ILLINOIS POLLUTION CONTROL
    BOARD
    April 9,
    1992
    L~AND
    AND
    LAKES
    COMPANY,
    JMC
    )
    )PERATIONS,
    INC., and NBD TRUST
    )
    OMPANY
    OF ILLINOIS AS TRUSTEE
    )
    JNDER TRUST NO.
    2624EG,
    )
    )
    Petitioners,
    )
    PCB 92—25
    )
    (Landfill Siting Review)
    VILLAGE OF ROMEOVILLE,
    )
    Respondent,
    COUNTY
    OF WILL,
    )
    )
    Intervenor.
    DRDER OF THE BOARD
    (by M.
    Nardulli):
    This matter is before the Board on respondent village or
    Romeoville’s
    (Romeoville) motion to dismiss filed February 26,
    1992;
    petitioner Land and Lakes’ response filed March 6,
    1992,
    the County of Will’s response filed March 19,
    1992, the County of
    will’s motion to cite additional authority and Land and Lakes’
    objection to the motion to cite additional authority.
    A brief procedural history of this case is needed to
    understand the instant motions.
    On January 15,
    1991 Land and
    Lakes filed a petition seeking review of Romeoville’s decision
    denying site location approval for Land and Lakes’ expansion of
    its regional pollution control facility.
    On August 26, 1991 in
    PCB 91-7, the Board entered a final opinion and order finding
    that Romeoville’s failure to give proper notice of the hearing in
    accordance with Section 39.2(d)
    of the Environmental Protection
    Act
    (Act)
    (Ill. Rev.
    Stat.
    1989,
    ch.
    111 1/2, par. 1039.2(d))
    rendered its decision void resulting in site location approval.
    On September 27,
    1991, Romeoville filed a motion for
    reconsideration.
    On December 6,
    1991, the Board entered an order
    reversing its prior determination that proper notice had not been
    given to General Assembly members and remanding the case back to
    Romeoville for clarification as to whether Land and Lakes had met
    its burden of proving need for the proposed facility in
    accordance with Criterion
    1 of Section 39.2(a)(1).
    (PCB 91-7.)
    The Board closed docket PCB 91-7 and directed Land and Lakes to
    file a new petition for review challenging Romeoville’s decision
    on remand.
    (PCB 91-7 (January 23,
    1992).)
    On January
    8,
    1992,
    Romeoville entered its decision on Criterion 1.
    On February 11,
    1992,
    Land and Lakes filed its petition seeking review of
    Romeoville’s January
    8,
    1992 siting decision under docket PCB 92-
    25.
    132— 135
    2
    Initially,
    the Board addresses the County of Will’s motion
    to cite additional authority filed March 19,
    1992.
    By its
    response of March
    6,
    1992, the County of Will joins in
    Romeoville’s motion to dismiss.
    The County of Will seeks to cite
    Waste Management of Illinois v. PCB
    (1st Dist.
    1990),
    201 Ill.
    App. 3d 614, 558 N.E. 2d 1295, rev’d on other grounds,
    145 Ill.
    2d 345 (February 3,
    1992)
    as additional authority for its
    position that Land and Lakes’ petition should be dismissed.
    Land
    and Lakes objects to the County of Will’s motion correctly noting
    that the County has failed to identify any reason why this
    authority was not timely cited in the initial response.
    The
    County of Will has failed to establish why it was unable to cite
    the Waste Management case in its response.
    Waste Management,
    a
    1990 case, was certainly available at the time the County’s
    response was filed.
    Absent some justification as to why citation
    to this authority was not possible at the time the response was
    filed, the Board denies the motion to cite additional authority.
    The Board now addresses Romeoville’s motion to dismiss.
    Romeoville seeks dismissal of Land and Lakes’ February 11,
    1992
    petition for review.
    As noted above, the County of Will joins in
    the motion to dismiss.
    Romeoville argues that Land and Lakes’
    notice of appeal,
    filed in the appellate court on February 7,
    1992,
    vests jurisdiction of this matter in the appellate court
    and deprives the Board pf jurisdiction over Land and Lakes’
    petition for review.
    Land and Lakes contends that its appeal of
    the Board’s December 6,
    1991 and August 26,
    1991 opinions and
    orders pending in the appellate court does not divest the Board
    of jurisdiction over the petition for review of Romeoville’s 1992
    decision reached after remand.
    The Board will not comment upon the viability of Land and
    Lakes’ appeal to the appellate court;1 Land and Lakes apparently
    filed its notice of appeal to protect its right to review of the~
    Board’s decision in PCB 91—7.
    (Pet. Response at
    3.)
    However,
    the Board finds that Land and Lakes’ appeal does not divest the
    Board of jurisdiction over Land and Lakes’ petition for review
    from Romeoville’s January
    8,
    1992 decision on Criterion 1.
    The
    Board took final action for purposes of Section 40.1(a)
    of the
    Act2 in PCB 91-7 on August 26,
    1991 and, upon the motion of
    1
    In Clean Quality Resources. Inc. v. PCB No. 5-91-0156
    (May 6,
    1991), the Board’s motion to dismiss landfill
    siting applicant Clean Quality Resources’ motion to
    dismiss for lack of a final and appealable order was
    granted.
    2
    “Final action” for purposes of Section 40.1(a)
    of the
    Act is not necessarily tantamount to a final and
    appealable order.
    Waste Management of Illinois.
    Inc.
    v. PCB (1991),
    136 Ill.2d 556, 567 N.E.2d 344.
    132—136
    3
    Romeoville,
    reconsidered that decision on December 6,
    1991.
    rhese two Board opinions and orders set forth the Board’s
    conclusions on several issues raised by Land and Lakes January
    15,. 1991 petition for review. The Board’s December 6,
    1991
    opinion and order in PCB 91-7 makes clear that the sole issue
    before Romeoville on remand was whether Land and Lakes had met
    Criterion 1.
    The Board’s January 23,
    1992 order makes clear that
    docket PCB 91-7 was closed and that Land and Lakes needed to file
    a new petition for review to challenge Romeoville’s decision on
    Criterion 1.
    Therefore, the instant petition for review
    cha1leng~sonly Romeoville’s 1992 decision after remand.
    Because
    the Board has not yet ruled on whether Romeoville’s finding on
    Criterion 1 is against the manifest weight of the evidence, all
    arguments challenging Romeoville’s finding on Criterion 1 must be
    raised in the instant proceeding.
    Any decision made by the Board in PCB 92-25 will not affect
    the Board’s prior decisions which are the subject of the appeal
    in the appellate court.
    Therefore, consistent with Clean Quality
    Resources, Inc. v. Marion CountY Board
    (April 11,
    1991)
    (see
    also,
    Clean Quality Resources,
    Inc.
    v. Marion County Board
    (August 26,
    1991)), the Board concludes that the notice of appeal
    filed in the appellate court from the Board’s December 1991
    decision does not divest the Board of jurisdiction over Land and
    Lakes’ petition seeking review of Romeoville’s 1992 decision on
    Criterion 1.
    Therefore,
    Romeoville’s motion to dismiss Land and
    Lakes’ petition for review is denied.
    IT IS SO ORDERED.
    I, Dorothy M.
    Gunn, Clerk of the Illinois Pollution Control
    Bo~d,hereby certify that the above order was adopted on the
    ~
    day of
    (~~A~c-~
    ,
    1992 by a vote of
    7’— ~
    ~
    ~7,
    Dorothy M.
    unn, Clerk
    Illinois
    .0
    lution Control Board
    132—137

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