ILLINOIS POLLUTION CONTROL BOARD
    July 9, 1992
    A.B. DICK
    COMPANY,
    )
    )
    Petitioner,
    )
    v.
    )
    PCB 92—99
    (Underground Storage
    Tank
    Fund
    (Reimbursement Determination)
    )
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ORDER OF THE BOARD (by J. Anderson):
    On July 2, 1992, A.B. Dick Co. filed a petition for review
    of the Agency’s denial of reimbursement for costs from the
    Underground Storage Tank Fund (Fund). This petition concerns
    A.B. Dick’s facility at 5700 W. Touhy, Chicago, Cook County. In
    its June 1, 1992 letter, the Agency determined that costs
    associated with underground storage tanks (UST5) 31 and 32 were
    eligible for reimbursement with a $10,000 deductible, that costs
    associated with tank 16 were ineligible because this was an
    above—ground tank, and that costs associated with tanks 1—15 and
    17-30 were ineligible because these USTs stored-substances which
    were either hazardous substances or which were not petroleum.
    The letter went on to state that:
    This decision does not constitute the Agency’s final
    determination of eligibility. The Agency reserves the
    right to change this determination should additional
    information become available which would modify this
    decision. The final decision regarding eligibility and
    appropriate deductible amounts will be made as requests
    for reimbursement are reviewed by the Agency.
    The determination as to tanks 16, 31 and 32 are not at
    issue. As to the remaining USTs, petitioner states that:
    Given the contradictory and ambiguous nature of the
    IEPA’s notice of decision sent to A.B. Dick on June 1,
    1992, A.B. Dick is uncertain whether the IEPA has taken
    its final action with respect to this request for
    reimbursement from the Fund. In order to protect its
    right to appeal, A.B. Dick is filing this pçtition for
    review of the IEPA’s decision. If the Board determines
    that the IEPA’s action is not final, it should dismiss
    this petition without prejudice to A.B. Dick’s right to
    file a timely appeal once the IEPA takes its final
    0! 35-0075
    2
    action. If the .Board determines that the IEPA’s letter
    of June 1, 1992 does constitute its final action, then
    A.B. Dick respectfully requests that the Board accept
    this matter for hearing and review the IEPA’s decision
    denying A.B. Dick reimbursement from the Fund.
    The Board finds that the Agency’s decision must be deemed
    final as to tanks 1—15 and 16—30. The Agency has attempted to
    reserve a right to “reconsider” its decision. In a permit appeal
    case, Reichhold Chemicals, Inc. v. IPCB (1990), 204 Ill. App. 3d
    674,561 N.E. 2d 1343, the appellate court stated that the Act
    does not grant the Agency any authority to modify or reconsider
    its decisions. Section 22.18b does not, by its terms, allow for
    Agency reconsideration any more than does Section 39. The Board
    accordingly finds that A.B. Dick has properly filed a timely
    appeal of the Agency’s final action of June 1, 1992.’ This case
    is accordingly ripe for review. Village of Lincoinwood (June 4,
    1992) PCB 91—83; Id~alHeating Co. v. IEPA (January 23, 1992),
    PCB 91—253.
    This matter is accepted for hearing.
    Hearing must be scheduled within 14 days of the date of this
    order and completed within 60 days of the date ofthis order.
    The hearing officer shall inform the Clerk of the Board of the
    time and location of the hearing at least 40 days in advance of
    hearing so that public notice of hearing may be published. After
    hearing, the hearing officer shall submit an exhibit list, and
    all actual exhibits to the Board within 5 days of the hearing.
    Any briefing schedule shall provide for ~
    filings as
    expeditiously as possible and in no event later than 70 days from
    the date of this order.
    If after appropriate consultation with the parties, the
    parties fail to provide an acceptable hearing date or if after an
    attempt the hearing officer is unable to consult with the
    parties, the hearing officer shall unilaterally set a hearing
    date, in conformance with the schedule above. This schedule will
    only provide the Board a very short time period to deliberate and
    reach a decision before the due date. The hearing officer and
    the parties are encouraged to expedite this proceeding as much as
    possible.
    Within 10 days of accepting this case, the hearing officer
    shall enter a hearing officer scheduling order governing
    completion of the record. That Order shall set a date certain
    for each aspect of the case including: briefing schedule,
    ‘A.B. Dick has the option, of course, of filing a new
    application for these tanks to allow the Agency to consider new
    information. Reichhold, 204 Ill. App. 3d at 679—80.
    0135-0076
    3
    hearing date(s), completion of discovery (if r.~essary) and pre—
    hearing conference (if necessary). The hearing officer
    scheduling order may be modified by entry of a complete new
    scheduling order conforming with the time requirements below.
    The hearing officer may extend this schedule only on a
    waiver of the decision deadline by the petitioner and only for
    the equivalent or fewer number of days that the decision deadline
    is waived. Such waivers must be provided in writing to the Clerk
    of the Board. Any waiver must be an “open waiver” or a waiver of
    decision until a date certain.
    Because of requirements regarding the publication of notice
    of hearing, no scheduled hearing may be canceled unless the
    petitioner provides an open waiver or a waiver to a date at least
    120 days beyond the date of the motion to cancel hearing. This
    should allow ample time for the Board to republish notice of
    hearing and receive transcripts from the hearing before the due
    date. Any order by the hearing officer granting cancellation of
    hearing shall include a complete new scheduling order with anew
    hearing date at least 40 days in the future and at least 30 days
    prior to the new due~date and the Clerk of the Board shall be
    promptly informed of the new schedule.
    Because this proceeding is the type for which the Illinois
    Environmental Protection Act sets a very short statutory deadline
    for making a decision, absent a waiver, the Board will grant
    extensions or modifications only in unusual circumstances. Any
    such motion must set forth an alternative schedule for notice,
    hearing, and final submissions, as well as the deadline for
    decision, including response time to such a motion. However, no
    such motion shall negate the obligation of the hearing officer to
    establish a scheduling order pursuant to the requirements of this
    order, and to adhere to that order until modified.
    IT IS SO ORDERED
    B. Forcade dissented.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Boa~~hereby cer y t~,hat the above order was adopted on_the
    ______
    day of
    _____________________,
    1992 by a vote of â
    -/
    *
    /
    /
    ~-“7~c~~-i
    ///~*)
    Dorothy M. Gunn, Clerk
    Illinois PoJ~’lution Control Board
    0135-0077

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