ILLINOIS POLLUTION CONTROL BOARD
November
22, 1974
CENTRAL ILLINOIS
PUBLIC SERVICE COMPANY
(Meredosia)
PETITIONER
V.
)
PCB74—271
ENVIRONMENTAL PROTECTION AGENCY
RESPONDENT
THOMAS
COCHRAN,
ATTORNEY, in behalf of CENTRAL ILLINOIS PUBLIC SER-
VICE COMPANY
MICHAEL GINSBERG, ATTORNEY, in behalf of ENVIRONMPNTAL PROTECTION
AGENCY
OPINION AND ORDER OF THE BOARD (by Mr. Marder)
This case comes to the Board on Petition of Central IllinoiS Pub-
lic Service Company for a variance extension from Rule 204 (e), Chap-
ter 2 of the Board’s Rules and Regulations, as previously granted in
PCB73-185 (October 4, 1973), to operate its coal-fired electric gen-
erating station at Meredosia, Illinois. Variance is requested from
October 3, 1974, through October 3, 1975.
The Agency Recommendation was filed on August 23, 1974. It suggests
that the variance be denied, or in the alternative, that if it should
be granted, it be limited to six months, subject to the condition that
Petitioner supply a detailed compliance plan and continuation of morii-
toring as required under the variance order in PCB73-185.
Hearing was held September
~,
1974, in Jacksonville, Illinois.
The Opinion and Order in the original matter (PCB73-185) indicate
that the variance was granted in order to allow CIPS an opportunity to
set up a monitoring system, and collect data which would allow the
Agency and the Board to better acess the impact of Petitioner~sdischarges
on the National Primary Ambient Air Quality Standards. The variance
was granted without the submittal of a plan that would bring the station
into compliance with Rule 204 (e).
The record in this case relates to the Board the problems CIPS has
had in putting the required monitoring network into operation. The
Board accepts the evidence at hearing to show that the ordered monitor-
ing system is not in complete operation, but that this is through no
fault of the Petitioner.
Two questions need to be answered in order to come to a decision
in this matter. First, did the variance granted in PCB73—185 give Pet-
itioner the relief he requested? Second, should the Board grant an ex-
tension to the first variance?
14—495
—2—
The Order in PCB 73-185 was issued by the Board on October 4, 1973.
That was a full 18 months before Rule 204 (e) was to go into effect. It
is long-established case law that the granting of a variance presupposes
a continuing violation of the law. Swords v. Environmental Protection
Agency, PCB 70—6, 1 PCB Opinions 7. A variance will not be granted from
a rule or regulation which Petitioner is not violating. Environmental
Protection Agency v. Borden Chemical Co., PCB 71-23, 1 PCB Opinions 608;
City of Carbondale v. Environmental Protection Agency, PCB 73-430, 10
PCB Opinions 543. After the Board handed down its Opinion and Order in
PCB 73-185, the Board issued its Order in Central Illinois Light Co.
V.
Environmental Protection Agency, PCB 73-63, 11 PCB Opinions 427. In
that case, CILCO asked for a variance from Rule 204. The Board denied
the variance. There was no violation of an existing rule. Furthermore,
Rule 204 was not to go into effect until more than one year after the
variance would have been granted. The Board determined that it could
not grant variances from rules that do not come into effect until more
than one year after the variance order is issued.
The similarities between 73-185 and the CILCO case lead the Board
to the conclusion that 73-185 was granted in error. It was an empty
variance that did not give Petitioner any relief.
Notwithstanding the above, operating permits were granted to CIPS by
the Agency upon reliance on the Board Order in 73-185, and therefore
such permits shall be given full force and effect for the period of said
Order. Permits to operate the Neredosia Station were issued pursuant to
the variance granted in PCB 73-185 (Agency Recommendation Pg. 2).
As was noted in the CILCO case (supra.), Petitioner should have
sought relief from the parts of Chapter 2(Ai~Regulations) which were
forcing the Agency to deny its permit applications. These Rules are
Rule 103 (b) (6) (A) and (E) and Rule 104.
The Board cannot grant an extension to the variance granted in
PcB
73-185. Therefore, it is necessary to make a complete determination
based on the record in this case.
Variance from Rule 204 (e) is now available to Petitioner. Petition-
er must prove that application of Rule 204 (e) will bring about an arbi-
trary and unreasonable hardship to Petitioner. Chap. ill l/2~I.R.S.
Sec. 1035.
Petitioner’s major allegation in these matters is that even though
they will be in violation of the emission limitations of Rule 204 (e),
the plant does not cause a violation of the National Primary Ambient
Air Quality Standards, and therefore the intent of the section is being
met. While it is true that the emission limitations of Chapter 2 were
designed to meet the National Ambient Air Quality Standards, they are
also enforceable on their face by both the State of Illinois and the
Federal Government.
The monitoring program ordered does not seem adequate to guarantee
that the ambient standards would continually be met. A much more soph-
isticated monitoring system, consisting of emission monitors, ambient
14
—
496
—3—
air monitoring, and weather monitoring, along with a plan to reduce
emissions if the ambient air standards are approached, is necessary to
guarantee compliance with the Ambient Air Quality Standards. This would
be an interim measure, until Petitioner could develop a compliance plan
for meeting the emission limitations.
In the record of this case, Petitioner makes no attempt at showing
a plan that will bring its plant into compliance at any time. The pur-
pose of a variance is not to permit an arbitrary and continuous viola-
tion of the law, but is rather to grant a period of time during which
the Petitioner can take reasonable steps to bring his operation into
compliance with the law. Swords v. Environmental Protection Agency,
PCB 70-6, 1 PCB Opinions 8. The Board does not favor the granting of
variances without some definite assurances the emissions will be con-
trolled by available pollution control devices as soon as possible.
Momit Cannel Public Utility Co. v. Environmental Protection Agency,
PCB 71—13, 1 PCB Opinions 403. The essence of a variance is a firm and
adequate program for achieving compliance with the regulations in the
shortest practical time. Metropolitan Sanitary District of Chicago v.
Environmental Protection Agency, PCB 71-183, 3 PCB Opinions 57.
If a compliance plan cannot be drawn because there is a lack of
available technology, a research program to develop a method of solv-
ing the problem can be considered a possible compliance plan. Sherwin
Williams v. Environmental Protection Agency, PCB 71-111, 3 PCB Opin-
ions 37; Union Oil Co. v. Environmental Protection Agency, PCB 72-477,
7 PCB Opinions 219; Koppers Co., Inc., v. Environmental Protection Agen-
PCB 73-363, 10 PCB Opinions 251; Mobil Oil Corp. v. Environmental
Protection Agency, PCB 73-432, 13 PCB Opinions 179.
This record shows no evidence of any attempt by Petitioner to develop
a plan to bring its plant into compliance now or ever. Therefore, the
Board cannot grant variance from Rule 204 (e) based on this record.
Whether the plant meets the goal of Rule 204 (e) without complying
with its limits is not germane to a variance proceeding. It assumes
that the only reason for Rule 204 (e) is to meet the ambient standards,
yet no evidence is in the record on that point. A regulatory action
before the Board may be the better forum for Petitioner to raise this
argument. Environmc~ntalimpact is just a factor to be considered in
variance cases.
Petitioner has not had all its remedies foreclosed by denial of the
variance. It can come back to the Board with a subsequent variance pet-
ition requesting relief from Rule 204 (e), meeting the requirements of
Rule 401 of Chapter 1 of the Board’s Rules and Regulations, and contain-
ing an adequate compliance plan for meeting the regulations as discussed
above. Petitioner can also come to the Board for variance from either
the operating permit requirement of Rule 103 (b) (6) (A) and (E) or the
requirement of a compliance plan from Rule 104, in order to get a per-
mit until May 30, 1975. Petitioner can lastly come to the Board with a
change in the regulation, if it feels that Rule 204(e) is more stringent
than necessary to meet the requirements of the National Primary and Sec-
ondary Ambient Air Quality Standards.
14—497
—4—
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 the variance
extension requested by CIPS from Rule 204 (e)
,
Chapter 2, Air Pollu-
tion Regulations, until October 3, 1975, is denied without prejudice.
Mr. Henss dissents.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, certify that the above Opinion and Order was adopted by the
Board on the 22nd day of November
,
1974, by a vote of 3
to 1.
14—498