she was permanently and totally disabled as a result of her accident, thereby entitling her to compensation for life and to medical expenses of $2,070.93. On appeal, the Industrial Commission (Commission) affirmed the arbitrator’s decision, and the circuit court of Vermilion County confirmed the Commission’s decision. Employer appeals arguing the Commission’s decision is against the manifest weight of the evidence. We affirm.

At the hearing before the arbitrator, claimant testified she had worked as a supervisor for employer since 1983. In her capacity as supervisor, she was required to travel around the country and oversee cleanup crews engaged in fire and water restoration. Prior to February 27, 1987, claimant always had received excellent evaluations on her work.

On February 27, 1987, claimant was supervising the cleanup of a fire at a plant in Danville, Illinois. In the course of the day, claimant was walking on a catwalk upon which some boards were lying. Claimant tripped over the boards and struck her forehead on a steel beam. This caused her to fall down backward where she again hit her head, as well as her back, on some pipes. Immediately after, claimant was dizzy and nauseated. She asked her supervisor several times to let her get medical care, but the supervisor encouraged her to continue working. Claimant finished the job, which lasted almost a month. During this month, claimant had increasing problems with her head, neck, and other parts of her body. She suffered from dizziness and on occasion fell down. She also believed she was not making very good decisions. Once the job in Danville ended, claimant informed employer she needed to go home. Employer instead sent her to a new jobsite in Ohio. Claimant had to stop working, however, and returned home to seek medical treatment. Claimant last worked for employer on March 22, 1987, and has not been able to work at all since that time.

When claimant arrived home, she sought treatment at Lincoln General Hospital. She treated with several doctors, and eventually came under the care of Dr. James Bobenhouse. After conducting numerous tests, Dr. Bobenhouse prescribed physical therapy and medication, neither of which helped her condition. Claimant testified she stopped seeing Dr. Bobenhouse in 1989 because she could not afford to pay him. She also had to stop seeing Dr. Egger, a psychiatrist who had been treating her, for the same reason. Claimant had received workers’ compensation benefits from employer until December 1988, at which time both her benefits and medical expenses were discontinued. Claimant further testified that, at present, she has blackouts, constant headaches, and pain in her neck and back which causes her legs and arms to go numb. She explained she does have a TENS unit, but does not use it because she cannot afford to buy the “sticky pads” the unit requires. Claimant admitted on cross-examination that during the month after her accident, she worked 9 to 9V2 hours per day. She also admitted she had suffered from migraine headaches before her accident, but the headaches she now suffers from are different. The post-accident headaches also cause her to be sensitive to light and loud noises.

Dr. Bobenhouse, who testified by way of deposition, first saw the claimant on April 20, 1987, as a referral from an orthopedic surgeon. Claimant complained of ongoing problems with headaches, dizziness, forgetfulness, and neck pain, as well as numbness and tingling in her hands, since the accident in February 1987. Examination of claimant revealed tenderness at the base of the skull in the area of the greater occipital nerve. Dr. Bobenhouse diagnosed claimant as suffering from post-traumatic headaches with high cervical or upper neck muscle strain. He also believed claimant might be experiencing symptoms of thoracic outlet syndrome, a disorder often occurring after a neck injury in which muscle spasms develop in the neck and shoulders causing the nerves to become pinched as they travel through the shoulders into the arms resulting in tingling in the fingertips. Claimant was started on thoracic outlet syndrome exercises and physical therapy on her neck. Dr. Bobenhouse opined claimant’s condition of ill-being was caused by her fall on February 27,1987.

Dr. Bobenhouse next saw claimant in May 1987. At this visit, claimant complained of persistent headaches, weakness, shakiness, fatigue, memory loss, severe light sensitivity, intermittent numbness in her arms and legs, and a blackout during a severe headache. Claimant appeared to be in greater pain and more depressed than at her first visit. Dr. Bobenhouse believed claimant still was suffering from strained muscles in the back of the neck. He prescribed further pain medications and a TENS unit. He also noted claimant appeared to be developing an anxiety disorder.

At claimant’s visit in July 1987, claimant reported increasing difficulties, including tingling and burning numbness of the hands and feet. She also informed him that just prior to her examination, she had been seen in a hospital emergency room for hyperventilation syndrome. Dr. Bobenhouse felt claimant’s mental condition was deteriorating and her depression was increasing. Claimant appeared to be becoming more and more anxious and focused on her physical complaints.

Claimant next saw Dr. Bobenhouse in August. This time claimant complained of worsening pain in her neck, shoulders, arms, back and legs. She also reported having difficulty sleeping and becoming more forgetful. Examination revealed tenderness in the paraspinal muscles of her neck, mid and lower back, as well as tenderness in the shoulders and in the posterior lateral neck areas. Claimant also exhibited muscle spasms in these areas. Dr. Bobenhouse explained the muscle spasms suggested an underlying injury. He also felt claimant had some element of fíbrositis. Further medications and physical therapy were prescribed.

By her September visit, claimant’s neck and shoulder pain had become severe, her arms and legs felt weaker and her memory was worse. Claimant informed Dr. Bobenhouse she believed the physical therapy was not helpful, and, in fact, was contributing to her problems. Claimant appeared very anxious and tense. She also exhibited continued muscle spasms in her neck and shoulders and severe tenderness in the greater occipital nerve areas at the back of the head, as well as in her lower back. Dr. Bobenhouse felt claimant had considerable depression and appeared to be quite preoccupied with her health. He injected her greater occipital nerves with numbing medications and arranged for biofeedback therapy for her neck pain.

By her visit in February 1988, claimant’s condition still had not improved. In addition, she had developed a new complaint, a popping sensation in her neck and back and a “catch” in her lower back. Dr. Bobenhouse diagnosed chronic neck and back pain syndrome related to muscle spasm and strain, and possibly superimposed fíbrositis. He referred claimant to a chiropractor and suggested pain clinic evaluation.

After examining claimant in December 1988, Dr. Bobenhouse diagnosed claimant’s continued blackouts as being due to vasovagal syncope, claimant’s memory problems as being related to depression rather than organic disease, claimant’s muscle spasms as being due to severe neck and shoulder pains and low back pain, the tingling in her arms as being due to thoracic outlet syndrome, and the problems with her lower extremities as stemming from a mild compression of the sciatic nerves. He was not certain any definite forms of therapy would help claimant, as he believed her depression played a major role in her poor level of functioning. He suggested she have psychiatric evaluation.

Dr. Bobenhouse next saw claimant in January 1989. At that time, claimant had diffuse pains as well as continuing headaches and blackouts. An EEG revealed a few borderline areas of irritability of the brain in the central and temporal areas. Dr. Bobenhouse still believed the psychiatric portion of claimant’s illness was the most incapacitating.

Dr. Bobenhouse’s last visit with claimant occurred on October 26, 1989. Claimant continued to complain of headaches and neck and back pain with aching in the arms and legs. The physical examination revealed decreased range of motion in the neck in all directions, severe pain with neck movement, and muscle spasms in the neck, shoulder areas and upper mid-back region. Dr. Bobenhouse noted claimant appeared to be very depressed and frustrated with her continuing pains. He opined claimant was not employable because of her headaches, dizziness, blackout spells and depression. Dr. Bobenhouse further testified claimant was suffering from somatization disorder which impaired her ability to function beyond her physical injuries. The continuing presence of muscle spasms and of tightness in the neck and shoulder muscles in particular indicated, however, a prolonged pain syndrome related to cervical strain. Such spasms made it more likely that claimant’s complaints were genuine. Dr. Bobenhouse concluded claimant’s accident of February 27, 1987, was the precipitating event which led to her neck injury and subsequent depression and anxiety ultimately evolving into the somatization disorder.

Dr. Michael Egger testified by deposition that claimant came to his office in the spring of 1989 for a psychiatric examination. Claimant related the history of her accident of February 27, 1987, and of her symptoms and treatment. She also informed him of her lack of concentration, moodiness, restlessness, irritability, diffuse pain through much of her body, blackouts, memory difficulty, headaches and insomnia. After running a MRI to rule out gross structural injury to the brain, Dr. Egger opined claimant suffered from somatization disorder, a chronic condition in which a person has pain and a preoccupation with pain and bodily symptoms far in excess of any known organic pathology. Dr. Egger did believe claimant truly was in pain based upon her reports of pain, her appearance of considerable discomfort, her difficulty concentrating and her restricted movement. He also believed, however, claimant’s preoccupation with the multitude of her aches and pains reached delusional proportions and clearly was incapacitating her. He found claimant to be totally nonfunctional to the extent she should not even drive a car or use any equipment requiring any degree of concentration. Dr. Egger did not believe claimant was malingering. He stated that “[t]his kind of worsening of symptoms and more and more preoccupation with feelings and a narrower and narrower view of life often characterizes chronic pain syndrome when it’s not treated.” Dr. Egger further opined claimant’s somatization disorder was causally related to her work accident of February 27, 1987. He further stated he did not believe claimant’s mental condition was caused by something other than her work injury because she exhibited no pattern of similar symptoms in the past and because there was no other plausible source of such stress.

Numerous other medical and psychological reports admitted into evidence confirmed claimant’s history of injury and treatment. No reports, however, established an organic basis for claimant’s physical complaints.

On appeal, employer contends the Commission’s determination that claimant’s somatization disorder was causally connected to her work-related accident of February 27, 1987, is against the manifest weight of the evidence. We disagree.

It is well established that it is the province of the Commission to determine the credibility of witnesses, to resolve conflicts in the medical evidence and to determine causal connection between a claimant’s condition of ill-being and his or her employment. (Caterpillar, Inc. v. Industrial Comm’n (1992), 228 Ill. App. 3d 288, 291, 591 N.E.2d 894, 896; Amoco Oil Co. v. Industrial Comm’n (1991), 218 Ill. App. 3d 737, 747, 578 N.E.2d 1043, 1050.) It is just as well established that a psychological injury is compensable if it results from an accidental injury. (Amoco Oil Co., 218 Ill. App. 3d at 747, 578 N.E.2d at 1050; May v. Industrial Comm’n (1990), 195 Ill. App. 3d 468, 487, 552 N.E.2d 258, 270. See also City of Streator v. Industrial Comm’n (1982), 92 Ill. 2d 353, 442 N.E.2d 497; Veritone Co. v. Industrial Comm’n (1980), 81 Ill. 2d 97, 405 N.E.2d 758.) If the determination of causal connection is not against the manifest weight of the evidence, the decision of the Commission will not be overturned on appeal. Amoco Oil Co., 218 Ill. App. 3d at 747, 578 N.E.2d at 1050.

A causal connection between a condition of ill-being and a work-related accident can be established by showing a chain of events wherein an employee has a history of prior good health, and, following a work-related accident, the employee is unable to carry out his duties because of a physical or mental condition. (See Pulliam Masonry v. Industrial Comm’n (1979), 77 Ill. 2d 469, 471, 397 N.E.2d 834, 835; Darling v. Industrial Comm’n (1988), 176 Ill. App. 3d 186, 193, 530 N.E.2d 1135, 1140.) Here, the evidence revealed that prior to her work-related accident of February 27, 1987, claimant had good health and was an excellent employee. At the time of her accident, claimant suffered physical injuries to her neck, head and back. Shortly after her accident, claimant also began to develop other symptoms, including depression and anxiety which Drs. Bobenhouse and Egger testified were a result of her ongoing pain stemming from the accident. Both Drs. Bobenhouse and Egger testified claimant’s mental condition was causally connected to her employment. Dr. Egger specifically ruled out other stress factors in her life or claimant’s own innate personality. Any evidence to the contrary was resolved in claimant’s favor. Given such circumstances, we cannot say the decision of the Commission that claimant’s mental condition was causally connected to her accident of February 27,1987, is against the manifest weight of the evidence.

Employer contends, however, that claimant also failed to show she was permanently and totally disabled. The determination of the extent of an employee’s disability too is a question of fact for the Commission to resolve, and, on review, its decision will not be overturned unless against the manifest weight of the evidence. (Amoco. Oil Co., 218 Ill. App. 3d at 748, 578 N.E.2d at 1051.) Claimant’s doctors testified she is unable to function. Other medical reports confirm that claimant is unable to sustain employment in her current condition and that somatization disorder, in general, responds poorly to treatment. The Commission quite reasonably could infer claimant would not be able to return to work given her mental and physical condition. We therefore conclude the Commission’s determination that claimant was permanently and totally disabled is not against the manifest weight of the evidence.

For the aforementioned reasons, we affirm the judgment of the circuit court of Vermilion County confirming the decision of the Industrial Commission.

Affirmed.

McCULLOUGH, P.J., and RAKOWSKI, WOODWARD and STOUDER, JJ., concur.


author: JUSTICE BARRY

text:
    ILLINOIS POWER COMPANY, Petitioner-Appellant, v. ILLINOIS COMMERCE COMMISSION, Respondent-Appellee.
    Third District
    No. 3 — 92—0284
    Opinion filed April 22, 1993.

      Christine D. Wright, of Sehiff, Hardin & Waite, of Chicago (Owen E. MacBride, of counsel), for petitioner.
    Roland W. Burris, Attorney General, of Springfield (James E. Weging, Special Assistant Attorney General, of Chicago, of counsel), for respondent.
   JUSTICE BARRY

delivered the opinion of the court:

This proceeding was initiated on May 25, 1988, when the Illinois Commerce Commission (Commission) issued an “Order Commencing Reconciliation Proceedings” pursuant to section 9 — 220 of the Public Utilities Act (Ill. Rev. Stat. 1987, ch. lll2/3, par. 9 — 220 (now 220 ILCS 5/9 — 220 (West 1992) with 1991 amendments not involved herein)). Illinois Power Company (Illinois Power) was directed to reconcile the costs recoverable through its purchased gas adjustment clause (PGA) and fuel adjustment clause (FAC) and the revenues billed under PGA and FAC charges during the 12 months ended December 31, 1987. The Commission also directed Illinois Power to demonstrate that its fuel, power and gas supplies purchased during the reconciliation period were prudently purchased.

After receiving several volumes of evidence, the Commission ruled that certain nuclear fuel decisions were imprudent and led to unnecessary carrying charges of $29,252,437, thereby disallowing those costs. Additional rulings by the Commission concerning the reconciliation of the costs of natural gas and of electric fuel other than nuclear fuel are not at issue on appeal.

Illinois Power originally planned to construct a two-unit nuclear power plant at Clinton, Illinois, at a total cost of $429,438,000 with Unit 1 to be in commercial operation by June of 1980 and Unit 2 to be operational in June of 1982. After the Three Mile Island nuclear plant accident in 1979, nuclear power plant construction came under increasingly stringent requirements. Unit 2 was subsequently can-celled. Numerous construction delays resulted in Unit 1 beginning commercial operations on April 24, 1987, at a final cost of $4,224,600,000, nearly 10 times the original cost forecast.

Some understanding of the nuclear fuel cycle is necessary before reviewing the fuel procurement actions of Illinois Power. As described in the record, the nuclear fuel cycle involves four steps: uranium ore, conversion services, enrichment services, and fabrication services. The first is the production of natural uranium in the form of uranium concentrates produced by a mining and milling process. The second step is the conversion process by which the solid uranium concentrates are converted into a gas (UF6) for the enrichment stage. Enrichment results in the separation and concentration of the fissionable isotope U235 of natural uranium from the nonfissionable isotope U238. Enriched uranium is then converted back to a solid and, at the fabrication facility, is converted into U02 powder, which is first processed into pellets and then loaded into metal rods that are bound together in fuel bundles. The fuel bundles are plant-specific and cannot be sold for use in other facilities. The bundles are then ready to be loaded in the reactor, where they produce energy for at least three years. The average length of time to process uranium into fuel bundles is 12 to 18 months, and under Illinois Power’s contracts, the uranium concentrates were required to be at the conversion facility 12 months before the fuel bundles would be ready for loading into the reactor.

Robert E. Alsop, the fuel buyer for Illinois Power responsible for purchasing nuclear fuel and related services and for administration of fuel contracts, testified as to the company’s nuclear fuel procurement chronology. After the development of fuel specifications, bids were received from five competing suppliers. On December 28, 1972, a contract was signed with General Electric (GE) for fuel fabrication services for the initial core and for reload bundles as well. The schedules in the fabrication contract were based upon a 1980 start-up date for Unit 1 and a 1982 date for Unit 2. The contract also provided for some flexibility in delivery schedules, as follows: (1) at any time more than 30 months before the scheduled delivery date, delivery could be deferred indefinitely; (2) from 30 months to 18 months before scheduled delivery, the delivery date could be deferred for up to three months; (3) from 14 months to 18 months before the scheduled delivery date, delivery could be deferred for up to an additional three months; and (4) within 14 months of the scheduled delivery date, no further delay was allowed.

The GE contract also required that two-thirds of the enriched uranium be delivered to GE five months before the shipment date for the fabricated assemblies, and the remaining one-third be delivered to GE four months before the shipment date. The original shipment date was August 31, 1979, for Unit 1. As early as November 1973, Illinois Power notified GE that the start-up date of Unit 2 had been delayed one year.

In May of 1974, Illinois Power entered into two long-term fixed commitment uranium enrichment contracts with the only vendor available to utilities within the United States, the Atomic Energy Commission (AEG), later succeeded by the United States Department of Energy (DOE). Each contract required a 10-year fixed commitment for enrichment services with no flexibility to change dates or amounts.

In April of 1975, Illinois Power entered into a contract with Kerr-McGee Nuclear Corporation (Kerr-McGee) for 2,720,000 pounds of uranium and for conversion to 1,041,020 kilograms of UF6. The contract provided for fixed delivery dates with the uranium to be delivered in 1976, 1977, and 1978, and the UF6 to be delivered in 1978 and 1979.

In November of 1974, Unit 1 start-up date was deferred to June 1981, and Unit 2 start-up was deferred to 1984. Additional deferments of the starting dates occurred, as follows:

On December 14,1976, Unit 1 was deferred to December 1981.
On February 11,1977, Unit 2 was deferred to 1988.
On April 13,1978, Unit 1 was deferred to December 1982.
On December 5,1980, Unit 1 was deferred to August 1983.

As these delays occurred, Illinois Power negotiated contractual adjustments to accommodate the postponements of start-up dates. In 1979, the DOE converted the two long-term fixed commitment enrichment contracts to adjustable contracts so that the schedule ran from 1982 to 1986 for Unit 1 and from 1987 to 1991 for Unit 2, thus corresponding with start-up dates of 1982 and 1988, respectively.

By the time the last of these delays was announced (December 5, 1980), Kerr-McGee had already delivered 374,800 kgs. of UF6 to Illinois Power. In April of 1981, Illinois Power made the final deferment allowable under the fabrication contract with GE, changing the shipment date to October 1982 in preparation for a January 1983 fuel load date in advance of the August 1983 date for commercial operation. On October 31, 1981, the 374,800 kgs. of UF6 were sent to DOE for enrichment. GE required the enriched material by May of 1982, and DOE required 180 days’ advance notice before shipment to GE.

Thus the fuel cycle was underway when the first of 10 stop work orders were issued by Illinois Power in January of 1982. As a result, in April of 1982 commercial operation of Unit 1 was deferred to August of 1984, and a year later, the start-up date was deferred to November 1986. In May of 1982, enrichment was completed by DOE, and the enriched UF6 was sent to GE. Illinois Power then entered into a storage agreement with GE for the initial core fuel bundles, the fabrication of which was completed by October of 1982. The bundles were then stored.

During' October and December of 1982, Illinois Power sold to other public utilities the 1984 enrichment services for which it had contracted. During 1984, Illinois Power was able to sell excess enrichment services for 1985 and 1986. After Unit 2 was cancelled in 1983, Illinois Power cancelled the portion of the GE fuel fabrication contract that serviced Unit 2.

In a separate proceeding, the Commission conducted its construction audit and concluded that there was a total of $712,248,000 in unreasonable construction costs resulting from 18 months of delay associated with the 1982 stop work actions and from a three-month post-fuel load delay. The Commission’s determination of unreasonably incurred construction costs was affirmed by this court in Illinois Power Co. v. Illinois Commerce Comm’n (1991), 208 Ill. App. 3d 779, while other portions of the Commission’s order were reversed. Our judgment in that case was subsequently vacated by the Illinois Supreme Court and the cause remanded to this court for further proceedings consistent with Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1991), 146 Ill. 2d 175. (144 Ill. 2d 633 (March 1992).) Upon remand, the parties agreed to a settlement of pending issues, and the appeal was vacated on December 12, 1992.

In the fuel cost reconciliation proceeding, the Commission received extensive evidence from Illinois Power officials, from an expert witness testifying on behalf of Illinois Power, and from Dan Jenkins, a staff accountant with the Commission. The Commission’s 35-page order summarized the evidence received, analyzed Illinois Power’s nuclear fuel costs, and concluded that Illinois Power acted imprudently in incurring $29,252,436 of nuclear fuel carrying charges prior to commercial operation of the Clinton power plant.

The Commission adopted the following definition of “prudence”:

“Prudence is that standard of care which a reasonable person would be expected to exercise under the same circumstances encountered by utility management at the time decisions had to be made. In determining whether a judgment was prudently made, only those facts available at the time judgment was exercised can be considered. Hindsight review is impermissible.”

In its order the Commission refers to the avoidable construction delays previously determined in the construction audit proceeding, as follows:

“After reviewing all the evidence in this record, the Commission finds that while avoidable delays in the construction of Clinton is [sic] not the issue, there is a logical, natural connection between the Clinton construction delays and the incurring of additional carrying costs. In this instance IP [Illinois Power] management only had to deal with the Clinton station. IP personnel making nuclear fuel decisions would have to have been aware of the Clinton construction problems and the potential for delays. Construction decisions would have an obvious carryover to nuclear fuel costs and resulting carrying charges. IP continually extended the completion date for Clinton both prior and subsequent to April 1982. In the exercise of prudent management, IP should have more closely tracked the construction delays so that Respondent [Illinois Power] would not have run out of options in 1982 -with respect to the completion of the nuclear fuel assemblies. The imprudent management of Clinton construction is so intertwined with the nuclear fuel process that IP’s management must be considered to have acted imprudently in both its construction and fuel processing decisions at the times considered relevant in the entire process required to put Clinton in-service. This record shows that IP was imprudent in the activities related to the management and procurement of nuclear fuel for Clinton. The fact is that if IP had placed Clinton in-service, at an earlier date, additional carrying costs would not have been incurred.”

The Commission then determined that the delay period due to imprudent management of nuclear fuel costs was 21 months, the same period of unreasonable delay found in the construction audit case.

The scope of review of orders of the Commission is limited under the Public Utilities Act. (Citizens Utilities Co. v. Illinois Commerce Comm’n (1971), 50 Ill. 2d 35, 276 N.E.2d 330.) Section 10-201(d) provides in part:

“The findings and conclusions of the Commission on questions of fact shall be held prima facie to be true and as found by the Commission; rules, regulations, orders or decisions of the Commission shall be held to be prima facie reasonable, and the burden of proof upon all issues raised by the appeal shall be upon the person or corporation appealing from such rules, regulations, orders or decisions.” Ill. Rev. Stat. 1987, ch. lll2/3, par. 10 — 201(d).

Section 10 — 201(e) also provides in part:

“(e) Powers and duties of Reviewing Court:
(iv) The court shall reverse a Commission rule, regulation, order or decision in whole or in part, if it finds that:
A. The findings of the Commission are not supported by substantial evidence based on the entire record of evidence presented to or before the Commission for and against such rule, regulation, order or decision; or
B. The rule, regulation, order or decision is without the jurisdiction of the Commission; or
C. The rule, regulation, order or decision is in violation of the State or federal constitution or laws; or
D. The proceedings or manner by which the Commission considered and decided its rule, regulation, order or decision were in violation of the State or federal constitution or laws, to the prejudice of the appellant.” Ill. Rev. Stat. 1987, ch. lll2/s, par. 10 — 201(e).

Illinois Power first contends that the Commission exceeded the scope of its authority under section 9 — 220 when it based its decision to disallow 21 months of carrying charges on the fact that the construction work had been imprudently managed rather than limiting itself to the question of whether its fuel purchases were prudent. Illinois Power does not argue that the carrying charges are outside the Commission’s jurisdiction, as the Commission claims, but rather insists that the Commission went beyond its statutory authority in using the imprudent construction management as the grounds for disallowing part of the carrying charge portion of the fuel costs.

Illinois Power’s second contention is that the Commission’s finding that nuclear fuel procurement decisions were imprudent and led to avoidable carrying charges is not supported by the evidence in the record. Illinois Power argues that the contracts were shown to have been prudent at the time executed, that management of the contracts was prudent in the face of delays, and that the scheduled deliveries were reasonable in view of what was known at the time they were scheduled. Furthermore, Illinois Power says the evidence does not support the finding that Illinois Power could have anticipated the 1982 and 1983 construction delays early enough to have avoided carrying charges on the fuel. A finding that the January 1983 fuel load date was not prudent when fixed in December of 1980 is also argued not to be supported by evidence.

The Commission’s order is somewhat ambiguous as to the extent to which it relied upon imprudent construction management in determining that fuel purchases were imprudently managed. One sentence in the order states that Illinois Power’s “imprudent management of construction is so intertwined with the nuclear fuel process that IP’s [Illinois Power’s] management must be considered to have acted imprudently in both its construction and fuel processing decisions.” However, that sentence cannot be read as standing alone. The same paragraph includes a finding that Illinois Power should have tracked the construction delays more closely so that the fuel assemblies could have been deferred in 1982, and a later paragraph states very explicitly, “The January 1983 fuel load date was not prudent and properly established by IP’s [Illinois Power’s] management.”

We agree with Illinois Power that the Commission cannot lawfully rule that the fuel management must have been imprudent solely because the construction management was imprudent. We also agree with Illinois Power that, to determine prudence, the contracts, decisions, and actions that make up fuel procurement and management must be reviewed in the light of the facts available at the time they occurred or were made. However, after reviewing the entire order, we conclude that the Commission based its decision substantially upon its findings of imprudent fuel procurement decisions, many of which were made in response to construction delays. The Commission did not base its decisions solely on imprudent construction management and did not act outside the scope of its statutory authority.

The next question is whether the Commission’s findings of imprudent fuel procurement and management are supported by substantial evidence. The scope of review of findings of fact has been held to be “limited to reviewing whether the Commission set out findings of fact supporting its decision and whether the findings are against the manifest weight of the evidence.” (People ex rel. Hartigan v. Illinois Commerce Comm’n (1987), 117 Ill. 2d 120, 142, quoted with approval in Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1989), 136 Ill. 2d 192, 204.) Hence, we must examine the key findings of fact contained in the Commission’s order.

The Commission relied upon staff findings that Illinois Power should have anticipated lengthy stop work actions because many of those issued in 1982 and 1983 were the result of earlier problems that had not been corrected. The Commission’s order stated:

“Staff also found over 100 separate QA problems at Clinton which were identified prior to April 1981. The Commission agrees with Staff’s position. The January 1983 fuel load date was not prudent and properly established by IP’s management. It would have been unrealistic for IP’s management to believe that fuel loading at Clinton I would occur in January of 1983.”

April 1, 1981, was the date Illinois Power exercised its last right of deferral under its contract with GE and deferred shipment of fuel bundles to October 1982, the date necessary to meet the January 1983 fuel load date which preceded the planned commercial operation scheduled for August of 1983. Thus, the critical question was whether August 1983 was prudently scheduled in December of 1980 when that start-up date was set. By looking at the April 1981 date in its order as quoted above, the Commission overlooks" the 1980 date when the crucial determination was made.

The record contains much technical information concerning quality problems at the construction site, but the seriousness of these problems did not become obvious until early 1981. There is no evidence that subsequent long-term construction delays could have been forecast in December of 1980. Furthermore, none of the construction delays occurring before 1982 were found to be imprudent or unreasonable by the Commission in its construction audit proceeding. Considering the knowledge available to Illinois Power management in December of 1980, and considering the necessary lead time between fuel load and commercial operation scheduled for August 1983, we conclude that the evidence, is not sufficient to support the finding that the January 1983 fuel load date was not prudent at the time it was established.

Similarly, the Commission’s finding that Illinois Power’s management “should have tracked the construction more closely” is not supported by any evidence that management could have known far enough in advance of the delays that eventually occurred in 1982 and 1983 to have deferred fuel deliveries under the terms of the various fuel contracts. As indicated earlier, the fact that the construction work was imprudently managed cannot alone support a finding that the fuel procurement was also imprudently managed.

The Commission argues that Illinois Power acted imprudently when it sent enriched fuel to GE on May 31, 1982, for fabricating into fuel bundles after the start-up date had been postponed for one year in mid-April, particularly since Illinois Power did not discuss with GE the possibility of delaying the fabrication. However, the only evidence concerning the feasibility of attempting to renegotiate the GE contract supports the prudence of not opening such negotiations. One Illinois Power witness testified that GE had been wanting to renegotiate the contract because other provisions were very favorable to Illinois Power. Consequently, Illinois Power determined that terms of the existing contract could only be changed to Illinois Power’s detriment. Other witnesses on behalf of Illinois Power stated that the contract with GE was very favorable to Illinois Power at the time made and that Illinois Power utilized the options for postponement of the performance dates as fully as was possible under the contract.

Furthermore, no evidence was before the Commission to support its contention that Illinois Power could have had more flexible delivery dates in its fabrication contract with GE. As already indicated, Illinois Power’s expert witness testified that this contract, awarded after receiving bids, was very favorable to Illinois Power compared with other contracts being signed in the industry at that time and that it had appropriate flexibility in its provisions. Obviously the nuclear fuel cycle requires a long lead time.

The Commission could not rely solely upon the fact that the fuel bundles were fabricated and ready for loading in October of 1982 while the initial core load did not take place until September 1986 as evidence of imprudent fuel management. The Commission is required to determine prudence on the basis of what was known to management when it entered into the contract with GE in 1972 and when the various deferments were exercised between 1973 and April of 1981, not by what was clear to everyone in February of 1992.

There was no evidence contradicting Illinois Power’s expert who testified that prudent fuel procurement and management must include having fabricated fuel available when needed for fuel loading. Considering the length of the fuel cycle, Illinois Power’s management actions in 1980 and 1981 to assure availability of fuel bundles for the projected load date of January 1983 were not imprudent at the time they were made, and the Commission erred in finding to the contrary.

The other issues argued on appeal all related to the method used by the Commission to quantify the cost of the imprudent fuel management found by the Commission. Since we are reversing the findings of imprudence, we need not consider the alleged errors in calculation.

We reverse the order of the Commission and remand to the Commission for further proceedings consistent with this opinion.

Reversed and remanded.

STOUDER and SLATER, JJ., concur.


author: JUSTICE STOUDER

text:
    HERMAN BATES et al., Plaintiffs-Appellees, v. MICHAEL WILBUR, Defendant-Appellant.
    Third District
    No. 3 — 92—0397
    Opinion filed May 7, 1993.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Mark E. Wilson, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Gary S. Pyles and Winston J. Block, both of Block, Krockey, Cernugel & Cowgill, P.C., of Joliet (Scott Pyles, of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs, Herman and Helen Bates, brought an action against the defendant, Michael Wilbur, seeking damages for personal injuries suffered by Herman arising out of an auto collision in Jasper County. The plaintiffs filed their action in Will County. The defendant appeals from the trial court’s denial of his motion to transfer the cause to the county where he resides, Crawford County. We affirm.

The record in the instant case is rather sparse. Only those facts gleaned from the record before the trial court will be set forth. In the complaint filed October 23, 1991, the plaintiffs alleged that on August 8, 1991, plaintiff Herman Bates was a passenger in a State vehicle driven by the defendant, an employee of the Robinson Correctional Center. As the vehicle was traveling westbound on Illinois Route 33 in the City of Newton in Jasper County, the vehicle collided with an oncoming vehicle. The complaint alleges the defendant was negligent in, among other things, failing to properly overtake and pass a vehicle proceeding in the same direction so as to avoid interference with the safe operation of a vehicle approaching from the opposite direction. See Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 705.

On December 30, 1991, the defendant filed a motion to transfer the cause to a proper venue pursuant to section 2 — 104 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 104). In the motion, the defendant argued that under section 2 — 101 of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 101) the instant action should have been commenced either in Crawford County (the county of residence of the defendant) or in Jasper County (the site of the occurrence).

Subsequently, the plaintiffs filed a motion for summary judgment wherein they maintained they were entitled to judgment on the issue of liability as a matter of law. The parties agreed the motions would be heard together. However, the record contains an order, dated March 26, 1992, in which the trial court denied the defendant’s motion to transfer. The order instructed the defendant to respond to the motion for summary judgment within 35 days. The defendant filed a response to the motion that same day. We note no appeal was taken from the trial court’s denial of the motion to transfer (see 134 Ill. 2d R. 306(a)(iv)).

The defendant filed an answer to the plaintiffs’ complaint on April 2, 1992. On April 20, 1992, the defendant filed a motion for change of venue based on the doctrine of forum non conveniens. The defendant requested that the cause be transferred to Crawford County. Attached to the memorandum in support of the motion was a copy of an order entered in Cook County, in which the circuit court in that county granted the defendant’s motion for change of venue based on forum non conveniens in an action brought by another passenger in his vehicle, Dwayne Wheat.

In a summary order, dated May 12, 1992, the trial court denied the defendant’s motion. The defendant filed a petition for leave to appeal with this court under Supreme Court Rule 306(a)(ii) (134 Ill. 2d R. 306(a)(ii)), which we granted.

On appeal, the defendant argues the doctrine of forum non conveniens requires transfer of the cause to Crawford County, and that the trial court abused its discretion in denying the defendant’s motion. The defendant argues that he lives in Crawford County and that most of the witnesses are located in or near Crawford County. He contends the action is a local controversy involving the Crawford County area. He cites the comparatively congested Will County docket as opposed to that of Crawford County. He also maintains a Will County jury will be unduly burdened by a dispute which has little relevance to the residents of Will County.

The doctrine of forum non conveniens is an equitable doctrine which assumes the existence of more than one forum with jurisdiction over the parties and the subject matter of the case. (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 506 N.E.2d 1291.) It is founded on considerations of fundamental fairness, and sensible and effective judicial administration. (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 301 N.E.2d 729.) In the application of these basic considerations, a court may decline jurisdiction of a case, even though it properly has jurisdiction, whenever it appears that there is another forum that can better serve the convenience of the parties and the ends of justice. (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 301 N.E.2d 729.) The doctrine applies on an intrastate as well as an interstate basis. Torres v. Walsh (1983), 98 Ill. 2d 338, 456 N.E.2d 601.

In resolving a forum non conveniens question, a court must balance private interest factors affecting litigants and public interest factors affecting the administration of the courts. (Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 554 N.E.2d 209.) Private interest factors to be considered are the convenience of the parties; the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling witnesses, and cost of obtaining attendance of willing witnesses; the possibility of viewing the scene of the occurrence, if such viewing would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. (Cook v. General Electric Co. (1992), 146 Ill. 2d 548, 588 N.E.2d 1087.) Relevant public interest factors include the administrative difficulties caused when litigation is handled in congested venues, the unfairness of imposing jury duty upon residents of a county with no connection to the litigation, and an interest in having localized controversies decided locally. Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 554 N.E.2d 209.

In deciding a forum non conveniens motion, a court is to take all the relevant factors into account, giving each factor, including plaintiff’s choice of forum, proper deference or weight under the circumstances. (Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 554 N.E.2d 209.) The test is whether the relevant factors, viewed in their totality, strongly favor transfer to the forum suggested by the defendant. (Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 554 N.E.2d 209.) Broad discretion is vested in the trial court in determining whether particular circumstances require transfer of a cause under the doctrine of forum non conveniens, and that court’s decision will be reversed only if it can be shown that the court abused its discretion. Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 506 N.E.2d 1291.

In the instant case, the defendant maintains the cause should be transferred to Crawford County. However, the only connection between this cause of action and Crawford County is the residence of the defendant. The merits of transferring the case to Crawford County are somewhat in doubt since the place of injury was in neighboring Jasper County. While the defendant argues in general that Crawford County is closer to the scene of the occurrence and possible witnesses, there is nothing concrete in the record to reflect this assertion. Based on the record, except for the defendant’s residence, the connection between Crawford County and the cause of action is no greater than the case’s connection to Will County.

Generally, a plaintiff’s right to select the forum is a substantial one, and unless the factors weigh strongly in favor of transfer, the plaintiff’s choice of forum should rarely be disturbed. (Cook v. General Electric Co. (1992), 146 Ill. 2d 548, 588 N.E .2d 1087.) In this case, we find this proposition dispositive given Crawford County’s only proven connection to the cause of action is the residence of the defendant.

Granted some of the factors listed above tend not to favor the action being heard in the circuit court of Will County. However, that is not the test for granting a transfer under the doctrine of forum non conveniens. The standard is whether the factors viewed in their totality strongly favor transfer to the forum suggested by the defendant, in this case, Crawford County. Under the circumstances, the record does not strongly favor transfer to Crawford County. Therefore, we find the trial court did not abuse its discretion in denying the defendant’s motion for change of venue based on forum non conveniens grounds.

For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

Affirmed.

McCUSKEY, P.J., and BRESLIN, J., concur.