ILLINOIS POLLUTION CONTROL BOARD

PROCEDURAL BACKGROUND
STANDARD OF REVIEW FOR MOTIONS FOR SUMMARY JUDGMENT
FACTS
STATUTORY AND REGULATORY PROVISIONS
AGENCY'S MOTION FOR SUMMARY JUDGMENT
BROADUS OIL’S RESPONSE AND CROSS-MOTION
AGENCY’S REPLY
DISCUSSION
Preliminary Matter
Motion to Consolidate
Discussion on the Merits
CONCLUSION
ORDER

December 21, 2006

BROADUS OIL,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB 04-31

PCB 05-43

(UST Appeals)

(Consolidated)

OPINION AND ORDER OF THE BOARD (by G.T. Girard):

In these consolidated appeals, Broadus Oil (Broadus Oil) challenges two decisions made

by the Illinois Environmental Protection Agency (Agency). The Agency rejected requests for

budget amendments concerning corrective actions at Broadus Oil’ leaking underground storage

tank (UST) site at Main and Broadway Street, Marseilles, LaSalle County. The Agency denied

each request on the grounds that the previous issuance of a No Further Remediation (NFR) letter

barred Agency consideration of the requests.

This matter is before the Board today on the parties’ cross-motions for summary

judgment. For the reasons discussed below, the Board finds that there are no genuine issues of

material fact, and that the Agency is entitled to summary judgment as a matter of law.

PROCEDURAL BACKGROUND

On September 15, 2003, Broadus Oil and the Agency filed a joint request to extend the

appeal period for 90 days that the Board granted on September 18, 2003. On December 15,

2003, Broadus Oil filed an appeal of the Agency’s decision rejecting the amended budget. The

Board accepted the petition on December 18, 2003. On September 2, 2004, the Board opened a

second docket, PCB 05-43 and consolidated the two cases for hearing.

See

Broadus Oil v. IEPA,

PCB 04-31, 05-43 (cons.) (Sept. 2, 2004).

On May 8, 2006, the Agency filed the administrative record (R.) along with a motion for

summary judgment (Mot.). On September 22, 2006, Broadus Oil filed a response and a cross-

motion for summary judgment (Resp). On September 28, 2006, the Agency filed a motion for

leave to file a reply and a response to the cross-motion (Reply). The Board grants the motion for

leave to file a reply.

On December 6, 2006, Broadus Oil filed a motion for leave to consolidate this

proceeding with FedEx Ground Package System, Inc. v. IEPA, PCB 07-12. On December 8,

2006, the Agency filed an objection to the motion to consolidate. The Board denies the motion

to consolidate for the reasons discussed below

STANDARD OF REVIEW FOR MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is appropriate when the pleadings, deposition, admissions on file, and

affidavits disclose that there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483,

693 N.E.2d 358, 370 (1998). In ruling on a motion for summary judgment, the Board “must

consider the pleadings, depositions, and affidavits strictly against the movant and in favor of the

opposing party.”

. Summary judgment “is a drastic means of disposing of litigation,” and

therefore it should be granted only when the movant’s right to relief “is clear and free from

doubt.” Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483, 693 N.E. 2d 358, 370 (1998),

citing Purtill v. Hess, 111 Ill. 2d 299, 240, 489 N.E.2d 867, 871 (1986). However, a party

opposing a motion for summary judgment may not rest on its pleadings, but must “present a

factual basis which would arguably entitle [it] to judgment.”

Gauthier v. Westfall, 266 Ill. App.

3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994).

Both the parties agree that the facts in this proceeding are not in dispute and summary

judgment is appropriate. Mot. at 6; Resp. at 2. The parties argue that the issues involve only

questions of law, specifically the applicability and interpretation of Section 732.405(d) of the

Board’s rules (35 Ill. Adm. Code 732.405(d). The Board has reviewed the filings and agrees

with the parties that there are no issues of material fact and summary judgment is appropriate.

FACTS

On December 17, 2002, the Agency granted a NFR letter to Broadus Oil. Mot. at 3,

citing R. at 1. On December 19, 2002, Broadus Oil recorded the NFR letter. Mot. at 3, citing R.

at 25. On May 13, 2003, Rapps Engineering on behalf of Broadus Oil submitted a high priority

corrective action plan budget amendment for the site. Mot. at 3, citing R. at 37. The budget

amendment included the cost for construction of an engineered barrier and personnel costs

associated with the preparation of the corrective action completion report. R. 41-42.

On August 6, 2003, the Agency issued a determination letter rejecting the amended

budget. R. at 59. The Agency’s denial letter states:

The budget is rejected for the reasons listed below (Section 57.7(c)(4) of the Act

and 35 Ill. Adm. Code 732.405(c) and 732.503(b)).

Pursuant to 35 Ill. Adm. Code 732.405(d), plans submitted to the Agency for

review and approval, rejection or modification in accordance with the procedures

in Subpart E must be submitted prior to the issuance of a No Further Remediation

Letter. This budget was received

after the December 17, 2002 issuance of the No

Further Remediation Letter. R. at 59 (emphasis in the original).

On September 8, 2003, the Agency also issued a determination denying costs that

exceeded the approved budget amounts due to the Agency’s August 6, 2003 decision. R. at 64.

The specific amounts denied included: (1) $24,289.70 because the costs exceeded the budget;

(2) $19.02 because the actual amounts spent on the listed receipts was different than the amount

requested; and (3) $1.26 was an adjustment in the handling charges.

Prior to the submittals at issue in this proceeding, Broadus Oil had submitted previous

plans to the Agency for approval.

See

R. at 37, 64.

STATUTORY AND REGULATORY PROVISIONS

Section 57.7(c)(1)(B) and (c)(2)(B) of the Environmental Protection Act (Act), as

amended by Public Acts 92-574, 92-651, and 92-735 (415 ILCS 5/57.7 (2004), require that if

“the owner or operator intends to seek payment from the fund” a budget must be submitted

which includes an accounting of all cost associated with the implementation of the corrective

action plan.

Section 57.7(e) of the Act, as amended by Public Acts 92-574, 92-651, and 92-735,

provides:

(1)

Notwithstanding the provisions of this Section, an owner or operator may

proceed to conduct physical soil classification, groundwater investigation,

site classification or other corrective action prior to the submittal or

approval of an otherwise required plan. If the owner or operator elects to

so proceed, an applicable plan shall be filed with the Agency at any time.

Such plan shall detail the steps taken to determine the type of corrective

action which was necessary at the site along with the corrective action

taken or to be taken, in addition to costs associated with activities to date

and anticipated costs.

(2)

Upon receipt of a plan submitted after activities have commenced at a site,

the Agency shall proceed to review in the same manner as required under

this Title. In the event the Agency disapproves all or part of the costs, the

owner or operator may appeal such decision to the Board. The owner or

operator shall not be eligible to be reimbursed for such disapproved costs

unless and until the Board determines that such costs were eligible for

payment. 415 ILCS 5/57.7(e) (2004).

Section 57.8 of the Act in pertinent part provides:

If an owner or operator is eligible to access the Underground Storage Tank Fund

pursuant to an Office of State Fire Marshal eligibility/deductible final

determination letter issued in accordance with Section 57 .9, the owner or

operator may submit a complete application for final or partial payment to the

Agency for activities taken in response to a confirmed release. An owner or

operator may submit a request for partial or final payment regarding a site no

more frequently than once every 90 days.

(a)

Payment after completion of corrective action measures. The owner or

operator may submit an application for payment for activities performed at

a site after completion of the requirements of Sections 57.6 and 57.7 or

after completion of any other required activities at the underground

storage tank site.

* * *

(5)

In the event that costs are or will be incurred in addition to those approved

by the Agency, or after payment, the owner or operator may submit

successive plans containing amended budgets. The requirements of

Section 57.7 shall apply to any amended plans. 415 ILCS 5/57.8 (2004)

Section 57.10(c)(1) of the Act provides

(c)

The Agency’s issuance of a no further remediation letter shall signify, based on

the certification of the Licensed Professional Engineer, that:

(1)

all statutory and regulatory corrective action requirements

applicable to the occurrence have been complied with. 415 ILCS

57.10(c)(1) (2004).

Section 732.405(d)

of the Board’s underground storage tank regulations, addressing

releases reported between September 23, 1994 and June 23, 2002, provides:

Notwithstanding subsections (a), (b), (e), and (f) of this Section and except

as provided at Section 732.407 of this Part, an owner or operator may

proceed to conduct Low Priority groundwater monitoring or High Priority

corrective action activities in accordance with this Subpart D prior to the

submittal or approval of an otherwise required groundwater monitoring

plan or budget plan or corrective action plan or budget plan. However,

any such plan and budget plan shall be submitted to the Agency for review

and approval, rejection, or modification in accordance with the procedures

contained in Subpart E of this Part prior to payment for any related costs

or the issuance of a No Further Remediation Letter.

BOARD NOTE: Owners or operators proceeding under subsection (d) of

this Section are advised that they may not be entitled to full payment from

the Fund. Furthermore, applications for payment must be submitted no

later than one year after the date the Agency issues a No Further

Remediation Letter. See Subpart F of this Part.

Section 732.405(e) provides:

The Board notes that Section 732.405(d) was amended on February 16, 2006.

See

Proposed

Amendments to Leaking Underground Storage Tanks (35 Ill. Adm. Code 732, 734), R04-22, 23

(Feb. 16, 2006). The text quoted in this opinion is the language as amended on February 16,

2006.

If, following approval of any groundwater monitoring plan, corrective

action plan or associated budget plan, an owner or operator determines

that revised procedures or cost estimates are necessary in order to comply

with the minimum required activities for the site, the owner or operator

shall submit, as applicable, an amended groundwater monitoring plan,

corrective action plan or associated budget plan for review by the Agency.

The Agency shall review and approve, reject, or require modifications of

the amended plan or budget plan in accordance with the procedures

contained in Subpart E of this Part.

Section 732.702 sets forth the requirements for a No Further Remediation Letter and

provides:

A No Further Remediation Letter issued pursuant to this Part shall include all of

the following:

An acknowledgment that the requirements of the applicable report

were satisfied;

A description of the location of the affected property by adequate

legal description or by reference to a plat showing its boundaries,

or, for purposes of Section 732.703(d) of this Part, other means

sufficient to identify site location with particularity;

A statement that the remediation objectives were determined in

accordance with 35 Ill. Adm. Code 742, and the identification of

any land use limitation, as applicable, required by 35 Ill. Adm.

Code 742 as a condition of the remediation objectives;

A statement that the Agency’s issuance of the No Further

Remediation Letter signifies that:

All corrective action requirements

under Title XVI of the

Act and this Part

applicable to the occurrence have been

complied with;

All corrective action concerning the remediation of the

occurrence has been completed; and

No further corrective action concerning the occurrence is

necessary for the protection of human health, safety and the

environment

[415 ILCS 5/57.10(c)(1)-(3)], or, if the No

Further Remediation Letter is issued pursuant to Section

732.411(e) of this Part, that the owner or operator has

demonstrated to the Agency’s satisfaction an inability to

obtain access to an off-site property despite best efforts and

therefore is not required to perform corrective action on the

off-site property in order to satisfy the corrective action

requirements of this Part, but is not relieved of

responsibility to clean up portions of the release that have

migrated off-site;

The prohibition under Section 732.703(e) of this Part against the

use of any site in a manner inconsistent with any applicable land

use limitation, without additional appropriate remedial activities;

A description of any approved preventive, engineering, and

institutional controls identified in the plan or report and

notification that failure to manage the controls in full compliance

with the terms of the plan or report may result in voidance of the

No Further Remediation Letter;

The recording obligations pursuant to Section 732.703 of this Part;

The opportunity to request a change in the recorded land use

pursuant to Section 732.703(e) of this Part;

Notification that further information regarding the site can be

obtained from the Agency through a request under the Freedom of

Information Act [5 ILCS 140]; and

Any other provisions agreed to by the Agency and the owner or

operator.

AGENCY'S MOTION FOR SUMMARY JUDGMENT

The Agency asserts that there are no genuine issues of material fact and the Agency is

entitled to summary judgment as a matter of law. Mot. at 1. The Agency claims that the issue in

this proceeding is whether the Agency can consider a high priority corrective action plan budget

amendment after the issuance of a NFR letter. Mot. at 2. The Agency asserts that the language

of the rule is clear that budget plans must be submitted prior to the issuance of a NFR letter.

Mot. at 6. The Agency argues that because the Agency mailed to Broadus Oil the NFR letter on

December 17, 2003 and the NFR letter was recorded on December 19, 2002, the Agency could

not review the submission of a budget amendment filed on May 13, 2003.

. The Agency

maintains that the Agency is prohibited from reviewing the amendment because of the language

of Section 732.405(d).

BROADUS OIL’S RESPONSE AND CROSS-MOTION

Broadus Oil agrees that summary judgment is appropriate as there are no issues of fact in

this proceeding. Resp. at 4. According to Broadus Oil, the only issue is whether Section

732.405(d) “constitutes a basis for rejecting both the budget amendment and the request for

reimbursement.”

. Broadus Oil asserts that Section 732.405(d) does not constitute basis for

the Agency’s rejection of the budget amendment. Broadus Oil points out that Section 732.405(d)

concerns the right of owner/operators to proceed with remediation prior to submittal or approval

of a corrective action plan or budget. Broadus Oil notes that Section 732.405(d) provides that

“any such plan and budget plan shall be submitted to the Agency for review and approval . . .

prior to payment for any related costs or the issuance of a No Further Remediation Letter.”

Resp. at 5. Broadus Oil comments that the Board note following Section 732.405(d) provides

that applications for payment must be submitted no later than one year after the date the Agency

issues the NFR letter. Broadus Oil asserts that the Agency is “completely misconstruing” the

language of Section 732.405(d).

Broadus Oil maintains that Section 732.405 is entitled “Plan Submittal and Review” and

that subsection concerns the general requirement that remediation plans be submitted to the

Agency for review prior to conducting any remediation activities pursuant to the plans. Resp. at

5-6. Broadus Oil notes that subsection (b) provides that if an owner/operator intends to seek

reimbursement for remediation, a budget plan shall be submitted for the remediation proposed.

Broadus Oil further notes that subsection (c) provides for the Agency’s review, approval, or

rejection of any plans, and subsection (e) allows for submission of amended plans and budgets.

Finally, Broadus Oil points out that subsection (f) concerns the Agency’s authority to require

revised corrective action plans in the event that an approved plan is not working. Broadus Oil

argues that against this backdrop subsection (d) is included. Resp. at 6.

Broadus Oil argues that subsection (d) applies only to instances where an owner/operator

submits no remediation plan or budget for approval prior to conducting remediation and allows

the owner/operator to proceed with that remediation. Resp. at 6. Broadus Oil maintains that the

language requiring submission prior to issuance of a NFR letter, applies only to owner/operators

that have proceeded with remediation without prior approval of plans and budgets. Broadus Oil

argues that the work can be completed pursuant to subsection (d), but a plan “must be submitted

before reimbursement can be obtained for that work, and/or before an NFR is issued as a result

of that work.” Resp. at 6-7.

Broadus Oil asserts that nothing in Section 732.405(d) prohibits the Agency from

considering the budget amendment filed by Broadus Oil because Broadus Oil was not

proceeding under Section 732.405(d). Resp. at 7. Rather, Broadus Oil maintains that Broadus

Oil was proceeding under Section 732.405(a) and (e).

. Broadus Oil argues that nothing in

those two subsections requires that amendments be submitted prior to the issuance of an NFR

letter and the only restriction on submission prior to issuance of a NFR letter is in subsection (d).

Broadus Oil opines that read correctly the regulatory scheme makes “perfect sense”

because clearly a NFR letter should not be issued for a site before the corrective action plan for

that site has been reviewed and compared with finalization of remediation. Resp. at 7. Broadus

Oil also concedes that a NFR letter should not be issued or reimbursements made before a budget

has even been submitted.

. However, Broadus Oil argues that when a site has already received

Agency review and scrutiny, as is the case in this proceeding, then no reason exists and none is

included in the regulations limiting budgetary amendments to those requested prior to issuance

of a NFR letter.

Broadus Oil opines that “[i]t is notable that the Agency has attempted to identify the

source of regulatory authority” for the Agency’s action as Subpart D of Part 732 rather than

Subpart E (review of plans and budgets) or Subpart F (payment to owner/operators). Resp. at 8.

Broadus Oil asserts that Section 732.505(c) concerns full financial reviews of submitted plans,

but says nothing about rejecting a plan that was submitted after issuance of the NFR letter.

Broadus Oil also argues that the language of Section 732.606, which is a list of ineligible costs,

does not have language which “suggests” that costs associated with an amended budget for work

completed prior to issuance of a NFR letter is ineligible.

. Broadus Oil maintains that

“[n]otably though Section 732.606” includes a reference to costs incurred after the NFR letter is

receives (subsection kk) and to costs “submitted more than one year after the date” the NFR

letter is issued (subsection rr).

. Broadus Oil argues that had the Board intended to impose a

blanket prohibition against reimbursement for costs incurred prior to the NFR letter’s issuance,

but not submitted as a budget amendment until after the NFR letter was issued, the Board would

have included such language.

Broadus Oil maintains that the Agency lacks statutory support for refusing to review the

amended budget. Resp. at 9. Broadus Oil asserts that Section 57.7(e) of the Act (415ILCS

5/57.7(e) (2004)) allows an owner/operator to elect to proceed with any corrective action prior to

submission or approval of plans and if an owner/operator elects to proceed, an applicable plan

may be filed at any time. Resp. at 9. Broadus Oil further argues that Section 57.8 of the Act

(415ILCS 5/57.8) (2004)) dealing with the fund and Section 57.9 of the Act (415ILCS 5/57.9

(2004)) concerning eligibility for reimbursement are silent about ineligibility based upon an

amended budget submitted to approve payment for required corrective action subsequent to

issuance of the NFR letter.

Broadus Oil argues that the facts are undisputed and Broadus Oil is entitled to judgment

as a matter of law.

AGENCY’S REPLY

The Agency disagrees with the assertions of Broadus Oil and argues that the Agency’s

rejection of the amended budget is supported by the Act and the regulations. Reply at 4-5. The

Agency maintains that Section 732.702(d) quotes statutory language and indicates that the

issuance of the NFR letter signifies that all statutory and regulatory corrective action

requirements applicable to the occurrence have been complied with. Reply at 4. The Agency

opines that the language means that the provisions of Section 57.7 of the Act (415ILCS 5/57

(2004)) have to be finished and complied with prior to the issuance of the NFR letter.

. The

Agency asserts that if the corrective action requirements are not finished, the NFR letter cannot

be issued.

The Agency maintains that Section 57.7 of the Act (415ILCS 5/57 (2004)) includes all

the provisions relating to the approval of budgets and includes requirements that the budget

should include an accounting of all costs associated with the implementation of the corrective

action plan. Reply at 5. The Agency asserts that therefore when reading the Act and the

regulations as a whole, the Act clearly requires the budget to be submitted prior to the issuance

of the NFR letter.

. The Agency argues that Section 732.405(d) merely reiterates what the Act

requires, that all plans and budgets be submitted prior to the issuance of the NFR letter. Because

the NFR letter was issued prior to the submission of the amended budget, the Agency asserts that

the Agency properly rejected the amended budget and the Agency is entitled to judgment as a

matter of law.

DISCUSSION

The following discussion will address a preliminary matter, the motion to consolidate and

then address the arguments made by the parties.

Preliminary Matter

Before discussing the merits of this case, the Board first notes that both Broadus Oil and

the Agency cite to and discuss rule language amended by the Board in

Proposed Amendments to

Leaking Underground Storage Tanks (35 Ill. Adm. Code 732, 734), R04-22, 23 (Feb. 16, 2006).

The adoption of this rule language occurred over two years after the Agency issued the denial

letters at issue in this proceeding. Since the inception of the leaking underground storage tank

program, there have been numerous changes to the provisions of the law. As a result, the Board

and the courts have addressed the issue of what law applies when.

See

Vogue Tyre & Rubber

Company v. IEPA, PCB 96-10 (Oct. 21, 2004). However, a review of the regulatory language

relied upon by both parties establishes that the amendments from 2006 do not impact the

outcome of the proceedings. Therefore, the Board will discuss the regulatory language as

amended in 2006.

Motion to Consolidate

Section 101.406 of the Board’s procedural rules provides that, on the motion of any

party, “[t]he Board will consolidate the proceedings if consolidation is in the interest of

convenient, expeditious, and complete determination of claims, and if consolidation would not

cause material prejudice to any party.” 35 Ill. Adm. Code 101.406.

The Board recognizes that the FedEx case appears to raise the same legal issue as this

proceeding and also notes a third case appearing to raise the same legal issue in which the

Agency on November 22, 2006, filed a motion for summary judgment.

See

Village of Wilmette

v. IEPA, PCB 07-27.

Because this proceeding and PCB 07-12 as well as PCB 07-27 involve different parties,

different facts, and different UST sites, the Board is not persuaded that consolidation furthers

“the interest of convenient, expeditious, and compete determination of claims.”

See

35 Ill. Adm.

Code 101.406. Accordingly, Broadus Oil’s motion to consolidate is denied.

Discussion on the Merits

The Board finds the parties have shown that there are no genuine issues of material fact

and that summary judgment is appropriate. Broadus Oil argues that subsection (d) applies only

in “those instances where an owner/operator submits no remediation plan or budget for approval

prior to conducting remedial activities.” Mot. at 6 (emphasis added). However, after careful

reading of subsection (d) within the full context of the UST rules, the Board disagrees. The

Board finds that the applicability of subsection (d) is not limited to sites where corrective action

is performed before any corrective action plan or budget is submitted or approved. Instead,

subsection (d) applies to the extent any corrective action activities are performed or costs are

incurred for which there is no Agency pre-approval,

i.e.

, to the extent the activities or costs go

beyond the approved corrective action plan or budget.

If subsection (d) applied only where there was no approved plan or budget, as Broadus

Oil maintains, then there would have been no need to begin subsection (d) with

“[n]otwithstanding subsection[] . . . (e).” Subsection (e) requires amendments to plans or

budgets. So, an already-existing and approved plan or budget, such as this Broadus Oil case, is

contemplated by subsection (d). Applying the Board’s reading of subsection (d) in this case,

Broadus Oil proceeded under subsection (d) by incurring costs beyond the approved budget

without first getting the amended budget approved by the Agency. Thus, the budget amendment

must be submitted prior to the Agency’s issuance of an NFR Letter for that budget amendment to

be reviewed by the Agency. Further, the caution in the Board Note under subsection (d) that

owners or operators proceeding under subsection (d) may not be entitled to full payment from

the UST Fund applies not only to those who proceed with no approved plan or budget, but also

to those who go beyond an approved plan or budget.

In relation to the UST rules, subsection (d) is an exception to the general rule that plans

and budgets must be submitted to the Agency prior to performing the work. Subsection (e)

clearly requires amendments to remediation plans or budgets. That is why it is necessary for

subsection (d) to specify that any such “after-the-fact” plan or budget or amended plan or budget,

must be submitted before the NFR letter issues. The second sentence of subsection (d) is not a

“stand-alone” ban on all post-NFR plan/budget submittals. There is no need for such a broad

ban because normally (

i.e.

, those sites not proceeding under subsection (d)), the remediation

plans or budgets are submitted before corrective action commences. In the consolidated cases at

hand, the Board finds that the Agency properly rejected requests for budget amendments

concerning corrective action at Broadus Oil’s site because the budget amendment was received

after an NFR letter was issued for the site. The Board grants the Agency’s motion for summary

judgment.

CONCLUSION

The Board finds that summary judgment is appropriate in this proceeding as the parties

agree there are no issues of material fact. Based on the arguments and a reading of the Act and

the Board regulations, the Board finds that the Agency is entitled to judgment as a matter of law

and grants the Agency’s motion for summary judgment. The Board finds that the Agency

properly rejected an amended budget pursuant to Section 732.405(d) of the Board’s regulations

and the subsequent reimbursement request based on that amended budget.

ORDER

The Board grants the Agency’s motion for summary judgment and denies the petitioner’s

motion for summary judgment.

IT IS SO ORDERED.

Board Member Thomas E. Johnson dissents.

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2004);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above opinion and order on December 21, 2006, by a vote of 3-1.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board