ILLINOIS POLLUTION CONTROL BOARD
January
9,
1992
O’BRIEN TIRE AND BATTERY
)
SERVICE,
)
Petitioner,
v.
)
PCB 91—212
)
(Underground Storage Tank Fund
Reimbursement Determination)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by B.
Forcade):
On November
6,
1991,
O’Brien Tire and Battery
Service filed
a
letter with attachments
which purports to be
an
appeal
of
an
August
1,
1991 Agency underground storage tank fund reimbursement
determination.
The letter was not accompanied by the $75.00 filing
fee specified in Section 101.120(b) of the Board’s procedural rules
and 7.2 of the Act.
On November 13,
1991,
the Agency filed
a motion
to dismiss
this appeal
on the grounds that
it
was untimely filed.
Due to alleged confusion surrounding the November
6 filing,
by Order of November 21,
1991 the Board granted O’Brien 30 days in
which to file an amended petition and the filing
fee,
as well
as
to
address timeliness
issues raised
in the Agency’s November 13
motion.
Consistent with the November
21
Order,
on December
18,
1991 O’Brien filed an amended petition as well as a response to the
Agency’s motion to dismiss.
For
the
reasons
outlined
below,
the
Agency’s
motion
to
dismiss this action as untimely filed is hereby granted.
As
the
Agency
correctly
notes,
the
statutory
basis
for
commencement of this action is Section 22.18b(g)
of the Act which
provides for appeals of Agency Underground Storage Tank (UST)
Fund
Reimbursement determinations “in the manner provided for the review
of permit decisions in Section 40”; Section 40 states in pertinent
that “the applicant may, within 35 days, petition for a hearing”.
Ill.
Rev. Stat.,
ch.
111 1/2,
pars. 22.l8b(g) and 40(a)(l).
It
is
undisputed that the Agency made its UST determination
in
a letter
dated August
1,
1991
addressed to Mr.
Earl Buenger.
The Agency
determined that some costs were reimbursable, but that others were
not.
The
reimbursable amount was determined
to be
$132,404.80,
129—73
2
less a $10,000 deductible.
Ineligible
costs were determined to be
$14,742.82.
This
letter,
mailed August
2,
1991,
clearly stated
that:
As a result of the Agency~sreview,
a
voucher for $107,661.98
has been prepared for submission
to the Comptrollers Office
for payment.
This constitutes the Agency’s final action with
regard to the above
invoices.
An underground storage tank
owner or operator may appeal this decision to the Illinois
Po31lution Control Board
(Board) pursuant to Ill.
Rev.
Stat.
1989, Chap.
ill 1/2, Para.
1022.l8B(g) and 1040.
An owner or
operator who seeks to appeal the Agency decision shall
file
a petition for a hearing before the Board within
35 days of
the date of mailing of the Agency’s
final decision
(35 Ill.
Adm. Code 105.102(a) (2)).
Any appeal of this decision was accordingly due to be filed
with the Board on or before September 6,
1991.
No such appeal was
filed.
However, by letter dated September 10,
1991,
to the Agency’s
Ms.
Angela
Tin,
O’Brien’s
environmental
consultant,
Joseph
C.
Welsch expressed disagreement with the Agency’s cost computations.
Ms.
Tin
responded
to
this
letter
by
a
letter
of
September
18
addressed to Mr. Buenger.
The Agency’s letter noted
its receipt
of
the
September
10
letter
(from
Mr.
Welsch)
“requesting
a
reconsideration”
of
the
reimbursement
amount
and
restated
its
determination made
in the August
1 letter that the reimbursement
amount was $107,661.98.
The letter went on to say that:
In the same letter, you were notified of your right to appeal
the Agency’s decision.
Appeals must be made to the Illinois
Pollution Control Board.
Please refer to the August
1,
1991,
letter if you wish to file an appeal.
On September 25, 1991,
Mr. Welsch sent a letter addressed to:
Illinois Environmental Protection Agency
Illinois Pollution Control Board
P.O. Box 19276
Springfield,
IL
62794—9276
In this letter, Mr. Welsch expressed O’Brien’s wish “to appeal
the reimbursement amount” and requested advice as to the
forms
and
procedure necessary to “formally appeal” the determination.
The Board has no record of receipt of the September 18,
1991
letter.
On November
6,
1991, the Board received a letter directed to
the
Clerk
from
Mr.
Welsch.
The
letter
referenced
the
above
described correspondence,
and noted
that
an Agency attorney had
129—74
3
telephoned late during the week of October 28
in response to the
September 25 letter,
advising:
that the ICPB was located in Chicago, that
I should contact
Ms.
Adeline Hogan
for further more specific information on
appeals,
and that O’Brien was probably too late to register
their appeal.
This is why I am writing to you.
I believe that a good faith
eff,ort was made to meet the time limits specified for appeals,
and thus our attempt to appeal should be permitted.
In its motion to dismiss, the Agency argues that this appeal
is time-barred.
The Agency notes that:
It
is
well
settled
that
a
party
seeking
review
of
an
administrative decision must act within the time allotted by
the particular statute.
An identical time period of thirty-
five days is provided for the commencement of actions under
Section 3-103 of the Administrative Review Act.
The case law
is clear that this limit is
a jurisdictional requirement and
cannot be waived.
See e.g.,
Fredman Brothers Furniture Co.
Inc.
v.
Illinois Department of Revenue,
129 Ill; App.
3d 38,
471 N.E.
2d 1037,
(1984); Matter of Crotty,
115 Ill.
App.
3d
248,
450 N.E.
2d 399,
(1983); Robinson v. Regional Board of
School Trustees,
Randolph County,
130 Ill.
App.
3d 509,
474
N.E.
2d 1356,
(1985).
In response, O’Brien argues through its attorney that this is
not an appeal of a permit, that Section 22.l8b(g) and 40(a) (1)
of
the Act refer only to permit appeals, that there are no regulations
governing the “procedure for negotiating conflicting opinions as
to
reasonability
or
necessity
of
agency
requirements
and
determinations”,
and that the file in the matter reflected a good
faith attempt by O’Brien’s project matter to resolve this matter
with
the
Agency.
O’Brien
asserts
that
it
is
“totally
understandable how
a non-lawyer could be confused and that there
would be
a
substantial passage
of
time”,
given the
efforts
the
attorney made in his first attempt to solve the matter in terms of
locating the Board and requesting information from the Board and
the Agency.
In support of its claim that this case should proceed,
O’Brien further cites Wildwood md.
.v.
Ill. Human Rights Comm.,
162
Ill.
Dec.
546,
580
N.E.
2d
172
(1991)
as
holding
that
the
limitation
for
filing
a
complaint
was
directory
only
and
not
mandatory.
O’Brien
concludes
that
“petitioner
should
not
be
deprived of due process based strictly on a technicality”.
The Board
is not persuaded by O’Brien’s arguments.
Contrary
to O’Brien’s assertion, Section 22.l8b(g) specifically states that
if, as here, the Agency authorized only a partial reimbursement (as
was the case here),
the owner
or operator may petition the Board
for
a
hearing
“in
the
manner
provided
for
review
of
permit
129—75
4
decisions
in
Section 40”
the Board’s
permit
appeal
procedural
rules have been on file with the Secretary of State since
1978.
The Wildwood case cited by O’Brien for the proposition that the 35
day appeal period of Section 40 is directory and not mandatory is
inapposite to the instant case.
While
a 300 day filing deadline
was ruled directory in Wildwood,
the statute being construed was
determined to be ambiguous,
having been twice amended in response
to rulings by both the Illinois and United States Supreme Courts.
The court made extensive use of legislative history in attempting
to construe the statute. 580 N.E. 2d at 175-177.
In contrast, the
35 day f~i1ingdeadline of Section 40(a)~l)has remained unchanged
since the adoption of the Act.
Petitioner was advised
of that
deadline in the Agency’s letter of August
1.
O’Brien did not even
file its September 10
letter with the Agency during the
35 day
period.
1
Under these circumstances, the Board has no choice but
to dismiss the petition as untimely filed.
IT IS SO ORDERED.
I., Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board
hereby certify
at the above Order was adopted on the
_______
day of ___________________________
,
1992, by a vote of
L21
1
The Agency has no statutory authority to reconsider permit
decisions.
Reichold Chemicals v.
PCB,
204
Ill. App.
3d 674,
561
N.E.
2d 1343
(1990).
When the Agency denies an application,
the
applicant’s only options are to start over with a new application
to the
Agency or to petition the Board for review.
I
Control Board
129—76