ILLIN)13 POLLtJTI3~’1 CONPROL BOARD

February 25, 1988

ALTON PACKAGI~IG CORP.,

Petitioner,

v.

)

PCB 83—49

ILLINOIS ENVIRONMENTAL

)

PROT~CTI3~A~GENCY,

Respondent.

MR. D~WI~LF. ~D’CON~LL ~PPE~RED O.~BEH~LLFOF PETITIONER, ALTO~

PACK~GI~1GCORPORATION;

MR. WILLIAM INGERSOLL PPE~RED ON BEHALF OF R~3PONDENT, ILLIN313

ENVIRONMENTAL PROTECTION AGENCY.

)PI~IOP~IAND ORDER OF THE BOARD (by R. C. Flemal):

This matter comes before the Board upon an amended petition

for variance filed by ~lton Packaging Corporation (“Altori”) on

February 17, 1987. Alton seeks variance from former Rule 204(f)

of Cha?ter 2 of the Boar~’sAir Pollution Rules and Regulations

(now codified as 35 Ill. Adm. Code 214.141) for sulfur dioxide

(SO2) emission3 emanatin~ from boilers 6 and 7 at its paoerboard

mill (“Alton Mill”) located in Alton, Illinois. Variance relief

is requested for a period of three years or until the Board

grants Alton site—specific relief from Section 214.141, whichever

occurs sooner.

For the reasons described below, the Board finds that Alton

has failed to make the requisite showing necessary for the

granting of variaric’? relief. The Board will therefore deny the

variance relief requested by Alton.

BAC

KGRO’:JND

Rule

204 was amended by the Board on February 24, l9~33. ~

new subsection (f) was added at that time which instituted a

sulfur dioxide emission limitation of 1.8 poun3s per million

British thermal units (“mmbtu”) of energy produced. Alton filed

its initial variance petition in this matter, along with a

concurrent petition seeking Board approval of an alternative

standard for the .Adton Mill pursuant to 35 Ill. Mm. Code

214.201, on April 13, 1983. Because Alton filed its variance

petition within 20 days of the effective date of Rule 204(f), it

received an automatic stay, pursuant to Section 38(b) of the

Environmental Protection Act (“Act”), of the emission limitation

pending disposition of its variance petition.

86—289

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—2—

The Illinois Environmental Protection Agency (“Agency”)

filed Recomnendations on August 17, 1933, recom~ending that

Alton’s petitions for variance and site—specific relief be

denied.

The gency recom.riended denial due to its belief that

Alton’s air

disoersion modeling failed to show, “under all

foreseeable conditions”, that

~lton’s

requestad level of sulfur

dioxide emissions would not cause or contribute to a violation of

the Na:ional Ambient Air Quality Standard for sulfur dioxide.

After the filing of the Agency’s recommendations, Alton

worked with

the Agency in revising

its modeling study. On June

29, 1984, the Board, noting no activity in the case since August

1983, ordered a hearing to be held on Alton’s petitions within 60

days. On July 1, Alton filed a motion to extend the hearing date

until October 30, because the hearing officer assigned to the

case was unavailable for a hearing within the time set by the

Board. The Board granted Alton’s ~notion. hearing wa~

scheduled for October 25, but was rescheduled to December 7 by

the hearing officer.

At the December hearing, Alton presented the conclusions of

its revised modeling study through the testimony of its

consulting expert. At the end of the hearing, Adton stated it

intended to file within the next thirty days amended petitions

conforming with the testimor~y at the hearing. The Agency noted

that it already had Alton’s modeling results and would file an

amende~ recommendation within 30 days after receiving Alton’s

amended petitions. No amended petitions were ever filed.

In April of 1985, the Agency sent a letter to Alton asking

for clarification of a few technical matters. Alton forwarded

this letter to its consultant, but aooarently no response was

made. On July 19, l985,r the Agency moved to dismiss P.lton’s

petitions for failure tu prosecute th~matter with diligence. On

July 23, the hearing officer scheduled a hearing on Alton’s

petitions for Se~tember 18. On August 1, however, the Board

dismissed Alton’s case. The Board stated in its Order, after

noting no further activity in the case since the December

hearing, that Alton had had sufficient time to present its case

and should not be allowed to extend the automatic stay by filing

an amended petition. The hearing officer accordingly cancelled

the September 18 scheduled hearing. Alton filed a motion for

reconsideration on September 4, 1985, which the Board denied on

Seotember 20, 1985. Z~lton then apoealed the Board’s decision to

the Illinois Appellate Court, Fifth District.

The Fifth District Court found on Sertember 5, 1986, that

the Board erred in dismissing Alton’s petition without a hearing

and in refusing to reconsider its decision. The Court noted that

a dismissal for failure to prosecute is justified when the party

has been guilty of inexcusable delay in prosecuting the suit.

The Court found, however, that the record did not suoport a

86—290

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finding of inexcusable delay on the part of Alton. The Court

consequently reversed

the Board’s August 1, 1985, decision

dismissing Alton’s petitions and remanded the matter back to the

Board for further proceedings. A new hearing was conducted on

January 15, 1987. An amended petition was filed by Alton on

February 17, 1987. Post hearing briefs from both lton an~the

Agency have also been received by the Board.

TdE ALPO:I F~CILETY

The Alton Mill is one of the larger paperboard mills in the

Midwest. It is located within the city limits of Alton,

Illinois, in Madison County on the Mississippi River immediately

below Alton Lock and Dam No. 26. The Alton Mill employs 60

salaried and 230 union employees.

The Alton Mill site is aporoximately 107 acres, and includes

several buildings comprising a little over 500,000 square feet.

The Alton Mill produces approximately 600 tons of paoerboard per

day and 200,000 tons per year. The paperboard is converted into

manufactu~ingproducts for use in corrugated shipping containers.

R. at 34.

The Alton Mill uses steam both for heating and in the

production of oaperboard. Alton owns five boilers which it can

use to produce steam. Of these, Alton regularly uses only

boilers 6 and 7. Id. These two boilers have adequate capacity

to orovide all the steam needed at the Alton Mill, and at the

same time, provide steam to LaClede Steel Company (“LaClede”)

pursuant to an agreement between the two companies (see pgs. 8—

9).

Boilers 8 and 9 are only used when the main boilers (i.e.

boilers 6 and 7) are unable to operate at their normal

capacity. In such a situation, boilers 8 and 9 are normally

operated on natural gas, but can be operated on oil. Boiler 5

has not been fired in years, but can be fired on an emergency

basis. R. at 34—35.

1 References made to the transcript of the January 15, 1987,

hearing in this matter will be cited as “R. at

______

86—29 1

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—4—

The capacity of the five boilers is as follows:

Boiler #

Heat Input BTU/hrs.

Fuel Used

5

114 mmbtu

Gas

125 mmbtu

Oil

6

171 mmbtu

Coal

173 mmbtu

Gas

178 mmbtu

Oil

7

445 mmbtu

Coal

444 mmbtu

Gas

464 mmbtu

Oil

8

182 mrnbtu

Gas

175 mmbtu

Oil

9

182 mmbtu

Gas

175 mmbtu

Oil

R. at 35.

Boilers 6 and 7 are the subject of Alton’s Petition for

Variance. Notwithstanding their rated caoacity, the boilers are

not operated above 138.5 mmbtu per hour for boiler 6 and 365.5

mmbtu per hour for boiler 7, for a combined maximum firing rate

of 504 mmbtu per hour. R at 35. Boilers 6 and 7 are pulverized,

wet bottom boilers. Coal is ground into a fine powder in five

pulverizers and then blown into the boilers. The coal is burned

in the boilers, producing heat; the heat, in turn, is used to

produce steam for heating and process use. The exhaust from each

boiler passes through a mechanical collector known as a “multi—

clone” and then through an electro—static precipitator. These

particulate control devices have a combined collection efficiency

of approximately 99. The boilers vent through separate stacks

which are 54 feet above the Mill roof and 192 feet above grade.

R. at 35—36. The Alton Mill is not equipped with any add—on

control devices to reduce sulfur dioxide emissions. R. at 36.

RELIEF REQUESTED

Alton requests that the Board grant it variance from Section

214.141 for three years or until the Board grants it site—

specific relief from the same section, whichever occurs first.

Alton is willing to limit the scope of this relief by complying

with a number of conditions. Specifically, these conditions are

that:

86—292

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—,.)—

(1) Alton will operate boilers 6 and 7 using coal

with a maximum average 902 emission rate of 5

lbs per mmbtu;

(2) Alton will limit its firing rate to 138.5 mmbtu

per hour for boiler 6 and 365.5 mmbtu per hour

for boiler 7;

(3) Alton will not operate its boilers 5, 8 and 9 on

oil unless it limits its operation of boilers 6

and 7 to the use of coal with a maximum average

SO2 emission rate of 1.8 lbs per mmbtu; and

(4) Alton will increase the height of the stacks

from boilers 6 and

7 to 234 feet above grade.

The suggested compliance conditions would not inhibit

Alton’s ability to maintain its operations at present levels, and

in fact seem to provide some flexibility

for Alton to exoand

operations.

More specifically,

Alton proposes (oursuant to

condition 1, above) to operate its boilers 6 and 7 solely on coal

having

a maximum average SO2 emission rate of

5 lbs per mmbtu.

Based on a weighted average, the Alton Mill’s 302 emission rate

for 1985 was 4.43 lbs per mmbtu.

R. at 37.

A similar degree of leeway appears

to exist in the requested

condition pertaining to the firing rates of the two boilers.

Under condition 2 (above), Alton proposes to limit the firing

rate of boilers 6 and 7 to 138.5 mmbtu per hour and 365.5 mmbtu

per hour, respectively.

The ~gency contends such a level of

operation would be approximately 24 greater than the level

anticipated for 1987, and the latter assumes an aooroximate 45

increase in the amount of coal burned over 1986 levels.

Agency

Post—searing Brief, o. 6.

ECONOMIC HARDSHIP

Alton states that in order to comply with the 1.8 lbs/mmbtu

limitation,

it would have to purchase low—sulfur coal from out—

of—state sources. R. at 48—49. At time of hearing, Petitioner

indicated its belief that it cou1~ purchase such coal for $37.80

per ton, which Alton states is $9.80 to $12.50 more per ton than

it pays for the coal it currently uses.

R. at 49. Alton

calculates that for 1987 coal purchases, this manner of complying

with the 1.8 lbs/mbtu standard woul~ cost the company an

additional $1.43 million to $1.82 million.

Id. Petitioner

argues that this cost would be economically unreasonable, and

warns that the profitability

of its Alton facility would be

seriously jeooardized if it were forced to increase its operating

costs in this manner.

Alton’s Post—Hearing Brief, p. 22.

According to Petitioner,

“(t)he Comoany’s management would be

86— 293

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forced to reconsider the continued economic viability of the

(Alton) Mill”. Id.

The bur3en of proof in a variance proceeding is on the

petitioner (see Ill. Rev. Stat. 1985, ch. lll~-/2, par. 1037(a)),

and the Board concludes that in this instance Petitioner has

failed to adequately demonstrate that denial of the requested

relief woul~ impose an arbitrary or unreasonable hardshio upon

Alton.

Alton has failed to make the requisite showing in several

respects. First, Alton’s projected $1.43 million to $1.82

million increase in annual operating costs (predicted to come

about because of a need to purchase low—sulfur coal from out—of—

state) is subject to some dispute.

These figures were calculated

from a per ton price of $37.80. The Agency questions the manner

in which that figure was determined, as IL is the result of a

“spread sheet check on prices in various mines” (R. at 59), but

is apparently not the result of a bidding process. Agency Post—

Hearing Brief, pgs. 6—7. Competitive bidding might very well

reduce the price per ton of this coal, thereby reducing the

overall cost of compliance and impacting the question of whether

unreasonable economic hardshio exists.

Second, Alton has presented no data concerning the cost(s)

of utilizing any other compliance option(s). The Board is aware

from its past rulemakings that other technologies exist for

sulfur dioxide control. These include lime or limestone

injection into the furnace with the pulverized coal, fluidized

bed furnaces, and wet

arid

dry stack gas scrubbers. Alton

presents no information whatsoever regarding any of these

possible alternatives. It is not clear whether Altori han

investigated any alternative control technologies, or whether

utilizing low—sulfur coal would in fact even be the most

economical way for Petitioner to comply with the 1.8

lbs/nimbtu

limitation. Similarly, Alton has made no mention of whether it

has considered alternative energy sources to coal that might be

used for the production of steam.

In this context it is to be

noted that the boilers

in question

are capable of operating on

fuel other than coal.

Finally, Alton has not shown the impact that

a $1.43 million

to $1.82 million increase in annual operating expenditures would

have on Jefferson Smurfit Corporation (“J3C”). Alton is wholly

owned by JSC, yet Petitioner has not addressed the question of

whether an increase in costs of the magnitude discussed would

constitute unreasonable economic hardship to JSC. Alton contends

that the viability of a JSC plant (of which the Alton Mill is

one) is evaluated by the corporate parent on the basis of that

plant’s individual orofitability, and so for that reason argues

that the projected increase in operating costs should be

evaluated in light of the Alton Mill’s $3.5 million profit in

86—294

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—7—

1986. Alton’s Post—Hearing Brief, p. 23; R. at 63. As an

illustration

of the JSC philosophy, an Alton witness testified

that “(o)nly if (the plant) can show a return do(es) (the plant)

receive caoital funds for improvement”.

R. at 61.

That JSC evaluates each of its plants as individual profit

centers is well and good, but that is not relevant to the issue

of whether the Board should look in this instance solely to Alton

or JSC to determine the true cost of compliance with Section

214.141. In fact, that the JSC

plants compete with each other

for capital improvement funds is telling, but for a different

reason than that envisioned by Alton. As JSC seemingly views the

Alton Mill in identical fashion to the way it views its other

plants, and given that $10 million in capital improvement funds

is presently committed by JSC to the ~‘\ltonMill (R. at 63), it is

apparent that Alton does not operate in a manner thoroughly

independent from JSC. On the contrary, Alton more readily

appears to function as an arm of JSC. This is further

exemplified by the fact that at least some percentage of the

Alton Mill’s output is utilized by JSC for production within the

latter’s Container Division.

Exhibit 1, o. 6. JSC is the entity

against which the projected increase in operating costs must also

be evaluate~, but Alton did not provide the information which

would have made such an analysis possible.

ENVIRONMENTAL IMPACT

Alton presented the findings of two modeling studies, both

undertaken by contractors hired by Petitioner, in support of its

contention that ambient air quality will be protected during the

term of the requested variance.

Ronald L. Petersen of Cermak/Peterka arid Associates, Inc.

testified at hearing regarding the fluid modeling study that

company performed for Alton.

This study was done to demonstrate

that the increase in height Alton proposes for the stacks of its

boilers 6 and 7 (from the existing 192 feet to 234 feet) is

necessary in order to avoid “excessive concentrations” of SO2 due

to downwash effects. Such a demonstration must be made before a

facility may receive credit in its air dispersion modeling for

certain stack height increases. R. at 21—22.

Federal regulations define “excessive concentrations” as

those occurring where maximum ground level concentrations are 40

higher because of downwash effects caused by nearby structures

than the concentration would be with these effects removed, and

those maximum ground level concentrations are in excess of

National Ambient Air Quality Standard (“NAAQS”). R at 22. The

modeling study showed that both conditions are satisfied in this

instance. That is,

at the operating parameters requested by

Alton (SO2 emission rate of 5 lbs/mmbtu and operating rates of

86—295

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—8—

138.5 and 365.5 mmbtu per hour for boilers 6 and 7,

respectively), the maximum hourly groun~ level concentrations

would be 40 higher because

o~ the structures presen~, and these

concentrations would be expectel to exceed the NAAQS

.

R. at 25—

27.

John Paul Bradley of Murray and Trettel,

Inc. presented

testimony on the air dispersion modeling study completed by that

company for lton. The study consists of two components. The

first involved an analysis of what operating parameters at the

Alton Mill would assure maintenance of the N.AAQS for SO2 after

the planned increase in stack height, without reliance on

LaClede’s reduced SO2 emissions pursuant t the steam

agreement. R. at 75—76. The second component addressed the

questions of what combination of operating parameters and other

arrangements would ensure that the NAAQS for SO2 would be

maintained prior to the completion of the stack height

increase. R. at 76.

The modeling used a grid of 79 receptors, arranged on a

roughly rectangular grid. R. at 83. Receptors were located in

areas expected to receive the most significant impact, and in

areas of expected interaction between Alton and other modeled

sources. Id.

All 79 receptors were modeled using 1973 meteorological

data. R. at 86. Seven receptors showed second highest

concen~rations exceeding 85 of the 365 microgram per cubic meter

(“ug/m

“)

24—hour standard. Id. These seven receptors were then

modeled using 1974—1977 meteorological data. The highest s~cond

highest concentration re~orded by a receptor was 358.6 ug/m3.

Id.; Alton Gr•ouo Exhibit 5(h). The modeling therefore

demonstrated no modeled violations of 35 Ill. Adm. Code 243.122

(Sulfur Oxides). Based on these results, Mr. Bradley opined that

at the operating parameters requested by Alton, emissions from

the Alto-i Mill boilers will not result in any violations of the

SO2 NAAQS. R. at 87.

The second component of the air dispersion mo9eling

consisted of an analysis of how Alton might provide for th~

maintenance of ambient air quality during the period prior to

accomplishment of the stack height increase. The modeling done

for this question showed that no violations of the NA~Q3for 302

2 In fact, Dr. Petersen testified that even if the SO2 emission

rate was 1.8 lbs/mmbtu, the fluid modeling study predicted that

the NAAQS for SD2 would be violated.

3 Hereinafter references to Alton’s Exhibits will appear as

“Alton Ex.

86—296

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—9—

would occur as a result of Alton’s emissions during this interim

ocriod, orovided that Petitioner operates within the parameters

it requests and LaClede complies with the provisions of the

agreements reached between Alton and itself. R. at 91—92. A

description of these agreements is appropriate this time.

An agreement involving the sale of steam from Alton to

LaClede was entered into by those two entities in 1984. Alton

Ex. 4(a); R. at 42. Under the terms of the contract, steam is

provided via a line constructed from the Alton Mill to LaClede.

The steam is sold at an agreed once, and is used by LaClele in

its operations. As a consequence of the contract, LaClede has

not operate5 its steam boilers 1 and 2 for the last few years.

Id. The contract provides that it can only be terminated after

six months written notice (Amended Petition for Variance,

0.

10)

and will exoire in 1989 (R. at 43).

Altori’s air dispersion modeling predicted violations of the

NAAQS for SO2 prior to the stack height increase if Alton

operates within its requested oarameters and LaClede operates its

boiler 2 at its maximum permitted level using oil. R. at 88—

89. Alton is therefore relying, in making its case, on LaClede

to adhere to the terms of the steam sales agreement and

consequently riot operate its boilers. Alton asserts that LaClede

and itself will “almost undoubtedly maintain this agreement

throughout the period of the variance prior to Alton raising its

stacks (because)

...

the economies for both parties will provide

a strong incentive to maintain the arrangement”. R. at 43.

Alton has also entered into a “notification” agreement with

LaClede for the purpose of allowing Alton to avoid violations of

the SO2 NAAQS should LaClede decide to operate its process

sources on oil. Under the terms of the agreement, LaClede would

provide Alton written notification seven days prior to operating

in this manner. LaClede’s process sources are presently operated

on natural gas, but are permitted to operate on oil.

Alton has stated that it would accept the following

operating restrictions as conditions to the granting of the

shouldrequestedanyvariance,of the followingin

order

scenariosto

preventarise.NAAQS

violationsThese

conditionsof

SO2

would apply to the period prior to the completion of the stack

height increase. Alton’s modeling predicts that in the following

situations, Petitioner could operate at the stated levels and not

cause 302 violations:

86— 297

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—to—

AllowableEmissions302

EmissionCoal

SO2Rate

Firing Rate

(lbs/hr)

(lbs/mmbtu)

(mmbtu/hr)

Scenar io

Status Quo

2,520

5

Boiler 6: 138.5

(steam contract

or 1.8 if

Boiler 7: 365.5

is observed and

Boilers

Total: 504.0

LaClede operated

5, 8 and 9

its process sources

are operated

on natural gas)

using oil

LaClede operates

2,403

5

Boiler 6: 137.0

Boilers 1 and 2

Boiler 7: 361.6

on oil and pro—

Total:

499

cess sources on

natural gas

Steam Contract

1,049

5

Boiler 6: 112.6

continues, but

Boiler 7: 297.0

LaClede operates

Total: 409.6

its process

sources on oil

LaCle3e operates

1,925

5

Boiler 6: 105.8

Boilers 1 or 2

Boiler 7: 279.2

and process

Total: 385.0

sources on oil

COMPLIANCE PLAN

It is axiomatic that a variance does not grant permanent

relief from compliance with a regulatory requirement. One

necessary aspect of a variance petition is that it describe how

and when a facility will come into compliance. This concept is

articulated at 35 Iii. Adm. Code 104.121(f):

A detailed description of the existing and proposed

undertakenequipment

orto proposedachieve methodfull

complianceof

controlwithto

theb2 Act

arid regulations, including a time schedule for

implementation of all phases of the control program

from initiation of design to program completion and

the estimated costs involved for each phase and the

total cost to achieve compliance.

Alton has not presented a compliance plan in the proper

sense of that term.

Alton has offered no plan under which the

boilers at the Alton Mill would ever be brought into compliance

with the Act and regulations. Rather, Alton requests a three—

86—298

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—11—

year variance so that it may pursue permanent relief from the 1.8

lbs/mmbtu standard of Section 2l4.lfl. by attempting to secure,

pursuant to 35 Ill. Adm. Code 214.201, an alternative standard

for the Alton Mill.

Moreover, Alton’s Amended Petition for

Variance does not include a commitment from Petitioner that it

will bring the Alton Mill into compliance by a date certain

should the Board

deny Alton the relief it requests under Section

214.201.

The absence of a compliance plan in this matter is one of

the factors

upon which the Agency bases

its recommendation that

variance relief be denied Petitioner. The Agency opines that

“(p)ursuit of a site—specific limitation is not a compliance plan

to support a variance petition”. Agency Post—Hearing Brief, p.

11. Conversely, Alton contends that Citizens Utilities Co. v.

Pollution Control Board, 152 Ill. Acm. 3d 122 (3rd Dist. 1997),

is controlling and cites it for the proposition that it is

reversible error for the Board to refuse to grant a variance,

pending resolution of an ongoing related rulemaking proceeding,

if granting the variance would prevent the expenditure of what

might

become needless compliance costs.

The Board finds that Citizens Utilities is readily

distinguishable from the matter at hand. ~itizens Utilities

concernel an ongoing rulemaking in which the Agency was proposing

amendments to rules which, if promulgated, would arguably have

negated the need for that petitioner or for any other similarly

located entities to undertake any compliance effort. In the

instant matter, the “ongoing rulemaking”, PCB 83—55, is a

creation of Petitioner itself, and consists entirely of a

proposal which would remove Petitioner alone from the need to

comply with existing regulations. The Board does not believe

that such actions on the part of a petitioner can or should be

allowed to serve the end of avoiding compliance or deflecting

enforcement.

Moreover, the Board believes that it

has never been

the

intent of the General Assembly to require the granting of

variance whenever a regulatory standard is under review. tn

support thereof, the Board looks to the action of the General

Assembly in its most recent general session. There the Illinois

House passed by a vote of 114—1 and the Illinois Senate passed by

a vote of 37—7 the following amendment to Section 35(a) of the

Act:

(a) The Board may grant individual variances beyond

the limitations prescribed in this Act, whenever it

is found upon presentation of adequate proof, that

compliance with any rule or regulation, requirement

or order of the Boarl would impose an arbitrary or

unreasonable hardship. However, the Board is not

required to find that an arbitrary or unreasonable

86—299

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hardship exists exclusively because the regulatory

standard is under review and the costs of compliance

are substantial and certain...

The omnibus bill containing this amendment also contained

certain provisions totally unrelated to the amendment.

Controversial provisions regarding landfill fee caps were added

to the bill in a conference committee report by a vote of 91—31

in the House and 35—20 in the Senate. The Governor then

amendatorily vetoed the bill regarding the fee cap and other

provisions having to do with the Solid waste Management Act, all

of which was unrelated to the amendnent of concern in the instant

case. Although the total bill failed to gain passage during the

following veto session of the General Assembly, the Board

believes that the strong vote of both Houses of the original bill

containing the amendment and the absence of the Governor’s veto

of the particular provision in question stands as a public record

of legislative intent to not require granting of variances

whenever there is review of an underlying regulation.

The Illinois Supreme Court recently addressed a similar

interpretation of legislative action in Central Illinois Public

Service Company v. Illinois Pollution Control Board, 116 Ill.2d

397, 507 N.E. 2d 819

,

in which it noted:

Subsequent enactments may be used to help determine

the legislature’s original intent (In re Marriage of

Semmler (1995), 137 Ill. 2d 130, 137), particularly

where the amendment is enacted shortly after the

interpretation of the statute it amends comes into

dispute (People v. Rink (1983), 97 Ill. 2d 533,540—

541). This amendment is additional evidence that the

legislature did not intend to do away with site—

specific rulemaking pursuant to section 27 when it

originally enacted section 28.1.

The Board therefore finds that it is not now, nor has it

been, the legislative intent of the variance process in Illinois

to require granting of variances for the reasons here advocated

by Alton. Moreover, the Board affirms that pursuit of a site—

soecific limitation does not of itself constitute a compliance

plan sufficient to meet the requirements for granting of a

variance. See

Modine

Manufacturing v. I~PA, PCB 71—112, August

18, 1982; Modine Manufacturing v. IEPA, PCB 85—59, May 16, 1985;

City of Mendota v. IEPA, PCB 85—182, July 11, 1986; Borden

Chemical v. IEPA, PCB 82—82, December 5, 1985; Schro~k7~E~appan

Division v. I~PA,PC~385—205, March 5, 1997.

86—300

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—13—

CONCLUSION

The Board finds that Alton has not persuasively shown that

it would sffer arbitrary or unreaso~ab1e har ship if denied

variance relief in this matter.

Petitioner has not proven that

it or its parent company,

390,

would be faced with economic

hardship if required to comply with Section 214.141 (see pgs. 5—

7). In addition, .Alton has failed to meet another necessary

prerequisite to the granting of variance relief. That

orerequisite

is a commitment to the imposition of a compliance

plan which ensures that compliance will be achieved by a date

certain.

For either reason the Board mu3t deny the relief

requested.

The Board does note that Altos has presen~eda great deal of

modeling data, which Petitioner has provided for its own purpose

of showing that the requested variance relief will not cause a

violation of the SO2 NAAQS.

Alton has also presented testimony

regarding

the “steam sales” and “notification” agreements it has

entered into with LaClede. These agreements, from Pilton’s

perspective, also serve the purpose of showing that the requested

relief would not cause a violation of the NAAQS for SO2.

Notwithstanding the volume of information presented on these

points, the fact is that this evidence only meets the threshhold

condition here, since under federal law the Board cannot grant a

variance where a NAAQS violation would result. Even the mounds

of modeling data presented by Petitioner cannot overcome the

basic inadequacy of its case.

That is, it has failed to show

that it would suffer arbitrary or unreasonable hardship if

required to comply with Section 214.141.

However, Alton’s modeling data is quite relevant to the

showing it must make in the ongoing proceeding in which it seeks

an alternative standard for the ~lton Mill pursuant to Section

214.201 (PCB 83—55). The Board’s determination in this matter is

in no way premised on a belief that Altos’s modeling data is

inaccurate or invalid. Moreover, the Board’s decision today does

not indicate any predisposition in the pending PCB 83—55

proceeding.

This Opinion constitutes

the Board’s findings of fact and

conclusions of law in this matter.

ORDER

The February 17, 1987, amended petition filed by Alton

Packaging Corporation for variance from 35 Ill. Adrn. Code 214.141

is hereby denied.

Section 41 of the Environmental Protection Act, Ill. Rev.

Stat. 1985 ch. 1111/2 par. 1041, provides for appeal of final

86—30 1

---

—14—

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. Theodore Meyer concurred.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above ppiiion and Order was

adopted on the ~Z

day of

~

,

1988, by a

vote of

7-

p

.

Dorothy M. 9~nn, Clerk

Illinois Pollution Control Board

86—302