ILLINOIS POLLUTION CONTROL BOARD
    August 7, 1997
    WHITE CAP, INC.,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 96-191
    (Variance - Air)
    ORDER OF THE BOARD (by G.T. Girard):
    This matter is before the Board on a motion to file instanter, a motion to modify a
    Board order and a motion for expedited decision, filed June 30, 1997, by the Illinois
    Environmental Protection Agency (Agency). On July 9, 1997, White Cap, Inc. (White Cap)
    filed a response to the Agency’s motions. On July 16, 1997 the Agency filed a motion for
    leave to file a reply and reply to White Cap’s response. On July 23, 1997, White Cap filed a
    motion for leave to file an attachment to its response.
    The Board grants the Agency’s motion to file instanter and its motion for leave to file a
    reply, as well as White Cap’s motion to file an attachment. The Board will also grant the
    Agency’s motion for expedited decision by adoption of this order.
    In its motion to modify (Motion), the Agency requests that the Board modify its
    November 7, 1996 opinion and order to allow the Agency to issue a federally enforceable
    operating permit, rather than a Clean Air Act Permit Program (CAAPP) permit, as required
    by the order. The Agency explains that, as a participant in the Agency’s Emissions Reduction
    Market System (ERMS) rulemaking, White Cap will have to determine baseline emissions and
    other issues prior to the issuance of a CAAPP permit. Since there is much uncertainty as to
    when these issues will be resolved, as well as when the rulemaking will be final, the Agency
    argues that it is impractical to issue a CAAPP permit by January 12, 1998, only to have to
    reopen the permit once the ERMS rulemaking is final. Motion at 2-3. Therefore, the Agency
    requests that the Board delete the phrase “pursuant to the Clean Air Act Permit Program” in
    Condition 1 of the Board order, and replace it with the following phrase:
    Variance shall terminate on the date upon which the Illinois Environmental
    Protection Agency (Agency) issues White Cap a federally enforceable state
    operating permit, or 90 days following the date Illinois revises its State
    Implementation Plan to include alternative test methods pursuant to Section
    218.105, whichever is sooner, but no later than January 12, 1998. White Cap
    shall apply for a federally enforceable state operating permit by August 12, 1997.
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    Motion at 3-4.
    In its response (Resp.), White Cap requests that the Board deny the Agency’s motion to
    modify. White Cap states that the Agency motion is improperly before the Board because it
    was not filed within 35 days of adoption of the order, as required by 35 Ill. Adm. Code
    101.246. In addition, White Cap argues, the Agency failed to allege the existence of any
    conditions that would allow relief from final Board orders pursuant to 35 Ill. Adm. Code
    101.301. White Cap further argues that the Agency failed to support is motion to modify with
    affidavits as required by 35 Ill. Adm. Code 101.301(c). Resp. at 1-2.
    White Cap asserts that the Agency is requesting a significant modification to the
    Board’s order, one for which there is no basis in the Illinois Environmental Protection Act
    (Act). In addition, White Cap argues that the Board’s order does not require the Agency to
    take any action; rather, the order applies only to White Cap. In light of the Agency’s inability
    to issue a permit by January 12, 1998, White Cap states that the appropriate relief is to extend
    the variance date until such time as the Agency can practically issue a CAAPP permit. White
    Cap states that it is in the process of drafting a petition for extension of variance, to be filed by
    the end of July 1997. Resp. at 2-3.
    In its reply (Reply) the Agency argues that the relevant regulation, 35 Ill. Adm. Code
    218.108(b), only requires a federally enforceable permit, which can be accomplished by either
    a CAAPP permit or a FESOP, a federally enforceable state operating permit. The Agency
    states that it can issue a limited FESOP within the timeframe of the Board’s order in this
    matter, thereby allowing White Cap to achieve compliance by conducting the alternative
    capture efficiency testing from which it has had variance relief since 1993. Finally, the
    Agency argues that White Cap was bound by the Board’s order prior to the ERMS rulemaking
    proceedings, and the ERMS proceedings do not impose an arbitrary or unreasonable hardship
    on White Cap; therefore, it would oppose a request for variance extension in this matter.
    Reply at 1-4.
    DISCUSSION
    The issue in this matter is whether a party can seek modification of a final Board order
    after the 35-day period provided in the Board’s procedural rules has expired. As White Cap
    stated, motions to modify Board orders “shall be filed within 35 days of the adoption of the
    order.” 35 Ill. Adm. Code 101.246. Although the Board has made exceptions to this rule for
    parties seeking to extend an internal deadline, it has not granted untimely filed motions to
    modify a order that would extend the termination date of the variance granted. See The
    Nutrasweet Company and Consumers Illinois Water Company v. IEPA (December 20, 1990),
    PCB 88-84; Continental White Cap, Inc. v. IEPA (July 22, 1993), PCB 92-155; Allied-
    Signal, Inc. v. IEPA (September 27, 1990), PCB 88-172.
    Throughout the instant variance proceeding the Agency indicated that, in the spirit of
    achieving compliance as soon as practicable, it expected to issue White Cap a CAAPP permit,
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    the permit for which White Cap had applied, no later than August 15, 1997. In its order, the
    Board determined that the variance would terminate no later than January 12, 1998, thereby
    giving the Agency additional time to issue the CAAPP permit. Subsequent events involving
    the ERMS rulemaking deem it impracticable to issue such a permit prior to adoption of a final
    rule in ERMS; therefore, not only is the Agency’s August 15, 1997 deadline unrealistic, so is
    the termination date of this variance. The Board concludes that the Agency’s motion to
    modify the Board order in this matter involves a modification of the termination date of the
    variance, not a modification of an internal deadline. Therefore, the Board denies the Agency’s
    motion to modify the Board’s November 7, 1996 opinion and order in this matter.
    The Board notes that only White Cap, not the Agency, is bound by the terms set forth
    in the Board’s November 7, 1996 order. Since the Agency states that it cannot issue a CAAPP
    permit before January 12, 1998, due to the uncertain timeframe for a final ERMS rulemaking,
    the Board finds that the appropriate remedy in this matter is a petition for extension of the
    prior variance. The Board further notes that White Cap filed such a petition on August 1,
    1997.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 7th day of August 1997, by a vote of 6-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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