ILLINOIS POLLUTION CONTROL BOARD
    March 16, 2006
     
    MIDWEST GENERATION, LLC,
    WAUKEGAN GENERATING STATION,
     
    Petitioner,
     
    v.
     
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
     
    Respondent.
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    PCB 06-146
    (CAAPP Permit Appeal - Air)
     
    ORDER OF THE BOARD (by A.S. Moore):
     
    On March 13, 2006, Midwest Generation, LLC, Waukegan Generating Station (Midwest)
    timely filed a petition (Pet.) asking the Board to review a February 7, 2006 determination of the
    Illinois Environmental Protection Agency (Agency).
    See
    415 ILCS 5/40(a)(1) (2004); 35 Ill.
    Adm. Code 105.206(a). In the determination, the Agency issued a Clean Air Act Permit
    Program (CAAPP) permit with conditions. The CAAPP permit concerns Midwest’s electric
    generating station located at 410 East Greenwood Avenue, Waukegan, Lake County.
     
    Section 40.2(a) of the Environmental Protection Act (Act) (415 ILCS 5/40.2(a) (2004))
    allows several persons to appeal Agency CAAPP permit determinations: permit applicants;
    persons who participated in the Agency’s public comment process under section 39.5(8) of the
    Act (415 ILCS 5/39.5(8) (2004)); and persons who could obtain judicial review under section
    41(a) of the Act (415 ILCS 5/41(a) (2004)).
    See
    415 ILCS 5/40.2(a) (2004); 35 Ill. Adm. Code
    105.302(c). Midwest is the CAAPP permit applicant. Midwest challenges the CAAPP permit
    on numerous grounds.
    See generally
    Pet. at 7-64. The Board accepts the petition for hearing.
     
    Midwest has the burden of proof. 415 ILCS 5/40.2(a) (2004);
    see also
    35 Ill. Adm. Code
    105.112(a). Hearings will be scheduled and completed in a timely manner, consistent with the
    decision deadline (
    see
    415 ILCS 5/40.2(c) (2004)), which only Midwest may extend by waiver
    (
    see
    35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline,
    “the permit shall not be deemed issued; rather the petitioner shall be entitled to an Appellate
    Court order pursuant to Section 41(d) of this Act [415 ILCS 5/41(d) (2004)].” 415 ILCS
    5/40.2(c) (2004). Currently, the decision deadline is July 11, 2006, which is the 120th day after
    Midwest filed its petition.
    See
    35 Ill. Adm. Code 105.114. The Board meeting immediately
    before the decision deadline is scheduled for July 6, 2006.
     
    Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
    record of its determination by April 12, 2006, which is 30 days after Midwest filed the petition.
    35 Ill. Adm. Code 105.302(f). 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.
     
    2
    Adm. Code 105.116. The record must comply with the content requirements of 35 Ill. Adm.
    Code 105.212(b).
     
    In its petition, Midwest notes that
     
    consistent with the Board’s decisions on February 16, 2006, in other recent appeals of
    CAAPP permits regarding the effectiveness of appealed permits under Section 10-65(b)
    of the Illinois Administrative Procedure Act (“APA”), 5 ILCS 100/10-65, and the holding
    in
    Borg-Warner Corp. v. Mauzy
    , 427 N.E. 2d 415 (Ill. App. Ct. 3rd Dist. 1981) (“Borg-
    Warner”), the CAAPP permit issued by the Agency to Midwest Generation for the
    Waukegan Generating Station does not become effective until after a ruling by the Board
    on the permit appeal, and, in the event of a remand, until the Agency has issued the
    permit consistent with the Board’s order. Pet. at 6, citing Midwest Generation, LLC,
    Crawford Generating Station v. IEPA, PCB 06-56, slip op. at 7 (Feb. 16, 2006); Midwest
    Generation, LLC, Fisk Generating Station v. IEPA, PCB 06-57, slip op. at 7 (Feb. 16,
    2006); Midwest Generation, LLC, Joliet Generating Station v. IEPA, PCB 06-58, slip op.
    at 7 (Feb. 16, 2006); Midwest Generation, LLC, Powerton Generating Station v. IEPA,
    PCB 06-59, slip op. at 7 (Feb. 16, 2006); Midwest Generation, LLC, Will County
    Generating Station v. IEPA, PCB 06-60, slip op. at 7 (Feb. 16, 2006).
     
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on March 16, 2006, by a vote of 4-0.
     
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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