ILLINOIS POLLUTION CONTROL BOARD
March 16,
1995
CERTIFIED PERFORMER,
INC.
)
d/b/a KEITH’S UNION 76,
)
Petitioner,
v.
)
PCB 94—327
(Variance-Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
JEFFREY
A. BIVENS, APPEARED ON BEHALF OF PETITIONER;
BONNIE R.
SAWYER, APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J.
Yi):
On November
15,
1994,
Certified Performer,
Inc., d/b/a
Keith’s Union 76
(Certified),
filed a petition for variance
seeking relief from 35
Ill.
Adm. Code 218.586 of the Board’s air
regulations relating to Stage II gasoline vapor recovery.
The
petitioner
is requesting this variance for petitioner’s retail
gasoline dispensary at Routes
25 and
34 in Oswego,
Illinois.
On
January
11,
1995,
the Illinois Environmental Protection Agency
(Agency)
filed a recommendation that the Board grant the
requested variance with conditions.
On January
20, l995~ a
hearing was held in Oswego,
Illinois before Board hearing officer
Deborah L.
Frank.
No members
of the public were present at the
hearing.
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 there with the responsibility of
granting variance from Board regulations whenever it
is found
that compliance with the regulations would impose an arbitrary or
unreasonable hardship upon the petitioner.
(415 ILCS 5/35(a)
(1992).)
The Agency is required to appear in hearings on
variance petitions.
(415 ILCS 5/4(f)
(1992).)
The Agency
is
also charged, among other matters, with the responsibility of
investigating each variance petition and making a recommendation
to the Board as to the disposition of the petition.
(415 ILCS
5/37(a)
(1992).)
As presented below, the Board finds that petitioner has met
its burden of demonstrating that immediate compliance with the
Act or Board regulations at issue would result in an arbitrary or
unreasonable hardship upon petitioner.
Accordingly, the variance
request will be granted.
2
REGULATORY
FRAMEWORK
The
Clean
Air
Act
Amendments of
1990
required
that
owners
or
operators
of
gasoline dispensing facilities located in moderate
or above nonattainment areas install and operate gasoline vehicle
refueling vapor recovery systems
(Stage II systems).
(Pet.
at
2.)’
The Board acted to adopt regulations which required
installation of Stage II systems on August
13,
1992.
(~,
~
the Matter of:
Stage
II Gasoline Vapor Recovery Rules Amendments
to 35 Ill. Adm. Code
215.
218, and 219, R91—30,
135 PCB 415
(August
13,
1992).)
Section 218.586 requires the installation of Stage II
systems for “any gasoline dispensing operation which dispenses an
average monthly volume of more than 10,000 gallons of motor
vehicle fuel per month”.
(35 Ill.
Adm. Code 218.586(b).)
Operations subject to the requirements of Section 218.586 shall
demonstrate compliance according to the schedule set forth
in
Section 218.586(d).
Section 218.586(d) (3)
provides:
Operations that commenced construction before November
1,
1990,
and dispense an average monthly volume of less
than 100,000 gallons of motor fuel per month must
comply by November 1,
1994.
REQUESTED RELIEF AND HARDSHIP
Petitioner’s operation commenced construction before
November
1,
1990,
and dispenses an average monthly volume of less
than 100,000 gallons of motor fuel per month.
(Pet.
at
3.)
Therefore,
petitioner was required to demonstrate compliance by
November
1,
1994.
Petitioner
is requesting a eighteen-month
variance until May
1,
1996,
from the Board’s Stage II vapor
recovery regulations for its facility in Oswego,
Illinois.
(Pet.
at 1.)
The petitioner is the operator of the facility and is
negotiating for the purchase of the property.
The facility
employs eight people and is located at the intersection of Routes
25 and 34 a mixed residential, industrial
and commercial
area.
(Pet.
at 3.)
The petitioner states that the facility dispenses
an average of 30,000 gallons of gasoline per month.
(Pet.
at 3.)
Petitioner estimates that the uncontrolled emission from the
facility would be approximately 332.1 pounds of VOM volatile
organic material) per month.
(Pet. at 3-4.)
1
The petition will be cited
as
“Pet.
at
_“;
the Agency’s
recommendation will be cited as “Rec.
at
_“;
and the transcript
will be cited as “Tr. at
“.
3
Prior to November
1,
1994,
Petitioner retained an
environmental engineering firm to install the Stage II
system and
to perform a limited soil characterization study if required.
(Pet.
at 4.)
The results of the petitioner’s soil
characterization indicated the presence of petroleum
contamination which may need to be remediated.
(Pet. at
4.)
The
estimated cost for installation of the Stage II system was
$20,000 with an additional costs for soil remediation if
necessary.
(Pet.
at 5.)
Remediation may require additional
costs for dismantling and re—installation of the Stage
II System
if it is installed prior to the remediation.
Additionally,
petitioner states that
“...
it is unreasonable and arbitrary to
require Petitioner
(sic) to install a Stage
II System when
contract negotiations for the purchase of the property may fall
through.”
(Pet.
at 5.)
Petitioner has filed the 20 and 45 day
reports on July 8,
1994 and plans on filing its site-
classification with the Agency in June of 1995.
(Pet.
at
5.)
The Agency agrees that immediate compliance with Section
218.586 imposes an arbitrary or unreasonable hardship on the
petitioner.
(Rec.
at 6.)
Further,
the Agency states that the
petitioner has demonstrated that the petitioner would suffer a
hardship
if required to install a Stage II System by the required
date of November
1,
1994.
(Rec. at
6.)
ENVIRONMENTAL IMPACT
Petitioner has asserted estimates for VOM emissions from its
facility to be 332.1 pounds per month.
(Pet.
at 3.)
Petitioner
asserts that the increased emissions from the facility would only
be approximately .000004
of the total VON emissions per day in
the Chicago area.
(Pet.
at 6.)
The Agency estimates that the
petitioner’s daily VON emissions will constitute
.0004
of the
Chicago non—attainment area daily emissions.
(Rec.
at 3.)
Therefore, petitioner argues the increased air emissions during
the requested period for the variance would have “a negligible
impact on the Chicago area’s ozone nonattainment status.”
(Pet.
at 6.)
Although the Agency disagrees with the calculations of the
percentage of total VON emissions per day set forth by
petitioner,
it does agree that the emissions are insignificant.
(Rec.
at 3.)
The Agency states that while the emissions from
this facility are not significant when compared to the total
Chicago area VON emissions;
“the ozone problem in Chicago is
largely attributable to numerous smaller sources that, when
aggregated,
add up to significant emissions.”
(Rec.
at 3.)
However, the Agency believes that hardship of requiring
installation of the Stage II System outweighs the negligible
environmental impact of allowing the variance.
(Rec at
5.)
Therefore,
the Agency recommends granting of the variance with
conditions.
(Rec.
at
5.) One condition to the Agency’s
4
recommendation of grant is that Petitioner will install the Stage
II System no later than March 31,
1996.
(Rec. at 7.)
CONSISTENCY WITH FEDERAL LAW
Petitioner states that the requested relief
is consistent
with the Clean Air Act.
(Pet.
at 6.)
The Agency states that the
grant of the variance should not notably hamper the State’s
efforts of complying with federal law.
(Rec.
at 5.)
CONCLUSION
In determining whether any variance
is to be granted, the
Act requires the Board to determine whether a petitioner has
presented adequate proof that immediate compliance with the Board
regulations at issue would impose an arbitrary or unreasonable
hardship upon the petitioner.
(415
ILCS 5/35(a)
(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 ~J.E.2d
1032.)
Only with such a showing can the claimed hardship rise to
the level
of arbitrary or unreasonable hardship.
Based upon the record before
it and upon review of the
hardship petitioner would encounter, and the environmental impact
for the 1995 ozone season that would result from grant of
variance, the Board finds that petitioner has presented adequate
proof that immediate compliance with the regulations at issue
would result
in an arbitrary and unreasonable hardship.
The
Board agrees with the Agency statements that the emissions will
have a negligible environmental impact on the 1995 ozone season
if the variance is allowed.
Petitioner has requested that the
variance commence November
1,
1994 and end May
1,
1996.
The
Board notes that it
is 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
DM1,
Inc.
v.
IEPA, PCB 90—227,
128 PCB 245—249, December 19,
1991.)
In view of the facts of this case including the Board’s
knowledge of contractor
arid equipment shortages associated with
installation of Stage
II equipment,
and the Agency’s
recommendation of no significant environmental impact, the Board
finds that the instant circumstances warrant the short
retroactive start of the variance.
The Board is convinced that
the Stage II system should be in place prior to the beginning of
the 1996 ozone season and petitioner indicated at hearing that it
agrees to the Agency’s recommended conditions.
(Tr. at 5.)
The
requested variance accordingly will be granted, subject to
conditions consistent with this opinion.
Lastly, the Board notes that the Agency requests that the
Board use a form of the certificate of acceptance that is
5
different from the traditional certificate.
The Board declines
this request for reasons addressed in a separate order.
(See
UNO-VEN Company v.
IEPA,
PCB 94-282, slip op. February 16,
1995.)
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board hereby grants the petitioner,
Certified Performer,
Inc.,
d/b/a Keith’s Union 76,
a variance from 35 Ill.
Adm. Code
218.586, Gasoline Dispensing Operating—Motor Vehicle Fueling
Operations,
subject to the following conditions:
1.
The term of the variance begins on November
1,
1994 and
terminates as prescribed below.
2.
If the site classification concludes that no further
remediation is necessary,
petitioner will complete
installation of Stage II equipment within forty-five
(45) days of the Agency’s concurrence with this
conclusion.
3.
If the site is classified as low priority, petitioner
will complete installation of Stage II equipment within
forty-five
(45) days of the Agency’s concurrence with
this classification.
4.
If remediation is required but the method selected will
not interfere with Stage II equipment,
petitioner will
install Stage II equipment within forty-five
(45) days
of the approval of this method.
5.
If the site is classified,
and requires further
remediation, petitioner will install Stage II equipment
within forty—five
(45) days of completion of the
remediation,
but in no case
later than March 31,
1996.
6.
Petitioner shall notify Terry Sweitzer of the Illinois
Environmental Protection Agency as to the
classification of this site within fourteen
(14) days
of receipt of site classification approval.
Such
notice shall be sent to:
Mr. Terry Sweitzer
Illinois Environmental Protection Agency
Bureau
of
Air
P.O. Box 19276
Springfield, Illinois 62794—9276
6
7.
Petitioner shall notify the Illinois Environmental
Protection Agency of the installation of any Stage II
vapor recovery equipment within fourteen
(14)
days of
the installation.
Notification shall include the
address of the facility and be sent to Mr.
Terry
Sweitzer at the address provided
in condition /,~5.
IT IS SO ORDERED.
If the petitioner chooses to accept this variance subject to
the above order, within forty-five days of the grant
of the
variance, the petitioner must execute and forward the attached
certificate of acceptance and agreement to:
Bonnie R.
Sawyer
Division of Legal Counsel
Illinois Environmental Protection Agency
P.
0. Box 19276
2200 Churchill Road
Springfield,
IL
62794—9276
Once executed and received, that certificate of acceptance
and agreement shall bind the petitioner 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.
The form of certificate
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 94-327, March 16,
1995.
Petitioner
Authorized Agent ________________________________________
Title
Date ______________________
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1989,
ch.
111 1/2 par.
1041, provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
7
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the
~
day of
___________________,
1995,
by a
vote of
7-r~
Dorothy M.
G
n, Clerk
Illinois Pollution Control Board