ILLINOIS POLLUTION CONTROL
July 9, 1992
REICHHOLD CHEMICALS, INC.,
)
)
Petitioner,
).
v.
)
PCB 92—98
)
(Underground Storage Tank
ILLINOIS ENVIRONMENTAL
)
Fund Reimbursement)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD (by M. Nardulli):
On June 26, 1992, Reichhold Chemicals, Inc. (Reichhold)
filed a petition for review of the Illinois Environmental
Protection Agency’s (Agency) decision denying Reichhold access to
the Underground Storage Tank Fund (Fund). Reichhold sought
reimbursement for costs associated with 28 UST5. In its May 26,
1992 letter, the Agency determined that costs associated with 22
tanks were ineligible for reimbursement because Reichhold failed
to identify the contents of those tanks as petroleum fuel
products. (Ill. Rev. Stat. 1991, ch. 111 1/2, par.
1022.18b(a)(5).) The letter also provides:
This decision does not constitute the Agency’s final
determination of eligibility. The Agency reserves the right
to change this determination should additonal information
become available which would modify this decision, the
final decision regarding eligibility and appropriate
deductible amounts will be made as requests for
reimbursement are reviewed by the Agency.
Reichhold’s petition for review provides:
Reichhold
has been diligently working with the Agency, and
continues to work with the Agency to provide additional
documentation and information in an effort to satisfy the
Agency’s request for this additional information to resolve
this matter. Reichhold has obtained additional
documentation that was not previously provided to the Agency
and remains hopeful that the Agency will reach the proper
determination that the 22 USTs were petroleum USTS eligible
for reimbursement under the Act. However, reichhold must
file this appeal at this time to preserve its right to a
full evidentiary hearing.
The Agency’s letter is an attempt to reserve a right to
“reconsider”. However, in a permit appeal case, Reichhold
Chemicals. Inc v. IPCB (1990), 204 Ill. App. 3d 674, 561 N.E.2d
1343, the appellate court held that the permit provisions of the
Act do not grant the Agency the power to reconsider its
0135-0069
2
decisions. Similarly, Section 22.18b does not allow for Agency
reconsideration of its UST decisions. Therefore, the Board finds
that the Agency’s decision is final as to the 22 USTs deemed
ineligible for the Fund and that Reichhold has properly filed a
timely appeal of the Agency’s denial of eligibility as to those
tanks.’ This case is ripe for review. (Village of Lincoinwood
v. IEPA (June 4, 1992), PCB 91—83; Ideal Heating Co. v. IEPA
(January 23, 1992), PCB 91—253.
This matter is accepted for hearing.
Hearing must be scheduled within 14 days of the date of this
Order and completed within 60 days of the date of this Order.
The hearing officer shall inform the Clerk of the Board of the
time and location of the hearing at least 40 days in advance of
hearing so that public notice of hearing may be published. After
hearing, the hearing officer shall submit an exhibit list, and
all actual exhibits to the Board within 5 days of the hearing.
Any briefing schedule shall provide for final filings as
expeditiously as possible and in no event later than 70 days from
the date of this Order.
If after appropriate consultation with the parties, the
parties fail to provide an acceptable hearing date or if after an
attempt the hearing officer is unable to consult with the
parties, the hearing officer shall unilaterally set a hearing
date in conformance with the schedule above. This schedule will
only provide the Board a very short time period to deliberate and
reach a decision before the due date. The hearing officer and
the parties are encouraged to expedite t~isproceeding as much as
possible.
Within 10 days of accepting this case, the Hearing Officer
shall enter a Hearing Officer Scheduling Order governing
completion of the record. That Order shall set a date certain
for each aspect of the case including: briefing schedule,
hearing date(s), completion of discovery (if necessary) and pre-
hearing conference (if necessary). The Hearing Officer
Scheduling Order may be modified by entry of a complete new
scheduling order conforming with the time requirements below.
The hearing officer may extend this schedule only on a
waiver of the decision deadline by the petitioner and only for
the equivalent or fewer number of days that the decision deadline
is waived. Such waivers must be provided in writing to the Clerk
1
Reichhold has the option, of course, of filing a new
application for these tanks to allow the Agency to
consider new information. Reichhold, 204 Ill. App. 3d
at 679—80.
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3
of the Board. Any waiver must be an “open waiver” or a waiver of
decision until a date certain.
Because of requirements regarding the publication of notice
of hearing, no scheduled hearing may be canceled unless the
petitioner provides an open waiver or a waiver to a date at least
120 days beyond the date of the motion to cancel hearing. This
should allow ample time for the Board to republish notice of
hearing and receive transcripts from the hearing before the due
date. Any order by the hearing officer granting cancellation of
hearing shall include a complete new scheduling order with a new
hearing date at least 40 days in the future and at least 30 days
prior to the new due date and the Clerk of the Board shall be
promptly informed of the new schedule.
Because this proceeding is the type for which the Illinois
Environmental Protection Act sets a very short statutory deadline
for making a decision, absent a waiver, the Board will grant
extensions or modifications only in unusual circumstances. Any
such motion must set forth an alternative schedule for notice,
hearing, and final submissions, as well as the deadline for
decision, including response time to such a motion. However, no
such motion shall negate the obligation of the hearing officer to
establish a Scheduling Order pursuant to the requirements of this
Order, and to adhere to that Order until modified.
IT IS SO ORDERED.
B. Forcade dissents.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Bo~r~,
~7LL~’
herebyday
of
__________________,
certi
that the above Order1992, wasby
aadoptedvote of
on
_______
the
Dorothy M./unn, Clerk
/L~
Illinois ~Øllution Control Board
0135-0071