ILLINOIS POLLUTION CONTROL BOARD
July 13, 1989
A.E. STALEY MANUFACTURING
COMPANY,
Petitioner,
v.
)
PCB 88—205
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
CLIFTON A. LAKE, MCBRIDE, BAKER AND COLES, APPEARED ON BEHALF OF
PETITIONER.
JAMES O’DONNELL, IEPA, APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by J. Marlin):
This matter comes before the Board upon a petition for a
variance filed on December 30, 1988 by A.E. Staley Manufacturing
Company (Staley). Staley seeks a variance from 35 Ill. Adm. Code
212.202 for the period of January 1, 1989 through July 1, 1989 so
that it may achieve compliance with the particulate emission
standard for coal—fired boilers located outside the Chicago area
as set forth in the regulation.
On April 18, 1989, the Illinois Environmental Protection
Agency (Agency) filed a Recommendation that the variance be
granted for the requested period subject to the imposition of
certain conditions. (Agency Rec. at 5). A hearing was held on
April 20, 1989. No members of the public attended the hearing.
The hearing consisted of the Agency’s proposed amendments to its
Recommendation which were accepted by Staley. (Tr. at 4—6). On
April 26, 1989, the Agency filed its written amended
Recommendation. The Agency does not dispute any of the facts set
forth in Staley’s petition. (Agency’s Am. Rec. at 5).
For the following reasons, the Board finds that Staley would
incur an arbitrary or unreasonable hardship if the variance was
denied. Accordingly, the variance is granted subject to the
imposition of conditions as recommended by the Agency.
BACKGROUND
Staley operates a large grain processing facility
in
Decatur, Illinois. (Petition at 1). The facility utilizes corn
to produce sweeteners, animal feeds, starch and other industrial
food products. (Id.). Staley operates six coal—fired boilers,
designated #19, #20, #21, #22, #23 and #24, to produce process
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steam. (Id.). Boilers #22 and #23 are in compliance with the
particulate rule. (Id.) Staley purchases coal from the Black
Beauty Coal Company blending low sulfur coal with higher sulfer
coal. (Agency’s Rec. at 2).
PAST EFFORTS
Staley and the Agency engaged in negotiations during 1985
regarding the existing boiler facility. (Pet. at 1.) The
negotiations were necessitated by emission testing on one of the
six coal—fired boilers wr~ichindicated that four of the boilers
would be out of compliance with the then proposed emission
regulation. (Pet. at 1.) This amended regulation became
effective July 9, 1986. (Pet. at 2; see also, R82—l(á).) Staley
and the Agency reached an agreement in 1985 whereby Staley agreed
to install a new boiler system in exchange for the Agency’s
issuance of an operating permit for the existing boilers.
(Petition at 2; Agency’s Am. Rec. at 3). The new boiler system
involves construction of two fluidized—bed boilers and the
installation of a co-generation unit to produce electricity.
(Petition at 2). Construction of this system, with a projected
cost of $70.5 million, began in November of 1985. (Petition at
2). Anticipating that the new system would be operational by
January 1, 1989, the permit for the existing boilers expired on
December 31, 1988. (Petition at 2). Because four of the boilers
do not comply with the particulate emission standard (35 Ill.
Adm. Code 212.202), the Agency cannot renew the permit unless a
variance is granted.
In 1988, Staley encountered technical difficulties with
completing the installation of the new “state—of—the—art” system.
(Petition at 3). Although Staley attempted to incorporate time
for resolving start—up problems into its schedule, the
installation of this highly technical, computer—operated system
posed unanticipated problems. (Id.). At the time Staley filed
its petition for variance, it had assigned six full—time
employees to the project and was expending approximately $34,000
per week to resolve the start—up problems. (Id.).
COMPLIANCE PLAN
Staley projects that the new boiler system, which will
entirely replace the old boilers, will be fully operational no
later than July 1, 1989. (Petition at 4).
HARDSHIP AND ENVIRONMENTAL IMPACT
Only two of Staley’s existing coal—fired boilers are in
compliance with the particulate emission standard. (Petition at
1). Therefore, in order to maintain compliance with the
regulation, Staley would have to cease operating 4 of its
boilers. The requested variance would allow time for the
installation of the new boiler system sufficient to meet the
particulate emission standard.
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The Agency believes that the variance will not result in an
adverse environmental impact. (Agency’s Am. Rec. at 3). Although
the Decatur area in which Staley is located is a nonattainment
area for the National Ambient Air Quality Standard for total
suspended particulate matter (TSP), the parties note that the
area will likely be designated as an attainment area for the new
particulate matter (PM-b) standards. (Petition at 4; Agency’s
Am. Rec. at 3). Consequently, Staley believes that the grant of
the variance will not adversely affect attainment and maintenance
of the ambient air quality standards. (Petition at 4). The
Agency notes that the short—term trend for 1980—87 indicates that
the air quality (TSP) is improving. (Agency’s Am. Rec. at 3).
Furthermore, during the term of the proposed variance, Staley
will operate the new boiler system and existing boilers #22 and
#23 to the maximum extent possible to minimize particulate
emissions and reduce the load on the four noncomplying boilers.
(Petition at 4).
COMPLIANCE WITH FEDERAL LAW
The Agency notes that, if the recommended variance is
granted subsequent to the adoption of 35 Ill. Adm. Code 212.202,
a SIP revision will be necessary. (Agency’s Am. Rec. at 4).
CONCLUSION
In view of the hardship demonstrated, as well as the minimal
projected environmental effects expected during the term of this
proposed variance, the Board finds that immediate compliance with
35 Ill. Adm. Code 212.202 would impose an arbitrary or
unreasonable hardship upon Staley. Accordingly, the variance
will be granted subject to the conditions outlined in the order
below.
Staley has requested that the relief granted be retroactive
to January 1, 1989. (Pet. at 4.) Retroactive variances are
granted only upon a showing of exceptional circumstances.
(Quaker Oats Co. v. IEPA, 59 PCB 25, PCB 83—107 (July 19,
1984).) Staley has not specifically addressed why it should be
granted a retroactive variance. The record establishes that it
was not until October of 1988 that Staley encountered problems
with the installation of the new boiler system and became aware
that it might not meet its anticipated operational date of
December 31, 1988. Yet, Staley waited until the day before its
permit expired to file its petition for variance. (Pet. at 1.)
To grant retroactive relief as requested would encourage others
to file in an untimely manner. (DM1, Inc. v. IEPA, PCB 88—132
(February 23, 1989).) Section 38(a) of the Illinois
Environmental Protection Act requires that the Board act upon a
variance petition within 120 days. (Ill. Rev. Stat. 1987, ch. 111
1/2, par. 1038(a).) Staley filed a 75—day waiver of the decision
date. Accordingly, Staley will be afforded retroactive relief to
April 29, 1989, which is 120 days from the date the instant
petition for variance was filed.
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This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Staley Manufacturing Company is hereby granted a variance
from 35 Iii. Adm. Code 212.202 subject to the following
conditions:
1. The variance period begins April 29, 1989 and
expires on July 1, 1989;
2. Staley is required to utilize the best quality
coal available on the spot market, based on
both ash and sulfur content which would be
comparable to the Black Beauty Coal Company
coal;
3. Oil/gas—fired boilers #25 and #26 shall be
utilized to reduce the load requirements on the
coal—fired boilers #19., #20, #21 and #24;
4. Unit #1 and coal—fired boilers #22 and #23
shall be utilized before coal-fired boilers #21
and #24;
5. Stack opacity shall be limited to 30 except
during start—up, shutdown, or malfunctions.
Malfunctions with excess emissions shall be
reported to the Agency. That these report be
addressed to:
Mr. John Justice, Regional Manager
Division of Air Pollution Control
Illinois Environmental Protection Agency
2009 Mall Street
Collinsville, Illinois 62234
6. Staley shall continue to maintain and operate a
continuous emission monitoring (CEM) system on
the subject coal—fired boilers;
7. Staley shall submit monthly reports listing all
recorded 6 minute averages when their CEM’s
opacity readings for the boilers subject to the
variance exceed 30 to the above address; and
8. Staley shall routinely collect coal samples and
complete lab analysis on a monthly basis to
determine sulfer dioxide compliance.
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9. Within 45 days after the date of this Opinion
and Order, A.E. Staley Manufacturing Company
shall execute and send to:
Illinois Environmental Protection Agency
Attention: Thomas Davis
Enforcement Programs
2200 Churchill Road
Springfield, IL 62794—9276
a certificate of acceptance of this variance by
which it agrees to be bound by the terms and
conditions contained herein. This variance
will be void if A.E. Staley Manufacturing
Company fails to execute and forward the
certificate within the 45—day period. The 45—
day period shall be in abeyance for any period
during which the matter is appealed. The form
of the certification shall be as follows:
CERTIFICATION
I, (We)
,
having
read the Opinion and Order of the Illinois Pollution Control
Board in PCB 88—205, dated July 13, 1989, understand and accept
the said Opinion and Order, realizing that such acceptance
renders all terms and conditions thereto binding and enforceable.
Petitioner
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1985, ch. 111—1/2, par. 1041, provides for appeal of final
Orders of the Board within 35 days. The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
Board Member J.D. Dumelle concurred.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above__Opinion and Order was
adopted on the
________________
day of
________________
1989, by a vote of
________
I
Illinois Pd iution Control Board
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