ILLINOIS POLLUTION CONTROL BOARD

BACKGROUND
MOTION TO RECONSIDER
AGENCY’S RESPONSE
DISCUSSION

February 19, 2004

WEI ENTERPRISES,

Petitioner,

ILLINOIS ENVIRONMENTAL

ORDER OF THE BOARD (by T.E. Johnson):

This matter is before the Board on a January 5, 2003 motion to reconsider filed by Wei

Enterprises (Wei). On December 4, 2003, the Board issued an order that dismissed this case and

closed the docket after finding that the Board lacked jurisdiction in this matter because the

appeal was filed after the end of the extension period specified in a September 4, 2003 order.

For the reasons articulated below, the Board grants Wei’s motion to reconsider, but

affirms its December 4, 2003 decision.

BACKGROUND

On August 27, 2003, the parties filed a joint request for an extension of the appeal period,

asking the Board to extend the appeal period to November 17, 2003. On September 4, 2003, the

Board granted the parties’ joint request, and extended until November 17, 2003, the time period

within which Wei could appeal a July 15, 2003 determination of the Illinois Environmental

Protection Agency (Agency).

See

415 ILCS 5/40(a)(1) (2002); 35 Ill. Adm. Code 105.406. At

issue is the Agency’s denied reimbursement of requested corrective action costs for Wei

Enterprises’ leaking underground petroleum storage tank facility located at 529 Maple Street,

Shiloh, St. Clair County.

On November 18, 2003, Wei sent a petition and the requisite number of copies via the

U.S. mail for filing and service. The Board received the petition on November 21, 2003. On

December 4, 2003, the Board found that it lacked the jurisdiction to consider an appeal filed after

the time specified in Section 40(a)(1) of the Environmental Protection Act (Act). Wei v. IEPA,

PCB 04-22 (Dec. 4, 2003), slip op. at 1,

citing

Naperville Radiator Services v. IEPA, PCB 01-4

(Sept. 7, 2000); Panhandle Eastern Pipe Line Company v. IEPA, Ill. App. 3d, 2000 (4th Dist.

June 5, 2000). The Board dismissed the case and closed the docket.

On January 5, 2004, Wei filed the instant motion. The Agency filed its response on

January 20, 2004.

MOTION TO RECONSIDER

Wei asserts that it was not notified of the September 4, 2003 Board order that extended

the appeal period to November 17, 2003. Mot. at 1. Wei argues that 35 Ill. Adm. Code 105.406

provides 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. Mot. at 2.

Wei asserts that service by registered or certified mail is deemed complete on the date

specified on the mail receipt, but that such presumption can be rebutted by proper proof. Mot. at

2. Wei further asserts that the computation of any period of time prescribed in the rules of the

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 of business on the last day.

Wei contends that it received the Agency’s final decision on July 16, 2003, and that,

pursuant to the applicable Board regulations, it had until November 19, 2003, being the 125th

day from July 17, 2003, within which to file its appeal. Mot. at 3. Wei argues that since Wei’s

petition must be deemed to have been timely filed on November 18, 2003, the Board has

jurisdiction in this matter, that the Board’s order of September 4, 2003, was in contravention of

the regulations, and that the Board should reconsider its dismissal of Wei’s petition.

AGENCY’S RESPONSE

The Agency asserts that it mailed a request to the Board on behalf of itself and Wei

asking the Board to grant an extension of time allowing Wei until November 17, 2003 to file a

formal petition in this matter. Resp. at 1. The Agency notes that the requeste clearly states it

was counting from the date of the final decision and not the date of service because Wei had not

identified the date upon which the decision was received. Resp. at 2. The Agency asserts it

served a copy of the request for extension of time on Wei.

The Agency contends the Board relied on Section 40(a)(1) of the Act (415 ILCS

5/40(a)(1) (2002)) and 35 Ill. Adm. Code 105.406 in granting the extension, and that both

provisions state that an extension of time may be granted upon joint request for a period of time

not to exceed 90 days. Resp. at 2.

The Agency argues that Wei’s arguments for reconsideration are not compelling. The

Agency asserts that although Wei is arguing that it did not receive the Board’s September 4,

2003 order and was not therefore aware of the date selected by the Board, Wei did receive the

initial request for extension of time in which the date was clearly put forth. Resp. at 3. The

Agency asserts that Wei did not raise any objection to the request.

The Agency contends that it did receive the September 4, 2003 order, and there is no

reason to believe that Wei did not also receive the order. Resp. at 4. The Agency further argues

that it is incumbent upon Wei to follow up on any such request to ascertain whether in fact it did

receive an extension.

. The Agency notes that even if the Board’s order was not received by

Wei, this could have been done on the Board’s website.

The Agency concludes that Wei failed to raise any timely objection regarding the

contents of the September 4, 2003 order and never bothered to learn whether it did, in fact,

receive an extension of time to file the petition. Resp. at 4. The Agency contends the provisions

governing the extension allow for an extension up to, and possibly less than, 90 days.

Finally, the Agency concludes that Wei’s untimely presentation of arguments and failure

to follow up on the September 4, 2003 order should be disregarded and the Board should affirm

its December 4, 2003 order. Resp. at 4.

DISCUSSION

In ruling upon a motion for reconsideration, the Board is to consider factors including,

but not limited to, error in the previous decision and facts in the record that were overlooked. 35

Ill. Adm. Code 101.246(d). In Citizens Against Regional Landfill v. County Board of Whiteside,

PCB 93-156 (Mar. 11, 1993), the Board stated that “the intended purpose of a motion for

reconsideration is to bring to the court’s attention newly-discovered evidence which was not

available at the time of the hearing, changes in the law, or errors in the court’s previous

application of the existing law.” Korogluyan v. Chicago Title & Trust Co., 213 Ill. App. 3d 622,

572 N.E. 2d 1154 (1st Dist. 1992).

Wei has asserted that it did not receive the Board’s September 4, 2003 order extending

the filing period in this matter until November 17, 2003. The order in question was sent to Wei

and the Agency via first class mail, and neither order was returned to the Board. In addition, the

Board notes that Wei has not indicated it has not received any other order in this case. However,

in light of Wei’s assertion that it did not receive a copy of the Board’s September 4, 2003 order,

the Board grants the motion to reconsider its December 4, 2003 decision.

Extensions of the filing period for petitions to review are addressed by section 40(a)(1) of

the Act (415 ILCS 5/40(a)(1) (2002)) and section 105.406 of the Board’s procedural rules. 35

Ill. Adm. Code 105.406. Initially, the language of each provision clearly refers to a joint request

for extension. The Board notes that each provision is permissive in that it allows to Board to

extend the filing period for a maximum of 125 days after the date of service in response to a joint

request for extension. In this instance, the parties jointly requested an extension until

November 17, 2003. Thus, the Board is not persuaded by Wei’s argument that any extension

must be granted to a date 125 days after the date of service or by any related arguments

concerning how the period of time was calculated.

Further, as the request for extension must be by statute and regulation “jointly filed,” the

petitioner must necessarily be held accountable for the specifics of the request itself – including

the date to which an extension is granted. Thus, the Board agrees with the Agency’s assertion

that Wei should have some accountability in this matter. Specifically, Wei has the duty to

determine whether or not an extension was granted as a result of the joint request. Moreover, if

Wei, as alleged, did not receive the September 4, 2003 Board order, it should take the

responsibility to inform the Board it did not receive the order at some point prior to the running

of the maximum period of extension allowable under the law.

After reconsideration, the Board finds that the September 4, 2003 order was not, as

argued by Wei, in contravention of the regulations. Accordingly, the Board affirms its

December 4, 2003 decision.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on February 19, 2004, by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board