ILLINOIS POLLUTION CONTROL BOARD
June
4,
1992
GENERAL
MOTORS CORP.,
Petitioner,
)
v.
)
PCB 88—193
)
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
STEVEN J. LEMON and JAMES RUSSELL of WINSTON
&
STRAWN
APPEARED ON BEHALF OF THE PETITIONER;
PENNI LIVINGSTON, ASSISTANT COUNSEL, APPEARED ON BEHALF OF
THE RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by B.
Forcade):
This matter is before the Board on a petition for variance
filed November 30,
1988, by General Motors
(GM).
The petition
seeks a variance from the emission limits for carbon monoxide
from cupolas as specified in 35 Ill. Adm.
Code 216.381.
Section
216.381 limits the concentration of carbon monoxide in gases
emitted from cupolas to 200 parts per million
(ppm).
The
variance is requested for GM’s Central Foundry Division in
Danville, Illinois.
An amended petition was filed by GM on June
1,
1989.
Hearings were held on March
2,
1990,
and June 24,
1991,
in Danville, Illinois.
The Environmental Protection Agency
(Agency)
filed its recommendation on July 11,
1990.
GM filed a
post hearing brief on August
7,
1991.
BACKGROUND
GM operates an iron foundry in Danville, Vermilion County,
Illinois, manufacturing iron castings for the automotive industry
including brake drums, bearing caps, differential carriers, water
pumps and brake rotors.
(Pet. at 1.)
The foundry is located
approximately 1.5 miles from downtown Danville,
in an area that
is predominately agricultural, with some residential sections.
(Tr.
B’ at 18.)
Vermillion County has been designated by U.S.
EPA as either an attainment area or “unclassified” for carbon
monoxide.
(Tr.
B at 18.)
See 40 CFR 81.314
(1990).
General Motors contributed more than $80.7 million to the
Danville—area economy in 1990.
(Tr.
B at 17.)
In 1990, the
~
Tr. A references the March
2,
1990 transcript.
Tr.
B
references the June 24,
1991 transcript.
13
4—0
1
2
average number of employees on GM’S payroll at Danville was 1323.
The foundry produces ~91 tons per day of iron castings.
(Tr.
B at 18.)
Divisions of G?~account for 94
of the sales while the
rest is sold to other automotive manufacturers such as Ford and
Chrysler.
(Tr. B at 22)
GM presently is using two cupolas
(Cupola #2 and #3)
in its foundry operation.
(Tr. B at 18.)
A
cupola
is a vertical shaft furnace which is fed or “charged” with
layers of metallics, coke and limestone
(as flux).
(Tr. B at 24.)
The shaft is 120 feet tall and up to 132 inches in diameter.
(Tr.
B at 24.)
Cupola melting is used by GM to melt scrap metal.
(Tr.
B at 23.)
Approximately 220,000 tons of scrap metal are remelted
and made into castings each year.
(Tr. B at 23.)
Typical cupola exhaust gasses can contain 13 to 27 percent
carbon monoxide.
(Tr. B at 27.)
This is the equivalent of
130,000 to 270,000 ppm.
(Tr. B at 27.)
In a cupola, high carbon
monoxide levels and specific carbon dioxide ratios are important
to the metallurgical properties of the iron.
(Tr. B at 27.)
These levels can be minimized by proper selection of fuels,
charge material and by major facility changes but cannot be
eliminated.
(Tr. B at 27.)
In July of 1988,
emissions tests of the cupolas showed
carbon monoxide emissions from both cupolas were in excess of 200
ppm.
(Tr.
B at 29.)
Carbon monoxide was present at a
concentration of 8,317 ppm for Cupola #3 and 4,563 ppm for Cupola
#2.
(Tr. B at 29.)
Subsequent test showed carbon monoxide
concentrations as high as 16,053 ppm for Cupola #3.
(Tr. B at
29.)
As a result of these tests, GM initiated an aggressive plan
to modify the system beyond the state-of-the art contemplated by
the regulations.
(Tr. B at 30.)
In November 1988, GM filed this
variance in order to continue the operation of the foundry while
it implemented corrective action to reduce the concentration of
carbon monoxide in its emissions.
(Tr. B at 36.)
In a petition for variance the petitioner’s burden of proof
is to establish that denial of the variance would cause an
arbitrary and unreasonable hardship.
(Section 35(a)
of the Act.)
To establish arbitrary and unreasonable hardship the petitioner
must prove that the economic hardship resulting from a denial of
the variance would outweigh the injury to the public from a grant
of the petition.
(Caterpillar Tractor Co.
v.
Ill. Pollution
Control Board
(3rd Dist.
1977),
48 Ill. App.
3d 655,
363 N.E.2d
419.)
The Agency believes that GM has met the burden of proof and
recommends that the variance be granted.
To determine if the
variance should be granted the Board will look at the following
topics:
compliance plan, hardship, environmental impact and
consistency with federal
law.
134—02
3
COMPLIANCE
PLAN
Included with the variance petition was a compliance plan
describing various activities to bring the emissions within
compliance.
(Tr. B at 36.)
In June of 1989, GM filed an amended
petition to provide a more recent, and thorough, compliance plan.
(Tr. B at 37.)
GM has completed the compliance plan submitted
with the original and amended petitions.
(Tr. B at 39.)
While
these modifications have significantly reduced emissions,
compliance has not been achieved.
(Tr. B at 39.)
Emissions have
dropped from a high of approximately 18,000 ppm to below 2,000
ppm.
(Tr. B at 39.)
A consultant to GM suggested two additional modifications
that could be made to the cupola operation to reduce emissions.
(Tr. B at 40.)
The first suggestion was to pull more air through
the system and the second was to replace both cupolas and the
fume control system.
(Tr. B at 40.)
The estimated cost of these
modifications were $8.2 million and $52 million.
(Tr. B at 40.)
The consultant could not guarantee that these modifications would
result in compliance with the 200 ppm carbon monoxide standard.
(Tr. B at 40.)
GM does not consider these alternatives economically
feasible and believes that a rule change is the best alternative
to achieve compliance.
(Tr. A at 12.)
GM is presently pursuing a
site—specific rule to change the emission limits for carbon
monoxide in Vermilion County in R90-23,
In the Matter of:
General Motors Corporation Site—Specific Exception to 35
Ill.
Adm. Code 216.381 for Ferrous Foundries in Vermilion County.
A variance by its nature is a temporary reprieve from
compliance with the Board’s regulations.
(Monsanto Co.
v.
IPCB
(1977),
67 Ill.2d 276,
367 N.E.2d 684.)
A variance petitioner
accordingly is required,
as a condition to grant of variance, to
commit to a plan that is reasonably calculated to achieve
compliance within the term of the variance.
(City of Mendota v.
IPCB (3d Dist.
1987),
161 Ill. App.
3d 203,
514 N.E.2d 218.)
The filing of a proposal for site-specific relief
is not
a
compliance plan,
since it is a matter of speculation whether such
regulatory relief may be granted.
(Citizens Utilities Company of
Illinois
v. IPCB et al.
(3rd Dist.
1985),
134 Ill.
App.
3d 111,
479 N.E.2d 1213.)
The pendency of a rulemaking does not stand
by itself as grounds for grant of a variance.
(Section 35(a)
of
the Act; Citizens Utilities Company of Illinois v. IPCB,
supra;
City of Lockport
v. IEPA (September 11,
1986), PCB 85—50,
72 PCB
256,
260; General Motors Corporation. Electro—Motive Division v.
IEPA (February 19,
1987), PCB 86—195,
76 PCB 54,
58; Alton
Packaging Corp.
v.
IEPA (February 25,
1988), PCB 83-49,
86 PCB
289,
299.)
The Board has held that difficulty in maintaining
134—03
4
compliance and uncertainty of success in achieving, continued
compliance are insufficient grounds for grant of a variance.
(Marathon Oil Co. v. IEPA (January 9,
1992), PCB 91—173, ___PCB
However, the Board has found that in some exceptional
circumstances variance may be granted even though ~titioner
does
not have a final compliance plan.
Included have
bee~a
the
circumstance where technology for compliance did ni~texist,
and
petitioner sought the time provided under
the
variance to search
for new technologies
(e.g.,
Mobil Oil
V.
IEPA
(Sept.. 20,
1984,
60
PCB 99; IPC. Clinton Plant v.
IEPA (May 22,
1989), PCB 88—97,
100
PCB 181); where additional time was necessary for
at proper
assessment of environmental impact
(e.g., Amerock v~.IEPA (Nov.
11,
1985), PCB 84—62,
66 PCB 411; Zeigler Coal v. IEPA (Aug.
22,
1991), PCB 91-12,
slip op.);
or where the term of
the
variance
was of an exceptionally short duration
(e.g. Generad Motors
—
Electromotive Division v.
IEPA (February 19, 1987)~,PCB 86-195,
576 PCB 59.)
Moreover,
in each of these exceptional
circumstances the Board has required assurance, coim~onlythrough
conditions attached to the grant of variance, that ~~egative
environmental impact during the term of the variance
be
minimal
and temporary.
The Board finds that exceptional circumstances exist.
While
GM presently does not have a compliance plan, they have
instituted the compliance plan submitted in the original petition
and modified in the amended petition.
GM believed~that these
modifications would bring the emissions within thea limits.
However,
after making the modifications, the emiss~ionswere
reduced but still exceeded the limitation.
Additi~alresearch
and testing would be required to obtain the techno.køgy that is
economically feasible to reduce the emissions from: GM’s cupola to
meet the 200 ppm standard.
GM has sought to achie~iecompliance
throughout this proceeding.
HARDSHIP
GM is claiming hardship because it has exerted every
reasonable effort to bring the emissions of carbom zonoxide from
its cupolas in Danville into compliance.
GM has expended
$421,500 in attempts to achieve compliance.
(Tr. E~at
39.)
The
costs of additional modifications to the cupolas atre between $8
million and $52 million with no assurance of the resulting
reduction in emission of carbon monoxide.
ENVIRONMENTAL
IMPACT
General
Motors
retained
a
consultant to perform computer
modeling
of
the
carbon
monoxide
emissions
from
the
cupolas.
(Tr.
134—04
5
B at 42.)
Based on this modeling, GM believes that the ambient
air in Danville, given a worst case scenario,
will not be
adversely affected by the emissions from the cupolas.
(Tr. B at
42.)
Assuming worst—case conditions, the tests showed that
National Ambient Air Quality Standards would not be exceeded.
(Tr. B at 43.)
CONSISTENCY WITH FEDERAL
LAW
GM contends that the issuance of a variance would not be
inconsistent with federal law, because there is no adverse
environmental impact.
(Tr. B at 47.)
CONCLUSION
The Board finds that GM has presented adequate proof that
immediate compliance with Section 216.381 of the Board’s rules
and regulations would impose an arbitrary or unreasonable
hardship on GM.
The hardship that would result from the denial
of the variance outweighs any injury to the public that would
result from granting the variance.
GM has diligently sought to
obtain compliance with the regulation.
While GM has reduced its
emission of carbon monoxide it has not achieved compliance.
Additional measures to reduce emissions are not economically
feasible.
The grant of the variance will not have an adverse
impact on the environment.
Therefore, the Board will grant the
variance.
Section 36(b)
of the Act
(Ill. Rev. Stat.
1989,
ch.
111 1/2
par.
1036(b))
limits the length of the variance for a five year
period.
Therefore,
the Board cannot grant the variance to be
operative until the conclusion of the site—specific rulemaking.
The Board will grant the variance for a period of five years or
until the completion of the site-specific rulemaking whichever is
earlier.
As a general rule,
in the absence of unusual or
extraordinary circumstances, the Board renders variances as
effective on the date of the Board order in which they issue.
(LCN Closers,
Inc.
v. EPA (July 27,
1989), PCB 89—27,
101 PCB
283,
286; Borden Chemical Co.
v. EPA
(Dec.
5,
1985), PCB 82—82,
67 PCB 3,6; City of Farinington v. EPA
(Feb.
20,
1985), PCB
84—166,
63 PCB 97, 98; Hansen—Sterling Drum Co.
v. EPA
(Jan.
24,
1985), PCB 83—240,
62 PCB 387,
389
; Village of Sauget v.
EPA
(Dec.
15, 1983), PCB 83—146,
55 PCB 255,
258
; Olin Corp.
v. EPA (Aug 30,
1983), PCB 83—102,
53 PCB 289,
291.)
A variance
is not retroactive as a matter of law, and the Board does not
grant variance retroactivity unless retroactive relief is
specially justified.
(Deere
& Co.
v. EPA
(Sept.
8,
1988), PCB
88—22,
92 PCB 91,
94
(citations omitted).)
134—05
6
Absent a waiver of the statutory due date,
Section 38(a)
of
the Environmental Protection Act requires the Board to render
a
decision on a variance within 120 days of the filing of a
petition.
(See Ill. Rev.
Stat.
1989 ch.
111 1/2,
par.
1038(a)
(amended from 90 days’ by P.A.
84-1320, effective Sept.
4,
1986).)
A principal consideration in the granting of retroactive
relief
is a showing that the petitioner has diligently sought
relief and has made good faith efforts at achieving compliance.
(Deere
& Co.
v. EPA (Sept.
8,
1988), PCB 88-22,
92 PCB 91,
94
(citations omitted).)
GM has diligently sought relief, by
implementing the compliance plan,
conducting studies of the
problem, applying for a variance and submitting a site-specific
rulemaking proposal.
Therefore, the Board will grant the variance for a five year
period beginning on March 31,
1989.
The March date is 120 days
after the filing of GM’S original petition (November 30,
1990).
This date was chosen instead of the date of the amended petition,
because the amended petition was essentially an updated
compliance plan based on studies that were performed since the
initial filing of the petition.
This variance begins March 31,
1989 and will expire on March 31,
1994.
Finally, the Board notes that the conclusions it reaches
based upon the record of this variance proceeding do not
necessarily reflect on the merits of GM’S site-specific
rulemaking proposal, currently pending before the Board in R90-
23.
The burdens of proof and the standards of review in a
rulemaking
(a quasi—legislative action) and a variance proceeding
(a quasi-judicial action) are distinctly different.
~
Titles
VII and IX of the Act; see also Willowbrook Development v.
Pollution Control Board
(2d Dist.
1981),
92
Ill. App.
3d 1074,
416 N.E.2d 385.)
The Board cannot lawfully prejudge the outcome
of a pending regulatory proposal in considering a petition for
variance.
(City of Casey v. IEPA (May 14,
1981), PCB 81—16,
41
PCB 427,
428.)
This opinion constitutes the Board’s findings~offacts and
conclusions of law in this matter.
ORDER
General Motors Corporation
(GM)
is hereby granted a variance
from the emission standards for carbon monoxide from cupolas
specified in 35 Ill. Adm. Code 216.381.
This variance applies to
GM’S Central Foundry Division Plant located in Danville,
Vermilion County, Illinois, and is subject to the following
conditions:
134—06
7
1.
This variance begins onMarch 31,
1989, and expires on
the earlier of:
March 31,
1994, or the date of final
action or any grant of GM’s requested site—specific
rule,
currently pending before the Board in R90-23.
2.
During the period of the variance the emission of
carbon monoxide shall not exceed 2,000 ppm.
3.
Within forty-five days of the date of this order,
General Motors Corp., shall execute and forward to:
Division of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19276
2200 Churchill Road
Springfield, Illinois 62794—9276
a certificate of acceptance and agreement to be bound
to all terms and conditions of the granted variance.
The 45-day period shall be held in abeyance during any
period that this matter is appealed.
Failure to
execute and forward the certificate within 45-days
renders this variance void.
The form of certificate is
as follows.
Certificate of Acceptance
I
(We),
hereby accept and agree to be bound by all terms and conditions
of the order of the Pollution Control Board
in PCB 88-193, June
4,
1992,
Petitioner
Authorized Agent
Title
Date
IT
IS
SO
ORDERED.
134—07
8
Section 41 of the Environmental Protection Act
(Ill.~Rev.
Stat.
1989 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.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certif
that the ab ye opinion and order wats
adopted on the
~-‘
day of
_______________,
1992, by a vote
of
7-O.’
V
Dorothy N. Q~nn,Clerk
Illinois P~i~ution
Contro’l Board
134—08