ILLINOIS POLLUTION CONTROL BOARD
February 16,
1995
THE UNO-VEN COMPANY,
Petitioner,
v.
)
PCB 94—282
)
(Variance
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
KIRK N. NINCKLER OF SONNENSCHEIN, MATH & ROSENTHAL APPEARED ON
BEHALF OF PETITIONER;
BONNIE R. SAWYER APPEARED ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by R.C. Flemal):
This matter conies before the Board upon a petition for
variance filed by The UNO—VEN Company
(UNO-VEN) on October 4,
1994.
UNO—VEN seeks variance from the Stage II vapor recovery
(Stage II) compliance date of November 1,
1994 found at 35 Iii.
Adm.
Code 218.586(d) (3).
The term of the requested variance is
from November 1,
1994 to July 1,
1995.
The Board’s responsibility in this matter arises from the
Environmental Protection Act
(Act)
(415 ILCS 5/1 et seq.
(1992).)
The Board is charged there with the responsibility of granting
variance from Board regulations whenever it is found that
compliance with the regulations would impose an arbitrary or
unreasonable hardship upon the petitioner.
(415 ILCS 5/35(a).)
The Illinois Environmental Protection Agency
(Agency)
is required
to appear in hearings on variance petitions.
(415 ILCS 5/4(f).)
The Agency is also charged,
among other matters, with the
responsibility of investigating each variance petition and making
a recommendation to the Board as to the disposition of the
petition.
(415 ILCS 5/37(a).)
The Agency filed its variance recommendation
(Rec.)
on
November 17,
1994.
The Agency recommends grant of the variance
with conditions.
Hearing was held on January 18,
1995 before hearing officer
June C.
Edvenson.
UNO-VEN presented the testimony of Gail Ann
Bordy, Retail Sales Manager for The UNO-VEN Company.
The Agency
presented testimony of Terry A.
Sweitzer, Manager of the Agency’s
Air Monitoring Section and Administrator of the Illinois Stage II
Vapor Recovery Program.
—2—
As presented below,
the Board finds that UNO-VEN has met its
burden of demonstrating that immediate compliance with 35 Iii.
Adni. Code 218.586(d) (3) would impose an arbitrary or unreasonable
hardship.
Accordingly, the variance request will be granted
subject to conditions as discussed below.
BACKGROUND
UNO-VEN is an Illinois general partnership that owns twenty-
three service stations in Illinois.
(Petition at p.
2.)
All but
one of these stations is in compliance with the Stage II
requirements.
(Rec.
at ¶6.)
That one station, which is the
subject matter of the instant variance request,
is located at One
Roosevelt Road, Villa Park,
Illinois.
UNO-VEN intends to
reconstruct the Villa Park facility,
and requests that
installation of Stage II vapor recovery equipment not be required
prior to the reconstruction.
35 Ill. Adm.
Code 218.586 establishes air emission control
requirements applicable to motor vehicle fueling operations
(NVFO)
located in the Chicago ozone nonattainment area.
The
purpose of the requirements is to limit emissions of gasoline
vapors into the air.
Gasoline vapors are volatile organic
materials
(VOM) that contribute to the formation of ozone in the
lower atmosphere.
Limiting emissions of VON is one of the
methods for controlling unwanted ozone formation.
Among the NVFO regulations is a requirement that certain
NVFOs
install Stage II vapor recovery equipment no later than
November 1,
1994.
(Section 218.586(d) (3).)
It is uncontested
that this provision applies to UNO-VEN’s Villa Park facility.
Stage II vapor recovery equipment is designed to capture
VOM emissions during the fueling of vehicle tanks.
The emissions
consist of gasoline vapors displaced from the motor vehicle tank
by dispensed liquid gasoline as the tank is filled.
The Stage II
equipment captures vapors that exit the vehicle’s fuel fillpipe,
thereby preventing the escape of the vapors into the atmosphere.
The captured vapors flow through a vapor passage in the fuel pump
nozzle into a vapor hose and then through vapor lines to the
underground storage tank.
HARDSHIP
AND
ENVIRONMENTAL IMPACT
UNO-VEN contends that requiring immediate installation of
the Stage II equipment would cause a financial hardship.
UNO-VEN
has entered into a pre—annexation agreement
(see Attachment to
Petition) with officials of the Village of Villa Park and the
City of Oakbrook Terrace.
Under the terms of that agreement,
UNO-VEN will close the facility at issue.
The existing station
will then be razed and a new station will be rebuilt at the
—3—
facility as part of a City of Oakbrook Terrace development.
(Petition at p.
3.)
Closing of the existing station will occur
no later than April
1,
1995.
UNO—VEN contends that installing Stage II equipment prior to
the closing and razing of the existing station would cause
UNO-
VEN to lose its total investment in that Stage II system.
(Petition at p.
4.)
UNO-VEN estimates the cost of the Stage II
system to be $55,000.
(~.)
The Agency agrees with this cost
estimate.
(Rec.
at ¶13.)
UNO—VEN contends that the environmental harm that would be
occasioned by delaying installation of the Stage II equipment
would be not significant.
(Petition at p.
4-5.)
UNO—VEN notes
that facility will be closed before the beginning of the 1995
ozone season
.
(~4.)
The Agency observes that if the Villa Park facility is
closed on April
1,
1995 and only reopened after Stage II
equipment is installed, the environmental impact resulting from
granting this variance should be relatively insignificant.
(Rec.
at ¶12.)
The Agency also observes that because there would be no
VOM emissions during the ozone season, attainment of the National
Ambient Air Quality Standard for ozone in the Chicago area should
not be notably hampered by grant of the variance.
(Rec.
at ¶16.)
CERTIFICATE OF ACCEPTANCE
The Agency requests, should the Board grant the instant
variance, that the Board use a new form of the certificate of
acceptance.
(Rec. at ¶19D.)
The Board believes that this
request provides the opportunity for the Board to address general
matters regarding the certificate of acceptance.
Use of the certificate of acceptance as a standard element
in the issuance of a variance arose in response to the appellate
court’s decision in Citizens Utilities Company v. IPCB (1972,
9
Ill.App.
3d 158,
289 N.E.2d 642).
The court noted that when the
Board issues a variance,
it may statutorily impose such
conditions as policies of the Act may require.
The court also
noted, however, that the conditions only attach to grant of
variance, and are not bindinci until the petitioner accepts the
variance upon the terms imposed.
The certificate of acceptance
was thereafter adopted by the Board,
in cooperation with the
Agency, as the accepted method of documenting that the petitioner
accepted and agreed to be bound by the terms of the variance.
The ozone season is defined by the United States
Environmental Protection Agency as the annual period from April
1
through October 31.
—4—
Over time, various “tunings” of the form and function of the
certificate of acceptance have been undertaken.
Among functional
tunings has been placement by the Board of instructions regarding
petitioner’s execution of the certificate of acceptance outside
the body of the variance order.
At times in the past
instructions on executing the certificate of acceptance have been
inserted as an actual condition of the grant of variance2.
This
latter practice was objectional because, whereas compliance with
the conditions
(terms)
of the variance is necessary as a matter
of law once the variance is accepted, agreement to be bound by
the terms of the variance is optional.
It is therefore
inappropriate to list the certificate of acceptance as a
condition (term)
of the Board’s grant of a variance.
In its instant variance recommendation the Agency suggests
not only that the Board issue a full order with conditions,
but
that the Board repeat the full language of that order within the
body of the certificate of acceptance.
(Rec.
at ¶20 and Exhibit
1; Tr. at p.
17-18.)
The Board declines the suggestion of
repeating the variance language within the certificate of
acceptance.
A Board order is enforceable on its own.
Attempting
to repeat the language of the order in a second document presents
the opportunity for a separate, conflicting statement of the
Board order.
It is a risk that is unnecessary and unwise to
assume.
CONCLUSION
The Board agrees with the Agency that UNO-VEN has
demonstrated that immediate installation of the Stage II
equipment would constitute a hardship for UNO-VEN.
The Board
also finds that, so long as the installation is undertaken
expeditiously, the accumulated environmental harm will be small
and that the hardship thereby rises to the level of arbitrary or
unreasonable hardship.
On this basis,
the Board will grant the
requested relief with conditions.
The principal conditions are that UNO-VEN will close its
Villa Park facility on or before April
1,
1995, and that it will
not reopen the station to dispense gasoline until Stage II vapor
recovery equipment is operational.
These conditions have been
requested by the Agency
(Rec. at ¶19), and agreed to by UNO-VEN
(Tr. at 11—12).
The Board finds that these conditions are
necessary.
There are two additional issues regarding the term of the
variance.
As regards the start of the variance, the Board notes
2
Agency variance recommendations,
including the
recommendation in the instant matter, still often follow this
older practice.
—5—
that it is well established practice that the term of a variance
begins on the date the Board renders its decision, unless unusual
or extraordinary circumstances are shown.
(See,
e.g.,
DM1,
Inc.
v.
IEPA,
PCB 90—227,
128 PCB 245—249, December 19,
1991.)
Here
UNO-VEN requests that start of the variance be retroactive to
November
1,
1994.
In view of UNO-VEN’s good record of achieving
compliance at its other facilities, the unique conditions at the
Villa Park facility, and absence of emissions during the ozone
season, the Board finds that the instant circumstances are
sufficiently unusual to warrant the short retroactive start of
the variance requested by UNO-VEN and recommended by the Agency.
As regards the termination of the variance, the Board notes
that UNO-VEN initially requested that the variance extend to July
1,
1995 (Petition at p.
2.)
subsequently UNO-VEN has accepted
the Agency’s recommendation that the variance be for five months
and that UNO—VEN not reopen the facility after April
1,
1995
unless Stage II equipment has been installed.
(Tr. at p.
11-12.)
Under these circumstances, the Board believes that the variance
itself need not extend beyond April
1,
1995.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The UNO-VEN Company is hereby granted variance from 35 Ill.
Adm. Code 218.586 for its facility located at One Roosevelt Road,
Villa Park,
Illinois, subject to the following conditions:
1)
The term of the variance is for the five-
month period from November 1,
1994 to April
1,
1995.
2)
UNO-VEN shall close the facility at issue on
or before April
1,
1995.
UNO-VEN may not
reopen the facility for the purposes of
dispensing gasoline until Stage II vapor
recovery equipment is installed and
operational.
3)
In the event that UNO-VEN is unable to pursue
the reconstruction plans outlined in its
petition in this matter, UNO-VEN shall
install Stage II vapor recovery equipment at
the facility in question within 30 days of
the abandonment of the reconstruction plans,
and in no case may UNO—VEN dispense gasoline
after April
1,
1995 unless the Stage II vapor
recovery equipment has been installed and is
operational.
—6—
4)
Petitioner shall notify the Illinois
Environmental Protection Agency of the
installation of any Stage II vapor recovery
with 14 days of the installation.
Notice
must include the address of the facility and
be by letter posted to:
Mr. Terry Sweitzer,
P.E.
Manager, Air Monitoring Section
Illinois Environmental Protection Agency
Division of Air Pollution Control
P.O. Box 19726
Springfield, Illinois
62794—9276
IT IS SO ORDERED.
If petitioner chooses to accept this variance subject to the
above order, within 45 days of the date of this order petitioner
shall execute and forward to:
Bonnie R.
Sawyer
Division of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19726
Springfield, Illinois
62794—9276
a Certification of Acceptance and Agreement to be bound to all
terms and conditions of this variance.
The 45—day period shall
be held in abeyance during any period that this matter is being
appealed.
Failure to execute and forward the Certificate within
45 days renders this variance void and of no force and effect as
a shield against enforcement of rules from which variance was
granted.
The form of said Certification is as follows:
CERTIFICATION
I
(We),
hereby accept and agree to be bound by all terms and conditions
of the order of the Pollution Control Board in PCB 94—282,
February 16,
1995.
Petitioner
Authorized Agent
Title
—7—
Date
Section 41 of the Environmental Protection Act (415 ILCS
5/41
(1992))
provides for the appeal of final Board orders within
35 days of the date of service of this order.
The Rules of the
Supreme Court of Illinois establish filing requirements.
(See
also 35 Ill.Adm.Code 101.246 “Motions for Reconsideration”.)
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi,,fy that the above opinion and order was
adopted on the
/~
day of
____________________,
1995 by a
vote of
7’—
e
.2
Dorothy M.,/ç~unn,Clerk
Illinois ~ç’i..iution
Control Board