ILLINOIS
POLLUTION
CONTROL
BOARD
February
11,
1971
ENVIRONMENTAL
PROTECTION
AGENCY
)
)
v.
)
)
)
COMMONWEALTH
EDISON
CO.
)
OpinIon
of
the
Board
(by
Mr.
Currie):
This is an enforcement proceeding seeking a cease and desist
order against further vIolation of the Environmental Protection
Act and of the regulations with regard
to
air
pollution
from
the
Joliet electric generating station of Commonwealth Edison.
We
find
certain violations have occurred and order that they not
be repeated, as described below.
The Agency’s second amended complaint, on which the case was
tried, alleges the following violations:
(1)
the emission of
smoke darker than # 1 on the Ringelmann chart from stack El of
the Old Joliet station on July 28, July 30, and October 27, 1970,
in violation of Rule 3—3.122 of the Rules and Regulations (Jovernin;
the Control of Air Pollution;
(2)
the emission of particulate matter
from the Old Joliet station since July 1, 1970, In excess of the
limits prescribed by Rule 3—3.112 of those Rules;l and
(3)
causing,
threatening or allowing air pollution by emissions from the Old
Joliet station In violation of section 9(a) of the Environmental
Protection Act, since July 1, 1970.
Edison raised a number of preliminary questions.
Plrst, the
company moved to dismiss the complaint on the groun4 that sections
30 and 31 of the Act require the Agency to investigate the possible
violation before filing a complaint.
it was Edison’s contention
that the Agency in this ease reversed the procedure by filing a
complaint as “the vehIcle for conducting an investigation, through
discovery and otherwise.”
ThIs argument is wholly without
merit.
Section 30 requires the Agency to “cause investigations to be made
upon receipt of information concerning an alleged v~.olation”
ar.d authorizes “such other ~.nvestigations”
as the Agency deems
1.
Both these Rules are made applicable to existing equiptent
at Joliet by Rule 2—2.11.
1-207
“advisable.”
SectIon
31
requires
the
Agency
to
file
a
comelaint
“if
such
investigat:i
on
discloses
that
a
violation
may
exist.”
The
rurpose
of
these
provisions
is
neither
to
prevent
the
Agency
from filing complaints
without prior attempts
at
conciliation
nor
to allow the Board to oversee
the adequacy of
the Agency’s
pre—
complaint
preparations.
The
former
requirement was deliberately
omitted when the old Air Pollution Control Act
was replaced by
the present
law,
because
it
served largely to delay enforcement.
The suggestion that
the
Board
determine
how
much
the
Agency
should
urepare
before
suing
is Inconsistent
with
the statute’s careful
separation
of
powers
between
prosecutor
and
judge;
when
the
EPA
is
ready
to file
is
its
own
business.
The purpose
of
the
inves-
tigation provision
iS to make sure
that the Agency follows
up on
citizen
complaints,
not
to
postpone
prosecution.
In any event,
Edison’
s
own
motion
reveals
that
the
Agency
made
a
perfectly
adequate
investigation
before
filing
this
case;
the
violations
charges were
observed,
if the evidence
is
believed, by Agency
personnel,
and
the alleged violation of
the particulate
standard
was
suggested
by
documents
filed
by
the comoany
with
the
Agency’
s
predecessor
some
years
before.
Edison’s a:aended answer raises two
issues.
First,
It
is
argued that
the Air Pollution Control Board’s May,
1968 approval
of
an
air
contaminant emission reduction program
ACERF)
for the
Joliet station constitutes
a
defense
to
all
charges
for
violation
of
the
regulations,
because
Rule
2—2.
41
provides:
when
an
emission
reduction
program
has
been
approved,
the
person
receiving
the
approval
shall
not
be
in
violation
of this Section
which
incorporates both the Ringelmann
and the particulate provisions
provided that
the approved
program
is
being. im~lemented.
It
is
true
that this provision,
.ike
the regulations under
which
Edison
is
charged,
is preserved
by
section
149 of the statute,
and
that
a literal reading of
it would provide an indefinite defense
to
an
enforcement
action.
But
if the Rule is
so construed,
it
was
beyond
the
rower
of
the
Air Pollution Control Board
and
to
that
extent
invalid.
For
the
Rule
as
so
construed
in
fact
authorizes
the
grant
of
a
variance
permitting
emissions
in
excess
of
re—
clulatiorl
limits
for
an
indefinite
period,
while
the
statute
flatly
limited
variances
to
one
year
(Air
Pollution
Control
Act,
Section
11).
Since the ACEEP
~n this case was approved in 1968 and never
renewed,
it
is
therefore
no
defense
to
an
enforcement
action
today,
although
it
is
clear
that
we
would
not
be
inclined
to
impose
money
penalties
on
anyone
who
in
good
faith
had
adhered
to
an
approved
program.
In
this
case
no
money
penalties
are
sought.
We
need
not
decide
the.
further
luestion
whether
an
ACERP
would
be
a
de—
Sense
during
the
fIrst
year
after
its
approval
desoite
the
lack
of
an~i requirement
in
the
Rules
(as
Edison
points
out
in
its
brief,
pp.
16—17)
that
the
petitioner
show,
as
required
by
the
statute,
1
—
208
that to require immediate compliance would constitute an arbitrary
or unreasonable taking of property, or the closing of a business
without sufficient benefit to the public (Air Pollution Control
Act, Section 11).
Edison’s amended answer also argues that all claims with reàpect
to turbine generators 1, 2,
3,
and
ij
(~chichare powered by boilers
1 and 2 and which discharge through stack 1)
should be dismissed
as moot because the order of the Illinois Commerce Commission in
the 1969—70 Edison rate case (ICC Docket
15511,9)
required the
company as a condition of a rate increase to retire these units
by October 31, 1970——a date that had passed before the hearing
f.n
the present case began.
If’
the units in question had been dis-
mantled we would agree that there was no controversy over their
future use and therefore nothing for us to decide about them.
But this is not the case.
Edison plans to leave these
units in
place until October 31, 1971 and says it
may
ask to use them again
in an emergency:
the only exception to this commitment never to run them again
would be in the event of a very extreme emergency at which
time electric power was not availab.e from any other source,
and only then If the Company had satisfied the Illino~.s
Commerce Commission of the propriety of temporarily sue—
pendIng that portion of its order which prevents those units
from
running
(R.
115).
Whether units l—~1should be çermitted to operate under those limited
condItions in another question which we decide below.
But it is
a significant question, and therefore the case is not moot with
respect to units
1—14.
EdIson does not suggest that the existence of the ICC order
in
any way
precludes the Board from entertaining this conp.aint,
and for good reason:
Far from immunizing the company from con—
pliance with the regulations or from proceedings to enforce them,
the
ICC
order expressly required Edison to obey all existing and
future pollution regulations (p.
113).
At
the
hearing
Edison
moved
to strike the
third
paragraph
of the final
complaint,
which cliarged the causing of air pollution
as defined by the statute, on the
ground
that this paragraph stated
a “bare conclusion” in the absence of sufficient facts to inform
the respondent of the nature of the charges against it
CR. 17).
We think thIs contention has merit.
It is important here to
distingu~.shthe degree of specific!.ty required in a statute from
that
±‘equiredin a complaint.
In the case of a statute a good
deal of latItude is allowed the legislature, since that body could
not possIbly foresee the myriad fact situations that might give
rise to excessIve pollution.
Cf. Metropolitan Sanitary District
v. United States Steel Corp., 41 Ifl.
2d
11140,
2143 N.E. 2d
2119
(1968), upholding a very unspecific statutory prohibition of
pollution against
the
allegation
that
it was unconstitutionally
vague.
The case is quite different, however, with regard to a
complaint.
There is no excuse for lack of specificIty in
flltng
i-am
a complaint
except the desire to obtain an unfair advantage
by
surprise.
To permit such an advantage
is foreign to
the entire
concept that
a tribunal
is
to make every
effort to ascertain the
true facts, and it deprives a respondent
of his day in court.
The present case is
an excellent example of these principles.
The
first two paragraphs of
the complaint are quite specific;
they allege by reference
to the regulations the emission
of smoke
from a named
source on named datbs and darker than
#1
on the
standard
smoke chart,and the emission of particulate matter from
named sources
on a continuous basis in violation of
a precise
numerical
standard.
These charges make
it quite clear what Edison
must
prove in order
to contest
the Agency’s
case.
But the third
paragraph gives no clues as to the nature of the contaminants
allegedly emitted or as to any other facts that might put Edison
on notice
of. the nature of its alleged offense.
The natural
implication of this paragraph, tucked away as it
is like
a boiler-
plate catchall provision,
is that it
is
just another handle for
establishing
excessive emissions
of the
type already charged in
the complaint, namely smoke and other particulates.
The vice of
such
a broad allegation was amply brought
home when the Agency
sought to utilize
this paragraph to support
a charge that
sulfur
dioxide emissions from the Joliet plant
should be brought under
control,
Nowhere in the complaint was sulfur adverted to;
the
complaint did not give Edison fair warning that sulfur was
in the
case;
and there
is
no justification for the omission.
The statute
itself,
in section 31(a), requires
that the
complaint
not
only specify
the provision allegedly violated but
also contain
“a statement of the manner
in,
and the extent to which
such person is said to violate this law or
such rule or regulation,”
and
the procedural rules of this Board make the same requirement
more explicit:
“The complaint shall contain
.
.
.
a concise statement
of the facts upon which the respondents are claimed
to be in
violation”, PCB Regs.,
Oh,
1, Rule 30~(c)(2).
Not only were these
rules
in effect before the second amended complaint was filed in
the present
case;
the Board had already thrown out
a very similar
allegation under very similar circumstances in Environmental
Protection Agency
v.
Lindgren Foundry
Co.,
#70—1
(September
25,
1970).
We do not
ask that the Agency plead all its evidence;
we
do think it
is
not too much
to insist that
the words “sulfur
dioxide”
be mentioned
if that substance
is to
be brought into
a
case otherwise
dealing with particulates
alone
by reference to
the general prohibition against
air pollution.
The avaiJability of discovery procedures is
no
answer;
~
Edison argues,
the State
cannot
simply accuse
a man of burglary
and
leave hut to discover the
time
and place of the alleged crime
through interrogatories~
Nor was
the element of surprise in this
case removed by proceedings
in advance
of the hearing.
A pre—
hearing conference came
and went without mention
of any allegation
of
a sulfur dioxide violation
(B.
72).
The Agency refers us to
ad Edison reply
to an loterrogatory indicating that the
company
admitted
the emission oP some sulfur dioxide from the Joliet plant
1
—210
(R. 71).
But the question simply asked for a listing of contaminants
emitted;
unless the search for facts is to be replaced by a game
of wits between clever attorneys, we cannot deem this oblique
inquiry the equivalent of a fair warning
that
Edison was charged
with a sulfur violation.
Of course sulfur dioxide emissions may under certain cir-
cumstances violate * 9(a) of the Act even though no specific
emission regulations governing
that
contaminant
are
yet in force,
but Edison was not given
fair
warning
that
this issue was in the
present case.
For failure to comply with the statute and the
Board rules,
and for
failure to
inform
the respondent of the
nature of the offense charged, the third paragraph of
the
final
complaint is hereby stricken insofar as it applies to contaminants
other than smoke or particulate matter.
This brings us to the facts,
and
the
factual
issues
are
not difficult.
The Old Joliet station is composed of six turbine
Eenerators powered by five coal—fired boilers discharging their
exhaust gases through four stacks.
It is adjacent to the New
Joliet station, whose emissions are not in issue in this case.
Generator 6, driven by boiler
5
and exhausted through stack 6,
is
now
in
compliance
with
the
regulations
and
has
been
since
1968,
insofar
as
the
evidence
shows;
it
is
a
cyclone
furnace
equipped with a precipitator of 89.8
efficiency and its
emissions, as calculated by Edison and not contested by the Agency,
are 0.05 pounds per million btu.
The standard, as computed by
Edison and not contested by
the
Agency, is 0.6 (EPA Ex.
2).
Generator
5,
driven by boilers
3
and
4,
which exhaust through
stacks
2 and
3,
was
admitted by Edison to discharge 2.75 pounds
per million btu in 1968 as contrasted with the standard of 0.6.
Edison’s ACERP provided for the installation on this unit by fall
1971 of a precipitator with an “efficiency rating” of 98
(ibid),2
which would bring emissions from this source well within the
standard.
The ICC order, however, accelerated this date
to
December 31, 1970
and construction began in the early summer
of that year
(H. dl).
The
unit was
scheduled to be shut down for
four weeks beginr4ng December 20, 1970, in order to complete the
installation; Edison’s witness testified
that
“if things go accord-
ing to schedule it should be completed, and we should be back
in service with the precipitators about
mid—January,” and
that
“as far S
I would know or be concerned,
.
.
.
it would not be
operated without the precipitator after December 31”
(H.
350—51).
2..
Apparently the 98
rating is based in part upon the ability
of the cyclone furnace itself to eliminate some of the larger
particles, for the same “efficiency rating” was assigned in
the ACERP to the existing 89.8
precipitator on generator
6
(EPA Ex. 2), and an EdiSon witness testified that the-
precipitator for unit
5
wou.ld actually be “90 percent effectite”
(H.
348).
Even on this assumption completion of this precipitator
will reduce emissions to 0.?75.
I —211
In its brief, filed after the close of the hearing, Edison
argues that the case is now moot as to generator
5
because the
precipitator has since been installed and its emission rate is
-
now “comparable to stack #6” (PP.
4,9).
But we cannot make
factual findings based on unsworn allegations in the briefs
•
Nor
can we accept Edison’s apparent argument that because it planned
not to violate the regulations after 1970 it should not be prdered
to comply; slippage in meeting expected schedules is not
unknown,
and an order to comply is a useful means of promoting adherence
to a plan.
The most significant controversy is the one Edison argued
from the outset was moot4
What is to be done with the
four
-
generators
(1-4, powered by boilers 1 and 2 exhausted through stack
1) that the ICC said should be retired by October 31, 1970?
That
these units are in violation when operated is abundantly plain;
the Company’s
own
figures show estimated emissions of 6.58 pounds
per million btu, or more than six times the regulation limits
(EPA Ex. 2).3
It is no answer that these figures are estimates,
rather than the results af stack tests; we have held before now
that estimates based upon fuel and source information and standard
emission factors are sufficient to prove a violation in the
absence of rebuttal, EPA v. Lindgren Foundry Co., supra, and Edison
made no attempt to prove that these old, uncontrolled units were
in compliance.
Nor is it decisive that the estimates were made
in 1968; there is nothing in the record to suggest that the information
on which the estimates were made has i~
any
way changed in the
meanwhile.
That units 1—4 were responsible for Ringelmann violations
on the three days specified is therefore not crucial, but it is
also clear from the record.
An EPA engineer schooled in the use
of the smoke chart
(H.
108) testified without contradiction
that on each of those days he observed smoke from the relevant
stack that equalled or exceeded #
2 on the chart for periods of
several minutes
(H. 110—11 and EPA Exhibits 31, 32,
33).
Efforts
to poke holes in this testimony were without success
(H.
113—76).
Edison attempted to show that any excessive smoke that may
have occurred was the result of “upset conditions” or of “build-
ing a new fire,” tither of which would give some degree of de-
fense to a Ringelmann charge under Rules 3—3.310 and 3—3.331,
but also without success.
Edison’s witness testified at some
length that excessive emissions were likely to occur during
the building of a new fire, or as a result oC spontaneous com-
bustion
of the fuel, which can require the sudden dumping of wet
3.
These
figures
and
those
in
the
preceding
paragraph
also
show
that at the
time
of
the
hearing
the
operation
of
generators
1—5,
together with adequately controlled generator 6, would cause
particulate violations from the plant taken as a whole (l.°~
16 lbs. million btu, .0.3lallowed).
-
1—212
coal into the boilers and cause incomplete combustion
(H.
331—41).
He also, however, testified that such emissions could be due to human
error or to the increase in load on a unit already operating,
neither of which is a defense (ibid), and he
was
unable to say
with any degree of definiteness what
had
caused the smoke problems
on the three dates in question.
He said that others
had
told him
there had been “intermittent trouble almost all day long” with a coal
fire and that consequently the bunker
had
been emptied into the
boilers on July 28; that the same general problem had existed on
July 30; that the bunkers were being emptied once again on October
27 “as a part of preparing
.
.
.
for the retirement of the units”;
and that the October viblation “would have been in connection
with a start—up, a load—up”
(H. 365—68).
But
the witness did not
know at what time of
day
the alleged upsets had occurred; he did
not
know
whether
they
had
occurred
at
the
time
the
Hingelmann
readings
were
taken;
he
conceded
that
the
first
two
violations
“could
not
have
had
to
do
with
starts,
since
they
occurred
in
the
afternoon and the units were placed in service
.
.
.
around 8:00
in the morning”; his conclusion with regard to the October 27 incident
was based on the fact that it had occurred at
“the
time
we usually
bring
up
the
unit”
and
not
on
any recollection that the unit had
actually been started at that time; the bunker unloading on October
27 was not alleged to be the result of any upset or other matter
of defense; and the witness had no personal knowledge of any of the
defenses to which he testified (H.
365—69).
If the smoke emissions
were due to a breakdown or to starting a new fire, Edison had ample
opportunity to present witnesses with-intimate knowledgç of the
matter and to produce exact records to prove the point.4
It did
not do so, and it did not prove its defenses.
The bhrden of
proof is on the respondent to establish the affirmative defenses
of upset or startup, which are peculiarly within its knowledge.
We find smoke violations on the three days in question.
The
final
question is what order to enter in order to prevent
the recurrence of particulate and smoke violations from units 1—4,
which in fact were “retired” before the hearing began
(H.
77,
351).
A number of steps have been taken to prepare the retired boilers
for their idleness, including preparations to inhibit corrosion,
the removal of “pump packing and protecting bearings,” and the
replacement of hydrogen in the generator with relati’v’ely inactive
nitrogen
(H.
353—53).
Yet Edison insists that it reserves the
privilege of starting up these “retired” units “in the event of a
very extreme emergency at which time electric power was not
available from any other source,” upon application to the
Commerce Commission
(H.
45).
It is clearly the company’s right to
4.
Edison
half—heartedly
argues
that
it was deprived of-this
opportunity by the Agency’s failure to report the violation
to the company at the time (Brief, pp.
22—29).
Such a re-
quirement would unduly hamper the Agency’s operations,-and
Edison could have foreseen the desirability of keeping records
of upsets for this purpose.
The argument lacks merit.
I —21$
apply
for
a
variance
on
the
ground
that
compliance
would
impose
an
unreasonable
hardship
during
times
of
power
shortage,
and
the
statute is clear
that
no formal petition is necessary; the
respondent in a complaint proceeding is entitled to prove un—
reasonable hardship as a matter of defense (section 31(c)).
But
the statute places the burden of proof on the
company
on thiS issue
(section 31 (c)), and not one shred of evidence was introduced
to show that Edison or its customers would suffer hardship if
the company were absolutely forbidden to use the dirty old units
at Joliet.’
The only Edison testimony remotely related to the
question of future use of units 1—4
was
elicited on cross—examination
over Edison’s objection,
and
it went only to the company’s intentions,
not to hardship:
“I understand that if a case of dire need, there
may be some operation of it some
time
in the future
.
.
.
.
It
wouldn’t be my decision to make”
(H. 78).
We cannot allow these
units to be kept on a standby basis indefinitely, with the attendant
risk of pollution, on the basis of an unproved assertion that
an emergency
may
occur.
There are other ways to provide for
emergencies,and~as Edison says, retiring old units is one of the
best ways to reduce pollution (H.41).
The statute requires the Board to consider, in framing its
order, such facts as the harm caused by the emissions, the social
and economic value of the pollution source, the nature of the
area in which it is located, and the technical and economic
feasibility of reducing future emissions (Section
33
(c)), and
we have done so.
The weight to be given the section
33
(c)
factors is indicated by section 31
(c):
Compliance is to be or-
dered unless, after considering these factors, such an order
would impose an unreasonable hardship.
There can be no defense
under
M
33
without proof of hardship and there was no such proof in this
case.
As for the extent of harm from Edison’s emissions, proof
that the regulation limits were exceeded gives rise to at least
a presumption of harm; anything less would render meaningless
the power to adopt regulations and require proof of a nuisance
in every case.
The legislative history shows that the statute
was meant to avoid this danger by giving inuependent force to the
regulations.
£5
Edison’s brief emphasized
(pp. 25—26), if the
Agency after proper notice had shown sulfur dioxide emissions
in excess of a numerical regulation standard, the “Complainant
could have rested.”
Edison did not attempt to show that the
5.
Edison introduced, presumably on the sulfur issue, a good
deal of evidence as to the social value of electricity,
but
it did. not show that keeping units 1—4 out of action.
would
impair
its ability to deliver.
1—214
emissions were harmless.6
It remains only to add that, wbile Edison is surely right
in saying it must obtain the permission of the ICC if it ever
wished to operate units 1—4 again without losing its rate increase
(H.
78),
the ICC has no authority to grant variances from the
regulations effective under the Enflronmental Protection Act.
Even in the absence of a prior order of this Board agiinst such
use,
the
oompany
could
not
with
impunity
fail
to
comply
with
those
regulations
absent
a
showing
to
this
Board
that
compliance
would
impose
an
arbitrary
or
unreasonable
hardship.
In
light
of
our
findings
above
it
is
unnecessary
to
decide
whether
the
particulate
and
smoke
emissions
from
the
old
Joliet
station cause air pollution in violation of the statute itself.
6.
Moreover, the evidence is clear not only that units 1—4
cannot be operated in compliance with the particulate
regulations, but that the intermittent use of units for
peaking or emergency purposes is the pattern of use most
likely to result in smoke violations:
First, because
coal piles left standing unused are -more likely
to
ignite
spontaneously and require unanticipated and irregular
boiler use
(H. 340), and second~because incomplete
combustion is to be expected during startup operations
(H. 360).
-
1—215
This opinion constitutes
the Board’s findings
of fact
and
conclusions
of law.
ORDER
The Board, having considered
the record, hereby orders
as follows:
1.
Commonwealth Edison Company shall not operate
the Old
Joliet station as
a whole,
or boiler
1,
2,
3, or
4,
generators
1,
2,
3,4,
or
5,
or stacks
1,
2,
or
3
thereof,
so as
to cause
violations
of Rule 3—3.112 of the Rules
and Regulations Governing
the Control of Air Pollution, made applicable
by Rule 2—2.11
thereof.
2.
Commonwealth Edison
Company
shall not operate generators
1,
2,
3,
or
4,
boilers
1 and
2,
or stack
1 of the
Old Joliet station
so as to cause violations
of Rule 3—3.122 of those Rules and
Regulations, made applicable
by Rule 2—2,11 thereof.
3,
Commonwealth Edison Company shall within 30 days from
the
date of this order submit
to the Board and
to the Agency
satisfactory assurances,
by affidavit, as
to the status of
emissions from boilers
3
and
4,
generator
5,
and stacks
2 and
3
of
the Old Joliet station.
I, Reaina
E,
Ryan, Clerk of the Pollution Control Board,
ce~ify that the ~pard
adonted the above Opinion and Order this
~
day of
~
l97l~
~
Cle’~k
1
—
216
