BEFORE THE ILLINOIS PO I
CON'
LONE STAR INDUSTRIES, INC.,
)
Petitioner,
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
NOTICE
To:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
PCB No. 2003-094
(CAAPP Permit Appeal)
Carol Sudman
Katherine D . Hodge and N . Ladonna Driver
Hearing Officer
Hodge Dwyer Zeman
600 S . Second Street
3150 Roland Avenue
Suite 402
P.O. Box 5776
Springfield, Illinois 62704
Springfield, Illinois 62705-5776
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of
the Illinois Pollution Control Board an original (1) and ten (10) copies of an
APPEARANCE and a MOTION TO DISMISS
of the Respondent, Illinois
Environmental Protection Agency, a copy of which is herewith served upon the assigned
Hearing Officer and the attorneys for the Petitioner, Lone Star Industries, Inc .
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By: Robb H . La an
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P
.O
. Box 19276
Springfield, Illinois 62794-9276
(217)524-9137
Dated: January 22, 2003
A
CLFRK'S OFFlCE
JAN
2 8 2003
L BOARD
SPATE OF ILLINOIS
pollution Control Board
r
o~
a
BEFORE THE ILLINOIS POLL TION CONTROL BOARD
LONE STAR INDUSTRIES, INC.,
Petitioner,
vi.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent .
PCB No. 2003-094
(CAAPP Permit Appeal)
APPEARANCE
NOW COMES Robb Layman, as a Special Assistant Attorney General, and enters
his appearance on behalf of the Respondent, ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, in the above-captioned matter
.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By: Robb H
. Layma
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217)524-9137
Dated
: January 22, 2003
RECEIVED
CLERK'S ONCE
JAN 2 8 2003
STATE OF ILLINOIS
Pollution
Control
Board
k CEIVED
inlI
( ~r
CI PNK's OFMCE
a ~
A
JAN 2 8 2003
7
STATE OF IWNOIS
BEFORE THE ILLINOIS POLLUTION CONTROL BOp&#ltlon Control
Board
LONE STAR INDUSTRIES, INC .,
)
Petitioner,
)
PCB No
. 2003-094
v.
)
(CAAPP Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
MOTION TO DISMISS
NOW COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY ("Illinois EPA"), by and through its attorneys, and moves the Illinois Pollution
Control Board ("Board") to dismiss the Petitioner's, LONE STAR INDUSTRIES, INC
.,
("Lone Star"), Petition for Review in the above-captioned matter for want of sufficiency
and the failure to state a claim upon which relief can be granted
.
1 .
The Illinois EPA issued a Clean Air Act Permit Program ("CAAPP")
permit and Title I permit to Lone Star on November 22, 2002, authorizing the operation
of Portland Cement manufacturing at the Oglesby, Illinois facility
.
2.
On December 27, 2002, Lone Star filed a Petition for Review with the
Board challenging the Illinois EPA's November 22, 2002, CAAPP permitting decision
.
3 .
In its Petition for Review, Lone Star primarily appears to take issue with
the Illinois EPA's formatting of the CAAPP permit
. Lone Star contends that the Illinois
EPA's approach in incorporating prior permits and establishing applicable requirements
in the CAAPP permit is not supported by the administrative record or existing law
. This
premise apparently rests upon Lone Star's belief that the CAAPP permit contains
"inconsistencies" with respect to its permit conditions and with respect to the applicable
regulations cited by the permit conditions
. Petition for Review, paragraph 5, page 2
.
Without offering any details, Lone Star summarily concludes that the CAAPP permit
does not mirror the current operations or applicable requirements for the facility
. Petition
for Review, paragraph 6, Page 3 .
4.
Section 105
.304 of Title 35 of the Board's procedural regulations provides
that a petition for appeal of a CAAPP permit, including the issuance of a CAAPP permit
with one or more conditions or limitations, must contain a "statement of the Agency's
decision or part thereof to be reviewed
." 35 Ill . Adm. Code 105
.304(a)(2) .
5 .
Where an appeal challenges the Illinois EPA's denial of a permit, it is
usually acceptable for a petition seeking that appeal to speak only in terms of the Illinois
EPA's decision (i.e.,
permit denial)
. In such instances, the issues for the appeal are
framed by the Illinois EPA's permit denial letter and consequently, there is usually little
uncertainty about the scope of the Board's review of the permit denial decision
.
6.
In contrast, an appeal that challenges the imposition of permit conditions
has its controversy drawn from the specific conditions of the issued permit
. A petitioner
seeking an appeal from permit conditions should be required to plead, with some degree
of specificity, the identity and/or substance of the challenged permit conditions
. If this
reading is not afforded to the Board's petition content requirements, then the "part
thereof' language of 35 111 . Adm. Code 105
.304(a)(2) might well be rendered
superfluous .
2
7.
In this instance, the mere statement that the Illinois EPA's decision
contains "inconsistencies" does not identify the part of the decision for which an appeal is
being sought
. For this reason, Lone Star's petition cannot be said to comply with the
petition content requirements of Section 105
.304 of Title 35 .
8.
Courts in Illinois favor fact-pleadings over notice-pleadings in civil
practice . Jackson v
. South Holland Dodge, Inc ., 755 N .E.2d
462, 471 (I11 . 2001) ;
Raintree Homes, Inc., v. Village of Long Grove,
2002 WL 31689299 (2
nd
Dist
. 2002) ;
Kozak v
. Armstrong World Industries, Inc ., 572 N.E.2d
279, 282 (4° Dist. 1991)
. Fact-
pleading requires a complainant to set forth an "adequate factual foundation" for its cause
of action
. Kozak, 572 N .E.2d at 213
. Although a complainant need not actually prove its
case in the initial pleading, that pleading should convey facts that are sufficient to state
the elements of the cause of action .
Raintree Homes, Inc., v
. Village of Long Grove, 2002
WL 31689299 ; Bianchi v
. Savino Del Bene International Freight Forwarders, Inc
., 770
N.E.2d
684, 692 (1
st
Dist. 2002)
. Fact-pleading ensures that a respondent is informed
with enough facts to prepare a defense to the lawsuit
. Kozak,
572 N.E.2d at 213
.
9 .
The policies underlying the petition content requirements of 35 Ill
. Adm
.
Code 105
.304 were surely intended to mirror, or at least be consistent with, the civil
practice requirements observed by Illinois courts
.
10.
In this instance, the petition is vague and elusive with respect to those
conditions of the CAAPP permit that Lone Star has found objectionable
. By not
specifying any particular condition or part of the CAAPP permit that is being contested in
this appeal, Lone Star has failed to plead facts sufficient to enable the Illinois EPA to
prepare an adequate legal defense .
See,
735 ILCS 5/2-612(b) . Because the petition falls
3
short of pleading sufficient facts, it is properly subject to dismissal
. See,
735 ILCS 5/2-
615(a); Cummings v . City of Waterloo,
683 N.E.2d 1222, 1225 (5"'
Dist. 1997)(dismissal
is appropriate under Section 2-615 where the pleading fails to "allege sufficient facts
essential to the cause of action")
.
11 .
In addition, the failure to identify the source(s) of Lone Star's alleged
"inconsistencies" with respect to the CAAPP permit also renders the petition insufficient
as a matter of law and is arguably subject to dismissal on the same afore-mentioned basis
.
Wieseman v. Kienstra, Inc ., 604 N.E.2d
1126, 1127 (5`'Dist
. 1992)(a pleading which
"fails to state a cause of action because of factual or legal insufficiency must be
dismissed" under Section 2-615)
.
WHEREFORE, the Illinois EPA respectfully requests that the Board dismiss
Lone Star's Petition for Review or, in the alternative, order such relief as may be deemed
appropriate.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Robb H . Layman
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P .O. Box 19276
Springfield, Illinois 62794-9276
(217)524-9137
4
CERTIFICATE OF SERVICE
I hereby certify that on the 22nd
day of January, 2003, 1 did send, by First Class
Mail, with postage thereon fully paid and deposited into the possession of the United
States Postal Service, one (1) original and ten (10) copies of the following instruments
entitled APPEARANCE and
MOTION TO DISMISS to:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
and a true and correct copy of the same foregoing instruments, by First Class Mail with
postage thereon fully paid and deposited into the possession of the United States Postal
Service, to :
Carol Sudman
Katherine D. Hodge and N
. Ladonna Driver
Hearing Officer
Hodge Dwyer Zeman
600 S . Second Street
3150 Roland Avenue
Suite 402
P .O. Box 5776
Springfield, Illinois 62704
Springfield, Illinois 62705-5776
By:
Robb H . Layman
Special Assistant Attorney General
This filing is submitted on recycled paper
.
217-524-9137
January 22, 2003
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601-3286
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1(121 NoRni (,RANI) AV[
Nvr EAST, P.O . Box 19276, SPRINGFIELD, Iii
NOiS 62794-9276
RFNFT. CIPRIANO, DIRICOR
Re:
Lone Star Industries, Inc.v
. Illinois EPA
PCB No
. 2003-094 (CAAPP Permit Appeal)
Dear Ms
. Gunn:
Please find enclosed the original (1) and ten (10) copies of an APPEARANCE and a
MOTION TO DISMISS of the Respondent, Illinois Environmental Protection Agency,
for filing with the Pollution Control Board in regards to the above-captioned matter
. If
it's not too inconvenient, I request that a file-stamped copy of the documents be returned
to my office in the enclosed self-addressed stamped envelope
.
Thank you for your attention to this matter
.
Robb H
. Layman
Special Assistant Attorney General
Illinois EPA
Rod R. Blagojevich, Governor
PRIN mu oN RnVI l ru
PAPFR
