ILLINOIS POLLUTION CONTROL BOARD
September 2, 2004
JOHNSON OIL COMPANY, LLC,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 04-190
(UST Appeal)
ORDER OF THE BOARD (by A.S. Moore):
Today the Board accepts for hearing the amended petition of Johnson Oil Company, LLC
(Johnson Oil), which seeks Board review of an underground storage tank (UST) determination of
the Illinois Environmental Protection Agency (Agency). The Board also grants the motion of
Johnson Oil’s attorney to appear before the Board
pro hac vice
in this appeal.
Under the Environmental Protection 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.
The Board issued an order in this case on May 6, 2004. In the order, at the parties’
request, the Board extended until July 28, 2004, the time period for Johnson Oil to appeal a
March 19, 2004 determination of the Agency. On July 30, 2004, the Board received Johnson
Oil’s petition, which was timely filed because it was postmarked on or before the July 28, 2004
filing deadline.
See
415 ILCS 5/40(a)(1) (2002); 35 Ill. Adm. Code 101.300(b), 105.402,
105.406. However, as discussed in an August 5, 2004 order of the Board, the petition was signed
by Dick Johnson as “Managing Member” of Johnson Oil, without any indication that he is an
attorney. Under Illinois law, anyone other than an individual must be represented by an attorney
in a Board adjudicatory proceeding.
See
35 Ill. Adm. Code 101.400(a)(2). The Board granted
Johnson Oil until September 4, 2004, to file an amended petition for review, accompanied by the
appearance of an attorney.
On August 26, 2004, Johnson Oil filed an amended petition for review of the Agency’s
March 19, 2004 determination, accompanied by the appearance of an attorney. In the
determination, the Agency modified Johnson Oil’s High Priority Site Investigation Corrective
Action Plan. The determination concerns a gasoline service station located at 629 West
Champaign Road, Rantoul, Champaign County. Johnson Oil appeals on the grounds that the
Agency reductions to the budget were unreasonable, arbitrary, and capricious. Johnson Oil also
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alleges that the Agency, in making its determination, improperly used rate sheets that were not
promulgated under the Administrative Procedure Act. Johnson Oil’s petition meets the content
requirements of 35 Ill. Adm. Code 105.408.
The Board accepts the petition for hearing. Johnson 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 Johnson Oil may extend by
waiver (
see
35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision
deadline, Johnson Oil may deem its request granted.
See
415 ILCS 5/40(a)(2) (2002).
Currently, the decision deadline is December 24, 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 December 16, 2004.
Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
record of its determination by September 27, 2004, which is the first business day following the
30th day after the Board received Johnson Oil’s amended 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).
Finally, Johnson Oil’s petition includes a motion to allow attorney John D. Moriarty to
appear
pro hac vice
in this proceeding on behalf of the company. Under the Board’s procedural
rules, attorneys who are licensed to practice in a state other than Illinois, but who are not licensed
and registered to practice in Illinois, “may request to appear
pro hac vice
on a particular matter
on a motion filed with the Board.” 35 Ill. Adm. Code 101.400(a)(3). The motion to allow
Moriarty to appear
pro hac vice
includes his affidavit, which provides that he is a licensed
attorney admitted to practice law in Indiana, and is currently in good standing. The Board grants
the motion.
IT IS SO ORDERED.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on September 2, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
