ILLINOIS POLLUTION CONTROL BOARD
    January 9, 2003
     
    LONE STAR INDUSTRIES, INC.,
     
    Petitioner,
     
    v.
     
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
     
    Respondent.
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    PCB 03-94
    (CAAPP Permit Appeal – Air)
     
    ORDER OF THE BOARD (by T. E. Johnson):
     
    Today, the Board accepts for hearing Lone Star Industries, Inc.’s (Lone Star) timely
    petition appealing the Illinois Environmental Protection Agency’s (Agency) conditional
    acceptance of Lone Star’s application for a Clean Air Act Permit Program (CAAPP) permit. The
    Board hears appeals of Agency decisions to issue or deny permits in environmental programs.
    See
    415 ILCS 5/40.2 (2000),
    amended by
    P.A. 92-0574, eff. June 26, 2002. The Board's review
    of a permit appeal is generally limited to the record before the Agency, and is not based on
    information developed by the permit applicant or the Agency after the Agency's decision. Alton
    Packaging Corp. v. PCB, 162 Ill. App. 3d 731, 738, 516 N.E.2d 275, 280 (5th Dist. 1987).
     
    On December 27, 2002, Lone Star timely filed a petition asking the Board to review a
    November 22, 2002 determination of the Agency.
    See
    415 ILCS 5/40.2(a) (2000),
    amended by
    P.A. 92-0574, eff. June 26, 2002; 35 Ill. Adm. Code 105.302(e). The Agency conditionally
    accepted Lone Star’s application for a CAAPP permit under Section 39.5 of the Environmental
    Protection Act (Act) (415 ILCS 5/39.5 (2000)). The CAAPP permit application concerns Lone
    Star’s Portland cement facility at Portland Avenue, Oglesby, LaSalle County.
     
    Section 40.2(a) of the Act (415 ILCS 5/40.2(a) (2000),
    amended by
    P.A. 92-0574, eff.
    June 26, 2002) allows several persons to appeal Agency CAAPP permit determinations: permit
    applicants; persons who participated in the Agency’s public comment process under Section
    39.5(8) of the Act (415 ILCS 5/39.5(8) (2000)); and persons who could obtain judicial review
    under Section 41(a) of the Act (415 ILCS 5/41(a) (2000)). 415 ILCS 5/40.2(a) (2000),
    amended
    by
    P.A. 92-0574, eff. June 26, 2002;
    see also
    35 Ill. Adm. Code 105.302(c). Lone Star is the
    CAAPP permit applicant.
    Lone Star appeals on the grounds that certain permit conditions are neither consistent with the
    Clean Air Act and its regulations nor the Act and its regulations.
     
    Lone Star has the burden of proof. 415 ILCS 5/40.2(a) (2000),
    amended by
    P.A. 92-
    0574, eff. June 26, 2002;
    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 5/40.2(c)
    (2000),
    amended by
    P.A. 92-0574, eff. June 26, 2002), which only Lone Star may extend by
     
     
     
    2
    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) (2000)].” 415
    ILCS 5/40.2(c) (2000),
    amended by
    P.A. 92-0574, eff. June 26, 2002. Currently, the decision
    deadline is April 16, 2003 (the 120th day after December 17, 2002).
    See
    35 Ill. Adm. Code
    105.114. The Board meeting immediately before the decision deadline is scheduled for April 3,
    2003.
     
    Unless the Board or the hearing officer orders otherwise, the Agency must file an answer,
    including the entire record of its determination within 30 days after it is served with the petition.
    35 Ill. Adm. Code 105.302(f). 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. 35 Ill.
    Adm. Code 105.116. The record must comply with the content requirements of 35 Ill. Adm.
    Code 105.302(f).
     
     
    Lone Star has concurrently filed a motion to stay effectiveness of CAAPP permit.
    Motions to stay a proceeding must be accompanied by sufficient information detailing why a
    stay is needed. 35 Ill. Adm. Code 101.514(A). Lone Star contends that a stay of the CAAPP
    permit is necessary to protect its right to appeal permit conditions. The motion recites that IEPA
    has no objection to the motion. The Board grants Lone star’s motion to stay effectiveness of
    CAAPP permit until the Board’s final action in this matter or until the Board orders otherwise.
     
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on January 9, 2003, by a vote of 5-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     

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