ILLINOIS POLLUTION CONTROL BOARD
    November 15, 2007
    DUNN’S UNIVERSITY BP,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 08-10
    (UST Appeal)
    ORDER OF THE BOARD (by G.T. Girard):
    On August 9, 2007, at the parties’ request, the Board extended until October 30, 2007, the
    time period for Dunn’s University BP (Dunn) to appeal a June 22, 2007 determination of the
    Illinois Environmental Protection Agency (Agency). On October 30, 2007, Dunn 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, 105.404, 105.406. The Agency’s determination
    concerns Dunn’s leaking underground storage tank (UST) site located at 419 West Lincoln
    Avenue in Charleston, Coles County. For the reasons below, the Board accepts Dunn’s petition
    for hearing.
    Under the Environmental Protection Act (Act) (415 ILCS 5 (2006)), the Agency decides
    whether to approve proposed cleanup plans and budgets 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 modified Dunn’s corrective action plan and
    budget for the Charleston UST site. Dunn appeals on the grounds that the Agency’s
    determination to modify the corrective action plan and budget so as to delete and deny approval
    of $10,401.66 in consulting personnel and consultant’s material costs is erroneous, arbitrary,
    capricious, and contrary to law. Dunn’s petition meets the content requirements of 35 Ill. Adm.
    Code 105.408.
    The Board accepts the petition for hearing. Dunn 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 Dunn may extend by waiver (
    see
    35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline,
    Dunn may deem its request granted.
    See
    415 ILCS 5/40(a)(2) (2006). On November 8, 2007,
    Dunn filed an open waiver of the decision deadline.
    See
    35 Ill. Adm. Code 101.308(c)(1),
    105.114.
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by November 29, 2007, which is 30 days after the Board received
    Dunn’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).
    IT IS SO ORDERED.
    I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
    the Board adopted the above order on November 15, 2007, by a vote of 4-0.
    ___________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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