ILLINOIS POLLUTION CONTROL BOARD
March
16,
1995
W.R. GRACE
&
CO.
-
CONN.,
)
Petitioner,
)
v.
)
PCB 94—328
)
(Variance
-
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
KATHLEEN C.
BASSI APPEARED ON BEHALF OF PETITIONER;
BONNIE SAWYER APPEARED ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by M.
McFawn):
This matter is before the Board on a petition for variance
filed by petitioner W.R. Grace
& Co.
-
Conn.
(Grace) on November
16,
1994.
Grace seeks a variance from the air emission control
requirements of 35
Ill.
Adm. Code 218.106(c),
218.940(b),
218.946,
218.948, and the related recordkeeping requirements of
218.Subpart UU for its facility at 6050 West 51st Street,
Chicago, Cook County,
Illinois.
Grace requests that the variance
begin March
1,
1995 and end March 15,
1996.
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 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).)
The Illinois Environmental Protection Agency
(Agency)
is required
to appear
in hearings on variance petitions.
(415 ILCS 5/4(f).)
The Agency
is 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).)
Pursuant to 35 Ill.
Adm. Code 104.180(a), the Agency
recommendation was originally due December 15,
1994.
On December
19,
1994, the Agency filed a motion for extension of time in
which to file its recommendation,
seeking an extension until
January 12,
1995, which the Board granted by order dated January
11,
1995.
The Agency filed its variance recommendation (Rec.)
on
January 13,
1995.
Based on information contained in the petition
for variance and information subsequently submitted to the Agency
by Grace,
the Agency agrees that an unreasonable hardship would
be imposed on Grace in the absence of the requested relief, and
recommends that the variance be granted, subject to certain
conditions.
2
A hearing was held in this matter on January
18,
1995 before
hearing officer June C.
Edvenson.
Kathleen C.
Bassi appeared on
behalf of Grace, and Richard N.
Irelan,
Environmental Health and
Safety Manager for Grace’s Chicago facility,
and Aaron
G. Abbott,
Associate Process Engineer for Grace, testified on Grace’s
behalf.
Bonnie Sawyer appeared on behalf of the Agency,
and
Christopher Romaine testified on the Agency’s behalf.
Grace
filed its post-hearing brief on February 6,
1995, and the Agency
filed its response brief on February
10,
1995.
Grace filed a
reply to the Agency response on February 16,
1995.1
Additionally, Grace filed a motion to correct the transcript on
February 15,
1995, which the Board hereby grants.
As presented below,
the Board finds that petitioner has met
its burden of demonstrating that immediate compliance with the
requirements of 35
Ill.
Adm. Code 218.106(c),
218.940(b),
218.946,
218.948,
and the related recordkeeping requirements of
2l8.Subpart
UTJ
would impose an arbitrary or unreasonable hardship
upon petitioner.
The variance request
is therefore granted,
subject to certain conditions recommended by the Agency.
BACKGROUND
Grace operates a facility located at 6050 West 51st Street,
Chicago, Cook County,
Illinois.
(Petition
(Pet.)
at 1—2.)
The
facility was established
in 1940,
and currently employs
approximately 100 people.
(~.
at 2.)
At this facility,
Grace
manufactures container sealants, automotive products,
lubricant
fuels,
and concrete additives.
The container sealants are a
rubbery coating material used by beverage,
food, and other can
coaters to form
a seal between the ends of cans and the body of
the can where the two pieces are crimped together.
The plant
uses both solvent—based and water—based sealants.
(Id)
Production of the solvent—based can sealant results in the
greatest amount of VOM emissions from the Grace plant.
(u.)
Grace asserts that the emissions from the other processes are
insignificant, and subject to exemptions from control
(Tr. at 14—
15;
see
discussion
infra.)
The solvent—based can sealants are
produced in a batch process by mixing compounded rubber and other
materials into the solvent in a solvation mixer.
I
Pursuant to Section 101.241(c)
of the Board’s procedural
rules, parties do not have the right to file a reply without
leave of the Board.
(35 Ill. Adm. Code 101.241(c).)
Petitioner
did not file a request for leave to file a reply;
however,
in the
interests of judicial economy, the Board will accept petitioner’s
reply.
3
Grace’s facility has a total of
9 solvent lining compound
(SLC) mixers.
(Pet.
at 3,
Tr. at
15.)
The compounded rubber and
other materials are loaded into the mixer through access hatches
in the mixer neck either manually by operators or by conveyor
belts.
Solvent and other materials are piped from storage tanks
into the mixer.
The compounds are subsequently pumped to
blend/storage tanks where low speed agitation continues.
In most
cases, additional solvent is added,
and the product
is recycled
through a homogenizer to attain proper consistency.
The finished
product
is then loaded into tank trucks,
drums,
or other
containers for distribution to customers.
(Pet.
at 3.)
Because the VON emissions from the solvation mixers are
flammable,
Grace has installed a Halon 1301 fire suppression
system.
(Petitioner’s Post-Hearing Br.
(Pet.
Br.) at 4.)
This
system uses ultraviolet eyes to monitor the mixer necks for
sparks or flame.
(Tr. at 24.)
Additionally, the solvation mixer
room is highly humidified to reduce the potential for static
electrical sparking.
(Pet.
Br.
at
4;
Tr.
at 23.)
The majority of emissions occur at the mixers during two
different activities:
loading and mixing.
The loading emissions
are fugitive in nature, and occur through displacement when
materials are added to the mixers through the access hatches.
(Pet.
Br. at 4.)
These emissions are very “peaky”
in nature.
(Pet.
Br.
at
5;
Tr. at 160.)
The emissions rate rises to its
peak value within seconds when materials such as rubber are added
to the mixer
(Tr.
at 18),
and the maximum emissions rate is much
larger than the emissions rate averaged over time
(Tr. at 17).
Grace seeks the requested variance
in order to develop and
implement proper controls for these emissions.
Mixing emissions occur when the contents of the mixers are
being stirred.
The mixing emissions pass through vent pipes
after the access hatches are closed.
Material recovery devices
condense and return to the mixers the vast majority of the
solvent fumes generated during the mixing operation.
(Pet.
at
3.)
Grace estimates that emissions from this solvation process,
when combined with the insignificant levels of emissions from the
other processes,
amount to potential VON emissions of 98 tons per
year
(TPY).
(Pet.
at 2.)
However, Grace estimates that actual
total VON emissions are approximately 35 TPY.
(~~)
APPLICABLE LAW
Subpart QQ requires sources with the potential to emit
(PTE)
25 tons per year or more of volatile organic material
(VOM) to
reduce VON emissions by 81 percent overall from each emission
unit.
(35 Ill. Adm. Code 218.946.)
Compliance
is required by
March 15,
1995.
(35 Ill. Adm. Code 218.106(c).)
Since Grace’s
4
facility has potential VOM emissions
of
98 tons per year,
these
restrictions apply to Grace’s facility.
Grace asserts that exemptions apply to emissions from its
processes other than the loading emissions from its SLC mixers.
Section 218.940 exempts emission units included in the VOC
storage tank category under Section 218.940(b)(l)(B).
Grace
estimates that its emissions in this category are approximately
8.5 tons.
(Tr.
at 14.)
Section 219.940(b) (2) (A)
exempts from
control requirements emissions units which are included
in
Subpart
B, Organic Emissions from Storage and Loading Operations.
Grace’s emissions in this category have been estimated at
approximately 3.3 tons per year.
(Tr. at 15.)
Finally,
Section
218.940(d) provides an exemption which applies to the solvent
process mixing activities,
non—bulk packaging activities, piping
fugitive emissions and non-bulk packaging activities of the
Waterbased Can Sealing Compound and Can—Forming Lubricant
processes,
since they emit less than 2.5 tons per year per
emission unit,
or
5 tons per year
in combination. The total
emissions from this group of emission sources
is estimated to be
4.6 tons per year.
(Tr.
at
15.)
Therefore the petition only
contemplates controlling the remaining emissions,
estimated at
19.2 tons per year,
which result from the loading activities at
the mixers.
The Agency does not dispute the application of these
exemptions to the described emissions.
(Agency Recommendation
(Ag.
Rec.)
at Section II para.
8-11.)
HARDSHIP
Grace has determined that the most appropriate method of
control for its process
is the installation of a thermal oxidizer
and fume capture system.
(Pet.
at 4.)
Grace estimates that the
purchase and installation of such a system will cost
approximately $500,000.00, with annual operating costs of
approximately $100,000.00.
(Pet.
at 4-5.)
However, Grace
alleges that it will be unable to complete installation of the
control device
in a timely manner due to difficulties arising
from the nature of its process and certain design limitations
which must be met.
(Pet at.
5.)
Grace therefore asserts that
meeting the March 15,
1995 compliance date would impose an
arbitrary and unreasonable hardship on its facility.
(See Pet.
Br. at 12.)
Nature of Emissions
Grace asserts that its emissions occur in a complex and
variable manner due to the batch nature of
its process.
(Pet.
at
4.)
There are many variations of formulas used in the batches,
and modelling the typical emissions profile is very difficult.
(Tr. at 18.)
Grace asserts that the “peaky” nature of the
5
emissions stream presents challenges to those designing the
control system.
(Pet.
Br. at
5;
Tr. at
17.)
This emissions
profile requires that the control unit be significantly larger
than one sized for the average emissions of the process, and
requires that the thermal oxidizer burn supplemental heating fuel
during non—peak periods to maintain an efficient temperature.
(Tr.
at 17.)
The actuators which control the input of additional
fuel will also undergo more frequent mechanical cycling than
would normally be expected in this type of control device.
(Tr.
at 18.)
The Agency acknowledges that the “peaky” nature of
petitioner’s emissions may create the need for a larger, more
sophisticated control device, but does not believe that this
creates any undue hardship.
(Ag. Rec.
at XX.)
The Agency points
out that such fluctuations occur with many processes.
In
response to petitioner’s assertion that the variety of
compositions mixed in the emission units contributes to its
hardship, the Agency acknowledges that this factor must be
included in the control scheme,
but does not believe that it
creates any undue hardship.
Design Reguirements
Grace has encountered additional difficulties in designing a
VON capture system that accommodates its operational needs and
existing space constraints.
Grace asserts that the available
floorspace and headspace in the relevant area surrounding the
mixers
is very limited.
Special care must be taken to design a
system which allows full operator access to the mixer necks for
dumping in materials,
taking samples,
and performing other
activities,
as well as allowing the addition of material by means
of the conveyor belts.
(Tr.
at 21.)
The system must also be
designed so as not to interfere with the effectiveness of the
fire suppression system.
(Tr. at 25.)
Grace has encountered additional design difficulties
in
dealing with dust generated during the dumping of solid raw
materials into the mixers.
(Tr.
at 21.)
Because dusts could
adhere to the oxidizer’s catalysts, reducing the oxidizer’s
efficiency,
the system must be equipped with air filters which
separate out these dusts and prevent them from reaching the
thermal oxidizer.
(Tr.
at 22.)
However, the installation of
such a filter presents further design difficulties,
since the
filter may become caked with dust,
reducing the flow of air into
the capture system.
Grace asserts that many of the materials are
sticky in nature and will tend to coat the catalyst bed.
(Pet.
Br. at 5;
Tr.
at 22.)
Additionally, since the room is
intentionally humidified,
the high humidity level may exacerbate
the caking of dust on filters.
(Tr. at 23.)
Grace must verify
the effectiveness of the capture system and its filters prior to
finalizing design of the thermal oxidizer.
6
The Agency believes that these circumstances create
significant design challenges for installing control equipment,
and establish a sufficient hardship to allow additional time for
compliance as requested by petitioner.
(Ag.
Rec.
at XVII
-
XIX.)
Testing
Grace also asserts that there will be difficulties in
testing with conventional methods.
Since the emissions rate is
variable from second to second, methods such as Method 25A may be
inadequate to accurately quantify emissions.
(Tr.
at 18.)
The
Agency’s recommendation does not address this issue.
COMPLIANCE
PLAN
In its petition,
Grace estimates that
it will take six
months to define the scope of the appropriate control scheme,
finalize design,
specification, and process safety review for the
control scheme, and place
its order for the equipment.
(Pet.
at
5.)
Grace estimates that it will take four months to build the
unit,
and another month to install
it.
(Pet.
at 5.)
At the
request of the Agency,
Grace submitted to the Agency a more
detailed compliance plan,
which included the following compliance
milestones:
1.
File a construction permit application for the control
system with the Agency by March
1,
1995.
2.
Complete installation of the capture system and issue a
purchase order for the thermal oxidizer by June 15,
1995.
3.
Initiate installation of the thermal oxidizer by
December 15,
1995.
The Agency accepted and incorporated each of these
milestones into its recommendation,
and recommended that they be
included as conditions
in the variance.
(Ag. Rec.
at VIII.)
Additionally, the Agency recommended that the following condition
be added:
4.
PetitiOner shall start-up the thermal oxidizer by
February 15,
1996.
(Ag. Rec.
at VIII.)
In its recommendation,
the Agency recommended that
satisfying the requirements of these- milestones be conditions
precedent to the continuing validity of the variance.
(Ag.
Rec.
at IX.)
In its response brief,
the Agency clarified its
position on this issue,
stating that the Agency intends that
failure to satisfy any milestone would mean that Grace is in
7
violation of the variance and no longer entitled to a shield from
enforcement based on the variance.
(See Agency Response Br.
Section II.)
Grace agrees to the inclusion of these milestones
in the
variance
(Pet.
Br.
at 3), but objects to their satisfaction being
conditions precedent to the continuing validity of the variance
(Pet.
Br.
at 9).
Grace asserts that the terms of the variance
are subject to enforcement under the Act, and that it is
unnecessary to void the variance based on failure to satisfy
these conditions.
While we find that it is appropriate to include the
milestones as a means
of assuring compliance by the expiration of
the variance, we find it unnecessary to treat them as conditions
precedent to the continuing validity of the variance.
The terms
of the variance are enforceable as a Board order,
and violation
of the terms
of the variance will subject its holder to
enforcement in accordance with Section 42 of the Environmental
Protection Act.
(See Section 33(d)
of the Act.)
Under these
circumstances, the existence of the variance will not shield the
holder from enforcement against such
a violation.
However, the
variance itself will not be voided.
We will therefore include
the milestones in the variance, but will also include language
which properly defines the enforceability of the variance terms.
(See
also
Auburn,
Divernon,
Girard,
Pawnee, Thaver,
Virden Water Commission v.
IEPA,
PCB 94-86
(Nay 5,
1994).)
Additionally, we note that the recommended March
1,
1995
compliance date for milestone number
(1), requiring that
petitioner file a construction permit application for the control
system, has already passed.
In order to avoid subjecting
petitioner to this requirement retroactively, we will extend the
compliance date for milestone number
(1) to March 30,
1995.
ENVIRONMENTAL IMPACT
Grace asserts that the environmental impact of the requested
variance will not exceed current levels.
(Pet.
at 6.)
Grace
indicates that the emission levels of VOM may actually decrease,
due to additional process improvements and decreased demand for
the solvent—based
sealants.
(Pet. at
4,
6.)
Grace asserts that
granting this variance will not impede the State’s ability to
demonstrate a 15
reduction in VOM emissions in the Chicago ozone
non-attainment area by the end of 1996,
as required by Section
182(b) (1)
of the Clean Air Act,
42 USC 7411a(b)(l).
(Pet.
Br.
at
10—11.)
Grace further asserts that its emissions control at the
end of the variance will exceed the emission reduction
requirements of Subpart QQ by
16 tons annually.
(Pet.
Br.
at 10.)
8
The Agency acknowledges that the requested variance will
allow emissions during the 1995 ozone season.
However, the
Agency believes that the hardship Grace will suffer
if timely
compliance is required outweighs the environmental impact from
allowing uncontrolled VON emissions through the 1995 ozone
season.
(Ag. Rec. at VII.)
CONSISTENCY WITH
FEDERAL
LAW
Section 104.122(a)
of the Board’s procedural rules requires
that all petitions for variance from the Board’s air pollution
regulations indicate whether the Board can grant the requested
relief consistent with the federal Clean Air Act and the
regulations adopted pursuant thereto.
Furthermore,
Section
218.108(a)
of the Board’s air regulations requires that all
exemptions, variations or alternatives to the air emission
control requirements, emissions limitations,
or test methods be
approved by the United States Environmental Protection Agency
(USEPA)
as a SIP revision before becoming effective.
(35 Ill.
Adm. Code 218.108(a).)
Grace asserts that the requested variance can be granted
consistent with federal law.
(Pet. at
7.)
Grace states that
under the currently applicable Federal Implementation Plan (FIP),
only facilities which emit more than 100 TPY are subject to
regulation.
(Pet~at 8.)
Furthermore, USEPA has not yet
approved Subpart QQ of the State Implementation Plan
(SIP).
However, Grace concedes that the variance will ultimately have to
be submitted to USEPA as a SIP revision, and Grace has requested
that the Agency submit the requested variance as an amendment to
the SIP once the SIP is approved.
(Pet.
at 8.)
Furthermore,
the
hearing held in this matter satisfies the federal public
participation requirements under the
CAA
and related regulations.
(Pet.
at 9.)
In its recommendation,
the Agency does not dispute that the
requested variance can be granted consistent with federal law.
The Agency notes that granting this variance would allow Grace,
as a major source in the Chicago non—attainment area,
to emit
uncontrolled VON emissions beyond the May 31,
1995 deadline for
implementation of reasonably available control technology
(RACT).
However, the Agency acknowledges that these emissions will only
be significant during the ozone season.
The Board finds that petitioner has satisfied the necessary
conditions for granting the requested variance consistent with
federal law.
The public hearing satisfies the applicable notice
requirements, and Grace has properly requested the Agency to
submit the requested variance to USEPA as a SIP revision.
9
CONCLUSION
In determining whether any variance
is to be granted, the
Act requires the Board to determine whether the petitioner has
presented adequate proof that immediate compliance with the Board
regulations at issue would impose an arbitrary or reasonable
hardship upon the petitioner
(415 ILCS 5/35(a)
(1992)).
The
burden
is on the petitioner to demonstrate that the claimed
hardship outweighs the public interest in attaining compliance
with regulations designed to preserve the environment and protect
human health.
(Willowbrook Motel v.
IPCB
(1985),
135 Ill.App.3d
343,
481 N.E.2d 1032.)
The Board hereby finds that immediate compliance with the
requirements of 35 Ill.
Adm. Code 218.106(c),
218.940(b),
218.946,
218.948, and the related recordkeeping requirements of
218.Subpart UU would constitute an arbitrary and unreasonable
hardship for petitioner.
Petitioner has made such demonstration
based on the difficulties encountered in designing an appropriate
control system under the existing space and process constraints.
While there will be some impact to the environment from the
uncontrolled emissions of VON during the 1995 ozone season, the
emissions will be no greater than those currently emitted, and
there will ultimately be an environmental benefit due to Grace’s
over—compliance with the emissions reduction requirements of
Subpart QQ.
We therefore find that the environmental impact
is
outweighed by the hardship that would be imposed on petitioner by
immediate compliance.
We also find that petitioner has
demonstrated that the requested variance can be granted
consistent with federal
law.
The Board therefore grants the requested variance, subject
to the conditions contained in the order below.
Language has
been added to the variance order which clarifies that the terms
of the variance are enforceable as a Board order in accordance
with Section 42 of the Act.
However, failure to satisfy the
terms of the variance does not void the continuing validity of
the variance.
While petitioner has requested and the Agency has
recommended that the variance be effective starting March
1,
1995,
the Board’s well established practice is 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,
PCB 90-227,
128 PCB 245
-
249, December
19,
1991.)
Given the complexity of factors which Grace must
consider
in designing its control system, and the fact that the
regulations- from which Grace
is seeking a variance became
effective March 15,
1995, the Board finds that the instant
circumstances warrant a one—day retroactive start of the
variance.
The variance will therefore become effective March
15,
1995.
10
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
A.
W.R. Grace
& Co.
—
Conn.
is hereby granted a variance from
the air emission control requirements of 35
Ill.
Adm. Code
218.106(c),
218.940(b),
218.946, 218.948, and the related
recordkeeping requirements of 218.Subpart UU for its
facility at 6050 West 51st Street,
Chicago, Cook County,
Illinois, subject to the following conditions:
1.
The variance begins on March 15,
1995 and ends March 15,
1996.
2.
Petitioner shall meet the following compliance milestones:
a.
Petitioner shall file its construction permit
application for the control system with the Illinois
Environmental Protection Agency
(Agency)
by March 30,
1995.
b.
Petitioner shall complete installation of the capture
system and issue a purchase order for the thermal
oxidizer by June 15,
1995.
c.
Petitioner shall initiate installation of the thermal
oxidizer by December 15,
1995.
d.
Petitioner shall start-up the thermal oxidizer by
February 15,
1996.
3.
The catalytic oxidizer shall be fully operational by March
15,
1996, and in conjunction with the capture system,
shall
reduce VON emissions by 81 percent overall,
as required by
35
Ill. Adm. Code 218.946.
4.
Petitioner shall conduct any tests requested by the Agency
in the construction permit to establish compliance with
Subpart QQ and submit the results of all such tests to the
Agency as required in such permit but in no case later than
March 15,
1996.
5.
Petitioner shall not exceed its current level of VON
emissions during the variance period.
6.
Petitioner shall promptly notify the Agency of attainment of
each compliance milestone provided above.
Notification
shall be sent to:
11
Compliance Unit
Illinois Environmental Protection Agency
Bureau of Air
P.O. Box 19276
Springfield, Illinois 62794—9276
7.
Failure to comply with the conditions of this Board order
shall constitute a violation of this Board order and subject
petitioner to the enforcement and penalty provisions of the
Environmental Protection Act.
IT IS SO ORDERED.
If W.R. Grace
& Co.
-
Conn. chooses to accept this variance
subject to the above order, within 45 days of the date of this
order, W.R. Grace
& Co.
-
Corin.
shall execute and forward the
attached Certificate of Acceptance and Agreement to:
Bonnie Sawyer
Division of Legal Counsel
Illinois Environmental Protection Agency
2200 Churchill Road
Post Office Box 19276
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:
12
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 94-328,
March
16,
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
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 N. 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-c~3
Dorothy M. ~nn,
Clerk
Illinois Pollution Control Board
