ILLINOIS POLLUTION CONTROL BOARD
    December 6, 2007
    WEBEL FEEDS and TLHUS, INC., as
    Successor-in-Interest,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    PCB 08-34
    (UST Appeal)
    ORDER OF THE BOARD (by G.T. Girard):
    On November 15, 2007, Webel Feeds and its successor-in-interest TLHUS, Inc.
    (petitioner) timely filed a petition asking the Board to review an October 4, 2007 determination
    of the Illinois Environmental Protection Agency (Agency).
    See
    415 ILCS 5/40(a)(1) (2006); 35
    Ill. Adm. Code 105.404. The Agency determination concerns petitioner’s leaking petroleum
    underground storage tank (UST) site located on Rural Route 3, Pittsfield, Pike County. For
    reasons below, the Board accepts the 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 rejected petitioner’s Amended Corrective
    Action Plan (CAP) for the Pittsfield site. Petitioner’s appeal grounds are the Agency’s allegedly
    arbitrary and capricious actions in rejecting the Amended CAP, including the Agency’s rejection
    of petitioner’s alternative remedy, the Agency’s requirement that the groundwater recovery and
    remediation system currently operated by petitioner be shut down, the Agency’s error in
    identifying downgradient off-site groundwater as Class II groundwater, and the Agency’s
    determination that a No Further Remediation (NFR) Letter can be issued without further
    remediation to meet offsite groundwater cleanup objectives or without elimination of the offsite
    groundwater pathway using an institutional control. Petitioner’s petition meets the content
    requirements of 35 Ill. Adm. Code 105.408.
    The Board accepts the petition for hearing. Petitioner 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,
    2
    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).
    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 petitioner may extend by waiver
    (
    see
    35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline,
    petitioner may deem its request granted.
    See
    415 ILCS 5/40(a)(2) (2006). Currently, the
    decision deadline is March 14, 2008, which is the 120th day after the date on which the Board
    received the petition, November 15, 2007.
    See
    35 Ill. Adm. Code 105.114. The Board meeting
    immediately before the decision deadline is scheduled for March 6, 2008.
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by December 17, 2007, which is the first business day following the
    30th day after the Board received the 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 December 6, 2007, by a vote of 4-0.
    ___________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

    Back to top