ILLINOIS POLLUTION CONTROL BOARD
February 16,
1995
ENRO
MARKETING
COMPANY
)
(Nonee Facility),
)
Petitioner,
v.
)
PCB 94—322
)
(Variance
-
Air)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
JOSE L. GONZALEZ 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 comes before the Board upon a petition for
variance filed by Emro Marketing Company
(Emro)
on November 4,
1994.
Emro seeks variance from the Stage II vapor recovery
(Stage II) compliance date of November
1,
1994 found at 35 Ill.
Adm.
Code 218.586(d)(3).
The facility at issue is located at
6002 Monee/Manhattan Road, Monee,
Illinois.
The term of the
requested variance is from November 1,
1994 to April
1,
19951.
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
January 9,
1995.
The Agency recommends grant of the variance
with conditions.
Emro agrees to accept the conditions
recommended by the Agency.
(Tr. at p.
6.)
1
Eniro originally requested that the variance extend until
August
1,
1995.
(Pet. at ¶1.)
At hearing Emro acceded to the
Agency’s recommendation that the variance extend only until April
1,
1995.
(Tr.
at p.
6.)
—2—
Hearing was held on January 23,
1995 in Monee,
Illinois,
before hearing officer Deborah L.
Frank.
Emro presented the
testimony of Ronald
G.
Schumann, Manager of Environmental and
Maintenance for Eniro’s Western Area.
The Agency presented the
testimony of Terry A. Sweitzer, Manager of the Agency’s Air
Monitoring Section and Administrator of the Illinois Stage II
Vapor Recovery Program.
No members of the public attended the
hearing.
As presented below,
the Board finds that Emro has met its
burden of demonstrating that immediate compliance with the
regulation at issue would impose an arbitrary or unreasonable
hardship.
Accordingly, the variance request will be granted,
subject to conditions as discussed below.
BACKGROUND
35 Ill.
Adni.
Code 218.586 establishes air emission control
requirements applicable to motor vehicle fueling operations
(MVFO)
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 VOM is one of the
methods for controlling unwanted ozone formation.
Among the MVFO regulations is a requirement that certain
MVFO5 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 Emro’s Monee 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 filipipe,
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.
Emro operates 176 retail NVFOs in Illinois.
One of these is
the existing Monee facility.
(Pet.
at ¶7.)
However,
Entro
intends to close this existing facility and reconstruct a new
facility at the same site.
(Tr. at p.
13.)
The reconstruction
has begun,
and is anticipated to continue into the 1995
construction season.
(u.)
Emro contends that requiring
installation of Stage
II equipment prior to the reconstruction
would constitute an arbitrary or unreasonable hardship, and hence
that variance should be granted.
—3—
HARDSHIP
AND
ENVIRONMENTAL
IMPACT
Emro contends that requiring installation of the Stage II
equipment prior to reconstruction of the Monee facility would
lead to a financial hardship.
The reconstruction will include
removal and replacement some of the existing storage and
dispensing equipment,
including Stage II equipment.
(Tr. at p.
16-17.)
Emro estimates that the cost of Stage II equipment for
the Monee facility is approximately $35,000.
(Pet.
at ¶10.)
If
installed prior to reconstruction, some of this Stage II
equipment will, have to be dismantled and removed during the
reconstruction.
Emro estimates the cost of the work and
materials thus “~.tasted”during this short—term installation
period to be $30,000.
(~ Tr. at
p.
15.)
The Agency agrees
with this analysis.
(Tr. at
p.
25.)
Emro contends that there are no control measures that could
be temporarily imposed that would achieve immediate compliance in
a manner less costly than Stage II implementation.
(Pet.
at ¶13;
Tr. at p.
17.’)
Emro contends that the environmental harm that would be
occasioned by delaying installation of the Stage II equipment
would not be significant.
(Petition at ¶8,
12.)
Emro also
agrees to cease dispensing gasoline at the Monee facility on or
before April
1,
1995,
(Tr. at p.
14); therefore Emro would not be
operating the facility during any of the 1995 ozone season2.
The Agency observes .that if the Monee facility is closed on
or before April
1,
1995 and only reopened after Stage II
equipment is installed, the environmental impact resulting from
granting this variance should be minimal.
(Rec.
at ¶14.)
The
Agency also observes that because there would be no uncontrolled
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 ¶17.)
The Agency,
in sum, believes that Eniro has demonstrated
arbitrary or unreasonable hardship, and that the variance should
therefore be granted subject to conditions that limit
uncontrolled emissions during the ozone season.
(Tr. at p.
25.)
CONCLUSION
The Board agrees with the Agency that Einro has demonstrated
that immediate installation of the Stage II equipment would
constitute a hardship for
Eniro.
The Board also finds that,
so
2
The ozone season is defined by the United States
Environmental Protection Agency as the annual period from April
1
through October 31.
—4—
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 Emro will close its Monee
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
(Réc.
at ¶19), and agreed to by Emro
(Tr.
at 6).
The Board finds that these conditions are necessary.
As regards the beginning date for the variance, the Board
notes 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 Emro requests that start of the variance be
retroactive to November 1,
1994.
Given the absence of
uncontrolled 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
Emro and recommended by the Agency.
Lastly, the Board notes that the Agency requests that the
Board use a form of the certificate of acceptance that is
different from the traditional certificate.
The Board declines
this request for reasons addressed in a separate order of this
date.
(See The UNO-VEN ComPany v.
IEPA,
PCB 94-282, slip op.
February 16,
1995.)
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Eniro Marketing Company is hereby granted variance from 35
Ill.
Adni. Code 218.586 for its facility located at 6002
Monee/Manhattan Road, Nonee,
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)
Emro shall close the facility at issue on or
before April
1,
1995.
Emro may not reopen
the facility for the purposes of dispensing
gasoline until Stage II vapor recovery
equipment is installed and operational.
—5—
3)
In the event that Eniro is unable to pursue
the reconstruction plans outlined in its
petition in this matter, Emro 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 Emro dispense gasoline after
April
1,
1995 unless the Stage II vapor
recovery equipment has been installed and is
operational.
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
Division of Air Pollution Control
Illinois Environmental Protection Agency
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 orde,r of the Pollution Control Board in PCB 94-322,
February 16,
1995.
—6—
Petitioner
Authorized Agent
Title
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 cer~ify,~
that the abov~ppinionand order was
adopted on the
_________
day of
_____________________,
1995 by a
vote of
7_c
/~‘
Dorothy N. qupn,
Clerk
Illinois Po~~ttionControl Board