ILLINOIS POLLUTION CONTROL BOARD
April 24,
1975
LAKEWOOD ENGINEERING
& MFG. CO.,
)
)
Petitioner,
)
)
V.
)
PCB 75—42
)
ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
)
OPINION AND ORDER OF THE BOARD
(by Mr.
Zeitlin)
Lakewood Engineering
& Manufacturing Company (Lakewood)
filed this
Petition for Variance from Sections 8 and
9 of the Environmental Protection
Act
(Act)
on January
27,
1975,
111,
Rev, Stat,
Ch,
111½,
Sec.
8,
9
(1975),
As will be shown below,
the Pollution Control Board
(Board)
interprets this as a request for extension of the previously granted
Variance from the requirement of Rule 205(f) of the Boardts Air Pollution
Control Regulations.
~
PCB 74—173,
13 PCB 265
(1974).
The Board on August
1,
1974 granted Lakewood a Variance from Rule
205(f), which Variance expired on February 1, 1975.
The Board in that
case found
that due to the unavailability of exempt solvents,
Petitioner
could not achieve compliance with the Rule 205(f)
limit of 8 lbs./hour
of organic material emissions,
The Board also noted that Petitioner was
causing the emission of approximately 59 lbs./hour of organic material
as a result of paint spraying and drying connected with the manufacture
of electric fans at Lakewood~sChicago facility
13 PCB at 265.
In its Petition,
Lakewood again alleges that exempt, nonphotochemically
reactive solvents are still unavailable,
In support of its Petition,
Lakewood submitted several letters from its paint and solvent supplier
stating that such exempt solvents remain unavailable,
and will continue
to be unavailable throughout 1975.
On March 10, 1975 the Environmental Protection Agency (Agency)
filed an Objection to the Petition for Variance and Motion for Hearing.
In an Order dated March 13,
1975, this Board denied the Agency’s Motion,
and ordered the case held for an Agency Recommendation.
The Agency
Recommendation thereafter filed on March 25,
1975,
suggests that the
Board deny Lakewood’s Petition for Variance.
No hearing was held in the
mat
t
er.
The Agency Recommendation clarifies several matters which cannot be
determined on the face of Lakewood’s Petition.
The Agency pointed out
that the Petition herein relates to the prior Variance in PCB 74—173.
Further,
the Agency alleges that Petitioner has failed to comply with
the conditions imposed as part of the Variance granted in the earlier
case.
The Agency alleges that Lakewood has failed to file a compliance
16—467
—2—
plan, and has not submitted regular monthly reports
to the Agency, both
actions required under the prior Variance.
Of particular importance in
this matter,
the Agency alleges
that Lakewood’s claim of exempt solvent
unavailability
is untrue,
and submits
that hydrocarbon emissions from
the Lakewood plant are actually 248.2
lbs./hour during the peak season
(February to June).
The Board will not grant
the Variance requested by Petitioner.
This denial,
however, would
be reached by the Board even in
the absence
of
an Agency Recommendation that the Variance be
denied.
First, Lakewood requests relief from Sections
8 and
9 of
the Act.
It
is patently clear
that
the Board cannot grant a Variance from Section
8 of
the Act.
That Section
sets out only the findings and intent of
the
General Assembly
in enacting Title 2:Air Pollution,
of
the Act.
It
is
beyond the power
of the Board to grant a Variance from such findings and
purposes;
the Board is instead bound by them in all its actions relating
to air pollution.
Nor can the Board grant Petitioner its requested Variance from
Section
9 of the Act.
Although the Board might make inferences,
based
on other
information
contained
in
the
Petition
—(notable primarily for
its
lack of clarity)— Petitioner does not specify which portion of
Section
9
it seeks relief from.
And
it
is unimaginable
that a situation
would arise wherein the Board would grant a general Variance,
for
any
period, from the broad sweeping limitations of that Section.
Nor may the Board here grant a Variance from Rule 205(f)
of Chapter
2.
Even if the Board follows
the Agency’s lead, and assumes
that Petitioner
is seeking an extension
of its Variance from Rule 205(f)
as granted in
the earlier case,
Petitioner presents us with insufficient facts upon
which such an extension could be based,
much less to meet the requirements
for
a new Variance.
Section 36(b)
of the Act states that a Variance may
be extended only if satisfactory
progress has
been shown.
Petitioner’s
bald allegation
of “diligent search and inquiry” is not supported in its
Petition. Petitioner has shown no progress towards compliance.
Rather,
it simply asks for an extension of its Variance by one year
or until
exempt solvents become available, whichever is
sooner.
(It should also
be noted that Lakewood does not state with certainty when,
if ever,
exempt solvents will be available.)
Further, the Petition is on its face contraditory.
Lakewood requests
a Variance until exempt solvents become available,
but notes that
it
could achieve compliance on or before May
30,
1975 by the use
of high—
solid paints.
Petitioner has not met
its burden in
this matter.
It has failed
to
show either satisfactory progress
to date,
or unreasonable hardship
should this Variance be
denied.
Petitioner may,
of course,
return to
the Board and show that these and the other requirements
for a Variance
have
in
fact been met;
but if
it
chooses
to do so,
it must adequately
present
the Board with
a sufficient basis on which to rest its decision.
16
—468
—3—
This Opinion constitutes
the findings of fact and conclusions
of
Law of
the Board
in this matter.
ORDER
IT
IS THE ORDER
of
the Pollution Control Board
that the Petition in
this matter be dismissed without prejudice.
I,
Christan
L. Moffett,
Clerk of
the Illinois Pollution Control
Board hereb~ycertify
that the above Opinion and Order were adopted on
the
~~~day
of ___________________________________,
1975 by a vote
of
gte
~
Illinois Pollution Co~
Board
16—469