ILLINOIS POLLUTION CONTROL BOARD
September 1, 1994
J.M. SWEENEY CO.,
Petitioner,
V.
)
PCB 93—257
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ROBERT C. OSMUNDSEN APPEARED ON BEHALF OF PETITIONER;
RACHEL L. DOCTORS APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by R.C. Flemal):
This matter comes before the Board upon a petition for
variance filed by J.M. Sweeney Co. (Sweeney) on December 17,
1993. Sweeney seeks variance from the requirement of 35 Ill.
Adm. Code 218.586 that Stage II vapor recovery equipment be
installed by November 1, 1993. The facility in question is
located at 1557 S. Central Avenue, Cicero, Illinois.
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 20, 1994. The Agency recommended grant of the variance
as requested by Sweeney, but with a shorter term than proposed by
Sweeney.
Hearing was held on July 14, 1994 in Chicago, Illinois,
before hearing officer Richard T. Sikes. No witnesses were
called, although the prepared testimony of Terry A. Sweitzer,
Manager of the Agency’s Air Monitoring Section and Administrator
of the Illinois Stage II Vapor Recovery Program, was admitted
into the record as respondent’s exhibit #1 (Resp. Exh. 1). No
members of the public attended the hearing.
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On August 11, 1994 the parties filed a joint stipulation of
agreement (Stip.) as to the timing and conditions of termination
of the requested variance’.
As presented below, the Board finds that Sweeney has met its
burden of demonstrating that immediate compliance with the
regulation at issue would impose an arbitrary or unreasonable
hardship. Accordingly, the variance request will be granted.
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. Among
these is a requirement that certain MVFOs install Stage II vapor
recovery equipment no later than November 1, 1993. (Section
218.586(d)(2).) It is uncontested that this provision applies to
Sweeney’s facility at 1557 S. Central Avenue in Cicero.
Stage II vapor recovery equipment is designed to capture
hydrocarbon vapors during the fueling of vehicle tanks. Vehicle
fuel 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.
As such, Stage II vapor recovery equipment is part of both
the dispensing and tanking systems of an MVFO.
Sweeney contends that it had initiated efforts to achieve
compliance by the November 1, 1993 compliance date. (Pet. at
¶10; Tr. at p. 5.) Among these efforts was a site evaluation
conducted by a geophysical consulting firm. (Pet. at ¶11.) On
August 30, 1993 the consulting firm informed Sweeney that
petroleum contamination likely occurred at the site. (Pet. at
¶12.) On August 31, 1993 Sweeney notified the Illinois Emergency
Management Agency (IEMA) of the suspected contamination and of
the likely need for remediation. (Pet. at ¶13.) Subsequent on—
site soil sampling confirmed that remediation is necessary and
that it will require removal of both soil and some of the tanks.
(Pet. at ¶14—16; Tr. at p. 7—10.) As of the July 14, 1994
hearing, the full areal extent of the contamination was yet to be
The stipulation was characterized by the parties as a
“joint motion to extend recommendation time of the variance”. To
the extent that this filing constitutes a motion to file an
amended recommendation and stipulation, the motion is hereby
granted.
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identified, pending Sweeney’s ability to gain access to off-site
sampling locations. (Tr. at p. 8-9.)
The Agency agrees that significant underground contamination
exists at the site and remediation of this contamination is a
prime concern. (Resp. Exh. 1 at p. 2.)
Grant of the instant variance request would allow Sweeney to
progress with the remediation prior to installation of the Stage
II equipment.
HARDSHIP
AND ENVIRONMENTAL IMPACT
Sweeney’s contends that requiring installation of the Stage
II equipment prior to remediation would cause a financial
hardship. Sweeney estimates that the Stage II equipment will
cost $80,000. (Pet. at ¶19; Tr. at p. 10-11.) If installed
prior to remediation, some of the Stage II equipment will have to
be dismantled and removed during the remediation. Sweeney
estimates the cost of the work and materials thus “wasted” during
this short—term installation period to be $50,000 to $60,000.
(a.)
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 ¶22.)
Nevertheless, the parties stipulate that, unless the Stage II
equipment is installed by March 31, 1995, the agreed upon date of
termination of the variance, Sweeney will not dispense gasoline
until the installation is complete. (Stip. at ¶4.)
The Agency agrees that Sweeney would experience a hardship
if it were required to install a Stage II system only to
subsequently have it dismantled to allow for soil remediation.
(Resp. Exh. 1 at p. 3.) The Agency adds that in particular it is
likely that the underground vapor return lines to the gasoline
storage tanks would have to be substantially redone, and that the
costs of these lines are in agreement with the figures presented
by Sweeney.
(u.)
Sweeney contends that the environmental harm that would be
occasioned by delaying installation of the Stage II equipment
would be negligible. In support of this position, Sweeney
observes that according to the American Petroleum Institute
emissions from a facility like Sweeney’s are estimated to be 11.7
pounds of volatile organic material (VOM) per 1,000 gallons of
fuel dispensed. (Pet. at ¶8; Pet. Exh. 1.) Sweeney dispenses an
average of 108,000 gallons per month, and thus is estimated to
produce VON emissions of 1,264 pounds per month or 0.2 tons per
day. (Pet. at ¶8, ¶21.) Conversely, the total 1990 Chicago area
VOM emissions were estimated to be 1453.69 tons per day;
—4—
Sweeney’s emissions are approximately .0014 percent of this
total. (Pet. at ¶21.)
The Agency agrees that the impact of delayed compliance
would be small. (Resp. Exh. 1 at p. 2.) The Agency adds,
however, that the Chicago area is still experiencing exceedences
of the ozone ambient air quality standard, and that VOM emissions
are a precursor to ozone formation; even small VOM emissions
contributed to the ozone exceedences. (Id.)
CONCLUSION
The Board agrees with the Agency that Sweeney has
demonstrated that installation of the Stage II equipment without
allowing for a reasonable time to complete remediation would
constitute a hardship for Sweeney. The Board also finds that, so
long as the remediation 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 condition is that Sweeney must have the
necessary Stage II equipment installed by March 31, 1995. As the
parties observe in their August 11, 1994 stipulation, if
installed by March 31, 1995, Sweeney will be in compliance at the
onset of the 1995 ozone season2. (Stip. at ¶4.) This will
lessen the environmental harm that would otherwise occur if the
variance extended into the 1995 ozone season.
The Board also accepts as a necessary condition Sweeney’s
commitment to suspend dispensing gasoline after March 31, 1995
for any time during which “completion of installation” of Stage
II equipment has not yet been achieved. “Completion of
installation” is defined at 35 Ill. Adni. Code 218.586(a) (3) as
the successful passing of at least one of several specified Stage
II installation tests.
ORDER
J.M. Sweeney Co. is hereby granted variance from 35 Iii.
Adm. Code 218.586 for its facility located at 1557 S. Central
Avenue, Cicero, Illinois, subject to the following conditions:
1) Variance expires on March 31, 1995;
2 The ozone season is defined by the United States
Environmental Protection Agency as the period from April 1
through October 31.
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2) Petitioner shall notify the Illinois Environmental
Protection Agency of the installation of Stage II
equipment by letter posted to:
Mr. Terry Sweitzer, P.E.
Manager, Air Monitoring Section
Division of Air Pollution Control
P.O. Box 19726
Springfield, Illinois 62794—9276;
3) Should petitioner have failed to achieve completion of
installation of Stage II vapor collection and control
equipment, as defined at 35 Ill. Adm. Code
218.586 (a) (3), by April 1, 1995, petitioner shall cease
to dispense gasoline from all affected dispensing lines
until such time as completion of installation is
achieved.
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
Rachel L. Doctors
Division of Legal Counsel
Illinois Environmental Protection Agency
2200 Churchill Road
Post Office Box 19276
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:
CERTIFl CATION
I (We),
hereby accept and agree to be bound by all terms and conditions
of the order of the Pollution Control Board in PCB 93-257,
September 1, 1994.
Petitioner
Authorized Agent
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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 opinion and order was
adopted on the
_________
day of
y-~()~tJ
,
1994 by a
vote of
____________-
~X
/~.
Dorothy M. ~unn, Clerk
Illinois Pollution Control Board