ILLINOIS POLLUTION CONTROL
BOARD
April 22,
1993
CONTINENTAL WHITE CAP,
INC.,
)
)
Petitioner,
)
v.
)
PCB 92—155
)
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
TRACEY L. MIHELIC, OF GARDNER, CARTON
& DOUGLAS, APPEARED ON
BEHALF OF PETITIONER;
PAUL R. JAGIELLO APPEARED ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by R.C. Flemal):
This matter comes before the Board on the October 19,
1992
filing by petitioner, Continental White Cap,
Inc.
(CWC),
of a
petition for variance.
CWC seeks variance from requirements of
the Board’s air pollution control regulations found at 35 Ill.
Adm.
Code 218.105, 218.205,
218.207, and 218.21.
(Part 218
requirements).
The term of the requested variance is until July
1,
1993,
or until the United States Environmental Protection
Agency
(USEPA) makes a final determination on CWC’s pending
federal implementation plan
(FIP)
request, whichever is later.
The Illinois Environmental Protection Agency
(Agency) filed
an initial variance recommendation on January 19,
1993 and an
amended recommendation (Rec.) on March 3,
1993.
The Agency
contends that an unreasonable hardship would be imposed on CWC in
the absence of the requested relief.
(Rec.
at 8.)
Accordingly,
the Agency recommends grant of variance,
subject to conditions.
Hearing was held on March
4,
1993 in Maywood, Illinois.
CWC
presented two witnesses; no members of the public attended the
hearing.
At hearing CWC stipulated to its acceptance of the
conditions set forth in the Agency’s recommendation.
(Tr. at
9,
17.)
As presented below, the Board finds that CWC has met its
burden of demonstrating that immediate compliance with the Act or
Board regulations would result in an arbitrary or unreasonable
hardship upon CWC.
Accordingly, the variance request is granted.
O~:~HO217
—2—
DISCUSSION
CWC operates a manufacturing facility located at 1819 North
Major Avenue in the City of Chicago, Cook County,
Illinois.
CWC
manufactures metal closures for jars.
As part of its manufacturing process, CWC operates twelve
sheet metal decorating lines where coatings are applied to the
metal.
Volatile organic material
(VOM)
is produced and emitted
during the coating operation,
thereby subjecting CWC to the
Board’s VOM emission regulations of Part 218; CWC constitutes a
miscellaneous metal parts and products coating operation for the
purposes of Part 218.
Requirements essentially identical to the Part 218
requirements occur
in federal law under the provisions of the
Illinois VOM/ozone Fl?.
It
is the intention eventually to have
only one body of law covering these matters in the form of a
state implementation plan
(SIP), but in the interim this does not
exist.
The instant action is before the Board because of a
difference that exists between the Fl? and the Part 218
regulations.
In particular, the Part 218 regulations require
that CWC undertake testing so that it may certify VOM capture
efficiency1.
The testing method under Illinois law is based on
a methodology previously adopted by USEPA,
but now under
reassessment by USEPA2.
If the reassessed method is adopted by
USEPA,
Illinois will presumably be required to also adopt the
reassessed method within Part 218 in order to gain an acceptable
SIP.
The Illinois testing procedures therefore exist in
something of a limbo, and CWC is faced with the prospect that the
existing Illinois testing procedures will soon be inapplicable3.
1
CWC contends that it is in compliance with the substantive
rules of Part 218, and that it fails only in its ability to
demonstrate that compliance via approved tests.
(Tr. at 5,
15.)
The Board does not today address the contention of compliance
with the substantive rules.
2
On March 20,
1992 USEPA issued a memo indicating that it
was undertaking a reassessment of its previously endorsed capture
efficiency testing procedures with the intent of developing and
reviewing less costly methods.
(Rec.
at 6.)
It proposed to
complete the reassessment within a period of one year.
~ CWC also contends that under the circumstances at its
facility it is technically and economically infeasible for CWC to
comply with the current Part 218 test procedures.
(Tr.
at 67.)
The Board does not today address this issue.
Ut
L,
I -0218
—3—
Moreover, USEPA has stated that it plans to temporarily
suspend the date by which a source must certify the capture
efficiency of a control system under the Fl? until July 1,
1993.
(Exh.
5;
57 Fed. Reg.
49662,
1992.)
Again, Illinois law will
presumably be required to follow suit.
CWC is thereby also faced
with a uncertain certification date, both federally and at the
state level.
In addition to the instant action, CWC has also attempted to
address its concerns at the federal level by filing with USEPA a
proposal to amend the FIP.
(Exh.
4.)
Among other matters, the
proposal identifies possible alternative testing strategies.
USEPA has indicated, however, that it intends to defer action on
such proposals until its capture efficiency study is complete.
(57 Fed.
Reg.
49664,
1992.)
Both CWC and the Agency contend that under the conditions
outlined above,
immediate compliance with the Part 218
regulations would constitute a hardship upon CWC.
The remedy
that the parties propose is basically to await
(within reason)
the federal position, and to use that as a guide for directing
CWC’s action.
Given the special circumstances found here,
the
Board finds this an acceptable course of action.
The Board also finds it appropriate to impose the agreed-
upon conditions as assurance that this matter will not suffer
from inaction, and to assure that CWC will be poised to proceed
upon disclosure of the USEPA position.
The conditions will
further assure that any negative environmental impact will be
minimized by causing this matter to be addressed with maximum
expedition.
TERM OF VARIANCE
CWC originally requested that the term of variance be until
September 1,
1997.
At hearing CWC modified the request to
conform it with that recommended by the Agency (see above).
Based upon the facts of this case,
the Board finds acceptable the
general nature of the term of variance offered by the parties.
Nevertheless, there is some difficulty with using the later of a
date certain or of a USEPA action as the termination date:
failure of the USEPA to act would cause the variance to be non—
ending,
in contradiction with Illinois law4.
The parties seem to be of the belief that USEPA will indeed
act, and moreover, will act with some dispatch.
This
notwithstanding, the prudent and necessary course of action is to
‘
Pursuant to Section 36(b)
of the Illinois Environmental
Protection Act,
a variance may be for a period of time not to
exceed five years.
Pt
!~
1-0219
—4—
set some time limit within which USEPA’s decision must be
rendered or the variance terminates.
One year would seem to be
ample time, and accordingly the Board will today use this time
frame.
CONCLUSION
Based upon the record before it, the Board finds that CWC
has presented adequate proof that immediate compliance with the
regulations at issue would result in an arbitrary or unreasonable
hardship on CWC.
The requested variance accordingly will be
granted,
subject to conditions consistent with this opinion.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner,
Continental White Cap,
Inc.
(CWC),
is hereby
granted variance from 35 Ill. Adm. Code 218.105, 218.205,
218.207, and 218.211 for its facility located at 1819 North Major
Avenue in Chicago,
Illinois.
This grant of variance is subject
to the following conditions:
(1)
Variance terminates on July
1,
1993.
(2)
Condition
(1) notwithstanding,
if the United States
Environmental Protection Agency makes its final
determination on CWC’s federal implementation plan
(Fl?)
amendment after July
1,
1993, variance terminates on the
date of that final action or on April
22,
1994, whichever is
earlier.
(3)
CWC shall submit to the Agency,
in writing, an
operation and maintenance program for the coating line VOM
control systems within 30 days after the entry of this
order.
This program must address the operation and
maintenance of the entire length of the coating lines
starting from the applicators,
including wash—up solvents,
through the bake ovens and afterburners.
The program must
focus on minimizing VOM emissions along the coating lines
and provide for continuous monitoring of the temperature
rise across each catalytic afterburner bed.
(4)
CWC shall develop a program that provides for the
upgrade of the incinerator that controls emissions from the
tandem coating lines BA, 9A and PC1O and the incinerator
that controls emissions from multiple coating lines C—6 and
C-7 with a goal towards achieving a VOM loading destruction
efficiency of 90 percent and shall submit the program to thE
Agency in writing for comment and approval by May 15,
1993.
0!
L~,
-0220
—5—
CWC shall complete this program, which includes the
destruction efficiency testing, within ninety
(90)
days of
receipt of the Agency’s comments and approval of the
program.
CWC shall submit a written report of the test
results within sixty
(60) days of the destruction efficiency
testing.
(5)
CWC shall keep daily records of the following items
starting on the date of entry of the final Board order:
(a)
Amount of each coating used in each coating line;
(b)
VOM content of each coating applied
(lb. VOM/gal
of solids);
(c)
Required overall efficiency of the capture system
and control device for each coating line pursuant
to Section 218.105(e);
and
(d)
Weight of VOM per volume of coating solids applied
daily on each coating line
(VOMa, pursuant to
Section 218.105(e) (2)).
(6)
CWC shall prepare a monthly report for Agency
inspection on the daily records required in paragraph
(4)
above.
The report must also demonstrate CWC’s compliance
with Section 218.207(b) (2).
CWC shall submit one copy of
the monthly compliance demonstrations on a quarterly basis
to each of the following Agency offices:
Illinois Environmental Protection Agency
Bureau of Air
2200 Churchill Road,
P.O. Box 19276
Springfield, Illinois 62794—9276
Attn:
Permit Section Manager
Illinois Environmental Protection Agency
Division of Air Pollution Control
Intercontinental Center
1701 First Avenue
Maywood, Illinois 60153
Attn:
Cezary Kryzmowski
Within 45 days of the date of this order, Petitioner shall
execute and forward to Ann Zwick, Division of Legal Counsel,
Illinois Environmental Protection Agency, 2200 Churchill Road,
Post Office Box 19276,
Springfield, Illinois 62794—9276,
a
Certification of Acceptance and Agreement to be bound to all
terms and conditions of this variance.
The 45—day period shall
be held in abeyance during any period that this matter is being
appealed.
Failure to execute and forward the Certificate within
45 days renders this variance void and of no force and effect as
0114
1-0221
—6—
a shield against enforcement of rules from which variance was
granted.
The form of said Certification shall be as follows:
CERTIFICATION
I
(We),
hereby accept and agree to be bound by all terms and conditions
of the order of the Pollution Control Board in PCB 92-155, April
22,
1993.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act, 415 ILCS
5/41
(1992), provides for appeal of final orders of the Board
within 35 days.
The Rules of the Supreme Court of Illinois
establish filing requirements.
(But see also 35 Ill.
Adm. Code
101.246, Motions for Reconsideration, and Castenada v.
Illinois
Human Rights Commission
(1989),
132 Ill.2d 304, 547 N.E.2d 437;
Stube v. Illinois Pollution Control Board, No.
3—92—0468,
slip
op. at 4—5
(3rd Dist. March 15,
1993).)
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify tI~atthe above qpinipn and order was
adopted on the
~
day of
(~-~
,
1993,
by
avoteof
__________.
~
J~_~
~—~‘DorothyM.
Gy~in, Clerk
Illinois Po~yütionControl Board
01
b,
1-0222