ILLINOIS POLLUTION CONTROL BOARD
February 16,
1995
MUKHTIAR SINGH,
Petitioner,
V.
)
PCB 94—314
(Variance—Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
WALTER ZARNECKI APPEARED ON BEHALF OF THE PETITIONERS;
BONNIE R.
SAWYER APPEARED ON BEHALF OF RESPONDENT;
OPINION AND ORDER OF THE BOARD
(by G.
T.
Girard):
On October
31,
1994, Mukhtiar Singh filed
a petition for
variance seeking relief from 35
Iii.
Adrn.
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 West Irving Park Road
in Hanover Park,
Illinois.
On December 20,
1994,
the Illinois
Environmental Protection Agency
(Agency) filed a recommendation
that the Board grant the requested variance 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 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).)
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 variance
request will be granted.
REGULATORY
FRAMEWORK
The
Clean Air Act Amendments of 1990 required that owners or
operators of gasoline dispensing facilities located in moderate
2
or above nonattainment areas install and operate gasoline vehicle
refueling vapor recovery systems
(Stage II systems).
(Pet.
at
2~)i
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
2.)
Therefore, petitioner was required to demonstrate compliance by
November
1,
1994.
Petitioner
is requesting a six-month variance
until May
1,
1995,
from the Board’s Stage II vapor recovery
regulations for its facility in Hanover Park,
Illinois.
(Pet.
at
2; Rec. at 2.)
The facility employs two people and is located at the
intersection of Barrington Road and Kingsbury Road in a mixed
residential and commercial area.
(Pet.
at 2.)
The petitioner
states that the facility dispenses an average of 35,000 gallons
of gasoline per month.
(Pet.
at 2—3.)
Petitioner estimates that
the uncontrolled emission from the facility would be
approximately 290 pounds of VOM tvolatile organic material
per
month.2
(Pet. at
3.)
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
“.
2
The
petition
is
inconsistent
in
that
petitioner
also
asserts
that
the
uncontrolled
VOM
emissions
from
its
facility are
estimated at 400 pounds of VOM per month.
(Pet.
at
3, points
7
and 11.)
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 3.)
The estimated cost for installation of the Stage II
system was $40,000 with an additional $15,000 estimated for soil
remediation
if contamination was discovered.
(Id.)
The
petitioner
is
a small business with annual sales of about
$450,000 and a net profit of about $30,000.
(Pet.
at 3.)
The
petitioner asserts that it will be necessary to seek financial
assistance to complete the installation of the Stage
II system.
(Id.)
The procedure to obtain these loans “is likely to take 60
to 90 days,
i.e.
around January of February,
1995”, according to
petitioner.
(Pet.
at 3.)
At that time of year the petitioner
argues that installation would be difficult if not impossible due
to inclement weather,
(Id.)
The petitioner also maintains that
the contractors which install the Stage II systems are very busy
and need “adequate lead time”.
(Pet.
at 3.)
The Agency agrees that immediate compliance with Section
218.586 imposes an arbitrary or unreasonable hardship on the
petitioner.
(Rec.
at 4-5.)
Further, Terry Sweitzer, testifying
on behalf of the Agency,
stated that he had reviewed the petition
and the supporting documents submitted by the petitioner.
(Tr.
at 10.)
Mr.
Sweitzer testified that “these documents demonstrate
that the petitioner would suffer a hardship if required to
install a Stage
II vapor recovery system by the required date of
November 1st,
1994”.
(Tr.
at 10.)
ENVIRONMENTAL IMPACT
Petitioner has asserted conflicting estimates for VOM
emissions from its facility; however, the Agency estimates the
emissions from the facility to be 409.5 pounds of VOM per month.
(Pet.
at
3; Rec. at 2-3.)
Regardless of the level of emissions
from the petitioner’s facility, petitioner asserts that the
increased emissions from the facility would only be approximately
.00007
of the total VON emissions per day in the Chicago area.
(Pet.
at 4.)
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
4.)
The Agency disagrees with the calculations of the percentage
of total VOM emissions per day set forth by petitioner.
(Rec. at
4.)
The Agency estimates that the emissions from the facility
would be .002
of the total VON emissions per day in the Chicago
area.
(Id.)
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 4.)
Therefore, the Agency
is recommending that the variance be
4
granted with the condition that the variance will not extend into
the 1995 ozone season.
(Rec.
at 4.)
CONSISTENCY WITH FEDERAL LAW
Petitioner states that the requested relief is consistent
with the Clean Air Act.
(Pet. at 4.)
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 VOM emissions during the ozone season”.
(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 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 I11.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 petitioner would encounter,
and the environmental
impact
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.
Petitioner has requested that the
variance commence November 1,
1994 and end May
1,
1995.
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 and 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.
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
petitioner indicated at hearing that it “would make every effort
to comply by April 1”.
(Tr. at 13.)
The requested variance accordingly will be granted, subject
to conditions consistent with this opinion.
5
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board hereby grants the petitioner, Mukhtiar Singh,
a
variance from 35
Ill.
Adm. Code 218.586, Gasoline Dispensing
Operating—Motor Vehicle Fueling Operations, subject to the
following conditions:
1.
The variance is for a period of five months commencing
November
1,
1994,
and expiring March 31,
1995;
2.
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;
3.
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:
Illinois Environmental Protection Agency
Attn:
Mr.
Terry Sweitzer
Bureau of Air
P.O. Box 19276
Springfield,
Ii 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:
6
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 94-314, February 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.
I, Dorothy
M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the abo~opinion and order was
adopted on the
~
day of
~
,
1995,
by a
vote of
7—a
Dorothy
4.
Gunn,
Clerk
Il1inoi~-’Pol1utionControl Board