ILLINOIS POLLUTION CONTROL BOARD

May 8,

1975

ENVIRONMENTAL PROTECTION AGENCY

Complainant,

v.

)

PCB 73-372 through

PCB 73—379

COMMONWEALTH EDISON COMPANY,

Respondent.

Mr. Kenneth J. Gumbiner and Mr. Marvin I. Medintz, Assistant

Attorney Generals, appeared for the Complainant;

Mr. Richard

E.

Powell,

Isham, Lincoln & Beale, appeared for

Respondent.

OPINION AND ORDER OF THE BOARD

(by Mr. Dumelle):

These consolidated enforcement actions were filed

August 31,

1973.

Commonwealth Edison

(Edison)

is charged,

in each of these cases, with failure to obtain necessary

operating permits as required by Rule

103(b) (2)

of Chapter

2,

Part I of the Rules and Regulations Governing Air Pollution

and

Section

9(b)

of the Environmental Protection Act.

The

Regulation requires that the permits be obtained by April

1,

1973.

The published deadline for submittal of permit

applications was February

1,

1973.

The Environmental Protection

Agency

(Agency) granted Edison an extension of the date to

file until March

1,

1973

(R.

74,

90).

In all, nineteen

generating units located at eight different facilities are

involved in the proceedings.

More specifically, the units

involved are:

Case No.

Units

73-372

Kincaid

1 and

2

73-373

Sabrooke

1 through

4

73—374

Powerton

4 and 5

73-375

Waukegan 5 through

8

73—376

Dixon

5

73—377

Crawford

8

73-378

Joliet

5 through

8

73—379

Fisk 19

16—521

---

—2—

At the first

day

of hearings, October

15,

1973, Edison

stipulated that it had not obtained permits up to that date~

On December

6,

1973 the Pollution Control Board

(Board)

denied Edison~sMotion For Stay and Related Relief pending

judicial resolution of its appeal of the Board~sadoptior. of

numerous

rules

of

Pollution

Control

Board

Regulations,

Chapter

2

(Air Pollution Regulations).

10 PCB 257.

In that

Order we indicated that the variance procedure was available

as

the

means

to

raise

the

issue

of

substantial

hardship.

Edison filed a petition for variance,

PC.

7til6,

for. many of

tOe units in\olved rereum or January

Ii, 1974

A motion to

consolidate the ensorcement and variance cases was denied on

January

17,

1974

(10 PCB 667)

.

However,

on ME.rch

7,

1974 we

granted

a motion to postpone near~nas

~r

th~smatter urt~i

after

t.h.e receipt

Of

transcri..pts in the var.iance proceeding

(11 PCB 461)

.

Accordingly,

the hearings

in this matter

resumed, and concluded,

on November

6,

1974.

Edison initially filed pErmit applicati...ons,

includi...ng

compliance plans,

f..or all of t.±eseunits wi.th

t.he Anency on

March

1,

1973.

Notice of rejection of the.se applications by

the Agency was .eceived

in. earlv April,

1973

(P.

74~74)

Edison

ciLtes two reasons why opera.ting permits nnmrm denied.

thrst, umtn respect

to

~se

~oits (F~saJ9, Cratiora

8 anct

Drmcn

5)

,

it

c~arms

toe

~ncy

nas not

satrsfied wstr

either the amount or

type. of ~data subm~tteti,.and

reg:uired.

the filsog of adoitrmr ~tiormatior

(P.espoodenths Ermef,

p

2).

Permits were~~subsequently iseued for t.hese units on

th.e

dates indicated in the discussion below.

Second, with

respect to the remaining sixteen units, Edison

c aims that

the permits were denied because the compliance plans extend.ed

beyond the May 30,

1975 deadlire for t~~henew particulate and

sulfur dioxide emission standards in Rules 203 and 204.

EdisonCs inability to meet this deadli.ne has been the subject

of other proceedings before the Board.

In PCB 7til6,

decided

on January

3,

1975, we granted Edison variances

f..rom either

or both SO2 and particulate standards for many of the units

involved herein.

The extensive record in that variance

proceeding was incorporated in full in these proceedings by

stipulation of the parties

(R.

61).

We refer the reader to

our opinion in PCB 74~l6for a discussion of the control

technology and compliance difficult...ies~

For purposes of clarity we will first consider the

generating units for which permits were subsequently issued.

These units include Dixon

5, Fisk 19 and Crawford 8.

Edison~scontention that the initial perfrtit denials resulted

from Agency dissatisfaction with either the amount or type

of data submitted is ovethsimplified and misleading.

In the

case of Dixon

5, Edison claims that the permit was denied

for the simple reason that numerical limits were not expressed

in pounds per million BTU,

as required by the Agency

(R,

77).

More importantly, however, the data submitted

show

16

522

---

compliance with the 1975 standards in only two of eight

tests

CR.

77~-78).

Edison

had

intended

to

achieve

compliance

by use of a special Illinois coal,

By late 1973 it was

determined that this coal was not availa~bieand in March

1974

tests

were

run

using

an

Illinois

coal

of

higher

sulfur

and

ash

content,

Results

indicated

compliance

with

the

1975

standards.

Edison

resubmitted

its

application

on

April

17,

1974

and

a

permit

was

qranted

on

May

25,

1974.

In

the

case

of

the

Fisk

19.

and

Crawford

8

units,

Edison

had

.intended

to

burn

low

sulfur

coal,

but

feared

that

this

would

result

in

precipitator

degradation.

Thus,

rather

than

the

initial

permit

denials

being

a

resu.t

of

Agency

dissatisfaction

with

the

data

submitted,

it

is

clear

that

the

original

applications

did

not

ir~ fact.

demonstrate

compliance

within

the

required

deadline.

A

test

at

Fi.sk

19

in

April,

1974,

howeverr,

indicated

that

the

coal

proposed

for

u.se

would

not

result

in

su.ch

degradation,

and

that

this

would

allow

Edison

to

achieve

comp.liance

with

both

the

particulate

and

sulfur dioxide standards

CR.

78~79)

.

This

was

confirmed by

a test at Crawford 8 in August,

1973

CR.

78,

98).

Transmittal

of these test results

to the

Agenby,

however, did not occur

until new permit applications were filed on October

1,

1973

CR.

98)

.

Permits

were

issued

for

these units in November,

Although Edison was subsequently able to amend its

compliance plans for these three units, enabling it to

obtain permits, substantial delays beyond the required

permit date were involved,

Edsson argues that tnese cases, involving units now in

compliance are essentially moot and ought to be dismissed,

This argument is without merit.

We have consistently held

in the past that late compliance with regulations requiring

permits to be obtained does not moot the issue of violation

of

the

regulation.

EPA

v,

Iowa~Illinois

Gas

and

Electric

Co.,

PCB 72~2l6, 5 PCB 67,69

CJuly 25, 1972); EPA v, Procter

&

Gamble Manufacturing Company, Inc.,

PCB 72~2lO, 5 PCB 165,166

CAugust 15,

1972).

~o hold otherwise would effectively

undermine the heart of a permIt program.

As we indicated in

our opinion accompanying the new emission standards in the

Air Regulations,

~we cannot be content simply to set a

future compliance date and to wait until then before taking

any action to assure that something is being done~

(In The Matter of Emission Standards, R71~23,

4

PCB 298 at

304, April

13,

1972)

In this instance the present enforcement

action was required as a catalyst to precipitate Edison~s

16

523

---

—4—

compliance plans.

Without such action there could. be no

assurance that compliance with deferred standards would be

timely achieved. We impose a monetary penalty in cases

such

as this as an aid to the enforcement of the Act.

In EPA v. Handschy

Chemical Company, PCB 74-477

(April

4,

1975)

we assessed a

$500 penalty where the respondent abandoned its efforts to

obtain an operating

permit after two rejections,

even though

a subsequent grant of the permit indicated compliance with

emission standards.

We

consider

similar

penalties

of

$500

for each of these three units

to

be

appropriate

here,

for

a

total of

$1, 5O0~.

Here, where

compliance

of

emission

standards

was ultimately

achreved

befcre

the

date

recuired,

we

consider

it

a

mitigating

factor

that

no

actual

damage

to

the

public,

in

the

form

of

lower

amb:Lent

air

quality,

resu:Lted

from

the

delays

in obtaining the necessary

permits.

In Southern Illinois Asnhal~

Co

v

Pollution

Control

t3oati

(1975)

,

~

(Do~kethc4T3Lt

I

~lrm~

~s

Supreme Court struck down the Board~s

imposition

of fines

against two companies

--

one that

had failed to apply for a

permit and one that was in violation

of a substantive

standard.

The Court noted, however, that in both

instances the

violations

had ceased long before the Agency instituted its enforcement

action.

In the case of one company, Southern

Illinois

Asphalt,

the Court noted that the failure to obtain a permit

was mere inadvertance,

resulting

from the company’s assumption

that its supplier had

filed

the necessary application forms

for it.

Moreover, the court also noted that as soon as the

company learned of this situation,

it immediately took steps

to remedy

it, and had actually ceased operations

long before

the complaint was filed.

Unlike those cases, the instant

enforcement action was filed before the violations had

ceased.

(In the case of Dixon

5, the complaint was filed as

much as 7-1/2 months prior to the date Edison even reflied

its permit application.)

Furthermore, Edison~sfailure to

obtain the necessary permits was not a matter of mere inadvertance,

but rather the result of a failure to propose a compliance

plan capable of bringing its facilities within the standards

to be applied.

We are of the opinion that the instant case

more resembles the facts in Mystic Tape v. Pollution Control Board

(1975), _____Ill, 2d_______(Docket No. 46543)

,

the May 30, 1975 deadline.

that one of these units, Powerton

4, was not involved in the

variance proceeding

-

PCB 74-16.

for this unit (March

1,

1973)

use as a test bed for Edison’s coal gasification project.

16—524

---

—5—

The compliance plan submitted extended beyond mid-1975 and

the permit was thus denied

(March 29,

1973).

Consequently

Edison reconsidered and elected to show the unit retired

from coal—fired service in October,

1974.

The application

was refiled on October

1,

1973 and a permit

was

granted

on

January

9,

1974,

Here again,

failure

to

timely

obtain

the

necessary permit

is

not

a

matter

of inadvertance hut

is

rather

the

result

of

a failure to

show

an

adequate

comuliance

plan,

Also,

we

note that the ref

fling

did

not

occur

until

the day after the instant action

was

fi:LE~d,

We

thus

elect

to

treat

LOis

anin.

in toe same

manner

tie

~hle~

dusussed

above.

A penalty of

$500

for this

violation

is

also

assessed.

Of

the

remaining

15

units

involved

in

this

action,

eight

were involved

in

variance

proceedings

previous

i::o

PCB

74-16.

An earlier variance request, filed January 30,

1973,

(and consolidated with an enforcement proceeding filed on

December 14,

1972)

for Waukegan 5,

6,

7, and 8 and Sabrooke

1,

2,

3, and 4 was granted by the Board on October

4,

1973

and amended November 29,

1973

(PCB 73-40;

9

PCB 367;

10

PC]3

143).

In that Opinion we assessed a fine of $1,000 for the

Sabrooke station for violation of the Act, the particulate

standards of the Rules and Regulations Governing the Control

of Air Pollution.

We also granted the Sabrooke units variance

from the particulate standards until oil conversion could be

accomplished on various dates ranging between September 30,

1973 and September 30,

1974.

We assessed a fine of $30,000

for similar violations

at the Waukegan station and we granted

a variance from the particulate standards until April

4,

1974.

With respect to the Waukegan station we noted that

Edison had not given us

a definitive time schedule for

compliance

—-

variance subject to

submittal of

matter except for two problems:

White House Energy Policy Office;

the May 31, 1975 deadline was not indicated

(R.

made to obtain the permits at that time.

Furthermore,

the time the permits were originally denied,

in April,

1973,

---

—6—

Edison made no

attempt

to

request

a

permit

appeal

or

to

file

for

variance

from

the

permit

requirements

on

the

basis

of

the variances granted in PCB 73-40,

Rather,

it merely

waited

until

January

II,

1974

to

file

a

new

variance

petition

PCB 74—16 ——for most of the units involved herein, including

the Sabrooke and Waukegan units.

That date was 1-1/2

months subsequent to our modification of the Order in PCB

73~4Oand 4—1/2 months subsequent to the filing of this

complaint.

Edison’s

lethargy in this regard is exemplified

by the situation involving Sabrooke Units

3 and

4.

These

units

received

authorization

from

the

Energy

Policy

Office

on

June

18,

1974

to

procOed.

with

oil

conversion.

As

a

result

they

are

now

in

compliance

and

the

petition

for

variance for these

u.nits was dismissed in PCB 74-16.

By the

date

of

the

final

hearing

in

this

case

on

November

6,

1974,

however,

almost

five

months

after

the

authorization,

Edison:

could

only

claim

that

“perm.it

applications

for

these

two

units are now being prepared”

(R.

82).

In

li.ght

of. this

history

of

delay

we

remain

rather

incredulous

at

Edison’s

additional

assertion

that

if

variances

are

issued

in

PCB

74—

16 it would expect to “resubmit promptly permit applications

for those stations.”

(R.

83-84).

Except for Wau]cegan

8,

(which was judged to be capable

of

compliance),

the

remaining

units,

including

Waukegan

5,

6,

and

7,

and

Sabrooke

1

and

2,

received

variances

from

the

substantive requirements of either or both the particulate

or

sulfur

dioxide

standards

of

Rules

203

and

204

in

our

recent

decision

PCB

74-16.

That

variance

petition

was

not

filed

until

January

11,

1974,

long

after

the

permits

were

originally

denied

and

subsequent

to

the

initiation

of

this

enforcement

action,

In

addition,

it

appears

that

Edison

does

not

accept

some

of

the

terms

of

that

variance.

A

Petition

for

Modification

or

For

New

Variance,

filed

on

February

18,

1975,

indicated

that

Edison

may

not

be

able

to

meet

the

sulphur

dioxide

limits

imposed

with

respect

to

the

Waukegan

Units

5,

6,

and

7,

and

Joliet

Units

7

and

8,

and

that

the

coal

gasification

plans

for

Powerton

5

and

Kincaid

I

and

2

have

now

been

abandoned.

In

an

Opinion

issued

February

27,

1975

the

Board

ordered

clarification

of

Edison’s

position

and

determined

that

the

Petition

would

be

considered

as

a

new

variance

petition

which

was

subsequently

assigned

a

new

docket

number

~-

PCB

75-100.

Edison

contends

that

the

granting

of variances in

PCB

74~l6

serves as an absolute defense

to

this enforcement action.

This

argument

relies

on

Section

33(c)

of

the

Environmental

Protection Act which requires the Board to consider the

technical practicability

and economic reasonableness

of

—

---

—7—

reducing

emissions.

What

the

Board

determines

with

regard

to

these

factors

in

a

variance

case

certainly

bears

upon

our

considerations

in

an

enforcement

case

involving

the

same

emission

sources,

but

only

insofar

as

the

enforcement

case

involves

alleged

violations

of

the

substantive

standards

a

respondent

claims

it

is

technically

and

economically

unable

to

meet.

One

of

the

functions

of

a

permit

program,

however,

as

we

said

in

In

The

Matter

of

Emission

Standards,

is

“to

aid

in

obtaining

emission

information

necessary

for

an

evaluation

of

the

control

program...”

(4

PCB

at

302).

Had

Edison

here

filed

a

permit

appeal

or

variance

petition

from

the

permit

requirements

immediately

after

the

initial

denial,

and

raised

such

issues

as

technical

and

economi.c

feasibility,

such

an

evaluation

would

have

occurred

long

betore

it finally d~din PCB 74-16,

and saved tnat much

time

~r

any

comptiance

schedule

f~ralrm

acreed

to

by

abe

Board

Again

we

note

that

these

vic!nt~ons

are

not

result

of

inadvertance.

Nor

were

they

ceased

prior

to

the

filing

of

this

action,

Edison

was

aware

of

t.he

permit

requirement

from

the

beqinning,

but

failed

to

institute

compliance

p1 ans

adequate

to

quali.fy

for

the

necessary

permits.

Edison

neither

appealed

th.e

permit

:der,i.als

nor

sought

a

variance

from

the

permit

requirem.ent

on

the

grounds

of

technical

infeasibility.

Such

an

issue

was

not

raised

urti..I

PCB

74—16

was

filed

—-

nearly

9-1/2

months

after

the

iiiitial permit denials,

8-1/2 months after the date

on which

permits

were

requi:ced,

and

4—1/2

months

after

this

complaint

was

filed,

For

Edison’s

continued

delay

discussed

herein,

and

as

an

aid

to

enforcement

of.

the

Act,

we

feel’

that

more

substantial

penalties

of

$1,000

each

are

wqrranted

for

these

fifteen

generating

uni.ts,

for

a

total

of

$15,000.

Having

considered

the

entire

record

in

this

matter,

it

is

the

finding

of

the

Board

that

Edison

violated

Rule

103(b)

(2)

of

the

Regulations

and

Section

9(b)

of

the

Act

for

each

of

the

nineteen

generating

units

involved

herein.

A

civil

penalty

in

the

total

amount

of

$17,000

is

appropriate.

This

Opinion

constitutes

the

Board’s

findings

of

fact

and

conclusions

of

law.

Mr.

Goodman

dissents,

ORDER

It

is

the

Order

of

the

Pollution

Control

Board

that:

I.

Commonwealth

Edison

shall

apply

for

permits

required

by Rule 103(b) (2)

of Chapter

2,

Part

2

of

the

Rules

and

Regulations Governing Ai,r Pollution and Section

9(b)

of the

16—527

---

—8—

2.

Commonwealth Edison shall pay, within

35 days of

this Order,

the sum of $17,000 as penalty for the violations

of Rule 103(b) (2)

of Chapter

2, Part

2 of the Rules and

Regulations Governing Air Pollution and Section 9(b)

of the

Environmental Protection Act.

Penalty payment by certified

check or money order payable to the State of Illinois shall

be made to: Fiscal Services Division, Illinois Environmental

Protection Agency,

2200 Churchill Road,

Springfield,

Illinois

62706.

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

Control Board, here~ certify the above Opinion and Order were

adopted on the

~

day of May

1975 by a vote of

4/_~j

Christan L. Moffet

Illinois Pollution

r?rol Board