ILLINOIS POLLUTION CONTROL BOARD
February 5, 2009
APOLLO PLASTICS CORPORATION,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 09-36
(Permit Appeal - Air)
ORDER OF THE BOARD (by A.S. Moore):
On January 8, 2009, the Board directed Apollo Plastics Corporation (Apollo) to file an
amended petition for review of the Illinois Environmental Protection Agency’s (Agency) alleged
failure to act on Apollo’s Clean Air Act Permit Program (CAAPP) application. The Board
directed Apollo to file the amended petition by February 9, 2009. On January 22, 2009, Apollo
timely filed an amended petition asking the Board to review the Agency’s inaction.
See
415
ILCS 5/40.2(a) (2006); 35 Ill. Adm. Code 105.302(e). The CAAPP application concerns
Apollo’s facility at 5333 N. Elston Avenue, Chicago, Cook County. For the reasons below, the
Board accepts Apollo’s petition for hearing.
Section 39.5 of the Environmental Protection Act (Act) (415 ILCS 5/39.5 (2006) sets
forth the CAAPP, reflecting the requirements of Title V of the federal Clean Air Act
Amendments of 1990 (42 U.S.C. §§ 7661-7661f). Generally, a CAAPP permit is designed to be
a single, comprehensive document of all air pollution obligations that apply to a facility. The
Agency decides whether to approve CAAPP applications, and Agency decisions may be
appealed to the Board by, among others, the permit applicant and any person who participated in
the Agency’s public comment process. See 415 ILCS 5/40.2(a)(2006); 35 Ill. Adm. Code
105.Subpart C. In this case, Apollo states that it submitted an application for “an initial FESOP
(Federally Enforceable State Operating Permit) on a CAAPP application form to the Agency on
September 29, 2006.” Amended Petition at 2. According to the petition, on or about October 27,
2006, the Agency sent a notice to Apollo informing the company that “its CAAPP application
was complete pursuant to section 39.5 of the Act.”
Id
.
Section 39.5(5)(j) of the Act provides that the Agency shall issue or deny a CAAPP
permit within 18 months after the date of receiving the complete CAAPP application, with
several exceptions.
See
415 ILCS 5/39.5(5)(j) (2006). Under Section 39.5(5)(j)(ii), the Agency
“shall act on initial CAAPP applications within 24 months after the date of receipt of the
complete CAAPP application.” 415 ILCS 5/39.5(5)(j)(ii) (2006). The Act further provides that
when the Agency fails to take final action within the required time period, the permit is not
deemed issued, but rather the Agency’s failure is treated as a final permit action subject to
judicial review pursuant to Section 40.2 and 41 of the Act. See 415 ILCS 5/39.5(5)(j) (2006);
see also
35 Ill. Adm. Code 105.302(c). Section 40.2 in turn provides that if the final permit
2
action being challenged is the Agency’s failure to timely take final action, “a petition for a
hearing before the Board shall be filed before the Agency denies or issues the final permit.” 415
ILCS 5/40.2(a) (2006); see also 35 Ill. Adm. Code 105.302(e). Apollo maintains that as of the
date of its petition, the Agency has failed to take any action on the company’s intial CAAPP
application. Petition at 2.
The Board accepts the petition for hearing. Apollo has the burden of proof. 415 ILCS
5/40(a)(1) (2006);
see also
35 Ill. Adm. Code 105.112(a). 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 Apollo may extend by waiver (
see
35 Ill. Adm. Code 101.308). If the Board
fails to take final action by the decision deadline, “the permit shall not be deemed issued; rather,
the petitioner shall be entitled to an Appellate Court order pursuant to Section 41(d) of this Act
[415 ILCS 5/41(d) (2006)]”. 415 ILCS 5/40(a)(2) (2006). Currently, the decision deadline is
May 22, 2009, which is the 120th day after the Board received the amended petition.
See
35 Ill.
Adm. Code 105.114. The Board meeting immediately before the decision deadline is scheduled
for May 21, 2009.
Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
record of its determination by February 23, 2009, which is the first business day following the
30th day after the Board received Apollo’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).
IT IS SO ORDERED.
I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on February 5, 2009, by a vote of 5-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
