ILLINOIS

POLLUTION CONTROL BOARD

April

1, 1987

ILLINOIS PO~ER COMPANY

(Hennepin Power Plant),

Petitioner,

V.

)

PCB 86—154

ILLINOIS ENVIRONMENTAL

PROThCTION AGENCY,

Respondent.

CONCURRiNG O1~It~ION(by

3. Anderson):

S~hile I joined

in the Board’s decision to allow

the Agency

to consider

imposing conditions pursuant to Section 122.4~(h), I

believe the more appropriate action would have been to airect

that the permit

be issued without further Agency review.

As the Board Opinion makes eloquently clear,

this case

is

a

distressing example

of tne permit process gone out

of control.

see

no

legal or environmental reason that compels us to wait for

a “Hennepin IV”.

The only remaining

issue

is the Agency’s assertion

tflat

it

has

a right

to

a remand

so

it can consider, pursuant

to the

provisions

of

40 CFR 122.45(h), whether

to demonstrate that

“exceptional circumstances” exist,

and thus allowing

the Agency

to impose turther permit conditions on what it now concedes are

internal waste streams.

Of course, by remanding for further

Agency review,

the board

has set the stage

for

a “Hennepin

IV”

appeal

of permit conditions.

Under

the circumstances of this i~PDLSpermii

appeal wherein

the Board holds

a Oe novo hearing not limited

to

the Agency’s

record,

I think we could properly hold that the Agency has

already effectively waived any demonstration of exceptional

circumstances because

of its failure

to carry

its burden of going

forward

on this issue

in the Board proceeding.

Once

the t~gencyconceded at Board hearing

that these were

indeed internal waste streams,

I believe the Agency had an

affirmative responsibility to at

the very least articulate

to the

Board any disagreement with IPC’s testimony that no exceptional

circumstances exist.

I might even have settled for

an

explanation by the Agency as to what its concerns were that

~revented

it from arguiny

this issue.

77-47

---

—~—

Instead,

the Agency said nothing

(except for

a hypothetical

on—line statement in its brief),

choosing instead to

rely on a

legalistic assertion that

its admission of error following its

permit determination did not preclude

it from now looking at the

“exceptional circumstances” issue.

Even

if this were to be

true,

by its decision not

to tackle this issue before the Board, the

Agency effectively rejected

a perfectly appropriate Board

forum.

Why? The Agency cannot claim surprise

—

it

is the party

that switched position,

it did not claim that there was vital

information it needed.

Moreover, the federal regulations do not

mandate

the Agency to utilize Section 122.45(h); on

the contrary,

the Agency has

a “demonstration” burden

if

it intends

to use that

Section.

The Board’s concern that its ruling

in hennepin

II might

have contributed

to the Agency’s failure to present evidence at

hearing

is understandable

(Board Opinion at

p.

8);

however,

I do

not find it so persuasive as to offset the consequences of

deferring

to this concern.

while arguably not evidence per

Se,

the Agency did not hold back at hearing when articulating

its new

thinking on other substantive aspects

of

the permit.

As

it

is,

we have a situation where we are prolonging what

is already an

abuse of process,

an inappropriate use

of the Board’s hearing

process,

and a waste of legal and budgetary resources.

The Board should not nave allowed the

stage to

be set

for

a

“Hennepin IV”.

ç~I7I~4~

)~/

~

Joan G. Anderson

I,

Dorothy M.

Gunn,

Clerk of

the Illinois Pollution Control

Board, hereby certify that the ab~veConcurring Opinion was

fiieo

on the

_______________

day of

~2~L~

,

1987.

~

Dorothy M. ~n,

Clerk

Illinois Pollution Control Board

77-48