ILLINOIS POLLUTION CONTROL BOARD
March 25,
1993
IN THE
MA~TTER
OF:
)
)
ADJUSTED STANDARD OF C.J.
)
AS 92-6
GOODALL TIRE CO.,
INC. FROM
)
(Adjusted Standard)
35 ILL. ADN. CODE 848.202
)
OPINION
AND
ORDER OF THE BOARD
(by G.
T. Girard):
-
This matter comes before the Board on C.
J. Goodall Tires’
(Goodall) petition for an adjusted standard filed on September 8,
1993, and an amended petition filed on November 17,
1993.
The
original petition requested an exemption from the 14 day storage
limitation for used and waste tires found in 35 Ill. Adm. Code
848.202(b)(5).
On October 1,
1993, the Board issued an order
directing petitioner to file an amended petition to cure several
deficiencies in the original petition.
Goodall’s amended
petition requested an exemption from the unit dimension and aisle
spacing requirements found in 35 Ill. Adm. Code 848.202(c) (5) (B)
and the financial assurance requirements found in 35 111. Adm.
Code 848.404,
in addition to the request in the original
petition.
The Agency filed a response on December 12,
1993,
recommending that the adjusted standard be granted in part and
denied in part.
Hearings in this matter were waived and none
were held.
BACKGROUND
C.J. Goodall Tire Company is located in the City of
Belleville,
St. Clair County,
Illinois.
The business has been
owned and operated by C.J.
and Dorothy Goodall for 52 years.
Goodall buys damaged specialty tires, and then restores and sells
the tires.
(Am. Pet.
at
4_5.)1
The business deals primarily in
mine, quarry, and airplane tires.
There are approximately 1200
tires on site.
Goodall sold approximately 900 tires and bought
approximately 650 in 1991.
(Am.
Pet. at 6.)
Goodall sold over
$400,000 worth of tires in 1991, resulting in an income of
$83,635.
During the same time period, Goodall had five full-time
employees with a payroll of $86,202.
(Am.
Pet. at 3.)
The Goodall facility consists of an office, warehouse,
a new
storage building, and a building where the repair process takes
place.
The new building is used to store intermediate size
tires.
Goodall stores 300 tires indoors and stores 750 tires
outside in the tire yard.
The tire yard is made up of three tire
units.
Each unit is 90 feet by 100 feet.
A minimum twenty-five
1
Goodall’s amended petition will be cited throughout this
opinion and order as
(“Am.
Pet.
at
____.“)
Exhibits are those
submitted by petitioner with its original and amended petitions.
0295
2
foot aisle separates the units.
(Am. Pet. at
4..)
Goodall does not deal in passenger tires.
Petitioner’s
tires range in size from “15.5 X 25”,
(3 feet high,
25 inch rim
size,
and 200 pounds), to “35.00 X 51”
(ten feet high,
51 inch
rim size, and 6000 pounds).
Goodall purchases repairable tires
from mines, quarries, and other suppliers.
Tires are inspected
and bid on at the source.
Goodall typically pays between
a
hundred and a thousand dollars for an individual tire.
After a
tire is hauled to the Goodall facility, water
is vacuumed out of
the tire and an approved pesticide is applied.
The tires are
then stored in a building or outside until a customer orders the
tire.
(Am.
Pet. at 4-5.)
Goodall does not repair a tire until it
is ordered.
As a result,
a tire may stay at the Goodall facility
for months or even up to a year before being repaired and sold.
(Am. Pet. at 5.)
PROCEDURAL HISTORY
On September 8,
1992, Goodall filed a petition for an
adjusted standard.
The petition requested an adjusted standard
from the 14 day storage limitation for used and waste tires found
in 35 Ill. Adm. Code 848.202 (b) (5).
On October
1,
1993, the
Board issued an order directing petitioner to file an amended
petition to cure several deficiencies in the original petition.
The order noted that the petition presented justification for an
exemption from the 14 day storage regulations, but that the
petition did not sufficiently address and justify an exemption
from the aisle spacing and financial assurance regulations.
In
addition, the order directed petitioner to provide more
information regarding tire inventory, and compliance alternatives
and costs.
Goodall filed an amended petition on November 17,
1992,
which
addressed the tire inventory,
and compliance alternatives
and related cost data.
The amended petition also addressed the
aisle spacing provisions and financial assurance regulations.
The Agency filed a response on December 18, 1993.
The Agency
recommended approval of the adjusted standard in regard to the 14
day storage limitation and the aisle spacing requirements.
The
Agency asserted that the petition did not adequately define the
scope of the proposed adjusted standard.
Therefore, the Agency
recommended additional language to clarify which tires would be
regulated by the new standard.
The Agency also opposed the
exemption from the financial assurance requirements of 848.404.
On January 4,
1993, Goodall filed an answer to the Agency’s
response to the petition for an adjusted standard.
On January
11,
1993,
the Agency filed a motion for leave to file and reply
to petitioner’s answer to the Agency’s response.
On January 20,
1993, petitioner filed a motion to strike,
or,
in the
alternative, leave to file a reply.
On January 29,
1993, the
Q~i~0-0296
3
Agency filed a response in opposition to petitioner’s motion to
strike.
In a February 4,
1993,
Board order,
the Board accepted
petitioner’s answer to the Agency’s response, the Agency’s reply
to petitioner’s answer and denied petitioner’s alternative motion
to strike.
The Agency’s leave to file a reply was denied.
ADJUSTED STANDARD JUSTIFICATION
The Environmental Protection Act
(Act) (415 ILCS 5/1 et sep.
(l992).)2 and Part 848 of the Board rules
(35 Ill.
Adiii. Code 848)
regulate used and waste tires in order to assure proper disposal,
and to protect the public from disease—carrying insects and the
danger of air and water pollution from fires associated with
large accumulations of used and waste tires.
(415 5/53
(1992).)
Section 28.1 of the Act allows the Board to grant an “adjusted
standard” modifying the effect of general rules
in specific
cases.
35 Ill.
Adin.
Code l06.Subpart G contains procedures to be
followed in adjusted standard matters.
Where the Board specifies
a “level of justification” at the time it adopts the rule of
general applicability, then that level of justification controls
any adjusted standards filed pursuant to the rule.
Absent
a
specified level of justification, the level of justification is
found in Section 28.1(c)
of the Act.
Because Part 848 does not specify a level of justification,
an adjusted standard from Part 848 must meet the criteria found
in Section 28.1 of the Act.
Section 28.1 of the Act states
28.1(c) (1—4)
c)
If a regulation of general applicability does not
specify
a level of justification required of a
petitioner to qualify for an adjusted standard,
the Board may grant individual adjusted standards
whenever the Board determines, upon adequate proof
by petitioner,
that:
1.
factors relating to that petitioner
are substantially and significantly
different from the factors relied
upon by the Board in adopting the
general regulation applicable to
the petitioner;
2.
the existence of those factors
justifies an adjusted standard;
3.
the requested standard will not
2
Formerly codified at Ill.Rev.Stat. ch. 111 1/2 par. 1001 ~
seq.
at
~o-o297
4
result in environmental or health
effects substantially and
significantly more adverse than the
effects considered by the Board in
adopting the rule of general
applicability; and
4.
the adjusted standard is consistent
with any applicable federal law.
REGULATIONS
Goodall seeks to be exempt from the following regulations:
848.202(b) (5)
(b)
At sites at which more than 50 used or waste tires
are located the owner or operator shall comply
with the following regulations:
(5)
Used or waste tires received at the site shall not
be stored unless within 14 days after receipt of
any used tire, the used tire is altered,
reprocessed, converted,
covered or otherwise
prevented from accumulating water.
All used and
waste tires received at the site before June 1,
1989,
shall be altered, reprocessed, converted or
otherwise prevented from accumulating water by
January
1,
1992.
848.202(c) (5)
(EU.
(C) (5)
(B)
The tire storage unit is separated from all
buildings whether located on or off the site,
and all other site storage units by a
separation distance that is not less than the
distance identified by the following:
(Table Omitted)
848.404
(a)
The owner or operator shall submit to the Agency a
written estimate of the cost of removing all used and
waste tires from the site.
1)
The owner or operator shall submit the cost
estimate with the annual notice of activity
pursuant to Section 55(d)
of the Act.
01
L~0-O29B
5
2)
The cost estimate is due on January
1 of each
year,
commencing January
1,
1992.
(b)
The owner or operator shall revise the cost estimate
whenever a change in the removal plan increases the
cost estimate.
(c)
The cost estimate equals the larger of the following:
1)
The cost of removing all used and waste tires
accumulated at the site;
or
2)
The cost of removing the maximum number of used
and waste tires which the owner or operator
anticipates will be accumulated at the site at any
time.
(d)
The owner or operator shall base the cost estimate on
either:
1)
Costs to the Agency under a contract to perform
the tire removal actions in the area where the
site is located; or
2)
Projected costs, assuming that the Agency will
contract with a third party to implement the
removal plan.
A third party is a person who is
neither a parent or subsidiary of the owner or
operator.
(e)
The cost estimate must,
at a minimum,
include all costs
for all activities necessary to remove all used and
waste tires in accordance with all the requirements of
this Part.
(f)
Once the owner or operator has completed an activity,
the owner or operator may revise the cost estimate
indicating that the activity has been completed, and
zeroing that element of the cost estimate.
PROPOSED STANDARD
Petitioner proposes the following adjusted standard for
inclusion in the Board’s order
in this matter:
C.J. Goodall Co.,
Inc.,
Tire Repair Site.
For a site owned and
operated by the C. J. Goodall Co.,
Inc.,
located at 905 West
Boulevard,
Belleville,
Illinois, the scope of the exemption and
alternate management standards applied to that facility are as
follows:
01 kO-0299
6
a)
Scope of Exemption
1)
The storage limitation on whole tires specified at
Section 848.202(b) (5) and the unit dimension and aisle
spacing requirements of 848.202 (c) (5) do not apply to
tires size 18.00 X 25 and larger at the site.
2)
C.J. Goodall Tire Co.,
Inc., may exclude from the cost
estimate under Section 848.404 the cost of removing all
tires purchased for repair and resale at the site.
b)
Alternative Manacrement Standards.
As part of the
contingency plan requirements of Section 848.203 C.J.
Goodall Tire Co., Inc.,
shall:
1)
Within 90 days after the effective date of these
regulations develop and implement a tire storage plan
to minimize the threat of fire and mosquito breeding.
Such a plan shall include, but is not to be limited to,
tire storage arrangements, aisle space, access to fire
fighting personnel and equipment and mosquito
inspection and control.
2)
Request, and submit to the Agency,
a statement from the
Illinois Department of Public Health that the program
developed under subsection
(C)
(1)
is adequate to
control mosquito larvae and pupae; except that,
if the
Department has not sent a statement within 45 days
after receipt of the request, such statement need not
be submitted and the Agency shall make such a
determination.
C.J. Goodall Tire Co.,
Inc., has the
burden of demonstrating that the threat of mosquito
breeding has been minimized.
Requests for such
statements of determination shall be sent to:
Division of Environmental Health
Office of Health Protection
Illinois Department of Public Health
525 W. Jefferson Street
Springfield,
Illinois
62761
In summary, petitioner requests to be exempt from the
requirements of 848.202(b) (5), 848.202(c) (5) (B) and 848.404.
Under this adjusted standard, petitioner must receive from the
Department of Public Health a determination that petitioner’s
alternative management plan is adequate to control mosquito
larvae and pupae.
This determination must be submitted to the
Agency.
Furthermore, petitioner requests exemption from the cost
estimate requirements of 848.404.
0 t~0-0300
7
AGENCY RESPONSE
The Agency recommended that the petition be granted as to
848.202(b) (5) and 848.202(c) (5) (B) but with clarifying language.
In addition, the Agency recommends that the Board not exempt
petitioner from 848.404.
The Agency believed that the petition
was unclear as to what tires would be regulated by the proposed
standard.
The Agency asserted that the amended petition does not
adequately define which tires are larger than 18” X 25”.
For
instance, it was not clear whether a tire must exceed the minimum
width dimension only,
the minimum rim size only, or whether it
must meet or exceed both dimensions to qualify for the exemption
created by the adjusted standard.
To avoid this uncertainty, the
Agency proposed that the adjusted standard apply to tires that
are
18 inches or greater in width
~
fit on tire rims that are
25 inches or greater in diameter.
The Agency suggested the
following language for inclusion in the adjusted standard:
A tire shall be deemed to be of a size equal
to or greater than 18.00 X 25 if it is 18
inches or greater in width and fits on a tire
rim that is 25 inches or greater in diameter.
The Agency also recommended that the adjusted standard include a
condition that states that all tires that do not satisfy the
conditions for the exemption created in the adjusted standard
shall be handled pursuant to the provisions of 35 Ill. Adm. Code
848.
The Board agrees that the petition does not adequately
define what tires are to be regulated by the adjusted standard.
Therefore,
the Board accepts the Agency’s recommended language.
The Board also agrees with the Agency that the adjusted standard
should contain a condition that tires which do not satisfy the
conditions for exemption shall be handled pursuant to 35 Ill.
Adm. Code 848.
DISCUSSION
The Board now turns to consideration of petitioner’s request
in light of the Section 28.1 criteria.
14 Day Storage and Aisle Spacincr Limitations
Under Section 28.1(c) (1), petitioner must show that factors
relating to petitioner are substantially and significantly
different from the factors relied upon by the Board in adopting
848.202(b) (5) and 848.202(c)(5)(B).
Goodall contends that,
in
devising the used and waste tire regulations, the Board
envisioned facilities and operations dealing in common passenger
tires.
Petitioner claims that these operations buy thousands, or
perhaps millions, of tires and then quickly processes the tires
01 ~O-030I
8
into fuel.
Furthermore, Goodall contends the Board primarily
considered sites that store tires in unmanaged piles or stacks.
Goodall’s claim that it is differently situated than those
facilities the Board envisioned in devising the rules3 is
supported by the record.
For instance,
in R88-24, the Board
frequently referred to common passenger sized tires and tire
piles.
(R88—24 at 7,
8,
11,
13,
14,
18.)
In R90—9A, the Board
considered “tire monofills” and “tire stacks”.
(R90—9A at 3—4.)
In considering Parts 848.302 and 848.303, the Board used a
conversion factor that employed tires the size of common
passenger tires.
(R90—9A at 12,
18 and 19.)
Testimony regarding
the use of pesticides also presumed that the tires would be
common passenger tires.
(R90-9A at 13.)
Furthermore,
in R90-9B,
the Board considered facilities that quickly convert their tires
into fuel chips.
(R90-9B at 3—5,
11.)
Goodall does not purchase large volumes of tires and does
not process its tires quickly.
Goodall generally has less than
1500 tires on site.
Furthermore, Goodall does not store its
tires in stacks or piles.
The tires are placed in rows to allow
for individual inspection by customers.
(Am. Pet, at 4-5.)
Therefore, the Board finds that the factors envisioned in
adopting the rules are significantly different than factors
relating to petitioner.
Under Section 28
•
1(c) (2), the petitioner must show the
existence of those factors envisioned by the Board in adopting
the rules of general applicability, justifies an adjusted
standard.
Goodall asserts that because it is differently
situated than the facilities the Board considered in adopting the
rule of general applicability, compliance with the regulations
imposes an arbitrary burden. In addition, Goodall also claims
that compliance with the regulations would result in an undue
financial burden.
The regulations require that sites at which more than 50
~ The Board originally adopted used and waste tire regulations
in emergency rule R88-12, Managina Tire Accumulations to Limit the
Spread
of the Asian Tiger
Noscruito,
12
Ill.
Reg.
8485
(May
13,
1988).
On April 27, 1989, the Board adopted R88—24, Managing Scrap
Tire Accumulations For the Control of Mosquitoes, Part 849,
13 Ill.
Reg. 7949 (May 26,
1989), 98 PCB 393.
On April 25, 1991, the Board
adopted R90-9A and B, Used and Waste Tire Regulation
(35 Ill. Adm.
Code 848), 15 Ill. Reg. 7959,
(May 24, 1991).
On February 6, 1992,
the Board adopted R90—9B, Used and Waste Tire Recmlations
(35 Ill.
Adm.
Code
848)
(35
Ill.
Admn.
Code
849),
16
Ill.
Reg.
2880,
(February 21,
1992).
These rulemakings
shall be cited herein as
“(R88—24
at
_.)“,
“(R90—9A
at
_.)“,
and
“(R90—9B
at
.)“
respectively.
~31140-0302
9
used or waste tires are located, the owner or operator shall not
store the tires for more than 14 days after receipt, unless the
used tire is altered, reprocessed, converted, covered or
otherwise prevented from accumulating water.
(848.202)
Goodall
suggests that it cannot change the structure of the tire to
prevent water accumulation without further damaging the tire.
Because the purpose of Goodall’s business to restore tires,
further damaging the tires
is contrary to Goodall’s purpose.
Therefore, Goodall contends that it is arbitrary to require
Goodall to alter or convert its tires.
Goodall claims that it also cannot comply with the
regulations by covering the tires.
Goodall claims storing the
tires in buildings or covering the tires with tarps would be
prohibitively expensive.4
Goodall claims that it would have to
use a tarp 40 feet by 55 feet in order to adequately cover the
tires and secure them.
Goodall claims that tarps this size would
be difficult to manage and would prevent customers from viewing
the tires.
In Goodall’s business, customers inspect a tire
before buying it.
This is different from a typical tire storage
situation where the tires can be haphazardly piled together or
stacked while awaiting processing.
Goodall estimates that it
would have to spend $15,000 to purchase the tarps.
(Am. Pet. at
11.)
In addition, Goodall claims it would have to add an
additional employee to cover and uncover the tires.
Moreover,
Goodall has covered its tires with tarps in the past in an
attempt to comply with the regulations and this resulted in a
mosquito infestation.
Goodall also asserts that it cannot construct a suitable
building to store its largest tires.
Goodall recently added a
new storage building at a cost of $40,000.
(Am.
Pet. at 4.)
Goodall uses this building to store its intermediate sized tires.
An additional storage building with interior aisles,
large enough
to store Goodall’s largest tires, would cost an estimated
$120,000.
Goodall has also considered constructing buildings
with the exterior aisles, but claims these buildings would cost
$150,000 to $200,000 to construct.
(Exhibit 6.)
Petitioner asserts that aisle spacing, separation, and
drainage requirements are met at the site.
Moreover, petitioner
claims that bringing these large tires indoors may create a fire
hazard.
Petitioner claims that the Chief of the Belleville East
Side Fire Department, Wee Krummrich, approves of the manner in
which petitioner has chosen to segregate and store its tires
outdoors.
Goodall claims that it would have to eliminate 25-33
of its inventory if required to meet the current aisle spacing
~‘
The Board notes that when granting permanent relief the
Board
does
not
view
the
financial
plight
of
a
petitioner
as
dispositive.
(See Elizabeth Street Foundry, As 89—2)
01 ~~O-0303
10
requirements.
(Am. Pet. at 11.)
The Agency is in general
agreement with petitioner concerning compliance efforts and
costs.
Under Section 28.1(c) (3), petitioner must show that the
requested standard will not result in environmental or health
effects substantially and significantly more adverse than the
effects considered by the Board in adopting the rule of general
applicability.
Pursuant to the proposed plan, Goodall would
submit an alternative management plan to the Department of Public
Health and/or the Agency.
Goodall proposes to apply an approved
pesticide on the day a tire is received.
Thereafter, Goodall
would inspect the tires every month for mosquito larvae and
pupae.
If larvae and pupae are present, the tires would again be
treated with pesticide in compliance with the regulations.
In adopting the waste tire regulations, the Board considered
the use of pesticides as a primary method of mosquito prevention.
The regulations allow the use of pesticides but emphasize
non—chemical control measures.
However, the use of pesticides
was strongly advocated by one expert,
Dr. Robert Novak5,
at the
regulatory hearings.
Dr. Novak stated:
The original intent of the legislation and the rules
was to prevent a public health situation.
We feel that
under many circumstances the use of an approved
pesticide is the only way at this particular time to
deal with this problem.
However, you do understand
***
the use of a pesticide over extended periods of time
should not be a way to provide a solution to our
problem.
(R90—9B at 5—6.)
Other participants testified in favor of periodic inspections
of tires that are stored on-site for mosquito pupae and larvae
and the application of pesticides upon the detection of mosquito
infestation as a management tool.
(R90-9A at 14.)
Experts at the
hearing emphasized the need to use pesticides only to address a
specific infestation problem.
(R90-9B at 6.)
It was generally
agreed that the prohibition against ongoing use was aimed at
preventing frequent spraying without inspection.
The Board
concluded that the use of pesticides in response to an inspection
which finds mosquito larvae and pupae present was intended by the
Act.
The Board finds that,
in general, an alternative management
plan, approved by the Department of Public Health and/or the
~
Dr.
Novak
is
a
medical
entomologist with the
Illinois
Natural History Survey.
n
I ~fl-fl~flh
11
Agency, which employs the use of approved pesticides in response
to a specific infestation problem, will not result in
environmental or health effects substantially and significantly
more adverse than the effects considered by the Board in adopting
the rule of general applicability.
Under Section 28.1(c) (4), petitioner must show that the
adjusted standard is consistent with any applicable federal law.
Goodall asserts that the proposed adjusted standard will not
violate any applicable federal law.
The Agency did not cite any
federal law with which the adjusted standard would conflict.
The Board finds
in light of the Section 28.1 factors,
petitioner has met its burden for an exemption from 848.202(b) (5)
and 848.202(c) (5) (B).
Financial Assurance Provisions
The financial assurance provisions of Part 848 are intended
to protect the public by providing funds for the removal of
tires,
if the owner or operator abandons the site or is otherwise
unable to properly terminate operations.
Goodall requested an
exemption from 848.404 and characterized this as a request for a
total exemption from the financial assurance provisions.
(Am.
Pet. at 17.)
The Agency asserted that the petition failed to
make a formal request for relief from Section 848.404 and that
its proposed language goes well beyond the relief which the Board
has deemed suitable for retreading facilities, which exclude from
the cost estimate under 848.404 the cost of removing one fourth
of the previous calendar’s year production.
(848.206(a) (2) (B))
Therefore, the Agency contends that Goodall should not be exempt
from Section 848.404.
For the reasons stated below, the Board construes
petitioner’s request as an adjusted standard from the regulations
that reference the passenger tire equivalent
(PTE).6
The PTE is
defined at Section 848.303(c)
and is used to calculate the number
of tires on site.
The result of an adjusted standard from the
PTE sections is that petitioner will be subject to management
standards based on the actual number of tires on site, rather
than the PTE.
Under Section 848.400(c) (4), owners and operators of tire
storage sites and tire disposal sites are exempt from the
financial assurance provisions where, as reported in the annual
6
The passenger tire equivalent
is
defined at 848.303(c).
Sections
848.303(b)(3),
848.303(d—g),
and
848.304(b)
directly
reference the PTE.
Section 848.400(c) (4) indirectly references the
PTE.
1)
LLfl-0305
12
notice of activity,7 less than 5000 used or waste tires are
stored at the site and less than 50 used or waste tires have been
disposed.
Under the regulations, an owner or operator determines
the number of tires at a site with the use of a passenger tire
equivalent equation.
The PTE is calculated by the weight or
volume of the tires on site.
The Board’s technical and
scientific staff devised, and the Agency endorsed, the PTE
because at many sites the tires are too numerous and disorganized
to count.
(R90-9A at 18.)
The practical importance of the PTE
derived figure is that different management standards apply
depending on the number of tires on site.
These management
standards primarily concern mosquito control and fire management.
(R90—9B at 12.)
Section 848.303(e) allows an owner or operator to establish
different procedures for the purposes of estimating the number of
tires as long as the tires are estimated in terms of passenger
tire equivalent.
Goodall, however, maintains an accurate
inventory of its tires and does not need to estimate the number
of tires at its site.
The requirement of a PTE estimate serves
no function where, as here, the actual number of tires
is known.
The Board believed that exempting retreading facilities with
less than 5000 tires from the financial assurance requirements
would allow those facilities to avoid obtaining financial
assurance provided they process tires quickly and do not
accumulate large numbers of tires.
(R90-9B at 8.)
The Board
believes that reasoning should also apply to Goodall.
The
Goodall facility is a relatively small operation;
it has less
than 1500 tires on site.
It buys abandoned or waste tires,
repairs them and returns them to usefulness.
Because they wait
for a customer to order a tire before repairing it, they are
currently processing their tires as quickly as is reasonable
under their circumstances.
In addition, in 50 years of
operation, Goodall has not accumulated large numbers of tires,
and there is no evidence that they will start now.
Moreover, the financial assurance provisions were adopted
because used and waste passenger tires have little intrinsic
value and the possibility of abandonment is great.
(R90-9A at 7.)
In R90-9B, the Agency emphasized that it is unusable material
that truly needs to be covered by financial assurance.
(R90—9B at
4.)
The Board reasoned that so long as a market exists for a
tire,
that tire will have an intrinsic value in excess of a
~ The record keeping and reporting requirements of Subpart C
apply to sites,
such as Goodall, which store more than 500 tires.
(848.301)
Owners and operators are required to keep a daily tire
record and
an annual
tire summary.
(848.302)
The daily tire
record is used to supply information for the annual report.
at t~O-O306
13
typical used or abandoned tire.
(R90—9B at 8.)
In R90-9B, the
Board considered facilities that paid between 50 cents and $4.50
per tire.
(R90—9B at 8.)
The Board concluded that to require
retreaders to insure against the tire removal when the intrinsic
value of the tire already does so, places an unnecessary burden
on that industry.
The exemption from the financial assurance
provisions was viewed as a means of encouraging the beneficial
use of tires.
(R90-9B at 8.)
Goodall pays from a hundred to
several thousands dollars per tire.
Therefore, Goodall’s tires
have a much greater intrinsic value than do the tires the Board
considered in adopting the used tire regulations.
This greater
intrinsic value suggests that it is unlikely that Goodall’s tires
will be abandoned.
As a final point, the Board notes that the adjusted standard
granted today does not precisely parallel Section 848.400(c) (5).
The adjusted standard granted today provides for the termination
of the financial assurance exemption where Goodall has been found
to have violated Section 55(a),
(b) or
(c) of the Act more than
once in any calendar year.
Section 848.400(c) (5) provides for
the termination of the financial assurance exemption where a
facility has received “more than one written notice of violation
of Section 55(a),
(b) or
(C)
of the Act”
in any calendar year.
(emphasis added)
The Board has not previously ruled whether
“written notice of violation of Section 55(a),
(b) or
(c)
of the
Act” means a finding of violation or mere notice of a possible
violation.
The Board does not reach that issue today.
However,
the Board notes that Section 55.5(b) requires that an
investigation be conducted prior to a finding of a violation.
In
addition, Section 55.5(c)
allows a facility to take corrective
action upon notice of an alleged violation, prior to a finding of
a violation.
Thus,
Sections 55.5(b)
and 55.5(c) afford
procedural safeguards that mere notice of an alleged violation
does not.
The Board concludes that in the instant matter,
termination of the exemption upon a finding of more than one
violation better comports with the Act, and the used and waste
tires regulations, than does mere notice of more than one alleged
violation.
Therefore, the Board will grant this adjusted
standard so long as Goodall
is not found to have violated
Section 55(a),
(b)
or
(c)
of the Act more than once in any
calendar year.
The Board concludes that Goodall processes it’s tires as
quickly as it can within the context of its business and does not
accumulate large number of tires.
The Board further concludes
that the purposes of the Act and the used and waste tire
regulations are not promoted by requiring Goodall to use the
passenger tire equivalent to calculate the number of tires on
site rather than the actual number of tires on site.
Therefore,
the Board believes that Goodall is an appropriate candidate for
exemption from the financial assurance provisions so long as it
maintains less than 5000 actual tires on site and less than 50
0
i ~O-03O7
14
used or waste tires have been disposed as specified in
848.400(c) (4).
In summary, under the adjusted standard granted today,
Goodall may report the actual number of tires on site in the
annual tire summary.
The Board wishes to emphasis that Goodall
will be exempt from the financial assurance requirements,
pursuant 848.400(c) (4), only so long as it has less than 5000
tires on site and disposes of less than 50 tires as reported in
the annual tire summary.
In addition, Goodall will lose its
exemption from the financial assurance provisions
if Goodall is
found to have violated Section 55(a),
(b) or
(c) of the Act, more
than once in any calendar year.
Furthermore, under this adjusted
standard, Goodall must continue to maintain a daily record and
submit an annual tire summary to the Agency as required by
848.302, 848.303, and 848.304.
The following language shall be included in the adjusted
standard:
Financial Assurance Provisions.
The financial assurance
exemption for whole tires specified at Section 848.400(c) (4)
shall apply to Goodall Tires so long as less than 5000 used or
waste tires are stored at the site and less than 50 used or waste
tires have been disposed.
The number of tires at the site for purposes of this
section,
shall be the actual number of the tires at the
site,
rather than the passenger tire equivalent specified in
848.303(c).
This exemption does not apply if the number of tires at the
site exceeds 5000 or if more than 50 used or waste tires
have been disposed at the site.
This exemption does not apply if the owner or operator is
found to have violated Section 55(a),
(b) or
(c)
of the Act
more than once in any calendar year.
CONCLUSION
Section 28.1 of the Act allows for an adjusted standard from
a rule when certain conditions have been met upon adequate proof
by the petitioner.
Following a careful review of the record, the
Board will grant the requested adjusted standards from
848.202(b) (5) and 848.202(c)(5)(B).
As discussed above,
the
Board further exempts petitioner from the use of the passenger
tire equivalent to determine the number of tires on site.
So
long as the actual number of tires at the Goodall facility is
01 ~O-O308
15
less than 5000 and less than 50 tires are disposed at the site,
as reported in the annual tire summary, the exemption provided
for in 848.400(c) (4)
shall apply to Goodall.
The Board finds that the circumstances surrounding the
petitioner are substantially and significantly different from the
factors relied upon by the Board when adopting the rule of
general applicability.
In adopting the rule of general
applicability, the Board envisioned facilities that processed
thousands to millions of common passenger tires.
The Board
believed that these facilities are able to process their tires
quickly and structured the rules to encourage a quick turn—over.
Goodall does not deal in passenger tires.
Goodall is unique
in that it buys damaged,
large sized tires,
on an individual
basis,
and then repairs and sells the tires.
Goodall often pays
a large sum of money for each tire.
By repairing and selling the
tires, Goodall returns these otherwise abandoned tires to
usefulness.
Furthermore, Goodall does not store its tires in
stacks or piles.
The tires are placed in rows to allow for
individual inspection by customers.
Moreover, the Chief of the
Belleville East Side Fire Department approves of the manner in
which petitioner has chosen to segregate and store its tire
outdoors.
Goodall claims that it would have to eliminate 25-33
of its inventory if it is required to meet the current aisle
spacing requirements.
This reduction would likely result in
forcing Goodall out of the business of restoring these used
tires.
The Board finds that these factors justify the granting of
an adjusted standard, when combined with the finding that the
requested standard will not result in substantial environmental
or health effects.
The Agency believes that there will be no
adverse health effects from granting the requested adjusted
standard.
In addition, the adjusted standard requires that
petitioner submit a plan to Illinois Department of Public Health
for approval.
Petitioner indicates that it will submit an
alternative management plan which employs the use of approved
pesticides in response to a specific infestation problem.
This
plan will not result in environmental or health effects
substantially and significantly more adverse than the effects
considered by the Board in adopting the rule of general
applicability.
Therefore, the Board finds that the environmental
and health effects are not substantially or significantly more
adverse that the effects considered by the Board when adopting
the general standard.
The Board concludes that Goodall processes its tires as
quickly as is reasonable within the context of its business and
does not accumulate large number of tires.
Moreover, Goodall’s
tires have a much greater intrinsic value than the tires the
Board considered in adopting the regulations.
This intrinsic
01 ~0-0309
16
value guards against abandonment.
The Board concludes that to
require Goodall to insure against the tire removal when the
intrinsic value of the tire already does so, places an
unnecessary burden on Goodall.
In addition, the Board concludes
that the purposes of the Act and the used and waste tire
regulations are not promoted by requiring Goodall to use the
passenger tire equivalent to calculate the number of tires on
site.
Therefore, the Board believes that Goodall is an
appropriate candidate for exemption from the financial assurance
provisions so long as it maintains less than 5000 tires on site
and disposes of less than 50 tires as specified in 848.400(c) (4)
and does not commit more than one violation of Section 55 of the
Act in any calendar year.
The Board agrees with the Agency that the adjusted standard
should include language that clarifies what tires are regulated
by the adjusted standard.
Therefore,
the Board will adopt the
adjusted standard with the clarifying language suggested by the
Agency.
This opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
The Board hereby grants Goodall Tires an adjusted standard
from 848.202(b) (5)
and 848.202(c) (5).
The Board also grants an
adjusted standard to Goodall Tires from 848.400(c) (4), but only
to the extent that Goodall shall report the actual number of
tires on site rather than the passenger tire equivalent.
The
following standard becomes effective on the date of this order:
C.J. Goodall Co.,
Inc., Tire Repair Site.
For a site owned and
operated by the C.J. Goodall Co.,
Inc.,
located at 905 West
Boulevard, Belleville,
Illinois, the scope of the exemption and
alternate management standards applied to that facility are as
follows:
a)
Scope of Exemption
1)
The storage limitation on whole tires specified at
Section 848.202(b) (5)
and the unit dimension and aisle
spacing requirements of 848.202(c) (5) (B)
do not apply
to tires size 18.00 X 25 and larger at the site.
2)
A tire shall be deemed to be of a size equal to or
greater than 18.00 X 25 if it is
18 inches or greater
in width and fits on a tire rim that is 25 inches or
greater in diameter.
3)
All tires that are not size 18.00 X 25 and larger at
01 ~0-03IO
17
the site shall be managed pursuant to the provisions of
35 Ill. Adm. Code 848.
b)
Financial Assurance Provisions.
The financial assurance
exemption for whole tires specified at Section 848.400(c) (4)
shall apply to Goodall Tires so long as less than 5000 used
or waste tires are stored at the site and less than 50 used
or waste tires have been disposed.
1)
The number of tires at the site for purposes of this
section,
shall be the actual number of the tires at the
site, rather than the passenger tire equivalent
specified in 848.303(c).
2)
This exemption does not apply if the number of tires at
the site exceeds 5000 or if more than 50 used or waste
tires have been disposed at the site.
3)
This exemption does not apply if the owner or operator
is found to have violated Section 55(a),
(b)
or
(c)
of
the Act more than once in any calendar year.
c)
Alternative Management Standards.
As part of the
contingency plan requirements of Section 848.203 C.J.
Goodall Tire Co.,
Inc.
shall:
1)
Within 90 days of the effective date of this adjusted
standard develop and implement a tire storage plan to
minimize the threat of fire and mosquito breeding.
Such a plan shall include, but is not to be limited to,
tire storage arrangements, aisle space, access to fire
fighting personnel and equipment and mosquito
inspection and control.
2)
Request and submit to the Agency a statement from the
Illinois Department of Public Health that the program
developed under subsection
(c) (1)
is adequate to
control mosquito larvae and pupae; except that,
if the
Department has not sent a statement within 45 days
after receipt of the request, such statement need not
be submitted and the Agency shall make such a
determination.
C.J. Goodall Tire Co.,
Inc. has the
burden of demonstrating that the threat of mosquito
breeding has been minimized.
Requests for such
statements of determination shall be sent to:
Division of Environmental Health
Office of Health Protection
Illinois Department of Public Health
525 W. Jefferson Street
Springfield, Illinois
62761
OR0-031
I
18
3)
Meet all requirements found in 35 Ill. Adm. Code
848.203.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1991,
ch.
ill 1/2,
par. 1041
(415 ILCS 5/41)
provides for
the appeal of final orders of the Board within 35 days.
The
rules of the Supreme Court of Illinois establish filing
requirements.
(But see also 35 Ill. Adm. Code 101.246, Motions
for Reconsideration,
and Castenada v. Illinois Human Rights
Commission
(1989),
132 Ill.2d 304,
547 N.E.2d 437.); Strube v.
Illinois Pollution Control Board, No.
3-92—0468,
slip op. at 4-5
(3d Dist. March 15,
1993).
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify~that the above opinion and order was
adopted
9fl the
~
day of
-~--~-‘
,
1993, by a
vote of
“~-O
/L~
~‘Dorothy M.
pt~1n,Clerk
Illinois Pql~utionControl Board
01 ~0-O3I2
