ILLINOIS POLLUTION CONTROL

BOARD

January

26,

1984

ILLINOIS POWER COMPANY

(VERMILLION POWER PLANT),

)

Petitioner,

)

v.

)

PCB 82—103

PCB 82—104

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

MR.

SHELDON A.

ZABEL AND

MS.

CAROLYN A,

LOWN,

ATTORNEYS

(SCHIFF,

HARDIN

&

WAITE)

APPEARED

ON

BEHALF

OF

ILLINOIS

POWER

COMPANY.

MS.

MARY

V.

REHMANN

AND

MS.

BOBELLA

GLATZ,

ATTORNEYS,

APPEARED

ON

BEHALF

OF

THE

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY.

OPINION AND ORDER OF THE BOARD

(by J.

Theodore Meyer):

On August 20,

1982 Illinois Power Company

(IPC)

filed with

the Board appeals from the Illinois Environmental Protection

Agency~s (Agency) July

28,

1982 denials of two permit renewal

applications.

The first appeal,

PCB 82—103,

involved the renewal

of

the

operating

permit

for

Unit

1

at

IPC’s

electric

generating

facility near Oakwood, Illinois known as the Vermillion Station.

The

second appeal,

PCB 82-104,

involved renewal

of the operating

permit

for

Unit

2

at

the

same

facility.

Each

Unit

is

equipped

with an individual electrostatic precipitator to control total

suspended particulates

(TSP), but they share

a common 277 foot

stack.

Pursuant to Section 39 of the Environmental Protection

Act

(Act) the Agency separately denied the renewal applications,

but

the

language

in

the

two

denial

letters

was

identical.

Con-

solidated hearings were held on July 26, and August 16,

1983

after

an Interim Order of the Board allowing discovery.

Both

parties

submitted

briefs

which

treated

the

matters

as

consoli-

dated.

On its own motion the Board consolidates these appeals

for

decision.

On

May

21,

1982

IPC

reapplied

for

both

operating

permits.

Under

one

cover

letter

it

submitted

two

Agency

standardized

renewal

forms,

and

stack

tests

for

each

Unit,

as

required

by

prior

permits,

and

coal

analyses.

The letter stated that these

tests

indicated

a

weighted

average

full

load

emission

rate

for

both

Units

through

a

single

stack

to

be

0.131

lbsfmBtu.

It

further

stated

“Preliminary

modeling

analyses

of

both

units

at

56-59

---

full load,

which

is indicated to be the worst

case,

reveals

that

no ambient

air quality standard will be exceeded.”

(Ex.

4 of the

Permit Appeal).

The Agency

denied both operating

permits citing

possible

violations of

9(a)

of the Act, and

35 Ill.

Adm.

Code

Sections

201.141

and 243,121

(Rules 102 and 307

of Chapter

2:

Air

Pollu-

tion before

codification),

The Agency

stated that the

applica-

tions

failed to provide sufficient information

that

operation of

both

Units,

alone or

in combination,

would

not prevent

the

attain-

ment

of maintenance of the TSP air quality standard

contained

in

Section 243,121,

The Agency outlined the air

quality

analysis it

felt necessary

to prove Sections 201,141 and 243.121

would

not

be

violated.

In lieu of such analysis the Agency stated

that proof

that these sources

would

meet the applicable remanded TSP

emis-

sions

limit might suffice to demonstrate that air quality

would

riot be jeopardized.

(Agency Records

in PCB 82~103

and

PCB

82—104,

Items

1)

As stated above IPC had submitted stack tests,

In

analyzing

whether these were satisfactory the Agency considered a

weighted

average

emission rate of 0.13 presumably relying

on the cover

letter and a combination

olf the tests’

results.

The

Agency

then

offered two reasons why the stack tests submitted

were not

suffi-

ciently

representative

to demonstrate compliance

with the

re-

manded

limitation

of 0.10 lbs/mBtu.

First, sootblowing

was not

performed during tests

on either

Unit,

and secondly,

the ash

content of the coal burned during Unit 2~stests had a

lower ash

content than the range

of daily average compiled

ove.r a

recent

two month period.

Given the Agency~sdenial letters,

there appear

to be two

alternate methods

for demonstrating that sources should

be

permit-

ted for TSP,

The first involves using air quality studies

which

demonstrate that the TSP air quality standard will not

he

jeopar-

dized.

The second alternative involves a demonstration

that the

sources comply with the applicable TSP emission limits

which were

found

at Rule 203(g) (1) which were remanded by the

Courts.

As

further delineated below,

both parties relied

upon and utilized

both alternatives,

The Board will examine both denials

to

deter-

mine whether this approach is acceptable;

and whether the informa-

tion submitted is sufficient

to grant or deny the permits.

For

reasons

which will

become apparent,

the second

alternative will

he

considered

initially.

I.

REMANDED EMISSION LIMITATION

On December

30,

1977 the Agency filed with the

Office

of

the

Secretary of State “Rules for the Performance of Air

Quality

Analysis to be used

in Support of Permit

Applications”

as emer-

gency

rules,

According

to Paragraph

2.0 the

intended

purpose

of

56~60

---

these rules was to provide guidance for solid

fuel combustion

sources seeking operating or construction permits while

appli-

cable

emission limitations are subject to judicial

remand.

Specifically the rules required:

Thus for any period that Rules

203(g) (1).,.

are not effective,

construction and operating

permit applications for solid fuel combustion

sources will be evaluated on the basis of

comprehensive air quality impact evaluations

performed by the applicant and designed to

enable the Agency to determine the status

of compliance with respect to the air quality

provisions of Section

9(a) and Rule 102

Section

201,141,

“In lieu of performing

comprehensive air quality impact evaluations

in accordance with these rules,

the applicant

may elect to show compliance with emission

limitations contained in Rule 203(g)(l)..,

even if those Rules are not currently effective,

Compliance with these emission limits will usually

be deemed by the Agency to be sufficient to assure

compliance with the air quality provision of

Section 9(a)

of the Act and Rule 102.

Agency

Brief,

Attachnent

1

The records filed by the Agency in these matte.rs

indicate

that the Agency reviewed the applications in the context

of the

second method.

Those records show that the Agency considered

the

applications as one, considering the weighted average emission

limit for the two Units to be

0.132 lhs/mBtu

(Agency Record for

Unit

1,

Item 6;

Agency Record

for Unit

2,

Items

2 and 3).

Based

on that the Agency concluded that IPC had not made the

necessary

demonstration and furthermore,

that the stack tests were not

representative for the aforementioned reasons.

In part,

IPC anticipated the Agency’s reliance on this

second alternative.

At hearing, the Air Quality Manager at

IPC testified that when applying for the permits

in question

IPC had anticipated that for a permit on Unit

I to be granted,

the Agency would request an air quality analysis, and that a

permit for Unit

2 would be granted since the stack tests demon-

strated compliance with the remanded limit.

(R,148)

Underlying this second alternative are two fatally flawed

presumptions.

First,

it is premised on emission limits remanded

at least thrice by the Illinois courts,

Commonwealth Edison Co.

v.

Pollution Control Board

(1974),

25

Ill,

App.

3d

271,

323

N.E.

2d

84,

aff~din relevant

~

62

Ill.

2d 494,

343 N.E.

2d

459

(1976);

Ashland Chemical Co.

v, Pollution Control Board

(1978),

64

Ill.

App.

3d 169, 381 N,E,2d 56; Illinois State

Chamber

of

---

Commerce v. Pollution Control Board

(1978),

67

Ill.

App.

3d

839,

384 N.E.

2d 922,

2eal dismissed,

78

III.

2d 1,

398 N.E.

2d

9

(1979).

To remedy this judicial voidance, the Board initiated

the currently ongoing rulemaking R82-1 which is intended to

establish TSP emission limit

for sources, such as

IPC, burning

solid

fuel exclusively.

Although it is often more convenient and

less costly for both the Agency and permit applicants to assess

and demonstrate compliance with an emission limitation,

as opposed

to an air quality standard, the parties cannot ignore the judicial

remand,

albeit grounded on procedural infirmities.

Secondly,

although the Agency’s emergency rules providing

this alternative demonstration are on file with the Office of the

Secretary of State, they are not currently in effect.

Pursuant

to Section 5,02 of the Administrative Procedure Act

(Ill.

Rev.

Stat. 1981,

ch,

127, par, 1005,02) these rules expired 150 days

after they were filed with the office of Secretary of State.

Furthermore, the language providing for the alternative

is arbi-

trary.

There are no standards as to when and when not the Agency

will

“deem” such a demonstration adequate for purposes of Section

9(a)

of the Act and Sections 201,141 and 232,121 of the Board~s

rules.

For these reasons, the Board finds this alternative

demonstration unacceptable, unlike IPC and the Agency.

The

denials,

as premised

in the failure to demonstrate compliance

with

a remanded emission limit, were incorrect.

There is yet another problem with the Agency’s permitting

analysis under the second alternative.

Although the Agency

separately analyzed the Units’

stack

tests,

it denied the permits

based on the weighted average emission rate,

which it believed to

he greater than the remanded limit.

The Board can speculate as

to why the Agency treated these two sources as one; however,

it

cannot ascertain the Agency’s authority for doing

so.

Neverthe-

less,

since the underlying permitting process has been found

invalid,

the Board will not address the question of separately

permitting these sources and the Agency’s two aforementioned

reasons for finding the stack tests unrepresentative,

Since the alternative method

is stricken,

the Board returns

to the Agency’s first reason

for denying the permits:

insuf-

ficient information to determine whether,

alone or

in combination

with other sources,

IPC’s emissions could cause air quality

violations and thereby he

in violation of the Act and Board

regulations concerning

the same.

When filing

its appeals,

IPC contended that the Agency

improperly denied the permit renewals based on insufficient

information because neither Board regulation nor Agency rule

require air quality analysis.

IPC further argued that the Agency

should have notified

it of this deficiency within thirty days of

---

the renewal

pp~

.

(Rule

103(b)

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