ILLINOIS POLLUTION CONTROL BOARD

February 3, 1994

CITY OF ELGIN,           

)

an Illinois municipal corporation, 

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Petitioner,

)

v.

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PCB 93—246

)

(UST Fund)

ILLINOIS ENVIRONMENTAL      

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PROTECTION AGENCY,         

)

Respondent.

ORDER OF THE BOARD (by N. Nardulli):

This matter is before the Board on a December 1, 1993,

petition for review, filed by petitioner City of Elgin

(petitioner or Elgin). Elgin seeks review of the Illinois

Environmental Protection Agency’s (Agency) decision denying

petitioner’s request for reimbursement of certain costs from the

Underground Storage Tank Fund. On December 16, 1993, the Board

directed petitioner to file an amended petition which addressed

whether the appeal is timely pursuant to the Environmental

Protection Act and the Board’s rules. The Agency was also

directed to address that issue. Petitioner’s response was

received by the Board on January 19, 1994. The Agency did not

respond to the Board’s order.

The issue of timeliness of the appeal in PCB 93-246 arises

because, although the invoice voucher prepared by the Agency is

dated October 12, 1993, October 14, 1993, and October 18, 1993,

the accompanying check from the Comptroller is dated October 27,

1993. The petition for review was received by the Board on

December 1, 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 27, 1993. The

petition is not timely if the appeal period began to run on

October 12, October 14 or October 18.

After reviewing petitioner’s response, the Board concludes

that the appeal in this matter is timely. Petitioner states that

the Comptroller’s office did not mail the check until October 27,

1993 and that petitioner did not receive notice until October 29,

1993. It appears that the Agency did not notify petitioner

directly, but instead sends the voucher to the Comptroller. It

would be unfair to require petitioner to file an appeal within 35

days of the date of the Agency decision (here, October 12,

October 14, or October 18), when petitioner did not receive

notice until after the Comptroller processed the invoice voucher

and issued the check.

However, the Board must state its reservations about the

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Agency’s statement, on its invoice voucher, that “for purposes of

appeal, this voucher constitutes the Agency’s final decision as

of the date of the check was issued by the Comptroller.” Given

the past history of the Underground Storage Tank Fund (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 Agency 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 Agency’s misstatement

of our procedural rules on the Agency’s Attachment A. However,

in this case, we find that the appeal is timely.

The Board construes petitioner’s January 19, 1994, filing as

an amended petition. The filing of the amended petition will

restart the Board’s 120 day decision timeclock, and the decision

due date will be calculated from the date of the filing of the

amended petition.

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 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, the statutory

decision deadline is May 19, 1994; therefore the decision due

date is also 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

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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

Boaçd~hereby cezi~fythat the above order was adopted on the

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day of

1994, by a vote of 

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Dorothy M. ~unn, Clerk

Illinois Pô~lutionControl Board