ILLINOIS

POLLUTION

CONTROL

BOARD

April

14,

1971

Mt.

Cannel

Public

utility

Company

)

)

V.

)

PCB 71-15

)

Environmental

Protection

Agency

)

Opinion

of

the

Board

(by

Mr.

Icissel):

On

February

1, 1971,

the Mt. Camel

Public

utility

Company

(“utility”)

filed a petition for variance with this Board in

which

it asked the Board to allow

itto

operate its coal fired boilers in

violation of the stack enssion

standards until the boilers were no

longer used for the gener&tion of electricity.

Its program for

phasing out the boilers was to take 10 years during which time the

utility would progressively increase its purchases of power from a

neighboring utility to make up for its loss of generated capacity.

It

was

further

alleged

‘in

the

netition

that

to

require

the

Utility

to

install any control devices for the particulate omissions, or to

install gas conversion units in place of the existing coal fired units,

would impose an arbitrary or unreasonable hardship on the utility

and

the connunity at large.

In order to properly evaluate the petition for variance a descrip-

tion of the operations of the utility is necessary.

The Mt. Cannel

Public Utility Company

is a orivate cornocation which purchases and

produces electr’ical energy for distribution to some 4600 and purchases

natural gas for distribution to some 3600 customers.

In addition, it

furnishes steam to the Flintkote Conpany

(30,000 pounds ncr hour).

Its

service area includes that area in and around Mr. Cannel,

Illinois.

The utility owns and onerates a steam-electric power plant on the Wabash

River in the City of

Mt.

Cannel.

It nresently has the rated capacity

to

produce

approximately

20

MWe

and

has

the

right

to

purchase

an

additional

2OMWe

from

the

Central

Illinois

Public

Service

Company

(CIPC0).

This

firm

purchase power

is

available

through

a

recently

installed

69KV

interconnection line with CIPC0.

While its generating capacity is

20

EWe, in the past

few

years it has not produced un to this canacity.

The greatest production

at any one time to date has been 18. 2?.lWe, but

in the last

two

years it has only oroduced 14.5 MIte at peak times.

In order to produce the electricity, the generating station has five

coal burning boilers.

Two of the boilers, however, are low pressure

ones and have not been used for a number of years.

The three boilers

in normal service have an aggregate maximum capacity for burning 25,130

pounds per hour of coal.

Actually, the three boilers burn about 60,000

tons of coal per year.

Each of the boilers is equipped with a primitive

settling chamber, but not other control devices are present on the stacks.

1

—483

---

Financially,

the Utility seems rather successful.

Its operating

revenues

are about

$2.5 million

and in

the calendar year of 1970

its

net profit was $206,832.44.

Of

the net profit

65

of it has been paid

to the stockholders of

the utility and the remainder

is used

for

capital improvements.

A~oroximately 75

of the net income

is obtained

from the sale

of electric power and the balance is realized from the

sale of natural gas and steam.

The utility expressed some doubt

as to whether

this petition for

variance should be filed at

all.

In

the words

of

its attorney,

the

utility did

“not intend

to admit that we are committing any pollution.”

Previously,

the Utility

did have dealings with

the Air Pollution Control

Board

(Air Board)

and the Environmental

Protection Agency

(“Agency”)

on this

subject.

In July,

1967,

the Utility filed

a Letter of Intent

with

the Air Board which,. according

to the testimony

of Mr.

Baldwin,

the Executive Vice-President,

indicated that

the plant was being

operated

within oermissible

stack emission rates.

In February

of 1970

the utility was advised by

the Technical

Secretary of

the Air Board

that the weighted collection efficiency used by the utility in computing

its stack emissions should have been 40

instead of

the

60

used by

the utility.

The utility

was

a~ked to recalculate

the emissions using

the

40

weighted collection efficiency,

and when this was done,

it

demonstrated

a particulate emission rate

of

.95 pounds per million

BTU

~fl~UtJ

The regulation apolicable

to this utility

is Section

2—2.53 of

the Rules

and Regulations Governing Air Pollution which state

in part:

.However,

irrespective of stack height or number of stacks,

the

maxirnuhi

allowable emissions

for each stack or plant shall

be

0.8 pounds

of particulate per million BTU input.”

On March

25,

1970,

the Air Pollution Control Board approved

an extension

of time

for

the Utility

to September

1,

1970,

in which

the Utility could

file

an Air Contaminant Emission Reduction Program

(ACERP)

.

This pro-

gram is provided

for

in Section 2-2.41

in the Rules

and Regulations

Governing the Control of Air Pollution and provides

for

the filing of

a specific program of installation of gas cleaning devices,

the

replacement or alteration

of specified facilities

“such that emissions

of air contaminants

are reduced to the levels required by these Regula-

tions.”

Again on August

11,

1970,

the Utility advised the Technical

Secretary of

the Air Board that

it was unable to meet

the date

for

filing

an emission control program.

Since the Environmental Protection

Act had gone into effect on July

1,

1970,

the Technical Secretary

advised

the Utility

to file

a Petition

for Variance.

On August

14,

1970,

an alleged request

for variance was filed with

the Agency.

The

petition was not filed

in accordance with the Act,

according

to the

Chief Enforcement Officer of

the Agency.

Subsequently

this Petition

1.

A stack test done by

the Utility confirmed that the computed

.95

lbs/million BTU was accurate.

1

—

464

---

was

filed on February

1,

1970, and that petition forms

the basis for

this hearing.

A hearing on the petition was held on March

19,

1971,

in Mount

Carmel,

Illinois.

Before discussing the merits of the case, several motions must

be considered.

1.

The Agency’s motion to dismiss——Instead of filing a recommenda-

tion

with the Board,

as

is required by the Rules of

the Board,

the

Agency filed

a motion

to dismiss the~petition for variance on the grounds

that the Utility did not propose any abatement program which was

designed to bring its boilers and stack emissions into compliance with

the regulations.

The Agency alleged that the petition for variance

was merely-an

“open—ended request to continue air nollution” and that

this request was

“outrageous”.

~1hileit

is

true

that

the Utility did

request in the hearing that controls not he required,

it did in its

petition state that alternative methods had been considered.

The

Board assumed that the Utility would,

as

they did to

a slight degree,

introduce testimony

as

to alternative control- systems

(other than

reduced the generating capacity) which could be incorporated on the

existing facilities

to reduce the emissions from the stack.

Since

the petition did contain such alternatives, the motion

to dismiss was

properly denied.

2.

The Utility’s motion for a continuance--The Utility asked

the

hearing officer to continue the case because it had~‘notreceived the

recommendations of the Agency regarding what disoosition should be made

of the Utility’s petition.

The hearing officer properly denied the

motion.

It is hard to believe that in this case the petitioner was

prejudicedin

any way in not having received a formal recommendation

from the Agency.

In essence the Agency did make

a recommendation in

its motion to dismiss, that is,

the Utility should have detailed

control programs other than just reducing its generating capacity.

Essentially then,

the Utility really knew what the Agency’s position

~as much before the day of the hearing and in this

case were not

prejudiced by not having received the specific formal recommendation

of the Agency called for in the Rules.

3.

The Utility’s motion upon conclusion

of the hearin~-OnMarch

26,

1971,

the Utility filed a motion challenging the reasonableness

of Section 2—2.53 of the Air Pollution Regulations, challenging the

constitutionality of Section

9(a), of the Ac.t and challenging the power

of the Board under the Act to regulate the conduct of public utilities.

All three contentions are without merit and the motion is hereby denied.

A discussion as

to each contention

is necessary.

As

to the first con-

tention, the Utility stated that section 2-2.53 isunreasonable

as

applied to this Utility because emission~standards,which that section

imposes, does not take into account the “rural character”

Of the area

1

—

465

---

in which the Utility is located and because emission standards generally

ale but a “vestigial remain of early attempts by large metropolitan

areas containing enormous and compabted populations to control the quali-

ty of the air.”

Section 2-2.53, along with the other parts of the

Rules and Regulationi for the Control of Air Pollution, wer.e enacted

by the Air Pollution Control Board in 1965.

Those regulations contain

a comprehensive set of emission standards which are applicable

throughout the State of Illinois.

They distinguish between the urban

areas

of

the

State

and

other

areas, in that more strihqent rules are

made applicable to those areas in the state which are not in Standard

Metropolitan Statistical Areas

(SI4SAs).

The ve±~y

regulation which the

utility questions snecifically refers to emissions outside of the

SMSAs and therefore on its face recognizes a difference between the

large concentrated area and those areas of the

State

which

are

not

so

concentrated.

Further,

the

Utjlity states that it is located in a rural

area.

By its own admission, however, it is located in a concentrated

population area which has 8096 people according to the 1970 census.

Tile definition of “rural” as used by the Census Bureau belies calling

the City of lit. Carmel,a rural area.

To be a rural area, under the

census definition, the ponulation of the area to be so desicinated must

have less than 2500 peonle oar square nile.

Indeed, the City of

Mt.

Camel has over 8000 people within its bounds.

Finally,

as to this

point, the Utility makes the point that emission standards do not take

into account the air quality in and around the emissions source.

Emis-

sion standards are not new tools used in fiqhting air nollution, but

they are. effective tools.

The narticular standard found in Section

2-2.53 is based on an ASME publication which takes into account what

emission rates can be allowed from one source in order to meet the

air quality standard at ground level which would not cause health effects

from that source.

True,

it does not take into account more than one

source, but then it shouldn’t if it is to adequately protect the

public from air pollution hazards.

In addition, emission standards

are really the fairest standard to apply to any discharger or emitter

since they advise him in advance as to the exact amount which he is

allowed to discharge in order to comnly with the law.

If all

dischargers meet the emission standards,

the air quality needed to

protect the public health may be reached and the oublic will have

clean air to breath.

In

summary

then on this point, we find that the

emission regulations are in fact reasonable and do annly to the Utility.

As to the second contention, the Utility states that Section 9(a) of

the Act is “arbitrary, unreasonable and. canricious and violates

petitioner’s rights under the 14th Amendment to the Constitution of

the United States and Section 2 of Article II of the Constitution of

the State of Illinois.”

This issue was raised by Granite City Steel

Company in a case now pending before the Board.

The Board held in a

recent opinion denying Granite City’s motion to dismiss that Section 9(a)

does not violate any constitutional right.

EPA v. Granite City Steel

Company, PCB 70-34.

In that oninion the Board cited the recent ruling

of the Illinois Supreme.Court which upheld a statute which prohibited

pollution and didn’t even define the word as it is explicitly defined

in the Act.

Metropolitan Sanitary District v. U.S. Steel Corp., 41

Ill. 2d 440,

1968.

As to the third contention,

the Utility

1—488

---

stated that

the Illinois Commerce Commission has “exclusive

jurisdiction”

over

the Utility,

and therefore,

the Utility is not

subject to

the

prohibitions of the Environmental

Protection Act.

This

contention

is

totally absurd and has not been raised by any

other utility which

has come before

the Board.

One need only look

to

the language

of the Environmental Protection Act

in its definition

of the word “person”, which includes

any corporation.

There are no

exemptions

in the Act.

In fact,

Title VI-A of the Act specifically

applies

to public utilities who wish to build or operate nuclear

power generating facilities.

If the legislature had intended to exclude

utilities from the Act,

it would. have said so--it didn’t.

We can now turn

to the merits of the case.

In order to sustain

its burden of proof the tJtility must prove

to the Board that compliance

with existing

regulation-s wo~ildimpose an arbitrary

or unreasonable hard-

ship.

The Poard

has consistently held that

in determining whether there

is

an

arbitrary

or

unreasonable

hardship,

it

will

balance

the

detriment

to

the

public

in allowing

the emission source to operate against the

benefit to community ~n allowing

the source to continue and the

detriment

to the petitioner in not allowing

it to operate.

The

balancing will

he much in favor of

the publicinterest

and will

be

an

equal balance.

After reviewing

the evidence presented

in this case

within, the parameters

of

the doctrine

of

“arbitrary and unreasonable

hardship”

as defined bythis Board

in previous rulings,

the petition

in this case must he denied.

What

the

petitioner

seeks

in

this

case

isreally

a

license

to

pollute.

It proposes

no

program

for the control of

its emissions other

than

a reduction of

the

use of

its facilities over

a period of ten

(maybe

five)

years.

It states that

it does not have

the funds to

install control devices which are now technically feasible to control

the particulate emissions.

Yet,

it admits

to having

a net profit of

over $200,000 per year.

Even

the scanty search by the Utility evidenced

that control

devices are available

at

a cost of about $20,000 per year.

This seems

to be

a

sthall

cost to bring the Utility’s

facilities into

compliance with what

is

a reasonable requlation

to free

the air of

dirty pollutants.

The Utility argues that if itis required to

spend

the money it will be required

to charge higher rates and therefore

will

be

taken

over by

the larger utilities.

This argument does not

take into account

the fact that

the

Utility is now making

a substantial

profit from

its operations-—$200,000

with

operating revenues of $2.5

million.

Perhaps

the shareholders

of the Utility should share in the

supposed burden of paying

for

the additional facilities,

and perhaps

the cost will not

h,e transferred directly

to the consumers.

The

money

is

there, and

it should be used

to clean up

the

air.

1 —467

---

The

Utility

argues

that

it’s

not

polluting

the

air

“very

much.”

It says that

it is

“only” emitting 0.95 pounds of oarticulates per

BTU of thermal input, and the regulation

(Section 2-2.53)

requires

not more than 0.8 pounds.

Actually,

the Utility

is putting about

300 pounds of particulates into the air each hour it onerates its

boilers.

This

is not a minor source of pollution.’

The Utility is

1.

The Utility had certain air quality tests done in

and

about its

plant~ At

a sarnnlinq station located at

~the

Utility’s office

building,

the average concentration

of

particulate matter was

82.5 ug/mJ

,

and

at Mr. Baldwin’s home,

it

was

69.5

u~/m3,

and

at the coal

pile,

concentration was 105.11 up/rn3.

Referring

to

the Air Quality Criteria for Particulate Matter,

the

publication

of the U.S. Department

of Health, Education

and

welfare, dated

January 1969,

the following aunears on page 189:

“g.

-

WHERE CONCE~TRATIONS

RANGE

FROM

80

up/rn3 to 100 up/rn3

for

particulates

(annual

geometric

mean)

with

suifation

levels

of

about

30

rng/cm2-mo.

,

increased

death

rates

for

persons

over

50

years of age may occur.

(American

data;

see Chapter

11, Section

C—2)

“4.

Effects

on Materials

AT

CONCENTRATIONS

RANGING

~RO~

60

ue/m3

(annual

geometric

mean)

,

to

180

uq/m3

for

narticulates

(annual

geometric

mean)

,

in

the

presence

of

sulfur

dioxiae

and

moisture,

corrosion

of

steol

and

zinc

panels

occurs

at

an

accelerated

rate.

(American

data;

see

Chapter

4,

Section

B)”

Based

upon

this

cornorehensive

work,

-

it

has

been

demonstrated

that

health

effects

could

occur

as

a

resOit

of

the

concentrations

o~

particulate

matter

for

those

people

exuosed

in

and

about:

the

otfice

buildinc

of

the

Utility.

In

addition,

there

could

be~

as

damon—

strated

by

the

document,

effects

on

materials

such

as

corrosion

with

concentrations

about

60

up/rn3

since

the

Utility

has

admitted

that

there

i_s

nresent

in

the

atmosnhere

sulfur

dioxide.

—

4&4

---

located on the edge of an urbanized area--an area with over 8000

people.

The particulates fall on those 8000 people in

the

area

-and

should be controlled sooner than

5 or

10 years from now.

One group

of citizens cornnlained that the particulates from the Utility’s opera-

tion was bothersome to them.

True, there was

a letter introduced

that these persons at the

Mt.

Cannel Sand and Gravel Company would

not object to the 5-10 year phase out program of

the Utility.

However, the fact that the people were complaining is clear evidence

that the Utility’s emissions are affecting people in the area.

They

are not minor.

Yes,

the

affected people were willing to wait to

get control of the emissions, but we are not.

The Utility has the money

and the technology

is available to control the emissions.

As

a matter of nolicy,

this Board does not favor the granting of

any variances without, som~definite assurance that the emissions will

be controlled by available pollution control devices

as soon

as possible.

Except for cases

of

“no technology available,”

this Board must require

that those

who

seek a “shield against enforcement cases”

(which

is

what

a variance is) mu~thave

a

definite program to control

the

emissions with existing control ‘technology.

Phasing a plant out over

a

5

to

10 year period does

not’ meet the policy of this Board, ospecia

where the omission source

is

located in a metropolitan area of the

state,

where

the

emission

source

has

been

shown

to

have

an

effect

o

people

in

the

area,

where

control

technoloqy

is

available

and

where

the Utility

has

the

money

to

buy

the

control

technology.

The Utility argued that

if

the variance were not granted that

employees would lose their jobs and the Flintkote Company would not

be able

to

purchase steam from the facility

(because the Utility

would have

to

shut down its boilers).

It must be pointed out in

this

opinion that

this Board

is not ordering

that the uti:Lity close

down

its

onerations,

We

are

merely

saving that

the

Utility

will

not

be granted

a

“shield against, an enforcement

case”

for 5 to 10 years

while

it ohases but

the boiler oneration.

Presumably,

if an adequate

control program

were

presented,

the Utility could continue its operation

as long

as

it

wished.

‘

It would be the Utility’s choice if it closed

down

Its

operation

because

‘of

the

Board’s

decision in this case.

Its

choice,

if

made

to close

down

the facility, would be that the

shareholders

are not willing

to accept the obligation that the

facilities

should

comolv

with

pollution

control

laws

of

the

state.

The

Utility

argued

that

it

should

be

allowed

to

control

pollution

by using

its

‘~ohaseout program” because other utilities

in the

state

have been allowed

to do this.

The utility cited

a few examples,

over the Agency’s objection, where phase out orograrns may have been

allowed

by

the Illinois Commerce Commission and Air Board.

What the

Illinois Commerce Commission and Air Board have allowed, or not~allowed,

I

~—

469

---

is not relevant to this proceeding.

In addition,

those

proceedings

are irrelevant

and immaterial

to

this case since

if allowed as ordered

here,

they would

raise

all of

the collateral

issues qermane

to each

of those cases, hut not

imoortant

here.

This

Board has considered

the

facts of this case, and finds that the “phase out

nroqram”

cannot

be

the basis for the

granting

of

a

variance

under

the

Act.

The Petition for variance

filed by the Mt.

Carmel Public Utility

Company

is hereby denied.

This Opinion constitutes

the

Board’s

findings of fact and

conclusions

of

law.

I,

Regina

E.

Ryan,

Clerk

of

the

Pollution

Control

Board,

certify

that

the

Board

adopted

the

above

opinion

this

14th

day

of

April,

1971.

:~-

1

—