ILLINOIS POLLUTION CONTROL BOARD
January 8, 1987
VAN LEER CONTAINERS, INC.,
)
Petitioner,
v.
)
PCB 85—227
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
MR. RICHARD H. SANDERS, VEDDER, PRICE KAUFMAN & KAMMHOLZ,
APPEARED ON BEHALF OF VAN LEER CONTAINERS INC.; AND
MS. LISA S. MOPENO, ATTORNEY-AT-LAW, APPEARED ON BEHALF OF THE
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD (by J.D. Dumelle):
This matter comes before the Board upon a December 31, 1985,
petition for extension of variance filed on behalf of Van Leer
Containers, Inc. (Van Leer). Van Leer requests that its variance
from 35 Iii. Adm. Code 215.204(j), 215.211 and 215.212 granted by
the Board on May 3, 1984 (PCB 83—133, 58 PCB 17), be extended
until December 31, 1987. Van Leer filed an amended petition on
October 8, 1985, the Illinois Environmental Protection Agency
(Agency) filed its recommendation that variance be granted
subject to certain conditions on October 29, 1986, and hearing
was held on November 3, 1986, at which the parties and Mr. Peter
Ciammanco, Jr., President of Central Can Company, presented
testimony, and at which the Agency amended its recommendation in
response to information presented by Van Leer to the Agency prior
to and at hearing.
Van Leer manufactures steel industrial pails and drums at a
plant located at 4300 West 130th Street in Alsip. As part of its
manufacturing process, Van Leer applies exterior and interior
coatings to its pails and drums which contain volatile organic
materials (VOM). Van Leer alleges, and the Agency does not
dispute, that in 1985 the average VOM content of interior
coatings was 5.41 lbs/gal and the average for exterior coatings
was 4.12 lbs/gal, excluding water. These coatings are regulated
pursuant to 35 Ill. Adm. Code 215.204(j). Section 2l5.204(j)(3)
establishes a limitation on exterior coatings of 3.5 lbs/gal, and
Section 2l5.204(j)(l) limits interior coatings to 4.3 lbs/gal
delivered to the coating applicator. 35 Ill. Adxn. Code 215.211
establishes a December 31, 1983 compliance date for Section
215.204(j).
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Variances are to be extended only upon a showing of
satisfactory progress toward compliance during the period of the
original variance. During 1982, Van Leer’s average VOM content
for interior coatings was 5.29 lbs/gal while exterior coatings
averaged 4.56 lbs/gal. 1983 averages were 5.32 and 4.48,
respectively, and 1984 averages were 5.31 and 4.30, respectively
(Pet. Sup. p. 3). Since 1983, Van Leer has reduced the number of
interior coating formulations from more than 20 to eight, and has
eliminated those with the highest VOM content (Pet. p. 14). It
is also currently testing three new formulations which it
believes may allow full compliance (Pet. Sup. pp. 4—5). Van Leer
has also installed a new hot airless spray system increasing
transfer efficiency and lowering emissions and collection devices
further reducing emissions. Based on these improvements, the
Agency concludes that Van Leer “has made very significant
progress towards reducing VOM emissions and achieving compliance
with Section 215.204(j)” (Rec. p. 6). This progress is reflected
by the fact that excess emissions have been reduced by 94 tons
since 1983, a reduction from 65 over allowable in 1983 to 33
over allowable in 1985 (Pet. Sup. p. 5).
Van Leer is located in Cook County, and as such is in a non—
attainment area. However, since Van Leer’s emissions are
expected to continue to decline and will be required to be at
compliance levels by the end of the year, the Agency concludes
that “the extension
...
sought by Van Leer should not cause any
increased problems” (Rec., p. 9). Further, Van Leer must comply
with its episode action plan which requires the reduction of
emissions during periods of high ozone concentrations, thereby
mitigating any adverse health effects.
Van Leer alleges that denial of variance would result in an
arbitrary or unreasonable hardship since compliance coatings
currently do not exist and add—on controls are unjustifiably
expensive. The Agency agrees based upon the substantial
reduction in emissions since 1983, and the capital cost of $4,000
—
$9,000 per ton and operating cost of $2,600
—
$3,100 per ton
for add—on controls (Rec, pp. 10—il). In this regard, the
Agency also notes that Van Leer alleges that it has spent
$476,000 during its previous variance. These expenditures were
made to improve coating transfer efficiencies ($88,000), to test
high solids coatings ($75,000), due to losses from rejected
containers coated with high solids formulations ($40,000), and
for the installation of a new drum parts booth to reduce
overspray, increase transfer efficiency and improve lining
application ($272,000) (Pet., p. 8).
Van Leer intends to achieve compliance through the internal
offset of interior coatings by exterior coatings pursuant to
Section 215.207 (Pet., p. 4). In particular, Van Leer proposes
the following compliance strategy:
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a) Continued conversion to water borne
exteriors.
(Program scheduled for
completion by March 30, 1987; estimated
effect —20 tons excluding that achieved
to date in 1986.)
b) Introduction of newly available low VOM
water borne linings, with a target for
the period ending December 31, 1987 of a
25 change in order to ensure compliance
with each line. (Estimated effect by
December 31, 1987 —30 tons.)
C)
Continuation of conversion of all
(exterior) roll coats to compliance
materials. (Target date
——
July 1987;
estimated effect —10 tons.)
d) Installation of new centrifugal lining
spray heads for drum lining. (Target
date
——
June 1987; estimated effect —20
tons.)
e) Installation of new centrifugal lining
head for pail lining.
(Target
——
November 1987; estimated effect —3 tons.)
f) Installation of new high efficiency hot
airless guns into drum painting line.
(Target date
——
April 1987; estimated
effect —3 tons.)
g) Installation of high efficiency air
assisted airless guns into the pail and
drum parts booths. (Target date
——
December 1987; estimated effect —8 tons.)
(Pet. Supp., par. IV(a) and Rec., pp. 12—
13)
Van Leer estimates that based upon the steps already taken
to come into compliance, the emission figures for the first half
of 1986, and the successful completion of its proposed compliance
plan, typical annual emissions should be as follows:
Interior coatings
234.4 Tons
Exterior coatings
199.8 Tons
Total
434.2 Tons
Allowable
319.0 Tons
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Excess
115.2 Tons
Allowance for natural
oven incineration
53.2 Tons (as per
1983/5 variance)
62.0 Tons
Reductions per program 101.0 Tons
Within compliance
39.0 Tons
(Pet. Supp., p. 9 and Rec., p. 13).
The Agency, as well as Mr. Ciaminanco, question Van Leer’s
allowance of 53.2 tons for natural oven incineration. Van Leer’s
witness testified at the hearing in PCB 83—133 that a 20 natural
incineration takes place in the type of gas fired ovens that Van
Leer operates, and that “with split of 50/50, spray booth to
oven” 10 of the solvents going into the oven are incinerated
naturally (Pet. C, p. 9). Even accepting Van Leer’s testimony to
the extent that an allowance for natural incineration is
warranted, the allowance should be 43.4 tons rather than 53.2
tons (Rec., p. 14). However, even subtracting out this reduction
entirely, Van Leer should be very close to full compliance.
Further, Van Leer states that should it become evident it will
not be able to achieve the identified reductions, it will commit
to incineration, and that decision will be made by October,
1987. Van Leer further states that investigations are continuing
to determine the most economical way to introduce incineration
onto its lines (Pet. Supp., p. 8).
The Agency is concerned that should incineration become
necessary in order to achieve compliance, an October deadline for
that decision will not allow sufficient time for the add—on
controls to be installed and operating by January 1, 1988. This
concern arises from the fact that compliance by December 31,
1987, is required under the Federal Clean Air Act, and the Board
cannot grant a variance to
Van Leer beyond that date.
The Agency, therefore, recommends that Van Leer be required
to make its
decision to install add—on control equipment or
continue with its compliance program by July 1, 1987. Further,
the Agency recommends that Van Leer begin an engineering project
study for the proposed add—on controls immediately to further
insure that the equipment is installed and in operation by
January 1, 1988, should it be necessary in order to achieve
compliance
with Section
215204(j) (Rec., p. 15).
Besides questioning Van Leer’s allegations regarding natural
incineration, Mr. Gianimanco questions whether the installation of
add—on control would impose an arbitrary or unreasonable hardship
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(Pub. Ex. No. 1). He contends that his
company, Central Can
Company, is a direct competitor of Van Leer, it uses the same
manufacturing processes, it expended large sums of money for add—
on controls to come into full compliance without going out of
business, and that Van Leer, with its considerably
greater
resources, could do so as well (Pub. Ex. No. 1, pp. 2—3, 14—
15).
He further argues that Van Leer failed to fully comply with
its previous variance and that
granting an extension would result
in a
continued competitive advantage to Van Leer (Pub. Ex. No. 1,
pp. 10—11).
Van Leer responded to Mr. Giamrnanco’s arguments on November
24, 1986. Van Leer contends that
Central Can made a mistake in
installing add—on controls and now wishes to force all its
competitors to make the same mistake in order not to be at a
competitive disadvantage (Response, p. 2). Van Leer contends
that its operations
differ significantly from Central Can’s, that
its efforts at compliance have been working, that it is
optimistic that full compliance can be reached by the end of the
year, and that its hardship has been justified
(Response, pp. 2—
8).
The Board very much appreciates the time and effort that Mr.
Ciammanco spent on bringing his concerns before the Board.
However, variance decisions are made on a case—by—case basis, and
the fact that others have complied with the general regulation
from which variance is requested is
relevant to that
determination only insofar as such compliance indicates that the
petitioner would not suffer an
arbitrary or unreasonable
hardship.
The Board cannot find on the basis of Mr. Ciammanco’s
submission that Van Leer has failed to demonstrate an arbitrary
or unreasonable hardship, or that it has failed to make
reasonable progress toward compliance during the previous
variance period.
Rather, the record establishes that Van Leer
has been in substantial compliance with the previous variance.
While Mr. Giammanco is
correct that Van Leer has exceeded the VOM
limitation of the previous variance by about 1 1/2
in 1985, the
Board does not find that discrepancy to be
significant enough to
warrant denial of variance (Pub. Ex. No. 1, p. 11). Further, Mr.
Giainnianco’s assertion that afterburners would be just as
reasonable for Van Leer as it is for
Central Can
since the
manufacturing processes are similar has been
rebutted by Van Leer
(Response, p. 3), and the Board cannot find that the
facilities
and circumstance of the two
companies are so similar as
to
warrant denial of variance.
The Board has noted with concern Ex. 6 of Pub. Ex. No. 1
which shows little progress toward compliance by Van Leer since
1978. While this does not show a lack of progress during the
period of the previous variance (during which Van Leer improved
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from 165 of allowable in 1983 to 149 in 1984 and 144 in 1985),
it does tend to indicate that Van Leer’s optimism regarding to
potential for reaching compliance without the use of an
afterburner by the end of 1987 may be misplaced in that Van Leer
is presently farther from compliance than it was in 1978.
However, there are several possible reasons for this, and the
Board believes that Van Leer should be allowed to continue with
its compliance plan until July 1, 1987, at which time it must
either commit to the installation of afterburners or have
reasonable certainty that it can achieve compliance without such
installation by the end of 1987. One way or another Van Leer
must comply by that time or be subject to enforcement.
The Board concludes that Van Leer has demonstrated that the
denial of variance would cause an arbitrary or unreasonable
hardship and will grant variance subject to the conditions
recommended by the Agency, which Van Leer apparently finds
acceptable.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Van Leer Containers, Inc. is hereby granted an extension of
variance from 35 Ill. Adin. Code 215.204(j), 215.211 and 215.212
until December 31, 1987, subject to the following conditions.
1. By March 30, 1987, Van Leer shall have converted 80 of
its spray applied to water borne coatings;
2. By April 30, 1987, Van Leer shall have installed new
high efficiency hot airless spray guns into its drum
painting line;
3.
By June 30, 1987, Van Leer shall have completed
installation of new centrifugal lining spray heads for
drum interior coating;
4.
By July 31, 1987, Van Leer shall use only coatings with
volatile organic material content of 3.5 lbs/gal or less
when roller coat applying exterior coating other than
clear over varnish;
5.
By November 30, 1987, Van Leer shall have completed
installation of
a new centrifugal lining spray head for
pail interior coating;
6.
By December 31, 1987, Van Leer shall have installed high
efficiency air assisted airless spray guns into its pail
and drum parts booths;
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7.
Van Leer shall immediately commence an engineering
project study for add—on control equipment at its Alsip
facility;
8.
By July 1, 1987, Van Leer
shall make a decision to
continue with its
compliance program or to commence the
installation
of add—on control equipment and shall
immediately apprise the Agency of its decision.
Should
Van Leer determine that the installation
of add—on
controls is necessary to achieve
compliance with 35
Ill.
Adm. Code 215.204(j), such controls shall be installed
and in operation by December 31, 1987;
9.
Within
28 days of the date of this Order and every third
month thereafter, Van Leer shall submit to the Agency
written reports detailing all progress made in achieving
compliance with Section 215.204(j). Said reports shall
include information complied on a monthly basis on
coating materials usage; amount of reformulated coating
in use; actual and allowable VOM emissions; the quantity
of VOM reductions during the reporting period; and
actual operating hours. Such reports shall also
describe in detail the progress made during the
reporting period in the implementation of the elements
of its compliance program, including any changes or
modification to the program; shall describe in detail
the progress made by Van Leer in developing and testing
reformulated interior coatings, including product
quality and customer acceptance; and shall include any
other information which may be requested by the
Agency. The reports shall be sent to the following
addresses:
Environmental Protection Agency
Division of Air Pollution Control
Control Programs Coordinator
2200 Churchill Road
Springfield, Illinois 62706
Environmental Protection Agency
Division of Air Pollution Control
Region
1, Field Operations Section
1701 South First Avenue
Suite 600
Maywood, Illinois
60153
10. Within 28 days of the date of this Order, Van Leer shall
apply to the Agency for renewal of its operating
permits
pursuant to Section 201.160(a); and
11.
Within
45
days of the date of this Order, Van Leer shall
execute a Certification of Acceptance and Agreement to
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be bound to all terms and conditions of the variance.
Said Certification shall be
submitted to both the Agency
at the
addresses specified in Condition
9, above. The
45—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:
CERTIFICATION
______________________________ (Petitioner), hereby
accepts
and agrees to be bound by all terms and
conditions of the Order of the Pollution Control Board
in PCB 85—227, dated January 8, 1987.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
Board Member J. Marlin concurs.
Board member B. Forcade dissents.
I, Dorothy M. Gunn, Clerk of the Illinois
Pollution Control
Board, hereby certify that
t
above Opinion and Order was
adopted on the LV~ day of
______________,
1987, by a vote
of
___________.
Dorothy P1. G n, Clerk
Illinois Pollution Control Board
74-371