ILLINOIS POLLUTION CONTROL BOARD
August
31,
1989
AMERICAN NATIONAL CAN COMPANY,
Petitioner,
v.
)
PCB 88—203
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
MR. MARK STEGER,
ESQ. APPEARED ON BEHALF OF PETITIONER, AMERICAN
NATIONAL CAN COMPANY;
MS. LISA MORENO,
ESQ. APPEARED ON BEHALF OF RESPONDENT,
ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY.
OPINION AND ORDER OF THE THE BOARD
(by M. Nardulli):
This matter
comes before the Board on a Petition for
Variance Extension filed on behalf of the American National Can
Company
(“ANC”) on December
21, 1988 and amended on January
18,
1989.
The petitioner
is seeking to extend the variance granted
in PCB 87—67
on February 25, 1988 from the emission limitations
for can coating manufacturing plants,
as set forth in
35
Iii.
Adm. Code Section 215.204(b)(6).
ANC seeks the variance
extension from January 1,
1989
until the Illinois Environmental
Protection Agency (“Agency”)
reaches
a final decision on ANC’s
alternative control strategy or until November
1,
1989,
whichever
occurs first
(R.5).
Hearing was held on this matter on May 12,
1989
in
Hoopeston,
Vermillion County.
No witnesses were called at the
hearing and there
is no record of any member of the public being
present.
The petitioner
filed post—hearing comments on May 25,
1989.
The Agency filed
a post—hearing
brief on June 12,
1989 and
the petitioner
filed
a reply brief
on July
21,
1989.
Based on
the record,
the Board
finds
that the request
for variance should
be granted.
Immediate
compliance
with
the
rule
would
impose
an
arbitrary or
unreasonable hardship on the petitioner.
102—2 15
—2—
BACKGROUND
ANC’s facility in Hoopeston is a metal containers
manufacturing plant employing approximately 155 people.
The
metal containers are sealed by use of compounds containing
volatile organic matter
(“VOW’).
VOM emissions are largely
generated by the end—sealing.
The emission of these VOM
compounds are regulated by 35
Ill. Adm. Code Section 215.202 et.
~g.
VOM emissions occur during the drying process, during the
coating and application phases and during conveyance
to the
packaging area.
The VOM emissions are exhausted to the
atmosphere through stacks.
On January 24,
1985,
the Board granted ANC a variance until
December
31, 1987
to reformulate
its end—sealing compound to a
lower VOM content (PCB 84-106).
ANC was unable to comply with
the applicable emission limitations by the time of the expiration
of the variance and therefore filed for an extension.
In PCB 87—
67 the Board extended the variance until
December 31,
1988.
Under the terms of the extension, ANC was to achieve compliance
either by utilizing compliant end—sealing compounds or by the
installation of VOM control equipment.
ANC determined that compliant end—sealing compounds were not
available and pursued plans
to install control equipment.
ANC
anticipated utilizing the provisions of Section 215.207
to attain
compliance.
However, ANC had added additional end—making
capacity which are new emission sources and the Agency advised
ANC that compliance with §215.206(b)(6) cannot be demonstrated by
utilizing §215.207, because the new emission sources were
constructed after July
1,
1979.
Alternatively, ANC submitted an
alternative control strategy (“ACS”)
as allowed under
35 Ill.
Adm. Code Part 202
to achieve compliance with §215.204(b)(6).
The ACS permit application was submitted to the Agency on
December
14,
1988 and
is presently being reviewed by the Board
in
PCB 89—68.
ANC is seeking a variance until
the Board has come to
a decision
in PCB 89—68
so that the end-sealing operation at the
Hoopeston facility can operate
in compliance with Board
regulations.
PETITIONER’S COMPLIANCE PLAN
The compliance plan calls
for the pursuit of an ACS permit
from the Agency.
In the petition for variance,
and a revised
compliance plan filed on March 22,
1989,
ANC presents its
argument for an ACS permit.
The annual emission baseline for
the
end sealing operation at the Hoopeston facility is 227.9 tons,
and the daily emissioh baseline
is
1,850 pounds per day.
After
the VOM control equipment
is in place,
the actual maximum daily
emissions from the controlled end—sealing compound emission
sources are 1,220 pounds,
thereby establishing
a daily offset
available
for new emission sources,
including the gang—end
presses,
of 630 pounds per day;
the daily VOM emissions from the
gang—end presses are expected
to be 586 pounds per day.
102—216
—3--
ANC proposes to install VOM control equipment on certain
end—sealing compound emission sources at its Hoopeston
facility.
The emissions from these controlled sources will be
87.1 tons per year.
These emissions,
in addition to the
emissions from the uncontrolled gang—end presses of 73.3 tons per
year, will result
in annual VOM emissions
from the Hoopeston
facility of 160.4 tons per year.
This figure is 67.5
tons below
the annual emission baseline of 227.9 tons which will be reserved
for future growth at the Hoopeston facility.
ANC does not expressly discuss alternative plans
for
compliance.
However,
the petitioner does state
that
it
has
determined that it will not be possible to comply by using low
VOM solvents.
Further,
it
is apparent that the petitioner could
install additional control equipment on the new end—making
equipment to come into compliance but does not feel
it
is
necessary.
HARDSHIP AND ENVIRONMENTAL IMPACT
ANC maintains that the ACS permit will
result
in lower
emissions than would otherwise be required and that the impact of
the ACS
is environmentally equivalent
to
that which would
otherwise be achieved and maintained under existing regulation.
Such environmental equivalence will be achieved by the
installation of air pollution control equipment
in the form of
a
thermal incinerator
to over—control certain emission sources
in
order to provide credit
for new sources where control
is not
presently achievable and where low—solvent compliance compounds
are not suitable for the majority of ANC’s
customers.
ANC states
that the environmental impact of granting this variance extension
will be minimal because
of
the short time frame of the variance
request and because VOM emissions from the Hoopeston facility
will not significantly affect ambient ozone concentrations
in
Vermillion and the surrounding counties.
Moreover, ANC expects
to restart the incinerator during the term of the variance
extension, thereby reducing VOM emissions even further.
In its recommendation,
the Agency states
that Vermillion
County
is an attainment area for ozone.
The Agency also says
that the grant of the variance would need
to be submitted
to the
USEPA as a SIP revision.
Contrasting with the issue of environmental impact
is the
issue of hardship.
ANC states that denial of the requested
variance extension would impose an arbitrary or unreasonable
hardship on ANC.
The Agency agrees that denial of the variance
extension with respect
to the single and double—die end presses
and associated control equipment
would
be arbitrary and
unreasonable.
However,
the Agency recommends denial of ANC’s
request
for variance for its two new gang—presses.
The Agency
states that there exists
a fundamental difference between the
Agency and ANC concerning the calculation of
baseline emissions
for an ACS permit.
The Agency denied ANC’s ACS permit because
it
102—217
—4—
determined that ANC’s values
for base line emissions were
inaccurate and consequently ANC would not be able to comply with
Section 215.204(b)(6) through an ACS.
The Agency maintains that
the ACS is not acceptable and there is no reason to allow the
petitioner time to pursue that strategy.
The Agency recommended
no conditions to the grant of the variance and did not object to
the grant
if the variance is retroactive to January
1,
1989.
CONCLUSION
The Board finds that ANC has presented adequate proof that
immediate compliance with the regulation would impose an
arbitrary or unreasonable hardship.
Further,
because ANC has
installed the control equipment required under the terms of its
variance in PCB 87—67 and because of the short time frame of the
variance,
the environmental impact of extending the variance
is
expected to be minimal.
The Agency’s recommendation to deny the
variance with respect to
the two gang presses
is not accepted by
the Board because the Board
is of
the opinion that it prejudges
the final decision on the ACS that is due
in PCB 89—68.
Further,
denial of the extension of variance for the gang presses would
act as a partial denial of variance for the remainder of the
plant by limiting plant utilization.
The Board views this as an
arbitrary or unreasonable hardship.
The final
issue to be addressed is whether the variance
extension should be granted retroactive from January
1,
1989.
The Board is inclined not to grant retroactive relief, absent
a
showing of unavoidable circumstances, because the failure to
request relief in a timely manner
is a self—imposed hardship.
However,
in this situation,
there appears to be evidence of
unavoidable circumstances.
The petitioner was diligently working
to achieve compliance through the installation of control
equipment and utilization of the provisions of
Section 215.207.
It appears that the petitioner was on schedule to come into
compliance by the end of
its variance and had no reason
to
anticipate
the need for an extension.
When ANC realized that
Section
215.207 could not be utilized and that an ACS permit
would be required,
it was too late to make
a timely request for
variance extension.
Based on these circumstances,
the Board will
grant
the variance retroactively.
The Opinion constitutes
the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner
is hereby granted an extension of the variance
in
PCB 89—67
from 35
Ill.
Adrn.
Code Section 2l5.204(b)(6), subject
to the following conditions:
1.
This variance shall be effective from January
1,
1989
until November
1,
1989 or, until an Opinion and Order
is
issued
in PCB 89—68, whichever occurs first.
102—218
—5—
2.
Emissions of the VOMs from Petitioner’s Hoopeston
facility shall remain less than 250 tons/year.
3.
During the period of variance,
the alternative emission
limitation applicable to ANC’s end—sealing compounds
shall be 4.4 pounds of volatile organic material per
gallon, minus water computed from a running total of
12
months of data.
4.
The plans and reports specified to be submitted to the
Agency under
this variance shall
be sent
to the
following address:
Illinois Environmental Protection Agency
Division of Air Pollution Control
1340 North 9th Street
Springfield,
Illinois,
62706.
5.
Within forty five
(45) days after the date of this Order
the Petitioner shall execute and send
to:
Ms. Bobella Glatz
Enforcement Attorney
Illinois Environmental Protection Agency
2200 Churchill Road
P.O.
Box 9276
Springfield, Illinois
62794—9276
a certification of its acceptance of this variance by
which it agrees to be bound by its terms and conditions.
This variance shall be void
if
Petitioner
fails
to
execute and forward the certificate within the forty—
five
(45) day period.
The forty—five day period shall
be held
in abeyance during any period that this matter
is being appealed.
The form of said Certification shall
be as
follows:
102—219
—6—
CERTIFICATION
I,
(We),
National Can Corporation, having read the Order
of
the Illinois Pollution Control Board,
in PCB 88—203, dated August
31,
1989,
understand and accept the said Order, realizing that
such acceptance renders all
terms and conditions thereto binding
and enforceable.
Petitioner
By:
Authorized Agent
Title
Date
Section 41
of the Environmental Protection Act,
Ill. Rev.
Stat.
1987,
ch.
111—1/2,
par.
1041, provides for appeal
of final
orders of
the Board within
35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT
IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby Certify that
the above Opinion ~d
Order was
adopted on the
__________________
day of
~“~c?.;~’
,
1989
byavoteof
______________.
~.
~
Dorothy M.
G
n,
Clerk
Illinois Pollution Control Board
102—220