ILLINOIS POLLUTION CONTROL

BOARD

September

3,

1992

CHENREX,

INC.,

Petitioner,

)

v.

)

PCB 92—123

)

(Underground Storage Tank

ILLINOIS ENVIRONMENTAL

)

Fund Reimbursement)

PROTECTION AGENCY,

)

)

Respondent.

ORDER OF THE BOARD

(by M. Nardulli):

On August 31,

1992, petitioner filed a petition for review

of the Agency’s determination that corrective action costs are

not reimbursable from the UST Fund.

The Agency denied

reimbursement for seven of eight USTs.

The Board notes that the

Agency’s July 27,

1992 denial letter provides:

This decision does not constitute the Agency’s final

determination of eligibility.

The Agency reserves the right

to change this determination should additional 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.

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

decisions.

(See also,

WMI

of Illinois,

Inc.

v.

IPCB,

Nos.

1—90—

2702

& 1—90—2818,

slip op.

at 31—32

(1st Dist. June 11,

1992).)

Similarly,

Section 22.l8b does not allow for Agency

reconsideration of its UST decisions.

Therefore, the Board finds

that the Agency’s decision is final as to the seven USTs deemed

ineligible for the Fund and that Chemrex has properly filed

a

timely appeal of the Agency’s denial of eligibility as to those

tanks.1

This case is ripe for review as to those seven tanks;

however, the deductible amount applied to the eighth tanks is not

ripe for review.

(See,

Reichhold Chemical v.

IEPA (July

9,

1992), PCB 92—98; Village of Lincolnwood v. IEPA

(June

4,

1992),

PCB 91—83; Ideal Heating Co.

V.

IEPA (January 23,

1992),

PCB 91-

253.

I

Chemrex 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.

0135-0535

---

2

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 this proceeding 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

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

0135-0536

---

3

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.

I, Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Bo,~rd hereby certi~’th

the above order was adopted on the

-~

~i~t

day of

___________________,

1992, by a vote of

7~’

~

~L.

Dorothy M. ~n,

Clerk

Illinois Pc~~ution

Control Board

0135-0537