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September 21,

1995

THE DOW CHEMICAL COMPANY,

)

Petitioner,

v.

)

 PCB 94—370

)

 (Variance—Air)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

OPINION

AND

 ORDER OF THE BOARD (by N. McFawn):

On December 2,

 1994,

 The Dow Chemical Company

 (Dow)

 filed a

petition for an air variance regarding its manufacturing

facility, located in Channahon, Will County

 (the site).

Dow

seeks a variance from the requirements of

 35 Ill. Adn. Code

218.120, 218.127, 218.128, and 218.129 as they apply to a fixed—

roof storage tank containing trichloroethylene

 (TCE).

The Illinois Environmental Protection Agency (Agency)

 filed

its recommendation

 in this matter on February

1,

 1995,

recommending that the variance be granted,

 subject to certain

conditions.

 A hearing was held in Springfield, Illinois before

Chief Hearing Officer Michael Wallace on June

1,

 1995.

 No post-

hearing briefs were filed.

Because we find that immediate compliance with these

regulations would impose an arbitrary and unreasonable hardship

upon Dow, we grant the requested variance.

BACKGROUND

Dow is a Delaware corporation, registered to do business in

Illinois.

 Dow owns and operates a manufacturing facility,

located on an 860—acre site on the Des Plaines River, near the

intersection of Arsenal Road and Interstate 55,

 in the town of

Channahon, Will County, approximately 10 miles south of Joliet.

There are four plants at the site:

 1) a polystyrene production

plant;

 2) an extruded polystyrene foam production plant;

3)

a

vinyl ester resin production plant; and

 4) a marine distribution

terminal.

 (Pet.

at

2.)

The site employs 130 full time Dow employees as well as

numerous contract personnel.

 (Pet. at

2.)

 It has been in

operation since the mid-1970s, and has undergone several

expansions

 since that tine.

 The site is located in the Chicago

Ozone Non-Attainment Area,

 and emissions from cert~instorage

tanks at its facility are therefore subject to the requirements

of 35 Ill. Adm. Code Subpart B, Organic Emissions from Storage

and Loading Operations, which became effective November 15,

 1994.

STATUTORY

FRAMEWORK

determining

whether

any

variance

granted,

the

Act

requires

the

Board

determine

whether

petitioner

has

presented

adequate

proof

that

immediate

compliance

with

the

Board

regulation

at

issue

would

pose

arbitrary

unreasonable

hardship.

(415

ILCS

5/35(a)

(1994).)

Furthermore,

the

burden

petitioner

show

that

its

claimed

hardship

outweighs

the

public

interest

attaining

compliance

with

regulations

designed

protect

the

public.

(Willowbrook

Motel

Pollution

Control

Board

(1st

Dist.

1977),

 135 Ill.App.3d 343,

481

N.E.2d

1032).

Only with such 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 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

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.

REGULATION OF GENERAL APPLICABILITY

The regulations from which Dow seeks relief were adopted by

the Board in docket R94-16, entitled “In the Matter of:

15

ROP

Plan Control Measures for VON Emissions

 Part III: Air Oxidation

and organic Emissions from Storage and Loading operations;

Amendments to 35 Ill.

 Adm. Code 211,

 218, and 219.”

 These

regulations implement part of the State’s plan to achieve a 15

reduction from 1990 levels in VON emissions in the Chicago and

Metro—East ozone non—attainment areas as mandated by the Clean

Air Act

 (CAA)

 (42 U.S.C. 7401 et

seq.),

known as the 15

 Rate of

Progress

 (ROP)

 Plan.

 The regulations adopted to implement the

ROP must be submitted to the United States Environmental

Protection Agency

 (USEPA)

 as modifications to the State

Implementation Plan

 (SIP).

Dow filed its variance application within 20 days of the

effective date of these regulations.

 Therefore, pursuant to

Section

 38 of the Act, the effect

of

thcoc rules

is

stayed as to

Dow pending the Board’s disposition of this variance petition.

(35 ILCS 5/38

 (1994).)

Section

218.120

the

adopted

regulations

 establishes

control requirements for storage containers with a capacity of

40,000 gallons or greater which store volatile organic liquids

(VOL) with a maximum vapor pressure equal to 0.75 pounds per

square inch absolute

 (psia) but less than 11.1 psia.

 (35 Ill.

Adm. Code 218.120(a).)

 In order to comply with the requirements

of Section 218.120, Dow would be required to equip tank V-Sb,

which currently contains the TCE, with an internal floating roof

that meets certain specified requirements, or a closed vent

system and control device that meets certain specified

requirements.

 The remaining regulations from which Dow seeks

relief establish additional requirements for subject tanks:

Section 218.127 establishes testing requirements; Section 218.128

establishes monitoring requirements; and Section 218.129

establishes recordkeeping and reporting requirements.

REQUESTED RELIEF AND HARDSHIP

Relief

Sought.

Dow seeks relief from the requirements of Sections 218.120,

218.127,

 218.128. and 218.129 as they apply to an atmospheric

fixed—roof storage tank currently in use at its manufacturing

facility, identified in its air operating permit as storage tank

V-5l0.

 (Pet.

at

3.)

 Dow currently uses this tank, which has a

capacity of more than 40,000 gallons,

 to store trichloroethylene

(TCE),

 a volatile organic liquid with a true vapor pressure of

1.2 psia.

 Storage of TCE in this tank is thus subject to the

requirements of Part 218 Subpart

B.

Dow currently unloads railcars of TCE into storage tank V—

510.

 The TCE is then loaded out of this tank into tank trucks

for delivery to the point of use of the chemical.

 The tank truck

loading operation is equipped with a vapor balance system, which

recovers displaced vapors from the tank truck and returns them to

the vapor space of the storage tank.

 VON emissions from the tank

and

system

are

estimated

approximately

2,400

pounds

per

year

 (lbs/yr.).

 (Pet.

 at 7.)

Dow has three other tanks at the site,

 identified in its air

permit as storage tanks V-420, V-425,

 and V-440,

 in which it

stores 1,1,1—trichloroethane, a chlorinated solvent.

 Emissions

 from these three tanks are vented to

 a condenser designed to

reduce emissions by 90 percent or greater.

 Pursuant to the

Montreal Protocol on Substances That Deplete the Ozone Layer,

Section 604 of the

CAA

 (42 U.S.C. 7671c),

 and implementing

regulations found at 40 C.F.R. Part 82, 1,1,1-trichloroethane may

not be manufactured after 1995.

 (Pet.

at

4.)

 Therefore,

 these

three tanks will no longer be used to store 1,1,1—

trichioroethane after early to mid-1996.

 (Pet.

at

4.)

‘I

Storage

tanks

V-420,

V-425,

and

V-440

meet

 the control

requirements specified in 35

 Ill. Adm. Code 218.120(c), which

requires the implementation of

 a closed—vent system which will

collect all VON vapors discharged from the tank and a control

device designed to reduce inlet VON emissions by 90 percent or

greater.

 (35 Ill. Adm. code 218.120(c).)

 Because these tanks

will no longer be used to store b,b,b—trichloroethane, Dow

proposes to use one of these tanks to store the TCE.

 At hearing,

Dow

specified

 that

 it has identified tank V-440

as

the tank to

which it will transfer the TCE.

 (Tr.

at

 14.)

Dow states that transferring the TCE to a compliant tank

would reduce annual emissions to approximately 240 lbs/yr., at

minimal cost.

 Because the compliant tanks are equipped with a

closed—vent system which collects all VON vapors discharged from

the tank, and a control device designed and operated to reduce

inlet VON emissions by 90 percent or greater, working and

breathing emissions would be reduced by approximately ninety

percent.

 Additionally, the vapor balance system on the tank

truck loading system could be maintained.

 overall, emissions

from the storage and loading of TCE would be reduced from 2,400

to 240 lbs/yr.

 Dow asserts that this

 is the most cost effective

compliance option.

 Dow also emphasizes that this option will not

have the effect of transferring pollution from one medium to

another.

Dow states that it will be necessary to take the compliant

storage tank V-440 out of service for a brief period of time

after removing the l,l,l-trichloroethane in order to clean the

tank and prepare it for storing the TCE.

 In its petition, Dow

states that it cannot complete the process of transferring the

TCE to one of the controlled tanks by the March 15,

 1996 deadline

for compliance with the Subpart B requirements.

Therefore,

 Dow seeks relief from the requirements of Subpart

B until such time as it ceases management of the 1,1,1—

trichlorethane,

 completes the cleaning of one of the controlled

 tanks, and accomplishes the transfer of the TCE to one of the

controlled tanks.

 (Pet.

 at 5.)

 In its variance petition,

Dow

originally requested that the variance extend until March 15,

1997,

 or until it has completed the transfer of the TCE,

whichever comes first.

 However,

 at hearing, Dow stated that it

now only seeks a variance until December 31,

 1996, or until Dow

has completed the transfer of TCE, whichever comes first.

 This

plan is in accordance with the recommendation of the Agency.

(Tr. at

8,

 15.)

Compliance Options.

Dow investigated three types of measures as alternative

means of achieving compliance with the requirements of 218.120.

These measures can be grouped into three categories:

1)

installation of a floating roof;

2)

 installation of an emissions

control device; and

 3) installation of control

measures

its

railcar loading operations.

Dow estimates that installing an internal floating roof on

storage tank V-510 would cost between $60,000 and

$100,000.

However, while the floating roof would control the breathing and

working

losses

from

the

storage

tank,

Dow

asserts

that

 could

 not continue operating the vapor balance line which controls

emissions from the truck loading operation in conjunction with

the floating roof,

 because vapor balance does not work with

floating

roofs.

Loss

the

vapor

balance

 system would result in

emissions of approximately 800 lbs/yr.

 Thus,

 there would

therefore only be a net decrease in emissions of sixty—seven

percent for the overall system.

 (Pet.

 at 8.)

Dow investigated the installation of four different types of

emissions control devices on tank V—510.

 First, Dow investigated

in~tai.iatioi,

of

 ~ “pressure swing” adsorption

 unit known

 as a

Sorbathene unit,

 which is manufactured by another division of

Dow.

 Installation of this unit would cost approximately

$500,000.

Second, Dow investigated the installation of a “temperature

swing”

unit

called

Purus

A2000,

 which is capable of controlling

TCE emissions.

 Dow states that this unit would cost

approximately $130,000.

 However, Dow asserts that it is

questionable

whether

this

device

would

 work on its tank,

 since

the concentrations of TCE at its tank would be much greater than

the 80 ppm described in the company literature concerning this

 control device.

Third,

Dow

 investigated the installation of an incinerator

as a control device.

 Dow states that the incinerator would have

to be a thermal oxidizer with heat recovery, followed by a series

of

scrubbers for recovery of hydrogen chloride emissions.

 This

would produce an aqueous acid waste.

 Dow characterizes this as a

transference

 of pollution to a medium more difficult and

expensive

treat.

The

site

not

currently

equipped

handle

such a wastestream,

 and would therefore be required to construct

a wastewater treatment facility to handle this waste.

 Dow has

not

estimated

the

actual

cost

constructing

such

 facility,

although

states

 it would be very expensive.

 (Pet. at 9.)

Fourth,

 Dow investigated installing a flare as a control

device.

 However, operation of a flare would result in the

formation of hydrogen chloride gas, and Dow states that it

considers this an unacceptable transference of pollution.

Finally, Dow investigated the option of installing a vapor

balance

system

 its railcar loading activity as an alternative

to transferring the TCE to a compliant tank.

 Dow states that

this would

cost

approximately $20,000.

 However, Dow states that

the emissions reduction would only amount to 1,200 to 1,300

lbs/yr., which would be far fewer than those gained by

transferring the TCE to a compliant tank.

 (Pet.

at

9.)

Additionally, the installation of these controls would not

satisfy the requirements of the regulations, and Dow would

therefore

still

need

obtain

 adjusted standard from the

Board in order to be in compliance.

Hardship.

Dow asserts that immediate compliance with the regulations

at issues would impose an arbitrary and unreasonable hardship on

Dow.

 Dow asserts that requiring it to spend $60,000 to $100,000

on an internal floating roof or $130,000 to $500,000 on a

pressure swing or temperature swing adsorption device, or

requiring the installation of vapor controls on the railcar

loading activity would result in an arbitrary and unreasonable

hardship which outweighs the publicS interest in attaining

immediate compliance with the applicable regulations.

Dow

emphasizes that there will be no increase in emissions during the

life of the variance, and that it will achieve compliance by the

onset of the 1997 ozone season.

 Furthermore, Dow emphasizes that

under its proposed option, the voluntary emissions control on the

loading operations can remain in place.

 Dow states that its

proposed compliance option will result in the greatest permanent

overall reduction in VON emissions.

CONSISTENCY WITH FEDERAL LAW

Dow asserts that the proposed variance can be granted

consistent with federal

 law.

 The requirements of Section 110(a)

of the

CAA

and 40 C.F.R.

 51 have been satisfied by the hearing

held in this matter.

 Furthermore, Dow is requesting that Agency

submit the variance to the USEPA as a SIP revision after the SIP

is approved.

ENVIRONMENTAL IMPACT

Dow states that emissions from tank V—510, where it is

currently storing TCE,

 are estimated to be 1.2 tons per year.

Dow asserts that these emissions will not be increased during the

term of the variance, and that the environmental impact will

therefore be no different from its current status.

 Dow has

agreed to accomplish the transfer of the TCE to a compliant

tank

before the end of 1996, so the reductions achieved can be

credited towards the 15 percent

 flOP Plan.

Dow also asserts that it has voluntarily

 instituted

 measures

to reduce emissions at the site.

 Dow cites as examples its

installation of controls at its marine distribution terminal,

including

vapor

recovery

systems

or tank truck loading,

 in the

early 1980’s, and its conversion from a blowing agent containing

chiorofluorocarbons to one containing hydrochlorofluorocarbons at

the polystyrene foam production plant.

 Dow asserts that these

measures significantly reduced the emission levels of

contaminants.

 (Pet.

at

7.)

AGENCY RECOMMENDATION

The Agency filed its

recommendation

 in this matter on

February 1,

 1995, recommending that the variance be granted,

subject to certain conditions.

 The Agency states that granting

the requested variance will not increase the likelihood of an air

quality exceedence, and agrees that transferring the TCE to a

complying tank is the preferred compliance option, since it will

achieve the greatest reduction in emissions, with the least

transference

pollution,

the

lowest

cost.

(Ag.

Rec.

4.)

The

Agency

also

 believes that the variance would be approvable as

a SIP revision,

 if the underlying regulations are approved by

USEPA prior to the expiration of the variance.

As a condition to grant of the variance, the Agency

recommends limiting the term of the variance until December 31,

1996.

 Pursuant to Section 182(b)

 of the

CAA

 (42 U.S.C.

7511a(b)),

 Illinois must demonstrate to USEPA that it has

achieved a 15 percent reduction in VOM by the end of 1996.

The

reductions in VOM emissions which will be achieved by Dow’s

compliance can only be credited toward the mandated 15 percent

reduction if they are achieved within this timeframe.

 The Agency

also recommends that Dow be required to notify the Agency when

any of tanks V—420, V-425,

 or V-440 has been emptied of 1,1,1-

trichioroethane and cleaned, and again notify the Agency when the

transfer of TCE has been completed, and the number of the tank in

which the TCE is stored.

we find that the conditions recommended by the Agency are

reasonable, and we therefore will include them as terms of the

variance.

CONCLUSION

The Board finds that Dow has demonstrated that immediate

compliance with the requirements of 35 Ill. Adm. Code 218.120,

218.127,

218.128,

and

218.129

would

constitute

arbitrary

and

unreasonable hardship.

 Both Dow and the Agency agree that

granting of the requested variance will not increase the

likelihood

 of an air quality éxceedence.

 Furthermore, the State

will be able to include the emission reductions achieved by Dow’s

compliance at the expiration of the variance for purposes of the

 15 Percent

 flOP Plan.

 Dow ha~ dcmonotratcd that tranoferring

the

TCE

to one of

its

compliant

tanks

 will achieve the greatest

reduction in emissions,

 with the least transference of pollution,

at the lowest cost.

 The Board therefore

grants

 the requested

B

variance, as recommended by the Agency, subject to the conditions

contained in the order below.

ORDER

Dow Chemical Company is hereby granted a variance from the

requirements of 35 Ill. Adm. Code 218.120, 218.127, 218.128, and

218.129 as they apply to the storage of trichloroethylene

 (TCE)

in storage

tank V-510

at

its

facdlity

 located near the

intersection of

 Arsenal Road and Interstate 55 in the

town

of

Channahon,

 Will County,

 Illinois, subject to the following

conditions:

1.

 The variance expires on December 31,

 1996,

 or when Dow has

completed the transfer of TCE from storage tank V-510 into

tank V-440, V—420,

 or V—425, whichever occurs first;

2.

 Dow shall notify the Agency when tank V-440 has been emptied

of 1,1,1—trichioroethane

 and cleaned,

or,

 if either tank

V—420 or V—425

 is designated to receive the TCE, when such

tank has been emptied and

cleaned;

3.

 Dow shall also notify the Agency when the transfer of TCE to

the tank specified

 in number

 2 above has been completed,

and

shall provide the Agency with the number of such tank.

 Such

notice shall be sent to:

Mr. Dan Punzak

Permit Section

Division of Air Pollution Control

P.O. Box 19276

Springfield,

 Illinois 62794—9276

IT IS SO ORDERED.

If vow chooses to accept this variance subject to the above

order, within 45 days of the date of this order,

 an officer of

Dow properly authorized to bind Dow to all the terms and

conditions of the variance, shall execute and forward the

attached Certificate

of Acceptance and Agreement

to:

Rachel L. Doctors

Division of Legal Counsel

Illinois Environmental Protection Agency

2200 Churchill Road

Post Office Box

192’/6

Springfield, Illinois 62794—9276

Once executed and received,

 the Certificate of Acceptance

and Agreement shall

bind petitioner to all the 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 the 45 days

renders this variance void.

 The form of said Certification shall

be 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 94-370,

September 21,

 1995.

Petitioner

Authori2ed Agent

Title

Date

Section 41 of the Environmentai ±~rotection

ACt

(41b

IIJUS

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 ab ye opinion and order was

adopted on the

~/-~

 d.ay or

 1995,

 by a vote

of

_____.

Dorothy N//Gunn, Clerk

Illinois(~ollutionControl Board