ILLINOIS POLLUTION CONTROL BOARD
    September 20, 2007
    WATERTOWER MARINA, INC.,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 07-138
    (UST Appeal)
    ORDER OF THE BOARD (by G.T. Girard):
    On June 21, 2007, at the parties’ request, the Board extended until September 16, 2007,
    the time period for Watertower Marina, Inc. (Watertower) to appeal a May 11, 2007
    determination of the Illinois Environmental Protection Agency (Agency). On September 14,
    2007, Watertower timely filed a petition asking the Board to review the Agency’s determination.
    See
    415 ILCS 5/40(a)(1) (2006); 35 Ill. Adm. Code 101.300(b), 105.402, 105.406. The
    Agency’s determination concerns Watertower’s leaking petroleum underground storage tank
    (UST) site located at 3112 West Lincoln Road in McHenry, McHenry County. For the reasons
    below, the Board accepts Watertower’s petition for hearing.
    Under the Environmental Protection Act (Act) (415 ILCS 5 (2006)), the Agency decides
    whether to approve proposed cleanup plans for leaking UST sites, as well as requests for cleanup
    cost reimbursement from the State’s UST Fund, which consists of UST fees and motor fuel
    taxes. If the Agency disapproves or modifies a submittal, the UST owner or operator may appeal
    the decision to the Board.
    See
    415 ILCS 5/40(a)(1), 57-57.17 (2006); 35 Ill. Adm. Code
    105.Subpart D. In this case, the Agency denied Watertower reimbursement from the UST Fund
    in the amount of $1,049.19. Petition at 1. Watertower appeals on the grounds that the Agency’s
    determination, that Watertower’s analysis costs lack supporting documentation and may exceed
    minimum requirements, is erroneous, arbitrary, and capricious.
    Id
    . at 2. Watertower’s petition
    meets the content requirements of 35 Ill. Adm. Code 105.408.
    The Board accepts the petition for hearing. Watertower has the burden of proof.
    See
    35
    Ill. Adm. Code 105.112(a). Hearings will be based exclusively on the record before the Agency
    at the time the Agency issued its determination.
    See
    35 Ill. Adm. Code 105.412. Accordingly,
    though the Board hearing affords petitioner the opportunity to challenge the Agency’s reasons
    for its decision, information developed after the Agency’s decision typically is not admitted at
    hearing or considered by the Board.
    See
    Alton Packaging Corp. v. PCB, 162 Ill. App. 3d 731,
    738, 516 N.E.2d 275, 280 (5th Dist. 1987); Community Landfill Co. & City of Morris v. IEPA,
    PCB 01-170 (Dec. 6, 2001),
    aff’d sub nom.
    Community Landfill Co. & City of Morris v. PCB &
    IEPA, 331 Ill. App. 3d 1056, 772 N.E.2d 231 (3rd Dist. 2002).
    2
    Hearings will be scheduled and completed in a timely manner, consistent with the
    decision deadline (
    see
    415 ILCS 5/40(a)(2) (2006)), which only Watertower may extend by
    waiver (
    see
    35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision
    deadline, Watertower may deem its request granted.
    See
    415 ILCS 5/40(a)(2) (2006). Currently,
    the decision deadline is January 15, 2008, which is the first business day following the 120th day
    after the Board received the petition.
    See
    35 Ill. Adm. Code 105.114. The Board meeting
    immediately before the decision deadline is scheduled for January 10, 2008.
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by October 15, 2007, which is the first business day following the
    30th day after the Board received Watertower’s petition.
    See
    35 Ill. Adm. Code 105.410(a). If
    the Agency wishes to seek additional time to file the record, it must file a request for extension
    before the date on which the record is due to be filed.
    See
    35 Ill. Adm. Code 105.116. The
    record must comply with the content requirements of 35 Ill. Adm. Code 105.410(b).
    Finally, the Board notes that on September 12, 2007, Watertower filed a motion to
    consolidate this case with fourteen other UST appeals. The Board reserves ruling on that motion
    to allow the Agency’s response time to run.
    See
    35 Ill. Adm. Code 101.500(d).
    IT IS SO ORDERED.
    I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
    Board adopted the above order on September 20, 2007, by a vote of 4-0.
    ___________________________________
    John Therriault, Assistant Clerk
    Illinois Pollution Control Board

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