ILLINOIS POLLUTION CONTROL BOARD

January 11, 1995

MONTGOMERY WARD & CO.,

INCORPORATED,

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 (UST). 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.

Montgomery Ward argued in its motion that in addition to the

language in the state voucher, which is the Agency’s final

determination on a UST Fund reimbursement, that states “(f)or the

purposes of appeal, this voucher constitutes the Agency’s final

decision as of the date the check was issued by the Comptroller”,

“Attachment A” 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.

Code 105.102 (a) (2)).

Montgomery Ward contends that it contacted the Warrant

Distribution Section of the Comptroller’s office and ascertained

that the check was mailed on September 6, 1994. Montgomery Ward

argues that, following the Board’s procedural rules the 35-day

period began on September 7, 1994 and ended on October 12, 1994

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2

thus making Montgomery Ward’s appeal timely.

The Agency filed a response to Montgomery Ward’s motion for

reconsideration on November 23, 1994. The Agency response

reiterated the Board’s procedural rules on the computation of

time and argues that the appeal is 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.

However, 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, the Board directed Montgomery

Ward to file the appropriate affidavit within 21 days from the

date of the December 1, 1994 order together with a waiver of the

decision deadline or alternatively a 120—day extension of such

deadline. On December 19, 19994 Montgomery Ward filed the

supporting affidavit and a 120-day extension of the decision

deadline. For the reasons stated below we grant Montgomery

Ward’s motion for reconsideration and set this matter for

hearing.

The Board’s procedural rule at 35 Ill. Adm. Code

105.102(a) (2) concerning permit appeals provides that such a

petition for hearing shall be filed with the Board “within 35

ThedaysBoardof

thehasdatein

theof

mailingpast

determinedof

the Agency’sthat

“datefinalofdecision.”mailing”

1is

the date of issuance of the Comptroller’s check. (David Geuther

and Fehr—Graham & Associates v. Illinois Environmental Protection

Aciency, (February 3, 1994), PCB 93-232 and PCB 94—53 cons.)

However, the Board has also determined that petitioner may

demonstrate that the “date of mailing” actually occurred after

the date of the Comptroller’s check. (City of Elgin v. Illinois

Environmental Protection Agency, (February 3, 1994) PCB 93-246.)

In Geuther, the Board noted reservations that the Agency’s

obligation to make a final determination, which cannot be

amended, is extended while the invoice voucher is awaiting

payment by the Comptroller. (David Geuther and Fehr-Graham &

Associates v. Illinois Environmental Protection Agency, (February

3, 1994), PCB 93—232 and PCB 94-53 cons.) We are equally

concerned that the petitioner’s statutory appeal period may be

1Section 22.18b(g) of the Act (415 ILCS 5/22.18b(g) (1992))

provides that appeals of Agency reimbursement decisions are

governed by Section 40 of the Act. (415 ILCS 5/40 (1992))

Section 40 of the Act sets forth the procedure by which a permit

applicant may appeal to the Board the Agency’s determination of

the applicant’s permit.

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3

shortened as the result of the Comptroller’s office delaying the

mailing of the check after its issuance date. Therefore, the

issuance date of the Comptroller’s check is the “date of mailing”

for the purposes of calculating the 35—day statutory period,

unless petitioner demonstrates otherwise as Montgomery Ward has

here.

Thus, the Agency’s final determination was made on September

6, 1994, the date the Comptroller’s office mailed the final

decision. The Board’s procedural rule at 35 Ill. Adm. Code

101.109 states:

Computation of any period of time prescribed by this

Chapter or the Act shall begin with the first calendar

day following the day on which the act, event or

development occurs and shall run until the end of the

last day, or the next business day if the last day is a

Saturday, Sunday or national or state legal holiday.

Therefore, the 35-day period for Montgomery to file an appeal

with the Board began on September 7, 1994 and ended on October

11, 1994. Montgomery filed by personal service on October 11,

1994, thus making this appeal timely. The Board accordingly

vacates its order of October 20, 1994.

This matter is accepted for hearing. The hearing must be

scheduled and completed in a timely manner, consistent with Board

practices and the applicable statutory decision deadline, or the

decision deadline as extended by a waiver. (Petitioner may file

a waiver of the statutory decision deadline pursuant to 35 Ill.

Adm. Code 101.105). The hearing officer shall assign a hearing

officer to conduct hearings. The Clerk of the Board shall

promptly issue appropriate directions to the assigned hearing

officer consistent with this order.

The assigned hearing officer shall inform the Clerk of the

Board of the time and location of the hearing at least 40 days in

advance of hearing so that public notice of hearing may be

published. After hearing, the hearing officer shall submit an

exhibit list, a statement regarding credibility of witnesses and

all actual exhibits to the Board within five days of the hearing.

Any briefing schedule shall provide for final filings as

expeditiously as possible and, in time—limited cases, no later

than 30 days prior to the decision due date, which is the final

regularly scheduled Board meeting date on or before the statutory

or deferred decision deadline. In this case, the statutory

decision deadline is July 14,

1995.2

2We note that petitioners filed an extension of the decision

deadline in this case when it filed its affidavit in support of

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If after appropriate consultation with the parties, the

parties fail to provide an acceptable hearing date or if after an

attempt the hearing officer is unable to consult with the

parties, the hearing officer shall unilaterally set a hearing

date in conformance with the schedule above. The hearing officer

and the parties are encouraged to expedite this proceeding as

much as possible. The Board notes that Board rules (35 Ill. Adm.

Code 105.102) require the Agency to file the entire Agency record

of the permit application within 14 days of notice of the

petition.

IT IS SO ORDERED.

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

Board, hereby cer fy that the above order was adopted on the

//t~day of

_______________,

1995, by a vote of

______

Dorothy M./9~1nn, Clerk

Illinois P~1lution Control Board

its motion for reconsideration. Montgomery Ward provided the

Board with a 120-day extension of the decision deadline, which

was March 16, 1995, now making the decision deadline July 14,

1995. The decision due date for this case will be the regularly

scheduled Board meeting preceding July 14, 1995.