ILLINOIS POLLUTION

CONTROL

BOARD

October

9,

i:~’s

E.

I.

 DV PONT DE NEMOEJRS

 & COMPANY,

Petitioner,

vs.

)

 PCB 75—137

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

INTERIM OPiNION OF THE BOARD

 (by Mr. Henss):

E.

I.

 Pont Dc Nemours

 & Company filed its Petition for

Variance

 seeking relief from Rule 103 (b) (6)

 of the Illinois

Air Pollution Control Regulations.

 Variance is sought so that

Petitioner

 can secure an operating permit “without specifying

the

level

 of emissions” from its ammonium nitrate prill plant.

Petitioner~s ammoniurn nitrate prill plant

 is located

at

Seneca, LaSalle County,

 Illinois,

 Application for operating

permit

was first filed on November

20,

 1972.

 The permit

application

 was denied by the Agency on June

 6, 1973 and this

denial

 was upheld by the Board in January 1974.

 Petitioner

then

set

about the task of providing more accurate measurements

of its particulate emissions.

 Since no suitable test method

was available,

 Petitioner had to develop an entirely new test

 procedure.

Stack

tests conducted using the

new

test method led

Petitioner

believe

that

its

particulate

emissions

were

compliance

with

Rule

203,

 Air Pollution Regulations,

 and a new

permit application was submitted in

June 1974.

 This application

was denied

because the Agency would not accept certain conditions

of the test

program.

As the matter now stands,

the

parties

have developed

another stack testing procedure which

is

 to be utilized

for

testing

of emissions from the

prill

tower beginning August 11,

1975.

Results

from

these

tests

have

not

been

submitted

date.

flu Pont has waived the requirement that our decision

be made

within

90

days after the filing of the Petition.

19

40

—2—

The Board

 issues this Interim Opinion now because the

Agency has submitted a favorable Recommendation and Petitioner

may be waiting for the Board to rule on the petition

 based

upon the Agency Recommendation.

Petitioner has not requested relief from a substantive

emission standard but rather from a procedural requirement

of the permit system.

 Granting this variance would satisfy the

requirements of Rule 103(b) (6) (A)

 thus allowing the Agency to

issue

 flu Pont an operating permit for an operation which emits

an unspecified quantity of particulate matter.

 Such a variance

would be

tantamount to our abandonment of the permit system and

should

not

be contenanced if there

is

any feasible method for

establishing

the level of particulate emissions.

 If Du Pont

can prove that its emissions are in compliance with Rule 203

(particulates)

 then it will not need a var.iance from any

regulation in order to obtain a permit.

if

it can be established

that the particulate emissions are in excess of the standard

established by Rule 203 then it would be inappropriate to

 with-

hold

that

information from State agencies.

 In that event,

the

variance,

if

any, should be from Rule 203~

 flu Pont does not

request a variance from Rule 203 in this action.

in order

to obtain a variance from Rule 103(b) (6) (A)

 Petitioner

must establish that it is not technically feasible

or economically reasonable to determine the particulate emissions

from its plant.

 Such a variance request would require

 a most

thorough discussion

of all of the various methods which might

he

available

for determining the extent of Petitioner1s emissions.

In

addition, we would need legal briefs

as

 to the impact of the

United States Supreme Court decision, Train vs. NRDC,

 43 USLW 4467,

in

such a variance proceeding.

 The Agency apparently believes

that the Train decision is not applicable to a variance which

involves

a procedural requirement rather than

 a substantive

emission

standard.

 We must be careful,

 however, that the intent

of the Train

decision and the

Clean Air Act

not be circumvented.

It

 is the obligation

of

the State to enforce

such emission

limitations,

 schedules and time tables as will ensure timely

attainment

and maintenance of the national air quality standards.

How does the

State meet that obligation if it does not determine

the extent

of emissions from a plant and the impact of those

emissions

upon

air

quality

the

community?

This

Opinion is issued to provide some direction to the parties

as they prepare

to

 file their additional information with the Board.

It

 is the Order of the Board that the additional information con-

templated by the parties and this Opinion be filed within 45 days.

19—41

—3—

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, here y certify the above Order was adopted the

~

day of

___________,

 1975 by a vote of

________

Illinois Pollution

.trol

Board

19—

42