ILLINOIS POLLUTION CONTROL BOARD

June 5, 2003

SOLID WASTE AGENCY OF NORTHERN

COOK COUNTY,

Petitioner,

CITY OF DES PLAINES, ILLINOIS,

Respondent.

)

PCB 03-161

(Pollution Control Facility

Siting Appeal)

ORDER OF THE BOARD (by N.J. Melas):

On May 1, 2003, the Solid Waste Agency of Northern Cook County (SWANCC) filed a

motion asking the Board to reconsider an April 17, 2003 decision by the Board to dismiss this

petition. On May 15, 2003, the City of Des Plaines (Des Plaines) filed a motion in opposition to

SWANCC’s motion to reconsider (mot.). On May 29, 2003, SWANCC responded to Des

Plaines’ motion (resp.). For the reasons set forth below, the Board grants SWANCC’s motion

for reconsideration, and reaffirms the Board’s April 17, 2003 decision to dismiss SWANCC’s

amended petition as untimely.

BACKGROUND

On March 24, 2003, SWANCC filed a petition asking the Board to review a decision

made by Des Plaines.

See

415 ILCS 5/40.1(a) (2002); 35 Ill. Adm. Code 107.204. The petition

stated that on February 18, 2003, Des Plaines approved Disposal Management System’s

application to site a 200 ft. by 200 ft. waste transfer facility at 101-103 Sell Road in the City of

Des Plaines. Pet. at 2. However, SWANCC did not name the siting applicant, Disposal

Management System (DMS), as a respondent in the original petition. On April 2, 2003,

SWANCC filed a motion for leave to file an amended complaint adding DMS as a respondent.

The Board found it lacked jurisdiction to hear the petition because SWANCC failed to timely

name DMS as a party. The Board did not accept the amended complaint and dismissed this

action on April 17, 2003.

STANDARD

In ruling on a motion for reconsideration the Board will consider factors including new

evidence, or a change in the law, to conclude that the Board’s decision was in error. 35 Ill. Adm.

Code 101.902. In Citizens Against Regional Landfill v. County Board of Whiteside, PCB 93-

156 (Mar. 11, 1993), the Board explained “the intended purpose of a motion for reconsideration

is to bring to the court’s attention newly discovered evidence which was not available at the time

of hearing, changes in the law or errors in the court’s previous application of the existing law.”

Korogluyan v. Chicago Title & Trust Co., 213 Ill. App. 3d 622, 627, 572 N.E.2d 1154, 1158 (1st

Dist. 1992).

RELEVANT STATUTE

Section 39.2(e) of the Environmental Protection Act (Act) provides:

[d]ecisions of the . . . governing body of the municipality are to be in

writing, specifying the reasons for the decision, such reasons to be in

conformance with subsection (a) of this Section . . .. If there is no final

action by the . . . governing body of the municipality within 180 days after

the date on which it received the request for site approval, the applicant

may deem the request approved. 415 ILCS 5/39.2(e).

DISCUSSION

SWANCC’s Arguments

In support of its argument that the Board’s April 17, 2003 decision was in error,

SWANCC attached to its motion a letter from the city manager dated March 26, 2003. Mot.

Exh. 2. SWANCC notes that Section 107.204 of the Board procedural rules requires a petitioner

to file a petition for review within 35 days after the local siting authority takes action to approve

or disapprove siting. 35 Ill. Adm. Code 107.204. SWANCC emphasizes that Section 107.204

also provides “[a]ction means the local government’s official written decision granting or

denying local siting approval pursuant to Section 39.2(e) of the Act….” 35 Ill. Adm. Code

107.204. Therefore, SWANCC argues, the 35-day filing period was not triggered until March

26, 2003, when Des Plaines issued its “official written decision.” Mot. Exh. 2. Accordingly,

SWANCC contends this petition was timely filed with the Board within the 35-day filing period

on April 29, 2003.

Des Plaines’ Arguments

Des Plaines filed its motion in opposition to SWANCC’s motion to reconsider and

attached an exhibit unsupported by a signed affidavit. Section 101.504 of the Board’s procedural

rules regarding the contents of motions and responses provides “[f]acts asserted that are not of

record in the proceeding must be supported by oath, affidavit, or certification.” 35 Ill. Adm.

Code 101.504. However, for the purposes of this discussion, the Board will accept these facts as

true.

Des Plaines claims that DMS’s siting application was deemed approved on February 3,

2003, due to Des Plaines’ failure to act within the 180-day statutory deadline. Mot. at 1. In

support of its motion, Des Plaines attached a photocopy of DMS’s siting application on which a

handwritten note indicates the application was received on August 6, 2002. Mot., Exh. A. Des

Plaines contends 180 days after August 6, 2002, falls on February 3, 2003. Thus, Des Plaines

argues that because the city council did not act to approve or deny siting within the 180-day

period, the siting application became approved after February 3, 2003. Mot. at 2. Des Plaines

concludes that this petition for review was filed well after the 35-day filing period for appeals

and, therefore, the Board is without jurisdiction to hear this petition.

SWANCC’s Response

In response, SWANCC argues DMS waived the statutory deadline by continuing to

actively participate in the siting review process. SWANCC claims that phone calls and email

correspondences illustrate that DMS verbally agreed to waive the statutory deadline. Resp. at 2-

9. SWANCC claims that precedent supports the position that by “actively participating,” DMS

waived its right to a decision by default.

See

City of Rockford v. County of Winnebago 186 Ill.

App. 3d 303, 542 N.E.2d 423 (App. 2nd Dist. 1989); Citizens Against the Randolph Landfill v.

PCB, 178 Ill. App. 3d 686, 533 N.E.2d 401 (App. 4th Dist. 1988). Therefore, SWANCC

maintains that Des Plaines’ March 26, 2003 written decision is the action that triggered the 35-

day appeal period. Resp. at 10.

Analysis

The Board grants SWANCC’s motion for reconsideration. SWANCC has presented the

Board with new evidence not available when the Board issued its April 17, 2003 decision in this

matter. However, the Board reaffirms the April 17, 2003 decision, finding that SWANCC’s

petition in this matter was not timely filed.

At issue here is from what date the 35-day period for appeal begins. Based on the limited

record before the Board, the Board cannot decide whether DMS agreed to waive the 180-day

decision deadline. However, the Board finds that regardless of whether waiver existed,

SWANCC’s amended petition filed on April 2, 2003 was not timely.

If there was no waiver by DMS, DMS’s siting application was deemed approved on

February 4, 2003, due to lack of action by Des Plaines within the statutory deadline. Even

assuming DMS waived the statutory deadline, the Board finds that the Des Plaines city council

vote on February 18, 2003 to approve siting, as reduced to writing in the minutes of that meeting

(Mot. Exh. 5), constituted a final action for the purposes of appeal. The Board relies on the Act

and Board precedent in making this finding.

Specifically, the Illinois Supreme Court has held that an administrative entity can take

“final action” without written findings, but such action is not necessarily final and appealable for

purposes of review. Waste Management of Illinois, Inc. v. PCB, 145 Ill. 2d 345, 352, 585

N.E.2d 606, 609 (Nov. 21, 1991). The Court reasoned that a decision by an administrative

agency must have findings to make review possible.

. Section 107.204 of the Board

procedural rules defines a local government’s action to approve or deny siting as an “official

written decision.” 35 Ill. Adm. Code 107.204.

The record in this proceeding establishes that the only “written decision” and “final

action” issued by Des Plaines itself is Des Plaines’ vote to approve siting on February 18, 2003.

Pet. Exh. 1, 3. Because it is a siting approval, it is inherent in Des Plaines’ vote that according to

the city council, DMS’s application met all criteria established by Section 39.2(a) of the Act.

This conclusion is also supported by SWANCC’s own petition. The certification of

siting approval, an Environmental Protection Agency form executed by the mayor of the city of

Des Plaines on March 25, 2003, lists February 18, 2003, as the date of the city’s siting approval.

Pet. Exh. 4. The city manager’s letter of March 26, 2003, also lists the approval date as

February 18, 2003. Pet. Exh. 4. The city clerk did not certify the city manager’s letter as Des

Plaines’ final action. The letter merely references the city’s vote on February 18, 2003.

The Board finds that whether or not waiver applies in this proceeding, SWANCC’s

petition was not timely filed. Accordingly, the Board lacks jurisdiction to hear this appeal.

CONCLUSION

The Board grants SWANCC’s motion for reconsideration and reaffirms the Board’s April

17, 2003 order to dismiss this matter. The Board finds that SWANCC’s motion to amend its

petition to name a necessary party was not timely. Accordingly, the Board dismisses this case

and closes the docket.

IT IS SO ORDERED.

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2002);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on June 5, 2003, by a vote of 6-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board