| - ILLINOIS POLLUTION CONTROL BOARD
- May 15, 1975
- Petitioner,
- ENVIRONMENTAL PROTECTION AGENCY,
- Respondent,
- 17—19
- 1974 regarding progress made towards completion of thecompliance project.
- and operation of the wet scrubber.
- a stack test, the results of which were to have beenforwarded to the Agency.
- See also, City of Highland v. EPA, PCB 71—181, 71—284 2 PCB
- 539 (1971); National Gypsum Co. v. EPA, PCB 71—99, 2 PCB 185
- (1971) (The Board there stated: “therefore, not withstanding
- the company’s inexcusable delay in achieving compliance, a
- Variance is no longer necessary. We find the question of
- whether a Variance should be granted is now moot. Consequently
- we will dismiss the Petition.”).
- 17— 21
- or denied.
- ORDER
- prejudice.
- Christan L. Moffet~tA,~1erk
- Illinois PollutionL~ntro1 Board
|
ILLINOIS POLLUTION CONTROL BOARD
May 15,
1975
OWENS-ILLINOIS, INC~,
)
an
Ohio Corporation,
)
Petitioner,
)
PCB 75—7
ENVIRONMENTAL PROTECTION AGENCY,
Respondent,
OPINION AND ORDER
OF THE
BOARD
(by Mr, Zeitlin):
This Variance case was conurtenced on
January
6,
1975, by
the filing of a “Petition to Extend Variance” by Owens-
Illinois, mc, (Owens—Illinois)
This Petition relates to the
Owens—illinois Shabbona Sand Plant,
located in~Serena,
LaSalle County, Illinois, and recites that it seeks extension
of
a Variance previously granted by the Board in Owens-
Illinois, mc, Shabbona Sand Plant
v.
EPA, PCB 73-237,
9. PCB
~
Owens-Illinois
requests that
th..e Board incorporate into this proceeding the
record
i.n the earlier matter,
First, the Board must note that the Petition in this
matter is improperly titled.
Although the Petition is
styled as one to “Extend Variance”,
the relief sought here
is not identical to that granted by the Board in the earlier
case
re...gar••ding Petitioner’s ShabbonaSand Plant,
In that
case
the.,• Board granted
a
Variance until March
1,
1974, from
Rule 3-3,111 of the Old Rules and Regulations Governing the
Con...trol of
‘
Air Pollution,
and from Rules 104,
104(b),
114,
203(a)
and 203(i) (2)
of Chapter
2: Air Pollution of the
Board’s Rules and Regulations.
9 PCB at 172,
On the Other
hand in Part
3,
“Statertent of Relief Sought” of
the’ Variance
Petition submitted in
t”he instant case, Petitioner additionally
seeks Variances from Section 9(a) and
9(b) of the ~Environmenta1
Protection Act, and also from Rules
103 (b) (2) and 208 of
Chapter
2,
Ill, Rev,
Stat,
Ch, 111 1/2,Sections 1009 (a),
1009(b); PCB Regs~, Ch.
2, Rules 103(b) (2),
208,
it is
obvious
that Petitioner here seeks a much broader shield
from
enforcement
than
was
granted
in
the
earlier Petition,
As
will
be
discussed
below,
this
fact
alone
would serve
to
render
the
Petition
in
this
matter
inadequate,
and require
~t
~srn~a1
B~i~first, there are other ~ssues
raised
here which nerit our discussion and treatment.
17—19
—2—
The earlier Variance in this matter was granted with
regard to an existing direct rotary dryer for sand drying at
the Shabbona Sand Plant.
Variance was granted to allow
Petitioner sufficient opportunity to install, on the existing
dryer, a W.W. Sly scrubber to control particulate emissions.
Petitioner was to have installed the scrubber on its old
dryer by March
1,
1974.
As part of its Order in the earlier
case the Board imposed upon Owens—Illinois several conditions
regarding that proposed compliance plan:
a.
Petitioner was to have submitted progress
reports to the Agency on November
1,
L973 and January
1,
1974 regarding progress made towards completion of the
compliance project.
b.
Petitioner was to have applied for and
obtained all necessary permits from the Agency.
c.
Petitioner was to have executed an
$11,000 performance bond to insure the installation
and operation of the wet scrubber.
d.
Petitioner was to have performed, within
~30
days after completing installation of the scrubber,
a stack test,
the results of which were to have been
forwarded to the Agency.
Progress reports were in fact submitted to the
Agency on September 26,
1973 and October 26, 1973.
Petitioner complied with no other conditions of our
earlier Order.
In fact, Petitioner never did install a
scrubber on its old dryer,
as was envisioned in our
earlier Order.
Instead, Petitioner constructed and
installed
a new rotary dryer, which was to be ready for
start up on January
1,
1975; Owens-Illinois now proposes
to use the scrubber ordered as a part of its compliance
plan under our previous Order in conjunction with this
new dryer.
By the terms of its own Petition, Owens—
Illinois has failed to meet the conditions
subject to
which the prior Variance was granted.
(We do not,
however, here reach a decision on the merits as to
Petitioner’s liability under the earlier performance
bond).
—3—
Owens-Illinois claims that these failures are the
result of conditions beyond its control.
Petitioner states
that its wet scrubber was not delivered with all components
and equipment until February,
1974;
by that time, Petitioner
had already elected to phase out the existing dryer, and
contemplated that the new dryer would be in operation on or
about August l~, 1974.
Petitioner estimated that it could
not have the scrubber completely operational on the old
dryer until May
1,
1974.
Petitioner further determined that
as it had already ordered the new dryer,
it would be required
to ‘begin dismantling the scrubber from the old dryer after
only approximately 45 days of operation,
in order to have it
reinstalled on the new dryer by August 1,
1974.
Petitioner
thus determined that it would be uneconomical to complete
the work required for compliance under our earlier Order,
and did not do
so.
Thereafter, Owens—Illinois experienced, according to
the Petition in the instant case, considerable delay in the
installation of its new dryer.
Petitioner states that the
new dryer was not to have been ready for start up until
January
1,
1975, and would require two months for complete
debugging and stack testing,
so that it would not be fully
operational until approximately March
1,
1975.
It is unclear in the instant Petition whether the new
dryer has in fact become operational.
The Petition states
“that the new dryer will not be ready for start up until
January
1,
1975”, although the Petition itself was filed
before the Board on January
6,
1975.
It is clear that by this PetitionOwens—Illinois seeks
a shield from enforcement for a period which has already
passed.
Petitioner delayed filing its Petition here for
over nine months after the prior Variance had expired.
Were
the Board to grant this Variance,
it would relate to a
period already ended, and to
a time more than a year past.
We do not elect to grant such a shield.
In similar past cases, the Board has dismissed Variance
Petitions for prior periods as moot.
Owens-Illinois should
be familiar with that fact.
See, Owens—Illinois,
Inc.
v~.
~,
PCB 70-31,
2 PCB 397
(1971) (supplementary opinion).
See also,
City of Highland v.
EPA, PCB 71—181, 71—284
2 PCB
539
(1971); National Gypsum Co.
v.
EPA, PCB 71—99,
2 PCB 185
(1971) (The Board there stated:
“therefore, not withstanding
the company’s inexcusable delay in achieving compliance, a
Variance is no longer necessary.
We find the question of
whether a Variance should be granted is now moot.
Consequently
we will dismiss the Petition.”).
17— 21
—4-.
The question of mootness with regard to Variance for
an expired period has been explored by this Board several
times.
A discussion of
the
issue is particularly apt where,
as here,
Petitioner seeks immunity fo~past occurrences,
The
issue is properly described by Mr. Currie in a somewhat
similar case:
“We do not believe the case is moot in the
technical sense, since a Variance grant today would immunize
the company from any further prosecution
for delay.,.”
Midstate Foundry Co,
V.
EPA, PCB 70-53,
1 PCB 355
(1971)
Ttio~~Tsmissed,byi~licationwithout prejudice).
The resolution of the problem was also reached by
Mr. Currie,
in two subsequent cases:
The period for which the Variance
was requested has also expired, and there
seems to be no present controversy as whether
the late filing was justified,
In the unlikely
event an enforcement action is filed on the
basis of,, ,delay,
we ~canconsider the company’s
justification at that time.
On the present facts
the Petition is “dismissed as moot”,
Babitrite Products_Co,
v,
EPA, PCB 72-294,
5 PCB 643
(1972) (emphasis added),
in an analogous case, when responding
to a Motion to Withdraw Petition,
Mr. Currie stated,”.
the installation of the equipment leaves the company seeking
nothing from the Board at this time,
The Opportunity will
remain for either party to seek any relief that may seem
~
through the filing of a Complaint,
Petition fot Variance,
or otherwise,”
George E, Hoffman
&
Scna~:Ii~e,v...EPA, PCB 71-204,
2 PCB 371(1971) (emphasis added).
The analysis presented by those cases is applicable here,
Petitioner Owens-Illinois has no need for Variance for its
futute operations, and has not demonstrated a need for one
relating to past operations.
On these grounds alone, we would
dismiss the Petition,
Further, Petitioner’s unilateral
decision, based on economic considerations,
to’ ignore the
conditions imposed by our prior Order would weigh heavily
against the grant of
a further Variance.
The Environmental
Protection Act requires a showing of progress as a condition
for the grant of a Variance Extension,
and it is difficult
to determine whether Petitioner actively sought to achieve
such progress during the now-past period for which it seeks
a shield from enforcement.
The Board has previously stated
that a “Petitioner is not to cc~cludeunilaterally that the
cc~3itionsto
a Variance
are meaningless or
unnecessary.”
pCompan~~PA,
PCB
75—18, April 10,
1975(Opinion
at
3).
—5—
Finally, returning to the problem we noted above
regarding our treatment of this matter as
a Petition for Variance
Extension,
we find that the Petition must also be dismissed
for inadequacy
on that basis.
It is noted above,
the instant
Petition seeks considerably more protection than was granted
in the earlier Variance.
The instant Petition alleges as
unreasonable hardship only the “install-dismantle—reinstall
dilemma” described above with relation to the new and old
dryers;
the Petition does,
however, make reference to the
earlier record regarding the Shabbona Sand Plant.
But that
record,
even when taken in conjunction with the instant
Petition, certainly does not contain allegations of hardships
sufficient on their face to justify the granting of
a broader
Variance protection,
as is asked here.
What is sought here
is in reality a new Variance, with expanded coverage, based
on the old hardship.
That hardship would be insufficient,
taken alone,
to justify such an action by the Board.
No hearing was held in this matter.
The Agency
recommended that this Petition be either dismissed as moot
or denied.
This Opinion constitutes the findings of fact and
conclusions of law of the Board in this matter.
ORDER
IT IS THE ORDER of the Pollution Control Board that the
Petition for Variance in this matter be dismissed without
prejudice.
I, Christan L. Moffett,
Clerk of the Illinois Pollution
Control Board hereby certify that the above Opinion and
Order of the Board were adopted on the
‘1
day of
(~\
,
1975 by a vote of __________to
~
Christan L. Moffet~tA,~1erk
Illinois PollutionL~ntro1 Board
17
—
23