ILLINOIS POLLUTION CONTROL BOARD
December 19, 1996
J.M. SWEENEY CO.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 96-184
(Variance - Air)
STEVEN P. KAISER, THE JEFF DIVER GROUP, APPEARED ON BEHALF OF
PETITIONER;
SHEILA G. KOLBE APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by J. Theodore Meyer):
This matter comes before the Board on a petition for variance filed February 28, 1996
by J.M. Sweeney Co. (Sweeney). Sweeney filed an amended petition for variance on May
10, 1996. The petition requests an extension of variance from Board regulations which require
installation of Stage II vapor recovery systems. (35 Ill.Adm.Code 218.586 (1994).) The
Board previously granted Sweeney a variance from Section 218.586 in J.M. Sweeney Co. v.
IEPA, (September 21, 1995) PCB 94-297
1
, that expired March 31, 1996. Sweeney now seeks
an extension of the variance until March 31, 1997 to allow time for Sweeney to conduct site
remediation activities, and to reconstruct its gasoline dispensing facility in Lake Zurich, Lake
County, Illinois. Sweeney also requests the Board to retroactively apply any grant of variance
to March 31, 1996.
The Illinois Environmental Protection Agency (Agency) filed its recommendation on
June 28, 1996, and a modified recommendation on October 18, 1996. The Agency asserts that
an arbitrary or unreasonable hardship would continue to result if the requested relief is denied
and therefore recommends grant of variance until March 31, 1997. (M.Rec. at 3.)
2
1
The previous variance order shall be cited as (PCB 94-297 at __.).
2
The amended petition for variance will be cited as (Am.Pet. at __.); the Agency’s
recommendation will be cited as (Rec. at __.) and the Agency’s modified recommendation will
be cited as (M.Rec. at __.).
2
Hearings were held September 20, 1996 and October 18, 1996 in Lake Zurich, Illinois
before Hearing Officer June Edvenson.
3
No members of the public attended. (Tr.1 at 5.)
Sweeney filed its post hearing brief on October 23, 1996 and the Agency filed its post-hearing
response on November 1, 1996.
4
For the reasons set forth below, the Board finds that to require immediate compliance
with the Board’s regulations requiring installation of Stage II vapor recovery systems before
Sweeney completes site remediation and reconstruction would continue to impose an arbitrary
or unreasonable hardship on Sweeney. The Board further finds that Sweeney has demonstrated
satisfactory progress toward achieving compliance during the term of its prior variance. The
Board finds that unusual circumstances in this matter justify a retroactive application of the
variance. The Board therefore grants Sweeney an extension of its prior variance, subject to
certain conditions set forth in the attached order.
The Board’s responsibility in this matter arises from the Illinois Environmental
Protection Act (Act). (415 ILCS 5/1
et seq.
(1994).) The Board is charged with the
responsibility of granting variance from Board regulations whenever it is found that immediate
compliance with the regulations would impose an arbitrary or unreasonable hardship upon the
petitioner. (415 ILCS 5/35(a).) A request for extension of variance may be extended from
year to year upon a showing of satisfactory progress during the prior variance. (415 ILCS
5/36(b).) The Agency is required to appear at hearings on variance petitions (415 ILCS
5/4(f)), and is charged, among other things, 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).)
BACKGROUND
J.M. Sweeney Co., founded in 1912, is a family-owned gasoline dispensing operation.
Sweeney has a wholesale operation as well as six retail operations. The retail facility at issue
was acquired in 1979, and is located at the southwest corner of Rand Road (Route 12) and
Miller Road in Lake Zurich, Lake County, Illinois (hereinafter referred to as facility or site).
(Tr.1 at 16-17.) Sweeney employs eight full-time employees and four part-time employees at
this facility, which is open 5 a.m. to midnight and receives approximately 215 patrons per
day. (Tr.1 at 25.) John Gerlesits, vice president of operations, testified at hearing that
Sweeney’s Lake Zurich facility is located in a well-traveled area; in fact, Route 12 is a major
access road to Wisconsin. The surrounding area is rural in nature, with a golf course and
well-established, upscale homes nearby. Mr. Gerlesits testified that Sweeney is committed to
reconstructing its Lake Zurich facility to make it a more attractive and safer location. (Tr.1 at
21-25.)
3
The transcript from the first hearing will be cited as (Tr.1 at __.); the transcript from the
second hearing will cited as (Tr.2 at __.); and petitioner’s exhibits will be cited at (Pet. Exh.
__.).
4
These filings shall be cited as (PH Br. at __.) and (PH Resp. at __.) respectively.
3
In January 1994, Sweeney performed tank tightness tests on its underground storage
tanks (USTs) located at the facility. One UST did not pass the test and Sweeney hired
Professional Tank Services, Ltd. (PTS) to determine if a petroleum release had occurred. PTS
conducted a limited soil investigation and concluded that a leak had occurred; on January 20,
1994 Sweeney notified Illinois Emergency Management Agency of the release. (PCB 94-297
at 2; Tr.1 at 25-26.)
Thereafter, Sweeney embarked on early action clean-up activities, including submittal
of a 20-day report to the Agency on February 7, 1994, and a 45-day report on March 18,
1994. (Pet. Exh. 7, 8.) On September 8, 1994 the Agency received Sweeney’s site
classification plan and in December 1994, the Agency received a modification to the 45-day
report. (Pet. Exh 9, 10.) The Agency notified Sweeney by letter dated June 15, 1995, that
the Agency had classified the site as high priority. (Pet. Exh. 11.)
Sweeney hired RAPPS Engineering to prepare its groundwater investigation report and
its corrective action plan (CAP). (Tr.1 at 39-41.) On January 8, 1996, on Sweeney’s behalf,
RAPPS submitted a Phase II groundwater investigation report and CAP. Sweeney received
the Agency’s letter of completeness on January 16, 1996 and the Agency’s letter of rejection
on January 19, 1996. RAPPS submitted a second Phase II groundwater investigation report
and CAP on July 18, 1996 that the Agency rejected, and a third submittal on September 16,
1996 that the Agency deemed modifiable on October 11, 1996. (M.Rec. at Exhibit 2.)
Sweeney is requesting an extension of its prior variance to allow time to receive
approval of its CAP, implement remediation at the site, and reconstruct its facility. Sweeney
states that reconstruction will include relocation of its convenience store to the southeast corner
of its lot; relocation of gasoline dispensing units to the north side of its lot; reconstruction of
curbs for easier, safer access to its facility; and an addition of separate parking spaces for store
customers. (Tr.1 at 23-25, 33-35.)
REGULATORY FRAMEWORK
In determining whether any variance is to be granted, the Act requires the Board to
ascertain whether a petitioner has presented adequate proof that immediate compliance with the
Board regulations at issue would impose an arbitrary or unreasonable hardship. (415 ILCS
5/35(a).) Furthermore, the burden is upon petitioner to show that its claimed hardship
outweighs the public interest in attaining compliance with regulations designed to protect the
public. (Willowbrook Motel v. PCB, 135 Ill. App. 3d 343, 481 N.E.2d 1032 (1st Dist.
1977).) Only upon such showing can the claimed hardship rise to the level of arbitrary or
unreasonable hardship. In addition, the Board may grant a request for extension of variance
on a year to year basis, but only upon a showing of substantial progress toward achieving
compliance. (415 ILCS 36(b).)
A variance, by its very nature, is a temporary reprieve from compliance with the
Board’s regulations, and compliance is to be pursued regardless of the hardship which eventual
compliance presents an individual petitioner. (Monsanto Co. v. PCB, 67 Ill.2d 276, 367
N.E.2d 684 (1977).) Accordingly, as a condition to the granting of variance, a variance
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petitioner is required to commit to a plan which is reasonably designed to achieve compliance
within the term of the variance, unless certain special circumstances exist.
Sweeney is seeking an extension of a prior variance from the Board’s air regulations
which require installation of Stage II vapor recovery equipment. (35 Ill. Adm. Code
218.586.) Section 218.586, titled Gasoline Dispensing Operations - Motor Vehicle Fueling
Operations, provides in pertinent part that:
b) The provisions of subsection (c) below shall apply to any gasoline dispensing
operation which dispenses an average monthly volume of more than 10,000 gallons
of motor vehicle fuel per month. Compliance shall be demonstrated in accordance
with the schedule provided in subsection (d) below.
*****
d) In conjunction with the compliance provisions of Section 218.105 of this Part,
operations subject to the requirements of subsection (c) above shall demonstrate
compliance according to the following:
*****
3) 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.
COMPLIANCE PLAN
Sweeney states that it has made satisfactory progress toward achieving compliance
during its prior variance. Specifically, the Board’s order requested that a site classification be
determined during the term of the variance. Sweeney states that, upon discovering a
petroleum release at its site, Sweeney conducted early action activities, and in June 1995 the
Agency notified Sweeney that the site was classified as high priority. (Tr.1 at 32, Pet. Exh.
11.) As a result, Sweeney contends that site remediation must be conducted at its facility.
Sweeney states that, beginning in January 1996, it submitted three groundwater
investigation reports and corrective action plans in accordance with the Act and Board
regulations, the last of which the Agency deemed modifiable on October 11, 1996. (Tr. at 39-
46.) At hearing, Michael Younger, RAPPS Engineering, stated that remediation and
reconstruction efforts would be more expensive if conducted during winter months but
anticipates that these activities can be accomplished prior to March 31, 1996. (Tr.1 at 104.)
Mr. Younger recommended that Stage II equipment be installed after remediation and
reconstruction occur to avoid disturbing the equipment or having to install it twice. (Tr.1 at
106.)
The Agency agrees that Sweeney achieved satisfactory progress toward compliance
during the prior variance; however, the Agency points out that Sweeney did not submit its first
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groundwater investigation report and CAP until January 1996, less than three months before its
variance expired. The Agency contends that it has 120 days to review groundwater
investigation reports and CAPs, and that Sweeney did not leave enough time for the Agency to
review the submitted materials prior to the termination of its variance. (PH Resp. at 4-5.)
ARBITRARY AND UNREASONABLE HARDSHIP
Sweeney contends that the situation in which the Board previously found an arbitrary or
unreasonable hardship to exist, thereby granting Sweeney the prior variance, continues to
exist. Specifically, John Gerlesits testified at hearing that Sweeney cannot install Stage II
vapor recovery systems prior to site remediation and before reconstruction of its facility,
including relocation of gasoline dispensing units. (Tr.1 at 47-48.) Sweeney further contends
that, although a modifiable CAP is in hand, demolition, remediation and installation activities
are more difficult and expensive to accomplish during winter months. Therefore, Sweeney
argues, an immediate shut down of its facility would impose an arbitrary or unreasonable
hardship. (Tr.1 at 47-51.)
The Agency agrees with Sweeney that an arbitrary or unreasonable hardship continues
to exist if Sweeney were compelled to immediately comply with Section 218.586 before site
remediation is completed. (PH Resp. at 6-7.) However, the Agency states that offsetting the
hardship is the fact that Sweeney has emitted uncontrolled VOMs for two consecutive ozone
seasons, and will continue to emit VOMs during the requested variance extension; therefore,
the Agency recommends that if Stage II equipment is not installed by March 31, 1997, the
facility be shut down on April 1, 1997 until such installation occurs. (PH Resp. at 7; Tr.1 at
9-10.)
ENVIRONMENTAL IMPACT
Sweeney states that its VOM emissions are a small percentage of total emissions in the
Chicago ozone nonattainment area; that its emissions are in a portion of the air shed that is not
the principle area of concern; and that the requested variance is during a portion of the year
when ozone formation is less rapid and less intense. (Am.Pet. At 5.)
The Agency maintains that Sweeney’s facility is located in the Chicago severe ozone
nonattainment area; as such, the Agency remains concerned with the reduction of VOM
emissions, and is engaged in a massive effort to reduce those emissions, as required by the
federal Clean Air Act. (Rec. at 6.) The Agency argues that the state of Illinois cannot accept
any setbacks in the effort to reduce VOM emissions, and installation of Stage II vapor
recovery systems are necessary to control the large source category of emissions presented by
gasoline dispensing facilities. Although the Agency calculates emissions from Sweeney’s
facility to be less than .001 percent of the total daily VOM emissions in Chicago, the Agency
argues that an extension of variance would allow uncontrolled emissions to occur during two
consecutive ozone seasons, and reiterates that Chicago’s ozone problem is largely attributed to
an aggregation of emissions from numerous small sources. (Rec. at 6-7.)
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However, the Agency recognizes that Sweeney is seeking relief from Stage II
requirements in order to mitigate potential damage to another environmental medium, and that
the environment is best served by expeditious remediation of any contamination caused by the
petroleum release. Therefore, the Agency concurs that the hardship incurred if Sweeney were
required to immediately install Stage II equipment prior to site remediation outweighs the
environmental impact resulting from the facility’s emission of uncontrolled VOM emissions
during the variance period. (Rec. at 7.)
CONSISTENCY WITH FEDERAL LAW
Pursuant to Section 35 of the Act, the Board may grant variances only if they are
consistent with the provisions of the Clean Air Act. (42 U.S.C. 7401
et seq.
) The Agency
states that the Board may grant the requested relief without violating the Clean Air Act or any
regulations promulgated thereto. By providing notice of Sweeney’s petition for variance and
by holding hearings, the Agency and the Board have adequately met the notice and public
participation requirements. The Agency asserts that it will submit any grant of variance
extension to the United States Environmental Protection Agency (USEPA) as a State
Implementation Plan amendment. (Rec. at 10-11.)
DISCUSSION
As a preliminary matter, the Board notes that in its post-hearing brief, the Agency
renewed its objection to the admission of Petitioner’s Exhibit 5 at hearing. The Agency asserts
that evidence regarding Sweeney’s installation of Stage II vapor recovery systems at its five
other retail facilities is irrelevant. The Agency further argues that if this evidence is found
relevant, then evidence of compliance achieved by other companies with multiple facilities is
also relevant. The Board finds that the evidence is relevant, and therefore affirms the hearing
officer’s ruling admitting Petitioner’s Exhibit 5.
As to the substantive issues, the Board finds the hardship that existed during the prior
variance continues to exist for Sweeney. Specifically, the Board finds that an arbitrary or
unreasonable hardship would result if Sweeney were required to install Stage II vapor recovery
systems before completion of site remediation and facility reconstruction. As stated by both
parties at hearing, once vapor recovery lines are placed in the ground they cannot be disturbed
by demolition or construction activities, nor is it sensible to install such equipment only to
remove it and re-install it after the facility is reconstructed. (Tr.1 at 36, 106, Tr.2 at 11.)
The Board further finds that Sweeney has made substantial progress towards achieving
compliance during the term of its prior variance. Namely, Sweeney has hired an engineering
firm to conduct early action activities; received Agency approval of a site classification; and
received approval of its corrective action plan, as modified by the Agency in its October 11,
1996 letter. Sweeney asserts that remediation and reconstruction activities will occur as soon
as weather permits, after which the Stage II vapor recovery equipment will be installed. The
Board therefore grants Sweeney an extension of its prior variance.
7
The Agency recommended that the facility be shut down should Sweeney fail to install
Stage II equipment by March 31, 1997. The Board concurs, noting that Sweeney has operated
its Lake Zurich facility during the past two ozone seasons without vapor recovery equipment,
and that sufficient time exists for Sweeney to install such equipment prior to the termination of
this variance extension. The Agency also recommended that, in the event Sweeney is unable
to obtain an approved or modifiable CAP on or before March 31, 1997, no further variance
extensions be granted. (M.Rec. at 5.) Since Sweeney has received a modifiable CAP, the
Board deems this recommendation to be moot.
Retroactive Application
Regarding the inception date for the requested variance, the Board notes its well-
established rule of beginning the term of a variance on the date the Board renders its decision,
absent unusual or extraordinary circumstances. (DMI, Inc. v. IEPA (December 19, 1991),
PCB 90-227, 128 PCB 245-249.) The reasoning behind this general rule is to discourage
untimely filed petitions for variance. (Fedders-USA v. EPA, (April 6, 1989), PCB 86-47, 98
PCB 15, DMI, Inc. v. EPA, (February 23, 1987), PCB 88-1332, 96 PCB 185.) As stated in
DMI, Inc., if a petitioner wishes a variance to commence on a certain date, its petition must be
filed at least 120 days prior to the desired inception date. (Id.) However, where the petition
was otherwise timely filed before the prior variance expired, the Board has moved the starting
date to the latest date by which the Act would have required a Board decision, i.e., the 120-
day decision deadline. (Monsanto Co. v. EPA, (April 27, 1989), PCB 88-206(B), 98 PCB
267.) This type of partially retroactive variance is entirely consistent with the Board’s
underlying principle of rarely granting retroactive variances.
Here, Sweeney requests that the term of its variance commence retroactively on March
31, 1996, the date its prior variance expired. (Am.Pet. at 6.) In reading the record, the
Board finds that unusual circumstances warrant a retroactive application of this variance
request. Specifically, the Board finds that Sweeney’s attempts to secure a CAP approval from
the Agency required more time than anticipated. The result of this delay was an uncertainty as
to what type of remediation would be required and how it would affect installation of Stage II
equipment. Sweeney could not reasonably install Stage II equipment before knowing whether
or not it would have to be removed to conduct site remediation. Therefore, the Board will
grant a retroactive inception date of March 31, 1996 in this matter.
CONCLUSION
The Board finds that an arbitrary or unreasonable hardship continues to exist for
Sweeney if it were required to achieve immediate compliance with the Board’s requirements
for installation of Stage II vapor recovery systems. The Board further finds that Sweeney has
demonstrated substantial progress toward achieving compliance during its prior variance.
Therefore, the Board grants Sweeney an extension of its prior variance. The variance will
retroactively commence on March 31, 1996 and terminate on March 31, 1997.
This finding constitutes the Board’s findings of fact and conclusions of law in this
matter.
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ORDER
Petitioner, J.M. Sweeney Co. (Sweeney), is hereby granted variance from the
requirements found in 35 Ill. Adm. Code 218.586 for its facility located at 24545 West Miller
Road, Lake Zurich, Lake County, Illinois. This grant of variance shall begin on March 31,
1996, and is subject to the following conditions:
1. Variance shall terminate on March 31, 1997.
2. Sweeney shall notify the Agency of the installation of any Stage II vapor recovery
equipment within 14 days of its installation. Notification shall include the address
of the facility and shall be sent to:
Mr. Dave Kolaz
Illinois Environmental Protection Agency
Bureau of Air
Compliance and Systems Management Section
P.O. Box 19276
Springfield, Illinois 62794-9276
3. If Sweeney fails to install Stage II equipment on or before March 31, 1997,
Sweeney shall close its gasoline dispensing facility located at 24545 West Miller Road,
Lake Zurich, Lake County, Illinois on or before April 1, 1997. Said facility shall not
resume gasoline dispensing operations until Stage II equipment is installed and
operational.
IT IS SO ORDERED.
If Sweeney chooses to accept this variance subject to the above order, within forty-five
days of the grant of variance, Sweeney must execute and forward the attached certificate of
acceptance and agreement to:
Tina Archer
Division of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19276
2200 Churchill Road
Springfield, Illinois 62794-9276
Once executed and received, that certificate of acceptance and agreement shall bind
Sweeney 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 the certificate is as follows:
CERTIFICATION
9
I (We), ______________________________________________, hereby accept and
agree to be bound by all the terms of the Order of the Pollution Control Board in PCB
96-184, December 19, 1996.
_________________________________
Petitioner
_________________________________
Authorized Agent
_________________________________
Title
_________________________________
Date
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 ______________.
___________________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board