ILLINOIS POLLUTION CONTROL BOARD
March 16, 1995
THE SOUTHLAND CORPORATION,
)
)
Petitioner,
v.
)
PCB 94—380
(Variance-Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
MICHAEL J. WALL, OF ROTHSCHILD, BARRY & MYERS APPEARED ON BEHALF
OF PETITIONER;
BONNIE R. SAWYER APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD (by G. T. Girard):
On December 13, 1994, The Southland Corporation (Southland)
filed a petition for variances seeking relief from 35 Iii. Adm.
Code 218.586 of the Board’s air regulations relating to Stage II
gasoline vapor recovery. The petitioner is requesting these
variances for two facilities: the petitioner’s retail gasoline
dispensary at 799 West Northwest Highway in Palatine, Illinois
(Palatine facility); and the petitioner’s retail gasoline
dispensary at 500 Skokie Boulevard, Wilmette, Illinois (Wilmette
facility). On January 17, 1995, the Illinois Environmental
Protection Agency (Agency) filed a recommendation that the Board
grant the requested variances with conditions. On January 11,
1995, a hearing was held in Chicago, Illinois before Board
hearing officer June Edvenson. 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 in the Act 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 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).)
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
variances will be granted with conditions as requested by the
Agency.
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 adopted regulations on August 13, 1992, which
required installation of Stage II systems.
(~,
In 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
Southland operates 29 gasoline dispensing facilities in
Illinois under the name of Citgo Quik Mart and 7-Eleven Stores
(Pet. at 3; Tr. at 10.) Before November 1, 1994, Southland had
completed Stage II equipment installations at 25 facilities.
(Tr. at 11.) Of the four remaining facilities, Southland was
granted provisional variances from the Stage II installation
requirements for stores in Glenview and Northbrook, Illinois, and
subsequently has completed installation of Stage II equipment.
(Tr. at 11.) The Palatine and Wilmette facilities at issue are
the only Southland facilities which still require installation of
Stage II equipment. (Tr. at 11.)
Palatine Facility
Southland’s Palatine facility dispenses an average of 91,534
gallons of fuel per month and is subject to the November 1, 1994,
deadline for installing Stage II equipment (Pet. at 5) found in
Board regulations (35 Ill. Adm. Code 218.586(b)). Southland
estimates that uncontrolled emission from the facility would be
The petition will be cited as “Pet. at
_“;
the Agency’s
recommendation will be cited as “Rec. at
_“;
and the hearing
transcript will be cited as “Tr. at
_“.
3
approximately 1,071 pounds of volatile organic material (VOM) per
month (Pet. at 5), which represents .0019 percent of total VOM
emissions per day in the Chicago area. (Rec. at 3.) The
Palatine facility is operated by twelve full and part time
employees in a mixed residential and commercial area. (Pet. at
4.) Southland originally requested a variance until May 1, 1995,
from the Board’s Stage II vapor recovery regulations for the
Palatine facility. (Pet. at 8; Rec. at 2.)
Southland asserts that a substantial effort was made to meet
the November 1, 1994, deadline for installing Stage II equipment
at the Palatine facility. (Pet. at 5.) All necessary permits to
complete below ground work were applied for well in advance of
the deadline and state permits were granted in September 1994.
(Pet. at 5) The local permit from the city of Palatine was
applied for at the beginning of August 1994. (Tr. at 22.)
Southland has not yet received a permit for the work from the
local municipality of Palatine. (Tr. at 12.) The city of
Palatine has required installation of a new sidewalk by Southland
on the boundaries of the Palatine facility which is on a corner
lot. (Pet. at 5.) The.new sidewalk must be installed before the
local permit for the underground pollution control work will be
issued. (Pet. at 5; Pr. at 12, 13.) After discussions with the
city of Palatine, Southland has contracted to construct the
sidewalk. (Tr. at 13—15.) The contracts for the State II work
have already been executed and the equipment for the project has
been paid for and delivered. (Pet. at 6.) However, the
uncertainties of winter weather and frozen ground conditions may
delay the installation. (Pet. at 6; Tr. at 15.)
The Agency agrees that immediate compliance with Section
218.586 for the Palatine facility imposes an arbitrary or
unreasonable hardship on Southland. (Rec. at 3-4.) The Agency
agrees that the arbitrary and unreasonable hardship exists “until
such time as weather conditions improve to the point to allow the
installations to commence”. (Rec. at 4.) However, the Agency is
only willing to recommend that this variance be granted with the
condition that the relief granted by this variance will not
extend into the 1995 ozone season. (Rec. at 3; Tr. at 8.) At
hearing, Southland agreed to the Agency’s condition that Stage II
equipment be installed at the Palatine facility by March 31,
1995, or else fuel sales would cease at the Palatine facility
until installation is complete. (Tr. at 21.)
Wilmette Facility
Southland’s Wilmette facility dispenses an average of 89,383
gallons of fuel per month and is subject to the November 1, 1994,
deadline for installing Stage II equipment (Pet. at 5) found in
Board regulations (35 Ill. Adm. Code 218.586(b)). Southland
estimates that uncontrolled emission from the facility would be
approximately 1,046 pounds of VOM per month (Pet. at 5), which
4
represents .0012 percent of total VOM emissions per day for the
Chicago area. (Rec. at 3.) The Wilmette facility is operated by
twelve full and part time employees in a residential area. (Pet.
at 4.) Southland originally requested a variance until May 1,
1995, for the Wilniette facility from the Board’s Stage II vapor
recovery regulations. (Pet. at 8; Rec. at 2.)
Southland maintains that a substantial effort was made to
meet the November 1, 1994, deadline for installing Stage II
equipment at the Wilmette facility. (Pet. at 5.) Southland has
applied for state and local construction permits to install the
Stage II equipment at the Wilmette facility, and only the state
permit has been received. (Pet. at 5; Tr. at 16.) Southland
applied to the city of Wilmette for the construction permit to
install Stage II equipment on September 1, 1994. (Tr. at 26.)
over the objection of Southland, the city of Wilmette continued
the hearing on Southland’s request for a construction permit
until the January 1995 Wilmette Village Board meeting. (Pet. at
5; Tr. at 16—18.) The contracts for installing Stage II
equipment at the Wilmette facility have already been executed and
the equipment for the project has been paid for and delivered.
(Pet. at 6.) However, the uncertainties of winter weather and
frozen ground conditions may delay the installation. (Pet. at 6;
Tr. at 15.)
The Agency agrees that immediate compliance with Section
218.586 for the Wilmette facility imposes an arbitrary or
unreasonable hardship on Southland. (Rec. at 4.) The Agency
agrees that the arbitrary and unreasonable hardship exists “until
such time as weather conditions improve to the point to allow the
installation to commence”. (Rec. at 4.) However, the Agency is
only willing to recommend that this variance be granted with the
conditions that the relief granted by this variance will not
extend into the 1995 ozone season. (Rec. at 3; Tr. at 8.) At
hearing, Southland agreed to the Agency’s condition that Stage II
equipment be installed at the Wilmette facility by March 31,
1995, or else fuel sales would cease at the Wilmette facility
until installation is complete. (Tr. at 21.)
ENVIRONMENTAL IMPACT
Southland and the Agency have estimated that emissions from
the Palatine and Wilniette facilities would represent
approximately .0019 percent and .0012 percent, respectively, of
total daily VOM emissions in the Chicago area. (Pet. at 7; Rec.
at 3.) Southland states that the increased VOM emission
resulting from the proposed variances would have a negligible
impact on the Chicago areas ozone nonattainment status. (Pet. at
7.) The Agency states that while emissions from these two
facilities 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,
5
add up to significant emissions”. (Rec. at 3.) Therefore, the
Agency is recommending that the variance be granted with the
condition that the variance not extend into to the 1995 ozone
season. (Rec. at 3.) At hearing, Southland agreed with the
Agency’s condition that Stage II work at the Palatine and
Wilinette facilities be completed by March 31, 1995. (Tr. at 21.)
If Stage II vapor recovery equipment is not installed and
operational by March 31, 1995, the facility will cease gasoline
dispensing operations until such time as Stage II equipment is
installed and operational. (Rec. at 5; Tr. at 21.)
CONSISTENCY WITH FEDERAL LAW
Petitioner states that the requested relief is consistent
with the Clean Air Act. (Pet. at 7.) The Agency states that
“allowing the conditional relief presented by the Agency in this
Recommendation is not inconsistent with the CAA because there
will be no VON emissions during the ozone season”. (Rec. at 4.)
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 Southland would encounter, and the environmental impact
that would result from grant of variance, the Board finds that
Southland has presented adequate proof that immediate compliance
with the regulations at issue would result in an arbitrary and
unreasonable hardship for each of the two facilities (Palatine
and Wilmette).
The term of the variance will differ slightly for the two
facilities. The Board will grant the variance for the Palatine
facility to commence on December 16, 1994. The Board granted
Southland a 45—day provisional variance for the Palatine facility
in Southland Corporation v. IEPA, PCB 94—337 (PCB 94-337,
December 1, 1994) which commenced November 1, 1994, and expired
December 15, 1994. The Board will grant the variance for the
Wilmette facility to commence on November 1, 1994. 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
6
DM1. Inc.
V.
IEPA, PCB 90—227, 128 PCB 245—249, December 19,
1991.) In view of the facts of this case including the Agency’s
knowledge that the respective local governments have been slow in
issuing the required construction permits (Tr. at 32), and the
Agency’s recommendation of no significant environmental impact,
the Board finds that the instant circumstances warrant the short
retroactive start of the two variances. However, the Board will
only grant the relief until March 31, 1995, as recommended by the
Agency. The Board is convinced that the Stage II system should
be in place prior to the beginning of the 1995 ozone season and
Southland indicated at hearing that it agreed to the Agency’s
recommendation that the variance be granted only until March 31,
1995. (Tr. at 21.)
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.
ORDER
The Board hereby grants the petitioner, The Southland
Corporation, variances from 35 Ill. Adm. Code 218.586, Gasoline
Dispensing Operating-Motor Vehicle Fueling Operations, for the
Palatine and Wilmette facilities, subject to the following
conditions:
1. The variance for the Palatine facility is for a period
of three—and—a—half months commencing December 16,
1994, and expiring March 31, 1995;
2. The variance for the Wilinette facility is for a period
of five months commencing November 1, 1994, and
expiring March 31, 1995;
3. If Stage II gasoline vapor recovery equipment is not
installed and operating by March 31, 1995, the facility
will cease gasoline dispensing operations until such
time as the Stage II equipment is installed and
operational;
4. Petitioner shall notify the Agency upon installation of
any Stage II equipment within 14 days after its
installation. Notification shall include the address
of the facility. Such notice shall be sent to:
7
Illinois Environmental Protection Agency
Attn: Mr. Terry Sweitzer
Bureau of Air
P.O. Box 19276
Springfield, Il 62795—9276
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 94-380, March 16,
1995.
Petitioner
_____
Authorized Agent
Title
___________
Date
____________
8
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.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the /~-c- day of
__________________,
1995, by a
vote of 7—o
•
Dorothy N. ~(inn, Clerk
Illinois P~lution Control Board