dissenting:
I respectfully dissent from the majority holding that the Board order filed within the mandated time limit did not constitute final action. I believe the Board could properly file its order and opinion separately, under the factual setting presented here. Neither the statute, Board rules, nor applicable case law requires a simultaneous filing of the order and opinion.
The majority attempts to force a merger between the section 33 requirement that a written opinion with reasons be filed, and the section 40.1 requirement that final action be taken within 120 days. The majority’s analysis rests upon what I believe is an erroneous assertion that “these two sections of the Act must be considered together.” (201 Ill. App. 3d at 619.) As support, the majority cites “generally,” Clean Air Coordinating Committee v. Environmental Protection Agency (1976), 42 Ill. App. 3d 124, 127, 355 N.E.2d 573, and Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill. App. 3d 1023, 1035, 530 N.E.2d 682. Those cases fail to support a holding that sections 33 and 40.1 must be read together.
In Clean Air, the question was whether an application for rehearing to the Board could be filed during an indefinite period. If so, the Act characterized the application as the commencement of an entirely new proceeding before the Board. The Board’s rule provided that the application for rehearing could be filed within 35 days after the final order or in “such further time as the Board may allow.” Thus, it appeared to describe an indefinite period and therefore would constitute a new proceeding. Yet, the last sentence of the Board rule stated that a petition filed in apt time stayed enforcement of the final order, and, thus, the rehearing apparently was not a new proceeding. This court resolved the confusion by reading together the 35-day or “in such further time” language, with the last sentence. It held that the application for rehearing had to be filed either within 35 days or within such further extension as may be initiated within the original 35 days, and thus it was not a new proceeding and would stay enforcement of the final order. Clean Air, 42 Ill. App. 3d at 127.
In Waste Management, this court faced an apparent inconsistency in the Act. The question was whether the local county board could establish procedures for conducting the local siting approval hearings. Section 39.2 stated that the procedures “provided for in this Act” were “exclusive.” Yet section 40.1 stated the “procedures used by the county board” had to be fundamentally fair. The Act provided no procedures for conducting local hearings. The apparent inconsistency required that the court “read together” the two provisions. It held that the county board could establish procedures for local hearings, as long as the procedures were not inconsistent with the Act and were fundamentally fair. Waste Management, 175 Ill. App. 3d at 1035-36.
Both Clean Air and Waste Management involve statutory conflicts requiring resolution by reading one provision in such a way as to explain or define the other provision and thereby avoid any apparent contradiction. The case before us presents so such contradiction. One provision requires final action, an order, within 120 days. Another provision requires written findings and reasons for the order without specifying any time limit and without requiring the opinion to be filed simultaneously with the order. No conflict exists. Nothing ties the one provision to the other. I believe that artificially forcing the provisions together creates a new, meaningless and unintended requirement.
“Orderly rules of procedure are necessary in order that appellate review may be had of agency findings, but empty formalities devoid of either substantive or procedural benefit have no place in the normal scheme for administrative review unless Congress chooses to place them there.” (United States v. Benmar Transport & Leasing Corp. (1979), 444 U.S. 4, 6, 62 L. Ed. 2d 5, 8, 100 S. Ct. 16, 17 (after a petition for judicial review had been filed in court, the agency could properly grant a motion for rehearing to correct errors, where the reopening on the agency level would not interfere with the judicial review).)
I believe that to require the Board to file the order and opinion simultaneously in the present factual setting is meaningless.
I also note that the Act envisions two separate documents, an order and an opinion. (The Board rules also repeatedly refer to two separate documents, an “order” and an “opinion.” See 35 Ill. Adm. Code. § 103.224 (1985).) For example, section 33(a) of the Act requires the Board to “enter such final order *** as it shall deem appropriate.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. HV-k, par. 1033(a).) The Board complied by filing its final order on July 13, 1989.
Section 33 also requires the Board to “file and publish a written opinion stating the facts and reasons leading to its decision.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. IIIV2, par. 1033(a).) Thus, it is only the opinion, and not the order, which must include findings. The Board complied by filing its written opinion stating facts and reasons on August 10, 1989.
Section 33 mandates only that the Board notify respondent of the order (Ill. Rev. Stat. 1987, ch. IIIV2, par. 1033(a)), and only the order is enforceable (Ill. Rev. Stat. 1987, ch. HV-k, par. 1033(d)). And, it is a violation of the order which subjects respondent to civil penalties in an action brought by the State’s Attorney or Attorney General. Ill. Rev. Stat. 1987, ch. lll1^, par. 1042.
Section 40.1(a) provides that the Board has 120 days to take “final action” (Ill. Rev. Stat. 1987, ch. lll1^, par. 40.1(a).) The Board complied by filing its order within the 120-day limit, plus the agreed-to extensions. Nothing in the Act states that the 120-day limit also applies to the opinion.
Notably, section 40.1 refers to section 33 only in saying that “[a]t such hearing the rules prescribed in Sections 32 and 33(a) *** shall apply,” and the burden of proof is on petitioner, and no new evidence may be received. (Ill. Rev. Stat. 1987, ch. HV-k, par. 1040.1(a).) Thus, section 40.1 incorporates only the hearing procedure factors of section 33. The incorporation does not relate to the issuance of the Board’s order or opinion.
I believe that the question here is not whether the Act mandates the filing of a written opinion simultaneously with the order. Instead, it is whether the law permits the subsequent filing of the opinion.
The majority repeatedly points to the long-recognized principle that an agency’s specified reasons for its decision enable a court to fully and completely review the decision. (Wells Manufacturing Co. v. Pollution Control Board (1978), 73 Ill. 2d 226, 383 N.E.2d 148; Mystik Tape v. Pollution Control Board (1975), 60 Ill. 2d 330, 328 N.E.2d 5; Illinois Power Co. v. Pollution Control Board (1985), 137 Ill. App. 3d 449, 484 N.E.2d 898.) The principle for which the cases stand, however, is not at issue here, since the Board’s opinion spelled out its reasoning in detail and enabled us to fully review the decision.
The majority finds the law does not permit the order standing alone, absent the findings and reasons underlying the order, to be considered “final action.” (111. Rev. Stat. 1987, ch. HV-k, par. 1040.1(a).) The only law it cites is Clean Air. In that case, the Board filed both a timely order and an opinion on January 9, and the EPA filed a timely motion for reconsideration on February 5. While that motion was pending before the Board, on February 13, the EPA filed for judicial review before this court. On February 14, the Board filed a second order and opinion, in which it made “a material and substantive revision of the Board’s earlier decision.” (Clean Air, 42 Ill. App. 3d at 128, 355 N.E.2d at 576.) The court held that the February 13 petition for review in this court was premature and ineffective to serve as a notice of appeal. The EPA could not appeal until February 14, when the Board entered the decision on the motion for reconsideration and thereby terminated the proceedings before the Board.
In the present case, the filing of a premature appeal is not an issue. The Board issued its order, then its opinion, and petitioner filed a motion for reconsideration. The Board then denied that motion, all prior to the filing for administrative review in this court.
An agency action is final when the administrative decision making has reached a stage where judicial review will not disrupt the orderly process of adjudication, and rights or obligations have been determined or legal consequences will flow from the agency action. (Bell v. New Jersey (1983), 461 U.S. 773, 76 L. Ed. 2d 312, 103 S. Ct. 2187; Abbott Laboratories v. Gardner (1967), 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507.) Determinations of finality are based on a “pragmatic” and “flexible” approach. (Abbott Laboratories v. Gardner, 387 U.S. at 149-50, 18 L. Ed. 2d at 692, 87 S. Ct. at 1516.) Courts take a case-by-case approach to determining finality. See generally J. Stein, G. Mitchell, B. Mezines, 5 Administrative Law §48.03[1] at 48 — 15, 48-16 (1988).
Under the Environmental Protection Act, the orderly process of adjudication of appealing the municipality’s denial of a request for section 39.2 local siting approval for construction of a solid waste transfer station before the Board consists of: filing a petition for a hearing before the Board; the Board’s publication of notice of the hearing; the hearing itself; and the Board’s taking final action within 120 days of the petition’s filing. Ill. Rev. Stat. 1987, ch. llU/a, par. 1040.1(a).
Every step of this orderly process had been completed as of July 13, 1989. Theoretically, petitioner could have immediately filed its appeal in this court. The Board decision was final where it was promulgated in a formal manner; it was definitive; it was not a tentative ruling or ruling of a subordinate official; and the agency expected compliance with it. (See Abbott Laboratories v. Gardner, 387 U.S. at 151, 18 L. Ed. 2d at 693, 87 S. Ct. at 1516-17; see also Bell v. New Jersey, 461 U.S. 773, 76 L. Ed. 2d 312, 103 S. Ct. 2187.) The Board’s decision making process had reached a stage where judicial review would not disrupt the orderly process of adjudication.
In addition, legal consequences flowed from the Board’s July 13 order. Had petitioner proceeded with the implementation of the solid waste transfer station, it would have been in violation of the Act ánd subject to penalties.
The 120-day requirement reflects the legislative concern with bureaucratic delay. (Illinois Power Co. v. Pollution Control Board (1983), 112 Ill. App. 3d 457, 445 N.E.2d 820; Agrico Chemical Co. v. Illinois Pollution Control Board (1973), 13 Ill. App. 3d 45, 299 N.E.2d 803.) As a practical matter, petitioner was given a hearing and final action was determined during the mandated statutory period. From a “pragmatic” and “flexible” approach, the Board order on July 13 was final. In fact, the Board’s opinion was filed within the 35-day time period in which petitioner could have filed a motion for reconsideration, or a petition for review in this court, neither of which it chose to do at that time. Therefore, the adjudication process of neither the agency nor of the court was interfered with and both continued in an orderly fashion, without prejudice to petitioner.
This split in time in filing an order and its supporting opinion with reasons and findings has been approved in other contexts. For example, under the Federal statute, 5 U.S.C. §553 (1988), a statement of reasons need not
“be published at precisely the same moment as the regulations. The agency must be allowed some latitude for technical difficulties. The enquiry must be whether the rules and statement are published close enough together in time so that there is no doubt that the statement accompanies, rather than rationalizes the rules.” (Emphasis added.) Tabor v. Joint Board For the Enrollment Of Actuaries (D.C. Cir. 1977), 566 F.2d 705, 711 n.14 (the case was dismissed because Board filed findings six months after publication of temporary rules, and ten weeks after publication of the final rules; court held the statement of reasons was nothing but a litigation document, i.e., post hoc rationalizations supplied purely for litigation purposes).
The Tabor holding was followed in Baltimore & Ohio Chicago Terminal R.R. Co. v. United States (3rd Cir. 1978), 583 F.2d 678, 688: “[T]he mere failure to publish the statement of the rule’s basis and purpose at the same moment as the regulations are published does not constitute a violation of §553(c).” A two-month delay beyond the statutory limit was permitted where the court found the report and order more than fulfilled the statutory purpose of facilitating judicial review. See also ITT World Communications, Inc. v. Federal Communications Comm’n (2d Cir. 1980), 621 F.2d 1201, 1204 (court holds that agency’s December 12, 1979, decision was a “final order” although written opinion stating reasons and findings was not released for three weeks); Westinghouse Electric Corp. v. United States Nuclear Regulatory Comm’n (3d Cir. 1979), 598 F.2d 759, 768 n.35 (The court noted that the initial December 23 order, without the required findings, could be a final order because it met the conditions of finality. “Indeed, in contrast to the December 23 decision, the May 8 Memorandum had no practical consequence.” It was important, however, that the statement of reasons was not a post hoc rationalization devised just for litigation purposes).
Here, the order and opinion were filed within a very short time of each other, and there was no interference with judicial review. The return of the Board member who held the fourth vote in the majority in this 4 to 3 decision permitted the immediate filing of the opinion.
A similar split in filing the order and opinion occurred, without comment by this court, in People v. Pollution Control Board (1983), 113 Ill. App. 3d 232, 446 N.E.2d 915, rev’d on other grounds sub nom. Pioneer Processing, Inc. v. Environmental Protection Agency (1984), 102 Ill. 2d 119, 464 N.E.2d 238. In that case, the Board filed its order on February 16, 1982, within the applicable 90-day period. It delayed filing its opinion until March 4, 1982, about 16 days after the 90-day period had run.
Moreover, there has been no showing of prejudice suffered by petitioner as a result of the short delay between releasing the order and the opinion. This absence of prejudice exists even if petitioner had filed a petition for review in this court prior to the Board’s release of the August 10 opinion. (See Richerson v. Jones (3d Cir. 1977), 551 F.2d 918, 922-23 & n.6a (premature appeal taken from an order which is not final but which is followed by an order that is final may be regarded as an appeal from the final order in the absence of a showing of prejudice to the other party).) In the present case, petitioner suffered no harm. Yet a severe burden would be imposed on the community involved, and on the resources of the municipal and administrative agencies involved, if we deny judicial review under the circumstances before us. See Citizens Against Randolph Landfill (CARL) v. Pollution Control Board (1988), 178 Ill. App. 3d 686, 533 N.E.2d 401 (180-day deadline considered waived where court finds injustice would result, including denial of the right of citizens of county to an adjudication of the disposal company’s application on its merits).
The majority also finds that the Board’s July 13 order indicates it intended to delay “final action” until the August 10 opinion was filed. It is appropriate to consider an administrative agency’s intent in taking certain action. People v. Pollution Control Board (1983), 113 Ill. App. 3d 282, 446 N.E.2d 915, rev’d on other grounds sub nom. Pioneer Processing, Inc. v. Environmental Protection Agency (1984), 102 Ill. 2d 119, 128, 464 N.E.2d 238 (The Board’s failure to issue decision in 90 days was not an attempt to circumvent section 40 requirement. “[T]he Board was conscientious in attempting to comply with the 90-day limit.”); Cf. Marquette Cement Manufacturing Co. v. Pollution Control Board (1980), 84 Ill. App. 3d 434, 405 N.E.2d 512 (Board’s conduct was a transparent attempt to circumvent the 90-day requirement).
Here, the Board majority clearly intended to meet the 120-day time limit. The statutory deadline was June 27. Petitioner waived the deadline in writing, and a deadline of July 13 was set. The order was filed that day. The Board then filed the opinion 28 days later, at the next Board meeting when the member who held the swing vote was present.
Moreover, there is no indication that the Board tried to mislead petitioner, or to circumvent the 120-day requirement, e.g., by failing to hold a hearing or issue a final decision as to whether it would affirm or reverse the local board’s decision to deny the petition. The order states that the Village’s denial of site suitability is “hereby affirmed.” It contains no suggestion of the effective date being at some time in the future. The statement that the time period for filing the motion for reconsideration would not start to run until August 10 does not indicate the Board did not intend the July 13 order not to have legal effect until August 10. Instead, it extended the time for 28 days purely for petitioner’s benefit.
I would conclude that the July 13 order was “final action,” and that the August 10 opinion did not need to be filed simultaneously with the order. I would reach the merits of the case and affirm the Board’s decision to deny petitioner’s application.