ILLINOIS POLLUTION CONTROL BOARD
August
3,
1995
SOUTHERN FOOD PARX,
INC.,
)
(CARTERVILLE/HAN-DEE
MART
#35),
)
)
Petitioner,
v.
)
PCB 96—15
)
(UST Fund Ninety-Day
)
Extension)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by C.A. Manning):
On July 26,
1995,
Southern Food Park,
Inc.,
(Southern)
filed
a notice of extension of the 35—day appeal period pursuant to
Section 40 of the Act, relating to a June 19,
1995 Illinois
Environmental Protection Agency (Agency) UST determination.
On
August 1,
1995, the Agency filed its agreement to the extension.
P.A. 88—690
(SB1724)
effective January 24,
1995, amends
Section 40(c), which governs the appeal process, to provide:
the 35-day period for petitioning for a hearing may be
extended for a period of time not to exceed 90 days by
written notice provided to the Board from the applicant
and the Agency within the initial appeal period.
Accordingly, any complete notice was due to be filed or
postmarked no later than July 24,
1995.
(See 35 Adm. Code
101.102(d)
and 101.109.) Although Southern’s Notice was
postmarked July 21,
1995,
the Agency’s agreement was not
postmarked until July 28,
1995 and therefore under amended
Section 40(c),
both parties did not file “within the initial
appeal period.”
Because the
statutory conditions for the
extension have not been met, the Board cannot grant a 90—day
extension of the time in which to file a appeal pursuant to
Section 40(c).
The Board can however, accept Southern’s notice of extension
as a petition for review so that Southern will not lose its right
to file a appeal as result of the
Agency’s late—filed notice of
extension.
Southern’s notice,
of course, does not consitute a
proper petition for review of an Agency UST final determination;
Southern could not have anticipated that its notice would be
treated as a appeal.
In that the Agency’s notice was received,
albeit
late,
it is clear the Agency intended that the extension
2
would be granted; therefore, we will allow 90 days from the date
the notice was due,
or from July 24,
1995,
for Southern to file
an amended petition for review.
If the amended petition is not
filed on or before October 22,
1995,
this matter will be
dismissed.
The 120 statutory period in which the Board must
render a final decision will begin running as of the date of the
filing of the amended petition.
Additionally,
a $75.00 filing
fee will be required at such time as
Southern files the amended
petition.
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control.
Board, hereJ~ycertify that the above order was adopted on the
____
day of
__________________
,
1995,
by a vote of
.5~-’
~
A1
Dorothy M. 9~nn,Clerk
Illinois P~’jution Control Board