ILLINOIS POLLUTION CONTROL BOARD
February 16,
1995
MAJOR
& SANDHU PETROLEUM,
INC.,
)
Petitioner,
)
v.
)
PCB 94—313
)
(Variance
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
WALTER ZARNECKI 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 Major and Sandhu Petroleum,
Inc.,
(Sandhu) on
October 31,
1994.
Sandhu 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 term of the requested
variance is from November 1,
1994 to March 31,
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
December 20 19941.
The Agency recommends grant of the variance.
Hearing was held on December
21,
1994 in Chicago, Illinois,
before hearing officer June C. Edvenson.
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.
The Agency was granted an extension of time to file the
recommendation by Board order of December 14,
1994.
—2—
As presented below,
the Board finds that Sandhu has met its
burden of demonstrating that immediate compliance with
35 Ill.
Adm. Code 218.586(d) (3) would impose an arbitrary or unreasonable
hardship.
Accordingly, the variance request will be granted.
BACKGROUND
The facility at issue is located at 1337
S. Harlem,
Berwyn,
Illinois.
Sandhu, which is an Illinois Corporation formed on
August 23,
1994,
has leased the facility and taken over the
business operations as of November 1,
1994.
(Pet.
at ¶10.)
35 Ill. Adm. 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
(VON)
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 MVFO regulations is a requirement that certain
MVFOS 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 Romeoville 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
Sandhu’s contends that requiring immediate installation of
the Stage II equipment would cause a financial hardship.
Sandhu
contends that it has been unable to obtain the financing for
Stage II installation in the short time during which it has been
in business.
(Pet.
at ¶10.)
Sandhu further contends that by the
time financing is obtained, winter weather will inhibit immediate
installation.
(a.)
There are no control measures that could be temporarily
imposed that would achieve immediate compliance.
The Agency
notes its “awareness of the difficulties associated with
obtaining financing for construction projects at small gasoline
facilities”
(Rec. at ¶13)
—3—
Sandhu contends that the environmental harm that would be
occasioned by delaying installation of the Stage II equipment
would be negligible.
(Pet.
at ¶11.)
In support of this
position, Sandhu presents estimates of vapor emissions likely to
occur from the Sandhu facility, and concludes that the emissions
would constitute approximately
.00007 percent of the total
Chicago area emissions.
(u.)
The Agency believes that,
while Sandhu significantly
underestimates its emissions
(Rec. at ¶18),
the emissions are
indeed small relative to the total emissions in the Chicago area.
(Rec.
at ¶19.)
On this basis the Agency concedes that granting
the variance would be appropriate, but only so long as Sandhu
commits to coming into compliance within a short time period.
(Rec.
at ¶20.)
CONCLUSION
The Board agrees with the Agency that Sandhu has
demonstrated that immediate installation of the Stage II
equipment would constitute a hardship for Sandhu.
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 condition is that Sandhu must have the
necessary Stage II equipment installed and operational by March
31,
1995, which is the date upon which this variance will
terminate.
Sandhu had originally requested that the variance
extend an additional month.
(Pet.
at ¶1.)
However,
at hearing
Sandhu modified the request to accord with the Agency’s
recommendation of a March 31,
1995 termination.
(Tr. at p.
12;
Rec. at ¶26.)
As the Agency observes, installation by March 31,
1995 will allow Sandhu to be in compliance at the onset of the
1995 ozone season2.
(Rec.
at ¶20.)
The environmental harm that
would otherwise occur if the variance extended into the 1995
ozone season is thereby lessened.
The Board also accepts as a necessary condition the Agency’s
recommendation
(Rec.
at ¶26) that Sandhu not dispense gasoline
any time after March 31,
1995 during which Stage II equipment has
not yet been installed.
As regards the beginning date for the variance, the Board
notes that it is well established practice that the term of a
2
The ozone season is defined by the United States
Environmental Protection Agency as the annual period from April
1
through October 31.
—4—
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 Sandhu requests that start of the variance be
retroactive to November 1,
1994.
In view of Sandhu’s recent
entry into the petroleum marketing business and the Board’s
knowledge of contractor and equipment shortages associated with
installation of Stage II equipment,
the Board finds that the
instant circumstances are sufficiently unusual to warrant the
short retroactive start of the variance requested by Sandhu.
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
Major
& Sandhu Petroleum,
Inc.,
is hereby granted variance
from 35 Ill. Adm. Code 218.586 for its facility located at 1337
S. Harlem,
Berwyn,
Illinois, subject to the following conditions:
1)
The term of the variance is for the five-
month period from November
1,
1994 through
March 31,
1995.
2)
If Stage II vapor recovery equipment is not
installed and operational by March 31,
1995,
petitioner shall cease dispensing operations
at its facility until such time as Stage II
equipment is installed and operational.
3)
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.
—5—
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
2200 Churchill Road
Post Office Box 19276
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 94-313,
February
16,
1995.
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 Il1.Adm.Code 101.246 “Notions for Reconsideration”.)
—6—
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the aboveo inion and order was
adopted on the
/
~
~
day of ______________________,
1995 by a
vote of
7—c
.
/1
Dorothy M. Gup?1,
Clerk
Illinois Po1’1~itionControl Board