ILLINOIS POLLUTION CONTROL BOARD

July 7,

1995

POLYFOAN PACKERS CORPORATION,

)

Petitioner,

PCB 95—103

v.

)

(Variance

-

Air)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

CHARLES N. CHADD OF ROSS

& HARDIES APPEARED ON BEHALF OF THE

PETITIONER;

BONNIE SAWYER APPEARED ON BEHALF OF THE RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by E. Dunham):

On March 15,

1995, Polyfoam Packers Corporation

(Polyfoam)

filed a petition for variance from the requirements of 35 Ill.

Adm. Code Part 218,

Subparts TT and UU for a period of one year

for its facility located in Wheeling,

Illinois.

The requested

term of the variance is from March 15,

1995 until March 16,

1996.

On April

6,

1995, Polyfoam filed an amended petition.

The

Illinois Environmental Protection Agency

(Agency) filed its

recommendation on April

24,

1995.

The Agency recommends that the

Board grant the petition for variance subject to conditions.

A

hearing on the petition was held on May 15, 1995 before hearing

officer Deb Frank in Chicago, Illinois.

The parties did not file

post-hearing briefs~

On June 7,

1995, the attorney for petitioner submitted

corrections to the transcripts.

On June 12,

1995,

the Agency

filed a stipulation to the corrections to the transcript.

The

Board accepts the notice of corrections and incorporates them

into the transcript.

The Board’s responsibility in this matter arises from the

Environmental Protection Act (Act)

(415 ILCS 5/1 et seq.

(1992).)

The Board is charged therein with the responsibility to “grant

individual variances beyond the limitations prescribed in this

Act, whenever it is found upon presentation of adequate proof,

that compliance with any rule or regulation, requirement or order

of the Board would impose an arbitrary or unreasonable hardship”.

(415 ILCS

5/35(a)

(1992).)

xore generally,

the Board’s

responsibility in this matter is based on the system of checks

and balances integral to Illinois environmental governance:

the

Board

is

charged

with the rulemaking and principal

adjudicatory

functions,

and the Agency is responsible for carrying out the

principal administrative duties.

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2

Subpart TT requires sources with the potential to emit 25

tons per year or more of volatile organic material

(VOM)

to

reduce VON emissions with capture and control techniques by 81

percent overall.

(35 Ill. Adm. Code.

218.946.)

Compliance

is

required by March 15,

1995.

(35 Ill. Adm.

Code 218.106(c).)

Subpart UU includes the recordXeeping and reporting requirements

associated with the control requirements in Subpart TT.

BACKGROUND

Polyfoam owns and operates a polystyrene shape molding

manufacturing facility in Wheeling,

Illinois.

The facility is

located in the Chicago ozone nonattainment area.

(Am.

Pet.

at 2.)

Polyfoam employs 116 full-time employees at this facility,

of

which approximately 50 are involved in the operation of the

manufacturing facility.

(Am.

Pet. at 2.)

Polyfoam purchases expandable polystyrene molding compound

which

contains

pentane

as

a

blowing agent.

(1km.

Pet.

at

2.)

Pentane is a volatile organic material and portions of the

pentane are released to the atmosphere during the processing

steps which consist of preliminary expansion,

aging and molding.

(Am.

Pet. at 2.)

The conditions of Polyfoam’s operating permit

limit potential emissions to 95.01 tons per year.

(Am. Pet.

at

3.)

Actual emissions from the facility are estimated at 55 tons

per year.

(Am.

Pet. at 5.)

The installation of an emission control device on the pre-

expander is estimated to cost approximately $250,000.

(Am.

Pet.

at 3.)

Polyfoam is currently evaluating several alternatives to

move production from the Wheeling facility to reduce the

f~ci1ity’spotential to emit VOM under

25 tons per year.

(Am.

Pet. at

4.)

The alternatives being considered include moving

some of the production to an existing facility in Effinghani or

opening a new facility outside of the Chicago ozone non-

attainment area.

(Am.

Pet.

at

4.)

Polyfoam had intended to

complete the transfer of production to

its Effingham facility

prior to the compliance deadline of March

15, 1995 but was

delayed due to delays in the expansion of the Effingham facility

and logistic issues with customers.

(Am.

Pet.

at

5.)

Polyfoam

requires another twelve months to complete the transfer of

production.

(Am.

Pete

at

5.)

HARDSHIP

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 arbitrdry

or

unredsonable

hardship.

(415 ILCS 5/35(a)

(1992).)

Furthermore, the burden is

upon the petitioner to show that its claimed hardship outweighs

the public interest in attaining compliance with regulations

---

.5

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 cost of installing the necessary equipment at the

facility is estimated at $250,000.

(Am.

Pet.

at

6.)

Polyfoam has

expended approximately $140,000 for emission controls at its

Waukegan facility and will be spending approximately

another

$110,000 on those controls.

(Am. Pet. at

7.)

The modernization

and expansion of its Effingham facility costs approximately

$2,000,000.

(Am.

Pet.

at

7.)

Polyfoam maintains that the

expenditure at its Wheeling facility, which is not an ideal

production facility, would result in an unreasonable burden on

available capital.

(Am. Pet.

at

7.)

Therefore,

Polyfoam plans to

transfer production from its Wheeling facility.

(Am.

Pet.

at

7.)

However, this transfer requires an additional twelve months for

completion.

(Am.

Pet. at

7.)

Polyfoam maintains that requiring

the installation of controls while it arranges the transfer

of

production would unduly tax the financial capabilities of the

company.

(Am. Pet. at 7.)

The Agency agrees that petitioner would suffer an arbitrary

and unreasonable hardship if required to install control

equipment for the interim period prior to the transfer of

production.

(Rec.

at 4.)

The Agency believes that the hardship

outweighs any environmental impact that may result from the

granting of the variance.

(Rec. at

4.)

COMPLIANCE PLAN

A variance is a temporary reprieve from compliance with the

Board’s regulations.

Compliance is to be sought regardless of

the hardship which the task of eventual compliance presents an

individual polluter.

(Monsanto Co.

v. IPCB

(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 grant of variance, to commit to a plan which is reasonably

calculated to achieve compliance within the term of the variance.

Polyfoam intends to transfer production from its Wheeling

facility to reduce the VOM emissions from the Wheeling facility

to under

25 tons per year.

The petition did not contain a

detailed schedule outlining the steps toward compliance but

petitioner submitted a more detailed compliance schedule to the

Agency.

(Rec at

6.)

The Agency believes that the compliance

schedule is generally sufficient but believes that the date for

submitting a construction permit application for a new facility

should be moved up

tQ November

1,

19913 in order to meet the March

15, 1996 date for compliance.

(Rec.

at.

6.)

The Agency also

asserts that it is critical that petitioner shift a sufficient

portion of production from the Wheeling facility by the end of

---

4

the variance period.

(Rec.

at

6.)

ENVIRONMENTAL IMPACT

Current emissions from the facility will not increase during

the term or the variance.

(Am. Pet. at

6.)

Polyroam intends to

bring the facility into compliance by lowering the VON emissions

to below 25 tons per year.

(Am. Pet.

at

6.)

Polyfoam maintains

that the environmental impact of the emissions will be no

different than its current status.

(Am. Pet.

at 6.)

The Agency emphasizes that the environment is adversely

impacted from VON emissions during the ozone

season.

(Rec.

at 3.)

However, the Agency believes that the hardship petitioner will

suffer outweighs the impact from allowing uncontrolled VON

emissions from the facility during the 1995 ozone season.

(Rec.

at 3.)

CONSISTENCY WITH FEDERAL LAW

Polyfoam asserts that the variance is not contrary to

federal law.

(Am.

Pet.

at

7.)

The current U.S. EPA approved

State Implementation Plan

(SIP)

for Illinois continues to include

an exemption for facilities such as Polyfcam’s facility.

(Am.

Pet.

at

8.)

Polyfoam maintains that it is in compliance with the

approved

SIP.

(Am.

Pet.

at

8.)

However,

if granted, this

variance will need to be submitted to the U.S. EPA for approval

as a SIP revision if it approves the amendments to Subpart TT as

part of

Illinois’ SIP during the term of the variance.

(Rec.

at

5, Am. Pet. at 9.)

CONCLUSION

Based upon the record, the Board finds that requiring

Polyfoam to comply with the requirements of 35 Ill.

Adm.

Code

Part 218,

Subparts TT and UU

for

its Wheeling facility would

impose an arbitrary and unreasonable hardship on Polyfoam.

The

Board finds that any environmental impact that may result from

the granting of the variance is outweighed by the hardship that

Polyfoam would incur if required to install the emission controls

at its Wheeling facility while transferring production to other

facilities.

Petitioner requests that the variance commence on March

15,

1995, the compliance date of the regulation.

The Board notes

that it is a well established practice that the term of

a

variance begins on the date the Board renders its decision unless

unusual or extraordinary circumstances are shown.

(See,

e.g.

DM1,

Inc.

v.

IEPA (December

19,

1991), PCB 90—277,

128 PCB 245—249.)

Petitioner had planned to be in compliance with the regulation by

the compliance date but due to unforeseen delays in the transfer

of operations from the Wheeling facility to other facilities,

---

petitioner was unable to reduce its emissions prior to the

compliance date.

In view of the facts of this case,

the Board

finds that the instant circumstances warrant the short

retroactive start of the variance.

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

Polyfoam Packers Corporation is hereby granted a variance

from the requirements

of 35 Ill.

Adm. Code Part 218, Subparts TT

and UU for its Wheeling facility subject to the following

conditions:

1.

The variance shall commence on March 15, 1995 and

expire on March 16,

1996,

or until such time as

Polyfoam has achieved the necessary reductions at its

Wheeling facility,

whichever comes

first.

2.

During the term of this variance the emissions from the

facility shall not exceed the current emission level of

55 tons per year.

3.

At the time of the expiration of this variance the

subject facility shall be in compliance with the

regulations on VON emissions.

4.

Any construction permit required to shift production

capabilities

from the subject facility must

be applied

for by November 1,

1995.

Within forty—five days of the date of this order, petitioner

shall execute and forward to:

Illinois

Environmental Protection Agency

Compliance

Unit for the Bureau

of Air

2200 Churchill Road,

P.O.

Box 19276

Springfield,

Illinois 62794—9276

a Certificate of Acceptance and agreement to be bound to all

terms and conditions

of the granted variance.

The 45-day period

shall be held in abeyance during any period that this matter is

appealed.

Failure to execute and forward the Certificate within

45—days renders this variance void and of no force and effect as

a shield against enforcement of rules trom which this variance is

granted.

The form of the Certificate is as follows.

I

(We),

hereby accept and agree to be bound by all terms and conditions

of the order of the Illinois Pollution Control Board

in PCB 95-

103 dated July 7,

1995.

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6

Petitioner

Authorized Agent

Title

Date

IT IS SO ORDERED.

Section 41 of the Environmental

Protection Act,

(415 ILCS

5/41

(1992)),

provides

for appeal

of final orders of the Board

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, Motion for Reconsideration.)

I, Dorothy N.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify~~jiat

the above opinio

d order was

adopted on the

/tL

day of_________________________

1995, by a vote of

‘7Z7.

j

2

i’t~1~

~(.

Dorothy

M. G?fn,

Clerk

Illinois

P0’ 1 tion Control Board