ILLINOIS

PULL

U’IION

(20NIROL

BOARD

March 21,

1996

IN MATTER OF:

)

PETITION OF TOMMY HOUSE TIRE CO.,

)

AS 95-1

1NC. FOR AN ADJUSTED

STANDARD

)

(Adjusted Standard

Land)

FROM

ILL. ADM. CODE 848.202.

)

OPINION AND ORDER OF THE BOARD (by M. McFawn):

This matter is before the Board on an amended petition for adjusted standard filed by

Tommy HouseTire Company, Inc.

(Tommy House) on May 8,

1995.

Tommy House seeksan

adjusted standard from the Board’s regulations at

Ill. Adm.

Code 848.202, as they apply to its

tire retreading facility located at304

E. Main Street, Decatur, Illinois (the site).

Specifically,

Tommy House is requesting an adjusted standard from the tire and building separation

requirements of35 Ill. Adm. Code

842.202(b)(2), and the

14-day storage limitation for used and

waste tires at 35

111. Adm. Code 842.202(b)(5).

The Board’s responsibility in this matter arises from the Environmental Protection Act

(Act)

(415

ILCS

5/1

et seq.).

The Board is charged therein to “determine, define and implement

the environmental control standards applicable in the State ofIllinois” (Section 5(b) ofthe Act)

and to “grant.

an adjusted standard for persons who canjustify suchan adjustment” (Section

28.1(a) ofthe Act).

More generally, the Board’s responsibility in this matter is based on the

system ofchecks and balances integral to Illinois environmental governance: the Board is

charged with the rulemaking and principal adjudicatory functions, and the Environmental

Protection Agency (Agency) is responsible for carrying out the principal administrative duties.

Based upon therecord before it and upon review ofthefactors involved in the

consideration ofadjusted standards, the Board finds that petitioners have demonstrated that grant

of an adjusted standard is warranted.

The adjusted standard accordingly will be granted.

ADJUSTED STANDARD PROCEDURE

Section 28.1 ofthe Act provides that a petitionermay request, and the Board may adopt,

an environmental

standardthat is: (a) applicable solely to the petitioner, and (b) different from

the standard that would otherwise apply to petitionerpursuant to a rule of general applicability.

Such a standard is called an adjusted standard.

The general procedures that govern an adjusted

standard proceeding are found at Section 28.1 ofthe Act and within the Board’s procedural rules

at 35

111. Adm. Code Part

106.

Where, as here, the regulation of general applicability does not specify alevel of

justification required for apetitioner to qualify for an adjusted standard, the Act at Section

28.1(e) specifies four demonstrations that must be made by a successftil petitioner:

Factors relatingto that petitioner

are

substantially and significantly different from

the factors relied upon by the Board in adopting the general regulation applicable

to that petitioner;

The existence of those factors justifies an adjusted standard;

The requested standard will not result in environmental or health effects

substantially and significantly more adverse than the effects considered by the

Board in adopting the rule of general applicability; and

The adjusted standard is consistent with any applicable federal law.

(Section 28

of the Act.)

PROCEDURAL HISTORY

Tommy House filed its original petition

for adjusted standard on

January

1995.

The

Agency filed its response to the petition on February

10,

1995.

In its response, the Agency noted

several deficiencies in the petition, but recommended that the adjusted standard be granted,

subject to certain conditions.

Tommy House filed a reply to theAgency response on February

23,

1995,

in which Tommy House responded to several of the concerns raised by the Agency.

On March 9, 1995, the Board issued an order finding thepetition deficient, and directing

Tommy House to filed an amended petition on orbefore April

10, 1995.

On April 12, 1995,

Tommy House filed a motion for clarification of the Board’s order, andrequested an extension of

time to file an amended petition.

By order dated April 20,

1995, the Board granted the motion

for clarification, and granted Tommy House an extension until May 10,

1995

to file its amended

petition.

Tommy House filed an amended petition on May 8,

1995, whichthe Boardaccepted at its

May 10,

1995 meeting.

Thc Agcncy did not file an additional response to the amended petition.

On September 7, 1995 the Board issued an order fmding that substantial questions remained as to

the propriety ofthe proposed adjusted standard, and directing the matter to hearing to address the

remaining issues.

Subsequently, on October 12,

1995, Tommy House filed a motion to

supplement the record and continuethe hearing in this matter.

On October 19,

1995, the Board

issued an order grantingpetitioner’s motion to supplement the record, directing Tommy House to

address the concerns outlined in the Board’s September 7,

1995 order, and staying the hearing

pending the Board’s review ofthe supplemental information.

OnNovember 27,

1995, Tommy

House filed a motion forextension oftime to file the supplemental information, which we hereby

grant.

On December 4, 1995, Tommy House filed its supplemental information.

On January 1,

1996, the Agency filed a response to Tommy House’s supplemental information, recommending

that several additional conditions be imposed on grant ofthe adjusted standard.

On January 29,

1996, Tommy House filed areply to the Agency’s response, accompanied by a motion to file

instanter, which we hereby grant.

In its

response, Tommy House agreed to the additional

conditions recommended by the Agency.

We find that the information,provided by Tommy

House is sufficient forthe Board to render its decision in this matter,

and

that it is therefore

unnecessary

to hold ahearing in this matter.

BACKGROUND

Tommy House was founded in March 1953, and was incorporated in the State of Illinois

on July

1970,under

the

name Tommy House Company. (Am. Pet. at 2.)

Thereafter, the name

was changed to Tommy House Tire Company, Inc.

Tommy House has four main sales outlets,

which are located in Decatur, North Pekin, Bloomington/Normal, and Champaign.

(Am. Pet. at

3.)

Tommy House is primarily a tireand wheel sales organization.

(Am. Pet. at 3.)

Over 85

percent ofits revenues are derived from the commercial fleet truck tire business in central

Illinois. (Id.)

To accommodate this business, Tommy House has two retreading facilities, located

in North Pelcin and Decatur.

These two facilities combined retread over 35,000 light tnick and

medium truck tires annually.

(Id.)

Tommy House also

has three retail facilities, located in

Decatur, NorthPekin, and Champaign, where it services automobiles and light trucks, and

engages in retail sales to the public of

tires, parts, and accessories.

Tommy House currently

employs 81

hill-time employees, and

1 part-time employee.

(I4.~)

OfTommy House’s

81 hill-time employees, 35 are employed

at the Decatur retreading

facility(site).

(Supplementary Information at

2.)

This facility

annually processes approximately

19,000 tires. (j4~

at 1.)

On a monthly basis, the number oftires it processes ranges from a low of

900 units to a high of 1,800 units.

(JiL at 1-2.)

Tommy House stores a maximum of 4000 new

tires,

1,500

retread tires,

1,800 tires, and 1,200 scrap or waste

tiresat the site.

(j4~,

at 1.)

these, a maximum of 400 retread tires,

1 ,800 used tires, and

1,200 scrap and waste tires are

stored outside.

(Id.)

Site

Description.

The Decatur

retreading facility is located on an irregularly-shaped site at 340 E. Macon,

Decatur, Illinois.

The areais zoned heavy commercial.

The boundaries ofthe facility are fully

enclosed by an 8-foot high cyclone fence.

Tires are stored in several outside areas around the

site.

Each oftheoutside storage piles is less thantwo feet from the nearest building.

(Supplementary Information Exh. A.)

Tommy House’s corporate offices and a new tire warehouse are located at the northwest

corner of the site, facing Industry Court, which intersects E. Macon.

(Pet at 3.)

These facilities

are housed in an irregularly shaped building which measures 45 feet x 45 feet x 68 feet.

East of

the corporate office and the new tire warehouse is a “special customer tire staging area.” (Id.)

This staging area is bordered to the south by the retread warehouse, and is bounded to the east by

a retaining wall, which runs north-south.

East ofthe retaining wall is a raw materials storage

trailer.

The “special customer tire staging area” encompasses approximately 2,220 square feet.

(Supplementary Information Exh. B.)

Tires are also stored in a 496 square-foot area extending

southwest from the “special customer tire staging area”

along the southwest wall ofthe retread

warehouse.

(4)

Directly to the south ofthe corporate office and the new tire warehouse is the “Michelin

warehouse”, which is used to serve the needs of Michelin, Tommy llouse’s largest customer.

(Pet at 3.)

This warehouse has dimensions of 40 x 30 feet.

Tires are stored outside the Michelin

warehouse along its west wall in a rectangular area encompassing 720 square feet, andto the east

of the Michelinwarehouse in an area encompassing

512 square feet.

(Supplementary

InformationExh. B.)

Aretread production plant lies along the south border of the site.

This facility is

140 x 60

feet.

There is acovered breezeway to the north of the retread production plant, whichborders the

southern walls of the Michelin warehouse and the retread warehouse.

The area inside the

breezeway is lined on both sides with stacked tires.

(See

Pet. Exh. C.)

The retread tire staging area is located atthe eastern end of the property.

This area

contains four tire storage areas totaling4,131

square feet.

(Supplementary Information Exh. B.)

A storage trailer is located east of the retaining wall long the eastern boundary of the site, which

is used to store tires that the retreading facility hasrejected.

Rejected tires that do not fit into the

trailer are stackedon the ground and covered by tarps or “top-covers.”

Top-covers are 1-inch

plywood covers which measure 4 feet by 4 feet.

(Ich)

Tommy House’s Process.

When tires are first brought to the facility for processing, they are drained of any water,

and are then stacked to wait inspection.

Tires are inspected and generally “turned around” within

14 days.

(Am. Pet. at 3.)

Tires which are not accepted are returned to the customer, or, ifthe

customer does not want the tire, it is stored in the storage trailer before being shipped off-site for

destruction and disposal.

(jç~)

The accepted tires are converted into new retread tires by the following process.

The tire

casings are physically andvisually inspected to determine their retreadability.

Tires which are

accepted are then buffed within 3/32” ofthe belt package.

(i4~)The casing is then inspected

using a machine called a Non-Destructive Inspector tire casing analyzer, which uses ultrasound

technology to analyze the structural soundness of the tire casing.

(Am. Pet. at 4.)

Tires which

fail this inspection are

also rejected.

An accepted casing is then sent through a series of repair stations where imperfections

such as nail holes, rock gouges andother foreign object damage are repaired prior to the

retreading or “building” process.

Tires that have imperfections which are deemed too large or

otherwise irreparable are also rejected at this point.

(a)

After being repaired, accepted casings are sent to a “builder,” where the appropriate tread

is applied to the casing.

(j43

The tires are then sent to “curing chambers”, wherethey are

mounted on “park rings” and covered by a pressurized envelope.

(j4~)The tires are hung in the

curing chambers and cooked for approximately threehours,

so as to adhere the rubber treadto

the casing.

After the curing process, the tires are again inspected.

Ifthe rubber did not properly

adhere to the casing, the casing may again be run through the entire process, or the tire may be

rejected.

(j43

Tires whichpass this final inspection are painted and staged for delivery to the

customer, or stocked in the warehouse.

The vastmajority of finished products are sold to

customers in Illinois.

(Ich)

Ninety percent of the rejected tires are immediately loaded into the scrap tire trailer and

hauled away from the site. (Supplementary Information at 3.)

The tire storage trailers are

removed from the site every 3 to

days from Marchthrough November, and every 7 to 9 days

from December through February.

(1j~The remaining percentageofrejected tires belong to

Tommy House’s specialized “National”

accounts, which include UPS, Ryder, and Penske.

These

tires must be inspected and verified by customer personnel before they are scrapped.

These tires

are stacked in the “Special Customer Tire Staging Area.”

(14!)

RULE OF GENERAL APPLICABILITY

The regulations establishing management standards for used tire storage are found at35

Ill. Adm. Code 842.201 et seq.

Pursuant to

848.201(b)(1), TommyHouse was requiredto

comply with these regulations by January

1992.

The specific management requirements

applicable to the facility are found at Section 848.202.

Tommy House is

seeking an adjusted standard from the building separation requirements

of 35 Ill. Adm. Code 848.201(b)(1) and 848.202(b)(2), andthe 14-day storage limitation forused

and waste tires at

Ill. Adm. Code 848.202(b)(5).

35 Ill. Adm. Code 848.201(b)(l)’

provides

in relevant part:

Petitionerincorrectly cites this regulation as 848.202(b)(1)in its amendedpetition.

(See

Am. Pet. at 1.)

(b)

Owners and operators of tire storage sites and tire disposal sites.

shall:

(1)

Meet the requirements of this Partby January

1, 1992 ifused or

waste tires were disposed of or stored prior to January

1, 1992;

(35 Ill. Adrn. Code 848.201(b)(1).)

35 Ill. Adm. Code 848.202(b) provides:

(b)

At sites atwhich more than 50 used or waste tires are located the owner or

operator shall comply with the following requirements:

(2)

Usedor waste tires shall not be accumulated in any area located

outside ofany building unless the accumulation is separated from

all buildings, whether on or off the site, by no less than 25

feet.

(5)

Used or waste tires received at the site shall not be storedunless

within

14 days after the receipt of any used tire the used tire is

altered, reprocessed, converted, covered or otherwise prevented

from accumulating water.

(35

Ill. Adm. Code 848.202(b).)

Additionally, Section 848.206 of the Board’s regulations establishes exemptions from

certain requirements in Section 848.202 for three categories of tire retreading facilities.

The

three categories of tireretreading facilities are: 1) new sites, 2) existing large sites, and 3) small

sites.

The exemption for new facilities, set forth at Section 848.206(b), exempts new facilities

from the tire storage limitations in Section 848.202(b), and from certain aspects ofthe cost

estimate requirements set forth in Section 848.404.

This exemption does not apply to Tommy

House, since it has been incorporated in Illinois since

1970.

The exemption for existing large sites is set forth at Section 848.206(c), and applies to

facilities which have no more than 100,000 tires atthe facility and which process at least 500

tires per day.

The exemption for “small sites” is set forth at Section 848.206(e), and applies to

sites which have less than 500 used or waste tires on-site at onetime.

Sites covered by either the

existing large site or small site exemption are exempt from several of the requirements in

830.202, including the pile separation requirements in 848.202(b)(l) and (2), and the 14-day

storage limitation in 848.202(b)(5), from which Tommy House seeks relief.

These two

exemptions allow forthe application of alternatemanagement standards, pursuant to whichthe

facility owner or operator must develop and implement atire storage planto minimize the threats

of fire and mosquito breeding.

Neither the existing small site exemption nor the large site exemption applies to Tommy

House’s facility.

Tommy House has more than 500 tires atits

facility, and therefore does not

qualify

as asmall site.

(Am. Pei. at 4.)

While Tommy House has sufficient equipment to

process 500 tires per day, it does not currently do so, and it therefore fails to qualify as an

existing large site.

(14!,1

JUSTIFICATION

OF ADJUSTED STANDARD

The main hardshipthat TommyHouse alleges is the unavailability of space at the site to

meet the necessary cover and setback requirements.

(Am. Pet. at

4-5.)

The problem caused by

the limited space available is exacerbated by the existence of autility easement held by Illinois

Power, which covers a 60-foot right-of-way.

(Am. Pet. at

5.)

Under the terms of the easement,

no structures can be built within the 60-foot zone.

Tommy House asserts that it cannot construct

a storage facility for either ofthe two staging areas that the Agency objects to, due to the Illinois

Power easement.

(Am. Pet. at

5.)

Tommy House asserts that it hasno other available space for

construction of a storage facility.

Tommy House also asserts that it is unable to tarp the exposed tires, because there is

insufficient space availableto properly drape the tarps, since available space is taken up by the

staged tires and the truck aisle.

(Am. Pet. at

5.)

Tommy House claims that if it covers the tires

with improperly draped tarps, water will collect in the folds of the tarp, creating a mosquito

breeding ground.

Therefore, Tommy House instead covers its tires with the wooden “top-

covers”.

Tommy House asserts that its space limitations force it to store the tires at the rear ofthe

facility nearthe access lane, less than 25 feet froma building.

This access lane is used by trucks

which bring tires to the staging area.

Tommy House asserts that it is the only route available for

semi-trucks to access the staging area, since theymust be able to turn through the gate into the

staging area.

(Am. Pet. at

5.)

Because there is insufficient space available at the site, Tommy House asserts that it

would be forced to find storage space off-site in order to meet the setback and cover

requirements.

Tommy House estimates that it would cost approximately $4.00 to $6.00 per tire

for off-site storage, including the direct cost for the storage space, supervision, transportation,

and daily labor formovement of the tires.

(Am. Pet. at 4.)

Additionally, Tommy House asserts that compliance with the 25-foot setback

requirement would result in the loss of 8

10 employee parking spaces.

(Am. Pet. at

5.)

would also require that Tommy House move the scrap tire trailer, which would eliminate another

6 employee parking spaces.

Tommy House states that the nearest parking facility is 3 city-

blocks away.

(143

Furthermore, Tommy House asserts that the regulations recognize that the general

standards should not be universally applicable, and that they therefore establish three classes of

exemptions forretreading facilities.

(Am. Pet. at 8.)

While Tommy House recognizes that none

of the exemptions apply to its facility, it asserts that the established management standards do not

fit for its facility, and that it should therefore be given a similar exemption, since it provides the

same or similar benefits to the Illinois economy and environmentthat exempted large and small

facilities do.

Q4!~

Tommy House emphasizes that it is not an unmanaged tire site, and that it

converts apotential waste problem into a useful product and provides employment, thereby

positively affecting the local and regional economy.

COMPLIANCE ALTERNATIVES

Setback Requirements.

Petitioner asserts that, since there is no additional storage space available on the site, in

order to meet the setback requirements, it would be forced to find storage space off-site.

(Am.

Pet. at 4.)

Tommy House estimates that it would cost approximately $4.00 to $6.00 per tire for

off-site storage, including the direct cost for the storage space, supervision, transportation, and

daily labor for movement ofthe tires.

(Am. Pet. at 4.)

Tommy House asserts that it has also investigated setbacks of less than25 feet, and thata

set back of as little as

10 feet would cause it difficulty, since any setbackwould reduce the

present storage area available at the site.

(j4!)

Tommy House also asserts that the present access

lane is the only route available to allow semi-trucks to access the staging area.

(a)

Cover Requirements.

As an alternative means of complying with the cover requirements, Tommy House

procured an estimate for a “Butler- type” building capable of storing all tires completely indoors.

(Am. Pet. at

5.)

Tommy House estimates that, based on its projected tire needs, it would require

abuilding with an area of approximately 20,000 square feet, at acost of $23.00 per square foot.

(143

The cost of such a building would thus be approximately $460,000.

(143

PROPOSED ADJUSTED STANDARD

Petitioner proposes that the following be adopted as an adjusted standard applicable to the

site:

Tommy House Tire Co., Tire Retreading Site

(Decatur, Illinois).

For a site owned and

operated by the Tommy House Tire Co., located at 304 E. Macon Street, Decatur, Illinois,

the scope of exemption and/or alternate management standards applied to that facility are

as follows:

Scope of Exemption

The storage limitation for whole tiresspecified at Section 848.202(b)(5) and the

pile separation distances specified at Section 848.202(b)(1) and (2) do not apply at

the site.

Alternate Management Standards.

As part ofthe contingency plan requirements

of Section 848.203 Tommy House Tire Company, Inc., shall:

Develop and implement a tire storage plan to minimize the threat offire

and mosquito hreeding

Such a plan shall include, hut is not limited to,

tire storage arrangements, aisle space, access to fire fighting personnel and

equipment and mosquito inspection and control.

Request and submitto the Agency a statement from the Illinois

Department ofPublic Health that the program developed under subsection

(b)(1) is adequate to control mosquito

larvae

and pupae; except that, ifthe

Departmenthas not sent a statement within 45 days after receipt ofthe

request, such statement need not be submitted and the Agency shall make

such a determination.

Tommy House Tire Co., Inc. has the burden of

demonstrating that thethreat ofmosquito breeding has beenminimized.

Requests for such statements of determination shall he

sentto:

Division of Environmental Health

Office of Health Protection

Illinois

Department of Public Health

525 W. Jefferson Street

Springfield, Illinois 62761

(Am. Pet. at5-6.)

our

order of March 9,

1995 which found Tommy House’s initial petition deficientthe

Board directed Tommy House to file an amended petition, including a copy ofthe proposed

alternative management plan it intendedto submit to the Agency.

In response, TommyHouse

submitted the contingency plan for its site, required pursuant to Section 848.202 of the

regulations.

(Am. Pet. Exh. D.)

The planincludes a response plan to be implemented in the

event of a tire fire, and includes provisions for controlling tire fire run-off.

It designates Bodine

Environmental as the entity to be contacted in the event of atire fire, and states that Bodine is

capable of providing 24-hour emergency service in the event of such a fire.

Furthermore, the proposed planincludes aplan for the prevention of mosquito breeding,

which includes routine inspection oftires, and treating tireswith pesticides.

Any

large

infestation would be reported to the police, disease control, andthe Agency.

The contingency

plan also includes a plan for evacuation of the premises in the event of an emergency.

Finally, the planincludes a tire storage plan. For tires stored within buildings, the plan

states that tires will be arranged in stacks according to size, between 8 and 12 tires high.

specifiesthat aisles will be spaced approximately

two

feet

apart,

at that there will be minimum

ceiling clearance of 10 feet.

The tire storage plan further states that there will be no unit heaters,

duet

furnaces,

or sprinkler deflectors in any of the tire storage facilities.

However, the tire

storage plan does not address storage arrangements for tires stored outside, whichare precisely

the tires for which Tommy House seeks the adjusted standard.

Tommy House also appears to he seeking an exemption from the January

1, 1992

effective date ofthe tiremanagement standards, set forth at 848.20 l(b)(1).

As a general rule the

Board grants an adjusted standard effective as of the date of the Board decision, although relief

has been granted retroactively under extraordinary circumstances.

(See

In the Matter of Petition

of Waste Management of Illinois.Inc. foran Adjusted Standard from 35 Ill. Adm. Code

807.665(b) and 811.714(b), AS

94-12, pp. 6-7 (April 6,

1995.)

However, Tommy House has not

demonstrated that extraordinary circumstances exist in this case which

caused

it to file its

petition

3 years after theeffective date ofthe regulation.

Therefore, the adjusted standard will

not be granted retroactively, but will be effective as ofthe date ofthis opinion and order.

The Board believes that Tommy House may additionally be seeking an exemption from

the requirements of 35 Ill. Adm. Code R4R.202~b)(1),

which estahlishes minimum pile

separation

distances, sincethe proposed adjusted standard language at page

of the amendedpetition would

exempt Tommy House from this requirement.

(Am. Pet. at

5.)

However, petitioner failed to

discuss the need for such an exemption anywhere in the amendedpetition or anywhere else in

this proceeding, i.e., in its original petition or the supplemental information filed December 4,

1995.

Petitioner has repeatedly exhibitedinability to provide the basic facts necessaryto support

its petition, evidence the needfor the Board to issue two more informationorders in this

proceeding.

The Board

can

do nothing furtherto cure this deficiency.

Since the request for such

an exemption is unclear and there is no evidence supporting the same, the Board will not include

an exemption for Section 848.202(b)(l) in the adjusted standard.

1-IEALIFI AND ENVIRONMENI’AL EFFECtS

Tommy House asserts that granting the adjusted standard will have no or negligible

impact on the environment, as compared to petitioner’s compliance with the regulation ofgeneral

applicability.

Twenty-Five-Foot Building Separation Requirement.

Tommy House asserts that allowing tires to be stored within twenty-five feet of a

building will not pose a greater threat of fire being transferred between abuilding and the tires

than the rule of general applicability.

As specified above, Tommy House has proposed an

alternate standard management standard for fire minimizationwhich it asserts will alleviate any

threat ofabuilding fire being transferred betweena building and the tire storage area.

Tommy

House emphasizes that it has never had a fire at its facility.

Furthermore, Tommy House

emphasizes that the gate to the facility is kept locked, as recommended by the Agency.

While Tommy House has submitted its contingency plan forthe site which includes atire

storage plan,we find that it does not adequately address the proper storage of tires outside

buildings at the facility.

We believe that the storage requirements for tires storedwithin

buildings should also be applied to tires storedoutside, and that this should be specified in the

Alternative Management Plan.

Furthermore, we believe that the Alternative Management Standards Plan should include

certain additional requirements for the outside tires.

Therefore, we will require in the adjusted

standard that the Alternative Management Plan include the following information: the maximum

number of tiresthat will be stored at the site; the maximum number of tires that will be stored

outside; a diagram of the site, including the location of each tire pile; anarrative descriptionof

the location of each outside tire pile; and the distance that will be maintained between each tire

pile and the nearest building.

Additionally, as Tommy House suggests, the setbackrequirement is designed to address

the threat of abuilding fire being transferred to the tires or vice versa.

Because the protections of

a25-foot setback will not be present atthe site, we believe it is necessaryto provide greater

protection against the threat of a fire.

Therefore, we will require that all buildings at Tommy

House’s facility be equipped with an automatic fire alarm system connected to the local fire

department.

This will ensure promptresponse to the occurrence of any fire andprovide adequate

protection in the absence of the setback.

Fourteen-Day Tire Storage Limitation.

Tommy House asserts that, although its tires are partially exposed to the elements,

Tommy House manages them under all other applicable standards.

Tommy House asserts that

managing the tires under the proposed adjusted standard, which requires Tommy House to

implement a plan to minimize the threat of fire and mosquito breeding, will pose no greater

threat to the environment than the regulation of general applicability.

Because Tommy House will be allowed to store its tires outside in such a manner that

they will be exposed to the elements, we believe that the proposed alternative management plan

must include additional requirements to address this increased risk.

Therefore, we will require

that the alternative management plan include a description of the cover used for each pile,

whether wooden top-covers or

tarps.

Furthermore, Tommy House has indicated that some ofthe tires stored outside are those

rejected tires which do not fit in the tire storage trailer.

We believe that this situation can be

minimized or cured by assuring that the tire storage trailer is picked up on a timely and consistent

basis.

We will therefore require that the alternative management plan specify that the turn over

time for the rejected tire storage trailer once it is full, shall not exceed 14 days.

CONSISTENCY WITH FEDERAL LAW

Tommy House asserts, and the Agency agrees, that none of the requirements from which

relief is sought were promulgated, in whole or in part, pursuant to federal requirements.

AGENCY RESPONSE

The Agency filed

its response to the original adjusted standard petitionon February 10,

1995, recommending that the Board grant the adjusted standard, subject to certain conditions.

response to Tommy House’s December 4, 1995 submittal of supplemental information, the

Agency submitted an additional response on January

1, 1996.

In its February 10,

1995 response, the Agency agrees with Tommy House’s

representations concerning the quantitative and qualitative impacts on the environment, and

recommends that the adjusted standard be granted, subject to three conditions.

First, the Agency

asks that Tommy House clarify whichspecific provisions of the regulations it is seeking an

adiustment from.

Second, the Agency asks that Tommy House correct the address of its facility.

Third, the Agency requests the inclusion of several amendments to the Alternate Management

Standards

provisions ofthe proposed adjusted standard.

The Agency’s first two concerns were

addressed by Tommy House in its amended petition.

As its third conditionto recommending that the Board grant the proposed adjusted

standard, the Agency recommends the imposition of several amendments to the proposed

adjusted standard.

First, the Agency recommends that Tommy House be required to

implement

the proposed tire management planwithin 30 days of the adoption of the adjusted standard.

Similarly, the Agency proposes that Tommy House be required to requestapproval of the

proposed management plan from the Department of Health within 30 days of the adoption ofthe

adjusted standard.

Finally, the Agency proposes that the adjustedstandard include a provision

requiring that it not be effective if the Agency or Department of Health finds that the program

developed by Tommy House is inadequate to control mosquito larvae and pupae.

The adjusted

standard would then only become effective upon a finding that an appropriate plan has been

proposed.

In its January

1, 1996 response, the Agency responds to the additional information

provided by Tommy House and recommends the imposition of several additional conditions on

the grant ofthe adjusted standard.

In response to Tommy House’s statement that up to 1,200

waste tires will be stored at the facility, the Agency states that, while this is intended to be a

maximum number, this is nevertheless a high figure.

(Agency’s January 4,

1996 response at 1.)

The Agency also states that relying on tirehaulers may be an inadequate means of handling this

volume of waste tires.

The Agency therefore requests that, ifthe facility stores greater than

1,000 waste tires on site at onetime, Tommy Ilouse be required to seek another means of waste

tire

disposal.

(j4. at 1-2.)

In response to Tommy House’s statement that all waste tires may be stored outside,

(Supplementary Information at 1), the Agency states that this would be a deviation from the

current practice of storing waste tires in enclosed trailers.

(Agency’s January 4,

1996 response at

2.)

The Agency therefore requests that Tommy House be required to store the waste tires in

trailers whenever feasible and practical.

(14)

The Agency further states that Tommy House’s assertion regarding fife control measures

someone will be making “constant visual checks of each tire storage area,” is unrealistic, and that

amore realistic standard should be set.

(j4.)

The Agency requests that Tommy House be

required to keep a log of storage area inspections documenting a minimum ofone inspection per

area per eight hour working shift.

(14.)

The Agency states that this would assist an Agency

inspector in determining whether the

storage area inspections were being conducted

appropriately.

The Agency further suggests that the storage are inspection logs be keptfor at

least three years, in order to maintain consistency with other reeordkeeping requirements.

Q4.)

In describing the length of time rejected tires are stored outside before being shipped off-

site, Tommy House states that 95 percent ofthe rejected tires are removed from the site within 7

days.

(Supplementary Information at 3.)

The remaining

10 percent belong to Tommy

House’s national account customers.

Tommy House asserts that tires belonging to these

customers must be inspected and

verified by customer

personnel before Tommy House disposes

of them.

(j4.)

Tommy House does not state how long this inspection and verificationprocess

may take.

In response, the Agency asserts that amaximum timeframe should be set for on-site

storage of these tires prior to disposal.

(Agency’s January 4,

1996 response at 2.)

The Agency

recommends that Tommy House be required to dispose ofthe national account waste tires with

or without customer verification after two months have passed.

(14)

Concerning Tommy House’s statements regarding measures to be taken for mosquito

control (Supplementary Information at 3), the Agency states that Tommy House should be

requiredto keep inspection logs.

The Agency requests that Tommy House be required to inspect

outside tires formosquito activity on at least a weekly basis, that it be required to keep logs of

such inspections, and that it be required to retain such inspection logs for aperiod of atleast

three years.

The Agency further

reminds Tommy House that all pesticides must be applied in

accordance with the requirements of the Illinois Pesticide Act and the regulations at 35 Ill. Adm.

Code 848.205.

The Agency states that if all

of above conditions are satisfied, along with the original

conditions proposed in its initial responseto the petition for adjusted standard, the Agency

recommends that the petition for adjusted standard be granted.

In its reply to Agency’s January

1996 response, TommyHouse agrees to all the conditions recommended in the Agency’s

January

1, 1996 response.

The Board finds that the conditions recommended by the Agency are appropriate

limitations on the adjusted standard, and accordingly incorpOrates them into the adopted adjusted

standard.

CONCLUSION

The Board finds that Tommy House has demonstrated that an adjusted standard is

appropriate for its tire retreadingfacility located in Decatur. Illinois.

Tommy House has

demonstrated that it is unable to comply with the regulation of general applicability, due to the

limited space available at its site, and dueto the utility easement held by Illinois Power, which

prevents Tommy House from constructing a storage facility for its tires.

Tommy House has

shown that there are no economically viable alternatives which will enable it to

comply with the

standard of general applicability.

Furthermore, TommyHouse has demonstrated that the

alternative standard as conditioned will not significantly impacthuman health or the

environment, and that it can be granted consistent with federal law.

The adjusted standard is

therefore granted, subject to the conditions set forth below.

This opinion constitutes the Board’s findings of fact and conclusions oflaw in this matter.

ORDER

Tommy House Tire Company, Inc. (Tommy House) is hereby granted an adjusted

standard, pursuant to 415 ILCS

5/28.1,

applicable

Tommy House’s facility located at 304 E.

Macon Street, Decatur, Illinois (the site), subject to the provisions and conditions listed below.

Scope of Exemption.

The storage limitation for wholetires specified at Section

848.202(b)(5) and the pile and building separation distance specified at Section

848.202(b)(2) do not apply at the site.

.1.5

Alternate Management Standards.

As part ofthe contingency plan requirements

of Section

84 8.203 Tommy House shall:

Within 30 days after the adoption of this adjusted standard, develop and

implement a tire storage planto minimize the threat of fire and mosquito

breeding.

The plan shall include, but is not limited to, tire storage

arrangements, aisle space, access to fire fighting personnel and equipment

and mosquito inspection and control.

The plan must also include the

following:

the maximum number of tires that will be stored at the site;

the maximum number of tires that will be stored outside;

a diagram of the site, including the location ofeach tirepile;

a narrative description of the location of each outside tirepile;

a description of the cover used for each pile, whether woodentop-

covers or tarps;

the distance that will be maintained between each tire pile andthe

nearest building;

the turn over time for the rejectedtire storage trailer once it is full,

which shall not exceed 14 days;

a requirement that each pile shall have a maximum height of 12

tires;

a requirement that an aisle space of atleast two feet will be

maintained between rows oftires;

arequirement that the facility gate be locked during non-business

hours;

arequirement that Tommy House immediately seek and implement

another

means of waste tire disposal if the numberof waste tires

stored on-site exceeds 1,000 tires;

a requirement that Tommy House dispose of waste tires from its

national accounts after they have been stored on the site for two

months, whether or not they have been inspected and verified by

the national account customer;

arequirement that Tommy House conduct and maintain alog of at

least

fire control inspection of each of tire storage area per eight

hour working shift, with records of such inspections to be retained

for a period of atleast 3 years;

arequirement that Tommy House conduct and maintaina log of at

least weekly mosquito control inspections ofall outsidetire piles,

with records of such inspections to be retained for aperiod of at

least

3 years;

arequirement that all buildings at the facility be equipped with an

operational automatic fire security system hooked up to the local

fire department.

Within 30 days after the adoption of this adjusted standard, request and

submitto the Illinois Environmental Protection Agency (Agency) a

statement from the Illinois Department of Public Health (Department) that

the program developed under subsection (b)(1) is adequate to control

mosquito larvae and pupae; except that, if the Department has not sent a

statement within

45 days after receipt of the request,

such statement need

not be submitted and theAgency shall make such a determination.

Ifthe

Department or the Agency determines that the plan submitted by Tommy

House is inadequate, this adjusted standard shall not be effective until such

time as an amendedplan is approved.

Tommy House Tire Co., Inc. has

the burden of demonstrating that the threat of mosquito breeding has been

minimized.

Requests for such statements of determination shall be sent to:

Division of Environmental Health

Office of Health Protection

Illinois Department of Public Health

525 W. Jefferson Street

Springfield, Illinois 62761

Within 30 days after the adoption of this adjusted standard, acopy of the

Alternative Management Plan shall be submitted to the Agency and to the

Pollution Control Board.

IT IS SO ORDERED.

Section 41

ofthe Environmental Protection Act (415 ILCS 5/41(1992)) provides for the

appeal of final Board orders within

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 forReconsideration”.)

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the

above opinion andorder was adopted on the

o~/-°”

day of

)7~

t-t~J-”

,1996, by a

voteof

7-iL)

7/7

~‘

Dorothy M. q4Xn, Clerk

Illinois PollutYon Control Board