ILLINOIS POLLUTION CONTROL BOARD

November

14,

1974

CATERPILLAR TRACTOR COMPANY,

)

Petitioner,

vs.

)

PCB 74-253

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Richard

J.

Kissel, Attorney for Petitioner

Michael

J.

Ginsberg, Attorney

for the EPA

OPINION AND ORDER OF THE BOARD

(by Mr.

Henss):

Caterpillar Tractor Company filed Appeal

of Permit Denial

alleging that the Environmental Protection Agency improperly and

wrongfully denied operating permits for 14 coal fired boilers at

Caterpillar’s Aurora, East Peoria and Morton plants.

This case

is the sequel to PCB 73—63,

a variance petition

brought by Caterpillar for operation of these same boilers.

In

the variance case Caterpillar sought relief from certain sections

of the Air Pollution Control Regulations.

This relief was denied

but the Agency was ordered to issue operating permits for the

boilers for the sole purpose of protecting Caterpillar from prose-

cution for operating without permits.

Specifically, the August 30,

1973 Order stated:

“The Agency

shall

issue operating permits with respect

to the Aurora, Morton and East Peoria plants

in order

that Petitioner’s present operations not be deemed in

violation for operation without an operating permit’.’

(PCI3

73—63)

The Agency found:

excessive particulate emissions from the

Aurora boilers,

a lack of information about particulate emissions

from the Morton boilers, and failure to submit acceptable compliance

programs

and project completion schedules

for sulfur oxide emission

control for

all three plants.

The Agency contended that in

an

opinion denying a variance the Agency should not be ordered to

issue operating permits.

However,

finally the EPA did grant

14

—417

---

—2—

permits “pursuant to the Illinois Pollution Control Board Order

of August 30, 1973.”

The permits were for six months, expiring

on July

2,

1974.

Caterpillar reapplied for the operating permits on or about

March

28,

1974.

The Agency refused to reissue the permits because

Caterpillar had not submitted acceptable compliance schedules for

the three plants.

This appeal followed.

At issue is whether or not the Agency complied with the “intent”

of the Board’s August 30,

1973 Order when it issued operating permits

of just six months duration.

The Board Order did not specify the

duration of the operating permits, but Caterpillar states that

the

Opinion and Order of August 30, 1973 clearly had the intent of

requiring the Agency to issue operating permits with an expiration

date of May 30,

1975.

Caterpillar argues that the Agency lost its

right to attack that Board Order since it failed

to appeal.

The EPA now contends that the Board Order of August 30, 1973

is

“a nullity in that it was beyond the scope of the Board’s

authority in that proceeding

to issue an Order requiring the Agency

to issue operating permits while denying the requested variance

relief”.

Alternatively, the Agency argues that it complied with a

“reasonable” criteria when it issued the permits instead of appealing

the Order.

The Agency states that the intent of the Board’s Order

was to give Caterpillar a “reasonable” period of time, without

threat of prosecution for operating without permits,

to re—evaluate

its time schedule for installation of scrubbers and submit a revised

variance petition to the Board.

Caterpillar is installing flue gas desulfurization systems at

its Joliet and Mossville plants.

One plant will be equipped with

a Zurn system while the other will evaluate the FMC system.

After

these two systems have been evaluated,

a decision will be made as

to which of the systems will be installed at the Aurora, Morton and

East Peoria plants.

Caterpillar informed the Board during the

variance proceeding that it was “somewhat confident”

that one or

both of the pilot projects would be successfEul.

The Board commended Caterpillar for its industrial leadership

in trying to solve its SO2 problem.

It was the Board’s belief

that Caterpillar should proceed

as rapidly as possible with its

project without threat of prosecution for operating without permits.

For this reason the Board ordered the Agency toissue operating

permits for Caterpillar’s other three plants.

Caterpillar should have used this time to evaluate the

two

pilot systems and reach some kind of a corporate decision about

14—418

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—3—

controls for the other three plants.

The Board intended that

Caterpillar be given enough time to review its options

and come

in with facts

and information upon which

a variance could be

founded.

The prior Order of the Board was in reaction

to the

fact that Caterpillar was moving forward with

a control program,

and it was designed to give Caterpillar a reasonable time to

formulate its plan.

Our records indicate that we have no more

information about Caterpillar’s intent now than we did over one

year ago.

Caterpillar should have made use of the time to qather

the facts necessary for a variance and file

a new variance petition.

This Caterpillar has not done.

The variance remains

a viable

option for Caterpillar but for some reason is not being pursued.

It is the finding of the Board that the Acency has sub-

stantially complied with the Board Order of August 30,

1973 and

that the Agency.did not abuse its discretion in denying permits

beyond July

2,

1974.

The Board therefore denies Caterpillar’s

permit appeal.

ORDER

It

is

the Order of the Pollution Control Board that the

Environmental Protection Agency be affirmed in its current refusal

to issue operati~igpermits.

The appeal of the Caterpillar Tractor

Company is

denied.

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

Board, he~ebycertify the above Opinion and Order was adonted

this

~4 ~

day of

________

1974 by

a vote of

~

to c~

14