ILLINOIS POLLUTION CONTROL BOARD
November 2, 1995
SPECTRULITE CONSORTIUM, INC.,
)
)
Petitioner,
)
)
PCB 96-6
v.
)
(Variance-Air)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
EUGENE P. SCHMITTGENS, JR., APPEARED ON BEHALF OF PETITIONER;
RACHEL DOCTORS APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD (by R. C. Flemal):
This matter comes before the Board upon a petition for
variance filed by Spectrulite Consortium, Inc. (Spectrulite).
Spectrulite requests variance from 35 Ill. Adm. Code
212.458(b)(25) to operate two magnesium pot furnace lines
simultaneously. Spectrulite's facility at issue is located at
1001 College Avenue, Madison, Madison County, Illinois.
Spectrulite requests the term of the variance be from July 30,
1995 until January 30, 1997, or until particular Illinois
Environmental Protection Agency (Agency) rules become effective,
whichever occurs first. (Tr. at 61.)
1
The Board's responsibility in this matter arises from the
Environmental Protection Act (Act) (415 ILCS 5/35 (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 Spectrulite has met
its burden of demonstrating that immediate compliance with the
Board regulation at issue would result in an arbitrary or
1
The transcript will be cited as (Tr. at __); the petition
will be cited as (Pet. at __); and the Agency recommendation
will be cited as (Rec. at __).
-2-
unreasonable hardship. Accordingly, the variance request will be
granted, subject to certain conditions and effective this date.
PROCEDURAL HISTORY
Spectrulite filed the petition in this matter, along with a
motion for expedited hearing, with the Board on July 12, 1995.
The Board accepted the matter for hearing and granted the motion
for expedited hearing on July 20, 1995.
Pursuant to 35 Ill. Adm. Code 104.180(a), the Agency's
statutory recommendation was originally due on August 13, 1995.
On August 28, 1995 the Agency filed a motion to file its
recommendation instanter, which the Board granted on September 7,
1995. On August 28, 1995 the Agency filed its recommendation,
wherein it recommended that the variance be granted only until
July 30, 1996
subject to certain conditions. Subsequent to that
filing, at hearing Spectrulite requested (Tr. at 61), and the
Agency attorney recommended, to extend the term of the variance
until January 30, 1997. (Tr. at 5.)
The hearing was held on September 20, 1995 in Springfield,
Illinois before Board Hearing Officer Michael Wallace. Two
members of the public were in attendance at the hearing. In
addition to testimony, the parties entered two exhibits. The
parties did not file any post-hearing briefs.
STATUTORY FRAMEWORK
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
regulation at issue would pose an arbitrary or unreasonable
hardship. (415 ILCS 5/35(a) (1994).) Furthermore, the burden is
on petitioner to show that its claimed hardship outweighs the
public interest in attaining immediate compliance with
regulations designed to protect the public. (Willowbrook Motel
v. Pollution Control Board (1st Dist. 1977), 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.
(We Shred It, Inc. v. Illinois Environmental Protection Agency,
(November 18, 1993), PCB 92-180 slip op. at 3.)
A further feature of a variance is that it is, by its
nature, a temporary reprieve from compliance with the Board's
regulations, and compliance is to be sought regardless of the
hardship which the task of eventual compliance presents an
individual polluter. (Monsanto Co. v. Pollution Control Board,
(1977), 67 Ill.2d 276, 367 N.E.2d 684.) Accordingly, except in
certain special circumstances, a variance petitioner is required
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as a condition to the grant of a variance, to commit to a plan
which is reasonably calculated to achieve compliance within the
term of the variance.
The regulation that is the subject of the instant variance
request was adopted by the Board as part of Illinois' state
implementation plan (SIP) for the Granite City moderate PM-10
2
nonattainment area. The pertinent regulation is as follows:
b)
Emission Limitation. No person shall
cause or allow emissions of PM-10, other
than that of fugitive particulate
matter, into the atmosphere to exceed
the following limits during any one hour
period:
* * * * *
25)
magnesium pot furnaces at secondary
aluminum smelting and refining
plant located in the vicinity of
Granite City, as defined in Section
212.324(a)(1)(C), can be operated
only one line at a time;
35 Ill. Adm. Code 212.458 (1994)
Compliance with this rule was required by December 10, 1993.
(35 Ill. Adm. Code 212.458(e).) According to Spectrulite, it has
achieved compliance since the effective date of the regulation.
(Pet. at 3.) Spectrulite is requesting variance from 35 Ill.
Adm. Code 212.458(b)(25) from July 30, 1995 until January 30,
1997, or until the regulation is amended, whichever occurs first.
These regulations pertaining to the magnesium pot furnace
lines are currently the subject of negotiated rulemaking by the
Agency, and are scheduled to be amended to allow the operation of
two magnesium pot lines. (Pet. at 2.) The Agency plans to
address Spectrulite's concerns in a rulemaking proposal to the
Board this fall. (Rec. at 3.)
2
PM-10 is particulate matter with a diameter of 10 microns
or less.
-4-
BACKGROUND
Spectrulite is a manufacturer of aluminum alloy and
magnesium alloy products. The raw materials used in its
operations consist of primary metal, purchased scrap, and in-
house scrap. The aluminum and magnesium are cast into billets
and sold as is or sent to rolling mills or extrusion presses.
The subject of this variance is the magnesium operation.
Spectrulite produces three classes of magnesium products, slabs
for rolling, round billets for extrusion or forging, and die cast
remelt ingot. (Tr. at 10.)
Spectrulite's unique manufacturing of die cast remelt ingots
is significant as regards the instant matter. These recycled
magnesium die cast ingots are of a quality equal to primary
ingots, which are made from pure magnesium. (Pet. at 1; Tr. at
10.) As a result of this novel recycled process, the sales of
magnesium products has increased from 200,000 pounds in the first
half of 1995 to over 4 million pounds for the second half of
1995. (Pet. at 1-2.) Mr. Chris Barnes, Spectrulite's chief
operating officer, testified at hearing that the reason for the
huge increased market demand for die cast products is because the
California Automotive Fuel Efficiency (CAFE) standards being
implemented require lighter-weight cars to meet fuel efficiency
standards, and magnesium is a very light metal suitable for
making automobile parts such as instrument panels, steering
wheels and transmission housings. (Tr. at 22-23, 28.) Mr.
Barnes testified that the recycled die cast orders alone
increased to an average of about 600,000 pounds a month for the
remainder of this year, and estimates 1996 orders will be 750,000
to 800,000 pounds a month. (Tr. at 24.) Consequently,
petitioner is requesting additional production capabilities to
meet the new order requirements. (Pet. at 3.)
The operation has three magnesium pot furnace lines: slab
unit, billet unit, and intermittent unit. Spectrulite is
currently limited to operating only one line at a time due to
environmental regulations, labor laws which prohibit operating
continuous shifts, and the inability to operate or have people
work for more than thirteen consecutive days without shutting
down. (Tr. at 11-12.) The company projects that adding the
operation of another magnesium pot furnace line will result in
employment of an additional 30 individuals. (Tr. at 25.)
Spectrulite currently employs 300 hourly and 120 management
employees. (Pet. at 2.)
Mr. Bill Moore, Spectrulite employee, testified at hearing
that there are not any commercial emission control technology
systems available for controlling the magnesium pots. (Tr. at
13.) The emissions from the magnesium pot furnaces emit directly
to the building atmosphere and are then drawn to the roof where
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they are exhausted through ventilator fans. (Rec. at 2.) It is
the magnesium "burning" that causes particulate emissions. (Tr.
at 14.) According to the Agency, molten magnesium is easily
oxidized and the surface of the bath in the pot is covered with a
flux, in this instance salt, to minimize contact with the air.
(Rec. at 2.)
DISCUSSION
Compliance Status
In order to comply with Title V of the Clean Air Act (CAA),
Spectrulite applied for a Federally Enforceable State Operating
Permit (FESOP). (Tr. at 31.) The maximum particulate emissions
which had been applied for by the facility in its FESOP was 77.36
tons per year for the entire facility, including both aluminum
and magnesium operations (of which about 40% is magnesium).
(Pet. at 3; Tr. at 31.) The 1994 emissions from operating a
single magnesium pot furnace line were 10.93 tons. (Pet. at 3.)
Spectrulite believes the increased emissions necessary to meet
the demand of additional orders and from the operation of two
lines will be 2.0 tons, totalling 12.93 tons. (
Id
.) As a
result, it has amended its FESOP application to 35.92 tons per
year. (
Id
.) According to the Agency, Spectrulite's variance
request is consistent with its proposed FESOP conditions. (Rec.
at 5.)
Spectrulite's current operating permit for the subject
emission units is valid until February 17, 2000. (Rec. at 4.)
It has been in compliance with the regulation since its
effective date. (Pet. at 3.) Agency engineer, Jeffrey Benbenek,
testified that petitioner is currently not in violation of any
rules. (Tr. at 43.)
Compliance Plan and Compliance with Federal Law
Spectrulite has examined its options to meet the
requirements of Section 212.458 including control technology and
alternative scheduling. Regarding control technology, it is
currently developing pot covers to reduce emissions of
particulates
3
. (Pet. at 4; Tr. at 14-15.) However, because this
development is not a condition of the Agency's recommendation to
grant this variance, and Spectrulite is only committing to
testing the covers, the Agency did not address these efforts
(Rec. at 8), nor will the Board today.
3
There is no other existing, feasible control technology
compatible with Spectrulite's facility. (Pet. at 5.)
-6-
The second alternative to compliance is alternative
scheduling, currently in use. Spectrulite claims a host of
problems associated with this alternative scheduling, including
that it prohibits any flexibility for increases in production and
is therefore not a viable long-term option (Pet. at 5), which are
addressed in the hardship section of this discussion.
Spectrulite proposes to achieve compliance when the Agency
finalizes its proposed rulemaking. The status of that rulemaking
is as follows. The United States Environmental Protection Agency
(USEPA) has conditionally approved Illinois' PM-10 SIP. However
the USEPA has identified changes that the Agency plans to address
in the form of a rulemaking to be filed with the Board this fall.
(Rec. at 3.) Within this rulemaking the Agency intends to
include an amendment to 35 Ill. Adm. Code Part 212 allowing
Spectrulite to operate two magnesium pot furnace lines
simultaneously. (
Id
.) The Agency expected to concurrently file
the rulemaking encompassing this variance with its
recommendation, but was delayed and has not yet filed such
rulemaking.
According to the Agency, the granting of this variance will
not adversely impact air quality, it is consistent with the CAA
and is approvable by the USEPA. (Rec. at 7.)
Environmental Impact
Spectrulite asserts granting this variance will have no
adverse impact on human, plant, or animal life in the affected
area. (Pet. at 6.) According to the Agency, modeling analyses
for the Granite City area also indicated that this variance will
not negatively impact air quality. (Rec. at 4, 5.) The Agency
model combined emissions from other area PM-10 sources and found
that such operation did not exceed the annual or daily national
ambient air quality standards (NAAQS) for PM-10 (Rec. at 5) and
will not negatively impact the SIP for this area (Rec. at 3).
At hearing Jeffrey Benbenek, Agency Engineer, testified that
previous Agency modeling has been updated to reflect new
information. First, the original model showed ventilator
capacity over the pot furnaces was 16,000 actual cubic feet per
minute (ACFM), whereas the current capacity is 40,000 ACFM. (Tr.
at 42.) Second, only one fan was originally used for each area
at 16,000 ACFM, but there are now three fans with the capacity of
40,000 ACFM each. (
Id
.) Such discrepancies show generally the
more ACFM, the more dispersion of contaminants, with less of an
impact at ground level. (Tr. at 42-43.) The updated modeling
results indicate that the existence of two simultaneously-
operating lines would not cause or contribute to a PM-10 air
quality violation. (Tr. at 41.)
-7-
The Agency's modeling technique consisted of a number of
other revisions in the emissions inventory including the emission
sources themselves, parameters for stack location, temperature,
flow rate, and exhaust points at the facility. (Tr. at 41-42.)
Mr. Benbenek testified that modeling showed no adverse impact on
air quality in the region if the variance was granted. (Tr. at
44.) He classified Spectrulite as a small to moderate source of
PM-10 emissions. (Tr. at 43.)
Two members of the public, Kathy Andria, on behalf of the
Madison County Conservation Alliance (Tr. at 46-52), and Jean
Bowers (Tr. at 52-54), made statements at hearing regarding the
economics and environmental impact of the additional line. The
Board believes Mr. Schmittgens of Spectrulite and Ms. Doctors of
the Agency adequately addressed those issues
4
.
Hardship
Spectrulite asserts that in the absence of grant of variance
it would suffer an economic hardship not justified because the
Agency's imminent rulemaking will allow it to operate two lines.
(Pet. at 7.) Spectrulite states that current alternative
scheduling causes it to suffer. For example, it cites the
additional expenses relating to the frequent start-up and shorter
process runs due to alternate scheduling. Mr. Moore testified at
hearing that shutting down a line and then starting another from
a cold start takes about 10-12 hours to bring the unit up to
casting temperatures, and costs around $7200 per start up system,
beside the long term negative impacts. (Tr. at 12-13.)
Additionally, Spectrulite claims a hardship due to overtime
personnel costs to operate, supervise and maintain a single line.
(Pet. at 6.)
Petitioner contends that long-term alternate scheduling is
infeasible and will likely result in lost sales due to inability
to meet orders. (
Id
.) It has a unique business opportunity with
increased orders for magnesium ingots and it will loose this
business opportunity if forced to operate under regulations which
do not reflect the current environmental conditions of the area.
(Pet. at 7.) Additionally, it cannot take advantage of creating
job expansion in an economically depressed area. (Pet. at 7,
Rec. at 4.)
The Agency agrees that these costs are an arbitrary and
unreasonable hardship because of the circumstances, the results
of their modeling, and the fact that there has been no violations
4
Ms. Andria requested to submit a written statement post-
hearing. However, the Board has not received any statement from
Ms. Andria regarding this variance. (Tr. at 62.)
-8-
of the NAAQS for five years in the Granite City area. (Rec. at
6-7.)
The Board has found that a speculative change in the law is
usually not grounds for establishing arbitrary or unreasonable
hardship. (Citizens Utilities Company of Illinois v. IPCB
(1985), 134 Ill. App.3d, 111, 115; Village of Seneca v. IEPA,
February 2, 1987, PCB 86-195, 188 PCB 166.) In particular, a
variance petitioner should not be able to create a proposed rule,
and then assert that compliance with the existing rule is
arbitrary or unreasonable because there is a proposal pending to
amended the existing rule.
Here, however, the Agency is the intended rule proponent.
The Agency maintains that the rule needs to be amended and that
it intends to formally propose this changed to the Board. The
Board believes that under this circumstance the speculative
nature of the change in law should not be an impediment to a
finding of arbitrary or unreasonable hardship.
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) (1994).)
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.
The Board agrees with the Agency that Spectrulite's
operation of an additional pot furnace line will not negatively
impact air quality. Therefore, based upon the record before it
and upon review of the hardship petitioner would encounter, the
Board finds that petitioner has presented adequate proof that
immediate compliance with the regulations at issue would result
in an arbitrary or unreasonable hardship. The variance
accordingly will be granted.
Petitioner has requested that the variance commence on July
30, 1995 and end on January 30, 1997. Spectrulite filed the
petition for variance with the Board on July 12, 1995, along with
a motion for expedited hearing. Although the Board granted the
motion and set this matter along as expeditiously as possible,
the Board cannot grant variance in such a short period of time.
The Board notes that it is well established practice that
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the term of a variance begins on the date the Board renders its
decision unless unusual or extraordinary circumstances are shown.
(See DMI, Inc. v. IEPA, (December 19, 1991) PCB 90-227, 128 PCB
245-249.) The Board fails to see any unusual or extraordinary
circumstances in the instant matter. Moreover, Spectrulite
admits that it "has complied with the emission limitations by
altering its operation in such a manner as to limit magnesium
production to one line at a time" (Pet. at 6), and apparently
therefore has neither been out of compliance nor is in need of
the enforcement shield provided by a retroactively-dated
variance. Therefore, the Board sees no justification or need to
grant this variance retroactively, and declines to do so.
Lastly, the Board has reviewed the conditions that the
Agency submitted. The Board agrees that the conditions are
necessary to the grant of variance, and accordingly they will be
included within the variance order.
This opinion constitutes the Board's findings of fact and
conclusions of law in this matter.
ORDER
Spectrulite is hereby granted a variance for its 1001 College
Avenue facility, in Madison, Illinois from 35 Ill. Adm. Code
212.458(b)(25), allowing it to operate two magnesium pot furnace
lines at a time, subject to the following conditions:
1)
This variance is effective beginning November 2, 1995.
It terminates on January 30, 1997.
2)
Spectrulite shall not operate two magnesium pot furnace
lines unless at least two ventilators for each line are
in operation.
3)
Spectrulite shall maintain the building housing the
lines to minimize the escape of emissions from any
opening other than the roof ventilators and vent door.
Spectrulite shall conduct weekly inspections of the
building.
4)
Spectrulite shall maintain records of the operating
hours, amount of magnesium cast at each of the pot
furnace lines, as well as of all maintenance and
inspections performed pursuant to the above conditions.
Such records must be made available to the Illinois
Environmental Protection Agency immediately upon
request.
IT IS SO ORDERED.
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If Spectrulite chooses to accept this variance subject to
the above order, within 45 days of the date of this order
Spectrulite shall execute and forward to:
Rachel Doctors
Division of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19276
2200 Churchill Road
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 96-6,
November 2, 1995.
Petitioner____________________________________________________
Authorized Agent______________________________________________
Title_________________________________________________________
Date__________________________________________________________
Board Member M. McFawn concurred.
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".)
-11-
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 ______________________, 1995 by a
vote of ______________.
_________________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board