ILLINOIS POLLUTION CONTROL BOARD
    October 4, 2007
    DYNEGY MIDWEST GENERATION, INC.
    (HAVANA POWER STATION),
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    PCB 07-115
    (Permit Appeal – Air)
    ORDER OF THE BOARD (by N.J. Melas):
    By order of September 6, 2007, the Board accepted for hearing the August 22, 2007
    petition for review of an April 16, 2007 construction permit issued to Dynegy Midwest
    Generation, Inc. (Dynegy) by the Illinois Environmental Protection Agency (Agency). The
    Agency granted Dynegy a permit for construction and operation of a baghouse, scrubber, and
    sorbent injection control for units at the Havana Power Station located at 15260 N. State Route
    78, in Havana, Mason County.
    Dynegy challenges numerous permit conditions. Dynegy characterizes the issues on
    appeal as falling into several categories:
    One category addresses the manner in which the Agency has addressed the
    requirements of the Consent Decree applicable to Dynegy. A second category of
    issues concerns the Agency's treatment of the mercury rule adopted by the Board at
    35 Ill. Adm. Code Part 225. Additionally, the Agency has included unnecessary
    conditions and "notes" in the permit that should be deleted. Dynegy also appeals
    provisions that were appealed in the CAAPP [Clean Air Act Permit Program] appeal,
    PCB 06-071, or are otherwise CAAPP-related. Dynegy objects to certain testing,
    recordkeeping, and reporting provisions in the permit and has other general
    objections. Pet. at 6.
    In the body of its petition, Dynegy includes a request for partial stay of the contested
    conditions. Pet. at 4-6, and Ex. 2. In its September 6, 2007 order accepting the petition for
    hearing, the Board reserved ruling on the requested stay pending any Agency response. To date,
    the Board has received no response from the Agency regarding Dynegy’s request for a stay.
    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).
    2
    In its request for a partial stay, Dynegy notes that, “[h]istorically, the Board has granted
    partial stays in permit appeals where a petitioner has so requested.” Pet. at 4-5 (citations
    omitted). Stressing the risk that it will suffer irreparable harm and that the environment will not
    benefit from improved pollution control, Dynegy asks “that the Board exercise its inherent
    discretionary authority to grant a partial stay of the construction permit . . . .”
    Id
    . at 5-6.
    Specifically, Dynegy seeks to stay
    those conditions or portions of conditions indicated in Exhibit 2, i. e., Conditions 1.2(b),
    1.3(a), 1.3(b), 1.3(c) Note, 1.4(a), 1.4(a) Note, 1.5, 1.6(a), 1.6(b) Note, 1.6(b)(iii), 1.6(c),
    1.7(b)(ii)(B), 1.7(c), 1.7(e)(v), 1.7(e)(viii), 1.7(e) Note, 1.8(a), 1.8(c), 1.8 Note, 1.9-1,
    1.9-2, 1.9-3, 1.10-1, 1.10-2, and the paragraph following Condition 1.1 1. In the
    alternative, if the Board believes that it must stay the entirety of an appealed condition
    rather than only the portions of the condition where so indicated in Exhibit 2, Dynegy
    requests that the Board stay the entirety of each of the conditions identified in Exhibit 2.
    Id.
    The Board clearly has the authority to grant discretionary stays of the type requested
    here. 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
    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 the allegations in Dynegy’s stay request, as well as the specific
    language requested to be stayed and detailed in Exhibit 2 to Dynegy’s petition. On the basis of
    that review, and in the absence of any response to the request from the Agency, the Board grants
    Dynegy's request for partial stay of the contested conditions in the construction permit for the
    Havana Power plant. The Board stays those contested conditions and portions of conditions as
    reflected in the edited permit filed as Exhibit 2 to Dynegy’s August 22, 2007 petition for review
    and request for stay. Exhibit 2 is incorporated herein by reference as if fully set forth. 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 October 4, 2007, by a vote of 4-0.
    ___________________________________
    John T. Therriault, Assistant Clerk
    3
    Illinois Pollution Control Board

    Back to top