ILLINOIS POLLUTION CONTROL BOARDJanuary 26, 1984

ILLINOIS POWERCOMPANY(VERMILLION POWERPLANT), )

Petitioner,)

v. ) PCB 82—103

PCB 82—104ILLINOIS ENVIRONMENTALPROTECTION AGENCY,

Respondent.

MR. SHELDONA. ZABEL AND MS. CAROLYNA, LOWN, ATTORNEYS (SCHIFF,HARDIN & WAITE) APPEARED ON BEHALF OF ILLINOIS POWER COMPANY.

MS. MARY V. REHMANN AND MS. BOBELLA GLATZ, ATTORNEYS, APPEARED ONBEHALF OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY.

OPINION AND ORDEROF THE BOARD (by J. Theodore Meyer):

On August 20, 1982 Illinois Power Company (IPC) filed withthe Board appeals from the Illinois Environmental ProtectionAgency~s (Agency) July 28, 1982 denials of two permit renewalapplications. The first appeal, PCB 82—103, involved the renewalof the operating permit for Unit 1 at IPC’s electric generatingfacility near Oakwood, Illinois known as the Vermillion Station.The second appeal, PCB 82-104, involved renewal of the operatingpermit for Unit 2 at the same facility. Each Unit is equippedwith an individual electrostatic precipitator to control totalsuspended particulates (TSP), but they share a common 277 footstack. Pursuant to Section 39 of the Environmental ProtectionAct (Act) the Agency separately denied the renewal applications,but the language in the two denial letters was identical. Con-solidated hearings were held on July 26, and August 16, 1983after an Interim Order of the Board allowing discovery. Bothparties submitted briefs which treated the matters as consoli-dated. On its own motion the Board consolidates these appealsfor decision.

On May 21, 1982 IPC reapplied for both operating permits.Under one cover letter it submitted two Agency standardizedrenewal forms, and stack tests for each Unit, as required byprior permits, and coal analyses. The letter stated that thesetests indicated a weighted average full load emission rate forboth Units through a single stack to be 0.131 lbsfmBtu. Itfurther stated “Preliminary modeling analyses of both units at

56-59

full load, which is indicated to be the worst case, reveals thatno ambient air quality standard will be exceeded.” (Ex. 4 of thePermit Appeal).

The Agency denied both operating permits citing possibleviolations of 9(a) of the Act, and 35 Ill. Adm. Code Sections201.141 and 243,121 (Rules 102 and 307 of Chapter 2: Air Pollu-tion before codification), The Agency stated that the applica-tions failed to provide sufficient information that operation ofboth Units, alone or in combination, would not prevent the attain-ment of maintenance of the TSP air quality standard contained inSection 243,121, The Agency outlined the air quality analysis itfelt necessary to prove Sections 201,141 and 243.121 would not beviolated. In lieu of such analysis the Agency stated that proofthat these sources would meet the applicable remanded TSP emis-sions limit might suffice to demonstrate that air quality wouldriot be jeopardized. (Agency Records in PCB 82~103 and PCB82—104, Items 1)

As stated above IPC had submitted stack tests, In analyzingwhether these were satisfactory the Agency considered a weightedaverage emission rate of 0.13 presumably relying on the coverletter and a combination olf the tests’ results. The Agency thenoffered two reasons why the stack tests submitted were not suffi-ciently representative to demonstrate compliance with the re-manded limitation of 0.10 lbs/mBtu. First, sootblowing was notperformed during tests on either Unit, and secondly, the ashcontent of the coal burned during Unit 2~s tests had a lower ashcontent than the range of daily average compiled ove.r a recenttwo month period.

Given the Agency~s denial letters, there appear to be twoalternate methods for demonstrating that sources should be permit-ted for TSP, The first involves using air quality studies whichdemonstrate that the TSP air quality standard will not he jeopar-dized. The second alternative involves a demonstration that thesources comply with the applicable TSP emission limits which werefound at Rule 203(g) (1) which were remanded by the Courts. Asfurther delineated below, both parties relied upon and utilizedboth alternatives, The Board will examine both denials to deter-mine whether this approach is acceptable; and whether the informa-tion submitted is sufficient to grant or deny the permits. Forreasons which will become apparent, the second alternative willhe considered initially.

I. REMANDEDEMISSION LIMITATION

On December 30, 1977 the Agency filed with the Office of theSecretary of State “Rules for the Performance of Air QualityAnalysis to be used in Support of Permit Applications” as emer-gency rules, According to Paragraph 2.0 the intended purpose of

56~60

these rules was to provide guidance for solid fuel combustionsources seeking operating or construction permits while appli-cable emission limitations are subject to judicial remand.Specifically the rules required:

Thus for any period that Rules 203(g) (1).,.are not effective, construction and operatingpermit applications for solid fuel combustionsources will be evaluated on the basis ofcomprehensive air quality impact evaluationsperformed by the applicant and designed toenable the Agency to determine the statusof compliance with respect to the air qualityprovisions of Section 9(a) and Rule 102[Section 201,141], “In lieu of performingcomprehensive air quality impact evaluationsin accordance with these rules, the applicantmay elect to show compliance with emissionlimitations contained in Rule 203(g)(l)..,even if those Rules are not currently effective,Compliance with these emission limits will usuallybe deemed by the Agency to be sufficient to assurecompliance with the air quality provision ofSection 9(a) of the Act and Rule 102.

[Agency Brief, Attachnent 1]

The records filed by the Agency in these matte.rs indicatethat the Agency reviewed the applications in the context of thesecond method. Those records show that the Agency considered theapplications as one, considering the weighted average emissionlimit for the two Units to be 0.132 lhs/mBtu (Agency Record forUnit 1, Item 6; Agency Record for Unit 2, Items 2 and 3). Basedon that the Agency concluded that IPC had not made the necessarydemonstration and furthermore, that the stack tests were notrepresentative for the aforementioned reasons.

In part, IPC anticipated the Agency’s reliance on thissecond alternative. At hearing, the Air Quality Manager atIPC testified that when applying for the permits in questionIPC had anticipated that for a permit on Unit I to be granted,the Agency would request an air quality analysis, and that apermit for Unit 2 would be granted since the stack tests demon-strated compliance with the remanded limit. (R,148)

Underlying this second alternative are two fatally flawedpresumptions. First, it is premised on emission limits remandedat least thrice by the Illinois courts, Commonwealth Edison Co.

v. Pollution Control Board (1974), 25 Ill, App. 3d 271, 323 N.E.2d 84, aff~d in relevant ~ 62 Ill. 2d 494, 343 N.E. 2d 459(1976); Ashland Chemical Co. v, Pollution Control Board (1978),64 Ill. App. 3d 169, 381 N,E,2d 56; Illinois State Chamber of

Commerce v. Pollution Control Board (1978), 67 Ill. App. 3d 839,384 N.E. 2d 922, 2eal dismissed, 78 III. 2d 1, 398 N.E. 2d 9(1979). To remedy this judicial voidance, the Board initiatedthe currently ongoing rulemaking R82-1 which is intended toestablish TSP emission limit for sources, such as IPC, burningsolid fuel exclusively. Although it is often more convenient andless costly for both the Agency and permit applicants to assessand demonstrate compliance with an emission limitation, as opposedto an air quality standard, the parties cannot ignore the judicialremand, albeit grounded on procedural infirmities.

Secondly, although the Agency’s emergency rules providingthis alternative demonstration are on file with the Office of theSecretary of State, they are not currently in effect. Pursuantto Section 5,02 of the Administrative Procedure Act (Ill. Rev.Stat. 1981, ch, 127, par, 1005,02) these rules expired 150 daysafter they were filed with the office of Secretary of State.Furthermore, the language providing for the alternative is arbi-trary. There are no standards as to when and when not the Agencywill “deem” such a demonstration adequate for purposes of Section9(a) of the Act and Sections 201,141 and 232,121 of the Board~srules. For these reasons, the Board finds this alternativedemonstration unacceptable, unlike IPC and the Agency. Thedenials, as premised in the failure to demonstrate compliancewith a remanded emission limit, were incorrect.

There is yet another problem with the Agency’s permittinganalysis under the second alternative. Although the Agencyseparately analyzed the Units’ stack tests, it denied the permitsbased on the weighted average emission rate, which it believed tohe greater than the remanded limit. The Board can speculate asto why the Agency treated these two sources as one; however, itcannot ascertain the Agency’s authority for doing so. Neverthe-less, since the underlying permitting process has been foundinvalid, the Board will not address the question of separatelypermitting these sources and the Agency’s two aforementionedreasons for finding the stack tests unrepresentative,

Since the alternative method is stricken, the Board returnsto the Agency’s first reason for denying the permits: insuf-ficient information to determine whether, alone or in combinationwith other sources, IPC’s emissions could cause air qualityviolations and thereby he in violation of the Act and Boardregulations concerning the same.

When filing its appeals, IPC contended that the Agencyimproperly denied the permit renewals based on insufficientinformation because neither Board regulation nor Agency rulerequire air quality analysis. IPC further argued that the Agencyshould have notified it of this deficiency within thirty days of

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