ILLINOIS POLLUTION CONTROL BOARD
    December 21, 2006
    VILLAGE OF WILMETTE,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 07-48
    (UST Appeal)
    ORDER OF THE BOARD (by G.T. Girard):
    On December 14, 2006, the Village of Wilmette (Village) timely filed a petition asking
    the Board to review a November 13, 2006 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.
    The Agency’s determination concerns the Village’s former underground storage tank (UST) site
    located at 710 Ridge Road in Wilmette, Cook County. For the reasons below, the Board accepts
    the Village’s petition for hearing.
    Under the Environmental Protection Act (Act) (415 ILCS 5 (2004)), the Agency
    determines 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 the Village’s reimbursement application,
    stating that the billings submitted exceeded the approved budget amounts. The Village appeals,
    alleging that its reimbursement request “was less than the IEPA approved budget amount.”
    Petition (Pet.) at 1. The Village’s petition meets the content requirements of 35 Ill. Adm. Code
    105.408.
    The Board accepts the petition for hearing. The Village 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).
    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 Village may extend by
    2
    waiver (
    see
    35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision
    deadline, the Village may deem its request granted.
    See
    415 ILCS 5/40(a)(2) (2004). Currently,
    the decision deadline is April 13, 2007, 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 April 5, 2007.
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by January 15, 2007, which is the first business day following 30 days
    after the Board received the Village’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).
    Lastly, the Board addresses two additional procedural items. First, the Village’s petition
    requests that the “IEPA be deemed to have joined in this appeal notwithstanding IEPA’s refusal
    to join in this appeal.” Pet. at 2. What is apparent from the Village’s filing is that the Agency
    did not refuse to “join in this appeal,” but rather merely refused to join in the Village’s request
    for a 90-day extension of the appeal period. The Agency is required to appear as respondent in
    appeals such as this and is named as respondent here.
    See
    415 ILCS 5/40(a)(1), 57.8(i) (2004);
    35 Ill. Adm. Code 105.400, 105.402, 105.406. Second, the Board notes that a related UST
    budget appeal is pending before the Board, Village of Wilmette v. IEPA, PCB 07-27, which
    involves the same two parties, the same site, and the same Leaking UST Incident No. (982714).
    The Village’s petition for review in PCB 07-27 has already been accepted for hearing.
    See
    Village of Wilmette, PCB 07-27 (Nov. 2, 2006). The Board has not received, but either party
    may file for Board consideration, a motion to consolidate the two proceedings for purposes of
    hearing or decision or both.
    See
    35 Ill. Adm. Code 101.406.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on December 21, 2006, by a vote of 4-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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