ILLINOIS POLLUTION CONTROL BOARD
    July 10, 2008
    KCBX TERMINALS COMPANY,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    PCB 08-103
    (Permit Appeal – Air)
    ORDER OF THE BOARD (by G.T. Girard):
    On June 27, 2008, KCBX Terminals Company (KCBX) timely filed a petition asking the
    Board to review a May 23, 2008 permit determination of the Illinois Environmental Protection
    Agency (Agency).
    See
    415 ILCS 5/40(a)(1) (2006); 35 Ill. Adm. Code 100.300(b), 105.206(a).
    The Agency’s determination concerns a joint construction and operating permit application made
    by KCBX for two conveyors at the company’s bulk material terminal. The facility is located at
    3259 East 100th Street, Chicago, Cook County. Additionally, on June 27, 2008, KCBX filed a
    motion to stay the effectiveness of the contested permit conditions. For the reasons below, the
    Board accepts the petition for review, but reserves ruling on the motion for stay.
    Under the Environmental Protection Act (Act) (415 ILCS 5 (2006)), 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 5/40(a)(1) (2006); 35 Ill. Adm.
    Code 105.Subpart B. In this case, the Agency granted with conditions the construction permit
    but denied the operating permit. KCBX appeals on the grounds that the Agency incorrectly
    denied the operating permit and included conditions in the construction permit that are not
    required by the Act or regulations, and are not necessary to correct, detect, or prevent
    noncompliance with, or to otherwise accomplish the purposes of the Act or regulations. KCBX’s
    petition meets the content requirements of 35 Ill. Adm. Code 105.210.
    The Board accepts the petition for hearing. KCBX has the burden of proof.
    See
    415
    ILCS 5/40(a)(1) (2006));
    see also
    35 Ill. Adm. Code 105.112(a). Hearings will be based
    exclusively on the record before the Agency at the time the Agency issued its permit decision.
    See
    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),
    afff’d sub nom
    . Community Landfill Co. & City of Morris v. PCB &
    IEPA, 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) (2006)), which only KCBX may extend by waiver
    (
    see
    35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline,
    KCBX may deem the requested permit issued.
    See
    415 ILCS 5/40(a)(2)(2006). Currently, the
    decision deadline is October 27, 2008, which is the first business day following the 120th day
    after the Board received the petition.
    See
    35 Ill. Adm. Code 101.300(a), 105.114. The Board
    meeting immediately before the decision deadline is scheduled for October 16, 2008.
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by July 28, 2008, which is the first business day following the 30th
    day after the Board received KCBX’s petition.
    See
    35 Ill. Adm. Code 101.300(a), 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).
    Accompanying KCBX’s petition for review is a motion to stay the effectiveness of
    contested construction permit conditions. The Board reserves ruling on the motion for stay to
    allow the Agency’s response time to run.
    See
    35 Ill. Adm. Code 101.500(d).
    IT IS SO ORDERED.
    I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
    Board adopted the above order on July 10, 2008, by a vote of 4-0.
    ___________________________________
    John Therriault, Assistant Clerk
    Illinois Pollution Control Board

    Back to top