ILLINOIS POLLUTION CONTROL BOARD
January
11,
1995
AMOCO OIL
COMPANY,
Petitioner,
V.
J
PCB 94—263
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by C.
A. Manning):
On September 23,
1994 Amoco Oil Company
(Amoco)
filed a
petition for variance from 35
Ill.
Adm
Code 218.586, the Illinois
Pollution Control Board’s (Board) regulations for Stage II
gasoline vapor recovery, for 16 Amoco gas stations located in the
Chicago ozone nonattainment area in Illinois.’
On behalf of
these stations, Amoco is seeking a temporary reprieve from the
requirement that vapor recovery systems be installed at each gas
station by November
1,
1994 as required by Section 218
•
586(d).
A public hearing was held on November 22,
1994 before Board
hearing officer, Deborah Frank in Chicago, Illinois.
Members of
the public were present; however, no public comments were made on
the record.
Neither of the parties filed post-hearing briefs.2
For the reasons more fully explained below, the Board finds
that Amoco has satisfied its burden of demonstrating that
immediate compliance with Section 218.586(d) would result in an
1The gas stations seeking
a variance are:
3 E Golf, Arlington Heights,
Operator: Ryan Lasky;
1000 S. Arlington,
Arlington Heights, Operator:
Ronald
F. Black; 2250
S. Arlington,
Arlington Heights, operator:
Arsal Ahmed; 470
Dundee Avenue,
Elgin, Operator:
John Bertrand;
6000 N.
Cicero, Chicago,
Operator:
Jim Stratigakis;
8359 Crawford, Skokie,
Operator:
Gary Svacina;
2100 Sheridan,
Zion,
Operator:
Tim Athans;
1343
5. Lewis,
Waukegan,
IL,
Operator:
Thomas Brown; 3402 5. Archer,
chicago, Operator:
David Goldberg;
1001 N.
Cicero, Chicago,
Operator:
Hahlid Iqbal;
219 S. Nelton, West Chicago,
Operator:
Norb Janisch;
401 W. Chicago, Oak Park, Operator:
Francisco Gill;
610 W.
Randolph, Chicago,
Operator:
Drew Passaglia; 6000
W. Roosevelt,
Oak
Park,
Operator:
M.S. Nunley; Rt.
53 and Hobson Road,
Woodridge, Operator:
Bill Stockhausen; Washington and Hillside,
Naperville,
Operator:
Ruth Ann
Epperson; 6000 W.
Roosevelt, Oak Park, Operator:
M.S. Nunley; Rt.
53 and
Hobson Road, Woodridge, Operator:
Bill Stockhausen; and Washington and
Hillside,
Naperville, Operator:
Ruth Ann Epperson.
2The Board received two letters from members of the public each
requesting,
for various reasons, that the Board deny the variance relief. One
is from Jonas Vienuzia,
dated October 10,
1994 objecting on the basis that
coat of compliance does not outweigh the risk to the environment.
The second
is from Marilyn Kerr, dated October
18,
1994 objecting on the basis that she
may be adversely affected by the un&ontrolled emissions.
2
arbitrary or unreasonable hardship.
Accordingly, we grant the
variance relief as requested by Amoco and do so with certain,
standard conditions as are set forth in the attached order.
PROCEDURAL AND FACTUAL
BACKGROUND
For the past two years, Amoco has been in the process of
installing Stage II vapor recovery systems in approximately 280
Amoco—operated gas stations in the Chicago nonattainment area in
order to bring them into compliance with 35 Ill. Adm. Code
Section 218.586.
Section 218.586 requires that gas stations
located in Chicago’s ozone nonattainment area must install
gasoline vehicle refueling vapor recovery systems.
These
systems, which are also known as “Stage II systems” were to have
been installed and operational by November
1,
1993 at stations
that dispense over 100,000 gallons per month and November 1,
1994
for stations dispensing between 10,000 and 100,000 per month.
With the exception of one gas station which was covered by a
Board—granted provisional variance, Amoco brought 180 of the
100,000—gallon gas stations on—line by November 1,
1993.
(Pet.
at 3.)
After meeting the November 1,
1993 date, Amoco then began
planning for the next wave of Stage II system installations at
the 10,000 to 100,000—gallon stations.
(Affidavit of Michael P.
Kocon at 1.) This second wave would bring approximately 120
Amoco-operated gas into compliance by November
1,
1994.
Thus
far, approximately 100 have been equipped with Stage II systems
and the variance relief requested in this case would cover 16 of
the stations.
In early 1994, Amoco opened discussions with the station
operators for the Stage II systems installation.
In late summer
it became obvious that not all systems could be installed by
November 1, 1994 at all the stations.
Some stations would close
permanently; some planned to renovate their stations; and other
stations were subject to condemnation and eminent domain actions
by the State of Illinois.
Amoco accordingly contacted the
Illinois Environmental Protection Agency
(Agency)
in mid-August
to begin discussions for the instant variance request.
The
variance petition was then filed on September 20,
1994
accompanied by a motion for a expedited hearing.
(Aff.
of
Michael P. Kocon at 3; Pet, at 12.)
Pursuant to the Board’s statutory responsibility to grant
variance relief whenever it finds that compliance with the
regulations would impose an arbitrary or unreasonable hardship,
the Board held a hearing on November 22,
1994 on Amoco’s petition
for variance.
(415 ILCS 5/35(a).)
At that hearing both Amoco
and the Agency appeared, each submitting documentary evidence in
support of the Board granting Amoco the requested variance
relief.
Amoco submitted affidavits of the gas station owners and
3
operators, and additionally offered various affidavits concerning
the stations’ ability to comply with the November 1,
1994
compliance date.
From the Agency, Terry Sweitzer, Manager of the
Air Section, offered written testimony supporting the Agency’s
recommendation.
As part of its statutory responsibilities in this matter,
the Agency conducted an investigation of the facts as alleged in
the petition, placed public notice of Amoco’s variance petition
in local newspapers,
and notified the units of local government
which may be affected by the requested variance.
(415 ILCS
5/4(f)
and 37(a); Agency Rec. at 1—5.)
The Agency also filed a
recommendation in this matter on October 27,
1994,
and
subsequently amended the recommendation on November 22,
1994.
Originally, the Agency had recommended that the Board deny
variance relief for seven of the Amoco gas stations and did so
based upon the Agency’s concern that the petition for variance
had not demonstrated sufficient compliance plans for these seven
stations.
The Agency stated that if adequate information were
provided prior to the hearing, then the recommendation may be
subject to change.
At the hearing, the Agency did amend its
recommendation requesting that the Board grant the variance
relief sought by Amoco.
The Agency also requested that certain
conditions be attached to any variance relief we may grant
concerning the termination date of the variance for each gas
station and future communications with the Agency.
(Agency Rec.
at 11—12 and Res. Exh. #3.)
HARDSHIP
Amoco is requesting variance relief from the State II
requirements for 16 gas stations and with the exception of one
station located at 6000 W. Roosevelt, Oak Park (the “Nunley”
facility), Amoco requests that the other 15 be granted a
temporary variance from the November 1,
1994 compliance date,
or
until March 31, 1995.~ In seeking this group variance, Amoco
cites three different bases in support of its argument that the
November 1, 1994 compliance date would cause an unreasonable
hardship on all 16 gas stations:
Four of the gas stations are
impacted by condemnation actions by the State of Illinois which
will result in on—site construction; two gas stations have plans
for renovation and are awaiting zoning variance approval; and 10
gas stations are renegotiating their contracts with Amoco which
could result, among other things, in possible closure of the gas
stations altogether.
Amoco, and the Agency, agree that each of
these three situations creates an unreasonable hardship for
Amoco,
the gas stations owner and operators, and their employees
3me Nunley facility is scheduled for closure by December 31,
1994,
and
a variance to this date rather than March 31,
1995 is necessary according to
both Amoco and the Agency.
4
because if the Stage II systems are installed by November 1,
1994, they would only be removed if the site were closed or if
the site were under construction.
Each of the bases for the
variance relief is discussed below.
Condemnation
In two separate road projects, four gas stations will lose a
portion or all of the property on which the stations are located
through condemnation actions and eminent domain.
In one
project, Arlington Heights is widening Arlington Heights Road and
this construction will impact three gas stations located in
Arlington Heights.4
(Pet. at 4.)
In the other project, the City
of Elgin has filed an eminent domain proceeding to take the
entire gas station located on Dundee Avenue in order to also
widen that street.5
(~~)
As a result of both road projects,
construction will occur at all four stations requiring the USTs
to be dismantled and relocated,
and in the case of the Dundee gas
station, the entire station will be relocated.
Amoco is waiting
for the State to take possession of the properties, and then it
will close the businesses. During this interim period, Amoco is
seeking the temporary variance from the Stage II system
installation requirement to avoid the approximately $500,000 in
capital expenditures necesssary to bring all four stations into
compliance.
When the relocation/construction occurs, the gas
stations will be shut down and will not dispense gasoline, and
each station will be brought back on-line with the Stage II
systems in place and operational.
(Pet. at 4—5.)
The Agency asks that the relief be granted for these
stations until March 31,
1995 or until the date that construction
requires temporary shut down.
Zoning
Two
of the gas stations have plans to renovate the buildings
and update the fuel dispensing systems.6
In order to do so,
these stations are seeking zoning variance so that the Woodridge
station can be demolished entirely and rebuilt,
and the
Naperville gas station may receive a new canopy.
The City of
Woodridge is expected to decide the zoning variance in the spring
of 1995 and Naperville is expected to rule in the fall/winter of
4The three gas stations are located at:
3 E Golf, Arlington Heights;
1000
S. Arlington, Arlington Heights; and
2250 S. Arlington,
Arlington Heights.
5This gas station is located at 470 Dundee Avenue,
Elgin.
6The gas stations undergoing renovation are: Rt.
53 and Hobson Road,
Woodridge and the corner of Washington and Hillside,
Naperville.
5
1994.
(Pet. at 9.)
Amoco is seeking a variance for these
stations so that they need only undergo one construction project
to simultaneously install the Stage II systems and make the
improvements.
(~~)
For the gas stations affected by zoning, the Agency requests
that the variance be granted to March 31,
1995, or until
construction is completed, whichever is sooner.
Contract Negotiations
As to the last basis for variance relief, Amoco argues that
it is in the midst of renewal negotiations for the operation of
the remaining ten gas stations.7
Amoco is seeking variance
relief on behalf of these stations until March 31, 1995 because
all of the operating contracts are due to be terminated or to
expire prior to April
1,
1995.
Both Amoco and the stations need
a temporary reprieve so that it can be determined which stations
will continue to operate as Amoco stations and which leases will
be terminated.
Without the variance from the November
1,
1994
compliance date, Amoco argues it would have to immediately shut
down all ten stations while the parties continue negotiations.
One of the difficulties that Amoco and the stations face,
and which they are trying to resolve in negotiations,
is that the
installation of the Stage II systems will cost each station
approximately $150,000.
While the leasing contracts now provide
that Amoco will make the initial capital expenditures, the costs
may be passed on to the gas station owner, and this is a point of
discussion in the contract renewals.
Thus far, between the
filing of the variance petition, and the hearing, at least two
contract issues have been resolved resulting in Amoco’s
withdrawal of the variance request for two stations.8
(Aff.
of
Michael P. Kocon at 2.)
If Amoco receives the variance, the company hopes to resolve
the outstanding contract negotiations prior to March 31,
1995.
Amoco assures the Board,
and the Agency, that if agreements are
not reached by the end of the variance term, Amoco will cease
7The gas stations involved in contract renegotiations are:
6000 N.
Cicero,
chicago;
8359 Crawford,
Skokie; 2100 Sheridan,
Zion,
Operator;
1343
S.
Lewis,
Waukegan,
IL; 3402
S.
Archer, chicago;
1001 N. Cicero, Chicago;
219 S.
Nelton,
West Chicago;
401 W. Chicago, Oak Park; 610 W.
Randolph, Chicago; 6000 W.
Roosevelt, Oak Park;
Rt.
53 and Hobson Road,
Woodridge; Washington and
Hillside, Naperville;
and 6000 W. Roosevelt,
Oak Park.
8Originally, Amoco requested variance relief
for 12 facilities
renegotiating contracts.
Since the petition’s filing, two gas station
contracts have been resolved,
and therefore,
at the hearing, Amoco amended the
request from 12 stations to 10.
These are the same 1G gas stations requesting
a variance during the period of contract renegotiation.
6
allowing the stations to dispense Amoco gas before the ozone
season commences or April
1, 1995; Amoco will remove the gasoline
dispenser hoses and nozzles.9
For the gas stations with contractual issues, the Agency
requests that the variance relief be granted to March 31,
1995,
or until operations cease, whichever is earlier.
ENVIRONMENTAL
IMPACT
When gasoline is dispensed at gas station fuel pump,volatile
organic compounds (VOC5 or volatile organic material, VOM) are
emitted into the atmosphere.
The U.S. EPA estimates that
uncontrolled emissions due to vehicle refueling equals
approximately 11.7 pounds of VOC per 1000 gallons of dispensed
fuel.
(Pet. at 5; Mobil v. IEPA (May 5,
1994) PCB 94—60, slip
op. at 5.)
Using the information provided by Amoco in its
petition for variance, we calculate that the 16 gas stations
together, dispense approximately 38,689.07 gallons per day and as
such, approximately 452.66 pounds of VOC5 per day.
(~
Pet. at
5,
7, and Pet.
Exhs.
1,
4,
6
and 7.)
This amount of VOC5 would
equal 0.0124
of the total VOC5 emitted in the Chicago
nonattainment area,
if the total daily emissions from all sources
is 3,660,000 pounds per day.
(~
Pet. at.
5, citing,
1990
Emissions Inventory:
VON NOx. CO for Chicago Area.)°
Amoco believes that the environmental impact of granting the
variance will be negligible because the uncontrolled VOC
emissions would occur during the winter months.
Both parties
agree that uncontrolled VOC emissions have a minimal impact if
they occur in winter months rather than during the ozone season.
The ozone season begins on April
1,
1995 in the Chicago
nonattainment area and Amoco is seeking a variance up until March
31,
1995.
(~
Mobil v.
IEPA. slip op. at 6.)
Amoco intends to
control the VOC emissions at all
16 gas stations by the start
ozone session either by having the Stage II systems installed,
or
shutting down the gas stations.
Once the Stage II Systems are
installed and operational by April
1,
1995, VOC emissions will be
9Alternatively, Amoco requests variance relief
for these ten stations on the
basis that at least eight will require new USTs altogether and the remaining
two will require new UST upgrades.
Without the variance relief, Amoco would
have had to installed the Stage
II systems by November,
1994, and when the
UST5 are upgraded, remove the Stage
II systems and install them a second time.
Amoco believes it
is more efficient, and less of a hardship to install the new
UST5 and the Stage II systems simultaneously.
10Axnoco only provided total emission figures for the stations with contract
and condemnation issues
as
a basis for seeking the variance relief.
(~
Pet.
at
5 and 7.) However, Amoco also provided the annual volume of dispensed fuel
(see Pet. Exhibits
1,
4,
6, and
7)
and for the purpose of illustration, we
have calculated the daily emissions figures for all 16 gas stations at issue.
7
controlled at 95
during the ozone session in compliance with 35
Ill.
Adm.
code 218.586.
The Agency agrees that the uncontrolled emissions at issue
here are of less concern then if the uncontrolled emissions were
released during ozone season.
The Agency also emphasizes that it
is important that no variance relief be granted for a period that
extends into the ozone season.
CONSISTENCY WITH
FEDERAL
LAW
There is no issue in this case concerning consistency with
federal law.
In its recommendation,
the Agency notes that Stage
II controls are a part of the Agency’s 15
rate of progress plan
and that it
is important that Amoco operations come into
compliance prior to the start of the ozone session.
(Agency Rec.
at 9.)
(See also Mobil v. IEPA slip op.
at
6
(granting Mobil a
group variance would not impede the State’s efforts at achieving
15
reduction in mass emissions of VOC as required by the federal
Clean Air Act Amendments.))
DECISION
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 and unreasonable
hardship upon the petitioner.
(415 ILCS 5/35 9(a)
(1992).)
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.
Based on the record, the Agency’s recommendation, and our
review of the hardship which would be imposed on Amoco and the
gas stations, the Board finds that Amoco has presented adequate
proof that immediate compliance with the 35 Ill. Adm. Code
218.566 could result in an arbitrary and unreasonable hardship.
(Mobil v. IEPA
(May 5,
1994)
PCB 94—60.)
The requested variance accordingly,
is granted, subject to
conditions consistent with this opinion.
The relief shall be
retroactive to November 1,
1994.
This opinion constitutes the Boards’ findings of fact and
conclusions of law in this matter.
ORDER
A.
Amoco Oil Company and the Amoco 16 facilities are hereby
8
granted variance from 35 Ill Adm. Code 218.586(d)
as it
pertains to the requirement that Stage II gasoline vapor
recovery equipment be installed by November 1,
1994,
subject
to certain conditions.
B.
The variance shall apply to the following facilities:
1.
3
E Golf
Arlington Heights
Operator:
Ryan Lasky
Basis:
Condemnation
2.
1000
S. Arlington
Arlington Heights
Operator:
Ronald F.
Black
Basis:
Condemnation
3.
2250
S. Arlington
Arlington Heights
Operator:
Arsal Ahmed
Basis:
Condemnation
4.
470 Dundee Avenue
Elgin
Operator:
John Bertrand
Basis:
Condemnation
5.
6000 N. Cicero
Chicago
Operator:
Jim Stratigakis
Basis:
Contract
6.
8359 Crawford
Skokie
Operator:
Gary Svacina
Basis:
Contract
7.
2100 Sheridan
Zion
Operator:
Tim Athans
Basis:
Contract
8.
1343
S. Lewis
Waukegan,
IL
Operator:
Thomas Brown
Basis:
Contract
9.
3402 S. Archer
Chicago
Operator:
David Goldberg
Basis:
Contract
9
10.
1001 N. Cicero
Chicago
Operator:
Hahlid Iqbal
Basis:
Contract
11.
219
S. Nelton
West Chicago
Operator:
Norb Janisch
Basis:
Contract
12.
401 W. Chicago
Oak
Park
Operator:
Francisco Gill
Basis:
Contract
13.
610 W. Randolph
Chicago
Operator:
Drew Passaglia
Basis:
Contract
14.
6000 W. Roosevelt
Oak
Park
Operator:
M.S. Nunley
Basis:
Contract
15.
Rt.
53 and Hobson Road
Woodridge
Operator:
Bill Stockhausen
Basis:
Zoning
16.
Washington and Hillside
Napervi 1le
Operator:
Ruth Ann EppersOn
Basis:
Zoning
C.
The variance shall be subject to the following conditions:
A.
For the Lasky, Black,
Ahined, and Bertrand facilities,
from November
1,
1994 to either March 31,
1995 or the
date on which road construction requires temporary
shutdown of the stations, whichever is earlier;
B.
For the Nunley facility, until December 31, 1994;
C.
For the Stockhausen and Epperson facilities,
from
November 1,
1994 until either March 31,
1995 or when
construction is complete, whichever is earlier;
D.
For the Stratigakis, Svacina,
Athans, Brown,
Goldberg,
Iqbal,
Janisch, Gill, and Passaglia facilities, from
November 1,
1994 until March 31,
1995;
10
E.
Petitioner shall notify Mr. Terry Sweitzer, P.E.
Manager
—
Air Monitoring Section, Division of Air
Pollution Control, P.O. Box 19276,
Springfield,
Illinois 62794-9276 upon expiration of the variance (as
described above), when operations cease,
or when Stage
II controls are installed.
IT IS ORDERED.
If Petitioner chooses to accept this variance subject to the
above order, within 45 days of the date of this order, Petitioner
shall execute and forward to:
Rachel L. Doctors
Division of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19276
2200 Churchill Road
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 from which this variance is
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 94-263,
January 12,
1995.
Petitioner
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act (415 ILCS
5/41
(1992) provides for the appeal of final Board orders within
11
35 days of the date of service of this order.
The Rules of the
Supreme Court of Illinois establish filing requirements.
(~
also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.)
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that t1~eabove opinion and order was
adopted on the
J/~T-~
day of
~
,
1995, by a vote of
(I
A~
Dorothy N. ~~‘unn,Clerk
Illinois Pá4lution Control Board
