ILLINOIS POLLUTION CONTROL BOARD
    APRIL 25,
    1974
    W.
    R.
    MEADOWS,
    INC.
    )
    PETITIONER
    v.
    )
    PCB 74—56
    ENVIRONMENTAL PROTECTION
    AGENCY
    RESPONDENT
    JAMES MARTIN,
    ATTORNEY,
    in behalf of
    W.
    R. MEADOWS,
    INC.
    KATHRYN
    NESI3URG, ATTORNEY,
    in behalf of
    the
    ENVIRONMENTAL PROTECTION
    AGENCY
    OPINION
    AND
    ORDER OF
    THE
    BOARD
    (by Mr. Marder)
    This case comes to the Board on Petition filed February
    5,
    1974,
    by W.
    R.
    Meadows,
    Inc.,
    for a variance for one year from Rule 205
    (e) of Chapter
    2 of the Board’s
    Rules
    and Regulations.
    The Agency filed its recommendation on March 13, 1974.
    The Agency
    recommends a variance be granted subject to certain conditions.
    Hearing was held in the Kane County Court house, Geneva,
    Illinois,
    on March 29,
    1974.
    Petitioner manufactures
    a concrete curing compound that is used to
    provide
    a longer wearing concrete surface.
    The curing compound is
    applied wherever large amounts of concrete are used to prevent damage
    from evaporation of mixing water in the concrete.
    The largest use for
    the compound is in highway construction.
    Rule
    205
    (e)
    prohibits
    the
    sale
    or
    use
    of
    architectural
    coatings
    which
    contain
    more
    than
    20
    by
    volume
    of
    photochemically
    reactive
    mat-
    erial
    in
    containcrs
    having
    a
    capacity
    gre~~er
    than
    one
    gallon
    in
    the
    Chicago
    and
    St.
    Louis
    (Illinois)
    major
    metropolitan
    areas.
    About 60
    of the product is mineral spirits, which are photochemic—
    ally reactive.
    Hardship:
    Petitioner alleges
    as the reason for this variance the
    fact that
    it cannot receive non—photochemically reactive materials for
    its product, because of short supply and federal allocations.
    Petit-
    12—161

    —2—
    ioner has contacted suppliers of these solvents and has not been able
    to obtain sufficient amounts of the exempt solvents.
    Two
    days before
    the hearing Petitioner contacted Shell Chemical Corporation,
    Exxon,
    Gulf Oil, Mobil Oil,
    and Union
    Oil companies and received negative re-
    sponses to its attempts
    to order the exempt materials
    (R.
    9-10)
    .
    The
    Petitioner alleges hardship not
    only to itself, but also to contractors
    who will not be able
    to cure their concrete or will have to cure it at
    a much greater cost.
    Petitioner further alleges that the public will
    also be injured through higher costs
    for
    road construction, or,
    in the
    alternative,
    roads that will not be
    of the highest quality.
    Environmental Impact:
    Petitioner alleges and the kgency concurs that
    the~T~on~limp~ct
    of granting this variance will not be signif-
    icant.
    When applied the product is only used once,
    in an area where
    there is good ventilation.
    The evaporation time for the product ranges
    from 30 minutes to two hours, depending on weather conditions
    CR.
    11)
    Less than 10
    of the Petitioner’s output goes
    to the Chicago and E.
    St.
    Louis areas
    (R.
    12)~.
    Rule 205
    Ce)
    is unique in that it restricts the sale as well as the
    use of the product.
    A variance for the sale of this product causes
    problems that do not exist in the normal variance case.
    First, Petit-
    ioner does not sell his products directly to the ultimate user of the
    product.
    He sells
    it to distributors, who have standing relationships
    with
    contractors.
    It is not unusual for Petitioner
    to sell his product
    to a distributor in Springfield and have the ultimate purchaser use it
    in Chicago
    (R.
    13)
    .
    By giving Petitioner
    a variance to sell
    the prod-
    uct to his distributors, we then must determine whether the distributors
    must also obtain variances.
    To this question, we answer no.
    The result
    of not reaching this conclusion would be to force all of Petitioner~s
    distributors
    to file variance cases, which would do nothing more than
    reiterate the facts in this
    case.
    This result would be in fact no re—
    lief to Petitioner.
    We hold that
    a variance in
    a case from Rule 205
    (e)
    granted to the manufacturer of a product covers the sale by the
    manufacturer’s distributors
    to the ultimate user.
    This decision only
    applies to Rule 205
    (e)
    cases.
    The next question this case raises is whether the ultimate purchaser
    and
    user
    of
    the
    product
    must
    also
    apply
    for
    and
    receive
    a
    variance
    be-
    fore he can use the product in the Chicago and St. Louis
    areas.
    The
    answer
    is yes. While the Board can extend the variance
    to the distrib-
    utor,
    as there are no emissions caused by his transaction,
    the ultimate
    user will be causing the actual emission.
    The Board feels that without
    data as
    to the location of each application of the product,
    the amount
    to be used,
    the period of time in which it is
    to be used,
    and the char-
    acter
    of
    the
    surrounding
    area
    near
    the
    application
    site,
    the Board can
    not grant a blanket variance for the use of the product.
    Petitioner
    has
    indicated
    to
    the Agency
    (Agency
    Rec.
    P.
    2)
    that
    it
    would perform research and development to try to find suitable alter-
    nate solvents and would also attempt to modify its product to
    he
    water—
    reducible.
    12
    162

    —3
    The Board finds that there will be little or no environmental im-
    pact by granting a variance to Petitioner to sell his product,
    Hard-
    ship imposed on the public due to the grant of this variance would be
    far
    less
    than
    the
    hardship
    imposed
    on
    the
    Petitioner
    should
    the
    Board
    not
    grant
    a
    variance.
    Petitioner will
    be
    granted
    variance
    from
    Rule
    205
    Ce)
    of
    Chapter
    2
    for
    one
    year,
    subject
    to
    conditions
    stated
    in
    the
    Order.
    It
    is
    the
    Board’s
    feeling
    that
    Petitioner
    should
    send
    notice
    to
    his distributors that use of the concrete curing compound in the Chi-
    cago and St. Louis
    (Ill.)
    areas violates Rule 205
    Ce),
    unless the
    ultimate user obtains a variance from the Pollution Control Board
    under Title
    9 of
    the
    Environmental
    Protection
    Act.
    This Opinion constitutes
    the findings of fact and conclusions
    of
    law of the Board.
    ORDER
    IT
    IS
    THE
    ORDER
    of
    the
    Pollution
    Control
    Board
    that
    W.
    R.
    Meadows
    is
    hereby
    granted
    a
    variance
    from
    Rule
    205
    Ce)
    until
    April
    25,
    1975,
    to
    allow
    the
    sale
    of
    its
    concrete
    curing
    compound
    in
    the
    Chicago
    and
    St.
    Louis
    (Ill.)
    major
    metropolitan
    areas,
    subject
    to
    the
    following
    conditions:
    A)
    Petitioner
    shall
    file,
    within
    60
    days
    from
    the
    entry
    of this Order,
    a compliance plan~outlining its program
    to
    develop
    a
    water
    reducible
    product
    or
    a
    product
    with
    exempt
    solvents,
    with
    the
    Environmental
    Protection
    Agency.
    B)
    Petitioner
    shall
    file
    reports
    quarterly
    subsequent
    to
    the compliance plan filing, outlining progress as
    to the
    abovementioned compliance plan.
    C)
    Petitioner
    shall attempt to obtain exempt solvents, and
    whenever such solvents are available,
    shall use them.
    IT
    IS SO ORDERED.
    I,
    Christen L.
    Moffett,
    Clerk of the Illinois Pollution CorA~rol
    Board,
    certify that the above Opinion and Order was
    adopted by the
    Board on the 25th day of April,
    1974,
    by a vote of
    5 to
    0.
    12
    163

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