ILLINOIS POLLUTION CONTROL BOARD
    May 15, 2008
    DYNEGY MIDWEST GENERATION, INC.
    (BALDWIN ENERGY COMPLEX),
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 08-66
    (Permit Appeal - Air)
    ORDER OF THE BOARD (by N.J. Melas):
    By order of April 17, 2008, the Board accepted for hearing the April 9, 2008 petition for
    review (Pet.) of a March 3, 2008 construction permit issued to Dynegy Midwest Generation, Inc.
    (Dynegy) by the Illinois Environmental Protection Agency (Agency).
    See
    415 ILCS 5/40(a)(1)
    (2006); 35 Ill. Adm. Code 105.206(a). The Agency granted Dynegy a construction permit for
    installation of a baghouse, scrubber, and sorbent injection control system for Unit 3 at the
    Baldwin Energy Complex located at 10901 Baldwin Road, Baldwin, Randolph County.
    Dynegy appeals many permit conditions it alleges the Agency has inappropriately
    included, citing a variety of grounds:
    One category addresses inclusion of provisions for which the Agency has no
    underlying authority to require. 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. Dynegy also appeals provisions that were appealed in the
    CAAPP [Clean Air Act Permit Program] appeal, PCB 06-063, or are otherwise
    CAAPP-related. Dynegy objects to certain testing, recordkeeping, and reporting
    provisions in the permit and has other general objections. Pet. at 5.
    In the body of its petition, Dynegy includes a request for partial stay of the permit. (Pet.
    at 3-5, and Exh. 2. In its April 17, 2008 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 3-4 (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 4. Specifically,
    Dynegy requests that the Board:
    grant a partial stay of the construction permit, staying only those conditions or
    portions of conditions indicated in Exhibit 2, i.e., Conditions 1.1(a), 1.2(b), 1.3,
    1.4(a) Notes, 1.5, 1.6(a)(i), 1.6(a)(i) Note, 1.6(a)(ii), 1.6(a)(ii) Note, 1.6(a)(iv),
    1.7(a)(i), 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, 1.9-4, 1.10-1, and 1.10-2. 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
    . at 3-4.
    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, as 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
    Baldwin Energy Complex. The Board stays those contested conditions and portions of
    conditions as reflected in the edited permit filed as Exhibit 2 to Dynegy’s April 9, 2008 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 May 15, 2008, by a vote of 4-0.
    ___________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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