ILLINOIS POLLUTION CONTROL BOARD

March

16,

1995

THE JOINT PETITION OF THE

)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY AND THE CITY OF METROPOLIS

)

FOR AN ADJUSTED STANDARD FROM

)

AS 95-2

35

ILL. ADM. CODE PART 304 FOR

)

(Adjusted Standard-Water)

SUSPENDED SOLIDS,

5-DAY BIOLOGICAL

)

OXYGEN DEMAND AND AMMONIA NITROGEN

)

ORDER OF THE BOARD

(by J. Yi):

This matter

is before the Board on a joint petition filed by

the Illinois Environmental Protection Agency

(Agency)

and the

City of Metropolis

(City)

for adjusted standard regarding the

City’s wastewater treatment plant.

The Agency and the City filed

this matter pursuant to Section 27 of the Environmental

Protection Act (Act)

and 35

Iii.

Adm.

Code Part 106.

(415 ILCS

5/27

(1992).)

Petitioners have requested a hearing.

The Board,

in its order of February

9,

1995, granted petitioners’ motions to

incorporate previous filings

in AS 94-17 and waiver of the filing

requirements.

However, the Board did not set this matter for

hearing because we had not recieved the certification of

publication required pursuant to Section 28.1(d) (1)

of the Act

and Board regulations at 35

Ill. Adm. Code 106.711 and 106.712.

(415 ILCS 5/28.1(d)(1)

(1992).)

On February 24,

1995,

petitioners filed with the Board the

certification of publication.

The notification met all content

requirements as set forth at 35

Ill. Adm. Code 106.711.

However,

according to the certification it was not published

in the local

paper until February 22,

1995.

Pursuant to 35 Ill. Adm. Code

106.711, petitioner

is required to publish notice of the filing

of the petition in

a newspaper of general circulation in the area

likely to be affected within

14 days of filing the petition.

(See also 415 ILCS 5/28.1(d)(l).)

Therefore,

the publication of

the notice was two days late.

The Board in The Matter of the Petition of the Rhone-Poulenc

Basin Chemical Company,

(January 20,

1994), AS 93—9,

stated

that:

35 Ill.

Adm. Code 106.711 and Section 28.1 of the

Environmental Protection Act require that

a petitioner

for adjusted standard publish newspaper notice of the

petition within

14 days after the date that the

petition is filed with the Board. Petitioner states

that publication did not occur within the fourteen

days,

but rather occurred within 22

days

(eight days

late).

Publication of notice of filing is

jurisdictional.

(See,

e.g.,

Leroy Brown

& Sons,

Inc.,

---

v.

County Board

(February

4,

1993)

PCB 92-132,

139 PCB

51; citing Kane County Defenders,

Inc.

v.

PCB

(2nd

Dist.

1985),

139 Ill. App.

3d 588,

487 N.E.

2d 743, and

Illinois Power Company v. PCB

(4th Dist.

1985),

137

Ill. App.

3d 499,

484 N.E.

2d 898.)

Since the

publication did not occur within the statutorily

prescribed 14-day period, the Board does not have

jurisdiction to hear the petition.

Thus,

the Board has previously determined that timely

publication of notice within 14 days of filing is a

jurisdictional requirement that must be met in order for the

Board to have statutory authority to hear the matter.

The Board

therefore

lacks the jurisdiction to hear this matter.

This

matter is dismissed and the Clerk of the Board is directed to

close the docket in this matter.

Petitioner may refile the petition and publish notice of the

new petition within 14 days of that filing in order to correct

the defective notice.

The Board directs the Clerk’s office to

waive the filing fee if petitioner so chooses to refile.

Additionally, the Clerk’s office immediately upon the filing of

the petition shall notify petitioner of the date of filing and

docket number assigned to this matter.

IT IS SO ORDERED.

I,

Dorothy M. Gunn,

Clerk of the Illinois Pollution

Control Board, hereby certify that the above order was adopted on

the /~,Zday of

~

,

1995,

by a vote of

7-~

Dorothy M.

nn, Clerk

Illinois P0 lution Control Board