ILLINOIS POLLUTION CONTROL BOARD
    August 4, 2005
     
    ESTATE OF GERALD HESS,
     
    Petitioner,
     
    v.
     
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
     
    Respondent.
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    PCB 06-9
    (UST Appeal)
     
    ORDER OF THE BOARD (by A.S. Moore):
     
    On July 19, 2005, the Estate of Gerald Hess (Estate) timely filed a petition asking the
    Board to review a June 15, 2005 determination of the Illinois Environmental Protection Agency
    (Agency).
    See
    415 ILCS 5/40(a)(1) (2004); 35 Ill. Adm. Code 101.300(b), 105.402, 105.406.
    The Agency denied the Estate’s request for Underground Storage Tank (UST) Fund
    reimbursement of certain costs concerning a former gasoline service station located at 2977 State
    Route 4, in Marine, Madison County. For the reasons below, the Board accepts the Estate’s
    petition for hearing.
     
    Under the Environmental Protection Act (415 ILCS 5 (2004)), 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) (2004); 35 Ill. Adm. Code 105.Subpart D.
     
    In this case, the Estate appeals the Agency’s denial on the grounds that (1) the costs for
    which the Estate sought reimbursement are reasonable costs that are consistent with previously
    approved amounts; and (2) more than 120 days transpired from when the Agency received a
    complete application for reimbursement and when the Agency made its final decision, so the
    Estate may deem the costs submitted to the Agency approved by operation of law. This petition
    meets the content requirements of 35 Ill. Adm. Code 105.408. The Board accepts the petition for
    hearing.
     
    The Estate 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).
     
    2
     
    Hearings will be scheduled and completed in a timely manner, consistent with the
    decision deadline (
    see
    415 ILCS 5/40(a)(2) (2004)), which only the Estate may extend by waiver
    (
    see
    35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline,
    the Estate may deem its request granted.
    See
    415 ILCS 5/40(a)(2) (2004). Currently, the
    decision deadline is November 16, 2005, which is the 120th day after the Board received the
    Estate’s petition.
    See
    35 Ill. Adm. Code 105.114. The Board meeting immediately before the
    decision deadline is scheduled for November 3, 2005.
     
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by August 18, 2005, which is 30 days after the Board received the
    Estate’s 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 August 4, 2005, by a vote of 5-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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