ILLINOIS POLLUTION CONTROL BOARD

March 16,

1995

MARCLEY’S,

)

Petitioner,

V.

)

PCB 95—93

(Provisional Variance-Air)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

)

Respondent.

ORDER OF THE BOARD

(by C.

A. Manning):

Pursuant to Section 35(b)

of the Environmental Protection

Act

(Act)

(415 ILCS 5/35(b)), Marcley’s has requested that the

Illinois Environmental Protection Agency

(Agency)

recommend that

the Board grant a provisional variance to allow Marcley’s

gasoline dispensing operation (service station)

tO continue

operating even though it did not install operational vapor

recovery equipment by the expiration of a prior provisional

variance on February 2,

1995.

This provisional variance is being

requested because petitioner’s contractor was not available to

perform the installation at the facility before the compliance

deadline.

This request for a provisional variance and the

Notification of Recommendation was filed with the Board by the

Agency on Tuesday, March 14,

1995.

Pursuant to Section 35(b)

of

the Act, the Board must issue the variance within two

(2)

days of

this filing.

Specifically,

the Agency recommends that we grant Marcley’s

a forty—three

(43)—day provisional variance for its facility

located at 611 Ashland Street, Aurora, Kane County, Illinois in

the Chicago metropolitan statistical area from the Stage II vapor

recovery requirements,

as set forth in 35

Ill.

Adm. Code 218.586,

for the period beginning February 17,

1995 and continuing for

forty-three

(43)-days or until the required vapor recovery

equipment is installed, whichever comes first.

This recommendation is essentially that the Board extend a

previously-granted forty-five (45)-day provisional variance that

expired February 2,

1995.

The docket number of the previous

provisional variance was PCB 95-30, granted on January

11,

1995.

That prior provisional variance was itself an extension of the

forty—five

(45)—day provisional variance granted on December

1,

---

2

1994 in PCB

943571

Upon receipt of the request, the Agency issued its

recommendation,

notifying the Board that the failure to grant the

requested forty—five

(45)—day provisional variance would impose

an arbitrary or unreasonable hardship on the petitioner.

Provisional variances are by their very nature temporary.

The responsibilities of the Agency and the Board in these short-

term provisional variances are different from the

responsibilities in standard variances.

(~

415 ILCS 5/35(b)

&

36(c)).

In provisional variances it is the responsibility of the

Agency to make the technical determinations and finding of

arbitrary or unreasonable hardship.

The Board’s responsibility

is to adopt a formal order, to assure the

formal maintenance of

the record, to assure the enforceability of the variance, and to

provide notification of the action by a press release.

Having received the Agency recommendation notifying the

Board that a denial of the requested relief would impose an

arbitrary or unreasonable hardship, the Board hereby grants the

petitioner a provisional variance from 35

Iii. Adm. Code 218.586,

subject to the following conditions:

1.

The term of this provisional variance shall commence on

February 17,

1995 and continue for forty-five (45)-days or

until the required vapor recovery equipment is installed,

whichever comes

first.

2.

The petitioner shall notify the Agency upon

installation of the Stage II gasoline vapor recovery

equipment,

by sending notification addressed as follows:

1

Section 36(c)

of the Act imposes limitations on the

Board’s ability to extend a provisional variance:

Any provisional variance granted by the Board pursuant

to subsection

(b)

of Section 35 shall be for a period

of time not to exceed 45 days.

Upon receipt of a

recommendation from the Agency to extend this time

period,

the Board shall grant up to an additional 45

days.

The provisional variances granted to any one

person shall not exceed a total of 90 days during any

calendar year.

Since the variance granted in PCB 95-30 expired February

2,

1995,

and fewer than ninety

(90)

days will have elapsed in this

calendar year by the expiration of the variance requested in the

present petition, the Board interprets Section 36(c)

as allowing

Marclay’s the Agency—recommended forty—three

(43)—day extension.

---

3

Mr. Terry Sweitzer, P.E.

Manager, Air Monitoring Section

Illinois Environmental Protection Agency

Division of Air Pollution Control

P.O. Box 19276

Springfield, Illinois

62794—9276

IT IS SO ORDERED.

I, Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board,

do hereby certify that the above order was adopted on the

~

day of

~

,

1995, by a vote of

_____________

.

~

/~(/

Dorothy M. ~nn,

Clerk

Illinois Pollution Control Board