ILLINOIS POLLUTION CONTROL BOARD

January

9,

1992

O’BRIEN TIRE AND BATTERY

)

SERVICE,

)

Petitioner,

v.

)

PCB 91—212

)

(Underground Storage Tank Fund

Reimbursement Determination)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD

(by B.

Forcade):

On November

6,

1991,

O’Brien Tire and Battery

Service filed

a

letter with attachments

which purports to be

an

appeal

of

an

August

1,

1991 Agency underground storage tank fund reimbursement

determination.

The letter was not accompanied by the $75.00 filing

fee specified in Section 101.120(b) of the Board’s procedural rules

and 7.2 of the Act.

On November 13,

1991,

the Agency filed

a motion

to dismiss

this appeal

on the grounds that

it

was untimely filed.

Due to alleged confusion surrounding the November

6 filing,

by Order of November 21,

1991 the Board granted O’Brien 30 days in

which to file an amended petition and the filing

fee,

as well

as

to

address timeliness

issues raised

in the Agency’s November 13

motion.

Consistent with the November

21

Order,

on December

18,

1991 O’Brien filed an amended petition as well as a response to the

Agency’s motion to dismiss.

For

the

reasons

outlined

below,

the

Agency’s

motion

to

dismiss this action as untimely filed is hereby granted.

As

the

Agency

correctly

notes,

the

statutory

basis

for

commencement of this action is Section 22.18b(g)

of the Act which

provides for appeals of Agency Underground Storage Tank (UST)

Fund

Reimbursement determinations “in the manner provided for the review

of permit decisions in Section 40”; Section 40 states in pertinent

that “the applicant may, within 35 days, petition for a hearing”.

Ill.

Rev. Stat.,

ch.

111 1/2,

pars. 22.l8b(g) and 40(a)(l).

It

is

undisputed that the Agency made its UST determination

in

a letter

dated August

1,

1991

addressed to Mr.

Earl Buenger.

The Agency

determined that some costs were reimbursable, but that others were

not.

The

reimbursable amount was determined

to be

$132,404.80,

129—73

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2

less a $10,000 deductible.

Ineligible

costs were determined to be

$14,742.82.

This

letter,

mailed August

2,

1991,

clearly stated

that:

As a result of the Agency~sreview,

a

voucher for $107,661.98

has been prepared for submission

to the Comptrollers Office

for payment.

This constitutes the Agency’s final action with

regard to the above

invoices.

An underground storage tank

owner or operator may appeal this decision to the Illinois

Po31lution Control Board

(Board) pursuant to Ill.

Rev.

Stat.

1989, Chap.

ill 1/2, Para.

1022.l8B(g) and 1040.

An owner or

operator who seeks to appeal the Agency decision shall

file

a petition for a hearing before the Board within

35 days of

the date of mailing of the Agency’s

final decision

(35 Ill.

Adm. Code 105.102(a) (2)).

Any appeal of this decision was accordingly due to be filed

with the Board on or before September 6,

1991.

No such appeal was

filed.

However, by letter dated September 10,

1991,

to the Agency’s

Ms.

Angela

Tin,

O’Brien’s

environmental

consultant,

Joseph

C.

Welsch expressed disagreement with the Agency’s cost computations.

Ms.

Tin

responded

to

this

letter

by

a

letter

of

September

18

addressed to Mr. Buenger.

The Agency’s letter noted

its receipt

of

the

September

10

letter

(from

Mr.

Welsch)

“requesting

a

reconsideration”

of

the

reimbursement

amount

and

restated

its

determination made

in the August

1 letter that the reimbursement

amount was $107,661.98.

The letter went on to say that:

In the same letter, you were notified of your right to appeal

the Agency’s decision.

Appeals must be made to the Illinois

Pollution Control Board.

Please refer to the August

1,

1991,

letter if you wish to file an appeal.

On September 25, 1991,

Mr. Welsch sent a letter addressed to:

Illinois Environmental Protection Agency

Illinois Pollution Control Board

P.O. Box 19276

Springfield,

IL

62794—9276

In this letter, Mr. Welsch expressed O’Brien’s wish “to appeal

the reimbursement amount” and requested advice as to the

forms

and

procedure necessary to “formally appeal” the determination.

The Board has no record of receipt of the September 18,

1991

letter.

On November

6,

1991, the Board received a letter directed to

the

Clerk

from

Mr.

Welsch.

The

letter

referenced

the

above

described correspondence,

and noted

that

an Agency attorney had

129—74

---

3

telephoned late during the week of October 28

in response to the

September 25 letter,

advising:

that the ICPB was located in Chicago, that

I should contact

Ms.

Adeline Hogan

for further more specific information on

appeals,

and that O’Brien was probably too late to register

their appeal.

This is why I am writing to you.

I believe that a good faith

eff,ort was made to meet the time limits specified for appeals,

and thus our attempt to appeal should be permitted.

In its motion to dismiss, the Agency argues that this appeal

is time-barred.

The Agency notes that:

It

is

well

settled

that

a

party

seeking

review

of

an

administrative decision must act within the time allotted by

the particular statute.

An identical time period of thirty-

five days is provided for the commencement of actions under

Section 3-103 of the Administrative Review Act.

The case law

is clear that this limit is

a jurisdictional requirement and

cannot be waived.

See e.g.,

Fredman Brothers Furniture Co.

Inc.

v.

Illinois Department of Revenue,

129 Ill; App.

3d 38,

471 N.E.

2d 1037,

(1984); Matter of Crotty,

115 Ill.

App.

3d

248,

450 N.E.

2d 399,

(1983); Robinson v. Regional Board of

School Trustees,

Randolph County,

130 Ill.

App.

3d 509,

474

N.E.

2d 1356,

(1985).

In response, O’Brien argues through its attorney that this is

not an appeal of a permit, that Section 22.l8b(g) and 40(a) (1)

of

the Act refer only to permit appeals, that there are no regulations

governing the “procedure for negotiating conflicting opinions as

to

reasonability

or

necessity

of

agency

requirements

and

determinations”,

and that the file in the matter reflected a good

faith attempt by O’Brien’s project matter to resolve this matter

with

the

Agency.

O’Brien

asserts

that

it

is

“totally

understandable how

a non-lawyer could be confused and that there

would be

a

substantial passage

of

time”,

given the

efforts

the

attorney made in his first attempt to solve the matter in terms of

locating the Board and requesting information from the Board and

the Agency.

In support of its claim that this case should proceed,

O’Brien further cites Wildwood md.

.v.

Ill. Human Rights Comm.,

162

Ill.

Dec.

546,

580

N.E.

2d

172

(1991)

as

holding

that

the

limitation

for

filing

a

complaint

was

directory

only

and

not

mandatory.

O’Brien

concludes

that

“petitioner

should

not

be

deprived of due process based strictly on a technicality”.

The Board

is not persuaded by O’Brien’s arguments.

Contrary

to O’Brien’s assertion, Section 22.l8b(g) specifically states that

if, as here, the Agency authorized only a partial reimbursement (as

was the case here),

the owner

or operator may petition the Board

for

a

hearing

“in

the

manner

provided

for

review

of

permit

129—75

---

4

decisions

in

Section 40”

the Board’s

permit

appeal

procedural

rules have been on file with the Secretary of State since

1978.

The Wildwood case cited by O’Brien for the proposition that the 35

day appeal period of Section 40 is directory and not mandatory is

inapposite to the instant case.

While

a 300 day filing deadline

was ruled directory in Wildwood,

the statute being construed was

determined to be ambiguous,

having been twice amended in response

to rulings by both the Illinois and United States Supreme Courts.

The court made extensive use of legislative history in attempting

to construe the statute. 580 N.E. 2d at 175-177.

In contrast, the

35 day f~i1ingdeadline of Section 40(a)~l)has remained unchanged

since the adoption of the Act.

Petitioner was advised

of that

deadline in the Agency’s letter of August

1.

O’Brien did not even

file its September 10

letter with the Agency during the

35 day

period.

1

Under these circumstances, the Board has no choice but

to dismiss the petition as untimely filed.

IT IS SO ORDERED.

I., Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board

hereby certify

at the above Order was adopted on the

_______

day of ___________________________

,

1992, by a vote of

L21

1

The Agency has no statutory authority to reconsider permit

decisions.

Reichold Chemicals v.

PCB,

204

Ill. App.

3d 674,

561

N.E.

2d 1343

(1990).

When the Agency denies an application,

the

applicant’s only options are to start over with a new application

to the

Agency or to petition the Board for review.

I

Control Board

129—76