ILLINOIS POLLUTION CONTROL BOARD
    July 27, 1989
    LCN CLOSERS, INC.,
    Petitioner,
    v.
    )
    PCB 89—27
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    Respondent.
    STEPHEN H. GUNNING, ATTORNEY-AT-LAW, APPEARED ON BEHALF OF
    PETITIONER; AND
    LISA MORENO, ATTORNEY-AT-LAW, APPEARED ON BEHALF OF RESPONDENT.
    OPINION AND ORDER OF THE BOARD (by M. Nardulli):
    This matter comes before the Board upon a petition for
    variance filed February 8, 1989 by petitioner, LCN Closers, Inc.
    (“LCN’t). LCN seeks a variance from the requirements of
    regulations 215.183 governing emissions from open top vapor
    degreasers (35 Ill. Adm. Code 215.183) through July 15, 1989 and
    from the coating emission limitations of regulation 2l5.204(j)(2)
    through December 1, 1990. A hearing was held on June 2, 1989.
    One member of the public attended. On May 12, 1989, the Illinois
    Environmental Protection Agency (“Agency”) filed its
    recommendation asserting that LCN’s request for variance from
    regulation 215.183 be denied, but recommending that variance be
    granted from 215.204(j)(2) subject to certain conditions.
    Background
    LCN owns and operates a manufacturing plant which produces
    hydraulic door closers, including the component metal parts of
    the finished product. (Pet. at 2.) The facility is located in
    Princeton, Bureau County, Illinois, a city of approximately 7,500
    persons. (Pet. at 2.) LCN employs 300 people and has a 21
    percent share of the national market for its product. (Pet. at
    2.)
    Before assembly and painting, a variety of metal component
    parts are cleaned of dirt, metal chips and cutting oils in an
    open top solvent degreasing machine. The present degreasing
    machine was installed in 1979, replacing identical equipment
    which had been installed in 1968. (Pet. at 3; Tr. at 7.) The
    degreaser uses trichloreothylene, which is heated to 189°F, to
    101—283

    —2—
    clean the metal component parts. (Pet. at 3.) The parts are
    placed in a basket, lowered into the degreaser and rotated for 30
    seconds. (Pet. at 3.) The basket is lifted out of the solvent
    and the parts are allowed to drain. (Pet. at 3.) The degreaser
    remains uncovered during an entire eight—hour work shift. (Pet.
    at 3.)
    Volatile organic material (t1VOM”) is emitted during the
    cleaning process. Based upon the amount of solvent recycled each
    year compared to the amount of solvent purchased, LCN asserts
    that VOM emissions from the degreaser were 31,500 lbs. in 1986
    and 16,440 lbs.in 1987. (Pet. at 5.) The use of the degreaser
    is governed by 35 Ill. Adm. Code 215.183 which specifies both
    operating and equipment requirements. Compliance with this
    regulation was required by July 1, 1980. (35 Iii. Adm. Code 215,
    Appendix C, Rule 205(j).) LCN acknowledges that its degreaser is
    not in compliance with this regulation. (Pet. at 3; Tr. at 11.)
    As part of its manufacturing process, LCN applies coatings
    to the door closers using a Ransberg No. 2 electrostatic
    application process. (Pet. at 7.) After the coating is applied,
    the parts pass through a hot air dryer at 154°F. (Pet. at 8.)
    The parts are then air dried as they move through the plant on
    1,900 feet of overhead track. (Pet. at 8.)
    The VOM emissions from LCNts coating process are regulated
    by 35 Ill. Adm. Code 215.204(j)(2) which establishes a limit of
    3.5 pounds VOM per gallon of coating for air—dried coatings of
    miscellaneous metal parts. LCN has calculated its actual
    emissions for 1987 as 89.06 tons per year and its allowable
    emissions as 48.35 tons per year. (Pet. Ex. E.) Compliance with
    the limitations of Section 2l5.204(j)(2) was required by December
    31, 1987. (35 Ill. Adm. Code 215.211(b).)
    Hardship and Environmental Impact
    LCN asserts that immediate compliance with the regulation
    governing operation of the open top vapor degreaser would impose
    an arbitrary or unreasonable hardship because LCN cannot properly
    clean the component parts of the door closers without use of the
    degreaser. (Pet. at 7.) LCN states that if it cannot properly
    clean the component parts, it would be without a marketable
    product and would be out of business. (Pet. at 7.)
    The Agency opines that any hardship incurred by LCN is self-
    imposed. (Agency Rec. at 6.) The Agency notes that, in
    installing the present degreaser in 1979, LCN replaced identical
    equipment which had been installed ten years earlier. (Agency
    Rec. at 6.) The record indicates that LCN became aware in 1984
    that the degreaser was not in compliance. (Tr. at 7, 10-12; Pet.
    Ex. 2.) Yet, the Agency did not receive LCN’s application for a
    101—2814

    —3—
    permit until 1988. (Agency Rec. at 7.) The Agency believes that
    it would be inappropriate to grant a variance where the degreaser
    has been out of compliance for eight years. (~gencyRec. at 7.)
    The burden of proving arbitrary or unreasonable hardship is
    on the party seeking the variance. (Ill.Rev.Stat. 1987, ch. 111
    1/2, par. 1037; United Ventures v. Pollution Control Board, 476
    N.E.2d 1368 (2d Dist. 1985).) The petitioner must establish that
    the hardship resulting from a denial of the variance would
    outweigh the injury to the public from a grant of the variance.
    (Id.) LCN’s petition does not adequately address these
    concerns. LCN’s allegation of hardship is conclusory. While LCN
    states that it became aware of compliance problems with the
    degreaser in 1984 (Tr. 7, 10—13; Pet. Ex. 2), and attempted to
    reduce VOM emissions by covering the degreaser when not in use
    and by using it less (Tr. 12-13), LCN does not adequately
    demonstrate that it investigated alternative methods of coming
    into compliance. Unlike its assertion of hardship regarding its
    coating process, LCN does not set forth any evidence that costs
    of alternative cleaning methods are prohibitive. We conclude
    that LCN has failed to meet its burden of proving that immediate
    compliance with regulation 215.183 would impose an arbitrary or
    unreasonable hardship. Therefore, the Board need not address the
    Agency’s assertion that the hardship is self—imposed.
    LCN also asserts that immediate compliance with 35 Ill. Adm.
    Code 2l5.204(j)(2) would impose an arbitrary or unreasonable
    hardship. (Pet. at 9—10.) In support of this assertion, LCN
    states that, in addition to producing door closers that function
    properly, it is important to produce a durable coating for the
    closers that meets customer demands regarding finished quality
    and color. (Pet. at 9—10.) The manager of manufacturing at LCN
    testified that architectural standards require that the coating
    have a certain metalic appearance that will match storefronts.
    (Tr. at 43.) To require an immediate abandonment of the current
    coating process would require substantial modification of LCN’s
    design and production processes with attendant capital costs and,
    in all likelihood, result in a product unacceptable to LCN’s
    customers. (Pet. at 10.)
    LCN has considered alternative coating methods. Powder
    paint was rejected by LCN because the extreme heat associated
    with this method is not suitable for the parts LCN assembles with
    linkages, 0—ring seals and hydraulic fluid. (Pet. at 10.) A
    dipping method was rejected because the heavy application of
    coatings resulting from this process would impair the mechanical
    functioning of the equipment. (Pet. at 10.)
    Recognizing the need to comply with the Board4s regulations,
    LCN has in the past investigated two other alternative coating
    methods. These methods are the use of an alternate non—volatile
    coating which meets customer specifications or, alternatively,
    101—28
    5

    —4—
    installation of an incinerator to destroy the VOM’s released by
    the coating process. (Pet. at 11; Pet. Ex. 4.) LCN had a stack
    test performed on its plant at a cost of approximately $7,500.
    (Pet, at 11.) This study concluded that installation of a new
    incinerator would be 95 percent efficient in destroying VOM
    emissions. (Pet. at 11.) The estimated cost of such equipment
    is $1 million. (Pet. at 11.)
    LCN has also consulted with representatives of several paint
    companies regarding whether these suppliers could create a non-
    volatile coating that would meet LCN’s specifications. (Pet. at
    12.) While these efforts have not been completely successful,
    LCN has seen some improvement in the materials produced and has
    been informed that an acceptable non—volatile coating will be
    available in the near future. (Pet. at 12.)
    The Agency agrees that immediate compliance with the coating
    emission standard imposes an arbitrary or unreasonable hardship
    upon LCN. (Agency Rec. at 8.) The parties also agree that,
    while VOM emissions contribute to the formation of ozone, the
    variance sought by LCN from the coating emission standard (35
    Ill. Adm. Code 2l5.204(j)(2)) will not result in an adverse
    environmental impact. The Agency notes that in 1988 ozone
    monitoring stations located near LCNts facility have not
    registered a violation of the air quality standards. (Agency
    Rec. at 5.)
    Given the technical problems and financial costs associated
    with changing from the current electrostatic coating method to a
    different coating method, the costs of installing an incinerator
    and LCN’s commitment to conclude its search for a non—volatile
    coating acceptable to its customers, the Board concludes that LCN
    has established that immediate compliance with regulation
    2l5.204(j)(2) would impose an arbitrary or unreasonable hardship
    upon LCN.
    LCN requests that is variance from the coating emission
    limitations extend through December 1, 1990 but it does not
    suggest when the variance should begin. (Pet. at 6). Similarly,
    the Agency does not recommend a starting date for the proposed
    variance. LCN installed the present coating process in the
    summer of 1985. (Pet. at 8). Compliance with section
    215.204(j)(2) was required by December 31,1987. (See, 35 Ill.
    Adm. Code 215.211(b)). Although the record does not state the
    exact date LCN applied for an operating permit, the Agency notes
    that LCN’s application for a permit for its coating process was
    denied on February 7,1988. (Agency Rec. at 4). There must be
    exceptional circumstances supoorting the grant of a retractive
    variance. (Classic Finishing Co., Inc. v. IEPA, PCB 84-174 (June
    20, 1986).) LCN does not argue that it should be granted a
    retroactive variance nor does the record reveal any special
    circumstances indicating that such a grant would be proper.
    10 1—286

    —5—
    Compliance Plan
    LCN proposes to come into compliance with 35 Ill. Adm Code
    215.183 by purchasing new cleaning equipment which is being made
    to LCN’s specification at the cost of approximately $278,000.
    (Pet. at 6; Pet. Ex. B.) LCN states that this new equipment will
    meet applicable design standards, including having a cover over
    the cleaning area when the degreaser is in operation and a drying
    function that will reduce VOM emissions. (Pet. at 6.) LCN
    believes that this equipment will be installed as of July 15,
    1989. (Pet. at 6.)
    LCN proposes to come into compliance with 35 Ill. Adm. Code
    2l5.204(j)(2) through the use of non—volatile coatings. (Pet. at
    13.) LJCN expects these newly formulated coatings to be available
    by December 1, 1989. (Pet. at 6.) Alternatively, if LCN cannot
    procure an acceptable alternate coating by December 1, 1989, it
    commits itself to purchasing an incinerator which will be
    operational no later than December 1, 1990. (Pet, at 6.) In the
    interim, LCN will replace its existing cover dip with a
    waterborne product resulting in a decrease of VOM emissions.
    (Pet. at 6.)
    Consistency with Federal Law
    LCN states that its proposed variance from 35 Ill. Adm. Code
    215.183 is consistent with the requirements of the Clean Air
    Act. (42 USC 7401 et seq.) While LCN asserts that the proposed
    variance would be approved by the United States Environmental
    Protection Agency (“USEPA”) as part of the State Implementation
    Plan (“SIP”) for ozone, the Agency asserts that the USEPA would
    not approve such a SIP revision because LCN’s degreaser has been
    out of compliance for eight years. (Agency Rec. at 6.)
    The parties agree that the proposed variance from the
    requirements of 35 Ill. Adm. Code 2l5.204(j)(2) is consistent
    with the Clean Air Act.
    Conclusion
    In view of the hardship demonstrated and the minimal
    projected environmental effects expected during the term of this
    proposed variance, the Board finds that adequate proof has been
    presented that immediate compliance with 35 Ill. Adm. Code
    2l5.204(j)(2) would impose an arbitrary or unreasonable hardship
    upon LCN. Accordingly, the variance will be granted subject to
    the conditions outlined in the Order below. Because of LCN’s
    failure to establish that immediate compliance with 35 Ill. adm.
    101—287

    —6—
    Code 215.183 would impose an arbitrary and unreasonable hardship,
    the proposed variance from this regulation is denied.
    This Opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    LCN Closers, Inc. is hereby granted a variance from 35 Ill.
    Adm. Code 2l5.204(j)(2) for its facility in Princeton, Illinois,
    subject to the following conditions:
    1. This variance begins July 27, 1989 and ends December 1,
    1990;
    2. LCN shall submit to the Agency reports on a quarterly
    basis detailing the progress achieved in finding low—VOM coatings
    to the following address:
    Illinois Environmental Protection Agency
    Division of Air Pollution Control.
    1340 North 9th Street
    Springfield, IL 62706
    3. In the event that LCN does not find acceptable low—VOM
    coatings by December 1, 1989, it shall install an incinerator to
    be operational by December 1, 1990, according to the following
    schedule:
    a. December 1, 1989; Order equipment and apply to the
    Agency for a construction permit;
    b. December 1, 1989
    August 1, 1990: Install new gas line
    and electrical wiring at the plant and obtain a new
    transformer necessary to the operation of equipment;
    c. August 1, 1990: Delivery of equipment;
    d. August 1, 1990
    November 1, 1990: Install incinerator
    and appurtenant duct work and electrical control
    equipment;
    e. November 1, 1990
    December 1, 1990: Test and calibrate
    equipment; and
    f. December 1990: Apply for operating permit;
    4. LCN shall submit to the Agency at the above—stated
    address quarterly reports detailing its progress in installing
    the incinerator;
    5. Within 45 days after the date of this Opinion and Order,
    101—288

    —7—
    LCN shall execute and send to:
    Illinois Environmental Protection Agency
    Attention: Thomas Davis
    Enforcement Programs
    2200 Churchill Road
    Springfield, IL 62794—9276
    a certificate of acceptance of this variance by which it agrees
    to be bound by the terms and conditions contained herein. This
    variance will be void if LCN fails to execute and forward the
    certificate within the 45—day period. The 45—day period shall be
    in abeyance for any period during which the matter is appealed.
    The form of the certification shall be as follows:
    CERTIFICATION
    I, (We)
    ,
    having
    read the Opinion and Order of the Illinois Pollution Control
    Board in PCB 89-27, dated July 27, 1989, understand and accept
    the said Opinion and Order, realizing that such acceptance
    renders all terms and conditions thereto binding and enforceable.
    Petitioner
    Authorized Agent
    Title
    Date
    Section 41 of the Environmental Protection Act, Ill. Rev.
    Stat. 1985, 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.
    101—289

    —8—
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the bove Opinion and Order was
    adopted on the ~7¼z day of ______________________, 1989, by a
    voteof
    ‘.-0
    .
    Control Board
    101—290

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