ILLINOIS POLLUTION CONTROL BOARD

September 29,

1975

ASHLAND CHEMICAL

COMPANY1

Petitioner,

v.

)

PCB 75—174

ENVIRONMENTAL PROTECTION AGENCY,

)

Respondent.

DISSENTING OPINION

(by Mr.

Duinelle):

My reason for dissenting in this case lies in the

interpretation

of the air quality data of the Burlington—

Keokuk Interstate Air Quality Control Region which was

designated effective March 31,

1971, under

42 CFR 481.98.

This Air Qc’ality Control Region contains ten counties

in Illinois and two in

Iowa.

Among these Illinois counties

are Peoria County and its neighbor across the Illinois

River,

Tazewell County.

Ashland is located in Peoria County.

The Agency’s Response

to the September

8,

1975, Board

Order

(filed September

23,

1975)

clearly shows violations of

the Federal sulfur dioxide

a~ir

quality standards at bc~th

Peoria

(in Peoria County)

and at Pekin

(in Tazewell County).

Violations are shown for the 24-hour standard to the extent

of three

in Peoria and one in Pekin.

In addition,

the annual

average

for sulfur dioxide of 0.031 ppm violates the national

and Illinois standard

of 0.030 ppm.

These are more than de minimus violations,

especially

in light of the Agency’s twice stated position that

“a

significant sulfur dioxide.. .air quality problem exists in

the Peoria Major Metropolitan Area.”

(Agency Response filed

September 23,

1975,

p.3.

See also Agency Recommendation

filed August 25, 1975,

p.6.)

The Ashland Response to the Board Order,

(filed Septem-

ber

18,

1975)

is incomplete.

It discusses wind direction

in conjunction with the recorded violations at the downtown

Peoria site but wholly fails

to discuss the violation at the

Pekin site.

It gives Battelle Columbus Laboratories study

findings, but the Battelle Report itself was never submitted

into the record of this case even though in Ashland’s posses-

sion

(Response,

p.1).

18

—

631

---

—2—

The Board majority by this decision has stated again

that close—in violations

(or lack of them)

are what matters.

The Ozark site

is seven miles from Ashland and shows no viola-

tions.

But Pekin is only

4 miles away and has had a violation.

Thus the doctrine implicit in the majority decision was not

thoroughly substantiated in this case.

In other dissents

I have explored the possible legal

constraints under Train

v. NRDC of granting variances

in

Air Quality Control Regions where air quality violations exist.

(See Shell Oil Co.

V.

EPA, PCB 75-90, May 22,

1975,

and Iowa-

Illinois Gas and Electric Co.

v.

EPA, PCB 75-150, June 26,

1975.)

Future court decisions may clarify these

legal points.

Besides the above legal questions,

the rationale of

stating,

as

the Board majority does,

that these sulfur

dioxide emissions

in violation of Board regulations will

not

cause air quality violations is

a tenuous one.

The

Ashland sulfur dioxide emissions certainly add to the annual

average violation of the standard cited by the Agency.

And

under high pressure anti—cyclonic meteorological conditions,

fitful breezes often occur which bring parcels of polluted

air into and around an area in such a way as to confuse the

“upwind-downwind” simple form of analysis used here.

Ashland is in the Peoria-Pekin “airshed”.

This air-

shed has violations of the pertinent air quality standard.

I would have denied the variance under the Supreme Court’s

strictures in Train v. NRD

/Jacob D.

Durnelle

I, Christan L. M

fett, Clerk of the Illinois Pollution

Control Board, hereby certify the above Dissenting Opinion

was submitted on the

~

day of

~

,

1975.

~

/~

Christan L. MOffe~t,~

,e’lerk

Illinois Pollution’Côntrol Board

18—

632