ILLINOIS POLLUTION CONTROL BOARD
    June 7, 2007
    LONE STAR INDUSTRIES, INC.,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 07-112
    (Permit Appeal - Air)
    ORDER OF THE BOARD (by N.J. Melas):
    On May 15, 2007, Lone Star Industries, Inc. (Lone Star) timely filed a petition asking the
    Board to review an April 6, 2007 determination of the Illinois Environmental Protection Agency
    (Agency).
    See
    415 ILCS 5/40(a)(1) (2004); 35 Ill. Adm. Code 105.404. Lone Star seeks review
    of certain conditions the Agency attached to its grant of a construction permit (number
    06120047) to construct a new hopper and conveyor, and authorize an associated increase in
    material throughput for the existing finish mill operations at the facility. Lone Star owns and
    operates a Portland cement manufacturing facility at 490 Portland Avenue in Oglesby, LaSalle
    County. For the reasons below, the Board accepts the petition for review and grants Lone Star’s
    motion to stay the effectiveness of the contested conditions at issue in this appeal.
    Under the Environmental Protection Act (415 ILCS 5 (2004)), 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 5/4, 5, 40(a)(1) (2004); 35 Ill.
    Adm. Code 105.Subpart D. In this case, Lone Star appeals on the grounds that the Agency
    included conditions in the permit that are not required by the Act (415 ILCS 5 (2004)) or Board
    regulations and are not necessary to prevent noncompliance with, or accomplish the purposes of,
    the Act or Board regulations. Lone Star’s petition meets the content requirements of 35 Ill.
    Adm. Code 105.210. The Board accepts the petition for hearing.
    Lone Star has the burden of proof. 415 ILCS 5/40(a)(1) (2004);
    see also
    35 Ill. Adm.
    Code 105.112(a). Hearings “will be based exclusively on the record before the Agency at the
    time the permit or decision was issued.” 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),
    aff’d sub nom.
    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) (2004)), which only the Lone Star may extend by
    waiver (
    see
    35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision
    deadline, the petitioner “may deem the permit issued” absent the contested conditions. 415 ILCS
    5/40(a)(2) (2004). Currently, the decision deadline is October 5, 2007 (the 120th day after June
    7, 2007).
    See
    35 Ill. Adm. Code 105.114. The Board meeting immediately before the decision
    deadline is scheduled for October 4, 2007.
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by July 9, 2007, which is the first business day after 30 days after
    Lone Star filed the petition. 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. 35 Ill. Adm. Code 105.116. The record must comply with the content
    requirements of 35 Ill. Adm. Code 105.212(b).
    Accompanying the petition for review, Lone Star filed a motion to stay the effectiveness
    of the contested permit conditions (Mot.). To date, the Agency has not responded to the motion.
    Accordingly, the Agency has waived any objection to the Board granting the motion for stay. 35
    Ill. Adm. Code 101.500(d).
    The Board’s procedural rules provide that a motion 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 asserts that permit conditions 2a, 2b, and 8 of the construction permit are
    not clear and require Lone Star to incur costs for activities that are redundant and overly
    burdensome. Mot. at 2.
    Lone Star’s motion contends that a stay of the contested permit conditions is necessary to
    prevent irreparable harm to Lone Star and to protect its appeal rights. Mot. at 2. Lone Star also
    argues that it has a probability of success on the merits and lacks an adequate remedy at law.
    Id
    .
    Finally, Lone Star claims that the Agency, the public, and the environment will not suffer harm if
    a stay is granted.
    The Board grants Lone Star’s motion to stay the effectiveness of permit conditions 2a,
    2b, and 8 until the Board takes final action in this appeal or until the Board orders otherwise.
    IT IS SO ORDERED.
    I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
    the Board adopted the above order on June 7, 2007, by a vote of 4-0.
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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