ILLINOIS POLLUTION CONTROL BOARD
February 16,
1995
P
&
S,
INC.,
Petitioner,
)
v.
)
PCB 94—299
(Variance
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
LOUIS G. APOSTOL, GRABOWSKI, APOSTOL
& ASSOCIATES,
LTD, APPEARED
ON BEHALF OF PETITIONER;
SHEILA G.
KOLBE, APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by E.
Dunham):
On October 29,
1994,
P
&
S Inc.
filed
a petition for
variance from 35 Ill.
Adm. Code 218.586 (ci) (3), the Board’s
regulations for Stage II gasoline vapor recovery, for its oasis
facility located in Wood Dale,
DuPage County,
Illinois.
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 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).)
The Agency filed its variance recommendation
(Rec.) on
December 12,
1994.
The Agency contends that an unreasonable
hardship would be imposed on P
&
S Inc.
in the absence of the
requested relief.
(Rec.
at 5.)
Accordingly, the Agency
recommends grant of variance,
subject to conditions.
Hearing was held on December 20,
1994 before hearing officer
June Edvenson.
No members of the public attended the hearing.
No briefs were filed.
As presented below, the Board finds that P
& S Inc. has met
its burden of demonstrating that immediate compliance with the
Board regulations at issue would result in an arbitrary or
unreasonable hardship upon P
&
S Inc.
Accordingly, the variance
request will be granted.
2
REOUESTED RELIEF AND HARDSHIP
Gas stations located in the Chicago ozone nonattainment area
are required to be equipped with gasoline refueling vapor
recovery systems (Stage II vapor recovery)
in compliance with 35
Ill. Adm. Code 218.586.
These systems were to have been
installed and operational by November
1,
1993 for stations that
dispense over 100,000 gallons per month and by November 1,
1994
at stations dispensing between 10,000 and 100,000 gallons per
month.
Petitioner dispenses an average of 40,000 gallons of
gasoline per month.
(Pet.
at 4.)
Therefore, petitioner was
required to install Stage II vapor recovery by the November 1,
1994 deadline.
The Illinois Department of Transportation is currently
upgrading the roads surrounding the station.
(Pet.
at 6.)
The
change in the roadway is in response to the development of a
shopping center in the area.
(Pet.
at 6.)
It is anticipated that
the construction in the roadway will require petitioner to
relocate its underground storage tanks.
(Rec.
at 3.)
Completion
of the construction of the roadway is anticipated in early 1996.
(Rec at.
3.)
Without a variance petitioner would be required to
install the vapor recovery equipment twice; both before and after
moving the tanks.
Petitioner contends that installation of the
Stage II vapor equipment is estimated at $60,000.
(Pet.
at 5.)
Petitioner has requested a variance for a period of
18
months.
This period is requested to allow time for the
completion of the upgrading of the roadway, the relocation of the
tanks and the installation of the Stage II equipment.
The Agency recommends that the variance be granted for a
period of
17 months beginning with the November
1,
1994
compliance date.
This period is recommended so that the
expiration of the variance coincides with the beginning of the
ozone season in April.
The Agency also recommends certain
conditions of the variance which the Board has incorporated into
the variance.
ENVIRONMENTAL IMPACT
During the dispensing of gasoline, volatile organic
compounds
(VOC,
also known as volatile organic material or VOM)
are emitted into the atmosphere.
American Petroleum Institute
(API)
estimates that uncontrolled emissions due to vehicle
refueling equals approximately 11.7 pounds of VOC per 1,000
gallons of fuel dispensed.
(Pet.
at 4.)
Petitioner contends that
it will continue to emit approximately 468 pounds of VON per
month during the variance period.
(Pet.
at 4.)
3
The Agency states that emissions of VON during the cold
weather have minimal impact on the ozone air quality.
(Rec. at
5.)
It is only during the ozone season (April
-
October)
that
emissions from gasoline fueling have a significant impact on the
ozone air quality.
(Pet.
at 5.)
The Agency observes that a
majority of the variance period is not during the ozone period.
(Pet. at 5.)
CONSISTENCY WITH FEDERAL
LAW
P
& S Inc. and the Agency agree that grant of variance would
be consistent with federal law.
(Pet. at
6 and Rec.
at,5.)
The
Agency contends that the granting of the variance will not impede
the State’s efforts at achieving the 15
reduction in VON
emissions because Stage II equipment will be installed at the end
of the variance period.
(Rec. at 6.)
With the granting of this
variance, the Agency will submit necessary information to the
United States Environmental Protection Agency as a State
Implementation Plan amendment.
(Rec.
at 6.)
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 and 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 N.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 P
&
S Inc. would encounter,
and the environmental impact
that would result from grant of variance, the Board finds that P
&
S Inc. has presented adequate proof that immediate compliance
with the regulations at issue would result in an arbitrary and
unreasonable hardship on P
& S Inc.
P
&
S requests that the
variance commence on November
1,
1994.
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.)
In view
of the facts of this case the Board finds that the instant
circumstances warrant the short retroactive start of the
variance.
The requested variance accordingly will be granted,
subject to conditions consistent with this opinion.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
4
ORDER
A.
P
&
S Inc.
is hereby granted a variance from 35 Ill. Adm.
Code 218.586(d) (3)
as it pertains to the requirement for
Stage II gasoline vapor recovery equipment at its oasis
facility located at Irving Park and Addison Roads in Wood
Dale,
Du Page County,
Illinois subject to the following
conditions:
1.
Variance begins on November
1,
1994 and
expires on April
1,
1996, or 60 days after
notification to P
&
S
Inc. from the Illinois
Department of Transportation (IDOT), or the
developer of the shopping center that the
widening of the roadway will be abandoned for
any reason, whichever is sooner.
2.
Petitioner shall send monthly status reports to
the Agency on the progress of the construction of
the Irving Park Road and Addison Road improvement
with the following information:
a.
Dates when construction begins and ends;
b.
If widening of the roadways has begun;
c.
When Petitioner moves its USTs and
ci.
Any correspondence from IDOT or the developer of
the shopping center on the status of construction
of the roadway of the shopping center
(i.e.,
as in
Exhibit 1).
3.
If construction is completed on the road improvement
before April
1,
1996, Petitioner shall
install Stage II
Vapor recovery system within 60 days from the event of
completion of the road improvements.
4.
Petitioner shall notify the Agency upon completion of
the installation of Stage II equipment.
Notification of the above shall be sent to:
Mr. Terry Sweitzer,
P.E.
Manager, Air Monitoring Section
Division of Air Pollution Control
P.
0. Box 19276
Springfield,
IL
62794—9276
B.
Within 45 days of the date of this order, Petitioner shall
execute and forward to Sheila Kolbe,
Division of Legal
Counsel,
Illinois Environmental Protection Agency,
2200
5
Churchill Road,
Post Office Box 19276,
Springfield, Illinois
62794—9276,
a Certification of Acceptance and Agreement to
be bound to all 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 45 days renders this variance
void and of no force and effect as a shield against
enforcement of rules from which variance was granted.
The
form of said Certification shall be 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 94-299,
February 16,
1995.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
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.
Acim.
Code 101.246, Motions for Reconsideration)
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the abQy~opinion and order was
adopted on the
/~‘~-~
day of
_______________,
1995,
by a vote
of
76.
//
Dorothy N.
nn,
CleIk
Illinois
P
1 ution Control Board