ILLINOIS POLLUTION CONTROL BOARD
January 11, 1995
MONTGOMERY WARD & CO.,
INCORPORATED,
Petitioner,
v.
)
PCB 94—289
(UST Fund)
ILLINOIS ENVIRONMENTAL,
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD (by C. A. Manning):
On October 11, 1994, Montgomery Ward & Co., Incorporated
(Montgomery Ward) filed by personal delivery a petition for
review of an Illinois Environmental Protection Agency (Agency)
final reimbursement determination from the Underground Storage
Tank
Fund (UST). The Board on October 20, 1994 dismissed this
matter for lack of jurisdiction, finding that Montgomery Ward
failed to appeal the Agency determination within the 35-day
statutory period to appeal pursuant to Section 40 of the
Environmental Protection Act (Act). (415 ILCS 5/40 (1992).) On
November 9, 1994 Montgomery Ward filed a motion for
reconsideration of that order.
Montgomery Ward argued in its motion that in addition to the
language in the state voucher, which is the Agency’s final
determination on a UST Fund reimbursement, that states “(f)or the
purposes of appeal, this voucher constitutes the Agency’s final
decision as of the date the check was issued by the Comptroller”,
“Attachment A” to the state voucher contains the following
language:
The attached invoice constitutes the Agency’s final
decision on your leaking underground storage tank bill.
You may appeal this decision to the Illinois Pollution
Control Board (Board) pursuant to Section 22.18(b) (g)
and Section 40 of the Illinois Environmental Protection
Act. You have 35 Calendar days from the date the
Comptroller mails the accompanying check to file a
petition for a hearing with the Board ((35 Ill. Adm.
Code 105.102 (a) (2)).
Montgomery Ward contends that it contacted the Warrant
Distribution Section of the Comptroller’s office and ascertained
that the check was mailed on September 6, 1994. Montgomery Ward
argues that, following the Board’s procedural rules the 35-day
period began on September 7, 1994 and ended on October 12, 1994
2
thus making Montgomery Ward’s appeal timely.
The Agency filed a response to Montgomery Ward’s motion for
reconsideration on November 23, 1994. The Agency response
reiterated the Board’s procedural rules on the computation of
time and argues that the appeal is untimely. The Agency also
points to previous Board decisions where the Board calculated the
35-day period for time to appeal from the date of issuance of the
Comptroller’s check. However, the Agency does not respond to the
conflicting statements made in its final determination letter.
However, Montgomery Ward failed to supply the Board with an
affidavit attesting to the facts alleged, i.e., that the
Comptroller mailed the check on September 6, 1994. Therefore,
instead of ruling on the motion, the Board directed Montgomery
Ward to file the appropriate affidavit within 21 days from the
date of the December 1, 1994 order together with a waiver of the
decision deadline or alternatively a 120—day extension of such
deadline. On December 19, 19994 Montgomery Ward filed the
supporting affidavit and a 120-day extension of the decision
deadline. For the reasons stated below we grant Montgomery
Ward’s motion for reconsideration and set this matter for
hearing.
The Board’s procedural rule at 35 Ill. Adm. Code
105.102(a) (2) concerning permit appeals provides that such a
petition for hearing shall be filed with the Board “within 35
ThedaysBoardof
thehasdatein
theof
mailingpast
determinedof
the Agency’sthat
“datefinalofdecision.”mailing”
1is
the date of issuance of the Comptroller’s check. (David Geuther
and Fehr—Graham & Associates v. Illinois Environmental Protection
Aciency, (February 3, 1994), PCB 93-232 and PCB 94—53 cons.)
However, the Board has also determined that petitioner may
demonstrate that the “date of mailing” actually occurred after
the date of the Comptroller’s check. (City of Elgin v. Illinois
Environmental Protection Agency, (February 3, 1994) PCB 93-246.)
In Geuther, the Board noted reservations that the Agency’s
obligation to make a final determination, which cannot be
amended, is extended while the invoice voucher is awaiting
payment by the Comptroller. (David Geuther and Fehr-Graham &
Associates v. Illinois Environmental Protection Agency, (February
3, 1994), PCB 93—232 and PCB 94-53 cons.) We are equally
concerned that the petitioner’s statutory appeal period may be
1Section 22.18b(g) of the Act (415 ILCS 5/22.18b(g) (1992))
provides that appeals of Agency reimbursement decisions are
governed by Section 40 of the Act. (415 ILCS 5/40 (1992))
Section 40 of the Act sets forth the procedure by which a permit
applicant may appeal to the Board the Agency’s determination of
the applicant’s permit.
3
shortened as the result of the Comptroller’s office delaying the
mailing of the check after its issuance date. Therefore, the
issuance date of the Comptroller’s check is the “date of mailing”
for the purposes of calculating the 35—day statutory period,
unless petitioner demonstrates otherwise as Montgomery Ward has
here.
Thus, the Agency’s final determination was made on September
6, 1994, the date the Comptroller’s office mailed the final
decision. The Board’s procedural rule at 35 Ill. Adm. Code
101.109 states:
Computation of any period of time prescribed by this
Chapter or the Act shall begin with the first calendar
day following the day on which the act, event or
development occurs and shall run until the end of the
last day, or the next business day if the last day is a
Saturday, Sunday or national or state legal holiday.
Therefore, the 35-day period for Montgomery to file an appeal
with the Board began on September 7, 1994 and ended on October
11, 1994. Montgomery filed by personal service on October 11,
1994, thus making this appeal timely. The Board accordingly
vacates its order of October 20, 1994.
This matter is accepted for hearing. The hearing must be
scheduled and completed in a timely manner, consistent with Board
practices and the applicable statutory decision deadline, or the
decision deadline as extended by a waiver. (Petitioner may file
a waiver of the statutory decision deadline pursuant to 35 Ill.
Adm. Code 101.105). The hearing officer shall assign a hearing
officer to conduct hearings. The Clerk of the Board shall
promptly issue appropriate directions to the assigned hearing
officer consistent with this order.
The assigned hearing officer shall inform the Clerk of the
Board of the time and location of the hearing at least 40 days in
advance of hearing so that public notice of hearing may be
published. After hearing, the hearing officer shall submit an
exhibit list, a statement regarding credibility of witnesses and
all actual exhibits to the Board within five days of the hearing.
Any briefing schedule shall provide for final filings as
expeditiously as possible and, in time—limited cases, no later
than 30 days prior to the decision due date, which is the final
regularly scheduled Board meeting date on or before the statutory
or deferred decision deadline. In this case, the statutory
decision deadline is July 14,
1995.2
2We note that petitioners filed an extension of the decision
deadline in this case when it filed its affidavit in support of
4
If after appropriate consultation with the parties, the
parties fail to provide an acceptable hearing date or if after an
attempt the hearing officer is unable to consult with the
parties, the hearing officer shall unilaterally set a hearing
date in conformance with the schedule above. The hearing officer
and the parties are encouraged to expedite this proceeding as
much as possible. The Board notes that Board rules (35 Ill. Adm.
Code 105.102) require the Agency to file the entire Agency record
of the permit application within 14 days of notice of the
petition.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby cer fy that the above order was adopted on the
//t~day of
_______________,
1995, by a vote of
______
Dorothy M./9~1nn, Clerk
Illinois P~1lution Control Board
its motion for reconsideration. Montgomery Ward provided the
Board with a 120-day extension of the decision deadline, which
was March 16, 1995, now making the decision deadline July 14,
1995. The decision due date for this case will be the regularly
scheduled Board meeting preceding July 14, 1995.