ILLINOIS POLLUTION CONTROL BOARD
    September 20, 2007
    GATEWAY FS, INC.,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 07-126
    (UST Appeal)
    ORDER OF THE BOARD (by N.J. Melas):
    On June 21, 2007, at the parties’ request, the Board extended until September 7, 2007, the
    time period for Gateway FS, Inc. (Gateway) to appeal a May 2, 2007 determination of the
    Illinois Environmental Protection Agency (Agency). On September 7, 2007, Gateway 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
    Gateway’s leaking petroleum underground storage tank (UST) site at “C” Avenue, Prairie Du
    Rocher, Randolph County. For the reasons below, the Board accepts Gateway’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 denied Gateway reimbursement from the UST Fund in
    the amount of $1,579.90. Petition at 1. Gateway appeals on the grounds that the Agency’s
    determination, that Gateway’s analysis costs and shipping costs lack supporting documentation,
    are not reasonable, and may exceed minimum requirements, is erroneous, arbitrary, and
    capricious.
    Id
    . at 2. Gateway’s petition meets the content requirements of 35 Ill. Adm. Code
    105.408.
    The Board accepts the petition for hearing. Gateway 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 Gateway may extend by waiver
    (
    see
    35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline,
    Gateway may deem its request granted.
    See
    415 ILCS 5/40(a)(2) (2006). On September 10,
    2007, Gateway filed an open waiver of the decision deadline.
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by October 9, 2007, which is the first business day following the 30th
    day after the Board received Gateway’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).
    Finally, the Board notes that on September 12, 2007, Gateway filed a motion to
    consolidate this case with fourteen other UST appeals. The Board reserves ruling on that motion
    to allow the Agency’s response time to run.
    See
    35 Ill. Adm. Code 101.500(d).
    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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