ILLINOIS POLLUTION CONTROL BOARD

October 24, 1972

ILLINOIS POWER CO.

)

(Wood River #5)

v.

)

1

72—190

)

)

ENVIRONMENTAL

PROTECTION

AGENCY

)

Mr. Sheldon A.

Zabel, for the Illinois Power Co.

Mr. Delbert Haschemeyer, Assistant Attorney General, for

the

Environmental

Protection

Agency

Opinion

&

Order

of

the

Board

(by

Mr.

Currie):

Illinois

Power

requests

a

variance

exempting

its

15

unit

at

Wood River generating station near St. Louis from our

recent-

ly adopted sulfur dioxide emission regulation.

We deny the

petition

for

reasons

stated

in

this

opinion.

Located

in

East

Alton

in

Madison

County,

the

Wood

River

station consists of five generating units aggregating 609 mega-

watts of summer capability.

Unit 5, discharging through a separate

stack, accounts for 399 mw, virtually two—thirds

of

the

entire

station

(R.

15).

Unit 5 is fired exclusively by coal; in 1971 it was operated

8,232 hours, consuming 1,085,537 tons of coal having an average

sulfur content of 2.85,

resulting in average emissions of 5.1

pounds of sulfur dioxide per million btu of actual heat input

(R. 15-16).

Using the company’s figures, the Agency calculated

without contradiction

that

Unit 5

emits 57,751 tons of sulfur

dioxide

a

year

(EPA

Ex.

1),

which

amounts

to

158

tons

per

day.

Rule 204(c) (1) (A) of our new air pollution regulations

(PCB Regs., Ch.

1) requires sulfur dioxide emissions from exist-

ing coal—burning sources in the St. Louis metropolitan area to

be reduced to 1.8 pounds per million btu by May 30, 1975.

This

regulation was adopted, after extensive hearings, on the basis

of

evidence

that

convinced

us

that

techniques

were

available,

at

a

cost

reasonable

in

light

of

the

need,

to

reduce

sulfur—dio-

xide

emissions by that time to the level prescribed.

See In the

Matter of Emission Standards, IR 71-23,

4 PCB 298 (April 13,

1972).

6—17

---

—2—

Units

1—3

are

in

the

process

of

conversion

to

burn

low—

sulfur

oil

and will

comply

with

the

regulation;

a

Monsanto

Cat-

Ox

system

is

being

installed

on

Unit

4 to bring it into compli-

ance

(R. 16).

Illinois Power contends, however, that to bring

Unit

5

into

compliance

would

impose

an

arbitrary

and

unreason-

able

hardship.

The

statute

places

the

burden

of

proving

an

arbitrary

or

unreasonable

hardship

squarely

upon

the

petitioner

in

a

variance

case

(Environmental

Protection

Act,

N

37).

The

burden

is

a

heavy

one

•

Whether

we were

right

or

wrong

in

adopting

the

regu-

lation

is not the issue; the petitioner can prevail only by

showing that application of the regulation to its situation is

so impracticable or so costly in comparison to the benefits

as to be arbitrary or unreasonable.

The test was spelled out

in EPA v. Lindgren Foundry Co., 170-1,

1 PCB 11

(Sept.

25, 1970):

It is therefore essential in passing upon a variance

petition to

compare

the good effects of compliance with the

bad.

But, as we held in the Swords case,

supra, one cannot

show that his hardship is “arbitrary” or “unreasonable”

merely by proving that the cost of compliance exceeds the

benefits.

The words “unreasonable” and “arbitrary” plainly suggest

that the Board is not to examine in every case whether or

not

compliance

would

be

a

good

thing.

To

do

so

would

com-

pletely

destroy

the

for~ceof

the

regulations

and

encourage

excessive

litigation.

Moreover,

if

the

costs

and

benefits

are

anywhere

near

equal, simple

fairness

dictates

that

the

burden should be borne by those who profit from the polluting

operation rather than by the innocent neighbors.

Accord-

ingly, the statute creates a strong presumption in favor of

compliance.

A variance is to be granted only in those extra-

ordinary situations in which the cost of compliance is wholly

disproportionate to the benefits; doubts are to be resolved

in favor of denial.

This position is compellingly supported by legislative

history as well as by the language and policy of the Act.

The original version of the bill provided for variances

only if the costs of compliance “totally dwarf(ed)” the

benefits.

A proposed amendment sponsored by industry would

have weakened this to allow variances whenever costs

“outweigh(ed)” benefits.

The Administration spokesman for

the

bill

stressed

before

the

Senate

that

this

proposal

was

wholly

unacceptable,

for

reasons

indicated

in

this

opinion.

When the present language

was

proposed

as

a

third

al—

ternative,

the Administration assured the Senate that the

change preserved the substance of the original bill, and on

this assurance the anendment was adopted.

It is clear that

6—16

---

the

change

was

prompted

by

uncertainty

concerning

the

interpretation

of

the

unfamiliar

phrase

“totally

dwarf.”

The

chosen

terms

“arbitrary”

and

“unreasonable”

have

a

more

established

meaning,

and

they

cx

ress

a

plain sense of dis-

proportion

The petition alleged that

“physical limitations at the

Wood

River

Station

would

from a practical standpoint,

preclude the

installation”

of

any

equipment

to

control

sulfur

dioxide

emissions.

The

record

wholly

fails

to

support

that

contention.

Illinois

Power’s

own

consultant,

Monsanto,

reported

after

investigation:

Sufficient

space

exists

east

of

the

#5

unit

for

installation

of

a

two

train

Cat-Ox

unit,

without

interference

from

overhead

or

underground

services.

Construction

will

not

interfere

with

operation

of

the

existing

unit

and

we

anticipate

tie-in

could

be

accomplished

during

a

six—week

period

of

annual

boiler

in-

spection/overhaul

shutdown.

(Petitioner

S

Ex.

6)

J

1.

The

company’s

witness

was

less

than

candid

in

responding

to

cross—ëxammnation

on

this

topic:

Q.

Do

you

recall

the

reference

in

that

oetition

in

paragraph

9,

to

physical

limitations

at

the

Wood

River

Station

pre--

cluding

the

installation

of

any

SO2

removal

equipment?

A,

Yes,

I

do,

Q.

Do

you

recall--

do

you

know

what

physical

limitations

that

was

with

reference

to?

A.

Yes.

The

space

available

for

a

sulfur

removal

device,

whether

it

be

Scrubber,

Cat—Ox

or

whatever

system

we

might

choose

in

the

future,

is

very

limited

between

the

plant

and

the

dike

along

the

Mississippi

River,

and

in

addition,

a

new

high-

way,

Route

3

is being built along this dike and that further

reduces the

space available.

Q.

Now once again, calling your attention to Exhibit

6.

The last paragraph of page

1 of that letter from Monsanto

Enviro-Chem Systems.

.

.

.

I get from that then,

Mr.

Miller,

that the space

limitations that Illinois Power originally

thought existed,

has been pretty much determined

by

Monsanto

to not be a limiting factor in

so far as the installation of

Cat-Ox in Unit

5?

A.

My

previous answer referred to space available on the

south side of the plant, between the plant and the river dike,

Now,

to the east of the plant, there is sufficient space

to install

a sulfur removal

system, providing it.will not in-

terfere with underground systems that may exist

in

that area.

This

is yet to be determined.

(R.

61—63)

6

—

19

---

—4—

We read the Monsanto letter to state that there are no special

physical problems of installation at Wood River.

At most the

company’s testimony, quoted

in

footnote

1, suggests the

possibility of as yet undiscovered problems

with

underground

systems (presumably pipes and wiring)

.

There is no proof that any

such problems exist, much less that they are insuperable, and we

cannot grant variances on

the basis of speculation.

See Village

of Wilmette v.

EPA,

#72—5,

3 PCB 483

(Jan.

17,

1972).

There

is therefore a complete absence of proof that Illinois

Power has any greater problem than any of the myriad other opera-

tors of coal-fired

equipment in complying with the sulfur—dioxide

emission standard.

The argument boils down to the company’s

contention that the regulation

is too stringent in light of

the

availability and cost of control techniques and

the

plant’s im-

pact on air quality.

At the request of Illinois Power,

the

extensive

testimony

on sulfur-dioxide control technology

that

we

heard in

the

rule-

making

proceeding

leading

to adoption of the regulation was in-

corporated into

the present record

(En

7--8)

.

On the basis of

this

evidence

we

found the following

(In the Matter of Emission Standards,

#R 71—23,

4

POE 298,

331—33

(April

13,

1972)

It

is undisputed

that

the

chemistry of several

processes for

removing

sulfur dioxide

is simple and

understood.

Sulfur dioxide reacts

with

the oxides

or carbonates of calcium or maqnesiuiu~ for example,

to

form

a solid product that can be separated from

the

gas stream by standard collection methods,

or it

can

he

oxidized

and

combined

with

water

to

form

sul--

furic

acid

that

can

he

sold

to

recoup

a

part

of

the

control cost

(11.

630—632)

.

It

is

also

‘undisputed

that

a

number

of

firms

have

constructed

sulfur

control

plants

of

various

sizes

emnloying

these

and

otner

principles

of

sulfur

oxide

treatment,

quite

a

number

of which are considerably beyond

the

laboratory

stage.

For

example,

three

full—sized

units

employing

a

wet

limestone

process

were

constructed

and

operated

in

E:ngland.

for

some

time

prior

to

the

Second

World

~ar

(Walsh

Ex.

83,.

p.

5;

En.

115)

.

A

Swedish

company

has

installed

a

similar

unit

on

a

hospital

boiler;

the

unit

has

operated

continuously

for

6

months

at

a

sulfur dioxide removal efficiency of 95—98

(ibid)

Closer

to

home,

both

the

federal

and

the

state

EPA

gave extensive testimony as to

existing

demonstration

projects all over the country embodying various

technologies, several of

them full-scale utility

boilers of 100 megawatts or more.

In Illinois

alone

Commonwealth

Edison

and

Illinois

Power

Company

are

about

to

begin

operation

of

new

full-size

units

based

respectively

on

limestone

scrubbing

and

on

catalytic

cx~dat1on ~Ex

83

~athe

I)

anuf~~ct~r~r’-

-e~t~fieo

---

that they were prepared to sell sulfur removal equip-

ment and to guarantee that it would meet our regulation

(e.g.,

En 605620,

621-656).

Nobody disputes that the

time

for

demonstration of such units on

a full—scale

basis

has

come.

The dispute centers rather on whether it is

time

to require additional

units beyond those already under-

taken to be built.

The power industry and other

large industrial coal users, as well

as the Illinois

coal producers,

argue vigorously that it

is not.

They

point to acknowledged operating ~oblems

experienced

in some

of the

existing installations such as those

of Union Electric and of Kansas Power and Light

(e.g.,

R.

2866,

2870,

En.

46).

They observe that the

performance guarantees actually given them extend

only to a limited test period

CR.

2949)

,

and they

rely very heavily on a definition

of “commercially

available’

technology given

in

a report of

the

National

Academy of Sciences in discussing sulfur removal.

According

to

NAS, commercial availability

of a control

device is defined as “satisfactory

operation

on

a

100 megawatt or larger unit for more

than one

ear

(En

2280)

We have allowed until

May

of

1975 for compliance

with

the sulfur emission standard

in

order to give

affected persons the opportunity to study the results

of

operation of the numerous units now about to be

tested.

On

the

basis

of

testimony

as

to

the

length

of

time required

to design and construct these facilities

(En

638,

2690)

,

we

conclude

that

this liberal time-

table will permit nearly

a year of further information

to be accumulated before commitments must be made.

For those who feel

the

experience of

the

present

‘de-

monstration units critical

to

minimize their own

risks, therefore,

we feel we have

allowed

ample time

to acquire the Information.

Unless

all

of the present

demonstrations fail, which seems

highly

unlikely,

it

as probable that even

the.

restrictive NAS criteria

will

he

satisfied by the time

our

standard requires

action.

Even should the facts prove otherwise,

however,

we

believe

it imperative

to

enact a sulfur emission standard

for the critical regions now,

We

are

of

course not

bound

by

the

NAS

definition

on what is,

after all,

not

a scientific question but

one

of public policy.

Given the seriousness oi the

sulfur

dioxide

pollution

problem in certain areas of the

State,

we

believe

we

cannot continue to postpone action

to

bring

relief,

We

cannot

wait

until

all

operating

problems

are

solved;

---

—6—

if

we

did,

as

observed

by

?rofessor

Wesley

Pipes in

another context,

we

should even now not be benefiting

from the long—accepted activated sludge process for

sewage

treatment

(See

Effluent

Standards,

#R 70-8,

R.

1536—1537)

.

We

agree

with Professor

James

Stukel

of

the

University

of

illinois, testifying for the

Agency,

that on

the admitted facts

the

development of

sulfur control technology has advanced to the point

where

we

are justified

in

requiring additional installa-

tions

to be made,

in

areas suffering from serious sulfur

problems

(B.

3473—3488)

.

The issue of what

require-

ments

are reasonable is one that can be resolved only

by

balancing

the benefits of

the contemplated

rule

against its costs,

as the statute makes clear.

This

means

that

greater

costs

may

be

justified,

and

greater

risks

of

operating

problems

taken, when the

need

for

pollution abatement

is greater.

The time

to substitute

action

for

study

comes

sooner

when

action

is

urgently

needed.

Moreover,

the adoption

of

a

strict

sulfur

regulation today will create needed pressure for the

improvement of

the

technology.

We

must

not

allow

our-

selves

to

fall

into

the

vicious cycle of no regulation

because no technology,

arid, no technology because no

regulation.

In

summary,

we

hold

that

there

is

need

to

limit

sul-

fur

dioxide

emissions

from

coal--burning

sources

in

the

Chicago,

St.

Louis,

and

Peoria

regions

to

1.8

pounds

per

million btu

as

of May

30,

1975;

that small coal users

can be expected to meet this standard by switching to

natural

gas,

to

distillate

oil,

or,

in

St.

Louis

and

Peoria,

to low—sulfur coal;

that larger coal users

can he expected either to utilize low—sulfur coal,

as

Commonwealth Edison

is doing,

or

to

co:ristruct addition-

al facilities

for the removal

of sulfur dioxide at

the stack, such as is being done at the Will County

and Wood River power stations and elsewhere in this

country

and

abroad.

Elsewhere In the opinion,

as suggested by this conclusion, we

had found

that Commonwealth Edison Co. expected to be able to

obtain sufficient Western coal of less than

1

sulfur content

to comply

with

the

standard throughout

the

Chicago

region

in

1974

(ibid)

.

See pp.

2035—37 of the #R 71—23 transcript,

which are a part of

the present record.

The further evidence Illinois Power has given us as to

developments since the adoption of

the regulation in no

way

detracts form these conclusions.

First, the company

gave hearsay testimony as to various operating problems

encountered with existing scrubber installations

(R.

19-21).

6

—

22

---

—7—

We were aware of such problems when we adopted the regu-

lation.

As we observed at that time,

to insist that all

operating problems be fully resolved before requiring controls

to be employed would unreasonably postpone the use of avail-

able technology.

Second, reliance is placed upon a narrative

in the

Federal

Register

in

which

the

Federal Environmental

Protection

Agency

explained

that

in

certain

Western

States

it

was

prepared

to

allow

until

mid-1977

in

some cases

for

compliance

with

federal

sulfur-dioxide

air

quality

standards

because

“the

only

alternative

available

to

power

plants

at

this time for controlling emissions of sulfur oxides ~s

alkaline scrubbing” and because

“the design, fabrication,

and installation of these systems

is

a lengthy process”

(Petitioner’s Ex.

1

(37 Fed.

Reg.

15095

(July

27, 1972))).

Even

if

we

could

accept

a

bare

second—hand

conclusion

as

binding

upon us, which Illinois Power would be the

first

to

oppose

if

the federal conclusion were more unfavorable to

its position,

the federal conclusion quoted is that the

technology

is

here

and the time to start installing it has

come.

If more time is needed to finish it, the

company

is

welcome to submit

detailed

proof

to

that effect if and when

it petitions for additional

time to complete a control

program

to

which

it

is

committed.

The

conclusion

of

the

company’s

witness

that

the

federal

EPA

believes

scrubbers

will work only on boilers already using low-sulfur coal

(B.

23)

is simply not supported

by

what

was said in the

Federal Register or by anything else before us.

Most persuasive on

the issue of

the availability

of

technology are two concrete proposals from Chemical Con-~’

struction Corp.

(Chemico) (Petitioner’s Ex.

5)

and Monsanto

(Petitioner’s

Ex.

6)

for

installation

of

full—scale

sul-

fur-dioxide removal units on Wood River Unit #5.

Chemioo would

guarantee 90

removal

in a two—stage magnesium-oxide system

that would cost $30-35/kw to install on

a new

generating

unit

with

its

own precipitator,2

with costs for adding

to

an

existing

unit

varying

according

to

specific

facts.

Operating

costs

are

estimated

at

$2.50-$3,50

per

ton

of

coal burned.

Credits

for the sale of byproduct sulfuric

acid are not specified hut could be an offset against the

cost

if

a market is available.

70

removal would be guaranteed

with

a

less

expensive

system.

Monsanto

estimates

the

cost

of a Cat—Ox system for Unit 5 at $50—60/kw,

or $20,000,000

to

$24,000,000,

could

guarantee

85

sulfur-dioxide

removal,

could

design

and

build

the

system

in

24-30

months

after

six months for contract negotiations and preliminary

engineering, and indicates

“a high degree of confidence

on the scale—up factor required”

in light of its experience

in

building

a

100-mw

unit

on

Unit

4

of

the

same

plant.

Far from proving that stack control technology is unavail-

able,

Illinois Power has demonstrated that adequate control

equipment is ready

to

be bought and installed,

2.

Unit 5 has a high—efficiency precipitator for removing

particulate matter

(R.

16)

6

—

23

---

—8—

Moreover, there was no effort whatever to prove that

low—sulfur fuel is unavailable.

As for oil, which is

Illinois Power’s own answer for Wood River Units 1-3,

the

testimony was only that there was

a

“question”

of

obtaining

an adequate supply and a “question”

of the “wisdom”

of using

oil because

of “national security” as well as an unspecified

“significant increase in fuel costs”

(R.

23)

.

No attempt

was made to show what efforts,

if any, had been made to

obtain

oil

for

Unit

5

or

to

explain

the

less-than—obvious

innuendo that to burn oil at Wood River

#5 would compro-

mise our national security while doing the same at ##l-3

apparently does not.

Illinois Power has wholly failed to

prove

either the unavailability or

-the excessive cost of

converting

to oil.

There

was

also no suggestion that low—sulfur coal,

which

we

found in the earlier proceeding would enable

Commonwealth Edison to meet the regulation, cannot be oh--

tamed or burned by Illinois Power.

Indeed the rather

detailed cost estimates based on information from coal

producers quite strongly suggests that such coal

is indeed

available

(B.

27--29)

.

There

is certainly no proof that

the boiler cannot utilize low-sulfur coal;

a four-hour

test

•of one such

coal was said to have caused certain

“operating

problems”

(B.

95-9 6)

,

which boil

down

essentially

to

a somewhat reduced efficiency and capability apparently

due princically to higher moisture,

lower heating value,

and -the inability

of

present equipment to

feed.

larger

quantities

of coal

to the burner.

Boiler slagging was re--

ported as “about

-the same or slightly less” than when

high—sulfur coal was used--

i.e.,

not a problem (Petitioner’s

Ex.

12)

.

Cost figures are given for additional coal—handling

equipment

(R. 27-28,

145—46)

.

Illinois Power has not

proved that low-sulfur coal

is an unavailable alternative for

Wood River

#5.

The company did attempt to show

that use of low—sulfur

coal, without corrective action, might impair the efficiency

of particulate collection by the existing precipitator,

which was designed on the basis of the coal now being used

(En

30-31; Petitioner’s Ex.

8).

This

is

a subject we re-

cently considered

in great detail

in Commonwealth Edison Co.

v.

EPA,

##72—91,

72—150,

5

PCB

—

(Aug.

8,

1972)

,

in

which

the

issue

was

squarely

presented

as

to

whether

a

variance

from

particulate

standards

could

be

granted

on

the

basis

of precipitator inefficiencies allegedly caused by use of

low—sulfur coal.

The evidence here is no more adequate than

what we found insufficient in that case to demonstrate

causation or the absence of effective and reasonable corrective

measures.

Reliance is placed entirely on a single paragraph

in

a

technical

article

which

in

turn is based upon two

other articles, one of which dates

from 1968.

The single

6

—

24

---

—9—

chart

(Ex.

8,

fig.

4)

summarizing the effect of low sulfur

content

is no more than a bare conclusion without supporting

information as to how or under what conditions the in-

formation was derived.

We held just such an unsubstantiated

chart insufficient in Edison, and we do

so here.

The com-

pany’s Opening Final Argument concedes there is no proof

that

any

impairment

of

precipitator

performance

cannot

be

corrected by additives and that there

is

a possibility

of supplementing the existing precipitators

(p.

16)

,

and

the article relied upon states that high efficiency can be

attained at low sulfur content by substantial increases

in collection area or in gas temperature

(Ex.

8)

.

Refuge

is taken in

the

assertion that the availability of

corrective

techniques has not been conclusively proved; but the burden

of proof under the statute is on the petitioner.

Illinois

Power has not shown that meeting

the sulfur standard by

using low—sulfur coal will result in violations

of the

particulate standard.

Moreover,

if

such proof were made

it would not necessarily mean the sulfur standard could

be ignored,

Not only

is the entire argument wholly inapplicable

to other methods of meeting the sulfur standard, hut if a

proper showing were made of the need for some relaxation of

the particulate standard

in

order to do something about

sulfur, we

could

consider that as an alternative,

See

Commonwealth Edison Co.

v.

EPA, cited above.

Thus

the record fails to demonstrate that the techno-

logy

is unavailable

for compliance with the standard;

the remaining argument

is that compliance is not worth the

cost.

The cost of low—sulfur coal,

together with associated

expenditures for railroad cars and coal—handling equip-

ment, was estimated at approximately 80 cents per million

btu

(R.

7 4—80)

,

compared

with

a present fuel cost of

26

cents

(B.

75).

Low—sulfur coal and Oat—Ox were estimated

to have about the same overall effect on the cost of pro-

ducing electricity

(B.

75,

81)

.

The estimated $20,000,000

or so for a Cat-Ox system, which is higher than the estimate

for a Chemico

scrubber, sounds like

a good deal of money.

But the context is important,

and large expenditures are

not per se unreasonable;

if they were large polluters

would never have to clean up.

Wood River

#5

is a huge

plant.

There is no showing that the cost of control

is an

extreme percentage of the cost of the generating unit

itself,

or that it will add dramatically to the consumer’s

electric bill.

Fuel costs are only a part of the cost to

the consumer;

no suggestion

is made that we can directly

extrapolate the increase in fuel costs to determine the

effect on

‘the buyer.

That a good deal of money

is at

stake

proves

simply

that

a

good

deal

of

money

is

at

stake;

not that it should not be spent.

The costs estimated by

Illinois Power are those we contemplated and’found reasonable

6

—

25

---

—10—

when we adopted the regulation.

The question is what will the public gain if the cx-

oenditure is made, and Illinois Power contends

that

the

inswer is very little.

Its witness testified to test re—

suits from three monitoring stations set up at locations

from 800 feet to 5.9 miles from the Wood River station,

~esianatedin an attempt

(which admittedly may not have

succeeded)

to find the worst sulfur-dioxide concentrations

attributable to the station

CR. 87, 109-10,

124).

Federal

and state air-quality standards, he said, are not violated

as often or by as great a margin as they used to be.

For

exacple,

At location 1 for this period in 1971, the State

one-hour maximum was exceeded twice,

the federal three

hour

maximum

once

and

the federal secondary daily

maximum,

the

strictest

of

the

three

daily

maximums,

was

equalled once and exceeded twice.

For 1972 neither

the

one—hour

nor

the

three—hour

maximums

were

equalled

or

exceeded

although

the

federal

secondary

daily

maximum

was

exceeded

twice.

.

.

.

At

location

1,

the

highest

one-hour

maximum

in

1971

was 0.68 but

only

0.407

in

1972;

the

highest

three-hour maximum

in

1971

was

0.54

but

only

0.282

in

1972, and the

highest daily maximum in 1971 was 0.23 but only 0.171

CR.

91).

We do not find this especially persuasive.

It tells

~

that the air is bad in areas affected by sulfur-dioxide

emissiocs from Wood River Unit 15; air—quality standards

set to protect the public health and welfare are presently

beinq violated.

As for the frequency of short

term

violations,

the

company

acknowledged

that

when

the

wind

is

blowing

the

contaminants

responsible

for

the

high

readings

away

from

the

limited

number

of

monitors

employed,

peak

concentrations

may

be

found

somewhere

else.

The

total

number

of

days

on

which

atr-auaiity

standards

are

exceeded

in

the

vicinity

cannot

be

judged

by

the

number

of

days

they

were

exceeded

at

these

three

monitoring

stations

CR.

122).

Illinois

Power’s

evidence

has

failed

to

show

that

air

quality

in

the

area

affected

by

the

Wood

River plant is satisfactory.

Illinois

Power

points

out

that

it

is

not

the

oi~lycon-

tributor

to

the

air-quality

problem

in

jts

neighborhood,

which

is

quite true.

Its Exhibit 11, a pictorial explication of

monitoring

data

correlated with wind direction,

shows that

over

the monitoring

period

the highest sulfur-dioxide concen-

trations are not always associated with winds blowing directly

fron the

Wood

River station

(see R. 115—16).

But the existence

6—26

---

—11—

of

other

sulfur—dioxide

sources

in

the

area

does

not

relieve

Illinois

Power

of

the

need

for

control;

it

aggravates

the

problem.

The

statute

makes

clear

that

it

is

unlawful

-to

emit

contaminants which cause air pollution “either alone or in

combination with contaminants from other sources,” Environ--

mental

Protection

Act,

~

9 (a),

and the regulations make the

same provision respecting multiple—source violations

of

fed--

eral

or

state

air—cuality

standards

(POE

Begs.,

Oh.

2,

Rule

102)

If the law

were

otherwise

no

one

would

ever

have

to

take

action

when

emissions

from

a

combination

of

sources

cause

the

air

to

he

‘unfit-

-t~obreathe.

The

company’s

own Exhibit II shows

significantly

high

sulfur—dioxide

concentrations

when

‘the

wind

is

blowing

from

or

within

a

few

degrees

of

the

Wood

River

station;

it does

not

deny

that

it

makes

“a

contribution’

(B.

125—26)

,,

It

claims

it

cannot

determine

the

extent

of

this

contribution

because

of

other

sources

in

the

area

~B.

125)

.

The

Agency

has

compiled

a

list

of

other

principal

sources

(EPA

Ex.

1)

which

shows

that

Unit

3

alone

emits

more

than

twice

th

much

sulfur

dioxide

as

the

sum

of

three

large

nearby

refineries

and

that,

after

control

of

the

other

Wood

River

units,

Unit

5 will emit

60

of

the

sulfur

dioxide

emitted

by

all

:aa~or Illinois

sources

within five miles

of

the

plant.

The

company

on

cross—examination

elicited

that

possible

Missouri

sources

had

not

been

considered,

that

there

was

no

magic

in

the

five-mile

figure,

and

that

the compilation did not make

allowances

for

varying

stack

heights

(B.

188-98)

None

of

this

demonstrates

‘that

Unit

5

is

anything

other

than

a

very

substantial

contributor

to

a

serious

air—pollution

problem.

The

Agency

further

buttressed

this

point

with

the

results

o:F

atmospheric

diffusion

modeling

(EPA

Ex.

3)

,

predicting

on

the basis of unshaken emission and meteorological

information

that at low wind speeds and oertain stability conditions

Unit

5 by itself would cause sulfur-dioxide concentrations

of 014 ppm and above over significant areas.

For example, at a wind

speed to two

m,p.h,

and

a

2000-foot

mixing height the area exceeding

0.14

as

a

resu:Lt

of

emissions

from Unit

5 alone is predicted to be

an ellipse nearly four

miles

long

and

a

mile and a half wide

at its greatest dimensions, with a peak concentration of

0.31 ppm in the central portion of the area

(EPA Ex.

3,

p.

19;

R.

206—07)

.

Smaller areas of ambient concentrations

above 0.14 are predicted also at wind speeds of from

3

to

7

~ph

(EPA Ex.

3,

pp. 20-22;

R.

208)

,

Moreover, these cal-

culations do not take into account such meteorological con-

ditions as downwash,

fumigation, or inversion;

downwash,

EPA testified, would be expected under all circumstances to

worsen the concentration

(R.

208)

.

An EPA meteorologist

testified without contradiction that wind conditions such

as those predicted to result in concentrations above 0.14

from Unit 5 would occur on the average an aggregate of 411

hours per year,

equalling about seventeen 24-hour days.

6

—

27

---

—12—

The level of 0.14 ppm was chosen because it is the fed-

eral health-related standard for a twenty—four-hour period

(R.

211)

.

EPA does not argue that it has conclusively demon-

strated that the predicted concentrations will persist

for long enough at any one place to cause a violation of

this standard.

No such proof

is necessary to make clear that

the company has failed to prove that Wood River Unit

#5 is

not a highly significant source of ambient sulfur-dioxide

concentrations in the area.

The burden is on Illinois

Power to prove that it is unreasonable to require its emissions

to be controlled at the price;

the evidence is clear that

they have

a considerable adverse effect on an unacceptable

ambient air quality.

Illinois Power argues that things will continue to get

better in the Wood River area because other sources, including

the other stacks at the Wood River plant, will be brought

under control.

There is however,

no proof that these other

reductions will he adequate to prevent violations of the air-

quality standards,

even

if

that were enough’to justify a

variance.

More importantly, the argument misses the point.

Illinois Power is in no better position to make the argu-

ment than

is anyone else, and if everybody were allowed to

let the other fellow do the controlling, nobody would ever

control.

In any event, while air quality

is relevant in

determining the question of unreasonable hardship, we cannot

give conclusive weight to borderline compliance with air—

quality standards without abandoning the entire concept of

emission standards, which

we

vigorously endorsed as a necessary

tool for achieving satisfactory air quality when we adopted

the regulations.

To excuse compliance with emission standards

whenever air-quality standards are met would be to abandon the

emission standards altogether.

Even in areas that are now

cleaner than required by the air-quality standards, we ob-

served,

there is

a need for compliance with emission standards,

for two reasons:

The first is

to make allowance for anticipated

growth and development, so that the standards continue

to be met in the future without forbidding de~irable

expansion.

Where we can reasonably do so, we must

provide a margin for the installation of new facilities

by

requiring

controls

that

may be tighter than the

minimum needed to meet the standards today.

We cannot

allow present emission sources to use up the entire

assimilative capacity of the air without robbing the

future of the opportunity for growth.

Second, air quality

standards are set not at the optimum level of air quality

but at the worst level we are prepared to tolerate if

6

—

28

---

—13—

we must.

Whenever we can reasonably make the air clean-

er than that, we ought to do so.

In short,

to adopt

regulations that barely suffice to meet air-quality

standards today would be intolerably short-sighted if

technology permits us to do substantially better with-

out imposing exorbitant costs.

In the

Matter of Emission Standards,

#71-23,

4 PCB 298,

309

(April 13,

1972)

.

In the case of sulfur dioxide, we limited

the emission standard to problem areas; the evidence in this

case has not shaken our then conclusion that the Illinois

portion of the St. Louis region, or at least the part of that

region affected by the Wood River plant,

is a problem area.

To reduce emissions from Unit 5 by two thirds,

as re-

quired by the regulation, would on the evidence in this case

have a highly significant favorable impact on the undesirable

air quality in the area.

If no such control is provided,

it

is entirely possible on the evidence before us that some new

manufacturing operation promising jobs for persons in the

Wood River area could not be permitted to locate there be-

cause the air already has all the sulfur dioxide

it

can

safely hold.

We cannot on these facts find the expenditure

of the sums described by Illinois Power for controlling its

sulfur—dioxide emissions to constitute

an arbitrary or un-

reasonable hardship.

The company suggests that adequate protection against

occasional excessive concentrations of sulfur dioxide could

be provided at far less cost by implementation of an episode

control program

(Opening Argument,

p.

19).

The program

consists of a promise to “reduce the load on Unit 5 to the

fullest extent possible” during unfavorable atmospheric

conditions.

At another point in this case the company went

to considerable lengths to demonstrate how indispensable Unit

5 is to enable it to meet the electricity needs of its

customers

(R. 135 et seq.)

We do not find adequate the

assurances in the Opening Final Argument that peak demands

do not usually coincide with peak concentrations;

there

is

no satisfactory proof that Illinois Power has very strong

control over either the weather or the demands of its customers.

Thus we cannot feel confident that the load on Unit

5 can

actually be reduced whenever air quality demands.

Nor is

there adequate proof that excessive concentrations of sul-

fur dioxide are or can be expected to be rare,

as discussed

at length above.

Finally, this episode control proposal,

such as it is, once again would have us abandon the emission

standards we have adopted in favor of an ad hoc and uncer-

tain approach based

on

air quality~one.

The benefits of

everyday reductions of sulfur dioxide emissions in this

case have by no means been shown so insignificant as to

make the

cost of everyday control unreasonable.

6

—

29

---

—14—

There are

suggestions

in the record that Illinois Power

believes it may need more time than is allowed by the re-

gulation to bring itself into compliance,

if it must comply

at all.

The company alleges, but did not prove, that it

may take four years to arrange for low—sulfur

coal;

and

a company witness concluded,

after intensive cross—examination

on the basis of

Monsanto’s

time

estimates,

that there was

“a faint possibility”

-that a Cat—Ox system could be installed

in time

(B.

71)

.

The’ specific facts as to dates elicited

from this witness suggest to us more than a

“faint possibility”

and are more persuasive than his general conclusion.

In any

event,

:llinois Power has not proved it is

entitled

to

additional

time.

Moreover,

it

has

not

asked

for

more

time

as

such;

its

plea

is for an indefini-te exemption from the sulfur—dioxide

standard,

We shall entertain a request for more time upon

presentation of a control program indicating specifically what is

to

be

done

to

meet

the standard, when,

and why

it

cannot

reason—-

ably be done sooner.

Cf. Chicago-Dubuque Foundry v.

EPA,

#71-133,

2 PCB

65

~June 28,

1,971).

Illinois Power has shown that this case

is precisely the

type of case for which the regulation was designed:

Wood River

Unit

#5

is

a very big source of sulfur-dioxide emissions

in an

area of excessive ambient sulfur—dioxide concentrations,

To grant

a variance here would he to repealthe emission standard, and

Illinois Power has not proved that compliance will create

an arbitrary or unreasonable hardship.

The variance is denied.

I,

Christan

Moffett,

Clerk

of

the

Pollution

Control

Board,

certify

t1~at the

Board

adppt9d

the

above

Opinion

&

Order

this

-~‘~

day

of

-~t’---~~

,

1972,

by

a

vote

of

o~

/

/

/

~‘7

~

6

—

30