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

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