ILLINOIS POLLUTION CONTROL BOARD
July 10, 2008
KCBX TERMINALS COMPANY,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 08-103
(Permit Appeal – Air)
ORDER OF THE BOARD (by G.T. Girard):
On June 27, 2008, KCBX Terminals Company (KCBX) timely filed a petition asking the
Board to review a May 23, 2008 permit determination of the Illinois Environmental Protection
Agency (Agency).
See
415 ILCS 5/40(a)(1) (2006); 35 Ill. Adm. Code 100.300(b), 105.206(a).
The Agency’s determination concerns a joint construction and operating permit application made
by KCBX for two conveyors at the company’s bulk material terminal. The facility is located at
3259 East 100th Street, Chicago, Cook County. Additionally, on June 27, 2008, KCBX 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 (2006)), 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 5/40(a)(1) (2006); 35 Ill. Adm.
Code 105.Subpart B. In this case, the Agency granted with conditions the construction permit
but denied the operating permit. KCBX appeals on the grounds that the Agency incorrectly
denied the operating permit and included conditions in the construction permit that are not
required by the Act or regulations, and are not necessary to correct, detect, or prevent
noncompliance with, or to otherwise accomplish the purposes of the Act or regulations. KCBX’s
petition meets the content requirements of 35 Ill. Adm. Code 105.210.
The Board accepts the petition for hearing. KCBX has the burden of proof.
See
415
ILCS 5/40(a)(1) (2006));
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),
afff’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).
2
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 KCBX may extend by waiver
(
see
35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline,
KCBX may deem the requested permit issued.
See
415 ILCS 5/40(a)(2)(2006). Currently, the
decision deadline is October 27, 2008, which is the first business day following the 120th day
after the Board received the petition.
See
35 Ill. Adm. Code 101.300(a), 105.114. The Board
meeting immediately before the decision deadline is scheduled for October 16, 2008.
Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
record of its determination by July 28, 2008, which is the first business day following the 30th
day after the Board received KCBX’s petition.
See
35 Ill. Adm. Code 101.300(a), 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 KCBX’s petition for review is a motion to stay the effectiveness of
contested construction 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, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on July 10, 2008, by a vote of 4-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board