BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
WET ENTERPRISES,
)
Petitioner,
)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
V.
)
)
)
Respondent.
)
NOTICE
PCB No. 04-22
(LUST Appeal)
RECEiVED
CLERK’S OFFICE
JAN 2 02004
STATE OF ILLINOIS
Pollution Control Board
DorothyM. 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, it 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,
Respondent
Assistant Counsel
Special Assistant Attorney General
Divisiofl ofLegal Counsel
1021 North GrandAvenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: January 16, 2004
RECEIVED
CLERK’S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
JAN 202004
OF THE STATE OF ILLINOIS
Pollution
STATE OF
Control
ILLINOIS
Board
WEI ENTERPRISES,
)
Petitioner,
)
V.
)
PCB No. 04-22
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
Ill. 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
ofthis response, the Illinois EPA states as follows:
1.
On July
15,
2003, the Illinois EPA issued a final decision to the Petitioner. On
July 16, 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 whenthe final decision was received.
2.
On August
15,
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 17, 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 17, 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
Ill. 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 ofthe Board’s service ofthe September 4, 2003 order, presumably
that order (as are all such orders) was served upon both the Illinois EPA and the Petitioner.
6.
On November 18, 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 ofthe 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 17, 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 16, 2003.
The Petitioner then argues that for
computation purposes, the Board should begin counting from July 17, 2003, to determine what
the
125th
day after the date ofservice should be. That calculation would result in November 19,
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 17, 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 ofthe 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 of time to file its petition. Even without benefit of a copy ofthe 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 factreceive an extension of time 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) of the 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,
Respondent
JóhnQ. Kim
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
Curtis W. Martin
Illinois Pollution Control Board
Shaw & Martin, P.C.
James R. Thompson Center
123 South 1
0th
Street
100 West Randolph Street
Suite 302
Suite 11-500
P.O. Box 1789
Chicago, IL 60601
Mt. Vernon, IL 62864
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue, East
P.O. Box 19274
Springfield, IL 62794-9274
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)