ILLINOIS POLLUTION CONTROL BOARD

July 25,

1991

INDIAN REFINING LIMITED

)

PARTNERSHIP,

)

Petitioner,

v.

)

PCB 91—110

(Permit Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD

(by M. Nardulli):

This

matter

is

before

the

Board

on

a

“Joint

Motion

for

Extension of Time to File Record and Decision Deadline” filed July

12,

1991 and a “Joint Statement of Timeliness of Filing” filed on

July

17,

1991

by

the

Illinois Environmental

Protection

Agency

(Agency)

and

Indian

Refining

Limited

Partnership

(Indian).

This

statement of timeliness is filed in response to the Board’s order

of July

11,

1991 questioning the timeliness of Indians’ petition

for review in this

permit

appeal.

The

parties’

joint

statement includes the affidavit

of an

Agency employee responsible for mailing letters concerning Agenc~ç

air pollution permits and a copy of the certified mail receipt.

These

documents establish that the Agency mailed the challenged

permit decision on May 20,

1991.

Petitioner has 35 days from the

date of mailing to file its petition with the Board.

(Ill.

Rev.

Stat.

1989,

ch.

1.

1/2,

par.

l040(a)(1);

35

Ill.

Adm.

Code

105.102(a)(2).)

35 days from May 20,

1991,

in accordance with 35

Ill.

Adm. Code 101.109,

is June 24,

1991.

The Board’s general procedural rules provide that “f)iling,

inspection,

and copying of documents may be done in the Clerk’s

office from 8:30 a.iu.

to 4;30 p.m. Monday through Friday” and that

filings received after 4:30 p.m. will be date—stamped the following

business day.

(35 Ill.

Adin.

Code 101.102(a)

and

(b).)

Indian’s

petition was date-stamped by the Clerk on June 25, 1991 because it

was personally delivered to the Board after 4:30 p.m. on June 24,

1

The Board has previously noted the problems surrounding

the agency’s

failure to attach proof of

service with

permit

decisions

in

order

to

preserve mailing

dates.

(Finks

&

Austinan

v.

IEPA, PCB 90-243 (February 7,

1991);

Pierce

&

Stevens

Corp.

v.

IEPA,

PCB 91-100

(July

11,

1991).)

While

the

Agency did not utilize

a

proof of

service

here,

the

Agency did adhere to the practice of

sending

its

permit

decisions by certified mail so as to

establish

the

date

of

mailing.

124—225

---

1991.

Indian attempts to bring its filing within the purview of

35 Ill.

Adm.

Code 101.102(d)

which provides that if

a filing

is

received after any due—date, “the time of mailing shall be deemed

the time of filing.”

The Board adopted this “mailed

is

filed”

provision because it places persons not located in the Chicago area

who

do

not

have

the

option

of

messenger

service

or

personal

delivery to file documents at the Clerk’s Chicago office on equal

footing with persons that have such access.

(In the Matter

of:

Procedural Rules Revision 35 Ill.

Adm.

Code 101,

106

(Subpart G)

and 107,

R88-5(A)

at

5

(June

8,

1989).)

However,

Indian did not

mail its

petition,

it

filed the petition by personal

delivery.

Therefore,

the “mailed

is filed” provision and rationale do not

apply here.

Indian’s petition was filed on June 25, 1991 and was,

therefore, untimely filed.

Consequently, the petition is dismissed

for lack of jurisdiction.

Indian is of course free to refile its

permit

application with the Agency.

The Board’s ruling

today

renders moot the parties’ motion for an extension of time to file

the Agency record.

IT IS SO ORDERED.

I, Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify

hat the above Order was adopted on~he

~5~—

day of

_________________

,

1991 by a vote of

~—O

~.

‘—i~o?’othy N. G~n, Clerk

Illinois PolUition Control Board

124—226