ILLINOIS POLLUTION CONTROL BOARD
February 16, 1995
DOROTHY B. KINDY, d/b/a
REX’S SERVICE STATION, INC.,
Petitioner,
)
PCB 94-320
(Variance
-
Air)
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
DOROTHY KINDY 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
(Pet.) filed by petitioner Dorothy B. Kindy, d/b/a Rex’s Service
Station, Inc. (Kindy), on November 1, 1994. Kindy seeks a 9-
month variance from the Stage II gasoline vapor recovery
requirements, set forth in 35 Ill. Adin. Code 218.586, for its
service station located at 469 Sunset Ridge Road, Northfield,
Illinois. The term of the requested variance is from November 1,
1994 to July 1, 1995.
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).)
The Agency filed its variance recommendation (Rec.) on
December 12, 1994. The Agency agrees that an unreasonable
hardship would be imposed on petitioner in the absence of the
requested relief, and recommends that the variance be granted,
subject to certain conditions.
A hearing was held in this matter on December 22, 1994
before hearing officer David Krause. Linda C. Kindy testified on
behalf of petitioner, and Terry A. Sweitzer, Manager of the Air
Monitoring Section, testified on behalf of the Agency. By
agreement of the parties, no briefs were filed.
2
As presented below, the Board finds that petitioner has met
its burden of demonstrating that immediate compliance with 35
Ill. Adm. Code 218.586(d) (3) would impose an arbitrary or
unreasonable hardship upon petitioner. The variance request is
therefore granted, subject to certain conditions recommended by
the Agency.
BACKGROUND
35 Ill. Adm. Code 218.586 establishes air emission control
requirements applicable to motor vehicle fueling operations
located in the Chicago ozone non—attainment area. The purpose of
the requirements is to limit emissions of gasoline vapors into
the air. Gasoline vapors are volatile organic materials (VOM)
that contribute to the formation of ozone. Among the regulations
is a requirement that fueling operations dispensing between
10,000 and 100,000 gallons per month install Stage II vapor
recovery equipment no later than November 1, 1994. (Section
218.586(d)(3).) Petitioner dispenses 15,500 gallons per month,
and it is uncontested that this provision applies to petitioner’s
facility. (See Rec. at 4, and Rec. Ex. 2.)
Stage II vapor recovery equipment is designed to capture VOM
emissions during the fueling of vehicle tanks. The emissions
consist of gasoline vapors displaced from the motor vehicle tank
by dispensed liquid gasoline as the tank is filled. The Stage II
equipment captures vapors that exit the vehicle’s fuel fillpipe,
thereby preventing the escape of the vapors into the atmosphere.
The captured vapors flow through a vapor passage in the fuel pump
nozzle into a vapor hose and then through vapor lines to the
underground storage tank.
REQUESTED RELIEF AND HARDSHIP
Kindy contends that requiring immediate installation of the
Stage II equipment would cause it an arbitrary and unreasonable
hardship. Kindy is planning to completely rebuild its facility.
(Pet. at 3.) Kindy alleges that it originally planned to begin
reconstruction in September, 1994, but, due to circumstances
beyond its control, construction was delayed and will begin in
March, 1995.
(~~)
Kindy contends that requiring it to install
a Stage II vapor recovery system prior to its rebuild of the site
would impose an arbitrary or unreasonable hardship, since the
system would have to be completely dismantled in order to
complete the rebuilding project, with a large portion of the work
and material wasted. (~c~) Petitioner alleges that the station
will be closed for construction beginning in March 1995 (Tr. at
4), and will only be reopened in July 1995 (Pet. at 3), after
Stage II equipment is installed and operational.
In its recommendation, the Agency estimates that, based on
petitioner’s stated average monthly throughput of 15,500 gallons
3
of gasoline, the VOM emissions from the facility are 181.35
pounds per month. (Agency Rec. at 4.) The Agency states that,
because the station will be closed for construction in March
1995, and reopened in July 1995 when the Stage II vapor recovery
system is operational, there will be no VOM emissions during the
ozone season. (~~jThe Agency has proposed several conditions
to be imposed on the variance to insure that petitioner complies
with the above—stated timeframes, and to insure that petitioner
does not begin dispensing gasoline after reconstruction until
Stage II equipment is operational. (Rec. at 5.)
Furthermore, since petitioner will only be dispensing
gasoline without Stage II equipment during cold weather, the
Agency states that emissions will have a lesser impact on the
environment. (Rec. at 4.) The Agency therefore believes that
the environmental impact of granting the requested relief will be
minimal.
(~~)
The Agency also agrees that requiring petitioner
to comply with the November 1, 1994 date will impose an arbitrary
and unreasonable hardship on petitioner, since the Stage II
equipment would need to be completely dismantled, only to be
reinstalled at the same location shortly thereafter.
(~~)
CONSISTENCY WITH FEDERAL LAW
The Agency believes the variance will not interfere with
attainment of the National Ambient Air Quality Standard for ozone
in the Chicago area, and will not be inconsistent with the Clean
Air Act. (Rec. at 5.) The Agency therefore believes that the
variance will be consistent with federal law.
CONCLUS ION
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 finds that petitioner has made such demonstration,
and therefore the immediate installation of the Stage II
equipment would constitute an arbitrary and unreasonable hardship
for petitioner. The Board therefore grants the requested
variance, subject to the conditions contained in the order below.
Kindy has requested that the term of the variance begin
November 1, 1994. It is well established practice that the term
of a variance begins on the date Board renders its decision,
4
unless unusual or extraordinary circumstances are shown. (See,
e.g. DM1. Inci v.IEPA, PCB 90-227, 128 PCB 245
-
249, December
19, 1991.) Given the fact that Kindy is totally rebuilding the
site, and given the absence of uncontrolled emissions during the
ozone season, the Board finds that the instant circumstances are
sufficiently unusual to warrant the short retroactive start of
the variance requested by Kindy and recommended by the Agency.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
A. Dorothy Kindy d/b/a Rex’s Service Station, 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 facility located at 469 Sunset
Ridge Road, Northfield, Illinois, subject to the following
conditions:
1. The variance begins on November 1, 1994 and expires on July
1, 1995.
2. The station will cease dispensing gasoline by April 1, 1995.
3. The station will not resume dispensing gasoline until Stage
II equipment is operational.
4. If the station completes reconstruction prior to the end of
the variance period, the station will only resume gasoline
dispensing operations when the Stage II equipment is
operational.
5. Dorothy Kindy d/b/a Rex’s Service Station, Inc. shall notify
the Agency of the 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:
Mr. Terry Sweitzer
Illinois Environmental Protection Agency
Bureau of Air
P.O. Box 19276
Springfield, Illinois 62794—9276
IT IS SO ORDERED.
If petitioner chooses to accept this variance subject to the
above order, within 45 days of the date of this order, Dorothy
Kindy d/b/a Rex’s Service Station, Inc. shall execute and forward
the attached Certificate of Acceptance and Agreement to:
5
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:
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 94-320,
February 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 35111. Adm. Code 101.246, Motions for Reconsideration)
6
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby cert4,f~thatthe above opinion and order was
adopted on the /“~day of
______________,
1995, by a vote
of 7—0
.
~
~,
Dorothy M. 9~&nn, Clerk
Illinois Po~lution Control Board