ILLINOIS POLLUTION CONTROL BOARD
    August 21, 2008
    DYNEGY MIDWEST GENERATION, INC.
    (BALDWIN ENERGY COMPLEX),
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 09-9
    (Permit Appeal - Air)
    ORDER OF THE BOARD (by N.J. Melas):
    By order of August 7, 2008, the Board accepted for hearing the July 29, 2008 petition for
    review (Pet.) of a June 19, 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, with
    conditions, authorizing the installation of a baghouse, scrubber, sorbent injection systems, and
    associated booster fans for Unit 1 and Unit 2 boilers at the Baldwin Energy Complex, located in
    Baldwin, Randolph County.
    Dynegy appeals many permit conditions it alleges the Agency has inappropriately
    included, citing a variety of grounds. In the body of its petition, Dynegy includes a request for
    stay of contested permit conditions. Pet. at 3-5, and Exh. 2.
    In its August 7, 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).
    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 (b)(i), 1.4(a),
    1.6-1 (a)(iii), 1.6-2(a)(ii), 1.7(e)(v), 1.7(e)(vii), 1.7(e)(viii), 1.8(b), 1.9-1, 1.9-
    2(a)(i), 1.9-2(a)(ii), 1.9-2(a)(iii)(A),1.9-2(b), 1.9-2(c), 1.9-2(d), 1.9-3, 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 4-5.
    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 (consol.), 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 July 29, 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 August 21, 2008, by a vote of 4-0.
    ___________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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