ILLINOIS POLLUTION CONTROL BOARD
February
1,
1996
WEST SUBURBAN RECYCLING
AND
ENERGY CENTER,
L.P.,
Petitioner,
v.
)
PCB 95—119,
95—125
Consolidated
ILLINOIS ENVIRONNENTAL
)
(Permit Appeal
-
Land
& Air)
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by R.C.
Flemal):
On January 23,
1996 the Illinois Environmental Protection
Agency
(Agency)
filed a Motion for Summary Judgment.
The Agency
requests that the Board grant
summary judgment in its favor
against petitioner, West Suburban Recycling and Energy Center,
L.P.
(West Suburban).
On January 31,
1996 West Suburban filed a Motion to File
Instanter Response to Respondent’s Notion for Summary Judgment
and said Response.
The Board grants West Suburban’s motion to
file response instanter.
Summary judgment will be granted where there
is no genuine
issue of material fact and the moving party
is entitled to
judgment
as
a matter
of law.
(Sherex chemical
v. IEPA
(July
30,
1992),
PCB 91—202;
Williams Adhesives,
Inc.,
v.
IEPA (August
22,
1991),
PCB 91—112.)
First, the Agency alleges that West Suburban failed to
file
its petition for review within the statutory appeal period.
On
April
2,
1995 both West Suburban and the Agency, pursuant to
Section 40(a) (1)
of the Illinois Environmental Protection Act
(Act),
filed a notice of extension of the thirty-five day appeal
period for the land permit denial’
.
(415 ILCS 5/40 (a) (1)
1994)
.)
The Board granted the appeal extension period until July
2,
1995,
125 days after the Agency’s denials dated February 27,
1995.
July
2,
1995 was a Sunday and West Suburban filed the permit
appeals on Monday,
July
3,
1995.
On April
6,
1995 the Agency filed a clarification of
its’
April 2nd filing which indicated that the April 2nd filing was
intended to also include the air permit denial.
2
According to Board procedural rule 101. 109,
the relevant
computation of time runs until the next business day if the last
day is
a Sunday.
(35 Ill. Adm. Code 101.109.)
Therefore the
Board correctly accepted West Suburban’s permit appeals and
accordingly rejects the Agency’s argument for summary judgment
based upon the July 3,
1995 filing.
Additionally, the Agency argues that the Board’s acceptance
of this matter
is void for want of authority because the Board
lacks
subject matter jurisdiction over the dispute.
According to
the Agency the Board had no jurisdiction to extend the appeal
period beyond a total of
90 days,
hence the Board could only
extend West Suburban’s permiL appeal tiling
Lime until May 28,
1995,
not until July 2,
1995.
The Board acknowledges that it has revised its
interpretation of the date from which the 90-day extension period
is
to be calculated.
Prior to October 19,
1995
(see Land
& Lakes
#3
v.
IEPA
(October 19,
1995),
PCB 96-77)
the Board, with the
Agency’s concurrence, had held that the 90—day period was to
begin 35 days after the date of the Agency’s denial action,
providing for a total of 125 days between the denial action and
the last permissible date to file an appeal of the denial.
In
Land and Lakes
#3, however,
the Board revisited the issue and
found that the more consistent interpretation was that the 90-day
period should be counted as beginning with the date of denial,
thus allowing for a total of only 90 days between the denial
action and the last permissible date
to
file an appeal of the
denial
action.
In making its determination in Land
& Lakes
#3,
the Board
fully envisioned the situation presented by the instant case,
noting that
“in the future,
the Board will grant extensions
allowing for appeal no later than 90 days from the date of the
Agency final determination at issue”
(emphasis added)
.
Therefore
the revised interpretation was to be understood as prospective in
applicatipn,
not retrospective.
The Board will not here alter
that decision.
The Board also can not help but observe that
it was upon the
motion of the Agency itself that the 125-day
(35
+
90)
extension
was originally granted in the instant proceedings.
The actual
language of the Agency request was “the 35-day period for
petitioning for a hearing on a permit denial decision issued by
the Agency on February 27,
1995,
will be extended for period of
90 days”
(Agency filing of April
2,
1995 at
p.
1)
.
This was most
clearly a request
for a 35
+
90 day extension,
as was understood
by the Agency, by the Board, and by West Suburban,
and upon which
all relied.
3
We
find it disingenuous on the part of the Agency that
it
now reverses itself to contend that only a 90-day extension
should have been allowed.
The Board will not be party to this
hypocrisy.
The Agency’s motion for summary judgment with regards
to subject matter jurisdiction is accordingly denied.
The Agency raises several other arguments upon which it
contends summary judgment is warranted.
The Board finds that
with each of these arguments there are genuine issues of material
fact that mitigate against summary judgment at this time.
The
Agency’s motion for summary judgment on all remaining issues
before the Board is accordingly denied.
The Board would also note that on January 26,
1996
the
hearing officer denied the Agency’s January 25,
1996 Emergcncy
Motion to Reconsider Ruling on Agency’s Notion to Quash Notice to
Appear at Deposition
of
Bharat Mathur
and Emergency Motion for
Stay Pending Order on this
Motion.
This ivot~onhas been ruled
upon by the hearing officer.
The Board will not disturb the
hearing officer’s ruling.
IT
IS SO ORDERED.
I,
Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify
h t the above order was adopted on the
/4-r
day of
______________________,
1996,
by
a vote of
A.
Dorothy M. G~n,
Clerk
Illinois Povution
Control Board
