ILLINOIS POLLUTION CONTROL BOARD
August 30,
1973
CATERPILLAR TRACTOR COMPANY,
Petitioner,
v.
)
PCB 73-63
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
Hugh B.
Thomas on behalf of Petitioner;
Dale Turner, Assistant Attorney General,
on behalf of Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr.
Seaman)
On February
13,
1973,
Petitioner,
Caterpillar Tractor
Company,
filed
its Petition for Variance with this Board.
Petitioner requests
a variance from
the requirements of Rules
104(a)
and 104(b) (2)
of Chapter
2,
Part
I of
the
Pollution
Control Board Regulations which require Petitioner
to have
a
Project Completion Schedule to bring its facilities
into
compliance with
the standards
of Rules
204 (c) (1) (A)
and
204
Cc) (1) (B)
after May
1,
1973 and
as said Rules require
a Project
Completion Schedule containing
a final compliance date which
is
no later than May
30,
1975.
More specifically,
Petitioner
requests
a variance
to
operate
its coal—fired boilers at its Aurora, East Peoria and
Morton Plants even though their compliance with the May
30,
1975 sulfur dioxide and particulate emission standards will be
delayed beyond that date allegedly
as
a result of Petitioner’s
development and testing of prototype sulfur dioxide emission
control systems at its Joliet and Mossville Plants.
Petitioner has submitted
to the Agency operating permit
applications
for
the Joliet Plant and Mossville
Plant setting
forth Project Completion
Schedules containing final compliance
dates prior
to May 30,
1975.
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The Joliet Plant final compliance date
is therein indicated
as between April
1,
1974,
and November
1,
1974,
based upon
a
pilot project for the testing and installation of
a
scrubber
system to control sulfur dioxide and particulate emissions.
The Mossville
Plant final compliance date is
therein indicated
as between January
1,
1975 and April
1,
1975.
rphis
is also
based upon
a pilot project for
a scrubber system to control said
emissions but incorporates
certain variations and
is being
provided
by
a different supplier.
The Petitioner
states that
it
is
“somewhat confident”
that one or both of these pilot projects
will accomplish the required
control
of sulfur dioxide and par-
ticulate emissions.
The Project Completion Schedules
for
the Aurora and Morton
Plants contain final compliance dates of between December
1,
1976 and March
1,
1977, while
the Project Completion
Schedule
for
the East Peoria Plant contains
a final compliance
date of
between January
1,
1977,
and July
1,
1977.
Since these dates
exceed
May
30,
1975,
Petitioner requests
a variance
for three
facilities
from the above mentioned prohibitions
and requirements.
Petitioner alleges that accomplishment of
the required
sulfur
dioxide and particulate emissions
at these facilities
is dependent
upon the successful
completion
of
the pilot projects
at Joliet
and/or Mossville insofar
as they develop
a means by which
it
is
possible to attain these standards.
The Petitioner
intends
to
install whichever
of
the two systems that
is proven effective
at these three remaining facilities,
but the
time required
to
design,
install,
test and evaluate
the pilot projects
and there-
after
to install
the effective system
at
the remaining three
facilities mandates
a time
frame which contains compliance dates
beyond the May
30,
1975 deadline.
The activity involved
is Petitioner’s
use
of
a
total of
14
coal—fired boilers
at
the above mentioned
three facilities for
the production
of
ste~tm,the primary purpose
of which is
facility heating.
Said coal—fired boilers allegedly process
Illinois coal with an average of approximately
2.9
sulfur
content by weight and
up
to 12,000 Btu per pound of coal
in
maximum quantities ranging
from
9 tons per hour
to
35 tons per
hour per facility.
It is estimated that said boilers discharge
particulates
in the range of from
.15 pounds
to
.35 pounds per
million Btu and sulfur dioxide in the range of from
5.1 pounds
to
5.6 pounds per million Btu.
Said boilers currently contain
either fly ash arresters or low velocity expansion chambers
to
control particulate emission,
and it
is proposed to add
Venturi-type
scrubbers using alkaline solution as the scrubbing
medium with inclusion of a regeneration system to recycle the
scrubbing solution and
to prepare contaminants
for proper
disposal.
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148
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This cause comes before the Board after
a lengthy hearing
and subsequent briefs by the respective parties.
Numerous
arguments and points of law are presented therein; however,
as
in all variance proceedings,
this Board must bottom its decision
on an analysis of whether Petitioner has presented adequate
proof that compliance with the rule or regulation
in question
would impose an arbitrary or unreasonable hardship.
The costs
that compliance would impose upon Petitioner and others must
be balanced against the injury that the grant of the variance
would impose upon the environment and the public.
The Board is satisfied that Petitioner has fallen short of
meeting its burden of proof.
The sulfur dioxide regulation was
adopted, after extensive hearings, on the basis of evidence that
convinced the Board that techniques were available, at
a cost
reasonable in light of
the need,
to reduce sulfur dioxide
emissions by May 30,
1975,
to the levels prescribed.
The Peti-
tioner can prevail only by showing that application of the
regulation to its situation is so impractical or so costly in
comparison to the benefits as to be arbitrary or unreasonable.
A variance is to be granted only in those extraordinary
situations in which the cost of compliance is wholly dispro-
portionate to the benefits; doubts are to be resolved in favor
of denial.
This Board stated in Illinois Power Company v.
Environmental Protection Agency (PCB 72-190,
October 24,
1972)
at page 4:
“There is therefore a complete absence of proof
that
Illinois Power Company has any greater problem than
any of the myriad other operators of coal—fired
equipment in complying with the sulfur dioxide emis-
sion standard.”
This is precisely the type of case for which the regulation
was designed:
Petitioner contributes substantially to sulfur
dioxide emissions in areas of excessive ambient sulfur dioxide
concentrations.
To grant a variance here would be to repeal the
emission standard as Petitioner has not demonstrated that
compliance would create an arbitrary or unreasonable hardship.
Further, the grant of
a variance, based upon a record insufficient
as regards necessary allegations and support thereof would be
premature.
Notwithstanding our denial of the petition for extension of
compliance dates as applied to the Aurora, Morton and East Peoria
plants for the reasons above noted, we applaud Petitioner
for its
efforts to achieve compliance
at its Joliet and Mossville Plants.
We will watch with great interest
the
results achieved by the
installation
of
the Zurn and FMC units, respectively, and hope that
they can serve as a basis for more extensive sulphur dioxide
emission control in other plants.
We would hope that the in-
stallation schedules for each facility can be accelerated so that
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149
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the successful prototype could serve as
a basis for installa-
tion at other locations.
We would also hope that as the nature
of the abatement process became more definitively ascertainable,
comparable facilities could be installed at other locations at
the earliest possible date and on an accelerated schedule that
could meet or approximate the compliance dates mandated by the
Regulations.
In denying this variance request without prejudice,
we do not foreclose further requests in the future that will be
more specific in nature based on the equipment to be installed
and the results to be achieved in appropriate cases, but we do
not feel that we can, on the present record, grant the variances
requested in the present proceeding without abrogating the entire
sulphur dioxide control program and,
in effect, repealing the
Regulation involved.
Notwithstanding the foregoing Opinion and denial of the
variances as requested,
we will direct that the Agency issue
operating permits with respect to the Aurora, Morton and East
Peoria Plants in order that Petitioners’ present operations not
be deemed in violation for operation without an operating permit.
In directing the issuance of said permits, however, we in no way
are sanctioning the proposed time schedule for sulphur dioxide
compliance as proposed by Petitioner.
This Opinion constitutes the findings of fact and conclusions
of law of the Board.
IT IS
THE
ORDER of the Pollution Control Board that
1.
The variance petition filed by Caterpillar Tractor Co.
with respect to its Aurora, Morton and East Peoria
plants be and the same is hereby denied without prejudice.
2.
The Agency 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.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, certify that the above Opinlo
and Order was adopted by
the Board on the~3~’~’day
of
_____________,
1973,
by
a vote of
~
to
c~
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