ILLINOIS POLLUTION CONTROL BOARD
July 23, 2009
ONKEN’S, INCORPORATED
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 10-07
(UST Appeal)
ORDER OF THE BOARD (by G.T. Girard):
On July 20, 2009, Onken’s Inc. timely filed a petition asking the Board to review a June
16, 2009 determination of the Illinois Environmental Protection Agency (Agency).
See
415
ILCS 5/40(a)(1) (2008)
1
; 35 Ill. Adm. Code 101.300(b), 105.402, 105.404. The Agency’s
determination concerns Onken’s underground storage tank (UST) site in Easton, Mason County.
For reasons below, the Board accepts Onken’s petition for hearing.
Under the Environmental Protection Act (Act) (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 rejected Onken’s corrective action plan and
budget for the Easton UST site. Onken’s appeals on the grounds that the Agency’s decision was
not necessary to ensure compliance with applicable environmental regulations. Onken’s petition
meets the content requirements of 35 Ill. Adm. Code 105.408.
The Board accepts the petition for hearing. Onken’s 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).
1
All citations to the Act will be to the 2008 compiled statutes, unless the provision at issue has
been substantively amended in the 2008 compiled statutes.
2
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 Onken’s may extend by waiver
(
see
35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline,
Onken’s may deem its request granted.
See
415 ILCS 5/40(a)(2) (2008). Currently, the decision
deadline is November 18, 2009, which is the 120th day after the date on which the Board
received the petition, July 20, 2009.
See
35 Ill. Adm. Code 105.114. The Board meeting
immediately before the decision deadline is scheduled for November 5, 2009.
Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
record of its determination by August 19, 2009, which is 30 days after the Board received
Onken’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.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
