ILLINOIS POLLUTION CONTROL BOARD
August 7, 2008
DYNEGY MIDWEST GENERATION, INC.
(BALDWIN ENERGY COMPLEX)
Petitioner,
v.
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
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PCB 09-9
(Permit Appeal - Air)
ORDER OF THE BOARD (by N.J. Melas ):
On July 29, 2008, Dynegy Midwest Generation, Inc. (Dynegy) timely filed a petition
asking the Board to review a June 19, 2008 determination of the Illinois Environmental
Protection Agency (Agency).
See
415 ILCS 5/40(a)(1) (2006); 35 Ill. Adm. Code 101.300(b),
105.206(a). The Agency granted Dynegy a construction permit, with conditions, authorizing the
installation of a baghouse, scrubber, sorbent injection systems, and associated booster fans for
Unit 1 and Unit 2 boilers at the Baldwin Energy Complex, located at 10901 Baldwin Road, in
Baldwin, Randolph County. Additionally, Dynegy requests that the Board stay the effectiveness
of various contested permit conditions until the Board has rendered a final decision in the matter.
For the reasons below, the Board accepts the petition for review, but reserves ruling on the
requested 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 5/4, 5, 40(a)(1) (2006); 35 Ill.
Adm. Code 105. In this case, the Agency granted Dynegy a construction permit subject to
conditions. Dynegy appeals on the grounds that the Agency has inappropriately included
multiple permit conditions that exceed the scope of the Agency’s authority under the Act and its
applicable regulations. Dynegy’s petition meets the content requirements of 35 Ill. Adm. Code
105.210. The Board accepts the petition for hearing.
Dynegy 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.” 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.
2
Community Landfill Co. & City of Morris v. PCB & IEPA, 331 Ill. App. 3d 1056, 772 N.E.2d
231 (3rd Dist. 2002).
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 Dynegy may extend by waiver
(
see
35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline,
Dynegy “may deem the permit issued” absent the contested conditions.
See
415 ILCS 5/40(a)(2)
(2006). Currently, the decision deadline is November 26, 2008, which is the 120th day after the
Board received the petition.
See
35 Ill. Adm. Code 105.114. The Board meeting immediately
before the decision deadline is scheduled for November 20, 2008.
Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
record of its determination by August 28, 2008, which is the 30th day after the Board received
Dynegy’s petition.
See
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.
See
35 Ill. Adm. Code 105.116. The record must comply with the content
requirements of 35 Ill. Adm. Code 105.212(b).
Within the body of its petition, Dynegy has requested that the Board stay the
effectiveness of various conditions of the permit until the Board has rendered its final decision in
this matter. The Agency has not yet responded to this request.
See
35 Ill. Adm. Code
101.500(d). The Board reserves ruling on the issues relating to the requested stay pending any
response of the Agency.
IT IS SO ORDERED.
I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on August 7, 2008, by a vote of 4-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board