DorothyM. Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

BEFORE

THE

POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

Fred C. Prillaman

Mohan, Alewelt, Prillaman & Adami

Suite

325

1 North Old Capitol Plaza

Springfield, IL

62701-1323

RECEIVED

CLERK’S OFFICE

Carol Sudman, Hearing Officer

Illinois Pollution Control Board

1021

North Grand Avenue East

P.O. Box

19274

Springfield, IL

62794-9274

Respectfully submitted,

ILLINOIS ENVIRONMENTALPROTECTION AGENCY,

Respondent

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: February 28, 2005

ILLINOIS AYERS OIL COMPANY,

)

Petitioner,

)

V.

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

PCBNo.

05-48

(LUST Appeal)

MAR

012005

STATE OF ILLINOIS

PoIIut~on

Control Board

NOTICE

PLEASE

TAKE

NOTICE

that I have

today filed with the office of the

Clerk of the

Pollution

Control Board a RESPONSE TO MOTION FOR RECONSIDERATION,

copies ofwhich

are herewith

served upon you.

---

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

ILLINOIS AYERS OIL COMPANY,

)

Petitioner,

PCB No. 05-48

ILLINOIS ENVIRONMENTAL

(LUST Appeal)

PROTECTION AGENCY,

)

Respondent.

)

RESPONSE TO MOTION FOR RECONSIDERATION

OR IN

THE

ALTERNATIVE, FOR EXTENSION OF TIME TO FILE APPEAL

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.

Adrn.

Code

101.500,

520

and

522,

hereby requests

that

the

Illinois Pollution Control Board (“Board”) deny the Petitioner’s Motion For Reconsideration Or,

In The Alternative, For Extension Of Time To

File Appeal (“Petitioner’s motion”).

In support of

this response, the Illinois EPA states as follows:

I.

INTRODUCTION

On

July

28,

2004,

the

Illinois

EPA issued

a

final

decision

following

its

review of a

request for reimbursement from the Underground Storage Tank Fund (“UST Fund”) submitted

by the Petitioner,

Illinois Ayers

Oil

Company (“Ayers Oil”).

On August

31,

2004,

counsel for

the

Petitioner

sent

a

setter via facsimile and

mail

delivery to

the

Illinois

EPA.

In the letter,

counsel requested that the Board

grant a 90-day extension of the time

allowed to

timely appeal

the

July

2004

final

decision.

The

letter

from

Petitioner’s

counsel

and

the copy of the

final

decision received by the Petitioner do not contain any reference or indication ofthe date the final

decision was received.

On

September

1,

2004,

the

Illinois

EPA

filed,

via

U.S.

Mail

First

Class

delivery,

a

Request for Ninety Day Extension

Of Appeal Period

(“request”)

with the Board.

The request

V.

)

)

)

REC~JVED

CLERK’S OFFICE

MARO1200S

STATE OF ILLINOIS

POII~tj~~

Control Board

1

---

noted that

the actual

date of service was

unknown,

but that

the earliest date the final decision

could have been received was July 29,

2004,

or the day

after the final decision was

sent.

The

request also

noted that, pursuant to

Section 40(a)(l) ofthe Illinois Environmental Protection Act

(“Act”)

(415 ILCS

5/40(a)(l))

and

35

Ill.

Adm.

Code

105.208,

the joint

request sought

up

to

January

5,

2005, or any other date not exceeding

125 days from the date of service ofthe Illinois

EPA’s final decision.

The Board received therequest on September 3, 2004.

On

September

16,

2004,

the Board

entered

an

order

in

response to

the

request.

The

Board noted that the postmark date of the joint request was within the time for filing,

and thus

the

request was

timely

filed.

The

Board

also

used the

July

29,

2004

date

as the

basis

for

calculating the proper time for the ninety-day extension.

(The Illinois EPA acknowledges that

the January

5,

2005

date referenced in the request was miscalculated.)

Thus, the Board granted

an extension of time

to

file

an

appeal

of the final

decision to

December

1,

2004.

The Board

stated in the

order

that if Ayers

Oil

failed

to

file

an appeal

on

or before

that

date,. the

Board

would dismiss the case and closethe docket.

On December

1,

2004, the Petitioner sent a petition for the review ofthe July 2004 final

decision. to

the

Board

and

to

the

Illinois

EPA.

The

petition

was

sent

via

Federal

Express

overnight delivery.

On December 2,

2004, the Board received the petition.

On January 6,

2005,

the Board entered

an

order

dismissing the petition and closing the

docket.

The Board’s action was based

on the

failure of the Petitioner to

file

its

petition in

a

timely fashion consistent with the requirements ofthe Board’s procedural rules and the dates set

forth in the September

16, 2004 Board order.

On February

10, 2005;

the Petitioner sent its motion to

the Board and to

the Illinois EPA

via

U.S.

Mail.

The

Illinois

EPA received

a

copy of the Petitioner’s

motion

on

February

14,

2

---

2005.

Pursuant to the Board’s procedural rules, the Illinois

EPA’s time for filing

a response to

the Petitioner’s motion is on or before February 28, 2005.

II.

THERE ARE NO GROUNDS JUSTIFYING RECONSIDERATION

As

the Petitioner noted, the purpose of a motion

for reconsideration

is

to

bring

to

the

Board’s attention newly discovered evidence which was not available at the time ofthe hearing,

changes

in the law or errors

in the Board’s

previous

application of the

existing

law.

Citizens

Against Regional Landfihlv. County Board ofWhiteside, PCB 93-156 (March 11,

1993), p.

1.

The Petitioner has not met the standard needed to justify the Board’s reconsideration of

its

January 6,

2005 order.

There

is

no newly

discovered evidence that was not available

at an~y

time

leading

up

to the

Board’s January

2005

order,

nor

is

there any

change of law

that

has

transpired in the interim.

As will be

discussed in more detail below, there was also no error in

the Board’s previous

application of the existing

law.

The deadlines referenced and applied by

the Board

are well-settled, as

is

the reasoning

employed by the Board in

this

and other similar

types of situations.

Therefore, Petitioner’s motion should be denied.

III.

THE BOARD’S FILING DEADLINES ARE

JURISDICTIONAL

One of the

bases

of the

relief

sought

in

the

Petitioner’s

motion

is

that

the

Board’s

procedural rules concerning the deadlines

for filing a timely appeal are procedural in nature, as

opposed to beingjurisdictional.

This contention is wrong.

The Board has consistently taken the

position that the

failure

to file a

petition for appeal

in

a

timely manner,

even if by

one

day,

results in the Board

lacking jurisdiction over the matter.

Dewey’s Service v.

Illinois EPA, PCB

99-107 (February 4,

1999); Indian Refming v. Illinois EPA, PCB 91-110 (July

25,

1991).

There is

no doubt that the rules

and regulations promulgated by the Board have the force

and

effect

of law,

are presumed

to

be

valid,

and

will be

construed by the

same standards

as

3

---

statutes.

Illinois EPA v.

Jersey Sanitation Corporation, 336

Ill. App.

3d

582,

588,

784 N.E.2d

867,

872

(4th

Dist.

2003).

Further,

the

Board

has

the

power

to

construe

its

own rules

and

regulations to avoid absurd or unfair results.

Id., 336 Ill. App. 3d at

589,

784 N.E.2d at 872.

Here,

Section

40(a)(1)

of the

Act

and

Sections

105.208

and

105.406

of the

Board’s

procedural rules clearly set forth the guidelines and limitations regarding the Board’s authority in

extending

the

time for filing

an

appeal

of a

final decision of the

Illinois

EPA.

The

Board’s

decisions as found in the September 16, 2004

and January 6, 2005

orders were correct and made

pursuant to statutory and regulatory guidelines.

0

,

Also,

there

is

no

question

that

the

time

limitation

for

filing

a

timely

appeal

is

jurisdictional in nature,

and not

merely procedural.

In the

case of Pickering v.

Illinois

Human

Rights

Commission,

146

Ill. App. 3d 340,

496 N.E.2d 746

(2~~d

Dist.

1986), the appellate court

detailed the relevant law to this issue.

The Pickering court,

citing to the Illinois Supreme Court

case of Fredman Brothers

Furniture Company.

Inc.

v.

Department of Revenue,

109

Ill.2d

202,

486

N.E.2d

893

(1985),

noted that

statues

of limitation

only

fix

the

time. within

which the

remedy for a particular wrong may be sought.

They are procedural in nature,

and not designed

to

alter

substantive

rights.

However, statutes

which create

a substantive right unknown to the

common

law

and

in

which

time

is

made

an

inherent

element of the right

so created

are not

statutes oflimitation.

Such a time period is more than an ordinary statute oflimitations, and is

a

condition

of the

liability

itself,

and

not

of the

remedy

alone.

The

time

period goes to

the

existence,ofthe right itself, and is a condition precedent to the plaintiffs right to seek a remedy.

Pickering, 146 Ill. App. 3d at 344, 496 N.E.2d at 749.

In Pickering, the court went

on to

conclude that in the situation in which a statute itself

creates

a substantive

right unknown at common

law,

and

at the

same time prescribes the time

4

---

within which a party must file a charge to redress an alleged deprivation ofthose rights,

such a

statute is not

a statute oflimitation.

Specifically, the court found that a

1 80-day filing deadline

regarding the filing ofa charge with the Department ofHuman Rights (as set forth in the Human

Rights Act) must be

deemed to be jurisdictional.

Pickering,

146 Ill. App. 3d at 346, 496 N.E.2d

at 750;.

A similar fmding was recently reached by the Illinois Supreme Court in Nudell v.

Forest

Preserve

District,

207

Ill.2d

409,

799

N.E.2d

260

(2003).

.

The

court

there

ruled

that

the

requirement that a complaint for,administrative review be filed within a specific period oftime is

jurisdictional.

Nudell,

207 I11.2d at 422,

799 N.E.2d at 267-268.

Thus, there is no

doubt that the time deadline for filing a petition with the Board seeking

a challenge ‘of a final decision by the Illinois EPA is a jurisdictional requirement, and that failure

of a

Petitioner

to

comply

with

that

requirement

results

in

the

Board

losing jurisdiction

to

.

consider the matter.

The Board’s decision here, then, was correct and should not be reversed.

IV.

THE

BOARD

SHOULD GRANT NO FURTHER RELIEF

The Petitioner’s motion also asks, in the alternative, that the Board grant further relief to

either

extend

the, time

allowed

for filing

the petition

(Le.,

reconsider the

relief granted in

the

Board’s

September

16,

2004

order)

or

find

some

kind

of exigent

circumstances

that

would

otherwise allow for the filing of a petition.

0

O

However, that portion of the motion should also

be denied.

First,

the Petitioner did not

contest the Board’s September 2004 order at any time after it was entered, and therefore is bound

to the findings ofthe Board

(as well as the basis for the Board reaching those findings).

Second,

O

as to the notion ofthe Board somehow granting further.relief to

allowthe Petitioner to

side-step

the time deadline

for filing

a

petition, there is

simply no regulatory

or statutory authority

that

5

---

would

allow for such a discretionary act.

Given that

the Board has no

authority to

grant such

relief, the Board must deny that portion ofthe Petitioner’s motion.

V.

CONCLUSION

For the reasons above, the Illinois EPA hereby respectfully requests

that the Board deny

the Petitioner’s motion in its entirety.

Respectfully submitted,

ILLiNOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent

•O~A1 ,2~,~-7~&.--’

Q~9~

~oh~iJ.Kim~

‘

0

Assistant Counsel

Special Assistant Attorney General

Division of Legal Counsel

1021 North Grand Avenue East

P.O. Box 19276,

0

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143 (TDD)

Dated: February 28, 2005

6

---

CERTIFICATE OF SERVICE

I, the undersigned attorney at law, hereby certify that on February 28, 2005, I served true

and correct copies ofa RESPONSE TO MOTION FOR RECONSIDERATION, 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

Fred C. Prillaman

Illinois Pollution Control Board

.

Mohan, Alewelt, Prillaman & Adami

James R.

Thompson Center

‘.

Suite 325

100 West Randolph Street

1

North Old Capitol Plaza

Suite

11-500

Springfield,IL

62701-1323

Chicago, IL 60601

‘

0

Carol Sudman, Hearing Officer

Illinois Pollution Control Board

‘

1021

North Grand Avenue East

0

0

P.O. Box 19274

Springfield,

IL

62794-9274

0

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent

~(6hnJ.Kir1

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

217/782-91

43o (TDD)