ILLINOIS POLLUTION CONTROL BOARD
March 18, 2004
A & R, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 04-90
(UST Appeal)
ORDER OF THE BOARD (by T.E. Johnson):
On December 18, 2003, at the parties’ joint request, the Board extended until March 2,
2004, the time period for A & R, Inc. (A & R) to appeal an October 29, 2003 determination of
the Illinois Environmental Protection Agency (Agency). On March 1, 2004, A & R timely
mailed for filing 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 the approval of a high priority corrective action plan budget, with
corrections, for A & R’s leaking underground petroleum storage tank facility located at 6229
West Ogden Avenue, Berwyn, Cook County. For the reasons below, the Board accepts the
petition for hearing.
Under the Environmental Protection Act (Act) (415 ILCS 5 (2002)), the Agency decides
whether to approve proposed cleanup plans for leaking Underground Storage Tank (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, the Agency denied UST Fund
reimbursement for some of A & R’s requested costs, stating that the rejected costs were
unreasonable. A & R appeals on the grounds that the costs at issue are reasonable corrective
action costs and eligible to be reimbursed under the Act. The petition meets the content
requirements of 35 Ill. Adm. Code 105.408.
The Board accepts the petition for hearing. A & R 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 petitioners 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 (3rd Dist.
2002).
2
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 A & R may extend by waiver.
S
ee
35 Ill. Adm. Code 101.308. If the Board fails to take final action by the decision deadline,
A & R may deem its request granted.
See
415 ILCS 5/40(a)(2) (2002). Currently, the decision
deadline is July 2, 2004, which is the 120th day after the Board received the petition.
See
35 Ill.
Adm. Code 105.114. The Board meeting immediately before the decision deadline is scheduled
for June 17, 2004.
Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
record of its determination by April 5, 2004, being the first business day following the 30th day
after the Board received the petition.
See
35 Ill. Adm. Code 101.300(a), 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 March 18, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
