ILLINOIS POLLUTION CONTROL BOARD

March 19,

1987

CENTRAL ILLINOIS PUBLIC SERVICE

)

COMPANY (Meredosia Unit 3),

)

Petitioner,

V.

)

PCB 86—147

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

OPINION AND ORDER OF THE BOARD

(by J.D. Dumelle):

This matter comes before the Board upon

a September

12,

1986

petition to review a certain condition imposed by the Illinois

Environmental Protection Agency (Agency)

in the renewal

of the

air operating permit

(I.D.

No.

137805AAA)

for Meredosia Station

Unit

3 filed by Central Illinois Public Service Company (CIPS).

That renewed permit,

which was

issued by the Agency on August 8,

1986,

includes Condition

2 which limits emissions of sulfur

dioxide to 6.0 lbs/MBtu of actual heat input.

CIPS alleges that

there

is no such applicable limit and that its inclusion

in the

permit

is improver.

Hearing was held on November

12,

1986,

at

which the parties, but no members of the public,

appeared.

No

testimony was presented at hearing, both parties agreeing that

the only issue involved in this case

is

purely a question of law

which would be addressed

in the briefs.

CIPS filed its initial

brief on December 10, 1986,

to which the Agency responded on

January 7,

1987 and CIPS replied on January

21, 1987.

A plain reading

of the Board’s present rules results

in the

following analysis.

There

is no disagreement that Meredosia

Station Unit

3

(Unit

3)

is an existing

solid fuel combustion

emission source which

is

a large source of sulfur dioxide and is

located outside the Chicago,

St. Louis or Peoria major

metropolitan areas.

Therefore,

Section 214.143

is applicable and

limits emissions as provided by Subpart

E.

In turn,

Section

214.182 of Subpart

E prohibits emissions from such sources

to

exceed the emissions determined by Sections 214.183—214.185,

whichever

is applicable.

There

is no

indication in the record

that any petition was ever made pursuant

to Section 214.185.

Therefore, the applicable limitation must arise from either

Section 214.183 or

214.184.

Neither of these sections establish

a 6.0 lb/MBtu standard.

However, Section 214.186 states as

follows:

76-344

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—2—

Section 214.186

New Operating Permits

No

owner

or

operator

of

a

fuel

combustion

emission source whose sulfur dioxide emission

limitation

is determined by Section 214.142,

214.183

or

214.184

shall

cause

or

allow

the

total

emissions

of

sulfur

dioxide

into

the

atmosphere

from all

fuel combustion emission

sources

owned or

operated by such person and

located

within

1

mile

radius

(1.6

km)

from

the center

point

of

any such fuel combustion

source to exceed

the level

of sulfur dioxide

emissions allowed under the previous Rule 204

(effective

April

14,

1972 until

December

14,

1978) without first obtaining a new operating

permit from

the Agency.

The application for

a

new

operating

permit

shall

include

a

demonstration

that such

total

emissions will

not violate any applicable PSD increment.

Since Unit 3’s sulfur dioxide emission limitation

is

determined by either Section 214.183 or 214.184,

this section is

applicable.

Therefore, CIPS has two alternatives: Unit

3 must

either meet the sulfur dioxide emission allowed under

the

“previous Rule 204” or must apply for a new operating permit and

demonstrate that the total emissions are consistent with

prevention of significant deterioration

(PSD)

requirements.

Since

the latter has not been done, the previous Rule 204

limitations must be met.

The applicable portion of the rule

is

Rule 204(c)(l)(B)(i)

which states as follows:

(B)

Existing Fuel Combustion Sources Located

Outside

the

Chicago,

St.

Louis

(Illinois) and Peoria Major Metropolitan

Areas.

No

person

shall

cause

or

allow

the emission

of

sulfur dioxide

into the

atmosphere

in

any

one

hour

period

from

any

existing

fuel

combustion

source,

burning

solid

fuel

exclusively, located

outside

the

Chicago,

St.

Louis

(Illinois)

and Peoria major metropolitan

areas,

to exceed the following:

(i)

6.0

pounds

of

sulfur

dioxide

per

million

btu

of

actual

heat

input,

on and after May 30,

1975.

Thus,

a plain reading of the Board’s rules results

in the

conclusion that the Agency properly included

a 6.0 lb/MBtu

standard

as a condition of Unit 3’s permit.

This

is not

to say

that there is an independently enforceable limit of 6.0 lb/MBtu

applicable

to any boiler.

Rather, the mechanism established by

76.345

---

—3—

these rules

is designed

to allow the Agency to

impose that limit

in a permit based on an application which fails to otherwise

demonstrate that the emissions are consistent with federal PSD

rules.

Instead of denying the permit outright due

to that

failure,

the Agency can include that condition (which

is known

to

comport with the PSD rules based upon modeling and USEPA

acceptance of that level),

thereby allowing a boiler, such as

Unit

3,

which can meet that limitation,

to continue

to operate

without performing the necessary studies

to demonstrate

consistency with the PSD requirements.

CIPS

argues,

in essence, that these

rules cannot mean what

they appear

to mean since

the Board eliminated the 6.0 pound

standard

in 1978,

that USEPA understood that such limit was

eliminated, and that the Board’s 1980 amendment to the rules did

not reinstate that limit.

There

is no dispute that the Board’s

1978 amendments

to the sulfur

dioxide rules eliminated the 6.0

pound limit for large sources.

See,

In the Matter of

Proposed

Amendments to Chapter

2,

Part II, Sulfur Dioxide

Emissions, R75—5

and R74—2,

32 PCB 295

(Dec.

14,

1978)

and 32 PCB 593 (February

15,

1979).

On page

2 of its initial brief, CIPS states as

follows:

Even

a cursory

review of

the Board Order and

Opinion

reveals

that

the

Board

intended

to

eliminate the existing 6.0 pound limit:

The

Board has eliminated the prior

Rule

204(c)(1)(B)

requirement

that

the

sources located

outside the three large

MMA’s

Chicago,

Peoria

and

St.

Louis

in addition

to meeting the mass emission

limitations, meet a SO2 standard

of

6.0

lbs/MBtu.

Board

Opinion,

p.

4.

The

Board

explained

further that:

all

sources

located outside the three

largest

MMA’S

were

previously

required

to

comply with

a pounds

per million btu

SO2

standard

of

6.0

in

addition

to

the

pounds

per

hour

standard

determined

by

Rule

204(e)...

This

requirement

has

been

eliminated

because

the

record

indicated

it

is

not

technically

or

economically feasible for all sources

to

meet

the

standard

by

washing

Illinois

coal...

76-346

---

—4—

Board

Opinion,

p.

10

(citations

omitted;

emphasis added).

The Board

notes, however,

that the rulemaking also included

Rule 204(e)(4)

which stated

that:

No

owner

or

operator

of

a

fuel

combustion

emission source whose sulfur dioxide emission

limitation

is determined by Rule 204(c)(l)(B)

or

Rule

204(e)(1)

shall

cause

or

allow

the

total

emissions

of

sulfur

dioxide

into

the

atmosphere

from all

fuel combustion emission

sources owned

or

operated by such person and

located within

a

1 mile radius

(1.6 Km)

from

the

center point

of any

such fuel combustion

source

to

exceed

the level

of sulfur

dioxide

emissions

allowed

under

the

previous

Rule

204(e)

(effective

April

14,

1972

until

December

14,

1978)

without first obtaining

a

new

operating

permit

from

the

Agency.

The

application for

a new operating permit shall

include

a

demonstration

that

such

total

emissions will not violate any applicable PSD

increment.

The basis

for this provision is stated

in the Board’s R75—5

and R74—2 Opinion:

However,

as mentioned previously, Section

163

of

the

Clean

Air

Act

as

amended

in

1977

requires

that

for

any given area

the maximum

allowable

increase

in concentrations

of SO

over

the

baseline

concentration

of

SO2

no

exceed

a

certain

amount,

commonly

known

as

the

PSD

increment.

The

U.S.

Environmental

Protection

Agency,

the

Agency

and

Commonwealth Edison

Co. expressed concern

in

public

comments

(P.C.#’s

52,

51

and

42,

respectively)

that

the

proposed

regulations

could

in some cases allow sources

to increase

emissions

and,

therefore,

possibly

violate

the

PSD

increment.

Three

rules which

could

conceivably result

in increased emissions are

the new Rule

204(e)(1)

formula

(see Ex.

25),

Rule

204(e)(3)

and the 6.8

lbs/MBtu optional

standard

for

sources

burning

less

than

250

MBtu/hr.

Rule

204(e)(3)

includes

a

requirement that sources seeking an alternate

standard prove that they will not violate the

PSD

increment.

We have also included

in our

adopted

regulations

Rule

204(e)(4),

which

precludes

sources

complying

with

the

Rule

76.347

---

—5—

204(e)(l)

formula

or

the

6.8

lbs/MBtu

standard

from

increasing

emissions

without

first

obtaining

a

new operating

permit

from

the

Agency

based

on

an

application

which

proves

that

the

PSD

increment

will

not

be

violated.

The

Agency

shall

have

the

authority,

as

it

does

with

other

permit

applications,

to

determine

the

details

of

what such an application should include.

The

Board notes that this record does not provide

a

basis

for

determining

a

method

of

allocating the increment among sources.

(32 ?CB 302 and 303).

Thus,

the Board clearly recognized that the relaxed emission

standards had

to be made consistent with PSD requirements, and

Rule 204(c)(4) was added to ensure that the adopted rules were

consistent with such requirements.

Despite the inclusion of Rule 204(e)(4),

USEPA issued

a

proposed rulemaking on December

26,

1979

(44 Fed.

Reg. 76308,

attached as Exhibit A to the Agency’s response brief), which

stated at page 76309:

“The proposed SIP revision

Rule

204(c)(l)(C)) eliminates the 6.0

lb. S02/MBTU cap for major

sources (i.e., with heat input greater than 250 MBtu/hr)

and

requires these

to comply with revised Rule 204(e)”

(emphasis

added).

USEPA proposed

to disapprove portions of the Illinois

revisions, and specifically the elimination of 6.0 pound

rule,

because they relaxed emission limitations without acceptable

assurance that the new limitations would not cause or contribute

to violations

of NAAQS or violate applicable PSD increments.

(44

Fed.

Reg.

at 76310).

As a result of

that notice,

the Board realized that its

rules adopted

on December 14,

1978, contained “some

inconsistencies due

to typographical errors” which

it proposed

to

correct by order dated February 7, 1980

(37 PCB 367—368).

As the

Board stated

in its February 7,

1980 Proposed Order:

Rule 204(e)(4),

line 10, contains

a reference

to

“previous

Rule

204(e)...”

The

inclusion

of

the

letter

“e”

is

a

typographical

error;

the

phrase

should

read

“previous

Rule

204..

.“

This

is

apparent

from the beginning

language of 204(e)(4):

“No owner

or operator

of

a

fuel

combustion

emission

source

whose

sulfur

dioxide

emission

limitation

is

determined

by

Rule

204(c)(l)(B)...”

Since

Rule

204(c)(l)(B)

replaces

prior

204(e)

and

prior

204(c)(l)(B)

for

smaller

sources,

the

reference

to

“previous

Rule

204(e)”

is

76.348

---

—6—

inconsistent with

the

introductory

language

quoted above.

(37 PCB 367).

CIPS argues that the modification of the language “previous

Rule 204(e)” to “previous Rule 204” went further

than the Board

intended

in that the only basis for that change was

to “subject

small sources which could elect a 6.8 pounds per million btu

limit”

to the requirement of demonstrating consistency with the

PSD program.

This argument

is apparently based upon the final

sentence of the above—quoted language of the February 7, 1980

Proposed Order.

That language, however,

is nothing more than an

example, and the reference

to “smaller sources” should not be

read to limit the effect of the modification to those sources.

On the contrary, the fact that the 1980 modifications were

premised upon deficiencies noticed by the USEPA regarding

possible inconsistencies between the rules regarding both large

and small

sources and the PSD requirements,

and the fact that the

Board had recognized

in its February 15,

1979 Opinion the

necessity of consistency with those requirements, the Board

concludes that the rules adopted on June 12,

1980 mean what they

say.

Even

if the Board were to have concluded that those

rules

did not express the Board’s intent, the Board would be powerless

to accept CIPS interpretation.

The Board believes that the plain

reading of the presently existing rules dictates affirmance of

Condition

2

in that acceptance of CIPS position would require the

Board

to ignore. the plain meaning of the rules and,

in effect,

amend them through construction rather than the usual rulemaking

procedures.

In a case where the Board’s intent was clearly

contrary to the express language of the rules adopted,

the court

reasoned as follows:

The Attorney General urges that we accept the

PCB

interpretation

and

adopt

a

construction

of

the

Air

Pollution

Rules

based

upon

the

intent

of

the

drafters.

We

reject

this

contention.

Interpretation and construction

of

an

administrative

agency’s

rules

are

governed

by

the

same

rules

which

are

applicable

to

statutes.

Olin

Corp.

v.

Environmental

Protection

Agency

(5th

Dist.

1977),

54

Ill. App.

3d 480, 483, 12 Ill. Dec.

380,

382,

370

N.E.2d

3,

5:

May

v.

Illinois

Pollution Control

Board

(2d

Dist.

1976),

35

Ill.

App.

3d

930,

933,

342

N.E.2d

784,

787

.

Rules

of construction are useful only

where

there

is doubt

as

to

the meaning

of

a

statute,

and

a

court

may

not

alter

that

meaning

beyond

the

clear

import

of

the

76.349

---

—7-.

language employed

therein.

Pielet

Brothers

Trading,

Inc.

v. Pollution Control Board

(5th

Dist.

1982),

110

Ill.

App.

3d

752,

755,

66

Ill.

Dec.

461,

464,

442 N.E.2d

1374,

1377

To accept the PCB’s interpretation of its Air

Pollution

Rules

in

the

instant

case

would

require

us

to

ignore

the

plain

language

of

those

rules.

Additionally...

the

PCB’s

interpretation,

in

effect,

circumvents

the

usual rulemaking procedure and allows the PCB

to

amend

a

rule

through construction.

The

fact

is

that

the

language

utilized

is

clear.

While

this

may

well

amount

to

an

oversight,

it

is

one which must be rectified

by

proper

amendment

of

the

rules.

In

the

interim,

the PCB

is bound to follow the rules

as

stated.

Continental

Grain

Co.

v.

IPCB,

475 N.E.2d 1362

(Ill. App.

5 Dist.

1985).

Finally, CIPS argues that if the 1980 modification of Rule

204(e)(4) was intended

to reinstate the 6.0 pound limit,

it used

a “probably invalid method”

to do so since the 1978 rules

repealed the 6.0 pound limit, and the reinstatement would

constitute a new rulemaking.

(Reply Brief at 4).

That being

so,

the argument continues,

“that action clearly contravened both the

statutory and constitutional requirements of notice and

opportunity for hearing.”

(Reply Brief at 5).

The Board disagrees.

First, as explained above,

the Board

did not reinstitute the 6.0

lb limitation.

Rather,

the Board has

given the Agency the authority to impose such a condition in a

permit as

a backstop mechanism to ensure consistency with the

federal PSD rules where such consistency has not otherwise been

demonstrated.

Second, the 1980 modifications were adopted

in the

same proceeding as the 1978

rules.

Numerous hearings were held

and proper notice given for those proceedings

in compliance with

the requirements of the Environmental Protection Act.

Furthermore, the proposed 1980 modifications were published in

the Illinois Register on February 29,

1980, thereby initiating

the first notice period required by the Administrative Procedure

Act.

At that time comments on the proposal could have been

submitted and hearings could have been requested.

Neither

occurred, and the Board proceeded to second notice and

final

adoption all

in accordance with

the Administrative Procedure

Act.

Thus, the rules were properly adopted, and CIPS final

argument fails.

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

76-350

---

—8—

ORDER

The Illinois Environmental Protection Agency’s imposition of

Condition 2

in Permit I.D. No. 137805AAA issued on August

8,

1986

for the Meredosia Station Unit

3 owned by Central Illinois Public

Service Company

is hereby affirmed.

IT

IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order was

adopted o

the

/~Z

day of

~-~~?-

,

1987 by a vote

of

-0

.

Dorothy M~Gur”in, Clerk

Illinois Pollution Control Board