ILLINOIS POLLUTION CONTROL BOARD
February 7, 1991
FINKS & AUSTMAN, a
)
partnership,
)
Petitioner,
PCB 90—243
V.
)
(Underground Storage Tank
)
Fund Reimbursement
ILLINOIS ENVIRONMENTAL
)
Determination)
PROTECTION AGENCY
)
)
Respondent.
ORDER OF THE BOARD BY (J. Anderson):
This matter comes before the Board on a January 7, 1991
“Motion to Dismiss” filed by the respondent, Illinois
Environmental Protection Agency (Agency). The petitioner, Finks
& Austman, filed a “Petition to Contest Decision of Agency” on
December 24, 1990. The petition requested a hearing to contest a
decision of the Agency to partially reimburse the petitioner for
corrective action associated with ownership of underground
storage tanks. The petitioner filed a “Response to Motion to
Dismiss” on January 15, 1991. For the reasons stated below, the
Agency’s Motion to Dismiss is granted.
On January 22, 1991, the Agency filed a “Motion for Leave to
File Reply” and a “Reply to Petitioner’s Response to Motion to
Dismiss.” In support of its motion for leave to file a reply the
Agency stated that the petitioner had misunderstood the case law
and law cited, that the Agency’s reply would aid the Board and
that the Agency’s reply would not cause a delay. The Board
hereby grants leave to the Agency to file a reply to prevent
material prejudice.
In its motion to dismiss the Agency stated that the Board
does not have jurisdiction to review this matter because the
petition was not timely filed within the 35 day period provided
by Section 40(a)(l) of the Illinois Environmental Protection Act
(Act) and Section 105.102(a) (2) of the Board’s procedural rules.
In support of its motion, the Agency filed the affidavit of Cathy
Hunter, Office Administrator for the Land Pollution Control
Division of the Agency, stating that there was “no reason not to
believe that the denial of reimbursement letter
. . .
dated
November 2, 1990 was not mailed on November 2, 1990 or on
November 5, 1990 at the latest.” The Agency stated that the 35
day period, from November 2, 1990, expired on December 7, 1990.
The response of petitioner contained three arguments in
support of denial of the motion to dismiss. Petitioner first
argued that the respondent had not carried its burden of
118—271
establishing the mailing date of the denial letter because no
corroborating proof of office custom, proof of service or
certificate of mailing was provided. Petitioner cited case law
in support of its argument. The Agency reviewed the cases cited
by petitioner and maintained that the affidavit of Cathy Hunter
and the receipt of the November 2, 1990 letter by the petitioner
carried the burden of establishing a mailing date. The Agency
also asserts that the corroboration of Cathy Hunter’s affidavit
is the receipt of the letter by the petitioner and that
petitioner has not denied timely receipt. In addition, the
Agency had sent prior correspondence to the petitioner without
complaints concerning lateness. Upon consideration of these
facts and the fact that even if the letter were mailed one week
after November 2 the petition would still be late, the Board
finds that the petition for review is not timely filed.
The second argument raised by petitioner is that the 35 day
requirement does not apply to this matter because the legislature
did not include it in 22.l8b(g). Section 22.18b(g) provides that
the Agency’s decision to deny reimbursement or to partially
reimburse an owner or operator of underground storage tanks can
be reviewed by the Board “in the manner provided for the review
of permit decisions in Section 40 of the Act.” The petitioner
asserts that a comparative reading of Section 22.18b(g) and
Section 40(a)(l) of the Act shows that the language is
“practically identical” except for the omission of the phrase
“within 35 days” in Section 22.18b(g). In addition, petitioner
argues that the 35 day limitation in Section 40(a) (1) applies
only to review of permit denials because Section 22.l8b, unlike
Section 39(a), does not require the Agency to notify an owner or
operator of a decision. The Agency asserts in its filings that
Section 22.lBb(g) grants jurisdiction to the Board and states the
type of appeal process to be applied. Therefore, once
jurisdiction has been established, the Board rules concerning
Section 40 permit appeals, which establish the 35 day limit,
apply to this matter. (35 Ill. Adm. Code Part 105.) The Board
finds that the plain meaning of the statute shows that the 35 day
limit of Section 40 is applicable to this matter.
Petitioner’s final argument is that under Section 22.18b it
is difficult to determine when the 35 day period is to begin. In
this matter where a partial reimbursement was authorized, the
Agency notified the Comptroller of its decision. The Agency did
not notify the petitioner of its decision until after the
petitioner wrote to the Agency questioning the partial
reimbursement from the Comptroller. The petitioner argues that
had the Agency chosen not to respond to petitioner’s letter, the
35 day period might have run indefinitely. In reply to
petitioner’s third argument, the Agency stated that the November
2, 1990 letter was viewed by petitioner as a final decision
because it was included in the petition for review. Therefore,
the letter started the time period and the petitioner’s petition
was two weeks late. The Board agrees with the Agency that clear
notification of the Agency’s decision occurred with the November
118—27 2
2, 1990 letter to the petitioner. Pursuant to Section
105.102(a) (2) of the Board’s procedural rules, the 35 day period
begins with the date of mailing of the Agency’s final decision.
For the reasons stated above, the Board hereby grants the
Agency’s motion and this matter is dismissed.
The Board notes that the situation presented in this matter
could be avoided in the future. The Board, while having no
jurisdiction over the Agency procedures, suggests that a letter
sent to the owner/operator at the same time the Comptroller is
notified would reduce the potential for confusion. Such a letter
could follow the requirements for a 39(a) letter and further
reduce the potential for confusion. In addition, the Agency
might consider sending these letters with proof of service or via
certified mail.
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1989, ch. 111 1/2, par. 1041, provides for appeal of final
Orders of the Board within 35 days. The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board~j~e,rebycertify
t~t
~he above Order was adopted on the
/~-‘~- day of
~
,
1991, by a vote of
~
/~1~
Dorothy M.4inn, Clerk
Illinois ~(ç~lution Control Board
118—273