ILLINOIS POLLUTION CONTROL BOARD
February
3,
1994
DAVID GEUTHER and
)
FEHR-GRAHAN
& ASSOCIATES,
)
Petitioners,
)
v.
)
PCB 93—232
)
(UST Fund)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
DAVID GEUTHER and
)
FEHR-GRAHAM
& ASSOCIATES,
)
Petitioners,
V.
)
PCB 94—53
)
(UST Fund)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter is before the Board on several filings.
First,
on December
2,
1993,
the Board issued an order in PCB 93-232
directing petitioners David Geuther and Fehr-Grahaxn & Associates
(collectively, petitioners)
and the Illinois Environmental
Protection Agency
(Agency) to address the issue of whether this
appeal
is timely.
The December
2 order pointed out that although
the Agency’s “Attachment A” stated that the Board’s procedural
rules provide that a petitioner may appeal an Agency decision
“within 35 calendar days from the date the Comptroller mails the
accompanying check”, the procedural rule actually state that an
appeal shall be filed within 35 days of the date of mailing of
the Agency’s final decision.
(35 Ill. Adm. Code 105.102(a) (2).)
Petitioners filed their response on December 20,
1993, and the
Agency filed its response on January 20,
1994.
The issue of timeliness of the appeal in PCB 93—232 arises
because although the invoice voucher prepared by the Agency is
dated October
8,
1993,
the accompanying checks from the
Comptroller are dated October 18 and 19,
1993.
The petition for
review was mailed on November 22,
1993 and filed by the Board on
November 23,
1993.
Pursuant to the “mailbox rule”
(see 35
Ill.
Adm. Code 101.102(d)), the petition for review is timely if the
35-day appeal period began~to run on October
18.
The petition is
not timely if the appeal period began to run on October
8.
2
After reviewing the parties’ response, the Board concludes
that the appeal in PCB 93-232
is timely.
The Agency states that
the documents prepared by the Agency (the invoice voucher and
Attachment A)
are no longer sent directly from the Agency to
petitioners.
Instead, those documents are mailed by the
Comptroller immediately after the checks are issued.
It would be
unfair to require petitioners to file an appeal within 35 days of
the date of the Agency decision (here,
October 8), when
petitioners received no notice until after the Comptroller
processed the invoice voucher and issued a check.
However, the Board must state its reservations about the
Agency’s statement,
on its invoice voucher, that “for purposes of
appeal, this voucher constitutes the Agency’s final decision as
of the date the check was issued by the Comptroller.”
Given the
past history of the Underground Storage Tank
(UST)
Fund,
in which
there have been long delays in payment because the Fund was
exhausted,
the Board is concerned by a scenario in which the
Agency’s obligation to make a final decision, which cannot be
amended
(see Illinois Environmental Protection A~encv
V.
Pollution Control Board
(November 23,
1993), No.
5—92—0468),
is
extended while the invoice voucher is awaiting payment by the
Comptroller.
We are also concerned by the misstatement of our
procedural rules on the Agency’s Attachment A.
However,
in this
case, we find that the appeal
is timely.
Second, on January 31,
1993, the Agency filed its record in
this case,
along with a motion for leave to file the record
instanter.
The motion states that petitioners filed their appeal
on January 14,
1994,
and that the Agency received notice of that
petition on the same day.
However, the Board points out that
this petition was filed on November 23,
1993, with an amended
petition filed on December 20,
1993.
Because the record
is
necessary for the decision of this appeal,
the Agency’s motion
for leave to file instanter is granted.
Finally, on January 19,
1994 petitioners filed a “motion to
supplement petition for review”.
Petitioners seek to supplement
their November petition for review (PCB 93-232) with an appeal
from a December 15,
1993 Agency determination.
Petitioners’ motion to supplement their petition in PCB 93-
232 is denied.
An appeal from a different Agency decision must
be a new petition for review.
Therefore,
we will construe
petitioners’ January
19,
1994 motion to supplement in PCB 93-232
as a new petition for review, docketed as PCB 94-53.
The Clerk
is directed to place
a copy of that January
19,
1994 motion in
the PCB 94-53
file.
However, petitioners have not paid the
statutorily-mandated $75 filing fee for PCB 94—53.
Petitioners
must submit that filing fee within 14 days of the date of this
order, or PCB 94—53 will be subject to dismissal.
Additionally,
if petitioners wish to move for consolidation of these two cases,
3
that motion should be made within that same 14 days.
We note that petitioners filed a waiver of the decision
deadline in PCB 93-232, extending the deadline in that case until
October 21,
1994.
Any request for consolidation of the two cases
should include an appropriate waiver of the decision deadline in
PCB 94-53.
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 35 111.
Adm. Code 101.105).
The Chief 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, both the statutory
decision deadline and the decision due date is May 19,
1994.
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 N. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certfy that the above order was adopted on the
~
day of
________________,
1994, by a vote of
7’~~
/1
cJ
Dorothy M.,’~unn, Clerk
Illinois Pq’llution Control Board