ILLINOIS POLLUTION CONTROL BOARD

August

21,

1980

IN THE MATTER OF:

SULFUR

DIOXIDE

REGULATIONS,

)

R71—23

RULE

204(c)(1)(A) AND

RULE

204(c)(1)(D) OF CHAPTER

2.

OPINION AND ORDER OF THE BOARD

(by

I.

Goodman):

The

state’s

sulfur dioxide regulatory proceedings date back

to 1971

(R71—23, Emission Standards).

On April

13,

1972 the

Board adopted the Order

in R71—23, which Order

in part set sulfur

dioxide emission limitations

for existing, exclusively solid fuel

combustion,

stationary sources

located within

the

major

metropolitan areas of Chicago,

St. Louis

(Illinois), and Peoria

(Rule 204(c)(2)(A)) and those located outside these areas

(Rule

204(c)(1)(D), previously Rule 204(c)(2)(B)).

In 1974,

the Illinois Appellate Court

for the First District

in Commonwealth Edison Company v.

PCB,

25 Ill.App.3d 271,

323

N.E.2d 84, reh den January

23,

1975,

remanded these rules to the

Board along with Rule 203(g) (1) regarding particulate emission

limitations

for existing, exclusively

solid

fuel combustion,

stationary and nonstationary sources

located within Illinois.

The Court held the three rules to be invalid under §27 of the

Illinois Environmental Protection Act

(Act) because the Board did

not consider the technological feasibility and economic

reasonableness of compliance with these rules by

a substantial

number of

affected sources by the deadline specified by the

Board.

In 1976,

the Illinois Supreme Court, hearing the appeal

of

that decision, affirmed the decision.

(Commonwealth Edison

Company v.

PCB,

62 Ill.2d 494, 343 N.E.2d 459, reh den March 25,

1976.)

The Court cited that from

the

proceeding R74—2 the

Board acquired a wealth of new information regarding the need to

modify Rule 204 and that in the proceeding R75—5 the Illinois

Environmental Protection Agency

(Agency) had proposed amendments

to that rule.

As amicus curiae,

the United States Environmental

Protection Agency

(USEPA) had briefed the argument that the three

remanded rules had correctly interpreted the technology—forcing

intent of the Clean P~irAct

(42 U.S.C.

§7401, et~a.).

On July

7,

1977 the Board readopted the three remanded rules

of R71—23.

In 1978, Ashland Chemical Company

(Sherex) appealed

that Order

to the Third District Appellate Court

in

Ashland Chemical Company v.

PCB,

64 Ill.App.3d 169,

381 N.E.2d

---

—2—

56.

That Court invalidated the Board’s readopting Order because

it had been issued without additional hearings having been held

in answer to the Supreme Court’s reference in Edison to

subsequently passed legislation requiring intermittent control

systems (S~3(r)and 10(h)

of the Act), to subsequently passed

legislation requiring that the State conduct an economic impact

study of these rules

(S6 of the Act),

and to the Board’s

consideration,

in its readoption,

of a report prepared by Mr.

Sidney

M. Marder for the Agency pursuant to a grant from the

USEPA.

Three other1lawsuits were filed appealing the Board’s Order

of July

7,

1977.

All three were consolidated in Illinois

State Chamber of Commerce, et al,

v.

PCB,

67 Ill.App.3d 389,

384

N.E.2d

922

(1st Dist.1978).

This Court held that hearings had

been necessary to meet the mandates it had given

in Edison

(accord,

Ashland,

supra)

and that incorporating the records of R74—2 and

R75—5 had been insufficient to meet those mandates.

In November of 1978,

the l3oard initiated, partly in response

to the Ashland decision, proceeding R78-14 to review Rule

204(c)(1)(A)

and proceeding R78-’lG

to

review Rule 203(g) (1).

(Cf Chamber, supra,

No,

51671, Agenda 45,

Appeal dismissed,

November 12,

1979,)

These two proceedings were consolidated with

the three following related proposals for purposes of hearing and

decision.

1.

R77—15, wherein Sherex proposed a higher sulfur dioxide

emission limitation for sources located in the Peoria major

metropolitan area and having actual heat inputs not greater than 250

million Btu’s/hr, under certain conditions;

2.

R78—15, wherein the City of Rochelle proposed

a higher

particulates emission limitation for boilers #1 and

#2 at its

Rochelle Municipal Steam Power Plant;

and

3.

R78—17, wherein the Board proposed to delete Rule

204(c)(i)(D), previously Rule 204(c)(1)(B),

These consolidated proceedings,

then,

included the remanded

proceedings contemplated by Ashland,

On appeal by the Board of the Chamber decision, the Illinois

Supreme Court held that the Board was estopped from maintaining

the appeal given its nonappeal of Ashland and its commencement of

“new hearings, not pursuant to

Ashland

but because of

legislative

amendments ‘and as part

of its

on—going examination

of

its regulations’.”

1Parties plaintiff were the City

of

Rochelle, the Village of

Winnetka,

the

Illinois State Chamber of Commerce,

Abbott

Laboratories,

Inc.,

and Caterpillar Tractor Co.

(Nos. 77-1176,

77—1385 and 77—1440),

---

—3—

Before receiving notice

of the Supreme Court’s decision

of its appeal of Chamber, the Board had received the economic

impact study of the Illinois Institute for Natural Resources

(Institute) covering

the consolidated Board proceedings and had

noticed hearings to be held on January 29 and 30,

1980.

Notice

of

these hearings was sent to all persons on the Board’s notice

lists for R71—23, R77—15,

R78—14,

15,

16 and 17.

Those hearings

were duly held,

an additional hearing was held on February 13,

1980,

and the records closed on June 13,

1980 with the exception

of leave given Celotex Corporation to

submit certain

documentation by July 14,

1980.

In the meantime, however,

the Act had been amended in 1979

by the addition of Section 9.2.

This section requires the Agency to

propose any appropriate sulfur dioxide regulations applicable to

existing fuel combustion sources

in

the major metropolitan areas

of Chicago,

St.

Louis

(Illinois), and Peoria to the Board by July

1,

1980.

Although because of the foregoing court decisions no

sulfur dioxide emission limitations are

currently

in effect

as

state

law, the sulfur dioxide emission limitations as promulgated

in R71—23 on April

13,

1972 have been in effect for several years

as part of the State’s implementation plan (SIP)

pursuant to

§110 of the Clean Air Act,

See Commonwealth Edison Company

v.

PCB,

Nos.

78C2675 and 79C311

(D.C. ,N.D.Ill.,E,Div.,1980).

The Board finds

that:

Inasmuch as the Agency

is mandated to propose appropriate

sulfur dioxide regulations regarding existing,

stationary,

fuel

combustion sources located within the major metropolitan areas of

Chicago,

St.

Louis

(Illinois), and Peoria

(Act, §9.2);

and

Inasmuch as said regulations will be based on modeling

currently being undertaken by the Agency;

and

Inasmuch as said modeling studies will provide the reference

point for additional concerns such as operating permit approval,

PSD increment consumption, designation of attainment areas,

the

availability of offsetting emission reduction credits,

and other

complex and data—based issues as these have developed under

various federal and state regulations pursuant to the 1977 amendments

to the Clean Air Act via §110 of that act;

and

Inasmuch as the record in the instant proceeding

is outdated

and will be superceded by the record to be developed in the

proceedings

to be initiated pursuant to §9.2 of the Act; and

Inasmuch as repromulgation of regulations in the instant

proceeding envisions a revision

to the SIP pursuant to §110 of

the Clean Air Act, and promulgation of regulations in proceedings

initiated pursuant to §9.2 of the Act would necessitate

a

revision to said revision;

and

Inasmuch as the regulations as adopted in this proceeding

have been a part of the SIP since 1973 and have been enforceable

against Illinois sources on and after January

1,

1974; and

Inasmuch as there will be no environmental harm by retaining

the SIP provisions until

the promulgation pursuant to §9.2 of the

Act of the most recent possible technologically feasible and

economically reasonable regulations;

and

---

—4—

Inasmuch as further proceedings would necessitate future

hearings complying with the requirements of the Act and the Clean

Air Act and would necessitate further expense by this Board, the

Agency, the Institute and the dozens of citizens, industries,

and

other organizations who have participated in this proceeding over

the years;

Therefore, the Board

finds that dismissal

of this proceeding

is in the best interests of the State.

The proceeding R71-23 is hereby dismissed,

IT IS SO ORDERED,

Mr. Werner abstains.

I, Christan L.

Moffett,

Clerk of the Illinois Pollution

Control Board, hereb

certi y that the above Order was adopted on

the ~j3’

day of

_____________,

1980 by a vote of

___

Illinois Pollution