ILLINOIS POLLUTION CONTROL BOARD
March 16, 1995
CLARK
OIL REFINING AND
)
MARKETING,
Petitioner,
v.
)
PCB 95—95
)
(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)), Clark Oil Refining and Marketing
(Clark) has requested that the Illinois Environmental Protection
Agency (Agency) recommend that the Board grant a provisional
variance to allow several of Clark’s gasoline dispensing
operations (service stations) to continue operating even though
it did not install operational vapor recovery equipment by the
expiration of a prior provisional variance on January 29, 1995.
Such request for a provisional variance and the Notification
of Recommendation was filed with the Board by the Agency on
Tuesday, March 14, 1995. On March 15, 1995, Clark filed a
response requesting that variance commence January 30, 1995,
rather than February 15, 1995 as recommended by the Agency.
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 Clark a
forty—five (45)-day provisional variance for thirty—six (36) of
its facilities located in six (6) counties in the Chicago
metropolitan statistical area from the Stage II vapor recovery
requirements, as set forth in 35 Iii. Adm. Code 218.586, for the
period beginning February 15, 1995 and continuing for forty-five
(45)-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 January 29, 1995. The docket number of the previous
provisional variance was PCB 95—19, 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 94—350.’
The Agency’s provisional variance recommendation states that
Mobil has requested a provisional variance on behalf of numerous
of its service stations in the Chicago area, located as follows:
County
Number of Stations
Cook
24
DuPage
2
Kane
2
Lake
5
McHenery
1
Will
2
The addresses of those stations are listed as follows:
County
City or Village Street Address
Cook
Chicago
5955 W. Higgins Road
Cook
Chicago Heights 2035 S. Western Ave.
Cook
Harvey
16600 S. Haisted
Cook
Oak Forest
15100 S. Cicero
Cook
Calumet City
1210 Burnham Ave.
Cook
South Holland
15 E. Sibley Blvd.
Cook
Lansing
177 Place & Torrance
Cook
Chicago
2954 W. Irving Park Road
Cook
Oak Lawn
6800 W. 95th Street
Cook
Midlothian
14400 S. Crawford
Cook
Hanover Park
6600 Barrington/Maple
Cook
Chicago
2924 E. 87th Street
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—19 expired January 29, 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
Clark Refining and Marketing the Agency—recommended forty-five
(45)—day extension.
3
Cook
Country Club Hills 4015 W. 183rd Street
Cook
Burbank
5706 W. 79th Street
Cook
Schiller Park
9999 W. Irving Park Road
Cook
Tinley Park
16836 S. Oak Park
Cook
Chicago
3947 S. Kedzie
Cook
Justice
7901 87th Ct.
Cook
Riverdale
632 W. 138th Street
Cook
Glenwood
1750 Glenwood-Dyer Road
Cook
Posen
3033 W. 147th Street
Cook
South Holland
15555 5. Park
Cook
Schaumburg
1730 Wise Road
Cook
Franklin Park
2441 N. Mannheim
DuPage
Woodridge
3004 Hobson
DuPage
Lombard
833 E. St. Charles Road
Kane
Aurora
407 5. Lake Street
Kane
Aurora
1180 Farnsworth
Lake
Libertyville
704 N. Milwaukee Ave.
Lake
Waukegan
2107 Grand Avenue
Lake
Barrington
North West Hwy. 14
Lake
Wauconda
399 Liberty Street
Lake
Fox Lake
95 E. Grand
McHenry
Woodstock
830 E. Lake Ave.
Will
Plainfield
23200 W. Lincoln Hwy.
Will
Joliet
3224 S. Larkin Street
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. The
Agency recommendation states that installation of Stage II vapor
recovery equipment at the Clark facilities was not possible by
the January 29, 1995 deadline for compliance because Clark has
contracted for the purchase and installation of vacuum assist
vapor recovery equipment, but that equipment and the crews
necessary to install it were not available before the compliance
deadline.
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.
Clark’s March 15, 1995 response to the Agency’s
recommendation requests that the Board grant a variance
commencing on January 30, 1995 and ending March 15, 1995, rather
one commencing on February 15, 1995 and expiring no later than 45
4
4
daysprocedurallater
historyas
recommendedof
thisbyandthepredecessorAgency.
Clarkrequestsdetailsin
supportthe of
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its request.
The Board has consistently interpreted Section 35(b) of the
Act as eliminating Board discretion in the granting of
provisional variance requests, assuming the provisional variance
recommended comports with the requirements and limitations of the
Act. While Clark’s response is the sort of pleading to which the
Board routinely gives weight in “regular” variances, the Board
believes it has no discretion to grant a provisional variance
which significantly differs, as does this one, from the Agency’s
provisional variance request. If the parties should reach
agreement on a different start date, the Board will of course
entertain a proper Agency motion for modification. See Amoco Oil
Co. and City of Wood River v. IEPA, PCB 94-384 (order of March 9,
1995).
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 Ill. Adm. Code 218.586,
subject to the following conditions:
-
1. The term of this provisional variance shall commence on
February 15, 1995 and it shall expire on the date the
petitioner completes the required installation of vacuum
assist Stage II vapor recovery equipment, or after forty—
five (45)—days have elapsed, whichever comes first;
2. The petitioner shall notify the Agency of the
installation of the vapor recovery equipment, by sending
notification addressed as follows:
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.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, do hereby certify that the above order was adopted on the
______
of ___________________________, 1995, by a vote of
7-O
~L.
Dorothy M. Gun, Cler~
Illinois PolL4.ition Control Board
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