ILLINOIS POLLUTION CONTROL BOARD
    July 11, 1991
    PIERCE & STEVENS, CORP.
    )
    )
    Petitioner,
    v.
    )
    PCB 91—100
    )
    (Permit Appeal)
    ILLINOIS
    ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    ORDER OF THE BOARD by (M. Nardulli):
    This matter comes before the Board on petitioner Pierce &
    Stevens Corporation’s filing of a petition for review challenging
    the Illinois Environmental Protection Agency’s (Agency) imposition
    of permit conditions. On June 27, 1991, the Board entered an order
    directing the parties to address the issue of whether this permit
    appeal was timely filed. On July 8, 1991, the parties filed a
    “Joint Statement of Timeliness of Filing” and petitioner filed an
    open waiver of the Board’s decision deadline. Unfortunately, in
    the absence of an affidavit filed by the Agency, the parties’
    statement still does not settle the issue of whether this petition
    for review was timely filed.
    The 35—day limit is jurisdictional; thus, the failure to file
    a petition for review with the Board within that time period will
    result in dismissal. (Johnson v. State Employees Retirement
    Systems, 155 Ill.. App. 3d 616, 508 N.E.2d 351 (1st Dist. 1987);
    Calvary Temple Church v. IEPA, PCB 90-3 (April 25, 1991).) As t1~
    Board noted in its June 27, 1991 order, the date the Agency mailed
    the permit determination from which appeal is sought starts the
    time clock for petitioner’s filing of its petition for review. (35
    Ill. Adm. Code 105. 102 (a) (2).) Although the permit is dated May
    10, 1991, the parties’ joint statement asserts that “the permit was
    not actually mailed to Pierce & Stevens until on or after May 13.
    1991, and therefore the Permit Appeal was timely filed.”
    Petitioner has 35 days from the date of Agency mailing of the
    permit decision to file its petition for review. (Ill. Rev. Stat.
    1989, ch. 111 1/2, par. 1040(a)(1).) 35 days from May 13, 1991,
    in accordance with 35 Ill. Adm. Code 101.109, is June 17, 1991;
    petitioner filed its petition for review on June 18, 1991.
    The burden is on the Agency to establish the date of mailing.
    As the Board has previously stated, this burden could easily be met
    by the Agency by attaching a proof of service with all final permit
    decisions. (Finks & Austman v. IEPA, PCB 90-243 at 3 (February 7,
    1991.) As a result of the Agency’s failure to adopt this simple,
    yet effective, procedure in all permit matters, the parties and the
    124—79
    2
    Board must deal with the confusion presented here. In the absence
    of an affidavit filed by someone having factual knowledge of the
    mailing of Agency permit decisions, the Board is left in the
    position of presuming a date of mailing to establish jurisdiction
    based upon an unverified assertion of the parties. Therefore, the
    Board directs the Agency to file an affidavit stating with as much
    specificity as possible the date the permit decision was mailed.
    The Agency utilized such a procedure in Finks & Austman v. IEPA to
    establish the date of mailing in the absence of a proof of service.
    The Agency’s affidavit shall be filed so that it is received by the
    Board no later than July 22, 1991.
    IT IS SO ORDERED.
    I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
    Board hereby ce ify that the above Order was adopted on the
    //t~day of
    _____________
    ,
    1991 by a vote of
    _________
    Dorothy M. ,q~inn, Clerk
    Illinois 1~Llution Control Board
    124—80

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