ILLINOIS POLLUTION CONTROL BOARD

December

1,

1983

ILLINOIS POWER COMPANY,

Petitioner,

V.

)

PCB 83—53

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

Respondent.

OPINION AND ORDER OF THE BOARD

(by 3. Theodore Meyer):

On April

18,

1983 Illinois Power Company (IPC)

filed this

permit appeal pursuant to Section 40 of the Environmental Protec-

tion Act

(Act)

(Ill.

Rev.

Stat,

1981,

ch,

111½, par.

1040) con-

testing a special

condition contained in an air operating permit

issued by the Illinois Environmental Agency (Agency) on March

5,

1984.

That permit covers the coal handling and storage equip-

ment at IPC’s Wood River Station which includes a track hopper,

a reclaim hopper,

a coal breaker, coal conveyors,

coal bunkers

and

a coal storage pile.

IPC is not arguing the necessity of a

permit for this equipment, it is only challenging the authority

of the Agency to include Special Condition No,

1 which states:

The perrnittee shall implement

and follow the fugitive dust

operating program required

by Rule 203(f)(3)(f).

Upon

notice by the Agency of any

deficiency in the program,

the permittee shall promptly

submit the necessary changes

to the Agency for review.

(IPC

Ex.

1)

The Agency is not arguing that IPC~sfugitive dust program pursu-

ant to Rule 203(f)(3)(F)

is inadequate.

Rather the Agency

con-

tends that it may include this condition as a part of IPC’s

operating permit pursuant to its authority under Section 39(a)

of the Act (Ill.

Rev.

Stat.

1981,

ch.

111½, par. 1039(a)).

The Agency submitted the record of this permit on May 9,

1983 and a hearing was held in this matter on June

21,

1983.

At

hearing no testimony was given since the parties agreed that the

only issue in this appeal

is the legal ramifications of Rule

55-13

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203(f)(3)(F) upon the permittee and the Agency.

Rule

203(f)(3)(F)

has been renumbered since the initiation of this appeal and is

now contained in Sections 212.309, 212.311 and 212.312,

The re-

mainder of this Opinion will so reference the fugitive dust con-

trol program rules,

Both parties, however,

did summarize their

legal positions at hearing and submitted posthearirig briefs and

reply briefs setting out their arguments.

IPC submitted a fugitive dust control program to the Agency

on December 30, 1982 pursuant to Section 212.309 of the Board’s

regulations.

(Agency

Ex, 13).

The Agency reviewed the program

and found

it

to be satisfactory.

(Agency Ex.

14).

This confirms

that the submission or the adaquacy of the program by IPC under

Sections 212.309,

212, .311, or 212.312

is not at issue

in this

proceeding.

As stated before,

both parties agree the issue be-

fore the Board is the Agency~sauthority to include Special Condi-

tion No.

1

as a part

of

IPC’s air operating permit.

The Board

agrees with this assessment.

IPC argues that the Agency has exceeded the authority

granted it by the Board when the fugitive dust control program

regulations were adopted.

In support IPC advances three arguments.

First,

IPC contends that by including the program as a condition

to the permit, and by including therein language that the Agency

can compel the permittee to revise

its program should the Agency

subsequently find it to be deficient, the Agency has empowered

itself to approve

IPC~s

program, rather than just exercising

its power to review the program.

This is contrary to the lan-

gauge of the relevant rules,

and to the Board’s intent in R78—11:

Fugitive Particulate Emissions from Industrial Sources.

Citing

the Board~sadopting Opinion

(36 PCB

61, November

1,

1979)

IPC

emphasizes that the Board distinquished the right

to review and

the right to approve these programs, and chose to only give the

Agency the right to review.

IPC acknowledges the Agency~sright

to approve permit applications and to administer permit programs

under the Act.

However,

IPC argues that the permit programs

must be based on Board rules,

and in the absence of Board rules,

upon the Act.

In this instance the Board has declined to include

the fugitive dust control programs

in

the permitting process.

The

correct method to insure compliance with these rules is enforce-

ment actions,

IPC’s second argument is premised on the Agency testimony

in

the R78—11 rulemaking,

Quoting the Agency,

IPC contends that

the Agency itself did not intend the proposed fugitive dust

control program to be a part of the permitting process.

Rather

than permit appeals,

the Agency envisioned enforcement proceedings

for failure to have an approved program.

IPC recognizes that the

testimony was

in support of an “Agency approved” program,

which

was rejected by the Board.

IPC argues that the Agency’s testimony

and its intent are still relevant since the Agency wanted more

flexibility than a permit program could facilitate.

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—3—

xpC’ s

final

argument

focuses

on

the

questions

of

burden

of

proof

and

possible

duplicity

of

penalties.

If

the

program

is

included as a

permit

condition and the

program’

s

adequacy is

dis-

puted

then

the

means

of

review

is

a

permit

appeal

under

Section

40

of

the

Act.

If

it

is

not,

then

an

enforcement

proceeding

under

Section

32

of

the

Act

is

the

proper

avenue.

In

the

former

the

burden of proof is on the permittee, in the latter it is on the

Agency.

IPC argues that since the Board declined to give the

Agency approval

power,

i.e. to make these programs a part of the

permitting process, the

burden

of proof should not be allowed to

shift to the permittee.

Likewise,

if

the

programs

become

a

part

of

the

permit

the

permittee

is

subject

to penalties

under

Sec-

tions 42(a)

and

44(a)

of

the

Act

not

just

for

violations

of

the

Act

or regulations thereunder,

but

also for violation of a permit

condition.

(PC contends that this was not the Board’s intention.

The Agency premises its right to include this condition in

the

permit

upon

its

statutory

authority

in

Section

39(a)

of

the

Act,

which

allows

it to include

permit

conditions which are

consistent

with

Board

regulations

and

necessary

to

accomplish

the

purposes

of

the

Act.

The

Agency

states

that

the

first

sen-

tence

of Special Condition No. 1 only imposes an already existing

legal

obligation

on

IPC

under

Section

212.309,

and

that

the

second

sentence

is

an

exercise

of

its

right

to

review

and

comment

on

whether

the

program

submitted

is

adequate.

Given

its

power to

review,

the

Agency

believes

that

it,

as

well

as

the

permittee,

can

require

a

program

modification,

and

that

the

permit

process

is

appropriate

for

such

review.

The

Agency

argues

that

the

Board

did

not

grant

the

Agency

power

of

approval

because

this

would

have

removed

disputes

on

program

adequacy

from

its

jurisdiction.

However,

the

Agency

believes

that

since

the

Board

explicitly

gave

it

power

to

review,

it implicitly gave it the power to

comment

on the adequacy and to

notify the operator of possible inadequacies during the permit-

ting

process.

The

Agency

interprets

the

Board’ s

statement

“If

the

Agency

feels

a

program

is

inadequately

designed

and

the

source

disagrees,

an

action

before

the

Board

will

be

necessary

to

resolve

the

dispute”

(36

PCB

71)

to

envision

permit

appeals

as

well

as

enforcement actions.

Otherwise, the Agency believes its

review

authority to be meaningless.

The

fugitive

dust

control

program

rules

were

adopted

by

the

Board

in

R78-11

to

insure

that

sources

would

be

operated

in

a

manner

which

would

significantly

reduce

fugitive

par4iculate

emissions.

The

minimum

requirements

for

such

operating

programs

are

contained

in

Section

212.311.

The

Board

gave

the

Agency

authority

to

review

the

required

operating

programs

on

a

case

by

case

basis.

Explicitly

it

did

not

give

the

Agency

approval

power

over

the

programs

or

subsequent

amendments

to

those

pro-

grams.

(36

PCB

71)

The

Board

did

not,

in

that

adopting

55-15

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—4—

state why it limited the Agency’s authority.

Most likely it

was

to avoid delegating to the Agency its exclusive authority

under Section 5 of the Act to set emission or equipment standards,

and,

as the Agency suggested,

to retain jurisdiction over the re-

view of these programs.

Furthermore the language of the rules as

well

as the Opinion precludes Agency approval of the programs.

Sections 212.309 and 212,312 only provide for submission

to and

review by the Agency of fugitive dust control programs by indus-

trial sources described in Sections 212.304 through 212.308.

Therefore,

IPC is correct that the Agency does not have the power

to include the requirements for a program and for revisions

promptly upon the Agency’s determination of a program’s inadequacy.

The Agency’s ability to review the program while reviewing

the permit is not precluded.

What the Agency cannot do is make

the program or revision of the same a condition of the permit.

This does not contravene the relevant portion of Section 39(a)

of the Act which states:

In granting permits the Agency ~y

impose such conditions as may be

necessary to accomplish the purposes

of the Act, and as are not inconsistent

with the regulations promulgated by the

Board hereunder.

jIll.

Rev.

Stat.

1981,

ch.

111½,

par.

1039(a) emphasis added)

Deletion of Special Condition No,

1 from IPC’s permit does

not contravene the Board’s statutory duty under Section

5 of the

Act, or the Agency’s under Section 39(a).

The first sentence of

Special Condition No.

1 is,

as argued by the Agency,

a restatement

of an existing legal obligation.

Therefore it

is not contrary to

a Board regulation, but also

it is not necessary to accomplish

the purposes of the Act.

The second sentence

is contrary to the

Board’s regulation and therefore neither proper nor necessary to

further the Act’s purposes.

In addition, apart from the issues specifically briefed by the

parties, the condition ~

establishes an enforcement

mechanism that conflicts with Title VIII of the Act.

“Notice

by the Agency of any deficiency in the program” cannot alone compel

“necessary changes”.

This is tantamount to an administrative com-

pliance order, which the Agency has no power to impose as a permit

condition or by any other means.

Only the Board has authority to

issue compliance orders.

This Opinion constitutes the Board’s findings of

fact and

conclusions

of law in this matter.

55-16

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—5—

ORDER

The Illinois Environmental Protection Agency is ordered to

issue the contested operating permit for Illinois Power Company’s

Wood River Station without Special Condition No.

1 and

in accord-

ance with this Opinion.

IT IS SO ORDERED.

Board Member

B.

Forcade abstained.

I, Christan

L.

Moffett, Clerk of the Illinois Pollution

Control Board hereby certify th~tthe above Opinion and Order was

adopt~d

on the)~~

day o~J’,~-~j~

,

1983 by a vote

of

~.

Illinois Pollution

Board

55-17