ILLINOIS POLLUTION CONTROL BOARD

January 8, 1981

BEMIS COMPANY, INC.,        

)

Petitioner,

)

v.

)

PCB 80—131

ILLINOIS ENVIRONMENTAL PROTECTION 

)

AGENCY,

Respondent.

MR. ROY HARSCH APPEARED ON BEHALF OF PETITIONER;

MR. JOHN VAN VRANKEN APPEARED ON BEHALF OF RESPONDENT.

OPINION

AND ORDER OF THE BOARD (by I. Goodman):

Semis Company, Inc. (Bemis) on July 14, 1980 filed with the

Board an appeal of the Agency’s June 19, 1980 denial of a permit

application to operate two coal-fired boilers at its Peoria plant.

In denying the permit the Agency cited, pursuant to §39 of the

Illinois Environmental Protection Act (Act), that to issue Bemis

the permit might violate Rules 102 and 308 of the Chapter 2, the

Board’s air pollution control regulations, and §9(a) of the Act.

More specifically,

excess sulfur dioxide emissions “violates the

State Implementation Plan (SIP)” (R.8).

At hearing, both Petitioner and Respondent stated that the

only issue involved was a legal one, i.e., the legal effect of the

SIP on the disposition of permit

applications, and that this had

been addressed by the Board on October 2, 1980 in Sherex Chemical

Company, Inc. v. Illinois Environmental Protection Agency, PCB 80-66

(Tr4—6).

However, the issue is whether Petitioner demonstrated

that operating its two boilers would not cause or contribute to a

violation of those provisions of the Act or the Board’s regulations

cited in the letter of denial. Section 39(a) of the Act. Peti-

tioner’s stipulation is, therefore, not taken as an admission.

Petitioner’s manufacturing facility on Sloan Street in Peoria

operates one 100 million Btu’s/hr. (80,000 lbs. steam/hr.) coal—

fired boiler, equipped with a multiclone dust collector and an

electrostatic precipitator to control particulate emissions, and a

standby 90 million Btu’s/hr. (70,000 lbs. steam/hr.) oil/gas—fired

boiler. The facility includes a paper mill and a multi—wall bag

plant (Pet., p.1). The standby boiler when fueled with natural

gas or No. 5 fuel oil is in compliance with Rule 204(c)(2) of

Chapter 2. There is no equipment at present to control sulfur

dioxide emissions. A residential area is located approximately

600 feet west of the plant (R.2, pp.6—7).

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Petitioner’s permit appeal “incorporates by reference”

certain testimony presented in the Board’s sulfur dioxide regula-

tory proceedings R77—15, et al. and alleges that its operation

does not cause or contribute to sulfur dioxide ambient air quality

violations in the Peoria major metropolitan area (Pet., pp.2—3).

Petitioner also appends the report of a study performed by ETA

Engineering, Inc. dated July, 1976 as Exhibit B to its permit

appeal. Such documents are not reviewable by the Board unless

they are either part of the Agency record in this matter or were

considered by the Agency in making its determination.

Both 

documents were mentioned in Petitioner’s attachment to

its permit application, as was the Agency’s own study of air

quality in the Peoria area. The specific results of these three

documents were not cited, although the Agency had knowledge of

these results. The Board presumes that the Agency considered all

three documents in making its decision.

Petitioner’s April 22, 1980 application for renewal of its

prior (January 13, 1975) permit stated that there had been no

modifications in operations as described in the prior permit, that

there was full compliance with all conditions of the prior permit,

and that operation was in compliance with all rules effective on

or before the date of the application (R.13). At the time of that

prior permit, Petitioner had no proposed program to control its

sulfur dioxide emissions, and this was partial reason for recom-

mending denial of a 1975 variance request (R.2, pp.7—9).

As a result of a routine surveillance visit by the Agency to

the plant, the Agency on May 4, 1979 sent Petitioner a letter

advising of violations of Rules 102, 103(b), and 308 of Chapter 2

by virtue of operating without a permit and emitting excessive

amounts of sulfur dioxide; the letter requested Petitioner’s

appearance at a compliance meeting within 30 days (R.10). Such

meeting was held on May 23, 1979, at which time Petitioner advised

the Agency that it was awaiting the Board’s decision in sulfur

dioxide-related regulatory matters R77—15 and R78—14 and that it

had had technological and economic difficulties with burning low

sulfur coal in the boilers (R.12).

An Agency intraoffice memorandum dated May 7, 1979 indicates

that sulfur dioxide emissions from both boilers are 308.1 lbs./hr.

(1,294 tons/yr.), whereas only 113.4 lbs./hr. (176 tons/yr.) are

allowed (R.11).

In Petitioner’s April, 1975 petition for variance from the

sulfur dioxide emission limitations, an uncontrolled emission rate

of 4.88 lbs./million Btu’s was cited (R.6, p.5). The Agency’s

subsequent variance investigation confirmed this (R.2, pp.5—6).

The operations permitted by Petitioner’s prior permit, “Boilers

No. 1 and No. 2 with precipitator” (R.2, p.2), have a sulfur

dioxide emission rate ranging from 4.88-5.61 lbs./million Btu’s

depending on the sulfur content of the (washed) coal (Tr.11).

Petitioner’s present coal supply has a sulfur content which could

40—244

—3—

range as high as 3.1,

which would result in emissions up to 5.61

lbs./million

Btu’s.

Oil may be used in cases of nonsupply of

coal (Tr.16—7).

Although the Agency denied the permit in part on the basis

that Rule 308, the state’s sulfur dioxide ambient air quality

standards, might be violated, no evidence was produced at hearing

as to background concentrations in Peoria or as to Petitioner’s

contribution to concentrations of sulfur dioxide in the area.

The only evidence in this proceeding as to background concentra-

tions which the Board can properly consider in reviewing the

accuracy of the Agency’s determination regarding a possible

violation of Rule 308 is the statement in the ETA report at page

23 that its 1975 report for Commonwealth Edison Company’s Powerton

plans measured annual average background concent9tions of 10

ug/m and, under “worst case conditions,” 69 ug/m

There is no clear indication from the Agency record that the

Agency relied upon either testimony in R77-15 or the 1976 ETA

report in finding possible violations of Rule 308. Furthermore,

the application stated that there had been no change in operations

since 1975, and the Agency had a right to rely on such a statement

and disregard data derived from

measurements taken after 1975.

From a review of the Record certified by the Agency, seven of the

ten record items (not including the application and denial letters)

were related to data existing during or before 1975.

The remaining

three items related to the May, 1979 inspection.

The ETA study did not include the effects of the terrain of

the Peoria area and the dispersion models used were not calibrated.

However, the Agency’s Peoria area study, using a more compre-

hensive modeling analysis, included these considerations. It

concluded that the 1.8-lb. emission limitation is “adequate” for

the sulfur dioxide SIP.

Exhibit 3, a transcript of the testimony

of an ETA representative given on April 16, 1979 in the Board’s

proceedings R77-15, et al., indicates that the emissions data

used by the Agency showed that Petitioner does not violate the

state ambient air quality sulfur dioxide standards (Rule 308).

The testimony continued that Petitioner’s contributions to these

stan~ards were as follows:

(1) annual arithmetic m~anof 7.3

ug/m (9 of 80.0); (2) maximum 24~hour of 170 ug/m

(47

of 365);

and (3) maximum 3—hour of 680 ug/m

(52

of 1,300).

This evidence was not disputed by Respondent at hearing.

However, Petitioner presented no evidence that such contributions

did not cause the ambient air quality standards to be exceeded.

In permit appeal

proceedings, petitioners have burdens of proving

that the information contained in their applications demonstrates

that the operation would not cause a violation of the Act or the

Board’s regulations.

There is nothing in the record as to whether

the Agency considered that the degrees of Petitioner’s contri-

butions to ambient air concentration levels would cause the levels

to exceed those in Rule 308 or would cause a violation of Rule 102

or §9(a) of the Act. Finally, as previously mentioned, the record

40—24 5

—4—

is unclear as to whether the Agency relied on Petitioner’s

statement

that no change in operations had occurred since 1975 or whether

the Agency relied on its site inspection of May, 1979.

For these reasons the Agency’s denial must be overturned.

to the issue of the legal effect of the SIP upon the Agency’s

permitting powers under the Act, the decision in Sherex, supra,

applies.

Respondent’s December 19, 1980 motion to file supplement to

record is granted.

This Opinion constitutes the

findings of fact and conclusions

of law of the Board in this matter.

ORDER

The Illinois Environmental Protection Agency’s June 19, 1980

denial of Bemis Company, Inc.’s application for an operating permit

(D73010712) is reversed.

The application is remanded for reconsideration in light of

the Opinion in this matter.

IT IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify that the above Opinion and Order

were adopted b~the Board on the 

~‘~‘

day of 

___________,

1981

by a vote of 

Christan L. Moffétt~,!Clerk

Illinois Pollutio~ontrol Board

40—246