ILLINOIS POLLUTION CONTROL
    BOARD
    September 13,
    1989
    WASTE MANAGEMENT OF ILLINOIS,
    INC.,
    a Delaware Corporation,
    )
    Petitioner,
    v.
    )
    PCB 89-28
    VILLAGE OF BENSENVILLE,
    a
    )
    municipal corporation,
    )
    Respondent.
    )
    ORDER OF THE
    BOARD
    (by J.D.
    Dumelle):
    This matter comes before the Board upon an August 25,
    1989
    motion to reconsider filed by the Petitioner, Waste Management of
    Illinois, Inc.,
    (“WMI”).
    Although the Board has not as yet
    received a response to the motion from the Respondent,
    the Board
    will proceed today
    to deny WMI’s motion;
    this will result in no
    prejudice to the Respondent.
    WMI has moved
    the Board to reconsider and vacate its
    decision of July 13,
    1989 affirming the denial of WMI’s
    application
    for site location approval of
    a solid waste transfer
    station by the Village of Bensenville.
    In support
    of
    its motion,
    WMI requests that the site location be deemed approved as a
    result of the Board’s “failure to take final action on this
    appeal pursuant to Ill. Rev.
    Stat.
    ch.
    111—1/2, Sec.
    1040.1(a),’
    or
    in alternative, reverse the Village’s decision on criterion
    one because
    it
    is against the manifest weight of
    the evidence.
    In support of its first argument, WMI argues that the test
    for determining the finality of an administrative order
    is
    (1)
    whether rights or obligations have been determined or legal
    consequences will flow from the Agency’s action and
    (2) whether
    the process of administrative decision—making
    has reached
    a stage
    where judicial review will not disrupt the orderly progress of
    adjudication.
    WMI notes
    that the Board’s decision appears
    to
    have met the first prong of
    this test,
    but argues that the second
    prong has not been met.
    WMI argues first
    that because the Board stated
    in
    its July
    13,
    1989 Order
    that the Opinion would be issued on August 10,
    1989 and that the time period for reconsideration would begin to
    run on that date,
    the Board did not intend
    its Order
    to have
    a
    1flJ—17
    —2—
    legal effect until
    the August
    10, 1989 Opinion was entered.
    Such
    is not the case.
    The Board intended its July 13 Order
    to fully
    satisfy the “final action”
    requirement of Section 40.1(a)
    of
    the
    Environmental Protection Act
    (Act).
    The Board’s July
    13, 1989
    Order
    is “final action”
    in that
    it
    is the official document
    affirming the decision of the Village of Bensenville.
    This Order
    was entered in a timely fashion and constitutes an appealable
    decision.
    That the Board’s Opinion explaining this Order was
    entered later does not detract from the finality of this Order.
    Under normal circumstances, Board Opinions and Orders are issued
    simultaneously.
    However, certain situations arise wherein the
    Board
    is unable to publish the reasons for its decision at the
    same time as the decision.
    In these exceptional situations,
    the
    Board’s longstanding practice has been to adopt
    the final
    decision and then publish the reasons for that decision at its
    next scheduled Board meeting.1
    The Board firmly believes that
    this practice
    is consistent with the Act’s mandate of
    a
    120 day
    decision.
    Moreover,
    that the July
    13,
    1989 Order
    states that the
    reconsideration period would not run until after August 10, 1989
    likewise does not render the July 13, 1989 Order
    rionfinal.
    That
    statement was added to the Board’s decision simply to clarify
    that if the Petitioner
    chose to file a motion
    to reconsider,
    which would thereby extend the time ~or the filing of a petition
    for review with the appellate court,
    the Board would consider
    such a motion timely
    if filed prior
    to
    35 days from the date of
    the Opinion.
    This was done specifically to afford the Petitioner
    sufficient time
    to formulate its arguments for reconsideration.
    This statement was
    in no way intended
    to extend the date by which
    the Board was required
    to take final action.
    WMI argues next that had
    it.
    filed a notice of appeal
    immediately after
    the July
    13, 1989 Order,
    subject matter
    jurisdiction of the application would have vested in the
    appellate court leaving the Board without the authority to enter
    its subsequent opinion.
    Consequently, WMI argues
    that
    judicial
    review of the July
    13, 1989
    order would
    have disrupted the
    Board’s administrative decision—making process.
    The Board does
    not agree.
    The Board’s decision-making process was completed on
    July 13, 1989——its administrative decision—making process had
    reached the stage where judicial review would not disrupt the
    i-Because the Board’s July
    13, 1989 decision was adopted by a
    4—3 vote and because one of the majority voters was on a long—
    scheduled vacation during
    the next scheduled Board meeting,
    the
    Opinion following the July
    13,
    1989 decision could not be
    confirmed until August
    10,
    1989.
    2See Citizens Against the Randolph Landfill
    (CARL)
    v.
    Illinois Pollution Control Board,
    the County of McLean,
    and
    McLean County Disposal Company (4th Dist.,
    1988),
    127 I1l.Dec.
    259,
    533 N.E.2nd 401.
    103—18
    —3—
    orderly progress of adjudication.
    The Board’s decision was
    timely entered on July 13,
    1989.
    The Board’s August
    10, 1989
    Opinion simply explains the reasons leading to the July 13, 1989
    decision——it was the mechanical compilation and publication of
    those reasons that warranted the additional
    time..
    The Board’s
    decision was not
    in any way changed or modified, nor could
    it
    have been.
    Thus,
    judicial review could have been had on the July
    13,
    1989 Order without disruption
    to the orderly progress of
    adjudication.
    Also,
    the Board must note that WMI did not file a notice of
    appeal;
    therefore,
    this argument
    is speculative,
    at best.
    The
    Board notes further that WMI has
    in
    this argument misstated the
    second prong of the test for determining finality of an Order.
    The second prong
    is whether the process of administrative
    decision—making has reached a stage where judicial
    review will
    not disrupt the orderly progress of adjudication.
    In this case,
    the Board issued the Opinion at
    the next Board meeting at which
    it was able.
    The Opinion was
    issued during the 35 day time
    period
    in which the Petitioner could file a motion to reconsider
    or
    a petition for review with the appellate court.
    Thus,
    adjudication of the application could have continued
    in an
    orderly fashion,
    and no party would have been prejudiced.
    WMI next points out that Section 33(a)
    of the Act
    requires
    that the Board state
    the facts and reasons leading to its
    decision.
    Section 33(a)
    states:
    In all such matters that Board shall file and publish a
    written opinion stating the facts and reasons leading to
    its decision.
    WMI argues that this section
    is expressly incorporated into
    Section 40.1(a)
    of the Act which governs this appeal.
    WMI argues
    apparently that the Board’s July
    1,
    1989 Order does not fulfill
    this requirement.
    As
    a preliminary matter,
    the Board notes that
    the incorporation of Section
    33(a)
    into Section 40.1(a)
    is as
    follows:
    ***At such hearing the rules prescribed in Section 32
    and 33(a)
    of this Act shall apply,
    and the burden of
    proof
    shall
    be on the petitioner;
    however,
    no new or
    additional evidence
    in support
    of or
    in opposition to
    any finding, order,
    determination or decision of the
    appropriate county board or governing body of
    the
    municipality shall
    be heard by the Board.***(Emphasis
    added).
    The Board notes
    that this incorporation of
    Section 33(a)
    relates
    to
    the hearing before the Board,
    not
    to the Board’s decision.
    The Section 40.1(a)
    language relating
    to the Board’s decision
    is
    as
    follows:
    103—19
    —4—
    ***In making
    its orders and determination under this
    Section,
    the Board shall include ion its consideration
    the written decision of the county board or
    the
    governing body of the municipality,
    the transcribed
    record of the hearing held pursuant to subsection
    (d)
    of
    Section
    39.2,
    and the fundamental fairness of the
    procedures used by the county board or the governing
    body of the municipality in reaching its decision.
    ~c
    If there is no final action by the Board within 120
    days,
    petitioner may deem the site location approved;***
    The Board notes
    that this legislative directive is much less
    clear
    in the siting approval
    (“SB172”)
    (P.A.
    82—682,
    eff.
    Nov.
    12, 1981) cases than in other adjudicative cases before the
    Board.
    The Board believes this is
    so because the records
    in
    SB172 cases are often voluminous and involve many complicated
    issues.
    120 days is
    a short time period
    in which to review this
    type of decision of the county board or governing body of
    a local
    unit of government.
    This time period has been shortened all the
    more by recent appellate court decisions with which the Board
    must obey.
    In E
    &
    E Hauling,
    Inc.
    v. Pollution Control Board,
    116 Ill. App.
    3d 586,
    451 N.E.2nd 555
    (2nd Dist.
    1983),
    the court
    held that the county board or governing body of a local
    government need only indicate which of
    the criteria,
    in its view,
    have or have not been met.
    In cases such as
    this where the Board
    has no indication of what persuaded the county board or governing
    body of
    a local government, the Board’s review of the decision
    is
    frustrated and requires more time.
    Further,
    a recent appellate
    court decision, Waste Management of
    Illinois
    v.
    Illinois
    Pollution Control Board and Lake County Board,
    175 Ill. App.
    3d
    1023,
    530 N.E.2nd 682
    (2nd Dist.
    1988),
    requires the Board not
    only to give reasons for its decisions but also
    to address each
    and every criterion in issue.
    This requirement proves useful
    in
    appellate review of SB172 cases but also adds additional issues
    which must be coqsidered in the short time period after delivery
    of th last brief~ in which the Board must review an SB172 case.
    WMI argues last that if the Board may unilaterally extend
    its authority to enter a ruling after the statutory decision
    period,
    the Board would be allowed to circumvent
    the timing
    3In a typical situation,
    the Board will have from 15
    to 35
    business days from the filing of the last brief until
    the
    decision must be voted on; here we had
    35 business days.
    That
    is
    a short time frame
    for complicated cases with records of the size
    common in this type of proceeding.
    In that period of time the
    Board Member assigned
    to the proceeding must complete a draft
    opinion and order, and circulate that document to determine
    whether it represents a majority position and what changes must
    be made to secure majority votes.
    103—20
    —5—
    provision of the Act
    to the prejudice of the Applicant.
    The
    Board does not dispute this in theory.
    However,
    in this case,
    the Board did not extend its authority to enter a ruling after
    the statutory decision period expired.
    The Board entered its
    decision on July
    13,
    1989,
    which is within the required period.
    There was,
    thus,
    no unilateral extension of authority.
    The Board
    notes, finally, that WMI cites the case of Illinois Power
    v.
    Illinois Pollution Control Board,
    137 Ill. App.
    3d
    449,
    484
    N.E.2nd 898 (4th Dist.
    1985),
    as
    it relates
    to the issuance of a
    permit by operation of
    law.
    The Board has discussed this case in
    the past and believes that this discussion
    is applicable here.
    In A.R.F.
    Landfill Corporation
    v. Village
    of Round Lake Park and
    Lake County, PCB 87—34, July
    16,
    1987,
    the Board distinguished
    Illinois Power by noting that the Board had clearly admitted that
    it had not taken final action within the statutory period.
    Id.
    at
    9.
    Here,
    the Board makes no such admission;
    rather,
    the Board
    took its action on July 13,
    1989 deciding the case specifically
    to comply with the decision deadline requirement.
    For all of the foregoing reasons,
    the Board’s decision was
    issued within the required time period.
    The Board believes that
    its July 13, 1989 Order satisfies
    the second prong
    of WMI’s
    test;
    on that date the process of administrative decision—making had
    reached a stage where judicial review would not disrupt the
    orderly progress of adjudication.
    WMI’s
    “deemed approved”
    argument fails.
    WMI’s motion
    to reconsider
    is denied as
    far as
    this argument
    is concerned.
    WMI’s alternate argument,
    that the Village’s decision is
    against the manifest weight of the evidence, offers no persuasive.
    insights
    into the record or the Boards decision.
    Therefore,
    the
    Board declines
    to reverse its decision on this basis.
    As a result, WMI’s motion for reconsideration
    is denied.
    IT
    IS SO ORDERED
    Board Member
    J. Anderson dissented and Board Members
    J.
    Marlin and J. Theodore Meyer
    concurred.
    Section 41 of the Environmental Protection Act,
    Ill.
    Rev.
    Stat.
    1985,
    oh.
    111—12,
    par.
    1041,
    provides for appeal of
    final
    Orders of the Board within 35 days.
    The Rules of
    the Supreme
    Court of Illinois established filing requirements.
    103—2 1
    —6—
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board,
    hereby certify that the abpve Order was adopted on
    the
    /J~Z
    day of ___________________________, 1989 by a
    vote of
    ____________________
    Dorothy M.,4’unn, del-k
    Illinois ~ø~’1lutionControl Board
    103—22

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