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

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