RECE~VED
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
~
2004
WEI ENTERPRISES,
~.
~LI~4~
POLTiC~CONTROL
BOARD
)
Petitioner,
)
vs.
)
PCBNo. 04-22
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
600 5. Second Street, Suite 402
Springfield, IL 62704
John J. Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, IL 62794-9276
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of
the Pollution Control Board a Motion to Reconsider, a copy of which is herewith
served upon you.
Curtis W. Martin
IL ARDC No. 06201592
SHAW & MARTIN, P.C.
Attorneys at Law
123 S. 10th Street, Suite 302
P.O. Box 1789
Mt. Vernon, Illinois 62864
Telephone (618) 244-1788
Wei
Attorney for
Petitioner
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on December 30, 2003,
I served true and correct copies of a Motion to Reconsider, by placing true and
correct copies in properly sealed and addressed envelopes and by depositing said
sealed envelopes in a U.S. mail drop box located within Mt. Vernon, Iffinois, with
sufficient Certified Mail postage affixed thereto, upon the following named persons:
Dorothy M. Gunn, Clerk
John J. Kim
Illinois Pollution Control Board
Assistant Counsel
State of Illinois Center
Special Assistant Attorney General
100 West Randolph Street
Division of Legal Counsel
Suite 11-500
1021 North Grand Avenue, East
Chicago, IL 60601
P.O. Box 19276
Springfield, IL 62794-9276
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
600 S. Second Street, Suite 402
Springfield, IL 62704
(
/Curtis
//~~/j~
Petitioner,W.Marti~’~.ttorneyW~ji~nterprisesfor
RECE~VED
BEFORE THE POLLUTION CONTROL BOARD’JAN
52004
OF THE STATE OF ILLINOIS
POW.mON CONTROL BOARD
WEI ENTERPRISES,
)
)
-
Petitioner,
)
)
vs.
)
PCBNo.04-22
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION TO RECONSIDER
NOW COMES the Petitioner, Wei Enterprises, (“Wei”), by one of its
attorneys, Curtis W. Martin of Shaw & Martin, P.C., and, for its Motion to
Reconsider, pursuant to 35 Ill. Adm. Code 101.520, states as follows:
1.
On
July 15, 2003, the Agency issued a Final Decision to Wei.
2.
On July 16, 2003, Wei made a written request to the Agency for an
extension of time by which to file a Petition for review to ninety days.
3.
On August 15, 2003, the Agency joined in Wei’s request that the Board
extend the thirty-five day period for filing a Petition to ninety days.
4.
As a result of the parties timely filing the joint request to extend the 35
day period within which Wei could appeal the Agency’s July 15, 2003 Final
Decision, the Illinois Pollution Control Board (“Board”) entered an Order on
September 4, 2003 extending the appeal period to November 17, 2003, exactly 125
days from the date of the Agency’s Final Decision, but did not notify Wei of the
entry of this Order.
5.
On November 18, 2003, Wei sent its Petition for Review of Final
Agency Leaking Underground Storage Tank Decision by the United States Mail for
filing with the Board which was received by the Board on November 21, 2003.
6.
On December 4, 2003, the Board entered an Order finding it lacked
jurisdiction in this matter because the Petition was filed after the end of the
extension period specified in the Board’s September 4, 2003 Order and dismissing
the case and closing the docket.
7.
35 Ill. Adm. Code 105.406 provides in part that a joint request to
extend the 35 day period within which to file an appeal extends the appeal period to
a period not exceeding 125 days from the
date of service
of the Agency’s Final
Decision.
8.
35 Ill. Adm. Code 101.300(c) provides in part that in the case of service
by registered or certified mail, service is deemed complete on the date specified on
the registered or certified mail receipt, but such presumption can be rebutted by
proper proof.
-
9.
35 Ill. Adm. Code 101.300(a) provides in part that the computation of
any period of time prescribed in the Rules ofthe Board wifi begin with the first
calendar day following the day on which the act, event or development occurs and
will run until the close of business on the last day.
10.
35 Ill. Adm. Code 101.300(b)(2) provides in part that documents will be
considered filed in conformance with the filing requirements ofthe Rules of the
Board if the document is filed by U.S. Mail and the postmark date precedes the
filing deadline.
11.
On July 16, 2003, Wei, through its consultant, United Science
Industries, Inc. (“USI”) received the Agency’s Final Decision, as is more specifically
set forth in the Affidavit attached as Exhibit A.
12.
In the present case, pursuant to 35 Ill. Adm. Code 10 1.300(a),
101.300(c) and 105.406, Wei had until November 19, 2003, the 125th day from July
17, 2003, the day after the date of service of the Agency’s Final Decision, within
which to file its appeal.
-
13.
Since Wei’s Petition must be deemed to have been timely filed on
November 18, 2003 pursuant to the applicable regulations, the Board has
jurisdiction of this matter.
14.
The Board’s Order of September 4, 2003 was in contravention ofthe
regulations and the Board should reconsider its dismissal ofWei’s Petition.
WHEREFORE, Petitioner, Wei Enterprises, prays that this Court reconsider
its Order entered December 4, 2003 dismissing the above case and closing the
docket, take jurisdiction in this matter, and grant Petitioner such other and further
relief as the Board deems just and equitable under the facts and circumstances.
Respectfully submitted,
SHAW & MARTIN, P.C.
By
/~
6J~
J
/Curtis W. Martin/Attorney for
/
Wei Enterprise
,
Petitioner
Curtis W. Martin
IL ARDC No. 06201592
SHAW & MARTIN, P.C.
Attorneys at Law
123 S. 10th Street, Suite 302
P.O. Box 1789
Mt. Vernon, Illinois 62864
Telephone (618) 244-1788
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
WEI ENTERPRISES,
)
)
-
Petitioner,
)
)
vs.
)
PCB
No.04-22
)
(LJST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
AFFIDAVIT
STATE OFILLINOIS
)
) ss.
COUNTY OF JEFFERSON
)
I, Duane Doty, being first duly sworn, on oath depose and’ state:
1.
I have first hand knowledge of the facts as alleged herein, and if called
to testify I could competently testify to such facts.
2.
I am the General Manager for United Science Industries, Inc. (“USI”),
the environmental consultant for Wei Enterprises (“Wei”) with regard to Wei’s
Leaking Underground Storage Tank project located at Shiloh, St. Clair County,
Illinois, and known as Incident No. 982804.
3.
Among my duties as General Manager for USI, I maintain the records
created during the course of the work performed by USI ‘on behalf ofWei.
4.
It is USI’s ordinary course of business to maintain records created or
received by Wei or USI, including Agency correspondence, during the course of the
work performed on behalf of Wei.
EXHIBIT ~
5.
My review ofthe Wei file maintained by USI reveals that Wei and USI
received the Agency letter dated July 15, 2003, which is the subject ofthe appeal in
the above cause, on July 16, 2003.
Affiant states nothing further.
Curtis W. Martin
IL ARDC No. 06201592
SHAW & MARTIN, P.C.
Mercantile Bank Building, Suite 302
P. 0. Box 1789
Mt. Vernon, Illinois 62864
Telephone: (618) 244-1788
Subscribed and sworn to before me this
~() —
day of.
2003.
Not7~blic
OFF1CI~LSEAL
CURTIS ~V,1~IART!N
~4Ot2(yPublic, Sta:e of Sinois
~y Commismo,’ Ex~ires~
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