ILLINOIS POLLUTION CONTROL BOARD

April

24, 1986

ILLINOIS POWER COMPANY

(Wood River

Power Plant),

Petitioner,

v.

)

PCB 85—84

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD

(by

3.

D.

Dumelle):

This matter comes before

the Board upon the filing

of

a

motion

for Interim Order on behalf

of the Illinois Power Company

(IPC)

on April

14,

1986.

The Illinois Environmental Protection

Agency (Agency) responded to that motion on April

22,

1986,

and

IPC filed

a motion for leave

to file a reply and

a reply on April

23,

1986.

The motion

for leave

to file

is hereby granted.

In short,

IPC contends

that this matter is controlled

by the

Board’s decision

in Illinois Poker Company

(Hennepin)

v.

Illinois

Environmental Protection Agency, PCB 85—119

(March 27,

1986) and

requests that the Board reaffirm its Hennepin decision and issue:

(1)

an order which vacates the contested condition

and

remands

the Permit with instructions that

it be

reissued

in accordance with the law and the Board’s

findings and holdings;

or

(2)

an

interim order which contains these findings and

holdings,

but which reserves the remand until

after

hearing

is held and which limits

the scope of

the

hearing

to comments from the public;

or

in the final

altetnative,

(3)

an interim order

which limits the scope of the hearing

to testimony and evidence concerning these

issues

and

public comment,

and excludes testimony and evidence

from the parties concerning the merits of the contested

conditions.

The Agency,

on the other hand,

argues that Hennepin was wrongly

decided,

that issues of fact remain,

and that

a

“dialogue before

issuance” provided IPC with

“those rights afforded by the

Illinois Environmental Protection Act;

the Administrative

69-231

---

—2—

Procedure Act;

the Board

rules and applicable Federal

Regulations.”

The Agency also asserts

that the right to written

comments was waived

by IPC through

its course of conduct.

The right

to a hearing under Section 40

of the Illinois

Environmental Protection Act runs

as much

to the Agency

as

it

does

to

IPC.

While

this case appears

to

be

on all fours with the

Hennepin decision,

it also appears that there are issues

of fact

which are properly the subject of hearing, despite IPC’s

continued assertions

to the contrary.

Further, given

that those

facts could

serve

to distinguish

this case from Henriepin which

could result

in the

Board’s reaching

the substantive

issues,

there does not appear to be

a basis for limiting the scope of

the

public hearing.

The Board hereby denies

IPC’s requested relief.

IT

IS SO ORDERED.

Board Member

3. Anderson dissented.

I,

Dorothy

M. Gunn, Clerk

of the Illinois Pollution Control

Board,

hereb

certify that the

abo,ve Order was adopted

on

the

_____________

day of

~

,

1986 by

a vote

of

______________.

~

~/

‘~,

~

Dorothy M. Guñn,

Clerk

Illinois Pollution Control Board

69-232