ILLINOIS POLLUTION CONTROL BOARD
July 23, 2009
DICKERSON PETROLEUM, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 10-5
(UST Appeal)
ORDER OF THE BOARD (by A.S. Moore):
On July 10, 2009, Dickerson Petroleum, Inc. (Dickerson) timely filed a petition asking
the Board to review a determination by the Illinois Environmental Protection Agency (Agency).
See
415 ILCS 5/40(a)(1) (2008); 35 Ill. Adm. Code 101.300(b), 105.402, 105.404. The
Agency’s determination concerns Dickerson’s leaking underground storage tank (UST) site
located at 823 Upper Cahokia Road in Cahokia, St. Clair County. For the reasons below, the
Board accepts Dickerson’s petition for hearing. The Board also notes that it has received
Dickerson’s motion to consolidate this case with Dickerson’s appeal in PCB 09-87, but reserves
decision on the motion until the expiration of the response period.
See
35 Ill. Adm. Code
101.500(d).
Under the Environmental Protection Act (Act) (415 ILCS 5 (2008)), 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 (2008); 35 Ill.
Adm. Code 105.Subpart D. In this case, the Agency determined that Dickerson’s UST incident
is not subject to UST regulation and denied Dickerson’s request for reimbursement from the
UST Fund for early action activities. Dickerson appeals on the grounds that the Agency’s
determination is arbitrary, capricious, and without statutory or regulatory authority. Dickerson’s
petition meets the content requirements of 35 Ill. Adm. Code 105.408.
The Board accepts the petition for hearing. Dickerson 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) (2008)), which only Dickerson may extend by waiver
(
see
35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline,
Dickerson may deem its request granted.
See
415 ILCS 5/40(a)(2) (2008). Currently, the
decision deadline is November 9, 2009, which is the first business day after the 120th day from
the date on which the Board received the petition, July 10, 2009.
See
35 Ill. Adm. Code 105.114.
The Board meeting immediately before the decision deadline is scheduled for November 5,
2009.
Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
record of its determination by August 10, 2009 which is the first business day after 30 days from
the date on which Board received Dickerson’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 Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on July 23, 2009 by a vote of 5-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
