TT,TITNOTS POLTJTTTON CONTROL BOARD
July
20,
1995
THOMAS BROWN
)
(TOM’S CORNER FACILITY),
)
Petitioner,
V.
)
PCB 95—ill
)
(Variance-Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
THOMAS E. WILLIAMS, APPEARED ON BEHALF OF PETITIONER;
RACHEL L.
DOCTORS,
APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J.
Ii):
On March
27,
1995, Thomas Brown d/b/a Tom’s Corner Facility
(Tom’s Facility)
filed a petition for variance regarding its
facility located at 1343 South Lewis Avenue, Waukegan, Lake
County, Illinois.
The petition for variance seeks relief from
35 Ill. Adm.
Code 218.586 of the Board’s air regulations relating
to Stage II gasoline vapor recovery.
On April 27,
1995, the
Illinois Environmental Protection Agency (Agency)
filed
a
recommendation that the Board grant the requested variance with
conditions.
On June
6,
1995,
a hearing was held in Waukegan,
Illinois before Board hearing officer June C.
Edvenson.
There
were members of the public present at the hearing.
The Board’s responsibility in this matter arises from the
Environmental Protection Act (Act).
(415 ILCS 5/ 1 et seq.
(1994).)
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)
(1994).)
The Agency is required to appear in hearings on
variance petitions.
(415 ILCS 5/4(f)
(1994).)
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)
(1994).)
As presented below, the Board finds that petitioner has met
its burden
of
demonstrating that immediate compliance with the
Act or Board regulations at issue would result in an arbitrary or
unreasonable hardship upon petitioner.
Accordingly, the variance
request will be granted with conditions.
£
REGULATORY FRAMEWORK
The Clean Air Act Amendments of 1990 required that owners or
operators of gasoline dispensing facilities located in moderate
or above nonattainment areas install and operate gasoline vehicle
refueling vapor recovery
systems
(Stage II systems).
The Board
acted to adopt regulations which required installation of Stage
II systems on August 13,
1992.
(~,
In the Matter of:
Stac~eII
Gasoline Vanor Recovery Rules Amendments to
35
Ill.
Adm. Code
215,
218, and 219, R91—30,
135 PCB 415
(August 13, 1992).)
Section 218.586 requires the installation of Stage II
systems for “any gasoline dispensing operation which dispenses an
average monthly volume of more than 10,000 gallons of motor
vehicle fuel per month”.
(35 111. Adm. Code 218.586(b).)
Operations subject to the requirements of Section 218.586 shall
demonstrate compliance according to the schedule set forth in
Section 218.586(d).
Section 218.586(d) (3) provides:
Operations that commenced construction before November
1,
1990, and dispense an average monthly volume of less
than 100,000 gallons of motor fuel per month must
comply by November 1,
1994.
REQUESTED RELIEF AND HARDSHIP
Petitioner owns and operates a gasoline dispensing station
at 1343
S. Lewis Avenue, Waukegan,
Illinois and has held a lease,
which expires October 31,
1995, with the Amoco Oil Company
(Amoco)
for its occupancy for ten years.
(Pet.
at 1_2.)1
Tom’s
Facility dispenses an average monthly volume of less than 75,000
gallons of motor fuel per month.
(Pet. at 1.)
Therefore,
petitioner was required to demonstrate compliance by November 1,
1994.
Amoco requested a variance from the BoarU on September 23,
1994,
for eighteen gasoline dispensing operations that it either
owns or supplies the gasoline.
(Pet. at
2.)
In its petition
Amoco also stated that it was renegotiating the leases with
several facilities,
including Tom’s Facility, and that it would
either pay for the installation of the Stage II equipment or
cease dispensing gasoline at these facilities by March
31,
1995.
(Pet.
at 2.)
Amoco was granted a variance on January 11,
1995,
from November 1,
1994 through March
31,
1995.
(Pet.
at
2.)
1
The petition will be cited as
“Pet.
at
“~
the Agency’s
recommendation will be cited as “Rec.
at
_“;
and the transcript
will be cited as
ttTr. at
“.
-5
Mr. Brown suffered a heart attack on March 9,
1994 and was
unable to complete the negotiations with Amoco.
(Pet.
at 2.)
As
a result Amoco withdraw its lease leaving Mr. Brown responsible
to install the Stage II equipment.
(Pet. at 2.)
Petitioner
is
requesting a seven—month variance starting March 31,
1995,
and
ending October
31,
1995,
from the Board’s Stage II vapor recovery
regulations for its facility in Waukegan, Illinois in order for
it to install the Stage
II equipment.
(Pet. at 4.)
Mr. Brown first learned that the lease with Amoco would not
be extended in December of 1992 and states that he did not have
sufficient time to secure the necessary financing in order to
install the Stage II equipment prior to the ending of the current
variance, March 31,
1995.
(Pet.
at
3.)
Mr. Brawn alleges that
if Tom’s Facility is closed down it would represent a substantial
hardship to the community and has provided affidavits of 177
community members indicating such hardship.
(Pet.
at 3.)
The Agency agrees that immediate compliance with Section
218.586 imposes an arbitrary or unreasonable hardship on the
petitioner.
(Rec.
at
3.)
Further, the Agency states that the
petitioner has demonstrated that the petitioner would suffer a
hardship if required to install a Stage II System by the required
date of March 31,
1995.
(Rec.
at
3.)
At hearing testimony was
presented by the petitioner and Agency of the importance of Tom’s
Facility to local community.
(Tr.
at
7,
9—il and 14—20.)
COMPLIANCE PLAN
Tom’s Facility is proposing to install the Stage II
equipment and replace the underground storage tanks at the site.
(Pet.
at 3.)
Petitioner states that it has recieved a bid from
A.B.D Tank & Pump Co.
to do the work for approximately $200,000.
(Pet.
at 3.)
Petitioner states that the construction is to begin
on September
1,
1995 and be completed in four weeks.
(Pet. at
3.)
The Agency supports the compliance plan with the condition
that if the Stage II equipment is not installed by October
31,
1995 Tom’s Facility will cease dispensing gasoline until the
equipment is installed.
(Rec.
at 4.)
ENVIRONMENTAL IMPACT
The Agency states that
it agrees that the impact from Tom’s
Facility is
low.
(Rec.
at 3.)
The Agency estimates that the
petitioner’s monthly VON emissions will be .47 tons/mo. and
agrees that the hardship outweighs the environmental impact.
(Rec.
at
3.)
At hearing the Agency stated that
“.
.
.the facility
in question emits approximately 862 pounds per month.
. .“
and that
“~tjhis will not significantly impact the
Agency’s
15 percent
rate of progress plans for the Chicago ozone.”
(Pr.
at 8-9.)
4
CONSISTENCY WITH FEDERAL LAW
The Board finds that the requested relief is consistent with
the Clean Air Act.
The Agency states that the grant of the
variance should not significantly impact the State’s efforts of
complying with federal
law.
(Tr. at 8-9.)
CONCLUSION
In determining whether any variance is to be granted, the
Act requires the Board to determine whether a petitioner has
presented adequate proof that immediate compliance with the Board
regulations at issue would impose an arbitrary or unreasonable
hardship upon the petitioner.
(415 ILCS 5/35(a)
(1992).)
Furthermore, the burden is on the petitioner to show that its
claimed hardship outweighs the public interest in attaining
compliance with regulations designed to protect the public.
(Willowbrook Motel v.
IPCB
(1985),
135 Ill.App.3d 343, 481 N.E.2d
1032.)
only with such
a
showing
can the claimed hardship rise to
the level of arbitrary or unreasonable hardship.
Based upon the record before it and upon review of the
hardship petitioner would encounter,
and the environmental impact
for the 1995 ozone season that would result from grant of
variance, the Board finds that petitioner has presented adequate
proof that immediate compliance with the regulations at issue
would result in an arbitrary and unreasonable hardship.
The
Board agrees with the Agency statements that the emissions will
have a negligible environmental impact on the 1995 ozone season
if the variance is allowed.
Petitioner has requested that the
variance commence March
3.,
1995 and end October
31,
1995.
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
DM1.
Inc.
v.
IEPA, PCB 90-227,
128 PCB 245-249, December 19,
1991.)
In view or the races or this case including the Board’s
knowledge of contractor and equipment shortages associated with
installation of Stage II equipment, and the Agency’s
recommendation of no significant environmental impact, the Board
finds that the instant circumstances warrant the short
retroactive start of the variance.
The requested variance
accordingly will be granted, subject to conditions consistent
with this opinion.
Lastly, the Board notes that the Agency requests that the
Board use a torm or the certiticate or acceptance that is
different from the traditional certificate.
The Board declines
this request for reasons addressed in a separate order.
(See
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.
5
ORDER
The Board hereby grants the petitioner, Mr. Thomas Brown,
d/bfa Tom’s Corner Facility,
a variance from 35 Ill. Adm. Code
218.586, Gasoline Dispensing Operating-Motor Vehicle Fueling
Operations, subject to the following conditions:
1.
The term of the variance begins on March
31, 1995 and
terminates on October 31, 1995 or when the Stage II
equipment is installed, whichever comes first.
2.
Petitioner shall notify Terry Sweitzer of the Illinois
Environmental Protection Agency when the Stage II
equipment has been installed.
Such notice shall be
sent to:
Mr. Terry Sweitzer
Illinois Environmental Protection Agency
Bureau of Air
P.O. Box 19276
Springfield, Illinois 62794—9276
3.
If the petitioner fails to install the Stage II
equipment by October 31,
1995, the petitioner shall
cease dispensing gasoline until the equipment is
installed.
If the petitioner chooses to accept this variance subject to
the above order, within forty-five days of the grant of the
variance, the petitioner must execute and forward the attached
certificate of acceptance and agreement to:
Rachel Doctors
Division of Legal Counsel
Illinois Environmental Protection Agency
P.
0. Box 19276
2200 Churchill Road
Springfield, IL
62794—9276
Once executed and received, that certificate of acceptance
and agreement shall bind the petitioner to all terms and
conditions of the granted variance.
The 45-day period shall be
held in abeyance during any period that this matter is appealed.
Failure to execute and forward the certificate within 45—days
renders this variance void.
The form of certificate is as
follows:
CERTIFICATION
I
(we),
,
hereby
accept and agree to be bound by all terms and conditions of the
b
Order of the Pollution Control Board in PCB 95-111, July 20,
1995
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1989,
cb.
111 1/2 par.
1041, provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
I, Dorothy N.
Guiin,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above
inion and order was
adopted on the
~
day of __________________,
1995,
by a
vote
of
~O.
0
/~t.
Ill
on Control Board
