ILLINOIS POLLUTION CONTROL BOARD
August 15, 1996
FREDERICK COOPER LAMPS, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 96-158
(Permit Appeal - Air)
OPINION AND ORDER OF THE BOARD (by M. McFawn):
This matter is before the Board on a motion for summary judgment filed by petitioner
Frederick Cooper Lamps (FCL) on June 14, 1996. FCL seeks summary judgment on its
March 5, 1996 petition for review, wherein FCL sought review of a December 6, 1995
determination by the Illinois Environmental Protection Agency (Agency) which denied FCL’s
application for a permit to construct and operate a clear lacquer applicator and a curing oven.
The motion for summary judgment was accompanied by a joint motion for expedited
consideration. On June 27, 1996, the Agency filed a response to the motion for summary
judgment, asking that the Board deny FCL’s motion for summary judgment and dismiss the
petition for review.
In the joint motion for expedited consideration, the parties state that the sole remaining
issue in this case is whether the Agency correctly applied the metal furniture coating standard
at 35 Ill. Adm. Code 218.204(g) to FCL’s clear coating operations, or whether the Agency
should have instead applied the standard for miscellaneous metal parts and products found at
35 Ill. Adm. Code 218.204(j)(1). The parties state that resolution of this issue will therefore
resolve the permit appeal.
Summary judgment is appropriate where there are no genuine issues of material fact to
be considered by the trier of fact and the movant is entitled to judgment as a matter of law.
(Waste Management of Illinois, Inc. v. IEPA (July 21, 1994) PCB 94-153; ESG Watts v.
IEPA (August 13, 1992), PCB 92-54; Sherex Chemical v. IEPA (July 30, 1992), PCB 91-
202; Williams Adhesives, Inc. v. IEPA (August 22, 1991), PCB 91-112.) Because there are
no remaining genuine issues of material fact, we find that summary judgment is appropriate.
For the reasons set forth below, we deny FCL’s motion for summary judgment and grant
summary judgment in favor of the Agency.
BACKGROUND
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FCL is a manufacturer of residential lamps and “residential electric lighting fixtures,”
located at 2545 W. Diversey Avenue in Chicago, Illinois. FCL has been at this location since
1969, and has operated in Chicago since 1922. FCL currently employs approximately 175
people. As part of its operations, FCL applies surface coatings containing volatile organic
material (VOM) to a variety of substrates. The emissions at issue in the current appeal
concern the application of clear lacquer to brass and brass-plated zinc castings. The clear
lacquer is applied via spraying, and the coated pieces are cured in a curing oven. The pieces
are then assembled into a variety of residential lighting fixtures.
FCL submitted an application for a joint construction and operating permit for its clear
coating applicator and curing oven, which was received by the Agency on November 6, 1995.
(Ag. Rec. at 002.) The Agency denied FCL’s application by letter dated December 6, 1995.
The construction permit was denied because the equipment was constructed prior to issuance of
the requested permit. (Ag. Rec. Correspondence at 001.) The operating permit was denied on
the grounds that the clear metal lacquer failed to meet the VOM content for Metal Furniture
Coating at 35 Ill. Adm. Code 218.204(g). (Ag. Rec. Correspondence at 002.) Additionally,
the December 6, 1995 denial letter states that FCL failed to demonstrate compliance with
“Subpart F: Coating Operations” by failing to submit applicable coating analysis test methods
and procedures specified in Section 218.105(a); and failing to submit recordkeeping and
reporting requirements as specified in Section 218.211(c). (Id.)
Section 211.3710 defines metal furniture as:
[A] furniture piece including, but not limited to, tables chairs, waste baskets, beds,
desks, locker, benches, shelving, file cabinets, lamps, and room dividers made in
whole or in part of metal.
(35 Ill. Adm. Code 211.3710 (emphasis added).)
“Metal furniture coating” is defined at Section 211.3730, to include:
[A]ny protective, decorative or functional coating applied onto the surface of any metal
furniture or any metal part which will be assembled with other metal, wood, fabric,
plastic or glass parts to form metal furniture. . . .
(35 Ill. Adm. Code 211.3730.)
Since March 15, 1996, the standard applicable to metal furniture baked coatings
pursuant to 35 Ill. Adm. Code 218.204(g) has been 2.3 lb./gal. The clear lacquer used by
FCL has a VOM content of approximately 3.02 lb./gal. (based on formulation data) or 3.45
lb./gal. (based on 40 CFR Part 60, Method 24 analysis.) The parties agree that there is no
clear coating available which would enable FCL to comply with the 2.3 lb./gal. standard.
ARGUMENTS OF THE PARTIES
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In its motion for summary judgment, FCL argues that the Agency should have applied
the limitations for miscellaneous metal parts and products found at 35 Ill. Adm. Code
218.204(j) to its clear coating operations, rather than the standards for metal furniture found at
35 Ill. Adm. Code 218.204(g). For purposes of the limitations set forth in 35 Ill. Adm. Code
218, miscellaneous metal parts and products coating is defined as:
any protective, decorative or functional coating applied onto the surface of any metal
part or metal product, even if attached to or combined with a nonmetal part or product;
* * * *
b)
but not including the following coatings which are subject to separate
regulations: can coatings, coil coatings, metal furniture coatings, . . . .
(35 Ill. Adm. Code 211.3850 (emphasis added).)
Miscellaneous metal parts and products are defined at 35 Ill. Adm. Code 211.3830,
which provides:
“Miscellaneous metal parts and products” for the purposes of 35 Ill. Adm. Code
215.Subpart F, shall include farm machinery, garden machinery, small appliances,
commercial machinery, industrial machinery, fabricated metal products and any other
industrial category in which metal parts or products under the Standard Industrial
Classification (SIC) code for Major Groups 33, 34, 35, 36, 37, 38, or 39 are coated,
with the exception of the following: coating lines subject to 35 Ill. Adm. Code
215.204(a) through (i) and (k), architectural coatings, automobile or light-duty truck
refinishing, the exterior of marine vessels and the customized top coating of
automobiles and trucks if production is less than thirty-five vehicles per day.
(35 Ill. Adm. Code 211.3830.)
As both parties have stated, the miscellaneous metal parts category is a “catch-all”
category defined by exclusion, and one of the specific categories excluded is metal furniture.
Therefore, a product can only be a miscellaneous metal part if it is not metal furniture. As
described above, metal furniture is specifically defined to include lamps. Thus, if the products
FCL manufactures are lamps within the meaning of 35 Ill. Adm. Code 211.3710, then they
are metal furniture, and not miscellaneous metal parts. Conversely, if FCL’s products are not
metal furniture, they would fall into the catch-all category of miscellaneous metal parts and
products.
FCL attacks the Agency’s determination that its clear coating of brass and brass-plated
zinc castings constitutes metal furniture coating in two different ways: First, FCL argues that
its process is not metal furniture coating, since the rules for metal furniture coating do not
include a clear coating limitation. Second, FCL argues that the definition of metal furniture
necessarily requires defining “lamp” in a narrow fashion, and that its products are not “lamps”
within the meaning of that narrow definition.
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FCL’s Assertion That Metal Furniture Coating Does Not Include Clear Coating
In support of its contention that metal furniture coating does not include the clear
coating of its brass and brass-plated fixtures, FCL argues that the standard for metal furniture
coating does not cover clear coat applications. The limitations for metal furniture coating
contain limits based on air-dried or baked coatings, and FCL asserts that they only apply to
colored coatings. (Petitioner’s Memorandum in Support of Motion for Summary Judgment
(Pet. Mem.) at 6-8.) FCL asserts that, unlike the regulations for miscellaneous parts and
products, the regulations for metal furniture coating do not contain a limitation specifically
applicable to clear coats. FCL asserts that the “obvious” reason for this is that the Metal
Furniture Coating standard does not cover clear coat operations such as its coating of brass and
brass-plated zinc castings. (Pet. Mem. at 6.)
FCL also asserts that the coating limitations in Section 218.204 are intended to
constitute reasonably available control technology (RACT). RACT is defined as “the lowest
emission limitation that an emission unit is capable of meeting by the application of control
technology that is reasonably available considering technological and economic feasibility.”
(35 Ill. Adm. Code 211.5370.) FCL asserts that, since there are no clear coats available for
its operations with a VOM content less than the metal furniture standard, that standard cannot
be RACT for its operations. (Pet. Mem. at 7.)
FCL also points to the Control Technology Guidance (CTG) issued by the United
States Environmental Protection Agency (USEPA) for Metal Furniture Coating. FCL asserts
that the CTG only contemplates the use of colored coatings, since it classifies facilities on the
number of colors they can run at one time. FCL points out that the CTG does not specifically
include facilities applying clear coats in its discussions. FCL asserts that common sense shows
that clear coat operations are subject to the clear coat limitations for Miscellaneous Metal Parts
and Products, rather than the limitations for Metal Furniture. (Pet. Mem. at 7-8.)
The Agency asserts that the requirements of 35 Ill. Adm. Code 218.204(g) for metal
furniture coating apply to FCL’s clear coating operations since this rule applies generally to all
metal furniture coaters. The Agency asserts that, unlike other industry types, the requirements
applicable to metal furniture coaters are not separated into different classes by type of coating.
(Agency’s Response in Opposition to Petitioner’s Motion for Summary Judgment (Ag. Res.) at
6.) Rather, the limitations are based on the type of process; whether the coatings are air-dried
or baked. The Agency asserts that the coating rules set forth in Part 218 are inherently
substrate specific, and that the metal furniture requirements are not coating specific. (Ag.
Res. at 12.)
The Agency asserts that its position is supported by the CTG issued by USEPA. The
Agency asserts that the CTG does not offer any support for excluding clear coatings from the
RACT requirements. (Ag. Res. at 9.) The Agency points out that the CTG contemplates not
only the use of low VOM coatings as a control option, but also the use of higher solids or
water-based coatings, and the use of conventional control technologies, including carbon
adsorption, and catalytic and non-catalytic combustion. (Ag. Res. at 11-12.) The Agency
asserts that the CTG makes clear that the RACT requirements for the metal furniture industry
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are meant to apply to “any and all” surface coatings to metal furniture or metal parts
assembled into metal furniture. (Ag. Res. at 12.)
FCL’s Assertion That Its Coating Is Not Metal Furniture Coating
FCL also asserts that it is not appropriate to characterize its brass and brass-plated zinc
castings as metal furniture. While the definition of metal furniture includes the term “lamps,”
FCL asserts that its “residential electric lighting fixtures” are not lamps as that term is used in
the definition of metal furniture. (Pet. Mem. at 8-9.) In support of this, FCL argues that all
of the products specifically listed in the definition of metal furniture are products coated with
colored, rather than clear, coatings. (Pet. Mem. at 9.) In this context, and in the context of
the CTG’s asserted failure to address clear coats, FCL asserts that the term lamp must refer
only to those metal lamps which are capable of being coated with colored coatings.
FCL asserts that, besides the CTG, other USEPA documents show that its products are
not metal furniture. FCL asserts that the New Source Performance Standards (NSPS) for the
surface coating of metal furniture defines the metal furniture industry by SIC code, and that
the SIC code for its clear coating operations are not included in the list. Furthermore, FCL
argues that the USEPA document “Documentation for Developing the Initial Source Category
List,” prepared for use in the development of a maximum achievable control technology
(MACT) standard, omits any reference to lamps.
In response to FCL’s assertions that its “residential electric lighting fixtures” are not
lamps and that the definition was intended to exclude products under SIC code Major Group
36, the Agency points out that the metal furniture regulations, as well as the CTG, do not rely
on SIC codes. The Agency asserts that an SIC code analysis does not belong within the
existing RACT framework for metal furniture. (Ag. Res. at 13-14.) Furthermore, the Agency
states that almost all lamps, including residential, commercial, and industrial electric lighting
fixtures, are classified under SIC code Major Group 36. The Agency states that FCL’s
construction would therefore render the term “lamps” meaningless within the Part 211
definition. (Ag. Res. at 21.)
In its reply, FCL also points out that the Agency had treated a similar manufacturer of
brass lamps as subject to the limitations for miscellaneous metal parts manufacturers.
1
(Reply
Br. at 4.) FCL reasserts its position that the regulations that are intended to apply to clear coat
operations list separate emissions for clear coating operations, since clear coats must be treated
differently because of their VOM content. (Reply Br. at 5.) FCL also disputes the Agency’s
assertion that defining lamps so as to exclude its products would necessarily exclude all lamps
from regulation. FCL asserts that lamps that fall within the category of “metal household
1
FCL refers to the Stiffel Company, which has an adjusted standard petition pending before
the Board, docketed as In the Matter of Petition of Stiffel Company for Adjusted Standard
from 35 Ill. Adm. Code Part 218 Subpart F, AS 92-1. (
See
Reply Br. Exhibit A.) We note
that the record in that matter has not been made a part of this proceeding. We also note that
further proceedings in AS 92-1 have been stayed pending a determination in the case at bar.
(See July 2, 1996 Joint Status Report filed in AS 92-1.)
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furniture” (SIC code 2514) and “office furniture, except wood” (SIC code 2522) would still be
considered metal furniture. (Reply Br. at 6-7.)
DISCUSSION
In determining whether to apply the metal furniture standard or the miscellaneous metal
parts standard, we note that, as the parties have both stated, the miscellaneous metal parts
category is a catch-all category defined by exclusion, and one of the specific categories
excluded is metal furniture. Therefore, a product can only be a miscellaneous metal part if it
is not metal furniture. Metal furniture is specifically defined to include lamps. Thus, if the
products FCL manufactures are “lamps” within the meaning of 35 Ill. Adm. Code 211.3710,
then they are metal furniture, and not miscellaneous metal parts. Conversely, if FCL’s
products are not metal furniture, they would fall into the catch-all category of miscellaneous
metal parts and products.
We disagree with FCL’s assertion that because the metal furniture rules do not
specifically address clear coating, they do not apply to the clear coating of metal furniture, or
that metal furniture coating must necessarily exclude clear coating. The metal furniture
coating rules establish limitations based on the method of drying: whether the coating is air-
dried or oven-dried. These categories include within their terms the application of clear coats
to metal furniture, whether air-dried or oven-dried. As FCL has stated, its clear coats are
oven-dried. In fact, the permit which is the subject of this appeal is for the construction and
operation of a drying oven for FCL’s clear coating lines. As the Agency has stated, the metal
furniture coating limitations are substrate specific, not coating specific. Because the metal
coating rules do not refer to either colored or clear coating as separate categories, their terms
apply equally to both, and no distinction can be made on this basis. Similarly, while the CTG
does not specifically address the application of clear coats, its terms could apply equally well
to clear coats.
Similarly, we find that FCL’s attempt to distinguish its “residential electric lighting
fixtures” from the terms “lamps,” on the basis of whether a clear coating or a colored coating
is applied, is without merit. This is again an attempt to bootstrap into the rules a distinction
for which there is no basis, in order to achieve FCL’s desired outcome. While the term
“lamp” is not defined in the Act or regulations, the rules provide no basis for distinguishing
between color coated lamps and clear coated lamps, and there is no separate category for
“residential electric lighting fixtures.” Furthermore, we agree with the Agency that there is no
basis for including an SIC code analysis in this determination, since the rules do not
distinguish between categories of lamps on the basis of SIC code. Furthermore, the term
“lamp” is specifically included within the Illinois definition of metal furniture. FCL’s
reference to other sections of the Clean Air Act (CAA) wherein metal furniture is defined so as
to exclude lamps are therefore inapposite.
As stated above, RACT is defined as the lowest emission limitation that an emission
unit is capable of meeting by the application of control technology that is reasonably available,
considering technological and economic feasibility. (35 Ill. Adm. Code 211.5370.) The
RACT rules, including the limitations for metal furniture set forth in Section 218.204(g),
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establish limitations which are defined as constituting reasonably available control technology
for specific industries. At times, there are specific sources within the broad categories
established for which the established limitations are not reasonably achievable. For such
situations, the Act makes available site-specific relief, including site-specific rules, adjusted
standards, and, variances. It may be correct that there is no reasonably available control
technology which would enable FCL to comply with the emissions limitations for its clear
coating process. If this is true, FCL would be entitled to site-specific relief, such as an
adjusted standard. However, the record in this matter does not provide the Board with
sufficient information to make such a determination, nor is such a determination appropriate in
the context of a permit appeal.
CONCLUSION
For the reasons set forth above, we find that the rules for metal furniture coating are
applicable to the clear coating of metal furniture. We also find that FCL’s residential electric
lighting fixtures constitute “lamps” as that term is used in the definition of metal furniture at
35 Ill. Adm. Code 211.3710. We therefore conclude that FCL’s clear coating of brass and
brass-plated zinc castings is subject to the limitations for metal furniture coating set forth at 35
Ill. Adm. Code 218.204(g). Because this is the sole issue of dispute between the parties, we
deny FCL’s motion for summary judgment, and grant summary judgment in favor of the
Agency.
This opinion constitutes the Board’s findings of fact and conclusions of law in this
matter.
ORDER
The December 6, 1995 determination by the Illinois Environmental Protection Agency
which denied Frederick Cooper Lamps application for a permit to construct and operate a clear
lacquer applicator and a curing oven is hereby affirmed, and this docket is closed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1994)) 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 M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the _____ day of ___________, 1996, by a vote
of ______________.
___________________________________
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Dorothy M. Gunn, Clerk
Illinois Pollution Control Board