ILLINOIS POLLUTION CONTROL BOARD
January 8, 2004
MIDWEST GENERATION, L.L.C.--
COLLINS GENERATING STATION,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 04-108
(Permit Appeal - Air)
ORDER OF THE BOARD (by J.P. Novak):
On December 31, 2003, Midwest Generation, L.L.C. (Midwest Generation) timely filed a
petition asking the Board to review a November 25, 2003 determination of the Illinois
Environmental Protection Agency (Agency).
See
415 ILCS 5/40(a)(1) (2002); 35 Ill. Adm. Code
105.206(a). Because the postmark date of the joint request is within the extended time for filing,
the petition was timely filed. 35 Ill. Adm. Code 101.300(b)(2), 105.404. The Agency approved
the application for a Clean Air Act Permit Program permit, with modifications, regarding
Midwest Generation’s steam electric generating facility at 4200 Pine Bluff Road, Morris, Grundy
County. Midwest Generation appeals on the grounds that the permit contains conditions that are
not acceptable to Midwest Generation, including provisions that are contrary to applicable law.
Midwest Generation’s petition meets the content requirements of 35 Ill. Adm. Code 105.210.
The Board accepts the petition for hearing.
Midwest Generation has the burden of proof. 415 ILCS 5/40(a)(1) (2002);
see also
35
Ill. Adm. Code 105.112(a). Hearings “will be based exclusively on the record before the Agency
at the time the permit or decision was issued.” 35 Ill. Adm. Code 105.214(a). Hearings will be
scheduled and completed in a timely manner, consistent with the decision deadline (
see
415
ILCS 5/40(a)(2) (2002)), which only Midwest Generation may extend by waiver (
see
35 Ill.
Adm. Code 101.308). If the Board fails to take final action by the decision deadline, Midwest
Generation “shall be entitled to an Appellate Court order pursuant to Section 41(d) of this Act
[415 ILCS 5/41(d) (2002)].” 415 ILCS 5/40.2(c) (2002). Currently, the decision deadline is
April 29, 2004 (the 120th day after December 31, 2003).
See
35 Ill. Adm. Code 105.114. The
Board meeting immediately before the decision deadline is scheduled for April 15, 2004.
Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
record of its determination by January 30, 2004, which is 30 days after Midwest Generation filed
the petition. 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. 35 Ill. Adm. Code 105.116. The record must comply with the content requirements of 35
Ill. Adm. Code 105.212(b).
2
With its petition, Midwest Generation submitted a request that the Board allow it to file a
reduced number of copies of attachments to its petition. Midwest Generation stated that it
attached a redlined copy of the comments it submitted to the Agency in response to the draft
permit. Midwest Generation asserts that the comments are 95 pages in length and also will be
submitted to the Board as part of the Agency record. Midwest Generation requests that the
Board allow it to file one original and four copies of the attachments.
See
35 Ill. Adm. Code
101.302(h) (2002). The Board hereby grants leave to file one original and four copies of the
attachments as requested.
Also with its petition, Midwest Generation submitted a request that the Board stay the
effectiveness of various conditions of the permit until the Board has rendered its final decision in
this matter. Midwest Generation asserts that compliance with the terms and conditions of the
permit on the date of permit issuance was impossible. Midwest Generation asserts that requiring
compliance without allowing sufficient time to review the permit and ensure compliance prior to
the effective date is arbitrary and capricious. The Agency has not yet responded to this request.
See
35 Ill. Adm. Code 101.500(d) (2002). The Board reserves ruling on the issues relating to the
requested stay pending the response of the Agency.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on January 8, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board