ILLINOIS POLLUTION CONTROL BOARD
    January 7, 2010
    NIEBRUGGE OIL COMPANY,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 10-40
    (UST Appeal)
    ORDER OF THE BOARD (by G.T. Girard):
    On November 25, 2009, Niebrugge Oil Company (Niebrugge Oil) timely filed a petition
    asking the Board to review both an October 22, 2009, and an October 23, 2009 determination of
    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 determinations concern Niebrugge
    Oil’s leaking underground storage tank (UST) site located in Moweaqua, Shelby County. On
    December 3, 2009, the Board accepted Niebrugge Oil’s petition for hearing as timely but
    directed Niebrugge Oil to file an amended petition in a this new docket for the decision made by
    the Agency on October 23, 2009. On December 17, 2009, Neibrugge Oil filed an amended
    petition which refers to both the October 22 and October 23 decisions by the Agency. The Board
    will accept the appeal, but clarifies that this docket will be for the purpose of addressing the
    October 23, 2009 decision by the Agency.
    Under the Environmental Protection Act (Act) (415 ILCS 5 (2008))
    1
    1
    All citations to the Act will be to the 2008 compiled statutes, unless the provision at issue has
    been substantively amended in the 2008 compiled statutes.
    , 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’s October 23, 2009 determination
    conditionally approved the Stage 3 Site Investigation Plan & Budget for the UST site.
    Niebrugge Oil appeals on the several grounds including that the determination: (1) is in violation
    of the Agency's previous budget approval, (2) exceeds the Agency’s authority to apportion
    Section 57.7 corrective action plans, as opposed to site investigation plans (415 ILCS 57.8(m)
    (2008)), (3) violated fundamental fairness by making such a determination without opportunity
    for the owner or operator to respond, (4) the costs of the site investigation plan are attributable to
    requirements applicable to eligible tanks and consistent with evidence of free product near
    eligible tanks, and (5) there appears to be no mathematical basis for the 15% deduction, either
    based upon volume or number of tanks.
    2
    Niebrugge Oil’s petition meets the content requirements of 35 Ill. Adm. Code 105.408.
    The Board accepts the petition for hearing with regards to the October 23, 2009 determination.
    Niebrugge 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.
    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) (2008)), which only Niebrugge Oil may extend by
    waiver (
    see
    35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision
    deadline, Niebrugge Oil may deem its request granted.
    See
    415 ILCS 5/40(a)(2) (2008). The
    filing of an amended petition recommences the decision period.
    See
    35 Ill. Adm. Code
    105.114(b). Currently, the decision deadline is April 20, 2010, which is the 120th day after the
    date on which the Board received the amended petition, December 17, 2009.
    See
    35 Ill. Adm.
    Code 105.114. The Board meeting immediately before the decision deadline is scheduled for
    April 15, 2010.
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by December 26, 2009, which is 30 days after the Board received
    Niebrugge Oil’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).
    On December 24, 2009, Neibrugge Oil filed a motion for leave to file the exhibits to the
    amended petition. The Board grants that motion.
    IT IS SO ORDERED.
    I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
    Board adopted the above order on January 7, 2010, by a vote of 5-0.
    ___________________________________
    John Therriault, Assistant Clerk
    Illinois Pollution Control Board

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