ILLINOIS POLLUTION CONTROL BOARD

July 23, 2009

WEEKE OIL COMPANY,

Petitioner,

v.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

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PCB 10-01

(UST Appeal)

ORDER OF THE BOARD (by G.T. Girard):

On July 1, 2009, Weeke Oil Company (Weeke) timely filed a petition (Pet.) asking the

Board to review a June 4, 2009 determination of the Illinois Environmental Protection Agency

(Agency).

See

415 ILCS 5/40(a)(1) (2008); 35 Ill. Adm. Code 101.300(b), 105.402, 105.404.

The Agency’s determination concerns Weeke’s underground storage tank (UST) site at 422 West

St. Louis Street in Nashville, Washington County. For reasons below, the Board accepts

Weeke’s petition for hearing.

Under the Environmental Protection Act (Act)

1

(415 ILCS 5 (2008)), 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 (2008); 35 Ill.

Adm. Code 105.Subpart D. In this case, the Agency denied Weeke’s request for reimbursement

from the UST Fund for the Nashville UST site, concluding that Weeke’s requested costs were

not associated with a confirmed release. Weeke appeals on the grounds that “the Agency’s

denial of payment is based on its own erroneous conclusion that there has been no release at the

site and its erroneous, belated, efforts to prevent reporting of the release.” Pet. at 2. Weeke also

argues that the Agency decision is inconsistent with the record and the Agency’s own prior

determinations regarding the Nashville site.

See Id.

Weeke’s petition meets the content

requirements of 35 Ill. Adm. Code 105.408.

The Board accepts the petition for hearing. Weeke 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,

1

All citations to the Act will be to the 2008 compiled statutes, unless the section at issue has

been substantively amended in the 2008 compiled statutes.

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2

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) (2008)), which only Weeke may extend by waiver

(

see

35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline,

Weeke may deem its request granted.

See

415 ILCS 5/40(a)(2) (2006). Currently, the decision

deadline is October 29, 2009, which is the 120th day after the date on which the Board received

the petition, July 1, 2009.

See

35 Ill. Adm. Code 105.114. The Board meeting immediately

before the decision deadline is scheduled for October 15, 2009.

Unless the Board or the hearing officer orders otherwise, the Agency must file the entire

record of its determination by July 31, 2009, which is 30 days after the Board received Weeke’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 July 23, 2009, by a vote of 5-0.

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John Therriault, Assistant Clerk

Illinois Pollution Control Board