RECEIVED

CLERKS OFFICE

BEFORE THE

POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

WEI ENTERPRISES,

)

Petitioner,

)

V.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

)

)

NOTICE

PCB No.

04-23

(LUST Appeal)

JAN

20

2004

STATE OF ILLINOIS

Pollution Control Board

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite

11-500

Chicago,

IL 60601

Carol

Sudman, Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue, East

P.O. Box 19274

Springfield, IL

62794-9274

Curtis W. Martin

Shaw & Martin, P.C.

123 South

10th

Street

Suite 302

P.O. Box 1789

Mt. Vernon, IL

62864

PLEASE TAKE NOTICE that

I

have today

filed with the

office of the

Clerk of the

Pollution

Control

Board a

RESPONSE

TO

MOTION TO

RECONSIDER, copies

of which

are

herewith

served

upon you.

Respectfully submitted,

ILLiNOIS ENVIRONMENTAL PROTECTION AGENCY,

Assistant Counsel

Special Assistant Attorney General

Division of Legal Counsel

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143

(TDD)

Dated: January 16, 2004

---

RECEIVED

CLERKS

OFFICE

BEFORE THE POLLUTION

CONTROL BOARD

2004

OF THE STATE OF ILLINOIS

STATE OF IWNOIS

WET ENTERPRISES,

)

Pollution Control Board

Petitioner,

)

v.

)

PCBNo. 04-23

ILLINOIS ENVIRONMENTAL

)

(LUST Appeal)

PROTECTION AGENCY,

)

Respondent.

)

RESPONSE

TO MOTION TO RECONSIDER

NOW COMES the Respondent,

the Illinois Environmental Protection Agency

(“Illinois

•EPA”), by

one of its attorneys, John J.

Kim,

Assistant

Counsel

and Special

Assistant

Attorney

General,

and,

pursuant to 35

Iii.

Adm.

Code

101.500(d) and

101.504,

hereby requests that the

Illinois Pollution Control Board (“Board”) deny the Petitioner’s motion to reconsider.

In support

of this response, the Illinois EPA states as follows:

1.

On

July

16,

2003,

the

Illinois EPA issued

a final decision to

the Petitioner.

On

July 23, 2003, the Petitioner made a written request to the Illinois EPA for an extension oftime

by which to

file a petition for review, asking the

Illinois EPA join in requesting that the Board

extend the

thirty-five

day

period for

filing

a

petition

to

ninety

days.

The Petitioner

did

not

represent when the final decision was received.

2.

On August 20,

2003, the Illinois EPA mailed a request to the Board on behalf of

both

the Petitioner

and

the Illinois

EPA, asking

that the Board

grant an

extension of time

to

November

18, 2003,

to the Petitioner to file a formal petition as allowed for pursuant to Section

40(a)(1) ofthe Illinois Environmental Protection Act (“Act”) (415 ILCS

5/40(a)(1)).

The stated

purpose of the request was to

allow the parties

additional

time to discuss the matter and

either

resolve the

issues

without need of a

hearing or to

limit the

scope of any hearing that

may be

necessary to resolve this matter.

1

---

3.

The

Illinois

EPA

clearly

stated

in

the

request

for

additional

time

that

it was

counting

from

the

date of the

subject final

decision,

and

not

the

date of service,

since

the

Petitioner did

not

identify the date

upon

which

the decision was

received.

The

Illinois

EPA

served a copy ofthe request for the extension oftime upon the Petitioner.

4.

On September

4,

2003,

the Board issued

an order

stating

that the Illinois

EPA’s

request was timely filed and was

approved.

Accordingly, the Board

ordered that

the Petitioner

must file a formal petition by no later than November

18, 2003, otherwise the right to appeal

the

subject final decision would lapse and the Board would dismiss the case.

5.

Section 40(a)(1) of the Act and

Section

105.406 of the Board’s procedural rules

(35

Iii. Adm.

Code

105.406) was relied upon by the Board in granting the extension.

Both those

provisions

state that

an

extension of time

to

file a

formal petition may

be

granted,

upon joint

request by the parties, for a

“period of time

not to

exceed 90

days.”

Though the Illinois EPA

does not have a written record of the Board’s service ofthe September 4, 2003 order, presumably

that order (as are all such orders) was servedupon both the Illinois EPA and the Petitioner.

6.

On November

19, 2003, the Petitioner sent a formal petition seeking to challenge

the subject final decision.

On December 4, 2003, the Board issued

an order dismissing

the case.

The Board ruled that,

pursuant to

its order dated September 4,

2003, the Petitioner did not meet

the filing deadline set forth.

7.

On December 30,

2003,

the Petitioner filed a

Motion

to

Reconsider

(“motion”)

with the Board,

asking that the Board reverse its December 4, 2003

order

and reinstate the case.

The Illinois EPA received service of the motion on January 2, 2004.

•

8.

In its motion,

the Petitioner argues

that it did not

receive a copy of the Board’s

September 4, 2003

order,

setting forth the filing deadline ofNovember

18, 2003.

The Petitioner

2

---

also argues that, based upon an affidavit included with the motion, the subject final decision was

not

received

by

the

Petitioner

until

July

17,

2003.

The

Petitioner

then

argues

that

for

computation purposes, the Board

should begin counting

from July

18,

2003,

to

determine what

the

125th

day after the date of service should be.

That calculation would result in November 20,

2003,

as being the appropriate date for timely filing a petition.

9.

The

Petitioner’s

arguments

are

not

compelling.

The

Petitioner

is

basing

its

arguments

on the

notion

that it did

not

receive

service of the

September

4,

2003

order,

and

therefore was not aware ofthe date selected by the Board.

However, the Petitioner did not claim

that

it did

not receive the

Illinois

EPA’s request

for the extension of time,

in

which

the date

sought

for the

extension was

clearly put

forth

as

November

18,

2003.

No objection

to

that

request was raised by the Petitioner.

•

10.

Further, the Board

surely followed all necessary and appropriate

steps to

serve a

copy of the September 4, 2003

order upon the Petitioner.

The order was received by the Illinois

EPA, and therefore there is no

reason to believe it was not so received by the Petitioner.

Also, it

is

incumbent upon the Petitioner to follow up on any such request to ascertain whether in fact it

did receive an extension oftime to file its petition.

Even without benefit ofa copy of the Board’s

written order, this could have been done through the Board’s website resources.

11.

Finally,

the

method

of calculation

proposed

by

the

Petitioner

is

wrong.

The

Petitioner would

have the Board

adopt

a

method

such that the

125

days of time

would

begin

counting

from

the

day

after

the date of service, not

beginning

with

the

date of service.

The

Petitioner’s

method would

actually allow for

126

days after the date of service, which

is

not

allowed for.

3

---

12.

The

Petitioner

failed

to

raise

any

timely

objection

or

concern

regarding

the

content of the Board’s September 4,

2003

order,

such that the Petitioner is

arguing that it never

bothered to learn whether it did in fact receive an extension oftime to file a petition.

Further, the

Board’s order is clear and sets forth a date no longer than 90 days from the date of service ofthe

final decision;

notably,

the language of Section 40(a)(1) ofthe Act and

Section

105.406 allows

for an extension to

a date up to,

and

possibly less than,

90

days from the date of service.

The

extension simply cannot be for a longer period oftime.

13.

The Petitioner’s failure to

follow up on the Board’s September 4,

2003

order and

untimely presentation of arguments should

be

disregarded.

The Board

should

affirm its

order

entered on December 4, 2003.

WHEREFORE,

for the reasons stated above, the Illinois

EPA respectfully requests that

the Board deny the Petitioner’s motion.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Assistant Counsel

Special Assistant Attorney General

Division ofLegal Counsel

1021 North Grand Avenue, East

P.O. Box

19276

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143

(TDD)

Dated: January 16, 2004

This filing submitted

on recycled

paper.

4

---

CERTIFICATE OF SERVICE

I, the undersigned attorney at

law, hereby certify that on January

16,

2004,

I served true

and

correct

copies

of a

RESPONSE

TO

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 Springfield,

Illinois, with sufficient First Class

Mail postage affixed thereto, upon the following named persons:

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago,

IL 60601

Carol Sudman, Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue, East

P.O. Box

19274

Springfield,

IL

62794-9274

Curtis W. Martin

Shaw & Martin, P.C.

123

South

10th

Street

Suite 302

P.O. Box

1789

Mt. Vernon, IL

62864

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Assistant Counsel

Special Assistant Attorney General

DivisionofLegal Counsel

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143

(TDD)