ILLINOIS POLLUTION CONTROL BOARD
September 21, 1978
COMMONWEALTH
EDISON COMPANY,
)
Petitioner,
v.
)
PCB 77—201
ENVIRONNENTAL PROTECTION AGENCY,
)
Respondent.
RICHARD E~
POWELL AND EUGENE
H.
BERNSTEIN, ISHAN,
LINCOLN &
BEALE,
APPEARED
ON BEHALF OF PETITIONER;
RUSSELL EGGERT, ASSISTANT ATTORNEY
GENERAL, APPEARED
ON
BEHALF
OF
RESPONDENT;
MICHAEL
R.
BERMAN,
CITIZENS FOR A BETTER ENVIRON~NT, APPEARED ON
BEHALF OF INTERVENOR.
OPINION OF THE BOARD (by Mr. Goodman):
This Opinion is in support of an order entered herein on
August 3, 1978.
On July 25, 1977, Commonwealth Edison Company (Edison) filed
a Petition for Variance for its Powerton Station (Powertori)
requesting such relief as necessary to continue operation while
it carried out a compliance program. The program was described
in an agreement between Edison and the Illinois Environmental
Protection Agency (Agency) which was attached to the Petition
and marked Exhibit 1. On September 7, 1977, the Agency filed a
recommendation supporting the proposed Variance for Edison’s
Powerton Station. On October
3,
1977, Citizens for a Better
Environment (CBE) was granted leave to intervene and be a party
in this matter. Late in 1977 changes in the Federal Clean Air
Act prompted Edison to revise its compliance program in order
to meet a July 1, 1979 compliance date. Edison cited as its
reason provisions of the Amended Clean Air Act which require
automatic assessment and collection of large penalties from
non—complying sources after July 1, 1979.
31—445
—2-
The original Petition for Variance with which the Agency
concurred called for a long-term variance while Edison installed
flue gas desulfurization equipment (scrubbers) while continuing
to use high sulfur Illinois coal. In addition, Powerton was to
operate under the control of a supplementary control system
(SCS) in order to prevent violation of the ambient air quality
standards. Edison now feels, however, that to follow the original
program would mean the automatic imposition of a $25,000 per day
fine after July 1, 1979, as dictated by the 1977 amendments to the
Federal Clean Air Act. Edison therefore amended its proposal
requesting relief until July 1, 1979, while it prepared to comPly
with the sulfur dioxide regulations with the use of low-sulfur
western coal in lieu of the high-sulfur Illinois coal and scrubbers.
The Agency argues against the use of low-sulfur coal alleging
potential violation of the particulate standards due to the
increased ash content of western coal. CBE argues against th,e
variance alleging possible shortages in the availability of
western coal for use by Powerton.
The Board finds the arguments presented by the Agency and
CBE concerning the use of western coal to be too speculative in
nature to form the basis for denial of the Variance Petition.
The Petition before us involves only sulfur dioxide and requests
variance only until July 1, 1979. The Board cannot dictate to
Edison the method by which it complies with our regulations. The
Board must still consider, however, whether denial of the Variance
would work an arbitrary and unreasonable hardship on Edison.
Powerton has been the subject of previous proceedings before
the Board, wherein the Board granted variance to Edison in order
to allow continued operations of Powerton while various methods
of compliance were investigated (PCB 74-16). The original method
of compliance was to be a low BTU coal gasification plant which
Edison subsequently abandoned due to the prohibitive cost of
retrofitting Powerton with such a facility. After consultation
with the Agency, Edison developed the compliance plan set forth
in Exhibit 1 to its original petition herein. At the same time,
it developed the SCS for Powerton pursuant to the Board Order
in PCB 74-16. While the SCS system has yet to experience the
full range of meteorological conditions which can be extected to
occur in the Pekin area, Edison alleges that the SCS has been,
and will continue to be, successful in assuring that ambient
air
quality standards in the vicinity of Powerton are not
threatened by operation of the station. Now, due to the 1977
amendments to the Federal Clean Air Act, Edison wishes to
convert Powerton to low—sulfur western coal which will enable
it to meet the July 1, 1979 deadline dictated by the Federal
law.
31—446
—3—
Although Edison appears to have been shifting its compliance
plan relatively frequently, the end result of which is delayed
compliance, the Board can find no deliberate effort on Edison’s
part toward that result. Delay has been caused by the failure of
an innovative plan of compliance and the imposition of new law.
As far as the Board can determine, Edison has. attempted to follow
its compliance program in good faith. Although the Board may not
agree with the method chosen by Edison for final compliance,
certainly Edison’s decision is reasonable considering the
potential penalties that may be assessed under the 1977 amendments
to the Federal Clean Air Act.
The Board finds that Edison has made a good faith effort to
comply with the the regulations and with prior Board Orders
concerning the Powerton Station and that, because of the SCS, the
likelihood of environmental harm is minimal. Balancing the hard-
ship Edison would suffer by the imposition of severe fines after
July 1, 1979, if forced to pursue compliance by scrubbers, against
the minimal environmental harm, we find that denial of the
requested Variance would create an arbitrary and unreasonable
hardship for Edison. Variance is hereby granted from Rule
204(c) (1) (A) the Board’s Air Regulations for Commonwealth Edison’s
Powerton Station until July 1, 1979, subject to certain conditions.
Edison is advised that failure to achieve final compliance by
July 1, 1979 with Rule 204(c) (1) (A) may result in a requirement
to pay a non-compliance penalty under Section 120 of the Federal
Clean Air Act. In addition, this Variance shall terminate earlier
upon any Rule or Order entered under Section 125 of the Federal
Clean Air Act requiring Commonwealth Edison to burn Illinois coal
at Powerton.
Mr. Jacob D. Dumelle Dissents.
I, Christan L. Moff~tt, Clerk of the Illinois Pollution
Control Board, hereby certify the above Opinion was adopted on
the ~
day ~
1978 by a vote of
—
Illinois Pollution
)l—447