ILLINOIS POLLUTION CONTROL BOARD
May 7, 2009
AMEREN ENERGY GENERATING
COMPANY and GRAND TOWER POWER
PLANT,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 09-101
(CAAPP Permit Appeal - Air)
ORDER OF THE BOARD (by G.T. Girard):
On April 24, 2009, Ameren Energy Generating Company and Grand Tower Power Plant
(Ameren) timely filed a petition (Pet.) asking the Board to review a March 20, 2009,
determination of the Illinois Environmental Protection Agency (Agency).
See
415 ILCS
5/40.2(a) (2006); 35 Ill. Adm. Code 101.300(b), 105.302(e). The Agency’s determination
concerns Ameren’s combustion turbines at Grand Tower Power Plant, which is an electric
generating station located at 1820 Power Plant Road, Grand Tower, Jackson County. For
reasons below, the Board accepts Ameren’s petition for hearing.
Section 39.5 of the Environmental Protection Act (Act) (415 ILCS 5/39.5 (2006)) sets
forth the Clean Air Act Permit Program (CAAPP), reflecting the requirements of Title V of the
federal Clean Air Act Amendments of 1990 (42 U.S.C. §§ 7661-7661f). Generally, a CAAPP
permit is designed to be a single, comprehensive document of all air pollution obligations that
apply to facility. The Agency decides whether to approve CAAPP permit applications, and
Agency decisions may be appealed to the Board.
See
415 ILCS 5/40.2(a) (2006); 35 Ill. Adm.
Code 105.Subpart C. In this case, the Agency granted a CAAPP renewal permit, subject to
conditions, for Ameren’s Grand Tower Power Plant.
Section 40.2(a) of the Act (415 ILCS 5/40.2(a) (2006)) allows several persons to appeal
Agency CAAPP permit determinations: permit applicants; persons who participated in the
Agency’s public comment process under Section 39.5(8) of the Act (415 ILCS 5/39.5(8) (2006));
and persons who could obtain judicial review under Section 41(a) of the Act (415 ILCS 5/41(a)
(2006)).
See
415 ILCS 5/40.2(a) (2006); 35 Ill. Adm. Code 105.302(c). Ameren is the CAAPP
permit applicant. Ameren appeals on several grounds including that that numerous conditions
within the renewed permit are arbitrary, capricious, unnecessary, unauthorized by law,
unreasonable, or vague. Pet. at 3-8. Ameren challenges the inclusion of these conditions and
asks the Board to stay their effect until ultimately ruling on the merits.
Id
. at 8. To date, the
Board has not received a response from the Agency regarding Ameren’s request for a stay. The
2
Board today reserves ruling on stay issues until the Agency has filed a response or the response
time has elapsed. 35 Ill. Adm. Code 101.500(d).
The Board accepts the petition for hearing. Ameren has the burden of proof.
See
415
ILCS 5/40.2(a) (2006); 35 Ill. Adm. Code 105.112(a). Hearings will be based exclusively on the
record before the Agency at the time the Agency issued its permit decision. Accordingly, though
the Board hearing affords petitioner the opportunity to challenge the Agency’s reasons for its
decision, information developed after the Agency’s decision typically is not admitted at hearing
or considered by the Board.
See
Alton Packaging Corp. v. PCB, 162 Ill. App. 3d 731, 738, 516
N.E.2d 275, 280 (5th Dist. 1987); Community Landfill Co. & City of Morris v. IEPA, PCB 01-
170 (Dec. 6, 2001),
aff’d sub nom.
Community Landfill Co. & City of Morris v. PCB & IEPA,
331 Ill. App. 3d 1056, 772 N.E.2d 231 (3rd Dist. 2002).
Hearings will be scheduled and completed in a timely manner, consistent with the
decision deadline (
see
415 ILCS 5/40.2(c) (2006)), which only Ameren may extend by waiver
(
see
35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision deadline,
“the permit shall not be deemed issued; rather, the petitioner shall be entitled to an Appellate
Court order pursuant to Section 41(d) of this Act [415 ILCS 5/41(d) (2006)].” 415 ILCS
5/40.2(c) (2006). Currently, the decision deadline is August 24, 2009 which is first business day
after the 120th day that the Board received the petition.
See
35 Ill. Adm. Code 105.114. The
Board meeting immediately before the decision deadline is scheduled for August 20, 2009.
Unless the Board or the hearing officer orders otherwise, the Agency must file an answer,
including the entire record of its determination within 30 days after it is served with the petition.
See
35 Ill. Adm. Code 105.302(f). If the Agency wishes to seek additional time to file the
record, it must file a request for extension before the date on which the record is due to be filed.
See
35 Ill. Adm. Code 105.116. The record must comply with the content requirements of 35 Ill.
Adm. Code 105.302(f).
IT IS SO ORDERED.
I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on May 7, 2009, by a vote of 5-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
