ECE~VED
BEFORE THE POLLUTION
CONTROL BOARD
rjp~~
5
2004
OF THE STATE OF ILLINOIS
WEI ENTERPRISES,
)
)
Petitioner,
)
vs.
)
PCB
No. 04-23
)
(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
S. Second Street,
Suite
402
Springfield,
IL
62704
POLLUTION
CONThOL
BOARD
JohnJ.
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
for
Petitioner
BEFORE
THE POLLUTION CONTROL BOARD
REC~VE~
OF
THE STATE OF ILLINOIS
~
5
2004
WEI ENTERPRISES,
)
~
‘~j~-
~
~OL~ON
CONThOL ~OM~
Petitioner,
)
)
vs.
)
PCB No.
04-23
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION TO RECONSIDER
NOWCOMES the Petitioner, Wei Enterprises,
(“Wei”), by one ofits
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
16,
2003, the Agency issued a Final Decision to Wei.
2.
On July
23,
2003, Wei made a written request to the Agency for an
extension oftime by which to file
a Petition for review to ninety days.
3.
On August 20,
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
16,
2003
Final
Decision, the Illinois Pollution Control Board (“Board”) entered
an Order on
September
4,
2003 extending the appeal period to November
18,
2003,
exactly 125
days from the date ofthe Agency’s Final
Decision, but did not notify Wei of the
entry of this Order.
5.
On November
19,
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 III. Adm.
Code
105.406 provides in part that a joint request to
extend the
35 day period within which
to ifie an appeal extends the appeal period
to
a period not exceeding 125
days from the
date of service
ofthe 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 Iii. Adm.
Code
10 1.300(a) provides in part that the computation
of
any period of time prescribed in the Rules ofthe Board will begin with the first
calendar
day following the day
on which the act, event or development occurs and
will run until the
close ofbusiness
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
17,
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 Iii. Adm.
Code 101.300(a),
101.300(c) and
105.406, Wei had until November 20,
2003, the
125th day from July
18,
2003, the day after the date ofservice 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
19,
2003 pursuant to the applicable regulations,
the Board has
jurisdiction ofthis matter.
14.
The Board’s Order of September
4,
2003 was in contravention ofthe
regulations
and the Board should reconsider its dismissal of Wei’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
for
Curtis W. Martin
IL
AIRDC
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
WET ENTERPRISES,
)
)
Petitioner,
)
)
vs.
)
PCB No. 04-23
)
(LIST Appeal)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
AFFIDAVIT
STATE OF ILLINOIS
)
)
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 ofbusiness
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
A
5.
My review of the Wei file maintained by USI reveals that
Wei and USI
received the Agency letter dated July
16,
2003, which is the subject ofthe appeal in
the above cause,
on July
17,
2003.
Afulant 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.
OFFiCIAL
SEAL
CURTIS ‘N.
MARliN
Notary
Public
State of Illinois
MyCommissior
E~oires
09/01/05
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, Illinois,
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 5.
Second Street, Suite 402
Springfield,
IL
62704
for
Petitioner,