ILLINOIS POLLTJTION CONTROL BOARD
November 22, 1974
ENVIRON~NTAL PROTECTION AGENCY
CO~LAINANT
PCB
73—404
VILLAGE OF WINNETKA
RESPONDENT
NR, KENNETH J, GUMEINER, ASSISTANT ATTORNEY GENERAL1
in behalf of
the
ENVIRONMENTAL PROTECTION AGENCY
MR. DEAN C~CANERON, ATTORNEY, of
SCHIFF, HARDIN, AND WAITE,
on be-
half of the VILLAGE OF WINNETRA
OPINION AND ORDER OF THE BOARD (by Mr. Marder)
This case comes to the Board on the complaint of the Environmental
Protection Agency, charging the Village of Winnetka with violation
of
Rule 3-3.112
of the Rules and Regulations Governing the
Control
ol
Air Pollution,
by emitting particulate
matter in excess of that
allowed, and Rule 103 (b) (2) (B) of the Air Pollution Control Regula-
tions by operating its electric power generating plant without a
permIt. The complaint was filed September 25, 1973.
Hearing was held on November 21, 1973, in Winnetka, Illinois.
The Agency and
the Village proceeded as if the present enforcement
action was combined with a companion variance petition, PCB 73-338,
in which the
Village sought a variance from applicable particulate lim-
Its in order to obtain an operating permit. The Agency and the Village
filed a joint Motion to Consolidate the variance petition with the en-
forcement action on November 7, 1973. The Board denied the Motion in
an Order entered on November 15, 1973, because the hearing on the var-
iance petition was proceeding on that date. The parties filed a Stipu-
lation for Settlement and an additional Motion to Consolidate the two
actions on November 15, 1973, at
the
hearing held pursuant to the
vari-
ance petition. At the hearing on the enforcement complaint held on
November 21, 1973, the parties again submitted the Stipulation for Set-
tlement and filed a Motion to Consolidate. The Board denied the Motions
to Consolidate the two cases on December 20, 1973. The parties
submit-
ted a joint Motion to Consolidate the record in PCB 73-338 with the rec-
ord in the present enforcement action, PCB 73-404. This Motion to Con-
solidate the Records is hereby granted.
The Village owns and operates an electric generating station known
as the Winnetka Electric Plant, located
at
Tower Road and Lake Michigan
in Winnetka, Cook County, Illinois, The plant consists of five boilers
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and four turbines used to generate electricity. All boilers exhaust
through a single stack approximately 250 feet tall. Boiler No. 8 is
equipped with a multi-clone-type collector and boilers No. 4-7 are
equipped with baffle settling chambers. Boilers No. 5-8 are exclus-
ively coal-fired; boiler 4 may be alternately fired with coal or nat-
ural gas; and boiler 8 may be fired by coal or natural gas together
or separately. All coal used as fuel in the plant, at least since
1971, has been Eastern Kentucky coal, with a sulfur content of less
than 1. Boilers 5-7 are used only when natural gas is not available
for fuel economy power (purchased in accordance with an interconnection
agreement with Commonwealth Edison Company) or not available in suff—
icient amount to supply the Village’s needs, and during emergency cir-
cumstances. Since April 2, 1973, natural gas has been available and
used as fuel to operate boilers 4 and 8 all of the time, except for
the time of a stack test, and during a period of interruption by the
Village’s gas supplier from August 27 to September 8, 1973. The Vill-
age has operated Boiler No. B using coal as a fuel when it could have
purchased demand energy because of its misinterpretation of its inter-
connection agreement in that it believed demand energy was available
only on an annual demand charge basis (Paragraph 7, Stipulation).
The Viliage1s generating plant has 17.5 mw of gas generating capac-
ity and an interconnection capacity of 20 mw. with the Commonwealth
Edison system. This capacity under normal conditions is sufficient to
meet the Village’s peak demand of approximately 32.25 mw. However, the
Village’s problem is that natural gas is not always available nor is
interconnection of power from Edison always available, Therefore,
the Village must occasionally burn coal to meet the demand for elec-
tricity.
Rule 3—3.112:
The Agency has based its complaint and case on engineering tests
conducted by the Village in conjunction with its Variance Petition in
PCB 73-338. The tests were taken at 100 capacity of the boilers.
These tests show that at full capacity the boilers do violate Rule
3-3.112. The question is if these tests are adequate to prove a viola-
tion of the Rule except for the time that the test was conducted. The
answer to that question is no.
A case should not be based on what the Respondent
can do.
He should
be found in violation of what he does do. Central Illinois Light Co.
v. Pollution Control Board, 17 Ill. App. 3d 699, In this matter we
have evidence that at 100 capacity the units violate Rule 3-3.112.
There is no evidence showing these units eve~rrun at capacity except
during the tests. Therefore the Board finds that insufficient evidence
has been introduced to sustain a finding that Respondent violated Rule
3—3.112.
The record does contain references to possible i~uisanceviolations
by the plant. At hearing a statement was given by
Mrs.
Virginia Leslie.
Mrs. Leslie lives near the plant and complained about gritty material
being discharged by the plant. Also there was a letter in the record
written by Mrs. Robert Mayer of Winnetka, complaining as did Mrs.
Les-
lie.
14
—484
—3—
First, Respondent was not charged with a simple 9 (a) violation.
The Complaint’s only reference to Section 9 (a) of the Environmental
Protection Act is in Paragraph 11, wherein the Complaint states that
a violation of Rule 3-3.112 is a violation of the Act. Failure to
allege a violation of 9 (a) of the Act in the Complaint cannot be cured
by the evidence. To be found in violation, a party must be properly
charged and given notice of what he must defend against. Lloyd F:ry
Roofing Co. v. Pollution Control Board, 20 Ill. App. 3d 301.
Furthermore, the statements of these ladies, while showing a poss-
ible nuisance, did not show that the discharge of contaminants was in-
jurious to human, plant, or animal life, to health, or to property, or
that they unreasonably (emphasis added) interfered with the enjoyment
of life or property.
Rule 103 (b) (2)
This rule provides that Respondent must have an operating permit
issued by the Agency. It is admitted in the Stipulation that the plant
was operated without a permit, and that a permit would be applied for
when the Variance was granted in PCB 73-338.
The Village initially applied for its permit on March 12, 1973. At
that time it was suggested to the village that they obtain a variance
for boilers 4-7, so that a permit could be issued. The Village filed
its variance petition on April 12, 1973 (PCB 73—148). On April 17,
1973, the Board dismissed the Petition for failure to allege a viola-
tion of the Act or Regulation. On April 25 the Agency denied the prev-
iously-filed permit request, stating that Winnetka had failed to prove
that the facility would be in compliance with all applicable rules and
regulations. The Village then performed the stack tests mentioned
above, and filed a second variance petition on August 13, 1973 (PCB
73—338). This enforcement action was filed September 25, 1973.
It is definitely shown that the Village operated the plant without
a proper
permit, but
for no lack of trying. The Agency said no permit
could be issued because the plant was not in compliance. The Board dis-
missed the variance petition for failure to show violation. Therefore
it can be stated that Winnetka was in the unenviable position of prov-
ing a violation in order to get its permit.
Therefore, even though Winnetka was in technical violation of Rule
103 (b) (2), no fine will be levied.
This Opinion constitutes the findings of fact and conclusions of
law of the Board.
ORDER
IT IS THE ORDER of the Pollution Control Board that:
1) Respondent, Village of Winnetka, is guilty of violating Rule
103 (b) (2) of Chapter 2 of the Board’s Rules and Regulations
for failure to have a valid operating permit from Nay 1, 1973,
through September 25, 1973.
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2) The Complaint, as it applies to a violation of Rule 3—3.. 112
of the Rules and Regulations Governing Air Pollution, is
dismissed for lack of sufficient evidence.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, certify that the above Opinion and Order was adopted by ~he
Board on the ~
day of
jj~i
,
1974, by a vote of
4’
to
__~~___.
14—486