ILLINOIS POLLUTION CONTROL BOARD
November 2, 2006
WEBB & SONS, INC.,
)
Petitioner,
)
V.
)
PCB 07-24
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
ORDER OF THE BOARD (by A.S. Moore):
On October 13, 2006, the Board received a petition from Webb & Sons, Inc. (Webb),
asking the Board to review a September 12, 2006 determination of the Illinois Environmental
Protection Agency (Agency) . See 415 ILCS 5/40(a)(1) (2004) ; 35 111 . Adm. Code 105 .402 . The
Agency's determination concerns Webb's underground storage tank (UST) site at 1201 DeWitt
Avenue in Mattoon, Coles County . For the reasons below, the Board accepts Webb's petition for
hearing.
Initially, the Board notes that Webb's petition was not accompanied by the required $75
filing fee.
See
415 ILCS 5/7.5 (2004)
; 35 Ill
. Adm. Code 101 .302(e)(3) . On October 18, 2006,
Webb filed the fee. Under the Board's procedural rules, the petition is considered filed only
when the omitted filing fee is filed. See 35 Ill. Adm. Code 101 .302(e)
. Accordingly, Webb's
petition, though received on October 13, 2006, is deemed filed on October 18, 2006 . Under the
Environmental Protection Act (Act) (415 ILCS 5/40(a)(1) (2004)) and the Board's procedural
rules (35 Ill . Adm. Code 101
.300(b), (c), 105.404), Webb has timely appealed the Agency's
determination .
Under the Act, 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 (2004); 35 Ill . Adm . Code 105 .Subpart D
. In this case, the Agency rejected
aspects of Webb's proposed budget for UST Fund reimbursement
. Specifically, Webb appeals
the Agency's rejection of all personnel costs
. Webb appeals on the grounds that the Agency
acted arbitrarily and capriciously in rejecting these costs based on an alleged lack of detail in
Webb's proposed budget. Webb's petition meets the content requirements of 35 Ill
. Adm. Code
105 .408 .
The Board accepts the petition for hearing . Webb 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,
2
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 ofMornsv. IEPA,
PCB 01-170 (Dec . 6, 2001), affd
sub nom. 331 111. 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) (2004)), which only Webb may extend by waiver
(see 35 Ill . Adm. Code 101
.308)
. If the Board fails to take final action by the decision deadline,
Webb may deem its request granted .
See 415 ILCS 5/40(a)(2) (2004) . Currently, the decision
deadline is February 15, 2007, which is the 120th day after the filing date of Webb's petition
.
See
35 Ill . Adm. Code 101 .302(e), 105
.114. A Board meeting is scheduled for the decision
deadline date of February 15, 2007
.
Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
record of its determination by November 17, 2006, which is 30 days after the filing date of
Webb's petition . See
35 Ill . Adm. Code 101 .302(e), 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 November 2, 2006, by a vote of 4-0
.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
