ILLINOIS POLLUTION CONTROL
    BOARD
    April 25,
    1991
    CALVARY TEMPLE CHURCH,
    )
    )
    Petitioner,
    )
    V.
    )
    PCB 90-3
    )
    (Permit Appeal)
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ORDER OF THE BOARD
    (by R.C.
    Flemal):
    On March 11,
    1991,
    Calvary Temple Church
    (“Calvary”)
    filed
    an appeal of the Illinois Environmental Protection Agency’s
    (“Agency”) most recent denial on remand of Calvary’s application
    for construction and operation of a wastewater land treatment
    system.
    On March 26,
    1991,
    Calvary submitted a copy of the
    Agency’s denial letter,
    as well as other information, pursuant to
    Board Order of March 14,
    1991.
    On March 28,
    1991,
    the Agency
    requested an extension of time to file a response to the Board
    Order of March 14,
    1991.
    By Order of March 28,
    1991,
    the Board
    granted the extension until April
    12, 1991.
    On April
    24,
    1991,
    the Agency filed its response accompanied by a motion to file
    instanter.
    The Agency attorney essentially states that due to
    work load and time deadlines in other matters,
    she was unable to
    file this response by April
    12,
    1991.
    The Board grants the
    motion to file instanter.
    It is necessary to relate some of the events surrounding
    this action.
    On December
    1,
    1989, the Agency denied Calvary’s
    application for a permit.
    Calvary appealed that denial on
    January 4,
    1990, within 35 days of denial of the application.
    On
    April 26,
    1990, the Board remanded the matter back to the Agency,
    finding that the Agency failed to conduct its technical review on
    the application.
    The Agency appealed the Board’s decision to the
    Appellate Court, Second District.
    That court granted the Board’s
    motion to dismiss, based on the fact that the decision was not
    final for purposes of appeal.
    The Agency subsequently conducted
    its technical review, and issued its second denial of Calvary’s
    application on January
    14,
    1991.
    It is from this denial that
    Calvary brings the instant appeal.
    Section 40 of the Environmental Protection Act
    (Ill. Rev.
    Stat.
    1989,
    ch.
    111 1/2, par.
    1040) (“Act”)
    states in part:
    If the Agency refuses to grant or grants with
    conditions a permit under Section 39 of this Act, the
    121—571
    —2—
    applicant may, within 35 days, petition for
    a hearing
    before the Board to contest the decision of the Agency.
    Section 40 thus allows 35 days from Agency denial for an
    applicant to file an appeal.
    Since the Agency made its
    determination on January 14,
    1991, the appeal filed March 11,
    1991 was not timely filed within the statutory 35 days.
    It makes
    no difference that the Agency issued its decision as part of a
    remand.
    Even though this is a second denial,
    it is still a
    denial, and hence would begin a 35-day appeal
    tiniefraine.
    In finding Calvary’s appeal untimely, the Board need go no
    further.
    However, the Board notes that Calvary also raises the
    question of timeliness of the Agency’s determination on remand.
    Calvary alleges that the Agency issued its determination within
    95 days of the Appellate Court’s decision, and that therefore
    Calvary should be granted a permit pursuant to Section 39(a)
    of
    the Act.
    Section 39(a)
    reads in part:
    If there is no final action by the Agency within 90
    days after the filing of the application for permit,
    the applicant may deem the permit issued...
    The Agency’s original decision was issued within 90 days after
    the filing of Calvary’s application.
    However, no new application
    has been filed at any time since the original application, such
    that a new 90-day decision time would begin pursuant to Section
    39(a).
    Furthermore, the fact that the Agency’s original
    determination,
    timely rendered, was faulty and necessitated
    remand does not begin anew the decision deadline under Section
    39(a).
    Also, as the Agency points out in its response, there is
    nothing the in the Act to suggest that the Section 39(a) decision
    deadline apply to situations other than that explicitly set out.
    Calvary’s appeal of March 11,
    1991
    is dismissed as untimely
    filed.
    Calvary is, of course,
    free to refile its permit
    application with the Agency.
    IT IS SO ORDERED.
    Board Member J. Anderson concurred.
    Section 41 of the Environmental Protection Act,
    Ill.
    Rev.
    Stat.
    1989 ch.
    111
    ½
    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.
    121—572
    —3—
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Bpard, hereby certify that, the above Order was adopted on the
    5~-~-
    day of ________________________,
    1991 by a vote of
    7
    -0.
    ~
    A
    Dorothy M. ~nn,
    Clerk
    Illinois Pc~3IlutionControl Board
    12
    1—57 3

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