ILLINOIS POLLUTION CONTROL BOARD
    May 7, 2009
    PRIME LOCATION PROPERTIES, LLC,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 09-67
    (UST Appeal)
    ORDER OF THE BOARD (by T.E. Johnson):
    On March 9, 2009, Prime Location Properties, LLC (Prime) timely filed a petition asking
    the Board to review a January 27, 2009 determination of the Illinois Environmental Protection
    Agency (Agency).
    See
    415 ILCS 5/40(a)(1) (2006); 35 Ill. Adm. Code 105.404. The Agency’s
    determination concerns Prime’s leaking underground storage tank (UST) site located at 600 W.
    10th Street in Metropolis, Massac County.
    On March 19, 2009, the Board issued an order accepting the matter as timely filed, but
    finding that it was unclear whether the petition had been filed by an attorney. The Board
    directed Prime to file an amended petition for review, along with the appearance of an attorney,
    by April 20, 2009.
    See
    35 Ill. Adm. Code 101.400(a)(2). On April 20, 2009, Prime filed an
    amended petition for review (Am. Pet.) accompanied by the appearance of an attorney.
    Under the Environmental Protection Act (415 ILCS 5 (2006)), 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 (2006)); 35 Ill. Adm. Code
    105.Subpart D. In this case, the Agency rejected Prime’s amended corrective action plan and
    associated budget. Prime appeals on the grounds that the Agency “erred in concluding that the
    plan relates to a new incident, as opposed to the same incident that has been the subject of
    continuing remediation efforts, and/or a re-reporting of the same.” Am. Pet. at 2. Prime’s
    amended petition meets the content requirements of 35 Ill. Adm. Code 105.408.
    The Board accepts the amended petition for hearing. Prime 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
    2
    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 Prime may extend by waiver
    (
    see
    35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline,
    Prime may deem its request granted.
    See
    415 ILCS 5/40(a)(2) (2006). The filing of the
    amended petition restarted the time period within which the Board must decide this appeal.
    See
    35 Ill. Adm. Code 105.114(b). Accordingly, the decision deadline is August 17, 2009 (the first
    business day following the 120th day after April 20, 2009).
    See
    35 Ill. Adm. Code 105.114. The
    Board meeting immediately before the decision deadline is scheduled for August 6, 2009.
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by May 20, 2009, which is 30 days after the Board received Prime’s
    amended 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 May 7, 2009, by a vote of 5-0.
    ___________________________________
    John Therriault, Assistant Clerk
    Illinois Pollution Control Board

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