ILLINOIS POLLUTION CONTROL BOARD
May 9,
1986
IN THE MATTER OF:
PARTICULATE EMISSION LIMITATIONS,
)
R82—.
(Docket
B)
RULE 203(g)(1)
AND
202(b) OF
CHAPTER
2
)
PROPOSED RULE.
FOURTH SECOND NOTICE.
PROPOSED OPINION AND ORDER OF THE BOARD (by J.
D. Dumelle):
On March 14,
1986,
the Board adopted
an Interim Order which
established this docket
to further consider
the adoption of 35
Ill.
AdTn.
Code 212.121 and 212.123 concerning visual emissions
standards.
In response
to that order
an additional hearing was
held
on April
28, 1986,
at which’ the Illinois Environmental
Protection Agency (Agency) offered two proposals for amendments
of the language of those
rules.
(Exs.
21B and 22).
On May 2,
1986,
the Agency filed
a Statement
of Interpretation and
Commonwealth Edison filed Public Comment No.
35.
On May 5, 1986,
the United States Environmental Protection Agency
(USEPA)
filed
Public Comment No.
36,
and
the transcript of the April
28 hearing
was also filed on that date.
The Agency continues to urge the Board
to adopt
the rules
as
proposed
in the Second First Notice Order
adopted May
16W,
1985,
with minor changes.
However,
the Agency urges that
if
the Board
does not adopt rules
in substantial conformity with the May 16,
1985 Order,
it should adopt the proposed amendments.
Those
amendments:
1.
Establish an exceedance of
the
30
opacity limitation
as prima
facie evidence of a particulate violation and
a subsequent performance test demonstrating compliance
with the particulate limitation under similar operating
conditions
as a defense to
a particulate violation
based upon that prima facie evidence
Section
212.124(c)(1)
;
2.
Provide
that
a subsequent performance
test can be used
to establish
a defense
to an opacity violation
Section
212.l24(c)(2));
and
3.
Establish
a mechanism for obtaining an adjusted
standard for opacity
Section
212.126).
In its comment USEPA states that Region V (which includes
Illinois)
“feels that Section 212.123,
as proposed by IEPA,
together with IEPA’s proposed Sections 212.124
and 212.126, would
69-477
—2—
provide enforceable opacity limitations without penalizing
sources
that are
in compliance with the applicable mass emission
limitations.~’* USEPA had earlier indicated that the language as
proposed in the Third Second Notice Order was not federally
approvable.
(See Exs.
25A & b).
In Public Comment No.
35 Commonwealth Edison raised issues
concerning proposed Sections 212.124(c)
and 212.126.
Section 212.121
This section has remained unchanged throughout this
proceeding.
The proposed amendment simply deletes the Board Note
which cites
the Supreme Court case which had previously
invalidated this rule.
Since the Board believes that upon
repromulgation the rule will have been properly adopted and
validated, this note will
no longer
be necessary.
Since no one
has commented
or testified adversely regarding this proposed
amendment,
the Board has not made any changes
to the proposal.
Section 212.123
Section 212.123(a)
is the text as proposed
in the Board’s
Second
First Notice Order adopted on May 16,
1985, with minor
changes recommended by the Agency in its October
8,
1985
comments.
The changes are non—substantive and simply are
intended to make the language clearer.
This amendment does,
however,
delete the last clause of the language proposed
in the
Third Second Notice Order adopted on February
6
1986, which
precluded the imposition of
a cease and desist order ora
monetary penalty for
a violation of
the opacity rules.
This
language has been deleted due
to the clear statements by USEPA
that the proposed Third Second Notice language is federally
unapprovable.
While
the Board continues
to believe that the rule
should be federally approvable
as discussed in the February
6
Order,
the Board
finds that the Agency’s proposed Sections
212.124
and 212.126
(as discussed below) provide alternative
mechariisirns
to address the concerns which lead to the Third
Second Notice proposal.
Furthermore, USEPA has
indicated
that
the Agency’s proposal
is federally approvable.
Section
212.123(b)
is proposed as
in every other order
issued by the
Board in this proceeding.
*
Also,
in that comment USEPA offers alternative language for
the introductory clause of Section
212.126(e)(4).
However,
at
hearing
the Agency amended its proposal
to delete that clause
in
its entirety.
(R.
_).
69.47$
—3—
Section 212.124
The Agency proposed Section 212.124(c)
to establish that an
exceedance
of the opacity standard
is prima facie evidence of
a
particulate violation and that
a facility in apparent violation
of either standard can establish
a defense
to such violations
through
a subsequent performance
test conducted under
similar
operating conditions which demonstrates compliance with the
particulate mass emission limitations.
Section 212.124(c)(1)
applies
to particulate violations while Section 212.l24(c)(2)
applies to opacity violations.
The only difference
in
establishing
a defense under those provisions
is that under
Section 2l2.l24(c)(2)
the subsequent test must result
in visual
emissions greater
than or equal
to the original exceedance.
Commonwealth Edison believes
that the difference between the
provisions may make
it difficult to establish
an opacity defense
“because
of the vagaries of visual emissions,” due
to
ttsome
deviation in an operating parame’ter,
coal quality or fineness,
ambient temperatures
and humidity,
etc.”
(P.C.
No.
35).
It,
therefore, proposed the deletion
of that requirement and the
merger
of Section 2l2.124(c)(l) and (c)(2).
The Board agrees with the Agency that its proposed
language
is preferable to
the current language which requires the facility
to demonstrate
that it was
in compliance with the mass emission
limitations
at the time of
the opacity exceedance
in order
to
establish a defense
to that exceedance.
Such proof may not be
readily available.
The Board also agrees with Edison, however,
that there
is
no need
to require
a subsequent test
to result in
an exceedance
of
the opacity standard greater
than that at the
time of the alleged violation.
To preclude such a defense where
the facility has done everything
in its power
to recreate
the
original operating conditions makes little sense: what else can
be done?
Certainly,
if
the visual emissions are much lower,
the
Agency can use that fact
to attempt
to rebut
the defense.
The
Board
will, therefore,
proposed the language suggested
by Edison.
Section 212.126
Proposed Section 212.126 sets out a mechanism whereby a
facility can qualify for
an adjusted standard from the general
visible emission limitations pursuant
to Section 28.1
of the
Act.
For
the most part the Board
is proposing this Section
as
offered by the Agency.
The format of the rule has been changed
considerably to correspond more closely with the format of
the
exception procedure established
for combined sewer overflows at
35 Ill.
Adm.
Code 306.350,
et seq.
Additional procedures have
been specified,
a disclaimer has been added
to clarify that the
adjusted standard procedure
is
in addition
to,
rather than
in
lieu of, other
existing relief,
and
a provision has been added
to
clarify that an owner
or operator
who desires
to file
a petition
69-479
—4—
for
an adjusted standard may do so regardless
of Agency
concurrence.
However,
the Agency must still accept
the
performance
test conditions before such
a test can form the basis
of
a petition for
an adjusted standard.
Further, the failure
to
accept
the test conditions
is non—reviewable.
However,
the owner
or operator may file a petition for
a site—specific rule in any
case.
ORDER
The Board hereby proposes
the following amendments for
second notice:
TITLE
35: ENVIRONMENTAL PROTECTION
SUBTITLE
B: AIR POLLUTION
CHAPTER
I: POLLUTION CONTROL BOARD
SUBCHAPTER C:
EMISSION STANDARDS AND LIMITATIONS FOR
STATIONARY SOURCES
PART 212: VISUAL AND PARTICULATE MATTER EMISSIONS
SUBPART
B:
VISUAL EMISSIONS
Section 212.121
Opacity Standards
For
the purposes of
this Subpart,
all visual emission opacity
standards and limitations shall be considered equivalent
to
corresponding Ringelmann Chart readings,
as described under
the
definition of opacity
(35 Ill.
Adm. Code 2lLl22).
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Section 212.123
Limitations
for All Other Sources
a)
No person
shall cause or allow the emission of smoke
or
other particulate matter, ~rei~any e~het~em~ss4en
seu~ee4rt?e ~he a~mespheree?
with
an opacity greater
than 30 percent, into the atmosphere from any emission
source
other than those sources subject
to Section
212.122.
b)
Exception:
The emission of
smoke
or other particulate
matter from any such emission source may have
an
opacity greater than 30 percent but not greater
than 60
percent for
a period
or periods aggregating
8 minutes
in any 60 minute period provided that such such more
opaque emissions permitted during any
60 minute period
shall occur from only one such emission source located
within a 305 m
(1000
ft)
radius from the center point
of any other
such emission source owned
or operated by
69-480
—5—
such person,
and provided further that such more opaque
emissions permitted from each such emission source
shall
be limited
to
3 times
in any 24 hour period.
Section 212.124 Exceptions
a)
Startup.
Sections 212.122 and 212.123 shall apply
during
times of startup except as provided
in the
operating permit
in
35 Ill.
Adin. Code 201.
b)
Emissions of water
and water
vapor..
Sections 212.122
and 212.123
shall not apply to emissions of water
or
water vapor
from an emission source.
c)
Compliance with the particulate regulations
of this
Part
a defense.
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Q~2Q and
2-~Q3sha3~no~
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seuree was7
e~
the
t4i~’tee?
sueh eM~ss~en7tn eeMp~4anee
wtth
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~h~s Par~
An exceedance
of the 30
limitation of Section
212.123
is prima facie evidence
of
a violation
of the
applicable particulate limitations of this Part.
It
shall
be
a defense
to
a violation of the a~p1icab1e
particulate limitations,
as well
as
to
a violation
of
Section 121.213
if, during a subsequent performance
test conducted within
a reasonable time,
under similar
operating conditions,
and
in accordance with Section
212.110,
the owner
or operator shows that the -source
is
in compliance with the mass emission
limitations.
Section 212.126
Adjusted Opacity Standards Procedures
a)
Pursuant
to Section 28.? of the Act adjusted visible
emissions standards for emission sources subject to
either Section 212.201, 212.202, 212.203
or 212.204 and
either Section 212.122 or
212.123 shall
be granted by
the Board
based upon
a demonstration by such
a source
that the
results of
a performance test conducted
pursuant
to this Section and Section 212.110
show that
the
source meets
the applicable p!rticulate mass
emission limitations
at the same time that the visual
emissions exceed
the otherwise applicable standards.
Such adjusted opacity limitations:
1)
Shall
be specified as
a condition
in operating
permits
issued pursuant
to
35
Ill. Adm. Code 201
2)
Shall
substitute for that limitation otherwise
prescribed
by Section 212.123(a)
69.481
—6—
3)
Shall
not allow an opacity grater than 60 percent
at any time; and
4)
Shall
allow opacity
for one six—minute averaging
period
in any 60 minute period to exceed the
adjusted opacity standard.
b)
For the purpose
of establishing an adjusted opacity
standard,
any owner or operator of an emission source
which meets the requirements of subsection
(a),
above,
may request the Agency to determine the average opacity
of the emissions from the
emission source during any
performance
test(s)
conducted pursuant
to Section
212.110.
The Agency may refuse
to accept
the results
of emissions tests conducted pursuant to
this Section
which
are conducted without prior
review and approval
of the
test specifications and procedures
by the
Agency.
c)
Any request
for
the determination of the average
opacity
of emissions shall
be made
in writing,
including all test specifications and procedures,
and
submitted
to the Agency at least thirty days before
the
proposed test date.
d)
The Agency will advise the owner
or operator
of an
emission source which
has requested an opacity
determination of any deficiencies
in the proposed test
specifications and procedures
as expeditiously as
practicable but no later
than
20 days prior
to the
proposed
test date so
as
to minimize any disruption of
the proposed testing schedule.
e)
The owner
or operator shall give written notice
to the
~ency
of the time and place
of the performance
test at
least
10 days prior
to the date of
that test and shall
allow Agency personnel
to
be present during that test.
f)
The method for determining an adjusted opacity standard
is
a follows:
1)
A minimum of
60 consecutive minutes
of opacity
readings obtained
in accordance with USEPA Test
Method
9,
(35 Ill.
Adrn.
Code 230, Appendix A),
shall
be taken during each sampling
run.
Therefore,
for each performance test
(which
normally consists
of
three sampling runsf~atotal
of three sets of opacity readings totaling three
hours
or more shall
be obtained.
69.482
—7—
~j
After
the results of
the performance
tests
are
received from the emission source, the status
of
compliance with the applicable mass emission
limitation shall be determined by the Agency.
In
accordance with USEPA Test Method
5
(35 Ill.
Adin,
Code 230, Appendix A),
the average of
the results
of
the three sampling runs must be less
than the
allowable mass emission rate
in order
for the
source
to be considered
in compliance.
If
compliance
is demonstrated,
then only those test
runs with results which are less than the
allowable mass emission rate
shall
be considered
as acceptable test runs for
the purpose
of
establishing an adjusted opacity standard.
3)
The opacity
readings for each acceptable sampling
run shall
be divided into sets of
24 consecutive
readings.
The avera~eopacity for each set shall
be determined
by dividing
the sum of the
24
readings within each set
by 24.
4)
The second highest six—minute average shall
be
selected
as the adjusted opacity standard.
~j
The owner
or operator shall submit
a written report of
the results
of
the performance
test to the Agency at
least
30 days prior
to filing
a petition for
an
adjusted standard with the Board
h)
If, upon review of such owner’s
or operator’s written
report
of
the results
of
the performance test(s),
the
Agency determines that the emission source
is
in
compliance with
all applicable emission limitations for
which
the performance tests were conducted, but fails
to comply with the requirements
of Section 212.122
or
212.123,
the Agency shall notify the owner
or operator
~
expeditiously as practicable but no later
than
20
days after receiving the written report that
it will
support the owner
or operator
in
a ~etition to the
Board to establish an adjusted opacity standard for the
emission source.
i)
The owner
or operator may petition the Board
for
an
adjusted visible emission standard either jointly with
the Agency or singly.
Ten copies of such petition
shall
be
filed
with the Clerk
of
the Board.
The
petition shall
include the following information:
1)
A description
of the business
or activity
of the
petitioner,
including
its location and relevant
pollution control equipment
69.483
—8—
2)
The quantity and type of materials discharged from
the process
or
activity
for which the adjusted
standard
is requested
3)
A copy of any correspondence between the
petitioner and
the Agency regarding the
performance
test(s) which form the basis
of the
adjusted standard request
4)
A copy of the written report submitted to the
Agency pursuant
to subsection
(g) above;
5)
A statement that the performance test(s) were
conducted
in accordance with the conditions and
procedures accepted by the Agency pursuant
to
Section 212.110
6)
A statement regarding the specific limitation
requested;
and
7)
A statement ~s to whether
the Agency supports
the
requested adjusted standard.
jj~~ The Clerk
shall give notice of
the petition and shall
schedule a hearing
in accordance with
35
Ill. Adm. Code
103.
The hearing shall
be held in accordance with
35
Ill Adm.
Code 103.
k)
In order
to qualify for
an adjusted standard
the owner
—
or operator must prove in an adjudicative heafing
before
the Board:
1)
That the performance test(s) were conducted
in
accordance with the conditions and procedures
accepted b5 the Agency pursuant to Section
212.110
2)
That the emission source and associated
air
pollution control equipment were operated and
maintained
in
a manner
so
as to minimize the
opacity of the emissions during the performance
test(s); and
3)
That the proposed adjusted opacity standard was
determined in accordance with subsection
(f).
1)
In considering the proposed petition for
an adjusted
standard and
the hearing record,
the Board
shall take
into account
the factors contained in Section 27(a)
of
the Act.
The Board
shall
issue and enter
a written
opinion stating the facts and reasons leading to its
decision on the petition for
an adjusted standard.
69.484
—9—
m)
The Board shall
issue and enter such orders concerning
the petition
for
an adjusted standard as are
~ppropriate for
the reasons stated
in its written
çpinion.
Such appropriate orders may include but are
not
limited
to orders acce~ptingor rejecting the
requested limitation,
directing that further hearings
be held to develop further
information or
to cure any
procedural defects,
or remandin~the petition
to the
Retitioner with suggested revisions.
Another hearing
shall
be held on any revised petition.
n)
Nothing
in this Section shall impair any rights
authorized
by
the Act or Board Regulations that
the
owner
or operator or
any other person may have to
initiate
or participate
in any proceeding before
the
Board including general
or site—specific regulartory,
variance,
or permit proceedings.
However, Agency
determinations made pursuant to Section 212.126(b) may
not be appealed
to the Board.
IT
IS SO ORDERED.
Board Member
B.
Forcade dissented.
I,
Dorothy M. Gunn,
Clerk
of the Illinois Pollution Control
Board,
hereby certify that the above Opinion and Order was
adopted on the
_____________
day
of
~
,
1986 by a vote
of
______________.
Dorothy
M. G6nn,
Clerk
Illinois Pollution Control
Board
69-485