ILLINOIS POLLUTION CONTROL BOARD
February 15, 2007
LONE STAR INDUSTRIES, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 07-71
(Permit Appeal - Air)
ORDER OF THE BOARD (by G.T. Girard):
On January 29, 2007, Lone Star Industries, Inc. (Lone Star) timely filed a petition asking
the Board to review a December 22, 2006 permit determination of the Illinois Environmental
Protection Agency (Agency).
See
415 ILCS 5/40(a)(1) (2004); 35 Ill. Adm. Code 101.300(b),
105.208(a). The determination concerns a revised air construction permit for Lone Star’s cement
manufacturing facility at 490 Portland Avenue in Oglesby, La Salle County. Also on
January 29, 2007, Lone Star filed a motion to stay the effectiveness of the contested permit
conditions. For the reasons below, the Board accepts the petition for review but reserves ruling
on the motion for stay.
Under the Environmental Protection Act (Act) (415 ILCS 5 (2004)), the Agency is the
permitting authority, responsible for administering Illinois’ regulatory programs to protect the
environment. If the Agency denies a permit or grants one with conditions, the permit applicant
may appeal the Agency’s decision to the Board.
See
415 ILCS 5/4, 5, 40(a)(1) (2004); 35 Ill.
Adm. Code 105.Subpart D. In this case, the Agency granted a revised air construction permit
regarding Lone Star’s Oglesby County facility. Lone Star appeals on the grounds that the
Agency included conditions in the construction permit that are not required by the Act or Board
regulations, and are not necessary to correct, detect, or prevent noncompliance with, or
accomplish the purposes of, the Act or Board regulations. Lone Star’s petition meets the content
requirements of 35 Ill. Adm. Code 105.210.
The Board accepts the petition for hearing. Lone Star has the burden of proof.
See
415
ILCS 5/40(a)(1) (2004);
see also
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 permit decision.
See
35 Ill. Adm. Code 105.214(a). Accordingly, though the Board hearing affords a permit
applicant the opportunity to challenge the Agency’s reasons for denying or conditionally
granting the permit, 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.
331 Ill. App. 3d 1056, 772 N.E.2d 231 (3rd Dist.
2002).
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Hearings will be scheduled and completed in a timely manner, consistent with the
decision deadline (
see
415 ILCS 5/40(a)(2) (2004)), which only Lone Star may extend by waiver
(
see
35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline,
Lone Star “may deem the permit issued” absent the contested conditions. 415 ILCS 5/40(a)(2)
(2002). Currently, the decision deadline is May 29, 2007, which is the 120th day after the Board
received the petition.
See
35 Ill. Adm. Code 105.114. The Board meeting immediately before
the decision deadline is scheduled for May 17, 2007.
Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
record of its determination by February 28, 2007, which is 30 days after the Board received Lone
Star’s petition.
See
35 Ill. Adm. Code 105.212(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 105.212(b).
Accompanying Lone Star’s petition for review is a motion to stay the effectiveness of the
contested permit conditions. The Board reserves ruling on the motion for stay to allow the
Agency’s response time to run.
See
35 Ill. Adm. Code 101.500(d).
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on February 15, 2007, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board