ILLINOIS POLLUTION 

CONTROL

BOARD

February

I7~ 1977

ASHLAND CHEMICAL COMPANY,

Petitioner,

)

PCB

76—186

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Mr.

James 

Gladden 

and

Ms. Percy Angelo, of Mayer, Brown & Platt,

appeared on behalf of Petitioner;

Mr. Ernest Nielsen, Environmental Protection Agency, appeared 

Ofl

behalf of Respondent.

OPINION AND ORDER OF THE BOARD (by Mr. Goodman):

On June 30, 1976, Petitioner Ashland Chemical Company (Ashland)

filed a permit denial appeal before the Pollution Control Board (Board)

appealing the Environmental Protection Agency’s (Agency) denial of its

application for 

operating permit for two coal—fired boilers at its

Mapleton, Peoria County, Illinois plant. A hearing was held in this

matter on December 14, 1976. Ashland has filed a waiver of the 90—day

rule until February 17, 1977.

At the plant in question, Ashland manufactures a number of

chemicals from beef tallow and vegetable type 

oils. 

The boilerhouse

at the Mapleton plant

contains two 

coal—

fl

red and

OflC’

gas— fired

boilers.

The coal—fired boilers have a combined input of 147 million

BTU s per hour (Petitioner

ExhLblL 1, p.6; Tr. 10) and a steam output

of 60,000 pounds of steam per hour each or 120,000 pounds per hour

total (Petitioner

Exhibit 7 and 15; Tr.lO—11).

In April, 1975, Ashland applied for an operating permit for its

boilers.

That application

was denied by the Agency on June 10, 1975,

for failure to meet the particulate

and sulfur dioxide regulations

then in force, Rules 203(g) (1) (B) and 204(c) (1) (A) of the Air Regu-

lations

(Chapter 2 of the Board1s Rules and Regulations)

as well as

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789

—2—

Rule 203(e)(3). On April 25, 

1975, Ashland filed a Petition for

Variance (PCB 75-174) before the Board seeking variance from Rules

203(g) (1) (B) and 204(c) (1) (A). Pursuant 

to Board order, Ashland sub-

sequently filed additional information on the Mapleton plant’s impact

on air quality. The Board granted the variance until June 1, 1976,

holding that Ashland had met its burden under Train v. NRDC,

as the Board interpreted the impact of the Train decision at that time.

Chairman Dumelle filed a dissenting

opinion. Ashland’s compliance

plan included installation

of fabric baghouse filters

for the control

of particulate

emissions and the use of low sulfur western coal for

the reduction of SO2 emissions.

On January 20, 1976, the Illinois

Supreme Court, in Commonwealth

Edison Company v. Pollution Control Board, 62 Ill,2d 494(1976), re-

versed the Board’s adoption of Rules 203(g) (1) and 204(c) (1) (A) and

remanded those rules to the Board.

On March 24, 1976, Ashland

in-

formed the Agency that it intended to continue its fabric baghouse

filter installation but that it would postpone entering into any

contract for low sulfur coal pending resolution of the sulfur dioxide

emission regulations applicable to the Mapleton plant (Petition,

pp.6-7).

On April 23, 1976, Ashland resubmitted an application to the

Agency for the operation of 

its coal-fired boilers.

Along with its

application, Ashland submitted a copy of the Board’s Order in

PCB 75—174, the variance case. On June 10, 1976, the Agency denied

Ashland’s application, stating that Rules 102, 303, 307 and 308 may

be violated if the permit were granted. The Agency indicated that

the application failed to provide sufficient information to prove

that the source’s emissions would not prevent the attainment or main-

tenance of applicable ambient air quality standards for particulates

and SO2. The Agency indicated at the hearing that its current policy

is that sources may demonstrate acceptable air quality impact in one

of two ways:

either by an extensive modelling and monitoring program

in accordance with Agency Guidelines or, as an alternative,

by showing

compliance with the remanded rules.

The Agency has since withdrawn

its contention that Rule 303 was applicable

Lo the Mapicton plant.

The Board concurs with the conclusion that Rule 303 is inapplicable.

Ashland indicates

in its Petition

that, upon completion of the

baghouse filter installation,

particulate

emissions from its plant

will be substantially less than the limit previously imposed by Rule

203(g) (1) (B). The average sulfur content of the Illinois coal pre-

sently used on the boilers is 2.9 by weight, resulting in average

sulfur dioxide emissions of 5.7 lbs/MBTU.

The issues raised in this permit appeal are primarily legal

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790

rat or than factu~1 in nature

fcLi no’ pliJiary con~~cti~ ~

the Board and the Agency are hon

ic

Lce principle

e ~ ~e: e

~i ~

to the Boara’ 

h~io~nc ~

i~nce case that em~sJior~ rr~

Mapleton plant 

not ca s~or con~~Dute to a violatic~ 

i -too

ambient air quai~t’ standcrds   

Agercy~ 

the other thnd ar~~es

t at the pric th ~d ~ror~ ~       

sot ~-d~      

ci

review process and

that in its ao11caT~on Ashiand d~dno. ~

burden of proving tha~the facility ould not ~i~se a viol ~

the

Act or Regulations

Although both Peti tent arr tie A~ency pie .F~ ap~cacilii~

non—app1icabi1~tyof res uce   

o decthicne 01 the Boar the

Board finds that 

need no~addtess the 

questrcii

of ~hother 

C

not

that principle applies to it.~decCsio s, A basic premise of rcs

judicata is that the subseqtcnt prc-c P ug involve ident sal cairs

and issues, including looncieil I  c I issues, to those  the prior

proceeding. Howeve ttie Board an Agen~j in the permit r~ ia~~cr0—

cess herein are faced witn a d±ffe~entset of circumstances thai. ~ne

Board faced in the variance iro~ee~irJ. The Board’s determir~thun

that Ashland’s emissror~did cot c use or contribute to a violation

of ambient air qoaliry :tandards c n oily be construed to app’~ th the

time the decision was writccn and for the period of the variance.

Surely Ashland would not claim that such a determinntion on air quc lity

would be binding upon the Board for an indefinite period of time. The

variance decisior wa~ basi~on a st of dynamic, rather than static,

facts, and once the variacc~.expired the legal force of the Board’s

holding on air quali-~r impact also expired. Because the permit would

extend well beyond the can ince period, the determination of air quality

impact pursuant to thc variance does not apply to the permit consider-

ation.

Section 39 of the Act places the burden upon the applicant to

submit proof that its facility will not cause a violation of the 

Act

or the Rules, In the present case, Ashland merely submitted its

application and the Board’s Opinion and Order in PCB 75-174. Ashland

did not submit any of the background data from the variance case nor

did it submit any information as to its current impact on air quality

or the projected 

impact

for the period of the applied-for permit.

Ashland, 

thorefofl

failed to meet its

burden under 

Section

39 of the

Act, and the Agency was correct in denying the permit based on a lack

of information.

Ashland in its brief raises several other issues, which we 

will

briefly address herein. First of all, the Board notes that 

matters

such 

the Powerton SCS construction permit and permits granted 

denied other facilities are not before the Board in 

this matter and

are wholly irrelevant to the question of whether Ashland has sub—

stained its burden under Section 39. Other issues Ashland raises are

24

— 791

—4—

that the Agency withdrew the air quality impact issue as to particu-

lates in its answers to interrogatories, that prior to the September,

1976, Agency issuance of “Guidelines for the Performance of Air Quality

Impact Analyses to be Used in Support of Permit Applications” an

applicant would have no way of knowing what kind of air quality show-

ing would be acceptable, and that the Agency’s motive in denying the

application was to keep a potential enforcement action alive and to

continue to enforce the remanded regulations.

In its Answers to Interrogatories the Agency listed only sulfur

dioxide as the contaminant emitted from Ashland’s boilers that could

cause a violation of Rule 102 (Petitioner Exhibit No. 19, p.1). ,The

Agency indicated in its Brief that the omission of particulates from

the answers to interrogatories was an error based on a misunderstand-

ing on the part of the Agency attorney, 

and

testimony at the hearing

revealed that Ashland’ s attorney had been informed prior to hearing

that the Agency still intended to pursue the air quality issue as re-

lated

to particulates (R.5). The issue facing the Board in a 

permit

appeal is whether the Agency’s action in denying a 

permit 

was proper

at the time of denial, and a subsequent change of opinion on the

Agency’s part is irreleurant once the case is under the Board’s juris-

diction. The Petition has not been amended. Furthermore, Ashland has

not been preju4iced by the inclusion of particulates as an issue

because its attorney had notice prior to hearing that the Agency still

considered particulates an issue and because the hearing officer,

rather than removing the issue, reserved such ruling to the Board.

As to the other issues raised by Ashland, the Board recognizes

that there was to some degree a lack of guidance for sources applying

for a permit between the time of the Counnonwealth Edison decision and

the Agency’s issuance of Guidelines in September, 1976. However,

applicants were on notice that they would have to prove compliance

with all regulations still in force, including Rules 102, 307 

and

308. Furthermore, the Board again notes that Ashland has submitted

no air quality impact information in support of its permit applica-

iton.

The Board finds the Agency’s motives in denying the 

permit 

to be

irrelevant in that the denial has a clear and justifiable basis in

law. The Board notes that the showing of compliance with the remanded

rules is only offered by the Agency as an alternative to a monitoring

and modelling program as a means of demonstrating acceptable air

quality impact. The Board, however, need not herein reach the question

of the reasonableness of the Agency’s current policy or the accept-

ability of the Guidelines. The issue before us is whether Ashland met

its burden of proof. Having submitted no information whatsoever on

air quality impact, Ashland has clearly failed in its burden, and the

permit was properly denied.

24— 792

This Opinion

constrtut~s :hc      

~

~ts ~

o i~w

~ the Bonn in i~h

s

n61tr

it is the Ornor or L~ ?

i

~c~rol

dcnial apoeal subrnit~t

•~

C~ ~ar

30,

1976, be and is h~eb~ 

Mr Zertii~i con~ur~

I, Chnistan L~Moffett, Clerk of the Illinois Pollution Control

Board, hereby certify ~he above Opinion and Order were adopted on the

J~~day ~            

1977

by a vote

Christan L~ Moffett~~erk

Illinois Pollution

Control Board

24

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793