ILLINOIS POLLUTION CONTROL BOARD
August 23, 2007
MIDWEST GENERATION, LLC, WILL
COUNTY GENERATING STATION,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 08-9
(Permit Appeal - Air)
ORDER OF THE BOARD (by A.S. Moore):
On July 20, 2007, Midwest Generation, LLC, Will County Generating Station (Midwest
Generation), filed a petition (Pet.) asking the Board to review a June 15, 2007 determination of
the Illinois Environmental Protection Agency (Agency).
See
415 ILCS 5/40(a)(1) (2006); 35 Ill.
Adm. Code 105.206(a). The Agency issued a construction permit with conditions for Midwest
Generation’s electric generation facility located at Romeoville, Will County. Midwest
Generation appeals on the grounds that the Agency has inappropriately included conditions.
Midwest Generation also requested that the Board grant a partial stay of the construction permit
by staying specified portions of eight conditions. In an order dated July 26, 2007, the Board
accepted Midwest Generation petition for hearing but reserved ruling on the requested stay
pending the Agency’s response.
In its request for a partial stay, Midwest Generation argues that, “[h]istorically, the Board
has granted partial stays in permit appeals where a petitioner has so requested.” Pet. at 3-4
(citations omitted). Stressing the risk that it will suffer irreparable harm and that the
environment will not benefit from improved pollution control, Midwest Generation asks “that the
Board exercise its inherent discretionary authority to grant a partial stay of the construction
permit . . . .”
Id
. at 4. Specifically, Midwest Generation seeks to stay specified portions of
Conditions 2, 4(a)(ii), 6(b), 7(a), 8(a)(i), 8(c)(ii), 8(c)(vii), and 9, as indicated in Exhibit 3 filed
with its petition.
Id
.;
see also id
., Exh. 3.
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 hearing officer in its disposition of the motion.” 35 Ill.
Adm. Code 101.500(d). The Agency has filed no response to Midwest Generation’s request for
a partial stay.
In 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
2
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."
Id
. (citations
omitted). The Board 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."
Id
.
The Board has reviewed Midwest Generation’s Exhibit 3, entitled “Redlined Permit
Reflecting Provisions Midwest Generation Requests Be Stayed.” Pet., Exh. 3. The Board notes
that Exhibit 3 strikes all or part of Conditions 2, 4(a)(ii), 6(b), 7(a), 8(a)(i), 8(c)(ii), 8(c)(vii), and
9 of Midwest Generation’s construction permit.
See id
. On the basis of that review, and in the
absence of any response to the request from the Agency, the Board grants Midwest Generation'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 3 to Midwest Generation'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 3 to Midwest Generation'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 August 23, 2007, by a vote of 4-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
Board Attachment A
Board Attachment A
Board Attachment A
