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