ILLINOIS POLLUTION CONTROL BOARD
July 23, 2009
AMERENUE and RACCOON CREEK
POWER PLANT,
Petitioners,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 09-98
(CAAPP Permit Appeal - Air)
ORDER OF THE BOARD (by G.T. Girard):
On April 24, 2009, Amerenue and Raccoon Creek Power Plant (Amerenue) timely filed a
petition (Pet.) asking the Board to review a March 20, 2009, determination of the Illinois
Environmental Protection Agency (Agency).
See
415 ILCS 5/40.2(a) (2006); 35 Ill. Adm. Code
101.300(b), 105.302(e). The Agency’s determination concerns Amerenue’s combustion turbines
at Raccoon Creek Power Plant, which is an electric generating station located at 676 Cypress
Drive, Flora, Clay County. Amerenue appeals on several grounds including that that numerous
conditions within the renewed permit are arbitrary, capricious, unnecessary, unauthorized by
law, unreasonable, or vague. Pet. at 3-8. Amerenue challenges the inclusion of these conditions
and asks the Board to stay their effect until ultimately ruling on the merits.
Id
. at 8. On May 7,
2009, the Board accepted the permit appeal for hearing, but reserved ruling on the motion to
stay.
In Amerenue’s request for partial stay, Amerenue argues “[h]istorically, the Board has
granted partial stays in permit appeals where a petitioner has so requested.” Pet. at 2 (citations
omitted). Amerenue asks “that the Board exercise its inherent discretionary authority to grant a
partial stay of the CAAPP permit, staying only those conditions or portions of conditions
indicated in Exhibit 2,
i.e.,
Conditions 3.1.3, 4.0, 5.6.2, 5.7.2, 5.9.2, 7.1.3(f)(iv), 7.1.3(g),
7.1.5(a)(iii)(A), 7.1.6(b), 7.1.6(f), 7.1.8(a)(iii), 7.1.9(n), 7.1.9(0), 7.1.10(e), 7.1.12(e)(ii), and 7.2
during the pendency of this appeal.” Pet. at 3,
see
Exh. 2. Exhibit 2 to the petition is a
“redlined” version of the permit that indicates the conditions or parts of the conditions Amerenue
seeks to stay.
Id
.
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 Amerenue’s request for a partial
stay.
2
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
permit conditions.” The Board noted that 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 Amerenue’s request for partial stay and Amerenue’s exhibit 2,
which is entitled “Redliened Version through Section 8”. The Board notes that Exhibit 2 strikes
the all or part of the permit conditions 3.1.3, 4.0, 5.6.2, 5.7.2, 5.9.2, 7.1.3(f)(iv), 7.1.3(g),
7.1.5(a)(iii)(A), 7.1.6(b), 7.1.6(f), 7.1.8(a)(iii), 7.1.9(n), 7.1.9(0), 7.1.10(e), 7.1.12(e)(ii), and 7.2.
See
Exh. 2.
The Board grants the requested partial stay and permit conditions 3.1.3, 4.0, 5.6.2, 5.7.2,
5.9.2, 7.1.3(f)(iv), 7.1.3(g), 7.1.5(a)(iii)(A), 7.1.6(b), 7.1.6(f), 7.1.8(a)(iii), 7.1.9(n), 7.1.9(0),
7.1.10(e), 7.1.12(e)(ii), and 7.2, are stayed as requested by Amerenue. The stay remains in effect
until the Board takes final action on the permit appeal or until the Board orders otherwise.
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 23, 2009, by a vote of 5-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
