ILLINOIS POLLUTION CONTROL BOARD
January 9,
1992
B & W CARTAGE COMPANY,
INC.,
)
Petitioner,
)
v.
)
PCB 91—245
)
(Underground
Storage
Tank Fund
)
Reimbursement Determination)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by B.
Forcade):
On
December
12,
1991 B
& W Cartage filed this appeal of an
October 14, 1991 Agency underground storage tank fund reimbursement
determination.
On December 24, 1991 the Agency filed a motion to
dismiss this appeal as untimely filed.
B
& W filed a response to
the motion on December 31,
1991.
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. 22.18b(g) and 40(a)(l).
It is
undisputed that the Agency made its UST determination in
a letter
dated October 14, 1991 addressed to Mr. Ralph Coughlin.
The Agency
determined
that
B&W
was
eligible
to
seek
reimbursement
for
corrective
action
costs
in
excess
of
$10,000,
but
that
costs
associated
with
5
unregistered
tanks
were
not
eligible.
This
letter, mailed October 16,
1991, clearly stated that:
This constitutes the Agency’s final decision as it relates to
your
eligibility
and
deductible
amounts.
An
underground
storage tank owner or operator may appeal this decision to the
Illinois Pollution Control Board (Board) pursuant to Ill. Rev.
Stat.
1.989,
Chap.
111 1/2,
Para.
1022.18B(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
129—93
2
(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 November 20, 1991.
No such appeal was
filed until December 12.
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
50-9,
474
N.E.
2d 1356,
(1985)
In response,
B
& W asserts that the Agency’s “letter was sent
to the wrong address,
causing a two week delay
in receipt of the
decision”.
The letter was directed to
B
& W at the address from
which the USTS were removed, and B
& W states that the UST5 were
removed because the company was closing its
Chicago
operation.
B&W
does not state whether
or when
it had notified the Agency
of
a
change of address.
The Agency’s October
14 letter made it very clear that the Act
and the Board’s rules specify that an appeal must be filed within
35 days of the date of the mailing of the Agency letter,
and not
the date of its receipt.
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 certi
that the above Order was adopted on the
~7i~
day of ___________________________,
1992,
by a vote of
Dorothy M.,,~unn, Clerk
Illinois ~.6l1utionControl Board
129—94