ILLINOIS POLLUTION CONTROL BOARD
June 18, 2009
DYNEGY MIDWEST GENERATION, INC.
(TILTON ENERGY CENTER),
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 09-92
(CAAPP Permit Appeal – Air)
ORDER OF THE BOARD (by G.L. Blankenship):
On April 22, 2009, Dynegy Midwest Generation, Inc. (Dynegy) filed a petition
(Pet.) asking the Board to review a March 19, 2009 determination of the Illinois
Environmental Protection Agency (Agency).
See
415 ILCS 5/40.2(a) (2006), 35 Ill.
Adm. Code 105.302. The Agency issued a renewed Clean Air Act Permit Program
(CAAPP) permit, subject to conditions, for Dynegy’s Tilton Energy Center, an electric
generating station located at 80 West First Street, Tilton, Vermillion County. Dynegy
appeals on several grounds, including that several conditions are confusing and
ambiguous as a result of missing punctuation and terms; the Agency’s decision to include
certain conditions while excluding others was inappropriate, arbitrary and capricious; and
the Agency’s inclusion of reporting requirements in one condition results from the
Agency’s outmoded software systems. Pet. at 3-9. Dynegy also requests that the Board
grant a partial stay of the CAAPP permit by staying portions of specified conditions. In
an order dated May 7, 2009, the Board accepted Dynegy’s petition for hearing but
reserved ruling on the requested stay pending the Agency’s response.
In its request for a partial stay, Dynegy argues that “[h]istorically, the Board has
granted partial stays in permit appeals where a petitioner has so requested.” Pet. at 2
(citations omitted). Dynegy asks “that the Board exercise its inherent discretionary
authority to grant a partial stay of the CAPP permit,” staying all or part of conditions
6.2.3, 7.1.8(e)(ii), 7.1.9(d), 7.1.9(f), 7.1.9(j)(ii), 7.1.10(d)(i), and 7.2.12(c)(ii). Pet. at 3,
10. Dynegy attached as Exhibit 2 to its petition a “redlined” version of the permit, which
indicates the conditions or parts of conditions it seeks to stay. Pet. at 3 n.2;
see
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 Dynegy’s request for a partial stay.
2
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 that 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 Dynegy’s request for a partial stay and Dynegy’s Exhibit
2, which is entitled “”Redlined Version of the Permit Through Section 8.”
See
Pet., Exh.
2. Dynegy states that the exhibit does not include Section 9 or 10 of the permit because it
does not appeal, and therefore does not seek to stay, any of the conditions contained in
those sections. Pet. at 3 n.3;
see
Pet., Exh. 2. The Board notes that Exhibit 2 strikes all
or part of permit conditions 6.2.3, 7.1.8(e)(ii), 7.1.9(d), 7.1.9(f), 7.1.9(j)(ii), 7.1.10(c)(i),
7.1.10(d)(i), and 7.2.12(c)(ii).
See
Exh. 2.
The Board grants the requested partial stay of the contested permit conditions and
stays all or part of permit conditions 6.2.3, 7.1.8(e)(ii), 7.1.9(d), 7.1.9(f), 7.1.9(j)(ii),
7.1.10(c)(i), 7.1.10(d)(i), and 7.2.12(c)(ii), as requested by Dynegy. The partial stay
remains in effect until the Board takes final action on the 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 June 18, 2009, by a vote of 5-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
