ILLINOIS POLLUTION CONTROL BOARD
    January 22, 2004
    MARTIN OIL MARKETING, LTD.,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 04-93
    (UST Appeal)
    ORDER OF THE BOARD (by A.S. Moore):
    In a December 18, 2003 order, the Board granted Martin Oil Marketing, Ltd. (Martin Oil)
    30 days to cure two procedural defects in the company’s original petition for review: (1) have an
    attorney file an appearance on behalf of the company; and (2) have the attorney file an amended
    petition stating the company’s grounds for appealing an Illinois Environmental Protection
    Agency (Agency) Underground Storage Tank (UST) Fund decision. For the reasons below, the
    Board finds that the company has satisfied these requirements and the Board therefore accepts
    the amended petition for hearing.
    On December 2, 2003, Martin Oil filed a petition asking the Board to review a
    November 6, 2003 determination of the Agency.
    See
    415 ILCS 5/40(a)(1) (2002); 35 Ill. Adm.
    Code 101.300(b), 105.402, 105.406. The Agency’s determination concerns Martin Oil’s leaking
    UST site at 1901 West Market Street in Bloomington, McLean County. Under the
    Environmental Protection Act (Act) (415 ILCS 5/1
    et seq
    . (2002)), 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 (2002); 35 Ill. Adm. Code
    105.Subpart D. In this case, the Agency rejected Martin Oil’s amended UST Fund budget for a
    high priority corrective action plan.
    On December 18, 2003, the Board accepted Martin Oil’s appeal as timely filed, but noted
    that the petition failed to state any grounds for the appeal and failed to indicate whether the
    petition was filed by an attorney on behalf of the company. Under the Board’s procedural rules,
    petitions for Board review of Agency UST Fund decisions must specify the grounds for appeal.
    See
    35 Ill. Adm. Code 105.408(c). Also under the Board’s procedural rules, any party to an
    adjudicatory proceeding, other than an individual, must be represented by an attorney.
    See
    35 Ill.
    Adm. Code 101.400(a)(1), (2). In its December 18, 2003 order, the Board gave Martin Oil 30
    days to have an attorney file an appearance and amended petition.
    2
    On January 14, 2004, within the Board’s 30-day deadline, Mr. Joseph F. Madonia,
    attorney with the law firm Wildman Harrold Allen & Dixon, LLP, filed both an appearance on
    behalf of Martin Oil and an amended petition. The amended petition states as grounds for appeal
    that the Agency’s rejection of line item amendments to a previously-approved UST Fund budget
    for a previously-approved corrective action plan is unreasonable, arbitrary, contrary to law, and
    barred by estoppel. Martin Oil’s amended petition meets the content requirements of 35 Ill.
    Adm. Code 105.408.
    The Board accepts the amended petition for hearing. Martin Oil 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.
    331 Ill. App. 3d 1056, 772 N.E.2d
    231 (3d Dist. 2002).
    Hearings will be scheduled and completed in a timely manner, consistent with the
    decision deadline (
    see
    415 ILCS 5/40(a)(2) (2002)), which only Martin Oil may extend by
    waiver (
    see
    35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision
    deadline, Martin Oil may deem its request granted.
    See
    415 ILCS 5/40(a)(2) (2002). Currently,
    the decision deadline is May 13, 2004, which is the 120th day after the Board received the
    amended petition.
    See
    35 Ill. Adm. Code 105.114. The Board meeting immediately before the
    decision deadline is scheduled for May 6, 2004.
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by February 13, 2004, which is the 30th day after the Board received
    Martin Oil’s amended petition.
    See
    35 Ill. Adm. Code 101.300(a); 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, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on January 22, 2004, by a vote of 5-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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