ILLINOIS POLLUTION CONTROL BOARD
    January 7, 2010
    SMOOT OIL COMPANY, INC.,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 10-45
    (UST Appeal)
    ORDER OF THE BOARD (by G.T. Girard)
    On December 24, 2009, Smoot Oil Company, Inc. (petitioner) timely filed a petition
    asking the Board to review a November 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 petitioner indicates that the letter was received on November 16, 2009
    and the appeal was mailed on December 21, 2009. The petition was timely filed because it was
    postmarked on or before the filing deadline. The Agency’s determination concerns petitioner’s
    underground storage tank (UST) site in Mt. Vernon, Jefferson County. For reasons below, the
    Board accepts petitioner’s petition for hearing.
    Under the Environmental Protection Act (Act) (415 ILCS 5 (2008))
    1
    , 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 reimbursement for certain costs
    because the costs were ineligible for reimbursement because the costs were incurred without an
    amended corrective action plan. Petitioner appeals on the grounds that the decision is erroneous
    because no formal decision that an amended correction action plan had been made and there is
    no basis for an amended corrective action plan. The 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,
    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
    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 petitioner may extend by waiver
    (
    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) (2008). Currently, the
    decision deadline is April 23, 2010, which is the 120th day after the date on which the Board
    received the petition, December 24, 2009.
    See
    35 Ill. Adm. Code 105.114. The Board meeting
    immediately before the decision deadline is scheduled for April 15, 2010.
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by January 25, 2010, which is the first business day after the 30th day
    after the 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 January 7, 2010, by a vote of 5-0.
    ___________________________________
    John Therriault, Assistant Clerk
    Illinois Pollution Control Board

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