ILLINOIS
POLLUTION CONTROL BOARD
January
9,
1986
FEDDERS
—
USA,
Petitioner,
v.
)
PCB 85—5
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
)
MR. JEFFREY
C.
FORT and MS.
M.
THERESE YASDICK;
MARTIN,
CRAIG,
CHESTER
& SONNENSCHEIN, APPEARED FOR PETITIONER;
AND
MR. WILLIAM D.
INGERSOLL and MS.
SUSAN SCHNEIDER, ATTORNEYS—AT—
LAV~, APPEARED FOR RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by B.
Forcade):
This matter comes
to the Board on
a January 14,
1985,
Permit
Appeal
filed
by Fedders
—
USA (“Fedders”).
Fedders seeks review
of
a December
10,
1984,
áecision by
the Illinois Environmental
Protection Agency
(“Agency”) denying Fedders application for
an
Alternative Control Strategy
(“ACS”) permit governing air
emissions from its plant which makes room air conditioners.
Hearing was held
in Effingham on August
28,
1985.
Briefs were
filed on October
16,
by Fedders and November
22,
by the Agency.
Fedders operates
a plant located
in Effingham,
Illinois.
Effingham is
a community
of approximately 12,000 people located
at the junction of Interstate 57 and Interstate 70, seventy miles
south
of Champaign,
Illinois.
Fedders’ plant produces room air
conditioners.
The plant has approximately 750,000 square feet of
floor
space.
Parts used
in the construction of
the air
conditioners are painted
on two Epon paint
lines.
There
are
three distinct components
to this system,
the flow coater
chamber,
the vapor chamber,
and the bake oven.
The flow coater
is
a completely enclosed
area with
no overspray
as commonly known
in
a spray booth—type
applicator.
There
are
no atmospheric
emissions from the flow coater
chamber.
The part to be coated
is
flooded with paint from nozzles on
all sides and then transported
to the vapor chamber.
In the vapor chamber,
paint drippings are recovered with
a
goal
of having no paint dripping off
the parts
at the time that
the
parts
leave
the
chamber.
Paint
is
recovered
from
the
vapor
chamber
and
recirculated
to
the
flow
coater.
A
low
velocity,
low
temperature
exhaust
fan
is
operated
from
the
chamber
to
minimize
solvent
loss.
From the vapor
chamber, parts
enter
the bake
67-395
—2—
oven.
In the bake
oven any remaining solvents are flashed off by
evaporation.
Parts remain
in the bake oven for approximately ten
minutes at 350 degrees
F.
A high velocity exhaust fan
is
used
in
the bake oven
to avoid
the risk of explosion.
The
flow coat system applies
a layer
of
acrylic epoxy paint
to
the parts
in
a single pass.
The paint,
which contains 4.669
pounds
of volatile organic compounds
(VOC) per gallon, must be
diluted with solvent containing 7.424 pounds of VCC per gallon.
Total VOC emissions
from the paint line
in 1984 were
176 tons.
This also represents
the projected actual emissions
for future
years.
Fedders,
in its application to the Agency
for
an alternative
control
strategy
permit
under
Part
202
of
the
Board’s
regulations
(35
Ill.
Adm.
Code
202.101,
et
seq.),
sought
to
receive
credit
for
a reduction
in VOC emissions from Fedders’ conveyorized
degreaser
and Fedders’
glue booth.
Fedders proposed
to reduce
emissions from these
two sources
by using
a water based glue
in
its glue booth
and by eliminating degreasing
of
a substantial
number
of parts,
thereby allowing Fedders
to
shut down its
conveyorized degreaser.
In
its December
10,
1984,
letter,
the Agency provided
two
reasons for Fedders’
permit ãenial:
Section
202.201
requires
the establishment
of
a
single
emissions
baseline
based
on
the
lesser
of
actual
or
allowable
emissions
from
each
emission
source.
Fedders
showed
two
baselines,
one
based
on
actual
emissions
(242
tons/year)
and
one
on
its
interpretation
of
allowable
emissions
(186
tons/year).
The
Agency
calculated
an
annual
emission
baseline
of
80.1
tons
year
of
organic
material.
Considering
that
the
projected
actual
emissions
are
176.35
tons/year
from
the
paint
line
operation
in
1984,
and
that
the
application
fails
to
discuss
a
significant
reduction
in
the
number
of units
to
be
coated
in
subsequent
years,
the
application
does
not
show
equivalence
of
emissions
as
required
by
Section
202.211.
*
*
*
The
application
also
fails
to
demonstrate
that
the
impact
of
the
ACS
is
environmentally
equivalent
to
that
which
would
otherwise
be
achieved
and
maintained
under
existing
requirements
or
required
by
Section
202.212.
As
stated
in
the
Notice
of
Incompleteness
dated
July
12,
1984,
this
can
best
be
done
by
showing
that
daily
emissions
under
the
ACS
67-396
—3—
will
be
equal
to
or
less
than
an
“emission
baseline” evaluated for
a single day.
Fedders
has
not
established
such
a
“daily
baseline.”
The
Agency
could
set
the
daily
baseline
by
dividing
annual
emissions
by
the
number
of
operating
days
but
the
application
does
not
address
how
emissions
would
remain
under
the
daily baseline value.
Thus,
this permit appeal
raises two issues:
1.
Has Fedders demonstrated that their annual projected
emissions will be environmentally equivalent
to the
appropriate emissions baseline
?
2.
Has Fedders demonstrated compliance with
a daily
emissions baseline?
Prior
to
a discussion of
the merits,
the Board must comment
on the poor quality of the record provided by the parties.
First,
despite
a Board Order
to the contrary,
the parties have
comingled the variance case
(PCB 83—47)
and this permit appeal,
leaving the Board to sort out what applies
to each proceeding.
Again,
the Board points out that the standard and burden of proof
in a permit appeal
are different from a variance proceeding:
The sole question before the Board
in a review
of
the Agency’s denial
of
a permit
is whether
the
petitioner
can
prove
that
its
permit
application
as
submitted
to
the
Agency
establishes
that the facility will not cause
a
violation of the Act.
(I11.Rev.Stat.1979, ch.
111—1/2, par.
1040).
*
*
*
When reviewing the Agency’s denial
of
a permit
or imposition of any conditions,
“the decision
of the Board shall
be based exclusively on the
record before
the Agency
including
the record
of
the
hearing,
if
any
*
*
*•fl
Ill.Rev.Stat.l979,
ch.
111—1/2,
par.
1040;
Peabody
Coal
Co.
v.
Environmental
Protection
Agency
(1979),
35 Ill.P.C.B.Op.
380.
IEPA
v.
IPCB,
1l8111.App.3d 772,
455 NE2d 188
(1st Dist.,
1983).
At hearing,
after concluding
the variance case,
the parties
stipulated
to the introduction of “any evidence that was
introduced
in the variance proceeding that
is relevant
to
the
Board’s review in PCB 85—5,
the review of ACS permit
application...”
(R. 208).
This approach necessarily leaves
the
Board without information concerning what portion of the
67-397
—4—
preceeding
200 pages
of
testimony
was
before the Agency when the
permit
decision
was made.
Second,
the
outcome
of
this
matter
depends
on
the
application
of
regulations
in
Part
202
and
215
to
specific
facts
relating
to
Fedders
past
and
future
operations,
production
and
emissions.
Neither
party
has
made
a
lucid
argument,
in
one
document,
that
existing
regulations applied
to
facts
in the
record
lead
to
the
result
they
advocate.
Again,
the
Board
is
left
to
sort
through
the
documents
to
find
facts
and
theory
leading
to calculations supporting one outcome or another.
Finally,
the
record
is complicated
by Fedders
claim of Trade
Secret relating
to certain information necessary for
a resolution
of
baseline emissions.
~hile the
claim of
trade secret
in no way
af~fects the outcome of
this case,
it precludes the Board from
providing
a detailed explanation
in this Opinion
of the problems
associated with Fedders’
calculation
of baseline emissions.
The
Board notes
that the claim
is obviously overbroad
in that
it
covers
air emissions data and calculations
thereof which
cannot
be maintained
as confidential
under
the Clear Air Act and
Environmental Protection Act.
Fedders has yet to provide
a
justification for a claim made over
a year
ago,
and the Agency
has neither requested
a justification nor ruled on
the issues.
Because
of this
“claim”
the Board’s discussion
of the
difficulties with
the calculation of allowable emissions must be
necessarily vague.
Board regulations
at
35
Ill. Adm.
Code Part 202 allow
facilities
that are unable
to comply with
all substantive air
emission regulations
to
receive
an ACS permit
under
certain
circumstances.
Generally,
this
is demonstrated
in a permit
application
by showing that emissions
for which
a permit
is
sought will
be less than an emissions baseline.
35 Ill. Adm.
Code 202.110.
In this way, emissions
at one
source governed
by
the ACS permit may
be higher than allowable while emissions at
other
sources are lower
than allowable
—
resulting
in
environmental equivalence.
The environmental baseline
is defined
as the lesser
of prior
actual emissions
or allowable emissions.
Section
202.201.
Both actual emissions
Section
202.104
and
allowable emissions
Section
202.107
are defined and procedures
are given for their calculation.
Both calculations
are
to
consider
using hours
of
operation, production
rates and types
of
materials.
Fedders claims an emissions baseline
of
186 tons/year
derived from allowable emissions;
the Agency claims an allowable
emissions baseline of
80.1 tons/year.
Both parties seem to agree
that projected paint
line emissions under the ACS permit are 176
tons/year.
As the difference
in allowable emissions
is
in fact
the central controversy,
further evaluation would
be required
to
determine which value
is accurate.
In evaluating each claim for
allowable emissions baseline, the Board would anticipate finding
a calculation for each
of
the three processes
(paint line,
adhesive, degreaser).
That calculation would include applicable
67-398
—5—
regulatory
restrictions on emissions, operating rates and hours
of operation.
The calculation,
in theory, would result
in the
number
advocated
by each party.
The Board finds no such
calculation from either party.
Fedders statement of allowable emissions for the paint line
for the 1984 base year shows
55 tons.
A footnote states
“The
quanitity
SIC
attributed
to Fedders by the Economic Impact
Statement before the Illinois Pollution Control Board attributed
287
tons
of VOC
to the Epon paint line and
a forecasted
reduction
of 232 tons.”
Not only does Fedders fail
to provide
a
calculation of legally allowable limits,
they fail to even
specify which Economic Impact Statement.
Similar difficulties
exist when the Board attempts
to understand Fedder’s calculation
of~allowable emissions for
the degreaser and glue operations.
There are no calculations involving regulatory limits and
operating conditions.
Theoretically,
35 Ill.
Adm. Code Part 215
Subpart E
or Section 215.301 could apply
to one
or more of
these
operations,
neither are discussed by the record.
Additionally,
the Board
notes two conceptual difficulties
with Fedder’s calculations.
First,
calculations of
future paint
line emissions
seem to
be based
on calculations involving
8 hours
per day operation while emission reductions at the glue and
degreaser line appear
to be based on
16 hrs/day.
Since those
numbers are compared
to determine compliance,
they must either
be
based on the same operational
hours
or the Board must be given
some explanation for the discrepancy.
Second, paint line
emissions are based on paint usage from the first portion of
1984
(January
1
to some unknown date
in July)
times
a factor
of 1.5
to
account for annual emissions.
However, degreaser operations
present data on solvent usage collected over the same calendar
period but are then multiplied
by a factor
of
2
If two different
factors are used in projecting annual production figures from a
specific time frame,
it must
be explained to be accepted.
In short,
the Board finds that Fedders has failed
to
demonstrate
in its permit application or
on appeal
that
it would
achieve environmental equivalence with an appropriate annual
emissions baseline.
Concerning
the “daily” emissions baseline, the parties
arguments are even less developed.
Both parties argue that the
record demonstrates that Fedders would
or would not operate on an
eight hour
clay.
However,
neither party presents
a factual
argument demonstrating that an eight or
sixteen hour work day
results
in compliance
or noncompliance with daily environmental
equivalence.
In the absence
of such
a demonstration,
a Board
finding on the number of hours Fedders operates
is meaningless.
The Board finds
that Fedders has failed
to demonstrate compliance
with environmental equivalence for
a daily emissions baseline.
The parties
to this proceeding request the Board to
resolve
significant policy and factual
issues,
including:
67-399
—6—
1.
Whether the Agency decision
to deny
a permit was
improperly based
on pounds per gallon of coating solids
rather than pounds per gallon of coating.
2.
~hether the paint nozzle
or the entire flow coater
is
the “applicator”
in a flow coat paint
line.
3.
How
is the transfer efficiency for
a flow—coat paint
line determined.
Neither party explicitly demonstrates how
a decision on these
issues would affect
the compliance status of Fedders paint
line
operation.
Under Section
40
of
the Environmental Protection Act,
the
petitioner
in
a Permit Appeal has the burden
of proof
to
demonstrate compliance.
The Board finds that Fedders has failed
to demonstrate compliance with permitting requirements of
35
Ill.
Acm. Code Part
202.
Accordingly,
the decision
of
the Agency to
deny the permit
is affirmed.
This Opinion constitutes
the Board’s findings
of
fact and
conclusions of law on this issue.
ORDER
The decision of
the Illinois Environmental Protection Agency
denying an ACS permit to Fedders
—
USA
is affirmed.
Board Member walter J.
Nega dissented.
IT
IS
SO ORDERED.
I, Dorothy
M.
Gunn, Clerk
of the Illinois Pollution Control
Board, hereby certifies that
th~
above Opinion and Order was
adopted
on the
~
day
of
___________________,
1986,
by a vote
of
___________.
~
D~orothyM.
Gi.mnn, Clerk
Illinois Pollution Control Board
67-400