ILLINOIS POLLUTION CONTROL BOARD
March 10,
1988
IN THE MATTER OF:
PETITION TO AMEND 35 ILL.
)
ADM. CODE PART 214, SULFUR
)
R86—31
LIMITATIONS
(CIPS Coffeen
Generating Station)
)
PROPOSED RULE.
SECOND NOTICE.
PROPOSED OPINION AND ORDER OF THE BOARD
(by
3.
Marlin):
This matter comes before the Board on a regulatory proposal
filed by Central Illinois Public Service Company (CIPS)
on July
21,
1986.
Through its proposal, CIPS
is seeking relief for
its
Coffeen Generating Station
(Coffeen)
from the requirement of
35
Ill. Adm. Code 214.184, which establishes an emission limitation
for sulfur dioxide
(SO2)
in any one hour.
Section 214.184
imposes an emission limit on Coffeen of 55,555 pounds
(lbs.)
of
SO2 in any one hour.
CIPS
is proposing
that Coffeen be exempt
from that standard and instead be subject to emission standards
of 65,
194 lbs.
of SO2
in any one hour
and 7.29 lbs.
of SO2 per
million British Thermal
Units
(mmbtu)
of heat input.
The
Illinois Environmental Protection Agency
(Agency)
neither opposes
nor supports CIPS’s
proposal.
(R.
85).
On October
29,
the Board proposed
a rule for First Notice.
That proposed rule was published
in the Illinois Register on
November
20,
1987.
11 Ill.
Reg.
18925.
In this Opinion, the
Board will merely address comments that it has received during
the First Notice period.
The Board
notes that the Illinois
Environmental Protection Agency (Agency)
filed no comment.
This
Opinion should be
interpreted
as supplementing the Board’s First
Notice Opinion, and to the extent that the two Opinions conflict,
this Opinion shall
supercede the First Notice Opinion.
CIPS’
Comments
CIPS first expresses concern over the wording
of the
proposed rule which conditions
the applicability of the rule
to
the exclusive use of coal from Monterey’s No.
1 Mine.
CIPS
states that there are circumstances
in which CIPS might be unable
to
use Monterey coal exclusively but would
still wish to be
subject to the proposed rule’s emission limitations.
For
example, CIPS points
to
a strike
or natural disaster
at
the mine
which may temporarily interrupt the mine’s productivity, thereby
not allowing CIPS to utilize its coal.
Similarly,
an anomaly in
Monterey coal seam might
temporarily force Monterey to blend the
Monterey coal with lower sulfur coal
in order
to meet the
proposed rule’s emission limitations.
Finally, CIPS claims that
87—129
2
when nearing
the end of contract with Monterey,
it may need
to
perform test burns with coal
from a different source.
According
to CIPS, the proposed rule
is written to preclude such test
burns.
CIPS also would
like the Board to clarify its position with
regard
to the period of applicability of the proposed rule.
CIPS
is concerned
that if
it has to use
some coal which
is not from
the Monterey mine,
the proposed rule will terminate permanently.
CIPS has proposed
the following change for subsection
(a)
which
it believes resolves all of these issues.
(The underlined
portion is the proposed addition):
The
emission
standards
of
this
subsection
shall
apply
only
if
the
requirements
of
subsections
(b),
(c),
and
(d)
are
fulfilled.
Notwithstanding
any
other
limitation contained
in this
Part,
whenever,
except
if necessitated
by
force majeure,
the
coal
burned
is
mined
exclusively
from
the
mine that
is presently known
as Monterey Coal
Company’s
No.
1
Mine
located
south
of
Carlinville,
emission of sulfur
dioxide
from
Units
1 and
2
at
the Central
Illinois Public
Service
Company’s
(CIPS)
Coffeen
Generating
Station
(Coffeen),
located
in
Montgomery
County,
shall
not
exceed
either
of
the
following emission standards:
(P.C.
#11,
p. 4—5)
According to CIPS these changes are needed:
The addition of the force majeure clause will
address
those
situations
that
prevent
100
use of Monterey coal for reasons beyond CIPS’
control.
The addition of the word “whenever”
will address situations, such as
a test burn,
not
covered
by
the
force
majeure——in
this
situation
the
applicable
limit
would
revert
to
the
general,
more
restrictive
standard
when
the
exclusivity
requirement
was
not
being
met
but
once
compliance
with
the
exclusivity
standard
can
be
restored
the
site—specific
limit
again
would
be
applicable.
(P.C.
#11,
p.
5)
It was the intention of the Board
to draft the rule
so that
CIPS would
be subject
to
a less stringent emission standard only
when it used Monterey coal exclusively.
It
is not the Board’s
87—130
3
position that the less stringent emission standards would be lost
forever
if CIPS
failed
to utilize Monterey coal
in
a continuous
and exclusive manner.
That
is, during any time that CIPS does
not exclusively use Monterey Coal,
the general emission
limitation will once again be applicable.
However, once Monterey
does resume an exclusive use of Monterey coal,
the site—specific
limitation of proposed Section 214.562 will once again apply.
Consequently, the Board
agrees with CIPS that the word “whenever”
further clarifies the rule.
The Board
is not convinced, though, that it should allow
CIPS
to be subject to the less stringent emission standards if
CIPS must utilize non-Monterey coal due
to circumstances beyond
CIPS’s control.
CIPS states that “the record demonstrates that
the site—specific emission limit will
not cause
a violation of
any applicable ambient standard
so,
for that purpose the
source
of the coal is irrelevant.”
(P.C.
#11,
p.
5).
CIPS seems to
imply that the only relevant consideration
in granting site—
specific emission relief
is the resulting
impact on ambient air
quality.
The Board
is not proposing relief
for CIPS merely
because CIPS’ modeling studies concluded that the ambient air
standard would not be violated
if CIPS were granted relief.
Rather, the Board is proposing
to grant CIPS relief due
to the
totality of the circumstances encountered here.
Much of the
justification for the proposed
rule concerns the negative
economic impacts which would
result
if CIPS could no longer
utilize Monterey coal.
Throughout this proceeding, CIPS has
discussed
the hardships which Monterey would
incur
if CIPS were
denied
relief.
In short, CIPS has tied its own request for
regulatory relief to the viability of the Monterey mine.
CIPS
should not be allowed
to break that connection during
circumstances which are “beyond CIPS’
control.”
According
to Black’s Law Dictionary, Fifth Edition,
the term
force majeure
is “common
in construction contracts to protect the
parties
in the event that
a part of the contract cannot be
performed due
to causes which are outside the control of the
parties and could not be avoided by exercise of due care.”
However, unlike
a contract, the proposed rule only binds one
person,
CIPS.
Given that fact,
the use of the term force majeure
would only describe circumstances which are beyond CIPS’
control.
It would not describe circumstances that are beyond
Monterey’s control.
Monterey
is not owned
by CIPS.
To the extent of the Board’s
knowledge, CIPS does not have any legal
influence over Monterey
beyond present contractual arrangements.
It seems to the Board
that the fate of Monterey’s mining operations would
always be
beyond
CIPS’
control.
The Board can envision various circumstances which would
halt the supply of coal to CIPS and which would also be beyond
CIPS’s control.
Monterey could breach its contract to supply
87—1 31
4
coal
to CIPS.
Monterey could
sell the mine to another company
which would refuse
to honor
the CIPS coal supply contract.
A
strike could
cease production, indefinitely,
at Monterey.
The
owners of Monterey could shut down the mine due
to failing
profits.
Although these scenarios are merely hypothetical, they
illustrate circumstances
in which CIPS would continue to be
subject to the less stringent emission standards
if the force
majeure language were included in the proposed
rule.
Since the intent of the Board
is
to have the less stringent
emissions limitations apply only when CIPS is using Monterey coal
exclusively, the Board will not include the term force majeure
in
the rule.
CIPS’
next major objection involves the proposed rule’s
requirement that CIPS conduct an ambient air monitoring and
modeling study in order
to verify that the increased emissions do
not violate any primary or secondary sulfur dioxide ambient air
quality standard.
CIPS claims that this requirement, set—forth
in the First
Notice version of the proposed rule,
could create an
impossible
dilemma for CIPS.
That version of the rule requires that CIPS
begin
an ambient air monitoring
and modeling program six months
after
the effective date of the rule.
CIPS’
concerns stem from
the federal enforcement case currently being litigated against
CIPS.
CIPS anticipates
‘tthat any order entered by the District
Court will require CIPS to comply with the 55,555 pound per hour
limitation probably for
a fixed period of two years or, possibly,
until
a SIP revision
is approved by USEPA authorizing
a higher
limitation.”
Therefore, CIPS concludes that its operations at
higher levels during the monitoring period, would
likely be
in
violation of
a District Court order.
Also,
CIPS claims that
if
a
settlement
is not reached by the EJSEPA,
a District Court decision
will likely not be issued within six months of the effective date
of the rule.
Consequently, CIPS claims that
if
it
is going
to
“comply” with the Board’s Order, by emitting
at higher
emission
levels,
it will violate the SIP.
CIPS
also asserts that
if it
complies with the SIP,
it will lose the site—specific
rule.
CIPS
states,
and
the Board generally agrees, that a SIP revision
approval
concerning the proposed rule will likely not be granted
within six months of the effective date of the rule.
(P.C.
#11,
p.
7—10).
Also,
CIPS claims that the ambient air monitoring
and
modeling will likely make the new standard “conditional”
in
the
eyes of the USEPA.
According to CIPS,
USEPA’s reaction to such
a
requirement
is unclear.
However, CIPS does blame
an ambient air
monitoring and modeling requirement for the delay
in USEPA’s SIP
revision approval for Illinois Power Company’s Baldwin Station
SO2 emission standards.
According to CIPS,
this delay influenced
CIPS
in choosing
to pursue an alternative SO2 emission standard
via
a site—specific rulemaking
rather
than determination pursuant
to Section 214.185.
(P.C.
#11,
p. 9—10).
87—132
5
Finally, CIPS argues that the ambient air monitoring and
modeling
is unnecessary.
CIPS states that the modeling results
already presented
to the Board are far more conservative than
what would be generated from
a monitoring study.
According
to
CIPS,
the Board should consider this conservatism when viewing
the fact
that CIPS’ models showed
a concentration level
close
to
the three—hour
ambient air standard.
(P.C.
#10—11).
CIPS asserts
that the inherent limitations
on monitoring studies,
including
the determination on where to locate the monitors,
are reasons
why monitoring
is rarely done
for isolated
sources.
(P.C.
*11, p.
12).
It
is still
the Board’s position that the ambient air
monitoring
and modeling requirement of the proposed rule has
value
irrespective of the fact that CIPS’
Coffeen Generating
Station
is located
in
a rural
area.
Such
a requirement is
consistent with the procedures
for determining alternative
emission standards pursuant to Section 214.185.
The Board does
not view the emission standards of subsection
(a)
of the proposed
rule as being contingent upon the results of the ambient air
monitoring
and modeling.
Like the stack tests, the purpose of
the monitoring and modeling requirement is
to provide more
information which can be utilized
in evaluating
the actual
impact
of CIPS’
emissions on the environment.
This is especially
important since
the proposed
rule will allow CIPS
to emit 17
more SO2 than what
is presently allowed.
The Board has
substituted the word “demonstrate”
for
the word “verify”
in an
effort to clarify the Board’s position.
Much of CIPS’
arguments against the ambient air monitoring
and modeling program merely involve the timing of program not its
utility.
Essentially, CIPS
is concerned that it will be required
by the rule to conduct the monitoring and modeling program at a
time when CIPS might not be able to emit SO~at the elevated
levels allowed by the proposed
rule.
That is, the situation
could
exist when CIPS may be permitted by the Agency to emit
65,194 pounds of SO2
in any one hour but
it will
in fact only be
emitting 55,555
lbs. per
hour due
to the constraints of a federal
court decision.
In light of this potential predicament,
the
Board will change
the timing of the proposed
rule’s monitoring
and modeling requirement.
CIPS
is currently operating
under
a load limitation of 765
net megawatts
(MW)
in order
to achieve compliance with 55,555
lbs. standard.
The Board will require CIPS
to begin
its ambient
air monitoring and modeling program
6 months after
it begins
operating
at
a level
in excess of 765 net
MW.
By linking the
timing of the monitoring and modeling program
to an event within
CIPS’
control, CIPS will not be forced
into non—compliance with
either
a Board rule or
a federal court order.
87—133
6
The last issue raised by CIPS concerns the stack testing
required
imposed by the First Notice version of the rule.
That
version of the rule requires that CIPS conduct
a stack
test prior
to each operating permit renewal.
The reasons for this
requirement included the lack of frequency in
stack testing
in
the past as well as the great disparity in the results of the
1.974
stack test and the 1986 stack test.
CIPS essentially agrues that
the 1974
stack test was
an
anomoly and that the 1986 stack test results are consistent with
what would normally be expected.
As
a result, CIPS
claims that
additional
stack tests will likely not show any different results
when compared with 1986 test results.
Also,
CIPS states that the
Board
should not interfere with the Agency’s discretion
in
requiring stack
tests.
The Board agrees with CIPS that the requirement for stack
testing and the frequency of such stack
testing should,
in
general, be left
to
the Agency’s discretion.
Upon
reconsideration,
the Board finds that
it
is not necessary to
require CIPS to conduct stack tests prior
to every permit renewal
in the future.
However, the Board
still believes that stack
tests should be conducted periodically and
that they are
necessary to verify that actual SO2 emissions are below the
allowable limits.
The Board
will
alter
the proposed
rule to
require that
a stack test be conducted no later than six months
after CIPS begins operating at
a level
in excess of 765
net
megawatts.
This provision does not preclude the Agency from
requiring
additional
stack tests before or after that date.
Other
Comments
The president of Monterey,
G.E.
Tilman,
filed a comment
in
support of the Board’s proposed rule.
In the comment, Tilman
states:
Monterey appreciates the stipulation that the
proposed
revised
emission
limits
apply
only
if
the
coal
burned
at
Coffeen
is
mined
exclusively
from Monterey
No.
1
Mine.
This
stipulation
will
prevent
severe
economic
disruption
to
Monterey
employees
and
the
communities
in which they live.
*
*
*
In closing,
I wish
to thank
the Board
for its
consideration of
the economic
impact
of this
rulemaking
procedure
on
Monterey
employees.
Monterey endorses
the proposed rule and urges
the
Board
to
adopt
it
in
final
form
exactly
as written.
87—134
7
Also,
the comment points out that all
of the coal
shipped by
Monterey to CIPS’
Coffeen Generating Station
is washed prior
to
shipment.
(P.C.
#3).
The Board
received nine other public comments,
all of which
were
in support of the proposed
rule.
All but one of these
additional
commenters identified themselves as either
an employee
of Monterey or
a family member of an employee.
On February
18,
1988, the Small Business Office of the
Department of Commerce and Community Affairs
filed
a public
comment with the Board.
The Board hereby accepts the comment as
P.C.
#14.
The comment states that the proposed rule would have
no effect on small
businesses regulated
by the rule.
The Board
notes that the proposed rule only regulates CIPS which has not
claimed
to be a small business.
ORDER
The Board proposes the following amendments for Second
Notice
to be filed with the Joint Committee on Administrative
Rules.
TITLE
35:
ENVIRONMENTAL PROTECTION
SUBTITLE B:
AIR POLLUTION
CHAPTER
I:
POLLUTION CONTROL BOARD
SUBCHAPTER
C:
EMISSION STANDARDS AND LIMITATIONS
FOR STATIONARY SOURCES
PART 214
SULFUR LIMITATIONS
SUBPART
X:
UTILITIES
Section 214.562
Coffeen Generating Station
a)
The emission
standards of this subsection
shall apply
Only if the requirements
of subsections (b),(c), and
(d)
are fulfilled.
Notwithstanding
any other limitation
contained
in this Part, whenever
the coal
burned
is
mined exclusively from the mine that
is presently known
as Monterey Coal Company’s No.
1 Mine located south of
Carlinville,
emission of sulfur dioxide
from Units
I and
2 at the Central Illinois Public Service Company’s
(CIPS) Coffeen Generating Station
(Coffeen),
located
in
Montgomery County,
shall not exceed either of the
following emission standards:
1)
29,572 kilograms of sulfur dioxide
in any one hour
(65,194 lbs/hr);
and
2)
11.29 kilograms of sulfur dioxide per megawatt—hour
of heat input
(7.29 lbs/mmbtu).
87—135
8
b)
CIPS shall conduct an ambient sulfur dioxide monitoring
and dispersion modeling program designed to demonstrate
that the emission standards of subsection
(a) will
not
cause or contribute
to violations
of any applicable
primary or secondary sulfur dioxide ambient air quality
standard as set
forth
in Section 243.122.
Such ambient
monitoring
and dispersion modeling program shall
be
operated
for at least one year commencing no later than
6 months after Coffeen begins
to operate
at
a level
in
excess
of 765 net megawatts.
c)
No more than
15 months after
the commencement of the
ambient monitoring
and dispersion modeling program of
subsection
(b), CIPS shall apply for
a new operating
permit.
CIPS shall submit
to the Environmental
Protection Agency (Agency),
at the time of the
application,
a report containing the results of the
ambient monitoring
and dispersion modeling program
of
subsection
(b)
and the results of all relevant stack
tests conducted prior to the report’s submission.
d)
No later than six months after Coffeen begins
to operate
at
a level
in excess of
765 net megawatts,
a stack test
shall
be conducted
in order
to determine compliance with
emission standards set forth
in subsection
(a).
After
the stack test
is conducted,
the results
shall
be
submitted
to the Agency within 90 days.
The
requirements of this subsection do not preclude the
Agency from requiring additional
stack tests.
(Source:
Added at
11
Ill.
Reg.
effective
IT
IS SO ORDERED.
J.D. Dumelle concurred.
I,
Dorothy
M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Proposed Opinion and Order
was adopted
on the
~
day of
________________,
1988,
by a
vote of ____________________________
Dorothy
M.
Gunn,
Clerk
Illinois Pollution Control Board
87—136