ILLINOIS POLLUTION CONTROL BOARD
September 30,
1971
ILLINOIS POWER
CO.
v.
)
#*
71-193,
71-195,
71-196
71—197,
71—198
ENVIRONMENTAL PROTECTION AGENCY
Mr.
Sheldon
A.
Zabel of Schiff, Hardin, Waite,
Dorschel
& Britton,
for Illinois Power
Co.
Mr.
Delbert
D.
Haschemeycr of Springfield,
for Environmental Protection
Agency.
Opinion of the Board
(by Mr.
Currie)
Illinois
Power
furnishes
electricity
to
a
substantial
part
of
Illinois,
from
Danville
in
the
east
to
Wood
River
in
the
west.
Its
program
for
bringing
particulate
emissions
into
compliance
with
regulations
(Acerp)
was
approved
by
the
Air
Pollution
Control
Board
in
1968.
After
our
decision
that
such
programs
were
in
effect
variances
and
therefore
required
annual
reanproval
(En-
vironmental
Protection
Agency
v.
Commonwealth
Edison
Co.
,
#
70-4,
Feb,
17,
1971)
,
Illinois
Power
filed
the
present
petitions.
The
comeany
does
not
concede
that
its
Acerps require reapproval, hut
in
the
event
such
approval
is
necessary
asks
that
we
grant variances
to
permit
continued
operation
during
completion
of
its
program.
We
reaffirm
our
earlier
holding
that
an
Acerp
is
a
variance
whose duration
is explicitly limited
to
one year
by
statute.
The Acerp authorizes emissions
in excess of regulation limits,
and on the ground that immediate compliance would cause unreasonable
hardship;
this
is
the
very
essence
of
a variance.
Moreover,
any
doubt
on
the
issue
is
resolved
by
the
specific
statutory
provision
that
all variance requirements apply
to
Acerps.
This
does
not
mean
all
crograms
must
be
completed
in
one
year.
Renewals
are
authorized
on
adequate
proof.
But
a
prudent
re—examination
of
such
spensations
is
rightly
recuired
by
statute.
Cases
##
71—195
and
71-196
concern
the
Wood
River
generating
station,
which
consists
of
five
units
located
quite
near
the
City
of
Alton
in
Madison
Count~,
tn
the
St.
Louis
metropolitan
region.
Unit
~5,
which
is
enuieped
with
a
99
precipitator
and
allegedly
meets
the
standard,
is
not
subject
to
the
variance
request.
Unit
~4
(Case
~
71—196)
has
a
rated
output
of
103
megawatts,
is
presently
equipped
with
a
90
meehanical
collector,
and
emits
0~87
pounds
of
particulate
per
million
btu,
as
contrasted
with
the
applicable
2
—
547
standard
of
0.6
(R.
19-21),
The
1968 Acerp called for compliance
by
1974
(R.
22)
but
the company has begun construction of
a
Monsanto catalytic oxidation
(Cat—Ox)
system, including
a
99
precipitator,
that will reduce the particulates well below standard
(and reduce sulfur dioxide by 85)
by June of 1972
(R.
25-26).
Taking today as
a vantage point,
this is an exemplary program.
We
see no way the schedule can now be accelerated; emissions
in
the meantime are not so extreme
as to suggest the possibility
of a shutdown;
the end result will be control not only of particulates
but of sulfur as well.
On appropriate conditions the variance for
Unit
#4
is granted.
Units
##
1-3 present considerably more difficulty.
They
discharge
through
a
common
stack
and
have
been
treated as
a unit
by the parties.
Together their capacity
is 155 mw
(R.
19).
Their
control equipment, although they were constructed as late as
1949—50,
is practically nonexistent.
The company estimates
its
efficiency at 15
and the consequent emission at 7.38 lb/mbtu,
about
13 times the applicable regulation limit of 0.55
(R.
20—21).
The emission is extremein terms
not only of concentration but of
volume as well; units 1-3
are estimated to emit 24,000 tons
of
particulates per year
(R,
160)
,
which
is more than
a third
as much as all sources
in the nearby area of the Interstate Study
(St.
Louis area)
in 1963—64
(F.
176—78).
A local pollution official
testified flatly that this plant
is “the major source of pollution
in Madison County”
CR.
202)
,
which emission inventories
show has
considerable particulate sources
(F.
163).
An Agency witness
testified without contradiction
that ambient air concentrations due
to emissions from units
1—3 alone could be expected to reach
325 micrograms per cubic meter for the worst 24-hour period
(F.
181)
and federal criteria based on epidemiological studies indicate
that adverse health effects can occur when the 24—hour level
is in the range of 200-300
(Air Quality Criteria for Particulate
Air Pollutants,
p.
188).
Consequently,
to leave none too large
a safety margin, both~ourpredecessor board and the federal govern-
ment have set air-quality standards
of 260.
Ours
is to be met~by
January,
1972,
The proof
is clear that emissions from units
1-B will
in themselves cause
a violation of the
air quality standard
as well as
of
the emission regulations.
It
is abundantly
clear that
we here deal with
one of the most significant contaminant sources
in all Illinois.
It is particularly important that abatement occur
with all practicable expedition because
this plant
is ~1ocated in
a densely populated region that suffers badly from numerous other
contaminant sources.
It
is therefore with surprise
and displeasure that we learn
from this record that the former Air Pollution Control Board
in
1968 allowed Illinois Power an additional six years--a td~al
of
seven years after adoption of the regulations—-in which
to bring
-these truly extreme emissions under control
(F.
22)
.
Pursuant
to that extensive
free pass,
the company has not yet commenced
2
—
54~
construction of facilities to give relief to its
unfortunate
-
neighbors,
although the regulations are already four and one
half years old.
For
a part
of that
time Illinois Power was assured
that it would be able, when compliance time came,
to purchase gas
for full—time operation of these boilers
(R.
61).
The recent
gas shortage has put holes
in that plan
(R.
62),
and now the company
expects-- although
the final decision has
not been made
(R.
34)--
to convert Units
1-3
to oil burning and to utilize low-sulfur
residual oil that would substantially reduce sulfur emissions as
well
as bring particulates down to 0,1 lb/mbtu
(R.
27).
This program,
too,
is exemplary,
apart from the question
of time.
It is
a tragedy that
over four years have
gone by
without getting the work even
started.
No penalties
can, however,
be imposed,
since the delay had the inexplicable blessing of the
Air Pollution Control Board.
See EPA v.
Commonwealth Edison Co.,
#
70—4
(Feb.
17,
1971)
;
EPA v.
M.S.
Kaplan Co.,
#
71—50
(June
8,
1971).
Today’s questions therefore are how quickly the work can
now be
done,
and whether or not the plant should be
allowed to
operate in the meantime.
The company in its petition asked that we reconfirm the
1974
date
of
the
original
acerp,
but
at
the hearing
reported,
commendably,
that
its present schedule contemplated completion of
the conversion,
and therefore compliance,
by June
1973
(F.
128).
Re—examination of the program,
as required by
the statute and our
Edison
decision,
has
eliminated
a year~s pollution.
Illinois Power testified that because of tight space limitations
at
the
Wood
River
site
work
cannot begin on the conversion of
Units
1—3 until materials
for the Cat—Ox system on Unit
4 are
out
of the way,
that
is,
until the Cat—Ox
is completed
in
June
1972
(F,
27,
31—33).
The Agency attempted without much success
to attack this testimony
(F.
66-73,
77-78)
,
but we
are not convinced
that
the start
of construction could be much accelerated
even if
the space difficulty
were
overcome.
The
company
testified
without
contradiction
that
the
lead
time
for
obtaining
the
necessary
equipment was from six
to eight months
(F.
74).
Starting today,
that period would
run
until April
of 1972 at
the earliest.
The
June date
for starting construction seems the best
that we can expect
en the record.
There was nothing to show,
either,
that the one-
year estimated construction. time could be improved
upon.
To assure
the company~sbest efforts, however, we shall order,
as
in prior
cases
(GA? Corp.
v.
EPA,
# 71—ils,
Sept.
16,
1971),
that overtime
be employed whenever to do so will advance the ultimate compliance
date.
There
remains
the
alternative
possibility
of
forbidding
the use of Units
1-3
until
they
are
brought
under
control.
This
is
an
attractive possibility because of the extreme emissions in
question, and in
a most inappropriate
location.
The company presented
a good deal of evidence
to the effect that these units constitute
—
549
about half of the 15
reserve
it says
is necessary to enable
it to meet peak demands that may outstrip predictions,
to assure
continued supply in the event
of
a failure
‘of other generating
facilities,
and to allow for the requisite maintenance of other
units
(R.
39—55, 138).
The Agency attempted to minimize the need
for coal burning
in Units
1-3, pointing out that the largest
demands come during summer months when gas is more likely to be
available
(R.
57,
99—120).
All three units
can burn gas
(R.
19),
The company counters by observing that,
precisely because summer
loads are greatest, maintenance down time is grea.test at other
times
so that there is no guarantee coal burning may not be necessary.
We think there
is sufficient danger
on this record that the
complete refusal to allow coal burning on Units
1-3 might result
in an interruption
of electric service that it would be improper
for us to enter
such an order.
On the other hand,
this does not
mean we must allow unlimited use of
coal.
Our order makes
it clear
that coal may be burned in these units only as
a
last resort.
All available gas must be used
in units
1-3 in preference to other
units
in the system
CR.
20)
,
if
those units
are to be operated,
since
1-3 are
the most ~‘erious polluters.
All
other
sources of
available power must be exhausted, including all other operable
units
of this company not down
for legitimate maintenance and includ-
ing
all purchases that can be made from other producers.
These
provisions will
limit
coal burning on Units
1— 3 to the minimum
necessary to avoid the extreme hardship of
a power shortage.
If
the Agency
is right that these units
are never needed when gas
is
unavailable,
these provisions will mean these units will never
burn coal.
On these and other appropriate conditions
‘the variance
will
be granted in
#71-195.
Case
# 71-197 concerns
the
Vermilion Station near the
bewn
of Oakwood in Vermilion County.
This
plant consists of two ex-
clusively coal-burning units
of
77
and
109 mw and equipped with
mechanical collectors
of
86
and
87
respectively discharging
through
a single stack
(P.
7).
Their emissions are calculated
to
be
1.06 lb/mbtu as opposed to
the
permissible 0.59
(F.
7).
The
Acerp approved
in 1968 gave Illinois Power until
1973 to install
a 99
precipitator on
Unit
#1 and until 1974
to
do
the same on
#2;
it
is expected that emissions will be reduced
to
0.08
lb/mbtu
(R.
8).
Consequently work has not yet begun;
the company was given
time not to do the work,
as contemplated by
the
regulations, but
to
delay the start of construction.
Bids have
just
been
received
for
#1 and are soon to be received
for #2
(F.
ii).
The company has
at the Agency’s suggestion
upgraded
the pro-
jected precipitators
to 99.5
(R.
30)
but seeks
to adhere to
the
original unhappy schedule.
Unfortunately the only testimony
:~n
the record
is
that the schedule cannot be accelerated
at all
os
to Unit
#1 and may indeed not be met
(H.
28,
3t).
If it
is
not:,
the
company will have only itself to blame.
W~.cannct on the presant
record find that
#1 can be completed more qu~:~lythan the
compaey
sees,
but
we
do
not
find
persuasive
the
evidence
a~- to
wny,
as
1 lii
pci ~ Power
2
says, construction cannot even begin until December 1972
(R.
30),
which
is fifteen months away.
Consequently, while we grant the
variance to permit operation of Unit
1 during the coming year,
we condition the grant on the company’s prompt submission of an
additional affidavit,
subject to Agency response, detailing why
this delay
is necessary, especially
in light of the company’s
evidence that
a similar installation at Hennepin
(see below)
will
take
only 18 months from order to completion.
With regard to Unit
2
the
company admits that the schedule can
be
accelerated
by six months
(R.
32)
and we think it should be.
If
this
places
Illinois Power in an unfavorable bargaining position
with respect to its supplier,
as contended,
that is the company’s
doing because it chose to put off the installation
of
controls
on Unit
2,
The same condition will apply
to
Unit
2 witfr respect
to
an
affidaVit
showing
why
construction cannot be further accelerated.
With these qualifications,
the variance
for
the Vermilion
station must be granted.
Illinois Power cannot do without
this
station.
And it
is certainly better that coal be burned at Vermilion,
where emissions
are only
twice
the
limit,
than
at Wood River
1-3 with
its virtually uncontrolled short
stacks
in
a
highly
populated and highly polluted
area,
In case
#
71-198
the
company seeks approval of
a
drastically
revised
and much improved program for its
Havana station,
Consisting of eight boilers driving five units totalling
260 mw
(F.
31—32)
,
Havana is admittedly
a
bad
actor,
“a real problem.
The station puts out
a great deal of contamination”
(R.
123).
It burns only coal;
its controls are
a paltry
15
effective;
its
emissions are estimated by the company at 6.3
and by EPA at 7.4
lb/mbtu,
with an allowable
of 0.33
(F.
32,
104).
It
is scarcely
surprising that several citizens, brought forward by
the City of
Havana as well
as by the Agency,
found the plant
a severe nuisance,
depositing sticky soot on cars
and window sills, requiring extra
cleaning, and interfering with such outdoor activities
as clothes
drying and cookouts
(F.
5-28).
There was testimony that two
families had moved their mobile homes out of the area,
and three
others had threatened soon to do so, because of pollution from
the
plant
(F,
25-26).
Petitions urging that something be done were
presented to the City as early as 1965
(F,
21).
The regulations that were
to give relief came in l967~
although action could have been taken under the statute itself
long before.
The Acerp, approved in 1968, incredibly provided
for no controls
at all, but merely for declining use of the
old plant until
1976, when
it was
to be placed on cold standby
for possible emergency use--still without meaningful controls——
until
1985
(F.
33—34)
2—551
~
The company’s own evidence
is clear that the conditions
of
even
this most accommodating variance were grossly violated.
Loads around the time of APCB approval in 1968 averaged less than
-
26
of capacity
CR.
36).
In
1970, due to increased requests to sell
power to neighboring electric companies,
the
load was increased
to an average of
39.7
(ibid).
In
the
first
six
months
of
1971
the
load further increased
to
47
(ibid),
In defense the company
asserts that the
APCB
in
accepting the promise to reduce the
use
of Havana “was well aware of the contingencies that could arise
in the power industry”
(H. 130-31)--
contingencies, that created
an allegedly unexpected shortage of power elsewhere-— and that the
promise
was
not
a
promise
at
all:
“Those submissions were projections.
They were not guarantees.”
“We did
not.,
spate anywhere in
those
ACERP
documents
that
we
would
not
operate above
‘x’
capacity”
H.
143—44,
130).
While
the
English
language
has
its
ambiguities,
we
see
no
possibility
of
reading
the
Acerp
as
Illinois
Power suggests.
The company’s
own schedule,
submitted as
part of
its
Acerp and
appended
to the Agency’s recommendation here, provided
that “from
1968
to 1976
the station’will be operated
for peaking purposes
on
a cycling basis
at progressively
lower load factors.”
If the
company did not promise to reduce its use of Havana it promised
nothing at
all.
Its violation is plain.
If conditions changed to
make that promise no longer suitable,
it was the company’s duty
to request an amended variance;
that would have enabled the Board
to order
a new compliance program.
The company chose instead simply
to violate its commitment, which thereupon ceased to be
a shield
against prosecution for exceeding the emission
limits.
‘
We there-
fore condition the grant of
a further variance
for Havana upon
payment of
a
$5000 penalty for failure to adhere
to its earlier
program,
Our authority to impose penalty conditions has been challenged
here;
it
is
supported by the statutory direction to impose conditions
that will further statutory policy, for example to deter violations.
We could
of course deny the variance in order to leave the company
open
to
a complaint on which
the same penalty could be directly
imposed;
to do so would merely cause duplication of litigation with
attendant
loss of time and money.
In making the variance contingent
on payment of the penalty, we make it clear that the variance falls
if the penalty
is defaulted or set aside, ‘so that
a complaint
can be filed.
See, e.g., Marquette Cement Co.
v.
EPA,
#
70-23
(Jan.
6,
1971);
City of Springfield
v,
EPA,
#
70—55
(March
31,
1971).
Nor
is there,
as the company says,
any inconsistency
in holding
that
the
Acerp
has
expired
and
that
it
was
not
adhered
to.
As
we have made clear before
(EPA v.
M,S,
Kaplan
# 71-50, July
8,
1971)
,
while
an Acerp must be renewed yearly we will not
impose money
penalties
on one who has followed such
a program in the good
faith
belief it
is still valid.
The reason
is not that there has been
no violation;
it
is
that
good faith reliance
makes
penalties
2
—
552
inappropriate.
However, that defense disappears when,
as here,
the
program was itself not followed.
The company’s present program is
a decided improvement.
Conversion or the boilers to oil has begun and
is
to be completed
in either May of July 1972
(H.
37).
The contractor says May
(R.
62-63);
the company asks until July to leave room for
unexpected possible delays
(ibid).
We will set the May date.
If
justifiable delays occur,
a petition
for extension may be
submitted——
in time that we can pass
on it before
the present
grant expires.
The new program is happily short,
and we think the
need for these units
in the meantime greatly outweighs even the
substantial harm
they cause.
Havana shall in the interim be used
as little as possible, making it
a last resort save only
Wood River Units
1—3, which
are equally uncontrolled and in a more
densely populated area.
When conversion of one or more boilers
is
completed,
the company will be required to use
the converted boiler
or boilers
in preference
to those yet unconverted
(H.
76-77).
Overtime shall be employed whenever it will accelerate completion.
The Hennepin station
(#
71—193)
consists of Units
1 and
2
of
76 and
235 mw respectively
(H.
5).
Equipped with mechanical
collectors of alleged 83.8
and
85
efficiency,
the units discharge
through
a common stack at an estimated rate of 1.49
lb/mbtu,
contrasted with
an allowable 0.42
(R.
5-6).
The company’s acerp,
approved
in 1968,
called for installation of
a 99
precipitator
on Unit
2 by sometime
in 1972, relying on mixing with the
precipitator effluent to bring Unit l’s emissions within the standard
(R.
6-7).
The petition
left doubts
as to the availability of the
low—ash coal needed
for this stratagy,
but
the record shows
the
supply has been contracted for
(H.
9).
The precipitator
is under
construction,’ and completion
is scheduled for June 1972
(H.
9).
The company asks that we confirm the program.
We do
so.
Again
the need
for reliable power, and to minimize
use of Wood River 1-3,
dictate against an interim shutdown.
Again——given today’s vantage point—-we see no way to accelerate
the construction schedule.
That the company can meet the standard
by controlling only one
of its two units once more demonstrates
the laxity
of the existing standard, which we may well tighten in
the near
future.
But under the present regulation our concern is
with the quality of the emission, not with how it
is achieved.
While dilution with outside air to reduce contaminant concentration
without reducing the quantities discharges would violate the anti-
circumvention provision of the regulations,
that
is
not what
is
occuring here.
For the quantities
of fly ash removed and those
emitted,
as well
as the concentrations, will be the same as
if both
units were equipped with precipitators
of somewhat lower efficiency.
2
—
553
Moreover,
the company’s plan leaves
it in a
better
position
to
conform to more stringent regulations
that
may be
adopted
in
the
future.
In all
these cases
the Agency asked not only that security
be
posted
to
assure performance——as the statute requires—-but also
that we condition any variance on the submission
of
a program for
controlling
sulfur dioxide and
for developing technology
to
control
various other pollutants.
On adequate proof we have found air
pollution by virtue of contaminants
for which there are no emission
standards;
that
is
one
of
the
chief
purposes
of
the
statutory
prohibition.
B.
g., EPA v.
City of Springfield,
#
70-9
(May
12,
1971).
Here, however,
there was’ no proof
of such pollution, except
possibly for the Havana station, whose sulfur problems will be
greatly reduced by
the program we approve today.
We cannot order
correction of pollution without proof that a problem exists.
This opinion constitutes the Board’s findings
of fact and
conclusions of law.
ORDER
Upon examination of
the record,
Illinois Power Co.
is hereby
granted variances
to emit particulate matter
in excess of regulation
limits
as
follows:
1.
(#71-196)
From Unit #4 at
the
Wood
River
Station
until
June
30,
1972;
2.
(#71-195)
From
Units
##
1-3 at Wood River until
September
30,
1972,
subject to extension to June
30,
1973,
provided that:
a.
Overtiine
shall
be employed
on these units
and on
Unit
#4 whenever
to do so will advance the date
of
compliance;
b.
Coal burning on Units ##l-3 shall be
a last
resort,
only if the company has exhausted all other
means
of satisfying its demands including the following:
i)
Maximum use of all other ‘available units operated
by
the company;
and
ii)
Maximum purchases of power from other producers;
and
iii)
Preferential
allocation
of
available
gas
supplies
to
Units
##1-3;
Provided,
that this paragraph
shall
not
prevent
the
company
from burning minimum
quantities
of
coal
if
needed
to
maintain
the
readiness
of
the
units in question;
2
—
554
c.
The company shall within 35 days after receipt of
this order file with the Agency
and with the Board
a
firm schedule for bringing Units
##
1-3
into
compliance as follows:
i)
Equipment
to be ordered by January
1,
1972;
ii)
Equipment to be delivered and construction
to
begin by July
1,
1972;
iii) Compliance by June
30,
1973;
3.
(It
71-197) From Units
#
1 at the Vermilion station until
September
30,
1972
subject to extension to June
30,
1973
and from Unit
#2
at Vermilion until September
30,
1972,
subject to extension
to December
31,
1973,
provided that:
a.
The company shall submit to the Agency and
to the
Board, within 35 days after receipt of this order,
an affidavit,
subject to Agency response, detailing
why this schedule cannot be accelerated;
b.
After completion
of the control equipment
on Unit
#1, that unit shall be used
in preference
to Unit
#2;
4.
(#71-198)
From Units
H
1—8
at
the Havana station until
May
31,
1972,
provided that:
a,
Overtime shall be employed whenever to do so will
advance the date of compliance;
b.
Use of Units
##
1-8 shall be resorted to only
if the
company has exhausted all other means
of satisfying
its demands,
including the following:
i)
Maximum use of all other available units
(except
Wood River
##
1-3)
operated by
the company;
and
ii)
Maximum purchases
of power from other producers;
Provided, that this paragraph shall not prevent
the company from burning minimum quantities of
coal
if needed
to maintain
the readiness
of the
units
in question;
c.
After conversion
of one or more of these units,
preferential use shall be made of those units
converted;
d.
A penalty shall be paid to the State of
Illinois
in the sum of $5000 within
35 days
after receipt of
this order;
2—555
5.
(#71-193) From Units ##
1 and 2at
the Hennepin station
until June
30,
1972;
all on condition that the following requirements are met:
6.
Illinois Power Co.
shall make maximum use of available
gas
to minimize the necessity for burning coal in units
not meeting standards when coal
is
used;
7.
All existing emission control equipment shall be maintained
and fully utilized;
8.
The company shall within 35 days after receipt
of this
order post with the Agency a bond or other security
in
the amount of $500,000,
in
a form satisfactory
to the
Agency, which sum shall be forfeited
to the State of
Illinois
in the event that
the conditions
of
this
order
are not complied with or
the
facilities
in question are
operated after expiration of
these
variances
in violation
of regulation
limits;
9.
The company shall file quarterly reports,
commencing
December
31,
1971, with the Agency and with
the Board
detailing its progress toward completion
of
its program;
provided,
that such reports in cases
## 71-195 and
71—198 shall detail any occasions on which coal was burned at
Wood River
Units
1-3
or Havana Units
1-8,
together with
reasons why
such burning was necessary;
10.
These cases remain open for further proceedings on the basis
of
the submissions required by
this order;
11.
Failure to adhere
tO the programs
as presented or to the
conditions
of this order shall be grounds for revocation
of these variances;
12.
The company shall apply
for any desired extensions
of these
variances to complete
the programs approved today not later
than 90 days before expiration of these variances.
I, Regina
B.
Ryan, Clerk
of the Pollution Control Board,
certify
that
the
Board
adopted
the
above
Opinion
o~~&’.~~oardthis
30
day
of
September
,
1971.
2
—
556
