ILLINOIS POLLUTION CONTROL BOARD
August 11, 1994
WHITE CAP, INC.,
)
)
Petitioner,
)
V.
)
PCB 94—93
)
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
TRACEY L. NIHELIC, OF GARDNER, CARTON & DOUGLAS, APPEARED ON
BEHALF OF PETITIONER;
KYLE NASH DAVIS APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by G. T. Girard):
The matter before the Board is a petition for variance filed
by White Cap, Inc. on March 21, 1994. White Cap seeks a variance
from the requirements of the Board’s air pollution control
regulations found at 35 Ill. Adm. Code 218.105, 218.205, 218.207,
and 218.211 (Part 218 requirements). White Cap characterized the
petition for variance as an extension of its variance granted by
the Board in PCB 92-155 (see Board opinion and order of April 22,
1993, as amended by Board order of July 22, 1993,). The term of
the instant requested variance is until April 22, 1996, or until
the United States Environmental Protection Agency (USEPA) makes a
final determination on White Cap’s pending federal implementation
plan (FIP) request, whichever comes first.
The Illinois Environmental Protection Agency (Agency) filed
its variance recommendation on April 29, 1994. The Agency
contends that an unreasonable hardship would be imposed on White
Cap in the absence of the requested relief. (Rec. at 7•)1
Accordingly, the Agency recommends grant of variance, subject to
conditions. The Agency recommends that the variance be granted
until April 22, 1995, or until USEPA makes a find determination
on White Cap’s pending FIP request.
The Agency recommendation will be cited as “Rec. at
“.
White Cap’s petition will be cited as “Pet. at
_“.
The Board
hearing transcript will be cited as “Tr. at
“.
The joint
stipulation of facts admitted at hearing will be cited as “Stip.
at
“.
Exhibits will be cited as “Exh.
“.
Citations to the
record in PCB 92-155 will be cited as “PC692—155, at
“,
where the blanks will indicate the document and page number
within the record.
2
A hearing was held on June 20, 1994, in Chicago, Cook
County, Illinois, before Hearing Officer Deborah Frank. No
members of the public attended the hearing. At hearing a joint
stipulation of facts was entered into the record by the parties.
(Tr. at 13, 14.)
On June 29, 1994, White Cap filed a motion “to incorporate
documents incorporated by reference in petition”. White Cap
submitted documents from the previous Board record in PCB 92-155.
The Board hereby grants the motion to incorporate those
documents.
As presented below, the Board finds that White Cap has met
its burden of demonstrating that denial of variance would impose
an arbitrary or unreasonable hardship. Accordingly, the variance
request is granted.
The facts of the instant case are essentially the same as
those underlying the Board’s action to grant White Cap’s variance
on April 22, 1993 in PCB 92-155. The variance granted in PCB 92-
155 expired on April 22, 1994.
DISCUSSION
White Cap operates a manufacturing facility located at 1819
North Major Avenue in Chicago, Cook County, Illinois. White Cap
manufactures metal closures (caps) for jars. White Cap employs
approximately 535 people.
As part of its manufacturing process, White Cap operates
twelve sheet metal coating lines where coatings are applied to
the metal. Volatile organic material (VON) is produced and
emitted during the coating operation, thereby subjecting White
Cap to the Board’s VON emission regulations at 35 Ill. Adm. Code
218. White Cap constitutes a miscellaneous metal parts and
products coating operation for the purposes of Part 218.
Requirements essentially identical to the Part 218
requirements occur in federal law under the provisions of the
Illinois VOM/ozone FIP. It is the intention eventually to have
only one body of law covering these matters in the form of a
state implementation plan (SIP), but in the interim this does not
exist. Part 218 has not yet been approved by USEPA as part of
the Illinois SIP to attain and maintain the primary and secondary
air quality standards for ozone. (Rec. at 7.)
The instant action is before the Board because of a
difference that exists between the FIP and the Part 218
regulations. In particular, the regulations at 218.207 require
White Cap to undertake testing so that it may certify VON capture
3
efficiency2. The testing method under Illinois law is based on a
methodology previously adopted by USEPA, but now under
reassessment by USEPA~. If the reassessed method is adopted by
USEPA, Illinois will presumably be required to also adopt the
reassessed method within Part 218 in order to gain an acceptable
SIP. The Illinois testing procedures therefore exist in
something of a limbo, and White Cap is faced with the prospect
that the existing Illinois testing procedures will soon be
inapplicable4.
Moreover, USEPA has stated that it plans to temporarily
suspend the date by which a source must certify the capture
efficiency of a control system under the FIP until July 1, 1993.
(Exh. 3; 57 Fed. Reg. 49662, 1992.) Again, Illinois law will
presumably be required to follow suit. White Cap is thereby also
faced with a uncertain certification date, both federally and at
the state level.
In addition to the instant action, White Cap has also
attempted to address its concerns at the federal level by filing
with USEPA a proposal to amend the FIP. (Exh. 4.) Among other
matters, the proposal identifies possible alternative testing
strategies. USEPA has indicated, however, that it intends to
defer action on such proposals until its capture efficiency study
is complete. (Exh. 3; 57 Fed. Reg. 49664, 1992.) According to
2 White Cap contends that it is in compliance with the
substantive requirements of Part 218, “but is unable to
demonstrate compliance through the required test methods”.
(Stip. at 2..) The Board does not today address the contention of
compliance with the substantive rules.
~ On March 20, 1992 USEPA issued a memo indicating that it
was undertaking a reassessment of its previously endorsed capture
efficiency testing procedures with the intent of developing and
reviewing less costly methods. (PCB 92-155, Agency
Recommendation at 6.) It originally proposed to complete the
reassessment within a period of one year. (PCB 92-155, Opinion
and Order at 2.) In December 1993, the Can Manufacturing
Institute proposed an alternative test method to USEPA after an
extension review of test methods. (Tr. at 6-7.) USEPA commented
on the proposed methods in January or February 1994. (Tr. at 7.)
White Cap reported on-going discussions with USEPA prior to the
June 20, 1994, Board hearing. (Tr. at 7.)
‘~
White Cap also contends that under the circumstances at
its facility it is technically and economically infeasible for
White Cap to comply with the current Part 218.207 test
procedures. (PCB 92-155, Board Hearing Transcript at 67.) The
Board does not today address that issue.
4
the Agency, USEPA presently appears to be delaying an opinion on
this issue in one year intervals. (Tr. at 12.) White Cap is
engaged in on-going discussions with USEPA. (Tr. at 7.)
Both White Cap and the Agency contend that under the
conditions outlined above, immediate compliance with the Part 218
regulations would constitute an unreasonable hardship for White
Cap. (Stip. at 2.) The remedy that the parties propose is
basically to await the federal position, and to use that as a
guide for directing White Cap’s action. The Board finds this an
acceptable course of action.
The Board also finds it appropriate to reimpose the
conditions recommended by the Agency as assurance that this
matter will not suffer from inaction, and to assure that White
Cap will be poised to proceed upon disclosure of the USEPA
position. The conditions will further assure that any negative
environmental impact will be minimized by causing this matter to
be addressed with maximum expedition.
TERN
Q~
VARIANCE
The term of the variance is the only significant item at
issue for this case. White Cap has requested that the instant
variance be granted for two years, until April 22, 1996. (Pet.
at 3.) The Agency recommends that the variance be granted until
April 22, 1995. (Rec. at 1.)
White Cap argues that the April 22, 1995, deadline is
unrealistic given the present pace of on—going negotiations with
USEPA. (Tr. at 8.) White Cap expects negotiations about the
alternative capture efficiency test method to continue through
Summer 1994. (Pet. at 3.) Once an alternative test method is
agreed upon, USEPA must amend the FIP or make a determination on
White Cap’s FIP revision petition. Considering the required
public notice and comment requirements, White Cap anticipates
that this federal process will take approximately one year.
(Pet. at 3.) White Cap estimates that six months would be
required to conduct capture efficiency tests and prepare reports
after adoption. (Pet. at 3.)
In arguing for a one—year variance, the Agency does not
contest White Cap’s estimates on the pace of anticipated USEPA
action. The Agency maintains generally that a one—year variance
will allow the Board “to remain abreast of this important issue
before USEPA”. (Tr. at 12.) The Agency also broadly asserts
that a one—year variance will allow the opportunity to review
White Cap’s emission prior to the 1996 deadline for the Chicago
ozone nonattainment area to demonstrate a 15 overall reduction
in VON emissions.
5
The Board finds that granting the variance until April 22,
1996, is reasonable, given the present pace of USEPA actions in
relation to White Cap’s FIP revision request. The Board is not
persuaded by the Agency’s general assertion that a one—year
variance will allow the Board to remain abreast of the issue,
especially since the variance may terminate earlier than April
22, 1996, if the USEPA takes action.
CONCLUSION
Based upon the record before it, the Board finds that
immediate compliance with the regulations at issue would impose
an arbitrary or unreasonable hardship on White Cap. The
requested variance accordingly will be granted, subject to
conditions consistent with this opinion. The Board grants the
variance until April 22, 1996.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner, White Cap, Inc. (White Cap), is hereby granted
variance from 35 Ill. Adm. Code 218.105, 218.205, 218.207, and
218.211 for its facility located at 1819 North Major Avenue in
Chicago, Illinois. This grant of variance is subject to the
following conditions:
(1) Variance terminates on April 22, 1996.
(2) Condition (1) notwithstanding, variance terminates
April 22, 1996, or the date on which the United States
Environmental Protection Agency makes its final
determination in White Cap’s federal implementation plan
(FIP) amendment request, whichever comes first.
(3) White Cap shall submit, within 180 days of the Board’s
order, data on the VON contents of the representative
coatings as applied, determined by laboratory analysis in
accordance with 35 Ill. Adm. Code 218.105(a). The submitted
data shall include the VON contents (in terms of lb VON/gal
of coating solids as applied) of the coatings, a
justification of why the coatings are representative, a
description of the sampling procedures, and documentation
for the analysis.
(4) White Cap shall keep daily records of the following
items starting on the date of entry of the final board order
including:
6
(a) the amount of each coating used in each coating
line;
(b) the VON content of each coating applied (lb.
VON/gal of solids);
(C) the required overall efficiency of the capture
system and control device for each coating line
pursuant to Section 218.105(e); and
(d) the weight of VOM per volume of coating solids
applied daily on each coating line (VOMs, pursuant to
Section 218.105(e) (2)).
(5) White Cap shall prepare a monthly report for Agency
inspection on the daily records required above. The report
must also demonstrate White Cap’s compliance with Section
218.207(b)(2). White Cap shall submit one copy of the
monthly compliance demonstrations of a quarterly basis to
each of the following Agency officers:
Illinois Environmental Protection Agency
Bureau of Air
2200 Churchill Road, P.O. Box 19276
Springfield, Illinois 62794—9276
Attn: Permit Section Manager
Illinois Environmental Protection Agency
Division of Air Pollution Control
Intercontinental Center
1701 First Avenue
Maywood, Illinois 60153
Attn: Cezary Kryzmowski
Within 45 days of the date of this order, Petitioner shall
execute and forward to Kyle Davis, Division of Legal Counsel,
Illinois Environmental Protection Agency, P.O. Box 19276, 2200
Churchill Road, 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 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 94-93, August 11,
1994.
7
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415
ILCS 5/40.1) provides for the appeal of final Board orders within
35 days of serviàe of this decision. The Rules of the Supreme
Court of Illinois establish filing requirements. (But see also,
35 Ill. Adm. Code 101.246, Notions for Reconsideration.)
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certifj~that the above pinion and order was
adopted on the //L(_- day of
___________________,
1994, by
avoteof
__________.
/
DorothyM.~~inn,Clerk
/~~J
Illinois Pó~.lutionControl Board