ILLINOIS POLLUTION CONTROL BOARD
    October 4, 2007
    MIDWEST GENERATION, LLC, WILL
    COUNTY GENERATING STATION,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 08-22
    (Permit Appeal - Air)
    ORDER OF THE BOARD (by A.S. Moore):
    On September 6, 2007, Midwest Generation, LLC, Will County Generating Station
    (Midwest Generation), filed a petition (Pet.) asking the Board to review an August 8, 2007
    determination of the Illinois Environmental Protection Agency (Agency).
    See
    415 ILCS
    5/40(a)(1) (2006); 35 Ill. Adm. Code 105.206(a). The Agency issued a construction permit with
    conditions for Midwest Generation’s electric generation facility located at 529 East 135th Road,
    Romeoville, Will County. Midwest Generation appeals on the ground that the Agency has
    inappropriately included conditions. Midwest Generation also requested that the Board grant a
    partial stay of the construction permit by staying specified conditions or portions of conditions.
    In an order dated September 20, 2007, the Board accepted Midwest Generation’s petition for
    hearing but reserved ruling on the requested stay pending the Agency’s response.
    In its request for a partial stay, Midwest Generation argues that, “[h]istorically, the Board
    has granted partial stays in permit appeals where a petitioner has so requested.” Pet. at 5
    (citations omitted). Stressing the risk that it will suffer irreparable harm and that the
    environment will not benefit from improved pollution control, Midwest Generation asks “that the
    Board exercise its inherent discretionary authority to grant a partial stay of the construction
    permit . . . .”
    Id
    . at 5-6. Specifically, Midwest Generation seeks to stay specified portions of
    Conditions 1(b)(ii), 2(a), 2(a) Note, 4, 5(a), 5(b), 5(b)(i), 5(c), and 6, as indicated in Exhibit 2
    filed with its petition.
    Id
    .;
    see also id
    ., Exh. 2.
    Section 101.500(d) of the Board’s procedural rules provides that, “[w]ithin 14 days after
    service of a motion, a party may file a response to the motion. If no response is filed, the party
    will be deemed to have waived objection to the granting of the motion, but the waiver of
    objection does not bind the Board or the hearing officer in its disposition of the motion.” 35 Ill.
    Adm. Code 101.500(d). The Agency has filed no response to Midwest Generation’s request for
    a partial stay.
    In Community Landfill Co. and City of Morris v. IEPA, PCB 01-48, 01-49, slip op. at 4
    (Oct. 19, 2000), the Board found "that it has the authority to grant discretionary stays from
    2
    permit conditions." The Board noted it "has previously granted or denied discretionary stays in
    permit appeals, both when the Agency did and did not consent to such stays."
    Id
    . (citations
    omitted). The Board elaborated that "[t]he permit appeal system would be rendered meaningless
    in many cases, if the Board did not have the authority to stay permit conditions."
    Id
    .
    The Board has reviewed Midwest Generation’s Exhibit 2, entitled “Will County
    Construction Permit, redlined to indicate the specific language Midwest Generation requests be
    stayed.” Pet., Exh. 2. The Board notes that Exhibit 2 strikes all or part of Conditions 1(b)(ii),
    2(a), 2(a) Note, 4, 5(a), 5(b), 5(b)(i), 5(c), and 6 of Midwest Generation’s construction permit.
    See id
    .
    With only one exception, the Board grants the requested stay as those contested
    conditions are reflected in the edited permit filed as Exhibit 2 to Midwest Generation's petition
    for review and request for stay. Specifically, the Board notes that Midwest Generation has
    neither appealed nor sought to stay Condition 5(b)(ii). However, that condition describing
    records is rendered virtually meaningless without giving effect to the portion of the first
    paragraph of Condition 5(b) requiring the permittee to maintain them. Accordingly, the Board
    declines to stay the following portion of the first paragraph of Condition 5(b): “The Permittee
    shall maintain the following records for the sorbent injection system:”.
    The edited permit filed as Exhibit 2 to Midwest Generation's petition for review and
    request for stay indicates the scope of the partial stay granted by the Board as plainly as any
    summary the Board might provide. The Board has amended Condition 5 in that exhibit as
    described in the preceding paragraph. Accordingly, the Board incorporates that document into
    this order. For the parties' convenience, that document is attached to this order as Attachment A.
    The partial stay remains in effect until the Board takes final action on the construction
    permit 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 October 4, 2007, by a vote of 4-0.
    ___________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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