ILLINOIS POLLUTION CONTROL BOARD

PETITION FOR REVIEW

ILLINOIS POLLUTION CONTROL BOARD

MIDWEST GENERATION, LLC –

POWERTON GENERATING STATION,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

(Permit Appeal -Air)

ORDER OF THE BOARD (by A.S. Moore):

On April 9, 2007, Midwest Generation, LLC – Powerton Generating Station (Midwest)

timely filed a petition (Pet.) asking the Board to review a March 5, 2007 determination of the

Illinois Environmental Protection Agency (Agency).

415 ILCS 5/40(a)(1) (2000); 35 Ill.

Adm. Code 105.206(a). The Agency issued a construction permit with conditions for Midwest’s

electric generating station at 13082 Manito Road in Pekin, Tazewell County. In addition,

Midwest seeks a partial stay encompassing specified conditions in the construction permit.

PETITION FOR REVIEW

Midwest appeals on the grounds that the Agency is imposing through a construction

permit conditions that have been appealed in a CAAPP permit appeal before the Board’s

determination on those conditions. Pet. at 5, 6-7;

Midwest Generation, LLC – Powerton

Generating Station v. IEPA, PCB 06-59. Midwest also appeals on the grounds that the Agency

is inappropriately imposing New Source Performance Standards for Coal Handling through the

construction permit. Pet. at 5, 10-12;

40 C.F.R. 60.Subpart Y. Midwest also appeals on the

grounds that the Agency is imposing requirements that are related to, but not required or

authorized by, Prevention of Significant Deterioration regulations. Pet. at 5, 12-14;

C.F.R. 52.21. Midwest’s petition meets the content requirements of 35 Ill. Adm. Code 105.210.

The Board accepts the petition for hearing.

Midwest has the burden of proof. 415 ILCS 5/40(a)(1) (2004);

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 (

ILCS 5/40(a)(2) (2004)), which only Midwest may extend by waiver (

35 Ill. Adm. Code

101.308). If the Board fails to take final action by the decision deadline, Midwest “may deem

the permit issued.” 415 ILCS 5/40(a)(2) (2004). Currently, the decision deadline is August 7,

35 Ill. Adm. Code 105.114. The Board meeting immediately before the decision

deadline is scheduled for July 26, 2007.

Unless the Board or the hearing officer orders otherwise, the Agency must file the entire

record of its determination by Wednesday, May 9, 2007, which is 30 days after Midwest 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).

REQUEST FOR PARTIAL STAY

Midwest argues that, “[h]istorically, the Board has granted partial stays in permit appeals

where a petitioner has so requested.” Pet. at 4 (citations omitted). Stressing the risk that it will

suffer irreparable harm and that the environment will not benefit from improved pollution

control, Midwest asks “that the Board exercise its inherent discretionary authority to grant a

partial stay of the construction permit . . . .” Pet. at 5. Specifically, Midwest seeks to stay only

certain portions of Conditions 3, 6(b), 6(c), 8(a)(i), 8(a)(ii)(B), 9, 10(a), 10(d)(ii), 10(d)(vii),

10(f), 12(a), 12(b)(ii), and 12(c), as indicated in Exhibit 4 filed with its petition. Pet. at 5,

Pet., Exh. 4. Midwest claims that “[t]he Agency has issued a permit for the construction and

operation of the same equipment for Midwest Generation’s Crawford Generating Station without

the contested language included.” Pet. at 4. Midwest further claims that the Board has similarly

stayed conditions in the recent past. Pet. at 5, citing Midwest Generation, LLC – Will County

Generating Station v. IEPA, PCB 06-156, slip op. at 6 (July 20, 2006). Alternatively, Midwest

requests, “if the Board believes that it must stay the entirety of an appealed condition rather than

only portions of the conditions where so indicated in Exhibit 4,” that the Board stay the

conditions listed above in their entirety. Pet. at 5.

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 nearing office in its disposition of the motion.” 35 Ill.

Adm. Code 101.500(d). The Agency has filed no response to Midwest’s request for a partial

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 it "has previously granted or denied discretionary stays in

permit appeals, both when the Agency did and did not consent to such stays."

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."

The Board has reviewed Midwest’s Exhibit 4, entitled “Redlined Version of the

Construction Permit Issued to the Powerton Generating Station Identifying Those Portions of the

Permit that Midwest Generation Requests Be Stayed During Pendency of this Appeal.” Pet.,

Exh. 4. The Board notes that Exhibit 4 strikes all or part of Conditions 3, 6(b), 6(c), 8(a)(i),

8(a)(ii)(B), 9, 10(a), 10(d)(ii), 10(d)(vii), 10(f), 12(a), 12(b)(ii), and 12(c) of Midwest’s

construction permit.

. On the basis of that review and consideration, and in the absence of

any response to the request from the Agency, the Board grants Midwest's request for a stay of the

contested conditions in its construction permit, as those contested conditions are reflected in the

edited permit filed as Exhibit 4 to Midwest's petition for review and request for stay. The partial

stay remains in effect until the Board takes final action on the construction permit appeal, or until

the Board orders otherwise.

The edited permit filed as Exhibit 4 to Midwest's petition for review and request for stay

indicates the scope of the partial stay granted by the Board as plainly as any summary the Board

might provide. Accordingly, the Board incorporates that document into this order. For the

parties' convenience, that document is attached to this order below as Attachment A.

IT IS SO ORDERED.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above order on May 3, 2007, by a vote of 4-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board