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run on that motion, in the interests of moving this matter forward, the Board will

decide E & L’s motion in this order.

 

In summary, this order denies the Agency’s motion for an extension of time to file the

Agency record, now 43 days late, but also denies E & L’s motion for sanctions. The order

further requires that the case be immediately set for hearing. The Board directs the Clerk’s

Office to fax a copy of this order to the parties’ counsel immediately upon its issuance so that

they will understand their respective obligations.

 

FILING OF RECORD REQUIREMENT

 

Section 105.116 of the Board’s procedural rules provides:

 

The State agency must file with the Board the entire record of its decision within

30 days after the filing of the petition for review, unless this Part provides

otherwise, or the Board or hearing officer orders a different filing date. If the

State agency wishes to seek additional time to file the record, it must file a

request for extension before the date on which the record is due to be filed. 35

Ill. Adm. Code 105.116.

 

The Agency offers two reasons for its delay in filing the record in this matter. Both reasons

fail.

 

Requirements and Background of Section 105.116

 

First, Agency counsel in this matter asserts: “[f]or purposes of administrative

economy, the undersigned attorney generally does not prepare or file a record in a matter until

first learning that the Board has formally accepted the matter for hearing.” Agency Motion for

Extension of Time at 2. Such assertion disregards the plain language of the Board’s rule on

record filing. The rule does not tie the filing requirement to the Board’s first formal order in a

permit appeal matter. Rather, the record filing requirement is tied to the actual filing of the

petitioner’s permit appeal. Unlike some types of cases, virtually all permit appeals are

“accepted” by the Board. Further, since permit appeals carry with them a statutory 120-day

decision deadline (

see

415 ILCS 5/40(a) (2000)), these cases must move quickly. Therefore,

the Agency is wrong to assume that its 30-day obligation begins only when the Board issues an

accept for hearing order in a permit appeal.

  

Historically, problems have occurred in the processing of permit appeals before the

Board because of late-filed Agency records. When the Board revised its procedural rules, we

extended the time for filing Agency records from 14 days to 30 days, in part at the Agency’s

request. Since 14 days was too short a time to be realistic, especially with large permit

records, the rule was generally not observed. To avoid having the rule ignored, the Board

extended the timeframe to 30 days. This change was based upon the belief, that the Agency did

not contradict, that such a timeframe was realistic, allowing the Agency to effectively comply

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3

in most instances. To further enhance compliance, the rule provides that if the Agency is

unable to comply, it may seek an extension prior to the due date of the record. The rule allows

flexibility for the hearing officer or Board to order a different due date, in consideration of the

likelihood and timeframe for proceeding to hearing.

 

The rule does not allow the Agency to ignore the due date and file the record, or a

request for extension of the filing requirement, well after the due date of the record. During

the procedural rule revision process, the Board even contemplated assessing a $500 fine on the

Agency for each day a record was late.

See

Revision of the Board’s Procedural Rules, R97-8,

slip op. at 17 (Oct. 3, 1996), Ultimately, however, the Board dropped that provision and,

instead, reiterated that the Agency would be subject to sanctions if the record was late.

Regrettably, the issue of late-filed agency records still haunts the permit review process despite

the Board’s attempts at revising the procedural rules to make them more workable.

See, e.g.,

 

E.G. Vogt Oil Co. v. IEPA, PCB 00-70; Freeburg Investors Group, Inc. v. IEPA, PCB 00-

74; East Side Acquisitions, Inc. d/b/a State Street Shell v. IEPA, PCB 00-76; Linneman Oil

Co. v. IEPA, PCB 00-94; Granite City Sheet Metal v. IEPA, PCB 00-138; L. Wolf Co. v

IEPA, PCB 00-139; E.G. Vogt Oil Co. v. IEPA, PCB 00-141.

 

The Dismissed Docket, PCB 02-101

 

The Agency’s second reason for missing the 30-day deadline is equally untenable.

Essentially, the Agency seeks a further delay in filing the record so that the Board has an

opportunity to rule on the Agency’s motion to reconsider or clarify the Board’s March 7, 2002

decision to close docket PCB 02-101.

See

E & L Trucking Co. v. IEPA , PCB 02-101

(Mar. 7, 2002). This docket was administratively opened, by the Board's Clerk’s Office, to

accommodate the parties' request for a 90-day extension of time in which to file an appeal of

the Agency's January letter concerning E & L’s request for reimbursement from the

underground storage tank fund. The Board dismissed this docket as unnecessary, since

reimbursement pursuant to E & L’s request to the Agency is the subject of this appeal and any

issues relating to the January letter should be dealt with in this docket.

 

However, because of issues related to Reichhold Chemicals Inc. v. PCB, 204 Ill. App.

3d 674, 561 N.E.2d 1343 (3rd Dist. 1990), the Agency, on March 28, 2002, sought

reconsideration or clarification of the Board's March 7, 2002 decision. Today, the Board

again dismisses docket PCB 02-101 as unnecessary and denies the Agency's motion to

reconsider that decision.

See

PCB 02-101 (Apr. 18, 2002). Nonetheless, to the extent that the

Agency needs further clarification, we do so in this docket.

 

The Board’s March 7, 2002 decision was intended to ensure a smooth administrative

continuum in the review of permit appeal decisions made by the Agency. Indeed, we are

mystified by the Agency's confusion and, more particularly, by their position that their January

determination letter is “void.” Rather, we construed this letter as a change in Agency position

that it made during the 90-day extension of the appeal period. While the Agency now appears

to question its authority to make such change, the Board obviously considers that such

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4

authority, at least as exercised in this situation, is the natural outgrowth of the legislative 90-

day appeal period extension enactment. Further, as we stated in PCB 02-101, we believe that

this position is consistent, not inconsistent, with Reichhold.

See

E & L Trucking Co. v. IEPA,

PCB 02-101 (Mar. 7, 2002).

 

Furthermore, while the procedural posture of this case may well be peculiar, given the

opening of a second docket for essentially the same set of circumstances, the issue presented is

rather straightforward. E & L requested reimbursement from the underground storage tank

fund in the amount of $41,618.10. The Agency’s October 2001 letter determined that only

$614.90 was properly reimbursable. The Agency’s January 2002 letter determined that an

additional $5,624.60 was reimbursable. Since the statutory deductible is $10,000, even taking

these letters together as one decision for purposes of appeal, as the Board does here, E & L is

unable to access the fund. Thus, there is but one legal issue presented to the Board: what, if

any, amount of money should E & L be allowed as reimbursement from the underground

storage tank fund. In many respects, Reichhold notwithstanding, public policy dictates that E

& L has every right to request Board review of all elements that went into the Agency

decision-making on its request for reimbursement.

 

Thus, the record that is due in this docket, to the extent the Agency still needs

clarification, is the record concerning E & L’s request to the Agency that it be reimbursed

from the underground storage fund. Any and all documents relevant to the creation of the two

Agency letters, both made prior to the appeal of this matter to the Board, during the 90-day

extension period, are anticipated. As this record is long overdue, and presumably within the

Agency’s immediate control, it should be mailed overnight or hand-delivered to the Board’s

Clerk’s Office, as well as delivered to E & L, immediately upon the issuance of this order.

 

REQUEST FOR SANCTIONS

 

E & L requests the Board to sanction the Agency for its failure to file the record in this

matter. At this point, because of the strange procedural posture of this case, that request is

denied. The Board has the authority to sanction the Agency when the situation warrants.

See

 

Grigoleit Co. v. PCB, 245 Ill. App. 3d 337, 613 N.E.2d 371(4th Dist. 1993). Further, as

stated above, the new procedural rules provide for specific sanction authority for failure to

timely file Agency records. Section 105.118 of the Board’s procedural rules provides:

 

If the State agency unreasonably fails to timely file the record on or before the

date required under this Part, the Board may sanction the State agency in

accordance with 35 Ill. Adm. Code 101.Subpart H. 35 Ill. Adm. Code 105.118.

 

The Board alerts the Agency that, pursuant to Subpart H, Section 101.800, the Board considers

at least two types of sanctions specifically applicable to the issue of late-filed Agency records.

Pursuant to Section 101.800(b)(2) the offending person, here the Agency counsel of record in

the relevant proceeding, could be barred from filing future pleadings or otherwise appearing

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5

before the Board. Second, pursuant to Section 101.800(b)(4)-(5) the petitioner may be

immediately awarded the result it seeks, regardless of the Agency's position in the matter.

 

In this case, the Board declines to order such drastic measures. The Agency should be

on alert, however, that the Board will no longer tolerate late-filed Agency records in permit

appeals and will, in an appropriate case, sanction the Agency in one of the manners prescribed

above.

 

As a final matter, the Board is concerned with the statement made by E & L’s counsel,

in response to the Agency's motion, that E & L was forced to file a waiver. Certainly, as

counsel for E & L well knows, no party need feel compelled to file a waiver of its statutory

decision timeframe with this Board. E & L has a right to have the appeal of its reimbursement

request decided within 120 days. Further, E & L has a right to waive that timeframe. The

Board notes that E & L’s waiver, filed with the Board as early as March 14, 2002, clearly

stated that it “agrees to extend the statutory decision deadline for a period not to exceed 61

days.” Waiver at 1.

 

Nonetheless, given that this case has been delayed long enough in its processing, the

Board orders that the hearing officer contact the parties and set this matter for hearing within

30 days of this order. Further, the Board directs that no continuance be allowed in this

proceeding unless it is requested by E & L and accompanied by a new waiver of its statutory

decision timeframe.

 

CONCLUSION

 

The Board denies the Agency’s motion for an extension of time to file the Agency

record, and orders its immediate filing in the Board’s Clerk’s Office, as well as delivery to the

counsel for E & L. The Board denies E & L’s motion for sanctions, but points the Agency to

the relevant portion of the procedural rules where sanctions are applicable. Finally, the Board

directs that this matter proceed to hearing as set forth above.

 

IT IS SO ORDERED.

 

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

Board adopted the above order on April 18, 2002, by a vote of 6-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board