ILLINOIS POLLUTION CONTROL BOARD

October

7,

1993

IN THE MATTER OF:

)

)

PETITION OF ILLINOIS POWER

)

AS 92-7

COMPANY (VERMILION POWER STATION)

)

(Adjusted Standard)

FOR ADJUSTED STANDARDS FROM 35

)

ILL. ADM. CODE 302.208(e)

)

CONCURRING OPINION

(by J. Anderson and J. Theodore Meyer):

Section 28.1(c) (3) of the Act includes the following:

...the Board may grant individual adjusted standards

whenever

the

Board

determines,

upon

adequate

proof

by

petitioner,

that:

3.

the requested standard will not result in environmental

or health effects substantially and significantly more

adverse than the effects considered by the Board in

adopting the rule of general applicability; and

We believe that the Board’s determination and supporting

reasoning should have been limited to the finding that Illinois

Power has not presented adequate proof under Section 28.1(c) (3)

Where the Board addresses the issues that go beyond this,

in our

view,

serves to confuse this matter.

In some instances the Board

reaches conclusions that we believe are wrong or risk setting

unfortunate precedents.

The Board’s negative determination that Illinois Power’s

proof doesn’t get through the above-quoted statutory

“environmental door” provides a firm basis for not granting the

adjusted standard.

This “stand-alone” environmental proof

requirement is a distinguishing feature of the adjusted standard

process in Title VII of the Act.

We believe that the record

supports the Board’s determination, particularly insofar as the

data is insufficiently focused on the before—and—after effects of

Illinois Power’s discharge on the aquatic life of this waterway.

As for other issues argued,

we note that we are not dealing

here with a situation where Illinois Power intends to change the

characteristics of its waste stream or its long—standing

discharge (an adjusted standard condition could assure this in

any event had the petition been granted).

We would have avoided

concluding that raising the standard would result in raising

Illinois Powers’s potential to pollute,

and we would not have

used ~as a reason for denial that the federal antidegradation

---

2

issue applies.

We do not accept the notion that a grant might

conflict with some future right of persons for tapping this

waterway,

certainly not for the future uses that are mentioned in

this record.

Finally, we are concerned that the opinion’s lengthy

discussion of consistency with Section 27(a)

of the Act places

undue weight on a question of consistency at the expense of the

justification proofs required in Section 28.1(c).

Also,

we’ would

argue that in this’ case Section 27(a) review is unnecessary in

that the Board is denying the request because of insufficient

justification based on inadequate proof.

What Section 28.1(a)

says is that the Board must assure itself before granting an

adjusted standard “for persons who can justify such an

adjustment” that the decision is consistent with Section 27(a).

In any event, we agree that the Section 27(a)

regulatory

considerations do not enhance Illinois Power’s position.

Compliance with the generally applicable standard is neither

technically infeasible nor economically unreasonable and the

nature of the receiving water is special indeed.

It is for these reasons that we respectfully concur.

Joan

G.

Anderson

J.

Théddore

Meyer’

I, Dorothy M.

Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the abov

c

rring opinion was

submitted on the

~&tL

day of

_____________,

1993.

Ill

Control Board