ILLINOIS POLLUTION CONTROL BOARD

October

25,

1984

WASTE

MANAGEMENT,

INC.,

)

Petitioner,

V.

)

PCB 84—45

84—61

ILLINOIS

ENVIRONMENTAL

)

84-68

PROTECTION AGENCY,

)

(Consolidated)

)

Respondent.

ORDER OF THE BOARD (by J. Anderson):

in response to the Board’s Opinion and Order

of October

1,

1984,

several motions

for reconsideration were filed on or before

the October 12 deadline established

therein.

These motions are

those of:

October

9

-

Topoiski, October

10

—

Ruettiger,

Rourke,

Brockett, October

11

-

Marr,

October 12

the Agency, by the

Attorney General.

A

motion received October

15 from Judy Garthus

bearing

an October

4

date will also be accepted by the Board.

In addition to the

motion for reconsideration,

the

Agency

also filed

a motion to

strike paragraph

5 of

p.

38 of the

Opinion,

shortening the

time for filing of motions for recon-

sideration

from 35 days

to 11 days.

Alternatively,

the Agency

seeks an additional

35 days from

today’s

date to supplement its

October

12 filings.

Finally,

the Agency also

filed a motion

for

stay of the October

1 Order pending appellate review,

Waste

Management,

Inca

(WMI)

filed a

responses

in opposition to all

pending motions on October

22,

1984.

The response includes

motions to strike

various portions

of

the above—listed motions.

The various

motions for reconsideration are

granted.

As to

the Agency’s

motion to strike,

the shortening of the

recon-

sideration period

was an action taken by the Board

on its

own

motion based on the Board’s

perceptions,

as indicated throughout

the Opinion,

that 1) WMI

has been without disposal capacity since

sometime in

1983,

and

losing revenue

at an estimated rate of

$20,000

week and has

pressed for

a speedy decision

in this matter,

2) the parties’ relative legal

positions had been developed

throughout this action, and

had been vigorously advocated,

and

3)

given

the course and nature of

this action, that one or more

parties would wish to pirsue an

appeal of those portions of the

decision adverse to the party.

The Attorney

General argued that

the Board’s action

“violates the

procedural due process rights

of the Agency which should have 35

days to analyze

a 39—page

complex order”

(Motion,

p.

3),

60~359

---

while motions for reconsideration

are customarily enter-

tained

by agencies, they are not

essential to due process,

see

Davis,

~‘AdministrativeLaw

Treatise,”

S8.18

(1st ed.

1958).

While the Board does not

customarily or lightly depart

from

its

procedural

rules,

the Board has

been found to

have

discretion

to

do

so provided that the proceeding

conforms to

“fundamental

principles of justice,” see

~

A.

Fr~Roofing Co.

V.

IPCB,

20

Ill.

App~. 3d

301,

314 N.E. 2d

350,

359

(1974).

The

Board

believes that

its

exercise of

discretion was sound.

The Agency’s

motions are denied,

This leaves for resolution,

then,

the merits of the various

motions for reconsideration,

and

of the Agency’s motion for stay.

In its October

1 Opinion,

the Board had

stated its intent to

decide all motions today.

However,

in its

motion

for

recon-

sideration,

the

Agency

raises

for

the

first

time

the

question:

whether

in its

review

of

permit appeals,

the Board

must

articulate and apply the

evidentiary standard used by appellate

courts in review of administrative

decisions,

the manifest weight

of the evidence standard.

Waste

Management

argued

that

the

manifest weight standard does

not

apply

on the grounds that,

in

a

permit appeal,

the

Board

does not sit in appellate review of an

Agency “adjudicatory

function.”

Since the time

of the filing

of

WMI’s

response late in the

day on October

22,

the

Board has been unable to complete an

independent

search

for case

law which may be pertinent to this

subject~

The

Board

believes,

however, that

this is a

matter of

first impression.

Supplementation of

the initial briefs

and

arguments is essential to a

well—reasoned approach by the Board

to a novel issue~

The

Agency

is

requested to file supplemental

argument

on

this

issue

on

or

before

November

5.

In

addition,

given

the

collapse

of

the

Board’s

projected

timetable

for

final

action

in

this

matter,

the

Agency

is

given

leave

to

file

supplemental

authority

and

argument

concerning

any point

raised

in its October

12

motion

to

reconsider; no new “points of error”

may be raised.

Any response

by

WMI

is to be filed on or before

November

16.

This schedule

is designed

to allow Board decision of all

pending motions on November

21,

1984.

The

Board

notes that its

October

1,

1984

Order

would

by

its

terms

require

permit

issuance

within

45

days,

which

compites

to

November

15.

The

Board,

as

an

interim

measure,

will stay that

Order

through

november

21.

The

merits

of

a

continuing

stay

to allow for appellate review as

requested

by

the

Agency

will

be

considered

at

that time.

IT

IS

SO

ORDERED.

6O~36O

---

—3—

I,

Dorothy

M, Qinn, Clerk of the Illinois Pollution Control

Board,

hereby certify that the above Order was adopted on

the

~

day of

,

1984 by a vote

of

5—C

_____

~

7)?

Dorothy M.

Gunn,

Illinois Pollution Control Board