ILLINOIS POLLUTION CONTROL

BOARD

July 30,

1992

MONTGOMERY COUNTY,

)

ILLINOIS.,

)

Complainant,

v.

)

AC 92—24

)

(MCHD 9201—AC—i)

)

(Administrative Citation)

WHITE

& BREWER TRUCKING,

)

INC.,

Respondent.

ORDER OF THE BOARD

(by J.C. Marlin):

The Board closed this docket by entry of

a default order on

May

7,

1992.

On May

26,

1992,

the Board received a letter from

counsel which states:

Our office represents White

&

Brewer Trucking,

Inc.

They

received an order

of the Board on May

7 which

indicates no

petition from the original citation was filed.

On behalf of White

& Brewer I prepared a petition,

a copy of

which

is

enclosed,

and mailed it per the proof of service.

Also from my file I can’t prove by certified mail receipt that

we mailed this petition, however,

seldom do we use certified

mail.

Nor do I believe it.was required in this case.

My only

thought was that our letter was misrouted somewhere along the

way.

A “cc” notation indicates that this letter was sent

to the

County, the Agency, and the respondent.

By order of June 23, 1992, the Board noted that the Office of the

Board’s Clerk has no record of receipt of this petition.

In response

to directions

in that

order,

on July

2,

1992

respondent

filed an affidavit in support of

its earlier motion.

The County filed a response on July 22,

1992, supported by its own

affidavit as well as one submitted by the Agency.

The

respondent’s

April

14,

1992

certificate

of

service

indicates that the petition was served on the Board,

the County,

and

the

Agency.

In his

July

2,

1992

affidavit,

respondent’s

counsel states:

Our mail

is prepared throughout the day and regularly

delivered to the post office in Hillsboro between 5:00

0135-0205

---

2

p.m. and 5:15 p.m. daily.

I did not personally deliver

the mail to- the post office, however, this is done under

my

supervision.

To the best of my knowledge standard

procedure was followed and the petition and certificate

mailed.

The County states:

That respondent has searched the appropriate files at the

office of the Montgomery County State’s Attorney and has

•been unable

to

locate

any Petition

for Administrative

Review

or

Certificate

of

Service

which

respondent

represents it mailed on or about April 14, 1992.

That although complainant is unable to locate copies of

the Motion to Reconsider and Petition for Administrative

Review in her files, complainant acknowledges that such

pleadings may have been received and misfiled

in her

office.

That

the

appropriate

officer

of

the

Illinois

Environmental Protection Agency searched its records at

the request of Attorney for the Complainant, and that the

Agency was unable to locate a copy of the Petition for

Administrative Review,

represented to be mailed by the

respondent on or about April

14,

1992.

This case is unusual in that none of the person listed on the

certificate

of

service

have

received the

petition for

review.

Section 101.144(c)

of the Board’s procedural rules “Effective Date

of Service” provides that “tjhere

is a rebuttable presumption that

service by First Class mail is complete four days after mailing”.

All evidence

in this case

is that service was

never

made.

The

Board might be inclined to give respondent the benefit of the doubt

if only the Board were to have failed to receive the petition,1

in

light

of mail disruption in the Chicago

area due to the Chicago

flood, which began April 13,

1992.

However, since no one received

the mailing,

it would appear that, whether in respondent’s office

or

in

the

Hillsboro

post office,

standard

procedures were

not

followed.

The 35 day appeal period established by Section 31.1(d)

of

the Act

is

jurisdictional,

the

Board

may

not

enlarge

its

appellate jurisdiction beyond that granted by statute.

Landfill,

Inc.

V.

IPCB

(1978)

74

Ill.

2d 541,

387 N.E. 2d 258.

Under these

circumstances, the Board declines to reopen this case.

IT IS SO ORDERED.

1See County of Jackson

v.

Leslie Norman

Fred Sr.

(July

30,

1992), AC 92-39, reopening the case when the County, but not the

Board, received a timely filed petition for review.

0135-0206

---

3

Section

41

of the Environmental

Protection Act

(Ill.

REv.

Stat.

1991,

ch.

111

1/2,

par.

1041)

provides for the appeal

of

final Board orders within 35 days.

The Rules of the Supreme Court

of Illinois establish filing requirements.

I,

Dorothy N.

Gunn,. Clerk of the Illinois Pollution Control

Bo~r~,hereby certif

that the above order was adopted op the

~O~P

day of

__________________,

1992, by a vote of

~.‘

°

A

_____

ition Control Board

Illinois Pol~