ILLINOIS POLLUTION CONTROL BOARD
    September 20, 2007
    MIDWEST GENERATION, LLC, FISK
    GENERATING STATION,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 08-18
    (Permit Appeal - Air)
    ORDER OF THE BOARD (by A.S. Moore):
    On August 23, 2007, Midwest Generation, LLC, Fisk Generating Station (Midwest
    Generation), filed a petition (Pet.) asking the Board to review a June 19, 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 1111 West Cermak Road, Chicago, Cook
    County. Midwest Generation appeals on the ground 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
    September 3, 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 5
    (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 5-6. Specifically, Midwest Generation seeks to stay specified portions of
    Conditions 1(b)(ii), 2(a), 2(a) Note, 4, 5(a), 5(b), 5(b)(i), 5(c), and 6, as indicated in Exhibit 2
    filed with its petition.
    Id
    .;
    see also id
    ., Exh. 2.
    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 2, entitled “Fisk Construction
    Permit, redlined to indicate the specific language Midwest Generation requests be stayed.” Pet.,
    Exh. 3. The Board notes that Exhibit 2 strikes all or part of Conditions 1(b)(ii), 2(a), 2(a) Note,
    4, 5(a), 5(b), 5(b)(i), 5(c), and 6 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 2 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 2 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 September 20, 2007, by a vote of 4-0.
    ___________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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