ILLINOIS POLLUTION CONTROL
    BOARD
    April 22,
    1993
    CONTINENTAL WHITE CAP,
    INC.,
    )
    )
    Petitioner,
    )
    v.
    )
    PCB 92—155
    )
    (Variance)
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    )
    )
    Respondent.
    TRACEY L. MIHELIC, OF GARDNER, CARTON
    & DOUGLAS, APPEARED ON
    BEHALF OF PETITIONER;
    PAUL R. JAGIELLO APPEARED ON BEHALF OF RESPONDENT.
    OPINION
    AND
    ORDER OF THE BOARD
    (by R.C. Flemal):
    This matter comes before the Board on the October 19,
    1992
    filing by petitioner, Continental White Cap,
    Inc.
    (CWC),
    of a
    petition for variance.
    CWC seeks variance from requirements of
    the Board’s air pollution control regulations found at 35 Ill.
    Adm.
    Code 218.105, 218.205,
    218.207, and 218.21.
    (Part 218
    requirements).
    The term of the requested variance is until July
    1,
    1993,
    or until the United States Environmental Protection
    Agency
    (USEPA) makes a final determination on CWC’s pending
    federal implementation plan
    (FIP)
    request, whichever is later.
    The Illinois Environmental Protection Agency
    (Agency) filed
    an initial variance recommendation on January 19,
    1993 and an
    amended recommendation (Rec.) on March 3,
    1993.
    The Agency
    contends that an unreasonable hardship would be imposed on CWC in
    the absence of the requested relief.
    (Rec.
    at 8.)
    Accordingly,
    the Agency recommends grant of variance,
    subject to conditions.
    Hearing was held on March
    4,
    1993 in Maywood, Illinois.
    CWC
    presented two witnesses; no members of the public attended the
    hearing.
    At hearing CWC stipulated to its acceptance of the
    conditions set forth in the Agency’s recommendation.
    (Tr. at
    9,
    17.)
    As presented below, the Board finds that CWC has met its
    burden of demonstrating that immediate compliance with the Act or
    Board regulations would result in an arbitrary or unreasonable
    hardship upon CWC.
    Accordingly, the variance request is granted.
    O~:~HO217

    —2—
    DISCUSSION
    CWC operates a manufacturing facility located at 1819 North
    Major Avenue in the City of Chicago, Cook County,
    Illinois.
    CWC
    manufactures metal closures for jars.
    As part of its manufacturing process, CWC operates twelve
    sheet metal decorating lines where coatings are applied to the
    metal.
    Volatile organic material
    (VOM)
    is produced and emitted
    during the coating operation,
    thereby subjecting CWC to the
    Board’s VOM emission regulations of Part 218; CWC 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 Fl?.
    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.
    The instant action is before the Board because of a
    difference that exists between the Fl? and the Part 218
    regulations.
    In particular, the Part 218 regulations require
    that CWC undertake testing so that it may certify VOM capture
    efficiency1.
    The testing method under Illinois law is based on
    a methodology previously adopted by USEPA,
    but now under
    reassessment by USEPA2.
    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 CWC is faced with the prospect that the
    existing Illinois testing procedures will soon be inapplicable3.
    1
    CWC contends that it is in compliance with the substantive
    rules of Part 218, and that it fails only in its ability to
    demonstrate that compliance via approved tests.
    (Tr. at 5,
    15.)
    The Board does not today address the contention of compliance
    with the substantive rules.
    2
    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.
    (Rec.
    at 6.)
    It proposed to
    complete the reassessment within a period of one year.
    ~ CWC also contends that under the circumstances at its
    facility it is technically and economically infeasible for CWC to
    comply with the current Part 218 test procedures.
    (Tr.
    at 67.)
    The Board does not today address this issue.
    Ut
    L,
    I -0218

    —3—
    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 Fl? until July 1,
    1993.
    (Exh.
    5;
    57 Fed. Reg.
    49662,
    1992.)
    Again, Illinois law will
    presumably be required to follow suit.
    CWC is thereby also faced
    with a uncertain certification date, both federally and at the
    state level.
    In addition to the instant action, CWC 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.
    (57 Fed.
    Reg.
    49664,
    1992.)
    Both CWC and the Agency contend that under the conditions
    outlined above,
    immediate compliance with the Part 218
    regulations would constitute a hardship upon CWC.
    The remedy
    that the parties propose is basically to await
    (within reason)
    the federal position, and to use that as a guide for directing
    CWC’s action.
    Given the special circumstances found here,
    the
    Board finds this an acceptable course of action.
    The Board also finds it appropriate to impose the agreed-
    upon conditions as assurance that this matter will not suffer
    from inaction, and to assure that CWC 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.
    TERM OF VARIANCE
    CWC originally requested that the term of variance be until
    September 1,
    1997.
    At hearing CWC modified the request to
    conform it with that recommended by the Agency (see above).
    Based upon the facts of this case,
    the Board finds acceptable the
    general nature of the term of variance offered by the parties.
    Nevertheless, there is some difficulty with using the later of a
    date certain or of a USEPA action as the termination date:
    failure of the USEPA to act would cause the variance to be non—
    ending,
    in contradiction with Illinois law4.
    The parties seem to be of the belief that USEPA will indeed
    act, and moreover, will act with some dispatch.
    This
    notwithstanding, the prudent and necessary course of action is to
    Pursuant to Section 36(b)
    of the Illinois Environmental
    Protection Act,
    a variance may be for a period of time not to
    exceed five years.
    Pt
    !~
    1-0219

    —4—
    set some time limit within which USEPA’s decision must be
    rendered or the variance terminates.
    One year would seem to be
    ample time, and accordingly the Board will today use this time
    frame.
    CONCLUSION
    Based upon the record before it, the Board finds that CWC
    has presented adequate proof that immediate compliance with the
    regulations at issue would result in an arbitrary or unreasonable
    hardship on CWC.
    The requested variance accordingly will be
    granted,
    subject to conditions consistent with this opinion.
    This opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    Petitioner,
    Continental White Cap,
    Inc.
    (CWC),
    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 July
    1,
    1993.
    (2)
    Condition
    (1) notwithstanding,
    if the United States
    Environmental Protection Agency makes its final
    determination on CWC’s federal implementation plan
    (Fl?)
    amendment after July
    1,
    1993, variance terminates on the
    date of that final action or on April
    22,
    1994, whichever is
    earlier.
    (3)
    CWC shall submit to the Agency,
    in writing, an
    operation and maintenance program for the coating line VOM
    control systems within 30 days after the entry of this
    order.
    This program must address the operation and
    maintenance of the entire length of the coating lines
    starting from the applicators,
    including wash—up solvents,
    through the bake ovens and afterburners.
    The program must
    focus on minimizing VOM emissions along the coating lines
    and provide for continuous monitoring of the temperature
    rise across each catalytic afterburner bed.
    (4)
    CWC shall develop a program that provides for the
    upgrade of the incinerator that controls emissions from the
    tandem coating lines BA, 9A and PC1O and the incinerator
    that controls emissions from multiple coating lines C—6 and
    C-7 with a goal towards achieving a VOM loading destruction
    efficiency of 90 percent and shall submit the program to thE
    Agency in writing for comment and approval by May 15,
    1993.
    0!
    L~,
    -0220

    —5—
    CWC shall complete this program, which includes the
    destruction efficiency testing, within ninety
    (90)
    days of
    receipt of the Agency’s comments and approval of the
    program.
    CWC shall submit a written report of the test
    results within sixty
    (60) days of the destruction efficiency
    testing.
    (5)
    CWC shall keep daily records of the following items
    starting on the date of entry of the final Board order:
    (a)
    Amount of each coating used in each coating line;
    (b)
    VOM content of each coating applied
    (lb. VOM/gal
    of solids);
    (c)
    Required overall efficiency of the capture system
    and control device for each coating line pursuant
    to Section 218.105(e);
    and
    (d)
    Weight of VOM per volume of coating solids applied
    daily on each coating line
    (VOMa, pursuant to
    Section 218.105(e) (2)).
    (6)
    CWC shall prepare a monthly report for Agency
    inspection on the daily records required in paragraph
    (4)
    above.
    The report must also demonstrate CWC’s compliance
    with Section 218.207(b) (2).
    CWC shall submit one copy of
    the monthly compliance demonstrations on a quarterly basis
    to each of the following Agency offices:
    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 Ann Zwick, 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
    0114
    1-0221

    —6—
    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 92-155, April
    22,
    1993.
    Petitioner
    Authorized Agent
    Title
    Date
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act, 415 ILCS
    5/41
    (1992), provides for appeal of final orders of the Board
    within 35 days.
    The Rules of the Supreme Court of Illinois
    establish filing requirements.
    (But see also 35 Ill.
    Adm. Code
    101.246, Motions for Reconsideration, and Castenada v.
    Illinois
    Human Rights Commission
    (1989),
    132 Ill.2d 304, 547 N.E.2d 437;
    Stube v. Illinois Pollution Control Board, No.
    3—92—0468,
    slip
    op. at 4—5
    (3rd Dist. March 15,
    1993).)
    I,
    Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certify tI~atthe above qpinipn and order was
    adopted on the
    ~
    day of
    (~-~
    ,
    1993,
    by
    avoteof
    __________.
    ~
    J~_~
    ~—~‘DorothyM.
    Gy~in, Clerk
    Illinois Po~yütionControl Board
    01
    b,
    1-0222

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