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