ILLINOIS POLLUTION CONTROL BOARD
    December 4, 2008
    INTERMART, INC.,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 09-34
    (UST Appeal)
    ORDER OF THE BOARD (by G.T. Girard):
    On November 24, 2008, Intermart, Inc. (petitioner) timely filed a petition asking the
    Board to review an October 20, 2008 determination of the Illinois Environmental Protection
    Agency (Agency).
    See
    415 ILCS 5/40(a)(1) (2006); 35 Ill. Adm. Code 105.402. The Agency’s
    determination concerns petitioner’s underground storage tank (UST) site located at 24 South
    Lincolnway in North Aurora, Kane County. For reasons below, the Board accepts petitioner’s
    petition for hearing.
    Under the Environmental Protection Act (Act) (415 ILCS 5 (2006)), the Agency decides
    whether to approve proposed cleanup plans and budgets 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 rejected petitioner’s High Priority
    Corrective Action Plan (CAP) and associated budget for the North Aurora UST site. Petitioner
    appeals on the grounds that its proposed CAP and budget meet the requirements of the Act and
    regulations and therefore the Agency erred in issuing the rejection. Petitioner’s petition meets
    the content requirements of 35 Ill. Adm. Code 105.408.
    The Board accepts the petition for hearing. Petitioner 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).
    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 petitioner may extend by waiver
    2
    (
    see
    35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline,
    petitioner may deem its request granted.
    See
    415 ILCS 5/40(a)(2) (2006). Currently, the
    decision deadline is March 24, 2009, which is the 120th day after the date on which the Board
    received the petition.
    See
    35 Ill. Adm. Code 105.114. The Board meeting immediately before
    the decision deadline is scheduled for March 19, 2009.
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by December 24, 2009, which is the 30th day after the date on which
    Board received the 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 December 4, 2008, by a vote of 5-0.
    ___________________________________
    John Therriault, Assistant Clerk
    Illinois Pollution Control Board

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