ILLINOIS POLLUTION CONTROL BOARD
September 20, 2007
MIDWEST GENERATION, LLC,
CRAWFORD GENERATING STATION,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 08-19
(Permit Appeal - Air)
ORDER OF THE BOARD (by A.S. Moore):
On August 23, 2007, Midwest Generation, LLC, Crawford Generating Station (Midwest
Generation), filed a petition (Pet.) asking the Board to review a June 18, 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 3501 South Pulaski 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 “Crawford
Construction Permit, redlined to indicate the specific language Midwest Generation requests be
stayed.” Pet., Exh. 2. 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
.
With only one exception, the Board grants the requested stay 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. Specifically, the Board notes that Midwest Generation has
neither appealed nor sought to stay Condition 5(b)(ii). However, that condition describing
records is rendered virtually meaningless without giving effect to the portion of the first
paragraph of Condition 5(b) requiring the permittee to maintain them. Accordingly, the Board
declines to stay the following portion of the first paragraph of Condition 5(b): “The Permittee
shall maintain the following records for the sorbent injection system:”. The Board notes that,
after declining to stay this language, the stay of Condition 5 is consistent with the stay of that
condition requested in PCB 08-18.
See
Midwest Generation, LLC – Fisk Generation Station v.
IEPA, PCB 08-18, Att. A (Sept. 20, 2007).
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. The Board has amended Condition 5 in that exhibit as
described in the preceding paragraph. Accordingly, the Board incorporates that document into
this order. For the parties' convenience, that document is attached to this order below as
Attachment A.
The partial stay remains in effect until the Board takes final action on the construction
permit appeal, or until the Board orders otherwise.
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