ILLINOIS POLLUTION CONTROL BOARD
March 28,
1977
CPC INTERNATIONAL,
INC.,
Petitioner,
V..
)
PCB 76—208
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
MR.
JAMES
GLADDEN,
JR.
AND
MS. PERCY ANGELO, OF MAYER, BROWN
& PLATT,
APPEARED ON BEHALF OF PETITIONER;
MR. PETER ORLINSKY OF THE ENVIRONMENTAL PROTECTION AGENCY APPEARED
ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE
THE
BOARD
(by Mr.
Goodman):
On
August
6,
1976,
CPC International,
Inc.
(CPC)
filed before
the Board
a 1~etitionfor Review of Denial of Permit Application.
A
hearing in this matter was held on January 20,
1977 in Chicago,
Illinois.
CPC has filed a waiver of the 90-day rule set by statute.
CPC operates three coal—fired boilers at its corn wet milling
plant in Bedford Park,
Illinois.
Each boiler has
a rated capacity
of 332,500,000 BTU’s input per hour and is presently equipped with
a multiclone dust collector limiting particulate emissions from each
boiler to .48 lb/million BTEJ’s of actual heat input
(R.27).
The
Environmental
Protection
Agency
(Agency)
granted CPC ope~a-
tinq
permits
for its three coal—fired boilers on
March
16,
1973.
Those permits expired on May 30,
1975,
the effective date for Rule
203(g) (1) (A)
of the Board’s Air Pollution Regulations
(Chapter
2 of
the Board’s Rules and Regulations).
On September 23,
1973, the Board granted CPC a one-year variance
from Rule 104 of Chapter
2 which requires all facilities
to have
Agency approved compliance programs and project completion schedules
25
—
193
—2--
(PCB 73-212).
Under the terms of that variance, CPC was
to achieve
final compliance
by
no later than May 30,
1976.
On December
19,
1974,
the
Board extended CPC’s variance from September
20,
1974 to December
31,
1974 and extended the date for final compliance until August
30,
1976
(PCB 74-340).
On March
5,
1975 the Agency renewed CPC’s opera-
ting permits until August
30,
1976.
Following a series of setbacks, which included the necessity of
completely changing its compliance program, CPC realized that it would
be unable to comply with Rule 203(g) (1) (A)
by August
30,
1976.
Conse-
quently, on April
25,
1975, CPC petitioned the Board for a variance
from Rule 203(g) (1) (A), alleging that the three boilers would be
in
compliance by November 22,
1976,
January
22,
1977 and February
22,
1977,
respectively
(PCB 75-175).
Before the Board rendered its deci-
sion in PCB 75-175,
the Illinois Supreme Court,
in Commonwealth Edison
v.
Pollution Control Board,
62 Ill.2d 494
(1976), reversed the Board’s
adoption of Rule 203(g)(l).
Based on that decision,
on February 11,
1976, the Board dismissed CPC’s request for variance as moot.
On April
27,
1976,
CPC applied to the Agency for a renewal
of
its operating permits.
The Agency denied the permits on May 11,
1976,
citInq possible violations of Rules 102,
303 and 307.
The Agency at the hearing indicated that it would no longer rely
on Rule 303 as a basis for denial.
The Board agrees that Rule 303
was an inappropriate basis of denial.
The Agency has indicated that its policy since the Commonwealth
Edison decision is to require each permit applicant to demonstrate
that operation of its source will not cause or contribute to a vio-
lation of ambient air quality standards.
The Agency will accept
~s
a showing of non—violation a showing that the source
is
in compliance
with the regulations remanded in Commonwealth Edison.
CPC does not
dispute that it submitted no air quality impact data with its permit
application and that its emissions do not comply with remanded Rule
203(q) (1).
CPC alleges that because of the Agency’s past recommendations
and because of the Board’s past variance decisions,
the Board and the
Agency are estopped from denying the operating permits sought herein.
CPC alleges that the Agency
is merely enforcing the remanded regu-
lations and is, therefore, defying the Court’s Order in the
Commonwealth Edison case.
The Agency indicates that CPC has “embarked on
a quite ambitious
program to install electrostatic precipitators”,
which the Agency
25
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194
—3—
feels will bring the emission levels from the boilers down
to
the
level of remanded Rule 203(g) (1) (R.37).
The Board acknowledges and
commends CPC for its program.
Nevertheless, the Board must uphold
the Agency’s denial of CPC’s applications for operating permits.
The Board recently decided a permit appeal with facts very
similar to the present case Ashland Chemical Company
v. EPA, PCB 76-186
(February 17,
1977).
In Ashland, the Board held:
“The issue before us
is whether Ashland met its
burden of proof.
Having submitted no information
whatsoever on air quality impact, Ashland has
clearly failed in its burden, and the permit was
properly denied.”
Ashland at p.4.
CPC has similarly submitted no air quality impact information
whatsoever and has, therefore,
failed in its burden of proof under
Section 39 of the Act.
Although Rule 203(g) (1) was remanded, the
Agency and the Board are still required to protect air quality and
sources are still on notice that they must comply with all rules and
regulations still
in effect.
CPC has made no showing that its emis-
sions will not cause or contribute to a violation of ambient air
quality standards.
Therefore, the permit was properly denied on the
basis of Rules 102 and 307.
The Board notes that, as pointed out
in
our July
8,
1975 decision in PCB 75-175, the variance procedure is
still open to Petitioner.
This Opinion constitutes the findings of fact and conclusions
of law of the Board in this matter.
ORDER
It
is the Order of the Pollution Control Board that CPC’s
permit denial appeal
filed August
6, 1976,
is hereby denied.
Mr. Young concurs.
25
—
195
—4—
I,
Christan
L. Moffett,
Clerk
of
the Illinois Pollution
Control
Board,
hereby certify
the abqve Opinion and Order were adopted on
the
~
day of
y~J~
,
1977
by a vote of
~
Ch
istan
L.
Mo~f
lerk
Illinois
Pollutio
ntrol
Board
25
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196