ILLINOIS POLLUTION CONTROL BOARD

January 23, 1992

ARTHUR J. FERRARI,

Petitioner,

v.

)

PCB 91—242

(Underground Storage Tank Fund

Reimbursement Determination)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD (by B. Forcade):

On December 5, 1991 Arthur J. Ferrari filed this appeal of a

September 28, 1991 Agency underground storage tank fund

reimbursement determination. On December 24, 1991 the Agency filed

a motion to dismiss this appeal as untimely filed. Petitioner has

not filed a response to the motion.

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

part that “the applicant may, within

35

.days, petition for a

hearing”. Ill. Rev. Stat., ch. 111 1/2, pars. 22.18b(g) and

40(a) (1). It is undisputed that the Agency made its UST

determination in a letter dated September 28, 1991 addressed to Mr

Ferrari. The Agency determined that some costs were reimbursable,

but that others were not. The reimbursable amount was determined

to be $44,438.20, less a $10,000 deductible. Ineligible costs were

determined to be $35,144.53. This letter, mailed October 16, 1991,

clearly stated that:

This constitutes the Agency’s final action with regards to the

above invoices. An underground storage tank owner or operator

may appeal this decision to the Illinois Pollution Control

Board (Board) pursuant to Ill. Rev. Stat. 1989, Chap. 111 1/2,

Para. l022.18B(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 (35 111. Adm. Code

105.102(a) (2)).

129—323

---

Any appeal of this decision was accordingly due to be filed

with the Board on or before October 28, 1991. No such appeal was

filed until December 5.

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 ~1ear 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).

The Agency’s September 18 letter made it very clear that the

Act and the Board’s rules specify that an appeal must be filed

within 35 days of the date of the mailing of the Agency letter.

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, ~iereby certif hat the above Order was adopted on the

________

day of __________________________________, 1992, by a vote of

Dorothy N. ~n,

,~

Clerk

,L~

Illinois Po1~ution Control Board

129— 324