ILLINOIS POLLUTION CONTROL BOARD
    February 3, 2005
     
    GATEWAY FS, INC.,
     
    Petitioner,
     
    v.
     
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
     
    Respondent.
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    PCB 05-84
    (UST Appeal)
     
    ORDER OF THE BOARD (by A.S. Moore):
     
    On November 18, 2004, at the parties’ request, the Board extended until February 7,
    2005, the time period for Gateway FS, Inc. (Gateway FS) to appeal an October 1, 2004
    determination of the Illinois Environmental Protection Agency (Agency). On January 19, 2005,
    Gateway FS timely filed a petition asking the Board to review the Agency’s determination.
    See
     
    415 ILCS 5/40(a)(1) (2002); 35 Ill. Adm. Code 101.300(b), 105.402, 105.406. The Agency’s
    determination concerns Gateway FS’ underground storage tank (UST) site at C Avenue, in
    Prairie Du Rocher, Randolph County. For the reasons below, the Board accepts Gateway FS’
    petition for hearing.
     
    Under the Environmental Protection Act (Act) (415 ILCS 5 (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, on October 1, 2004, the Agency rejected Gateway FS’ amendment
    to the company’s High Priority Corrective Action Plan Budget. The Agency’s denial letter states
    that various costs and charges in the amendment are identical “with a few exceptions” to those in
    a prior submittal, and the Agency “previously notified the owner or operator of its final action
    regarding these costs.” Petition, Exhibit A, Attachment A. According to Gateway FS’ petition
    for review, however, the company’s amendment “contains new and different information and
    justification . . . not already addressed by the Agency.” Petition at 3. Gateway FS seeks reversal
    of the Agency’s determination and recovery of attorney fees and costs.
    Id
    . at 4.
     
    The Board finds that Gateway FS’ petition meets the content requirements of 35 Ill. Adm.
    Code 105.408 and accepts the petition for hearing. Gateway FS has the burden of proof.
    See
    35
    Ill. Adm. Code 105.112(a). Hearings will be base
    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.
    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 Gateway FS may extend by
    waiver (
    see
    35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision
    deadline, Gateway FS may deem its request granted.
    See
    415 ILCS 5/40(a)(2) (2002).
    Currently, the decision deadline is May 19, 2005, which is the 120th day after the Board received
    the petition.
    See
    35 Ill. Adm. Code 105.114. A Board meeting is scheduled for May 19, 2005.
     
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by February 18, 2005, which is 30 days after the Board received
    Gateway FS’ 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, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on February 3, 2005, by a vote of 4-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     

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