ILLINOIS POLLUTION CONTROL BOARD

March 27, 1986

INTERSTATE POLLUTION

CONTROL,

INC.,

Petitioner,

)

PCB 86—19

v.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD

(by

3.

Anderson):

This Order considers and disposes

of the

following

pleadings:

a)

Agency motions of February 10, 1986

to dismiss

that portion of the petition challenging

a December

27 permit

denial letter

and

to strike

a portion of the motion accompanying

the petition and

IPC’s reply thereto

of February 25 and

the

supplemental affidavit of March

3,

and

b)

IPC motions of

February

3, 1986

(as renewed March

11)

to consolidate

this

petition with PCB 85—155

and

for

a stay of the effect of the

permit denials

(a temporary stay entered February

6 expires

today)

and

the Agency reply thereto

of February 21.

In

summary,

the motion

to dismiss

is denied, the motion

to

strike

is denied,

the motion

for

stay is granted, and

the Board

on

its own motion

reconsiders and grants

the motion

to

consolidate.

Motion

to Dismiss

Section

40

of the Act provides that,

if

the Agency refuses

to grant,...

a permit...,

the applicant may, within 35 days,

petition

for

a hearing”.

Procedural Rule 105.102(a)

provides

that such petition shall

be filed “within

35 days of the date of

mailing

of the P~gency’sfinal decision”.

The Agency denial letter

is dated December

27,

1985;

the

Agency asserts, supported by the affidavit of Ruth Allen,

that

the letter was caused

to

be placed

in the U.S. mail that day

for

delivery via certified mail.

Although no evidence of

the date of

postmark has been placed

in this

record,

the Board will assume

for the purposes of

this discussion that the mailing date and the

postmark date are the same:

December 27.

Computing the

35 day appeal

period pursuant

to

Ill. Rev.

Stat.,

1983,

ch.

1,

par. 1012

“Time, Computation of”, appeal of

this denial was due

to

be filed January 31,

1986.

IPC’s original

certificate of service

indicates that a certified copy of the

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—2—

petition was mailed

to the Agency on January 31,

1986;

its

supplemental certificate of March

3 indicates that a copy was

dispatched

to the Board

on January 31 via Federal Express,

and

delivered

to the Board on February

3, the first business day

following Friday, January 31.

The Agency correctly notes that the Board

has considered

the

date of filing

to be

the date of receipt of

a petition by the

Board.

The Agency therefore asserts that since

the petition was

received beyond

the limits of the 35 day time period, that it is

time barred, and that the time limit

is a jurisdictional one

which cannot

be waived.

For these reasons,

the Agency advocates

dismissal.

The relevant portion

of IPC’s response

is that “mailed

is

filed”.

IPC asserts

that,

by implication,

in adopting Sections

105.102, 103.122

and 103.123

of

the Procedural

Rules,

the

Board

has adopted

the so—called “mailbox rule”

contained

in Supreme

Court Rule

373.

Section 105.122 provides that filings

in permit

appeals shall

be done

in accordance with Sections 103.122 and

103.123.

These

rules, contained

in Part 103 “Enforcement

Proceedings”

speak of commencement of such actions by “service of

notice” and

initiation of certified mailing.

Supreme Court Rule

373 provides

in pertinent part that

“Unless

received

after

the

due

date,

the

time

for

filing

records,

briefs

or

other

paper

to

be

filed

within

a

specified

time

will

be

the

date

on

which

they

are

actually

received

by

the

clerk

of

the

reviewing court.

If received after

the due date,

the

time

of

mailing

shall

be

deemed

the

time

of

filing....”

The Board

rejects IPC’s assertion that it has adopted

the

mailbox rule

in Section 105.122 by its cross—reference

to the

enforcement

rules.

As there

are

no statutory deadlines for the

initiation of enforcement cases,

IPC’s assertion that the Board

contemplated

a “savings clause”

to prevent

the loss of

a cause of

action due

to the Board’s receipt of a filing after expiration of

a statutory time period

is not persuasive.

Next,

as

a matter of policy,

IPC argues adoption of the

mailbox rule on the grounds that “inasmuch as

the Board

is acting

as

a reviewing court,

it

is appropriate

that its practice should

be consistent with that of

the State’s other reviewing courts.”

On

a theoretical

level,

the Board agrees that there

is merit

to establishing consistency of rules of practice between the

appellate courts

and the Board

in matters in which

the Board acts

as

a reviewing

court.

However,

on

a practical level

the Board

labors under statutory decision deadlines which do not apply

to

the courts, deadlines which

the Board already finds

to be

uncomfortably snug.

Once the decision timeclock

is started,

a

“mailed

is filed”

rule can prejudice

the Board Members’ ability

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—3—

to deliberate

issues,

thus,

the Board declines to make

a

wholesale adoption of the mailbox rule.

On the

other hand, one

of

the main purposes of the Act

is to

assure easy access

to the Board

for resolution of environmental

disputes,

a purpose which could

be frustrated where delays

in the

Board’s receipt of an initial pleading may occur

for

reasons

beyond

a litigant’s control.

The Board

also notes

that,

in the

case of permit appeals,

a permitee’s 35 day time period

for

review of an Agency determination and

initiation of an appeal

is

truncated at both start and finish by any delays

in mail service.

The Board

notes

the Agency’s argument that

the mailbox

rule

of Supreme

Court Rule

373 may not be used to extend the time for

the filing

of an appeal.

The Agency asserts that the factual

situation here

is nearly identical

“to that

in Schneider

v. Vine

Street Clinic

(1979),

77 Ill. App.3d 946,

397 N.E.

2d 194.

There,

the lower court entered

an order of dismissal on December

27,

1978.

Therefore,

the 30—day period within which

a notice of

appeal must have been filed pursuant

to Supreme Court 303(a)

expired

on January 26, 1979.

On Friday, January 26, 1979

(the

last day)

the plaintiffs deposited the notice of appeal

in the

United States mail, addressed

to the clerk of the circuit

court.

The circuit clerk file stamped

the notice

of appeal on

Monday, January 28,

1979.

The court dismissed the appeal saying

(of Rule 373)

that

“(ri)o rule providing

for

the

use of mail

undertakes

to modify the mandatory language of Supreme Court Rule

303(a)

.“

The Board

finds this case to be distinguishable from the

situation here.

The language of Supreme Court Rule 303(a)

is

specific mandatory,

as the notice

“must

be

filed with

the

clerk

of

the circuit court”.

By contrast, Section

40 of the Act

provides that an applicant

“may,

within 35 days, petition for

a

hearing”.

The Board believes this language

to be capable of

interpretation as

to what constitutes a timely petition.

Therefore,

on balance,

the Board believes that adoption of

a

limited version of the “mailbox

rule”

is appropriate:

as

to

actions which must be commenced by a person within a statutorily

defined

time period, the Board will deem the

initial pleading to

be timely received

if the accompanying certificate of service

states that service was commenced before the expiration of

the

statutory period.

However,

the Board will continue

to calculate

its own decision period

as commencing

the day after

the Board’s

actual receipt of

the petition.

The Board will deem the February 3 petition as timely

received on January 31.

The Agency’s motion

to dismiss

is

therefore denied.

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—4—

Motion

to Strike

and Motion for

Stay

The Agency moves

to strike,

on the grounds that

the

following assertion made on page 12 of IPC’s motion

for stay is

unsupported

by the record

or affidavit:

“Apart

from

evidence

to

be

adduced

by

IPC’s

own

witnesses,

it

is

anticipated

that witnesses

for

the

Rockford

Sanitary

District

who

had

candidly

agreed

that

IPC’s discharge

at

its present

levels

of

“trace

solvents”

has

no

impact

on

the

Rockford

Sanitary

District.”

(sic

—

appears

as

sentence

fragment

in

the original)

IPC responds that no statements

are supported

by the record,

since the record

is not yet filed.

The Board

notes that this

filing

is close

to

a month overdue.

IPC further notes

that the

statement should be

in the Agency record, but that

in any event

the intent was

to summarize evidence IPC would present

at

hearing.

The Agency correctly states

the legal principal

that

evidence

in support of

a motion should be drawn from the record

or supported

by affidavit.

IPC

is correct that it

is impossible

for

the Board

to determine what

is

in an unfiled Agency record.

The better practice would have been

to support the motion with

an

affidavit.

The motion

to strike is granted

As

to

the merits

of

the motion

for stay,

the Agency believes

that petitioner

has not made

an adequate showing that

a)

it

is

likely to prevail

on the merits of its appeal

and

b)

denial

of

stay would cause irreparable harm,

although the Agency does not

assert that grant of

a stay will cause harm

to the environment.

On the issue of harm,

the gist of the Agency’s argument appears

to be that denial

of

a stay will not irreparably prejudice IPC,

since

it would not be shutdown,

and could continue

to operate

without permits, subject of course

to enforcement

liability.

Concerning likelihood of success on the merits, the Agency’s

argument

is that

a)

the operating permit denial was untimely

filed——an argument rejected by the Board and

b)

the supplemental

permit renewal

applications were filed with the Agency less than

90 days

from the date of their expiration,

and the Agency has

authority to require additional analyses.

On this latter point,

IPC challenges

the reasonableness of the Agency’s request,

for

various

reasons.

The motion

for

stay is granted.

The Board reiterates

the

findings made concerning

a similar motion

in PCB 85—155:

“In

support

of

its motion

for

stay

of

the effect

of

these

denials,

IPC

asserts

that

it

“will

suffer

almost complete devastation of

it’s

business

if not

permitted

to remain

in operating pending

the outcome

of

the

proceedings”,

and

that

there

will

be

“severe

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—5---

inconvenience

to

customers

who

have

made

no

alternative

provisions

for

waste

removal”.

IPC’s

petition

contains

various

exhibits,

but

especially

Exh.

15,

indicating

that concentrations

of

solvents

in

its

recent

water

discharge

are

below

19.2

parts

per

million.

The

Board

finds

that

the

severe

economic

harm

to

IPC

and

its

customers

greatly

outweighs

any

apparent

harm

to

the

environment,

and

accordingly

grants

the

stay.

Pending

resolution

of

these

appeals,

IPC

shall

comply

with

the conditions

of the expired

...

permits.

In

so

ruling,

the Board has accepted

the accuracy of

IPC’s

exhibits

only

for

this limited

purpose,

given

lack

of

Agency

objection

as

to

IPC’s

likelihood

of

prevailing on the merits,

the Board

finds only that a

sufficient

showing

has

been made

given

its

findings

concerning

the

relative

economic

and

env~r~nF-~l

harms here asserted.”

Motion To Consolidate

In

its February

26 Order,

the Board denied

the motion

to

consolidate this case with PCB 85—155,

to avoid delaying the

start of the hearing

in that case which was scheduled for

February 27.

Unbeknownst to the Board at that time,

the hearing

was

canceled on February

26 and

rescheduled

for May 15.

Pursuant

to IPC’s motion of March

11,

the Board

is therefore reconsidering

the motion

to consolidate, and reverses its earlier ruling.

The

motion

to consolidate

is granted.

IT

IS SO ORDERED.

R.

Flemal concurred.

B.

Forcade,

J.

Marlin and J.Theodore Meyer dissented.

I, Dorothy

M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above Order was adopted on

the~’7~ day of

~7~~--t-

,

1986, by a vote

of

~/-.,3

~

Dorothy

M

Illinois

Pollution Control Board