ILLINOIS POLLUTION CONTROL BOARD
    March 6, 2003
     
    LONE STAR INDUSTRIES, INC.,
     
    Petitioner,
     
    v.
     
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
     
    Respondent.
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    PCB 03-94
    (CAAPP Permit Appeal)
     
    ORDER OF THE BOARD (by N.J. Melas):
     
    On January 28, 2003, the Illinois Environmental Protection Agency (Agency) filed a
    motion to dismiss this petition for failure to state a claim upon which relief can be granted
    (Mot.). The Agency issued a Clean Air Act Permit Program (CAAPP) operating permit and
    Title I permit to Lone Star Industries, Inc. (Lone Star) on November 22, 2002. The permit
    authorized the operation of Portland Cement manufacturing at the Oglesby, Illinois facility. On
    December 27, 2002, Lone Star filed this petition for review challenging the Agency’s CAAPP
    permitting decision. Lone Star specifically challenges certain conditions of the permit that Lone
    Star claims result in inconsistencies and actual conflicts within the permit itself. On
    February 10, 2003, Lone Star responded to the Agency’s motion to dismiss (Resp.).
     
    The Agency issued a CAAPP permit to Lone Star for its Portland Cement manufacturing
    facility in Oglesby. The Oglesby facility is classified as a major source for purposes of Title V
    of the Clean Air Act and Section 39.5 of the Environmental Protection Act (Act). Lone Star
    appeals on the following grounds: (1) the Agency did not give Lone Star an opportunity to
    review the draft permit prior to its public notice; (2) there are several inconsistencies and
    conflicts between the conditions of the CAAPP permit and the regulations and permits
    referenced therein (Lone Star specifically refers to conditions 7.1.3(c), (d), and (e), and Section
    7.1.6(a) of the CAAPP permit); and (3) the Agency did not include revisions to special
    conditions discussed between Lone Star and the Agency and contained in several of the
    previously issued State Operating and Construction Permits in the CAAPP permit.
     
    The Agency moves to dismiss Lone Star’s petition on the grounds that it does not meet
    the content requirements of the Board’s procedural rules, 35 Ill. Adm. Code 105.304. The
    Agency claims that Lone Star has failed to: (1) plead facts sufficient to enable the Agency to
    prepare an adequate legal defense; and (2) state a cause of action. The Board denies the
    Agency’s motion and directs the Agency to file the entire record of the CAAPP permit
    application with the Board.
     
     
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    MOTION TO DISMISS
     
    For purposes of ruling on a motion to dismiss, all well plead facts contained in the
    pleading must be taken as true and all inferences from them must be drawn in favor of the
    nonmovant. People v. Stein Steel Mills Services, Inc., PCB 02-1 (Nov. 15, 2001). A petition
    should not be dismissed for failure to state a claim unless it clearly appears that no set of facts
    could be proven under the pleadings which would entitle petitioner to relief. Shelton v. Crown,
    PCB 96-53 (May 2, 1996).
     
    THE PARTIES’ ARGUMENTS
     
    Failure to Plead Facts Sufficient to Allow the Agency to Prepare a Legal Defense
     
    The Agency argues that Lone Star has failed to plead facts sufficient to allow the Agency
    to prepare an adequate legal defense. The Agency relies on Section 2-615 of the Illinois Code of
    Civil Procedure (735 ILCS 5.2-612(b)) and the standard of review found in caselaw that
    discusses the standard Illinois courts apply when considering a motion to dismiss a complaint.
    Mot. at par. 10. The Agency contends that Lone Star’s petition is “vague and elusive” because it
    does not specify any particular condition or part of the CAAPP permit that is being contested in
    this appeal.
    Id
    .
     
    In response to the Agency’s argument that Lone Star failed to plead sufficient facts, Lone
    Star argues that the Agency applies the wrong legal standard. Resp. at 7. Lone Star contends
    that at issue here is the sufficiency of a petition for review in an appeal of an administrative
    decision, not a complaint subject to the civil practice requirements of Illinois courts.
    Id
    . Lone
    Star emphasizes that the Board has recognized that: “case law is consistent in finding that
    pleading requirements for administrative review are less exacting than for other causes of
    action.” Mueller v. Board of Fire and Police Commissioners of the Village of Lake Zurich, 267
    Ill. App. 3d 726, 643 N.E.2d 255 (2nd Dist. 1994).
     
    Furthermore, Lone Star notes that Section 105.304(a) of the Board’s procedural rules
    specifies exactly what must be included in a petition for review of a CAAPP permit. Resp. at 3.
    The petition must include a description of the CAAPP source for which the permit is sought, the
    part of the Agency’s decision to be reviewed, a reason why the Agency’s decision was in error,
    and any other materials upon which the Agency relies in its petition. 35 Ill. Adm. Code
    105.304(a). Finally, Lone Star argues that its petition meets all the factual and legal
    requirements under both the Board’s standard of review of administrative decisions and Board
    procedural rules. Resp. at 8, n. 3.
     
    Failure to State a Cause of Action
     
    The Agency argues that Lone Star did not seek an appeal from permit conditions with
    requisite specificity. Mot. at par. 6. Section 105.304(a)(2) of the Board’s procedural rules
    provides: “The petition must include: a statement of the Agency’s decision . . . to be reviewed.”
    The Agency contends that because Lone Star failed to identify the sources of the alleged
     
    3
    “inconsistencies” with respect to the CAAPP permit, the petition is insufficient as a matter of
    law. Mot. at par. 11.
     
    Lone Star argues that it in fact identified the particular parts and conditions of the
    CAAPP permit that it contests in this appeal. Resp. at 4. Lone Star reiterated that it opposes
    specifically the conditions set forth in Sections 7.1.3(c), (d), and (e), as well as Section 7.1.6(a)
    of the CAAPP permit.
    Id
    . Lone Star argues these conditions are not supported by law or the
    record, and create inconsistencies and actual conflicts within the CAAPP permit itself. Pet. at
    par. 5; Resp. at 4. Lone Star contends that these factual allegations satisfy the Board’s petition
    content requirements and, thus, Lone Star’s petition is legally sufficient.
     
    DISCUSSION
     
    The Board agrees that the proper standard of review applicable to this petition for appeal
    is that found in Board precedent and the Board’s procedural rules. The Board’s procedural rules
    require only a description of the CAAPP source for which the permit is sought, the parts of the
    Agency’s decision to be reviewed, an explanation as to why the Agency’s decision was in error,
    and any other materials on which the petitioner relies in its petition. 35 Ill. Adm. Code
    105.304(a).
     
    Lone Star identified the CAAPP source for which the permit is sought as its Oglesby
    facility. Pet. at 1. Lone Star also identified the parts of the Agency’s decision to be reviewed:
    permit conditions 7.1.3(c), (d), and (e) and 7.1.6(a) and the previously issued State Operating and
    Construction Permits incorporated by reference into the CAAPP permit. Pet. at 2. Lone Star
    submitted comments during the 45-day public comment period. Pet. Exh. A. Most of the
    suggestions that the Agency did not incorporate were suggestions that exempted the North
    Quarry at the Oglesby facility from the requirements of 40 C.F.R. 60 Subpart OOO, Standards of
    Performance for Nonmetallic Mineral Processing Plants.
    See
    Pet. Exh. A, B. Lone Star
    explained that the Agency’s permitting decision was in error because it created conflicts between
    the CAAPP permit conditions and referenced regulations. Pet. at 2. Finally, Lone Star attached
    materials to which it referred in its petition for review, including Lone Star’s comments and the
    CAAPP permit for its Oglesby facility. Pet. Exh. A, B.
     
    The Board finds that Lone Star pled the facts of its appeal with adequate specificity
    meeting all of the requirements set forth by Section 105.304(a)(2) of the Board’s rules. The
    Board expects that additional facts and evidence regarding the alleged inconsistencies and
    conflicts between the conditions of Lone Star’s various permits and the referenced regulations
    will be disclosed at hearing and in further pleadings. Accordingly, the Board denies the
    Agency’s motion to dismiss.
     
    The Agency was required to file an answer consisting of the entire Agency record of the
    CAAPP permit application including the CAAPP permit application, the hearing record, the
    CAAPP permit issuance letter and any correspondence with Lone Star concerning the CAAPP
    permit application within 30 days after service of the petition. 35 Ill. Adm. Code 105.302(f).
    The Board notes the Agency is late in filing the record and directs the Agency to file the record
    along with a motion to file
    instanter
    . 35 Ill. Adm. Code 105.116.
     
    4
     
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on March 6, 2003, by a vote of 6-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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