ILLINOIS POLLUTION CONTROL BOARD

December 1, 1994

MONTGOMERY WARD & CO.,

)

INCORPOPATED,

)

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. 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.

Currently the Agency issues a State Voucher and an

“Attachment A” which contains the stated reasons for deductions

as its final determination letter. The State Voucher states that

“fJor the purposes of appeal, this voucher constitutes the

Agency’s final decision as of the date the check was issued by

the Comptroller.” Thus, following the statement made on the

State Voucher the issuance date of the Comptroller’s

reimbursement check is the date of the Agency decision, which was

Friday September 2, 1994. Therefore, pursuant to the Board’s

procedural rules the 35 day period began on Saturday, September

3, 1994, and ended Friday October 7, 1994.

However, Montgomery Ward points out that the attachment 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.

---

2

Code 105.102(a) (2)).

Montgomery Ward claims that it contacted the Warrant Distribution

Section of the Comptroller’s office and ascertained that the

check was mailed on September 6, 1994. Following the Board

procedural rules the 35-day period began on September 7, 1994 and

ended on October 12, 1994 thus making Montgomery Ward’s appeal

timely.

On November 23, 1994 the Agency filed a response to

Montgomery Ward’s motion for reconsideration. The Agency

response reiterates the Board’s procedural rules on the

computation of time and states that the appeal was 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.

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 today, the Board directs Montgomery Ward to file the

appropriate affidavit within 21 days from the date of this order

together with a waiver of the decision deadline or alternatively

a 120-day extension of such deadline. The Board will rule on the

motion for reconsideration at our next regularly schedule meeting

following timely receipt of the appropriate affidavit.

IT IS SO ORDERED.

Board Member Joseph Yi abstained.

I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control

Boa~d,hereby certify that the above order was adopted. on the

/..i17

day of

_______________,

1994, by a vote of

_______

/ -~ ~

~

Dorothy M. Gin, Clerk

Illinois PoEjution Control Board