ILLINOIS POLLUTION CONTROL BOARD
    November
    7,
    1991
    GEORGE WEBER CHEVROLET,
    )
    Petitioner,
    PCB 91—182
    v.
    )
    (Und~rgrounci
    Storage
    Tank Fund
    Reimbursement Determination)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Respondent.
    ORDER OF THE BOARD
    (By J.C. Marlin):
    This matter is before the Board upon respondent’s “findings”
    and a motion to dismiss instanter filed October 25,
    1991 by the
    Illinois Environmental Protection Agency
    (“Agency”).
    On October
    28,
    1991 the Agency filed a motion to file its record instanter.
    The motion to dismiss seeks to have the petitioner’s underground
    storage tank fund reimbursement determination appeal dismissed on
    jurisdictional grounds.
    The Board had previously requested the parties comment on
    the jurisdictional issue via Board order dated October 10,
    1991.
    The filings were to be received by October 22,
    1991.
    Only the
    Agency has responded to the Board’s request.
    The Agency’s motion
    to file the motion to dismiss instanter is granted.
    We now turn
    to the substance of the Agency’s motion to dismiss.
    The Agency argues that petitioner’s appeal,
    filed September
    20,
    1991,
    came far too late to satisfy the 35 day appeal period
    prescribed by Section 22.18(b)
    of the Act.
    The Agency’s partial
    denial letter was dated January
    8,
    1991.
    Relying upon Kevin
    Holmes
    v.
    Aurora Police Pension Fund Board of Trustees, et al.,
    No. 2090-1432
    (2nd Dist.,
    slip opinion August
    9,
    1991)
    the Agency
    asks the Board to recognize that Johnson v.
    State Employees
    Retirement System,
    155 Ill.
    App.
    3d 616,
    508 N.E.2d 351
    (1987),
    applies only to matters where applicant had a recognized property
    interest.
    The Johnson court case had imposed a duty upon an
    agency to inform an applicant of its appeal rights following
    denial.
    Because here the legislature only gave an applicant the
    potential to receive reimbursement for certain required
    expenditures, and not a property interest, the Agency argues,
    any
    failure to notify the applicant of its appeal rights would not
    toll the appeal period.
    The burden of asserting a protectible property interest and
    a failure to give due process lies with the petitioner.
    Baker v.
    DuPage County,
    703
    F.
    Supp.
    735
    (N.D.
    Ill.
    1989).
    Because the
    petitioner has failed to respond to the Board’s order, we cannot
    find that petitioner’s burden of demonstrating a protectible
    property interest has been made.
    Therefore,
    the matter is
    127—33
    dismissed.
    We make no finding on the substantive issue itself
    however.
    The Agency’s request to file the record instanter is
    mooted.
    Section 41 of the Environmental Protection Act,
    I11.Rev.Stat. 1989,
    ch. 111 1/2,
    par.
    1041, provides for appeal
    of Final Orders of the Board ‘within 35 days.
    The Rules of the
    Supreme Court of Illinois establish filing requirements.
    IT IS SO ORDERED.
    Board Member J.D. Dumelle dissented.
    I, DorothyM.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board,
    hereby certify that th,p~above and Qrder was adopted on the
    7Z2~
    day of __________________________,
    1991 by a vote
    of
    ____________.
    (1~
    /‘
    “~
    /
    Dorothy N. p~inn, Clerk
    Illinois Po~utionControl Board
    127—34

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