ILLINOIS POLLUTION CONTROL BOARD
    March 10,
    1988
    IN THE MATTER OF:
    PETITION TO AMEND 35 ILL.
    )
    ADM. CODE PART 214, SULFUR
    )
    R86—31
    LIMITATIONS
    (CIPS Coffeen
    Generating Station)
    )
    PROPOSED RULE.
    SECOND NOTICE.
    PROPOSED OPINION AND ORDER OF THE BOARD
    (by
    3.
    Marlin):
    This matter comes before the Board on a regulatory proposal
    filed by Central Illinois Public Service Company (CIPS)
    on July
    21,
    1986.
    Through its proposal, CIPS
    is seeking relief for
    its
    Coffeen Generating Station
    (Coffeen)
    from the requirement of
    35
    Ill. Adm. Code 214.184, which establishes an emission limitation
    for sulfur dioxide
    (SO2)
    in any one hour.
    Section 214.184
    imposes an emission limit on Coffeen of 55,555 pounds
    (lbs.)
    of
    SO2 in any one hour.
    CIPS
    is proposing
    that Coffeen be exempt
    from that standard and instead be subject to emission standards
    of 65,
    194 lbs.
    of SO2
    in any one hour
    and 7.29 lbs.
    of SO2 per
    million British Thermal
    Units
    (mmbtu)
    of heat input.
    The
    Illinois Environmental Protection Agency
    (Agency)
    neither opposes
    nor supports CIPS’s
    proposal.
    (R.
    85).
    On October
    29,
    the Board proposed
    a rule for First Notice.
    That proposed rule was published
    in the Illinois Register on
    November
    20,
    1987.
    11 Ill.
    Reg.
    18925.
    In this Opinion, the
    Board will merely address comments that it has received during
    the First Notice period.
    The Board
    notes that the Illinois
    Environmental Protection Agency (Agency)
    filed no comment.
    This
    Opinion should be
    interpreted
    as supplementing the Board’s First
    Notice Opinion, and to the extent that the two Opinions conflict,
    this Opinion shall
    supercede the First Notice Opinion.
    CIPS’
    Comments
    CIPS first expresses concern over the wording
    of the
    proposed rule which conditions
    the applicability of the rule
    to
    the exclusive use of coal from Monterey’s No.
    1 Mine.
    CIPS
    states that there are circumstances
    in which CIPS might be unable
    to
    use Monterey coal exclusively but would
    still wish to be
    subject to the proposed rule’s emission limitations.
    For
    example, CIPS points
    to
    a strike
    or natural disaster
    at
    the mine
    which may temporarily interrupt the mine’s productivity, thereby
    not allowing CIPS to utilize its coal.
    Similarly,
    an anomaly in
    Monterey coal seam might
    temporarily force Monterey to blend the
    Monterey coal with lower sulfur coal
    in order
    to meet the
    proposed rule’s emission limitations.
    Finally, CIPS claims that
    87—129

    2
    when nearing
    the end of contract with Monterey,
    it may need
    to
    perform test burns with coal
    from a different source.
    According
    to CIPS, the proposed rule
    is written to preclude such test
    burns.
    CIPS also would
    like the Board to clarify its position with
    regard
    to the period of applicability of the proposed rule.
    CIPS
    is concerned
    that if
    it has to use
    some coal which
    is not from
    the Monterey mine,
    the proposed rule will terminate permanently.
    CIPS has proposed
    the following change for subsection
    (a)
    which
    it believes resolves all of these issues.
    (The underlined
    portion is the proposed addition):
    The
    emission
    standards
    of
    this
    subsection
    shall
    apply
    only
    if
    the
    requirements
    of
    subsections
    (b),
    (c),
    and
    (d)
    are
    fulfilled.
    Notwithstanding
    any
    other
    limitation contained
    in this
    Part,
    whenever,
    except
    if necessitated
    by
    force majeure,
    the
    coal
    burned
    is
    mined
    exclusively
    from
    the
    mine that
    is presently known
    as Monterey Coal
    Company’s
    No.
    1
    Mine
    located
    south
    of
    Carlinville,
    emission of sulfur
    dioxide
    from
    Units
    1 and
    2
    at
    the Central
    Illinois Public
    Service
    Company’s
    (CIPS)
    Coffeen
    Generating
    Station
    (Coffeen),
    located
    in
    Montgomery
    County,
    shall
    not
    exceed
    either
    of
    the
    following emission standards:
    (P.C.
    #11,
    p. 4—5)
    According to CIPS these changes are needed:
    The addition of the force majeure clause will
    address
    those
    situations
    that
    prevent
    100
    use of Monterey coal for reasons beyond CIPS’
    control.
    The addition of the word “whenever”
    will address situations, such as
    a test burn,
    not
    covered
    by
    the
    force
    majeure——in
    this
    situation
    the
    applicable
    limit
    would
    revert
    to
    the
    general,
    more
    restrictive
    standard
    when
    the
    exclusivity
    requirement
    was
    not
    being
    met
    but
    once
    compliance
    with
    the
    exclusivity
    standard
    can
    be
    restored
    the
    site—specific
    limit
    again
    would
    be
    applicable.
    (P.C.
    #11,
    p.
    5)
    It was the intention of the Board
    to draft the rule
    so that
    CIPS would
    be subject
    to
    a less stringent emission standard only
    when it used Monterey coal exclusively.
    It
    is not the Board’s
    87—130

    3
    position that the less stringent emission standards would be lost
    forever
    if CIPS
    failed
    to utilize Monterey coal
    in
    a continuous
    and exclusive manner.
    That
    is, during any time that CIPS does
    not exclusively use Monterey Coal,
    the general emission
    limitation will once again be applicable.
    However, once Monterey
    does resume an exclusive use of Monterey coal,
    the site—specific
    limitation of proposed Section 214.562 will once again apply.
    Consequently, the Board
    agrees with CIPS that the word “whenever”
    further clarifies the rule.
    The Board
    is not convinced, though, that it should allow
    CIPS
    to be subject to the less stringent emission standards if
    CIPS must utilize non-Monterey coal due
    to circumstances beyond
    CIPS’s control.
    CIPS states that “the record demonstrates that
    the site—specific emission limit will
    not cause
    a violation of
    any applicable ambient standard
    so,
    for that purpose the
    source
    of the coal is irrelevant.”
    (P.C.
    #11,
    p.
    5).
    CIPS seems to
    imply that the only relevant consideration
    in granting site—
    specific emission relief
    is the resulting
    impact on ambient air
    quality.
    The Board
    is not proposing relief
    for CIPS merely
    because CIPS’ modeling studies concluded that the ambient air
    standard would not be violated
    if CIPS were granted relief.
    Rather, the Board is proposing
    to grant CIPS relief due
    to the
    totality of the circumstances encountered here.
    Much of the
    justification for the proposed
    rule concerns the negative
    economic impacts which would
    result
    if CIPS could no longer
    utilize Monterey coal.
    Throughout this proceeding, CIPS has
    discussed
    the hardships which Monterey would
    incur
    if CIPS were
    denied
    relief.
    In short, CIPS has tied its own request for
    regulatory relief to the viability of the Monterey mine.
    CIPS
    should not be allowed
    to break that connection during
    circumstances which are “beyond CIPS’
    control.”
    According
    to Black’s Law Dictionary, Fifth Edition,
    the term
    force majeure
    is “common
    in construction contracts to protect the
    parties
    in the event that
    a part of the contract cannot be
    performed due
    to causes which are outside the control of the
    parties and could not be avoided by exercise of due care.”
    However, unlike
    a contract, the proposed rule only binds one
    person,
    CIPS.
    Given that fact,
    the use of the term force majeure
    would only describe circumstances which are beyond CIPS’
    control.
    It would not describe circumstances that are beyond
    Monterey’s control.
    Monterey
    is not owned
    by CIPS.
    To the extent of the Board’s
    knowledge, CIPS does not have any legal
    influence over Monterey
    beyond present contractual arrangements.
    It seems to the Board
    that the fate of Monterey’s mining operations would
    always be
    beyond
    CIPS’
    control.
    The Board can envision various circumstances which would
    halt the supply of coal to CIPS and which would also be beyond
    CIPS’s control.
    Monterey could breach its contract to supply
    87—1 31

    4
    coal
    to CIPS.
    Monterey could
    sell the mine to another company
    which would refuse
    to honor
    the CIPS coal supply contract.
    A
    strike could
    cease production, indefinitely,
    at Monterey.
    The
    owners of Monterey could shut down the mine due
    to failing
    profits.
    Although these scenarios are merely hypothetical, they
    illustrate circumstances
    in which CIPS would continue to be
    subject to the less stringent emission standards
    if the force
    majeure language were included in the proposed
    rule.
    Since the intent of the Board
    is
    to have the less stringent
    emissions limitations apply only when CIPS is using Monterey coal
    exclusively, the Board will not include the term force majeure
    in
    the rule.
    CIPS’
    next major objection involves the proposed rule’s
    requirement that CIPS conduct an ambient air monitoring and
    modeling study in order
    to verify that the increased emissions do
    not violate any primary or secondary sulfur dioxide ambient air
    quality standard.
    CIPS claims that this requirement, set—forth
    in the First
    Notice version of the proposed rule,
    could create an
    impossible
    dilemma for CIPS.
    That version of the rule requires that CIPS
    begin
    an ambient air monitoring
    and modeling program six months
    after
    the effective date of the rule.
    CIPS’
    concerns stem from
    the federal enforcement case currently being litigated against
    CIPS.
    CIPS anticipates
    ‘tthat any order entered by the District
    Court will require CIPS to comply with the 55,555 pound per hour
    limitation probably for
    a fixed period of two years or, possibly,
    until
    a SIP revision
    is approved by USEPA authorizing
    a higher
    limitation.”
    Therefore, CIPS concludes that its operations at
    higher levels during the monitoring period, would
    likely be
    in
    violation of
    a District Court order.
    Also,
    CIPS claims that
    if
    a
    settlement
    is not reached by the EJSEPA,
    a District Court decision
    will likely not be issued within six months of the effective date
    of the rule.
    Consequently, CIPS claims that
    if
    it
    is going
    to
    “comply” with the Board’s Order, by emitting
    at higher
    emission
    levels,
    it will violate the SIP.
    CIPS
    also asserts that
    if it
    complies with the SIP,
    it will lose the site—specific
    rule.
    CIPS
    states,
    and
    the Board generally agrees, that a SIP revision
    approval
    concerning the proposed rule will likely not be granted
    within six months of the effective date of the rule.
    (P.C.
    #11,
    p.
    7—10).
    Also,
    CIPS claims that the ambient air monitoring
    and
    modeling will likely make the new standard “conditional”
    in
    the
    eyes of the USEPA.
    According to CIPS,
    USEPA’s reaction to such
    a
    requirement
    is unclear.
    However, CIPS does blame
    an ambient air
    monitoring and modeling requirement for the delay
    in USEPA’s SIP
    revision approval for Illinois Power Company’s Baldwin Station
    SO2 emission standards.
    According to CIPS,
    this delay influenced
    CIPS
    in choosing
    to pursue an alternative SO2 emission standard
    via
    a site—specific rulemaking
    rather
    than determination pursuant
    to Section 214.185.
    (P.C.
    #11,
    p. 9—10).
    87—132

    5
    Finally, CIPS argues that the ambient air monitoring and
    modeling
    is unnecessary.
    CIPS states that the modeling results
    already presented
    to the Board are far more conservative than
    what would be generated from
    a monitoring study.
    According
    to
    CIPS,
    the Board should consider this conservatism when viewing
    the fact
    that CIPS’ models showed
    a concentration level
    close
    to
    the three—hour
    ambient air standard.
    (P.C.
    #10—11).
    CIPS asserts
    that the inherent limitations
    on monitoring studies,
    including
    the determination on where to locate the monitors,
    are reasons
    why monitoring
    is rarely done
    for isolated
    sources.
    (P.C.
    *11, p.
    12).
    It
    is still
    the Board’s position that the ambient air
    monitoring
    and modeling requirement of the proposed rule has
    value
    irrespective of the fact that CIPS’
    Coffeen Generating
    Station
    is located
    in
    a rural
    area.
    Such
    a requirement is
    consistent with the procedures
    for determining alternative
    emission standards pursuant to Section 214.185.
    The Board does
    not view the emission standards of subsection
    (a)
    of the proposed
    rule as being contingent upon the results of the ambient air
    monitoring
    and modeling.
    Like the stack tests, the purpose of
    the monitoring and modeling requirement is
    to provide more
    information which can be utilized
    in evaluating
    the actual
    impact
    of CIPS’
    emissions on the environment.
    This is especially
    important since
    the proposed
    rule will allow CIPS
    to emit 17
    more SO2 than what
    is presently allowed.
    The Board has
    substituted the word “demonstrate”
    for
    the word “verify”
    in an
    effort to clarify the Board’s position.
    Much of CIPS’
    arguments against the ambient air monitoring
    and modeling program merely involve the timing of program not its
    utility.
    Essentially, CIPS
    is concerned that it will be required
    by the rule to conduct the monitoring and modeling program at a
    time when CIPS might not be able to emit SO~at the elevated
    levels allowed by the proposed
    rule.
    That is, the situation
    could
    exist when CIPS may be permitted by the Agency to emit
    65,194 pounds of SO2
    in any one hour but
    it will
    in fact only be
    emitting 55,555
    lbs. per
    hour due
    to the constraints of a federal
    court decision.
    In light of this potential predicament,
    the
    Board will change
    the timing of the proposed
    rule’s monitoring
    and modeling requirement.
    CIPS
    is currently operating
    under
    a load limitation of 765
    net megawatts
    (MW)
    in order
    to achieve compliance with 55,555
    lbs. standard.
    The Board will require CIPS
    to begin
    its ambient
    air monitoring and modeling program
    6 months after
    it begins
    operating
    at
    a level
    in excess of 765 net
    MW.
    By linking the
    timing of the monitoring and modeling program
    to an event within
    CIPS’
    control, CIPS will not be forced
    into non—compliance with
    either
    a Board rule or
    a federal court order.
    87—133

    6
    The last issue raised by CIPS concerns the stack testing
    required
    imposed by the First Notice version of the rule.
    That
    version of the rule requires that CIPS conduct
    a stack
    test prior
    to each operating permit renewal.
    The reasons for this
    requirement included the lack of frequency in
    stack testing
    in
    the past as well as the great disparity in the results of the
    1.974
    stack test and the 1986 stack test.
    CIPS essentially agrues that
    the 1974
    stack test was
    an
    anomoly and that the 1986 stack test results are consistent with
    what would normally be expected.
    As
    a result, CIPS
    claims that
    additional
    stack tests will likely not show any different results
    when compared with 1986 test results.
    Also,
    CIPS states that the
    Board
    should not interfere with the Agency’s discretion
    in
    requiring stack
    tests.
    The Board agrees with CIPS that the requirement for stack
    testing and the frequency of such stack
    testing should,
    in
    general, be left
    to
    the Agency’s discretion.
    Upon
    reconsideration,
    the Board finds that
    it
    is not necessary to
    require CIPS to conduct stack tests prior
    to every permit renewal
    in the future.
    However, the Board
    still believes that stack
    tests should be conducted periodically and
    that they are
    necessary to verify that actual SO2 emissions are below the
    allowable limits.
    The Board
    will
    alter
    the proposed
    rule to
    require that
    a stack test be conducted no later than six months
    after CIPS begins operating at
    a level
    in excess of 765
    net
    megawatts.
    This provision does not preclude the Agency from
    requiring
    additional
    stack tests before or after that date.
    Other
    Comments
    The president of Monterey,
    G.E.
    Tilman,
    filed a comment
    in
    support of the Board’s proposed rule.
    In the comment, Tilman
    states:
    Monterey appreciates the stipulation that the
    proposed
    revised
    emission
    limits
    apply
    only
    if
    the
    coal
    burned
    at
    Coffeen
    is
    mined
    exclusively
    from Monterey
    No.
    1
    Mine.
    This
    stipulation
    will
    prevent
    severe
    economic
    disruption
    to
    Monterey
    employees
    and
    the
    communities
    in which they live.
    *
    *
    *
    In closing,
    I wish
    to thank
    the Board
    for its
    consideration of
    the economic
    impact
    of this
    rulemaking
    procedure
    on
    Monterey
    employees.
    Monterey endorses
    the proposed rule and urges
    the
    Board
    to
    adopt
    it
    in
    final
    form
    exactly
    as written.
    87—134

    7
    Also,
    the comment points out that all
    of the coal
    shipped by
    Monterey to CIPS’
    Coffeen Generating Station
    is washed prior
    to
    shipment.
    (P.C.
    #3).
    The Board
    received nine other public comments,
    all of which
    were
    in support of the proposed
    rule.
    All but one of these
    additional
    commenters identified themselves as either
    an employee
    of Monterey or
    a family member of an employee.
    On February
    18,
    1988, the Small Business Office of the
    Department of Commerce and Community Affairs
    filed
    a public
    comment with the Board.
    The Board hereby accepts the comment as
    P.C.
    #14.
    The comment states that the proposed rule would have
    no effect on small
    businesses regulated
    by the rule.
    The Board
    notes that the proposed rule only regulates CIPS which has not
    claimed
    to be a small business.
    ORDER
    The Board proposes the following amendments for Second
    Notice
    to be filed with the Joint Committee on Administrative
    Rules.
    TITLE
    35:
    ENVIRONMENTAL PROTECTION
    SUBTITLE B:
    AIR POLLUTION
    CHAPTER
    I:
    POLLUTION CONTROL BOARD
    SUBCHAPTER
    C:
    EMISSION STANDARDS AND LIMITATIONS
    FOR STATIONARY SOURCES
    PART 214
    SULFUR LIMITATIONS
    SUBPART
    X:
    UTILITIES
    Section 214.562
    Coffeen Generating Station
    a)
    The emission
    standards of this subsection
    shall apply
    Only if the requirements
    of subsections (b),(c), and
    (d)
    are fulfilled.
    Notwithstanding
    any other limitation
    contained
    in this Part, whenever
    the coal
    burned
    is
    mined exclusively from the mine that
    is presently known
    as Monterey Coal Company’s No.
    1 Mine located south of
    Carlinville,
    emission of sulfur dioxide
    from Units
    I and
    2 at the Central Illinois Public Service Company’s
    (CIPS) Coffeen Generating Station
    (Coffeen),
    located
    in
    Montgomery County,
    shall not exceed either of the
    following emission standards:
    1)
    29,572 kilograms of sulfur dioxide
    in any one hour
    (65,194 lbs/hr);
    and
    2)
    11.29 kilograms of sulfur dioxide per megawatt—hour
    of heat input
    (7.29 lbs/mmbtu).
    87—135

    8
    b)
    CIPS shall conduct an ambient sulfur dioxide monitoring
    and dispersion modeling program designed to demonstrate
    that the emission standards of subsection
    (a) will
    not
    cause or contribute
    to violations
    of any applicable
    primary or secondary sulfur dioxide ambient air quality
    standard as set
    forth
    in Section 243.122.
    Such ambient
    monitoring
    and dispersion modeling program shall
    be
    operated
    for at least one year commencing no later than
    6 months after Coffeen begins
    to operate
    at
    a level
    in
    excess
    of 765 net megawatts.
    c)
    No more than
    15 months after
    the commencement of the
    ambient monitoring
    and dispersion modeling program of
    subsection
    (b), CIPS shall apply for
    a new operating
    permit.
    CIPS shall submit
    to the Environmental
    Protection Agency (Agency),
    at the time of the
    application,
    a report containing the results of the
    ambient monitoring
    and dispersion modeling program
    of
    subsection
    (b)
    and the results of all relevant stack
    tests conducted prior to the report’s submission.
    d)
    No later than six months after Coffeen begins
    to operate
    at
    a level
    in excess of
    765 net megawatts,
    a stack test
    shall
    be conducted
    in order
    to determine compliance with
    emission standards set forth
    in subsection
    (a).
    After
    the stack test
    is conducted,
    the results
    shall
    be
    submitted
    to the Agency within 90 days.
    The
    requirements of this subsection do not preclude the
    Agency from requiring additional
    stack tests.
    (Source:
    Added at
    11
    Ill.
    Reg.
    effective
    IT
    IS SO ORDERED.
    J.D. Dumelle concurred.
    I,
    Dorothy
    M.
    Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Proposed Opinion and Order
    was adopted
    on the
    ~
    day of
    ________________,
    1988,
    by a
    vote of ____________________________
    Dorothy
    M.
    Gunn,
    Clerk
    Illinois Pollution Control Board
    87—136

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