ILLINOIS POLLUTION CONTROL BOARD
February 16,
1995
EMRO
MARKETING
COMPANY
)
(Romeoville
Facility),
)
Petitioner,
v.
)
PCB 94—321
)
(Variance
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
JOSE L. GONZALEZ APPEARED ON BEHALF OF PETITIONER;
BONNIE R. SAWYER APPEARED ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by R.C.
Fleinal):
This matter comes before the Board upon
a petition for
variance filed by Emro Marketing Company
(Einro)
on November
4,
1994.
Emro seeks variance from the Stage
II vapor recovery
(Stage II) compliance date of November 1,
1994 found at 35 Ill.
Adm. Code 218.586(d) (3).
The facility at issue is located at 701
N.
Independence, Roineoville,
Illinois.
The term of the requested
variance is from November
1,
1994 to April
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 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 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
January 9,
1995.
The Agency recommends grant of the variance
with conditions.
Emro agrees to accept the conditions
recommended by the Agency.
(Tr.
at p.
6.)
1
Emro originally requested that the variance extend until
September
1,
1995.
(Pet.
at ¶1.)
At hearing Emro acceded to the
Agency’s recommendation that the variance extend only until April
1, 1995.
(Tr. at p.
6,
11.)
—2—
Hearing was held on January 23,
1995 in Monee,
Illinois,
before hearing officer Deborah L. Frank.
Emro presented the
testimony of Ronald G. Schumann, Manager of Environmental and
Maintenance for Emro’s Western Area.
The Agency presented the
testimony of Terry A.
Sweitzer, Manager of the Agency’s Air
Monitoring Section and Administrator of the Illinois Stage II
Vapor Recovery Program.
No members of the public attended the
hearing.
As presented below, the Board finds that Emro has met its
burden of demonstrating that inuuediate compliance with the
regulation at issue would impose an arbitrary or unreasonable
hardship.
Accordingly, the variance request will be granted,
subject to conditions as discussed below.
BACKGROUND
35 Ill.
Adm. Code 218.586 establishes air emission control
requirements applicable to motor vehicle fueling operations
(MVFO)
located in the Chicago ozone nonattainment 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 in the
lower atmosphere.
Limiting emissions of VON is one of the
methods for controlling unwanted ozone formation.
Among the NVFO regulations is a requirement that certain
MVFOs install Stage II vapor recovery equipment no later than
November
1,
1994.
(Section 218.586(d) (3).)
It is uncontested
that this provision applies to Emro’s Romeoville facility.
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 filipipe,
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.
Emro operates 176 retail NVFOs in Illinois.
The Romeoville
facility at issue was recently acquired by Emro.
(Pet.
at ¶7.)
Emro intends to rebuild the facility early in the 1995
construction season.
(Tr. at p.
12—13.)
Emro contends that
requiring installation of Stage II equipment prior to the
rebuilding would constitute an arbitrary or unreasonable
hardship, and hence that variance should be granted.
—3—
HARDSHIP
AND ENVIRONMENTAL IMPACT
Emro contends that requiring installation of the Stage II
equipment prior to rebuilding of the Romeoville facility would
lead to a financial hardship.
The rebuilding will include
removal and replacement of the gasoline dispensers, underground
piping, and underground tanks,
including any Stage II equipment.
(Tr. at p.
12.)
Eiuro estimates that the cost of Stage II
equipment for the Roineoville facility is approximately $35,000.
(Pet.
at ¶10.)
If installed prior to rebuilding,
some of this
Stage II equipment will have to be dismantled and removed during
the rebuilding.
Emro estimates the cost of the work and
materials thus “wasted” during this short—term installation
period to be $30,000.
(~4;
Tr. at p.
5..)
The Agency agrees with
this analysis.
(Tr. at p.
23.)
Emro contends that there are no control measures that could
be temporarily imposed that would achieve immediate compliance in
a manner less costly than Stage II implementation.
(Pet. at ¶13;
Tr. at p.
17.)
Emro contends that the environmental harm that would be
occasioned by delaying installation of the Stage II equipment
would not be significant.
(Petition at ¶8,
12.)
Emro
also
agrees to close the Romeoville facility on or before April
1,
1995, and therefore would not be operating the facility during
any of the 1995 ozone season2.
(Tr.
at p.
16.)
The Agency observes that if the Roineoville facility is
closed on April
1,
1995 and only reopened after Stage II
equipment is installed, the environmental impact resulting from
granting this variance should be minimal.
(Rec.
at ¶14; Tr.
at
24.)
The Agency also observes that because there would be no
uncontrolled VON emissions during the ozone season, attainment of
the National Ambient Air Quality Standard for ozone in the
Chicago area should not be notably hampered by grant of the
variance.
(Rec.
at ¶17.)
The Agency,
in sum, believes that Emro has demonstrated
arbitrary or unreasonable hardship, and that the variance should
therefore be granted subject to conditions that limit
uncontrolled emissions during the ozone season.
(Tr. at p.
23.)
2
The ozone season is defined by the United States
Environmental Protection Agency as the annual period from April
1
through October 31.
—4—
CONCLUSION
The Board agrees with the Agency that Emro has demonstrated
that immediate installation of the Stage II equipment would
constitute a hardship for Emro.
The Board also finds that,
so
long as the installation is undertaken expeditiously,
the
accumulated environmental harm will be small and that the
hardship thereby rises to the level of arbitrary or unreasonable
hardship.
On this basis, the Board will grant the requested
relief with conditions.
The principal conditions are that Emro will close its
Romeoville facility on or before April
1,
1995, and that it will
not reopen the station to dispense gasoline until Stage II vapor
recovery equipment is operational.
These conditions have been
requested by the Agency
(Rec. at ¶19), and agreed to by Emro (Tr.
at
6).
The Board finds that these conditions are necessary.
As regards the beginning date for the variance, the Board
notes that it~iswell 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, PCB 90-227,
128 PCB 245—249, December
19,
1991.)
Here Emro requests that start of the variance be
retroactive to November 1,
1994.
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
Emro and recommended by the Agency.
Lastly,.the Board notes that the Agency requests that the
Board use a form of the certificate of acceptance that is
different from the traditional certificate.
The Board declines
this request for reasons addressed in a separate order of this
date.
(See The UNO—VEN Company v.
IEPA, PCB 94-282, slip op.
February 16,
1995.)
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Emro Marketing Company is hereby granted variance from 35
Ill. Adm. Code 218.586 for its facility located at 701 N.
Independence, Romeoville,
Illinois, subject to the following
conditions:
1)
The term of the variance is for the five-
month period from November 1,
1994 to April
1,
1995.
—5—
2)
Emro shall close the facility at issue on or
before April
1,
1995.
Emro may not reopen
the facility for the purposes of dispensing
gasoline until Stage II vapor recovery
equipment is installed and operational.
3)
In the event that Emro is unable to pursue
the rebuilding plans outlined in its petition
in this matter, Enro shall install Stage II
vapor recovery equipment at the facility in
question within 30 days of the abandonment of
the rebuilding plans,
and in no case may Einro
dispense gasoline after April
1,
1995 unless
the Stage II vapor recovery equipment has
been installed and is operational.
4)
Petitioner shall notify the Illinois
Environmental Protection Agency of the
installation of any Stage II vapor recovery
with 14 days of the installation.
Notice
must include the address of the facility and
be by letter posted to:
Mr. Terry Sweitzer,
P.E.
Manager, Air Monitoring Section
Illinois Environmental Protection Agency
Division of Air Pollution Control
P.O. Box 19726
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 petitioner
shall execute and forward to:
Bonnie R. Sawyer
Division of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19726
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 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—321,
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 35 Ill.Adm.Code 101.246 “Motions for Reconsideration”.)
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above
0
nion and order was
adopted on the
/~i~—~
day of
-
,
1995 by a
vote of
7-~
.
/
4L.
~‘—~-~
L~~Dorothy
N. $~Inn, Clerk
Illinois P~LutionControl Board