ILLINOIS POLLUTION CONTROL BOARD
    May 3, 2007
    HARLEY FREY,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 07-105
    (UST Appeal)
    ORDER OF THE BOARD (by G.T. Girard):
    On April 19, 2007, Harley Frey (Frey) timely filed a petition asking the Board to review a
    March 23, 2007 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’s
    determination concerns Frey’s property located at Rural Road 4, Highway 45 South in Barnhill,
    Wayne County. The property was previously the site of a gasoline service station containing two
    underground storage tanks (UST’s). For reasons below, the Board accepts Frey’s petition for
    hearing.
    Under the Environmental Protection 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 partially denied Frey’s request for reimbursement from
    the UST Fund regarding the Wayne County site. The denied amount is $16,448.99. According
    to Frey, the Agency’s decision is without merit and is contrary to the regulations set forth at 35
    Ill. Admin. Code 734. Petition at 5. Frey’s petition meets the content requirements of 35 Ill.
    Adm. Code 105.408.
    The Board accepts the petition for hearing. Frey 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 (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) (2004)), which only Frey may extend by waiver (
    see
    35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline, Frey
    may deem its request granted.
    See
    415 ILCS 5/40(a)(2) (2004). Currently, the decision deadline
    is August 17, 2007, which is the 120th day after the Board received the petition.
    See
    35 Ill.
    Adm. Code 101.300(a), 105.114. The Board meeting immediately before the decision deadline
    is scheduled for August 9, 2007.
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by May 21, 2007, which is the first business day following the 30th
    day after the Board received Frey’s 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, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
    the Board adopted the above order on May 3, 2007, by a vote of 4-0.
    __
    _________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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