ILLINOIS POLLUTION CONTROL BOARD
    September 20, 2007
    LOWE OIL (Robert and Tony Thompson),
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 07-125
    (UST Appeal)
    ORDER OF THE BOARD (by G.T. Girard):
    On June 21, 2007, at the parties’ request, the Board extended until September 14, 2007,
    the time period for Lowe Oil to appeal a May 15, 2007 determination of the Illinois
    Environmental Protection Agency (Agency). On September 10, 2007, Lowe Oil timely filed a
    petition asking the Board to review the Agency’s determination.
    See
    415 ILCS 5/40(a)(1)
    (2006); 35 Ill. Adm. Code 101.300(b), 105.402, 105.406. The Agency’s determination concerns
    Lowe Oil’s leaking petroleum underground storage tank (UST) site at 4th and Jefferson Streets,
    Cairo, Alexander County. For the reasons below, the Board accepts Lowe Oil’s petition for
    hearing.
    Under the Environmental Protection Act (Act) (415 ILCS 5 (2006)), 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 (2006); 35 Ill. Adm. Code
    105.Subpart D. In this case, the Agency approved Lowe Oil’s Corrective Action Plan but
    rejected its Budget. Petition at 2. Lowe Oil appeals on the grounds that the Agency exceeded its
    authority by requiring the submission of information that was not required under the applicable
    regulations.
    Id
    . Lowe Oil’s petition meets the content requirements of 35 Ill. Adm. Code
    105.408.
    The Board accepts the petition for hearing. Lowe Oil 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.
    Community Landfill Co. & City of Morris v. PCB &
    IEPA, 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) (2006)), which only Lowe Oil may extend by waiver
    (
    see
    35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline,
    Lowe Oil may deem its request granted.
    See
    415 ILCS 5/40(a)(2) (2006). Currently, the
    decision deadline is January 8, 2008, 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 December 20, 2007.
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by October 10, 2007, which is the 30th day after the Board received
    Lowe Oil’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, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
    Board adopted the above order on September 20, 2007, by a vote of 4-0.
    ___________________________________
    John Therriault, Assistant Clerk
    Illinois Pollution Control Board

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