ILLINOIS POLLUTION CONTROL BOARD
October
20,
1988
LAWRENCE BROTHERS,
INC.,
Petitioner,
V.
)
PCB 87—180
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
JAMES
T. HARRINGTON AND HEIDI
E.
HANSON,
OF ROSS
& HARDIES,
APPEARED ON BEHALF OF THE PETITIONER.
BOBELLA GLATZ AND JAMES O’DONNELL APPEARED ON BEHALF OF THE
RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J.
Marlin):
This matter comes before the Board
on
a petition for
variance filed by Lawrence Brothers,
Inc.
(Lawrence Brothers).
Specifically, Lawrence Brothers
is seeking variance from 35
Ill.
Adm.
Code 215.204(j), Miscellaneous Metal Parts and Products
Coating,
as
it relates
to clear coatings.
Section 215.204(j)
imposes
a
4.3 pounds per gallon
(lb./gal.)
standard upon Lawrence
Brothers.
The original petition
in this matter was filed
on
November
24, 1987.
Due
to that petition’s deficiencies, Lawrence
Brothers was directed by the Board’s December
3,
1987 Order
to
file an amended petition.
In response,
an amended petition was
filed on December
21,
1987.
On ~4ay 25,
1988 Lawrence Brothers
filed
a Second Amended Petition which requested
a five year
variance
or
a variance until
a compliant coating was found,
whichever occurred
first.
In the alternative,
Lawrence Brothers’
challenged
the validity
of Section 214.204(j)
as applied
to
Lawrence Brothers’ hinge coating operation.
The Agency filed
a Recommendation and an Amended
Recommendation
on February
23, 1988 and August
1,
1988
respectively.
In both
filings,
the Agency recommended that the
Board deny Lawrence Brothers’
variance request
as expressed
in
Lawrence Brothers’
petitions.
The Agency now agrees
to support
a
variance subject
to particular conditions set forth
in Joint
Exhibit
#1.
Hearing was held
in this matter on August
4,
1988;
no
members
of
the public were present.
At hearing,
Lawrence
Brothers and the Agency reached
an agreement as
to
the variance
request.
Both parties presented,
as Joint Exhibit #1,
the
terms
of the agreement
(R.
76—77).
Essentially the agreement provides
for
a two year variance.
During the first year Lawrence Brothers
93—175
2
is to continue
to search for compliant coatings.
At the end
of
the first year Lawrence Brothers must present
to the Agency
a
report
of. compliance alternatives.
According to the Agreement,
Lawrence Brothers must then
implement
a compliance alternative
“as quickly as reasonably possible”.
The manufacturing operation at issue
in this matter
is
the
lacquering
of dull brass hinges at Lawrence Brothers’ Rock Falls
plant.
The hinges are manufactured
at
the plant which
is located
in
a
rural area
in Whiteside County.
Prior
to the application
of
lacquer
the hinges are brass plated.
A total
of
88 people are
employed
at the plant, although
only 33 work with the lacquering
operation.
(Second
Am.
Pet.,
p.
1)
The second Amended Petition describes
the lacquering
operation
as follows:
The
lacquering
operation
is
accomplished
by
immersing brass plated hinges
into one
of two
350 gallon tanks containing
a nitrocellulose—
based
lacquer
mixture...The
brass—plated
hardware
is
immersed
for
approximately
1
minute,
elevated over
a return drip tray,
and
conveyed
through
a heating oven
to accelerate
the
air
drying
process.
The
entire
lacquering
process
takes
approximately
5
minutes...
The
volatile
organic
material
driven
off
the
plated
parts
in
the
drying
oven
is
discharged
through
an exhaust
blower
located
in
the
drying
oven
and
discharging
from
the
roof
of
the
building.
The
lacquering operation
is performed
on
a single
shift
beginning
at
6:00
A.M.
and
ending
at
3:30 P.M.
for five days per week.
(Second Am. Pet.,
p.
1—2)
With
regard
to emissions data,
Lawrence Brothers and
the
Agency stipulated
to Joint Exhibit
#2 which sets
forth relevant
data concerning
the lacquer
line’s VOM emissions.
According
to
that exhibit, Lawrence Brothers uses
37.5 gallons
of lacquers per
day.
The lacquer
is mixed with 13.8 gallons of thinner each
day.
The lacquer has
a VOM content
of 5.96 lbs./gal,
and the VOM
content
of the thinner
is 7.07 lb./gal.
As noted earlier,
Section 215.204(j)
imposed
a clear coating VOM limitation of 4.3
lh./gal.
Joint Exhibit
#2 calculates Lawre~ce Brothers’
actual
annual emission rate at 43.4 tons per year.
1 The Board
is uncertain as
to how the Agency
reaches this
result.
The Board calculates actual emissions
at 40.1
tons per
93—176
3
Given the limit prescribed
by Section 214.204(j)2, Joint Exhibit
#2 concludes
that allowable emission rate as
3.1 tons/year.
The limits of Section 214.204(j)
are imposed upon Lawrence
Brothers through Section 215.211(b).
That Section states that
sources located
in counties which are not classified
as
nonattainment counties
(for ambient air quality standards for
ozone)
and are also not adjacent to nonattainment counties must
comply with Section 215.204(j)
by December
31,
1987.
Lawrence
Brothers’ Rock Falls plant
is located
in Whiteside county.
Since
Whiteside county
is neither
a nonattainment county
nor adjacent
to
a nonattainrnent county,
Lawrence Brothers should have been
in
compliance with Section 215.204(j) since December
31,
1987.
The
requirements of
Sections 215.204(j) and 215.211 were adopted
by
the Board
in Docket R80—5
on December
30,
1982.
50 PCB 255.
The
Opinion setting forth the rationale behind the regulations
is
found
at 49 PCB 67.
According
to Lawrence Brothers,
there
are currently no
solvent—based lacquers which would afford compliance with Section
215.204(j).
Lawrence Brothers has tested between
60 or
70
lacquers in the hopes of
finding
a compliant coating.
However,
Lawrence Brothers asserts
that none of
these lacquers were able
to successfully meet Lawrence Brothers’ product specifications
(R.
34).
Lawrence Brothers asserts
that the lacquers it uses
must
be able
to sufficiently protect
a hinge from corrosion
during
a 75—hour
salt spray
test.
(R.
24).
A Lawrence Brothers
witness stated that the common understanding among lacquer
suppliers is
it
is currently “unrealistic”
to expect
a water—
based
(compliant) lacquer
to meet these specifications
of
Lawrence Brothers.
(R.
36).
In
fact,
Lawrence Brothers tried
using water—based lacquers on
its hinges three years
ago.
At
hearing, Lawrence Brothers’
vice—president
of sales
and marketing
recounted the company’s experience with water based lacquers.
We
incurred
a real
rash of problems because
the hinges were rusting
even before they were
opened
at
the
millwork
producer’s
end.
We
would
ship
skid
loads
of
hinges
and
they
would
open
the
carton
and
they
were
already
rusting.
We had
a number
of complaints from
customers,
particularly
in
coastal
areas
year by utilizing
the following method:
13.8
gal.
per day for
the thinner
is multiplied
by 7.07 lb./gal.
and 37.5 gal.
per day
for lacquer
is multiplied
by 5.96 lb./gal.
2 The Board
is uncertain
as
to how
the. Agency reaches
this
result.
The Board calculates allowable emissions at 8.52 tons
per year by utilizing the following method:
gallons of solids
currently applied
is equivalent
to 0.17 multiplied
by 37.5 gal.
per day
of lacquer
(not 13.8 gal.
per day of thinner).
93—177
4
where
they’re
subject
to
salt
water
or
salt
air.
It
really
raised
and
caused
a
lot
of
problems.
We
took
back probably
a
third
of
all
the
hinges
we
shipped
out.
It
was
an
extremely expensive folly
is what
it was.
(R.
14)
Lawrence Brothers states
that it has been unsuccessfully
looking
for compliant coatings since
the coating
line first came
into existence.
According
to Lawrence Brothers,
a water—based,
baked
lacquer which withstood
a 40—hour salt spray
test
is the
closest
Lawrence Brothers has come
to finding
a compliant coating
which would
.meet
its requirements.
Besides not providing the
degree
of protection
as required by Lawrence Brothers’
specifications,
Lawrence Brothers’
asserts that the use
of
a
water—based baked lacquer would require modifications
to its oven
and coating
lines which would
in turn cost
in excess
of
$430,000.
(R.
44; pet.
Exh. #10).
Lawrence Brothers has also looked
into
a solvent
recovery
system.
It received an estimate
or $253,500 for such
a system.
However, Lawrence Brothers claims that
the estimate
is incomplete
because
it does not include
the cost
of
a distillation system.
(R. 42—43,
Pet.
Exh.
#9).
Lawrence Brothers also tested the process
of double coating
the hinges with
a water—based lacquer.
According to the Lawrence
Brothers,
no significant increase
in resistance
to corrosion was
observed
in the experiment.
(R.
54—55).
At one time,
Lawrence Brothers started using less
of the
solvent—based lacquer
because
it was operating the line without
the accelerated drying process
of
an oven.
A fire in
a drying
oven and insurance litigation precipitated that process
change.
However, Lawrence Brothers states
that
it
received about
a dozen
complaints
from customers.
(R.
49).
At
that time the hinges
were withstanding only
45
to
55 hours of salt spray tests.
(R.
53).
Subsequently, Lawrence Brothers again used
a heated oven
and more lacquer
to correct the quality problems.
(R.
49).
When Mr. Ted Witt,
Manager
of manufacturing
for Lawrence
Brothers, was asked what the company would do
if
it were forced
to comply with Section 215.204(j),
Witt
stated:
Our only
alternative,
if we
had
to
meet
the
rule tomorrow would
be
to go
to
a water—based
air—dry lacquer like we previously had
in the
line.
And
we
would
expect
to have
a
number
of problems.
(R.
46)
Environmental Impact
93—178
5
Lawrence Brothers asserts
that the granting of
a variance
will not result
in the increase
of emission from the Rock Falls
plant.
In the Agency’s February
23, 1988 Recommendation,
the Agency
states that Lawrence Brothers’
Rock Falls plant
is located
in a
rural area approximately two miles
east of
the main part of Rock
Falls.
According
to the Agency, no other large VOM sources
are
in the area.
The Agency also points out that Whiteside County
is
an attainment county and that the nearest ozone monitoring
station,
located
40 miles northeast
of the plant, has not
recorded any ozone violations
in the past seven years.
(Ag.
Rec.
p.
6).
On the
issue of environmental impact,
the Agency
concludes:
In
terms
of
effect
on
air
quality..,
the
emissions from this facility and
its location
lead
the
Agency
to
believe
that
air quality
in the area will
not deteriorate
as
a result
of the emissions from the facility.
(Ag.
Rec.,
p.
7).
In addition,
the Agency
believes that the United States
Environmental Protection Agency would not disapprove
of the
variance for air quality reasons.
Id.
Findings
It
is clear
from the record that Lawrence Brothers has been
diligent
in
a search for a lacquer which would comply with
the
requirements
of Section 215.204(j).
It
is particularly
significant that Lawrence Brothers’
efforts have included more
than just cursory testing
of other coatings;
for
a while,
Lawrence Brothers even utilized water—based coatings on its
hinges.
This was done even before Section 215.204(j) was
applicable
to Lawrence Brothers.
It
is also apparent that Lawrence Brothers receives
complaints from customers when
its hinges are not sufficiently
lacquered.
Despite
its efforts Lawrence Brothers has not been
able
to find
a water—based lacquer which meets the company’s
standards.
Lawrence Brothers’ primary competitors are firms
located
in New Britain, Connecticut and St.
Louis, Missouri.
(R.
12).
The Board recognizes Lawrence Brothers’
need
to produce
hinges that are durable and relatively
rust resistant.
A hinge
is
a type
of product that
is generally expected
to wear well and
not need frequent replacement or maintenance.
Given
the circumstances of this particular
case the Board
93—179
6
finds that Lawrence Brothers would suffer
an arbitrary or
unreasonable hardship
if
it were denied
a variance as
requested.
As
a result,
the Board
will grant Lawrence Brothers
a
variance.
In general,
the Board will impose conditions
similar
to those jointly requested by Lawrence Brothers and the Agency.
Some
of the wording
and timing
of the conditions have been
altered
to more clearly ensure that Lawrence Brothers will begin
to implement a compliance alternative after one year
of coating
investigation.
Although the two parties
to this proceeding have
reached an agreement with regard
to the variance
request,
the
Board
is certainly
not bound by any such agreement.
Specifically,
the variance will begin on December
24,
1987 and
terminate on October
20,
1990.
During the first year,
Lawrence
Brothers must actively seek
a compliant coating
as well
as
investigate other
compliance alternatives.
Lawrence Brothers
then must choose and implement
a compliance option during the
second half of the variance.
Normally,
the Board does not grant variances where
a
compliance plan does not detail
a specific compliance
alternative
which will be utilized.
However,
the Board has granted,
in
particular
instances,
short—term variances
to allow further
investigation of compliance options.
In this instance,
compliance by the end
of the variance period
is mandated.
As
a final
note, Lawrence Brothers’
Second Amended petition
alternatively challenges the validity
of Section 215.204(j)
as
applied
to Lawrence Brothers’ Rock Falls plant.
The Board has
not reviewed the validity of
the rule as requested
by Lawrence
Brothers,
and consequently,
the Board makes
no finding
as to the
validity
of the rule as applied
to Lawrence Brothers.
This
course of action
is consistent with
the Board’s decisions
in
Container Corporation
of America
v.
Illinois Environmental
Protection Agency, PCB S7—l83
(June
2,
1988 and August
18,
1988)
This Opinion constitutes
the Board’s findings
of fact and
conclusions of
law.
ORDER
The Board hereby grants Lawrence Brothers Inc.
(Lawrence
Brothers) variance from 35
Ill.
Adrn.
Code 215.204(j),
as
it
applies
to clear coatings,
subject
to the following conditions.
1.
The variance shall begin on December
24,
1987 and expire
on October
20, 1990 or when Lawrence Brothers achieves
compliance, whichever occurs first.
2.
Until Lawrence Brothers determines and notifies the
Illinois Environmental Protection Agency (Agency) that
it intends
to achieve compliance
by means other than
a
corrosion resistant,
clear, air—dry compliant coating,
or until October
20,
1989, whichever occurs first,
93—180
7
Lawrence Brothers shall
implement the following schedule
for investigation of compliant coatings.
a)
Not later than one month of the date
of this Order
Lawrence Brothers shall:
1)
Submit
to the Agency
a detailed listing
of
Lawrence Brothers’
coating specifications;
2)
Survey clear
coating suppliers using
a
comprehensive directory
of formulators
and
suppliers
to the coatings industry comparable
to the current
issue
of “Paint Red Book”,
as
agreed
to between
the Agency and Lawrence
Brothers;
and
3)
Send
letters to suppliers and formulators
surveyed
in subdivision
(a)(2)
of this
paragraph.
Such letters shall contain
Lawrence Brothers’
coating specifications and
testing procedures.
The letters shall request
a response within two weeks.
If responses are
not sent within two weeks Lawrence Brothers
shall continue sending letters.
Lawrence
Brothers should keep records
of letters sent
and responses received for each supplier and
formulator.
b)
Not later
than four months after
the date
of this
Order Lawrence Brothers shall:
1)
Obtain at
least 25 samples
of lacquer from
suppliers
and formulators
identified in
subdivision
(a)
of
the paragraph;
and
2)
Schedule,
conduct and complete the necessary
tests on the lacquer samples obtained
to
determine whether
the lacquers would afford
Compliance
and
the degree
to which such
lacquers meet Lawrence Brothers’
Specifications.
c)
Not later than
8 months after the date of this
Order Lawrence Brothers shall:
1)
Compile the results
of the tests
conducted
pursuant
to subdivision
(b)(2)
of
this
paragraph;
and
2)
Conduct
and complete any necessary follow—up
tests.
d)
If Lawrence Brothers discovers an acceptable
compliant coating
as
a result
of its efforts
93-181
8
pursuant
to subdivisions
(a),
(b),
and
(c)
of this
paragraph,
it shall take steps
to utilize such
a
coating as quick
as reasonably possible.
e)
If Lawrence Brothers has not identified an
acceptable compliant coating despite its efforts
pursuant
to subdivisions
(a),
(b),
and
(c)
of this
paragraph,
it shall engage the services
of
a
coating consultant.
The coating consultant shall
review the work which was accomplished
by Lawrence
Brothers pursuant
to subdivisions
(a),
(b),
and
(c)
of this paragraph.
The coating consultant
shall
submit
a written preliminary review to the Agency,
not later
than
9 months after the date of this
Order.
The Agency may comment upon the preliminary
review.
Not later than 10 months after
the date of
this Order,
a final
report,
incorporating any
Agency comments,
shall
be submitted
to the Agency.
f)
If the consultant’s
final report concludes that
further coating testing could produce
a compliant
coating acceptable
to Lawrence Brothers,
Lawrence
Brothers shall
conduct
and complete such tests
pursuant
to the consultant’s recommendations not
later
than
12 months after the date of
this
Order.
3)
At any time during the variance period,
the Agency may
identify new,
clear water—based compliant coatings,
up
to
a maximum of
10
in a 12—month period,
for Lawrence
Brothers
to
test.
After the Agency notifies Lawrence
Brothers of such coatings,
Lawrence Brothers shall test
the Agency—identified
coatings
to determine whether
the
Coatings
afford compliance and
the degree
to which such
coatings meet Lawrence Brothers’
specifications.
These
tests shall
be conducted and completed
as quickly
as
reasonably possible after
the
gency notifies Lawrence
Brothers of the coating’s
identity.
4)
Notwithstanding
the procedures set
forth by paragraph
#2
and prior
to Lawrence Brothers’ selection of
a
compliance alternative,
Lawrence Brothers shall seek
to
discover and test new compliant coating
formulations.
5)
Not later than 12 months after
the date of
this Order,
Lawrence Brothers shall submit
a compliance report
to
the Agency.
The report shall address compliance
alternatives,
including but not limited
to,
the use of
afterburners, solvent recovery,
and compliant
coatings.
The report shall
also state which alternative
Lawrence Brothers will
implement
in order
to achieve
Compliance.
6)
Lawrence Brothers shall implement
its chosen compliance
93—182
9
alternative
as quickly as reasonably possible.
7)
Compliance with Section 215.204(j)
shall be
achieved by
Lawrence Brothers not later than
24 months after the
date of this Order.
8)
Within 45 days
of the date of the Board’s Order,
Lawrence Brothers shall execute
a Certificate
of
Acceptance
and send that Certificate
to:
Illinois Environmental Protection Agency
Enforcement Programs
Attn:
James O’Donnell
2200 Churchill Road
P.O.
Box 19286
Springfield,
IL
62794—9276
This Variance shall
be void
if Lawrence Brothers fails
to execute and forward the Certificate within the 45—day
period.
The 45—day period shall be held
in abeyance
during any period that this matter
is being appealed.
The form of the Certificate of Acceptance shall
be as
follows:
Certificate of Acceptance
I,
(We),
having read the Order
of the Illinois Pollution Control Board,
in
PCB 87—180 dated October
20,
1988,
understand and accept the said
Order,
realizing that such acceptance renders all
terms and
conditions thereto binding
and enforceable.
Petitioner
By: Authorized Agent
Title
IT
IS SO ORDERED.
93—183
10
I, Dorothy M.
Gunn, Clerk
of
the Illinois Pollution Control
Board,
hereby certify that the above ~Qpinion and Order was
adopted
on the
~
day of
~
,
1988,
by a vote
of ________________________
/7
.,
~
.
/
(
//~
Dorothy
M. ..~unn, Clerk
Illinois Pollution Control Board
93—184