ILLINOIS POLLUTION CONTROL
March 28,
1991
AMERICAN STEEL CONTAINER
)
COMPANY, DRUM SHOP,
)
Petitioner,
v.
)
PCB 87-91
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ERICA TINA HELFER APPEARED ON BEHALF OF PETITIONER.
WILLIAM D.
INGERSOLL APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by N. Nardulli):
This
matter
comes
before
the
Board
on
a
second
amended
petition for variance filed October 5, 1987 by petitioner American
Steel Container Company,
Drum Shop
(American)
seeking a variance
from 35
Iii.
Adm. Code 215.204, 215.211 and 215.212 until June of
1991.
On November
30,
1987 the Agency issued its recommendati’~
of denial of the variance.
Hearing was held September 12,
1990
Chicago,
Illinois at which no members of the public attended.
BACKGROUND
The facts of this case have been addressed in detail in prior
Board
opinions
dealing
with
variance
requests
for
the
same
operations involved here.1
(PCB 83-114;
PCB 83—115; PCB 86-22 and
86-23
(consolidated).)
Those
facts will not be reiterated here
except when necessary.
It
is sufficient to note
that American
manufactures new fifty-five gallon
steel
drums
and reconditions
thirty and fifty-five gallon steel
drums
at its facility located
at 4445 West Fifth Avenue,
Chicago, Illinois.
American coats the
exterior of all drums and coats the interior of approximately 50
of the drums.
(Tr. 12.)
American has two operation lines; one is
an interior line which sprays and coats the interior of the drums
and one is an exterior line which paints the exterior of the drums,
whether new or reconditioned.
(Tr.
45..)
Both lines have their own
spray booth and bake oven.
(Tr.
43-44.)
American has been unable to comply with the Board’s regulation
limitation
on
volatile
organic
material
(VOM)
emissions
and
We
note that since the Board’s last opinion, American has
closed its Pail Shop.
(TR. at 40-14.)
120—26 1
2
received
its
first variance on
August
2,
1984 which
expired
on
December
31, 1985.
On April
16,
1987,
the Board granted American
a variance extension based,
in part,
on “the ‘promising’ nature of
the compliance plan proposed” for the same operations which are the
subject
of
the
instant
variance.
(PCB
86—22
and
86-23
(consolidated)
.)
However,
because of problems of compliance with
certain conditions imposed in the variance, American never executed
the certificate of acceptance of this variance.
(Sec. Am. Pet.
at
3.)
American sought
a modification of the variance and
on June
25,
1987,
the Board entered an order construing the request
for
modification as a new variance and ordering American to file a new
petition with an appropriate compliance plan.
The second amended
variance petition which
is the subject of the instant action was
filed on October
7,
1987.
The hearing was continued on the basis
that the parties were engaged in settlement negotiations.
On July
19,
1990,
the
Board
ordered
the
case
to
proceed
to
hearing.
Hearing was held on September 12,
1990.
Testimony at hearing and
the parties’ post-hearing briefs establish that American’s variance
request and compliance plan have changed significantly
from that
proposed in the second amended petition,
although American still
seeks
a variance from the VON emissions regulation.
With this in
mind we turn to the merits.
PRELIMINARY
ISSUE
On December 4,
1987, the Agency filed with the hearing officer
a
motion
to
compel
American
to
comply
with
certain
discovery
requests seeking information on American’s
financial status
from
1982 through 1987.
American objected to the discovery as being
overbroad,
harassing and
irrelevant alleging that its financial
status
was
not
at
issue.
On
December
24,
1987,
the
hearing
officer found that American’s second amended petition raised the
financial aspect of its business, that the Agency was entitled to
most
of
the
information
sought and ordered American to provide
responses to all but two of the interrogatories posed.
By order
entered July
19,
1990,
the Board set this matter
for hearing and
directed American to comply with the hearing officer’s discovery
order.
As
a result of American’s continued failure to comply,
the
discovery issue was addressed at hearing.
The Agency argued that
such
evidence
is
relevant
to
the
issue
of
arbitrary
and
unreasonable hardship.
American argued that it did not intend to
present evidence of financial hardship and, therefore,
it did not
have to comply with the discovery orders.
(Tr. 5-9.)
The hearing
officer referred the matter
to the
Board.
In
its post-hearing
brief, the Agency asks that the matter be dismissed for American’s
failure to comply with the discovery orders.
(Resp.
Brief at 7-
8.)
American did not ask leave
of the Board
to respond to the
Agency’s request for dismissal.
35
Iii.
Adm.
Code 101.280(5)
provides
that “if
a party...
120—262
3
unreasonably refuses to comply with any
...
order entered by the
Board or hearing officer, the Board will order sanctions.
...
the
sanctions may include
...
that the proceeding be dismissed with or
without
prejudice.”
Here,
American
chose
to
ignore both
the
hearing officer’s order and the Board’s order directing American
to comply with discovery based upon American’s own determination
that such evidence was irrelevant.
A party may not decide on its
own
what
information
is
relevant
or
irrelevant
and,
having
concluded that such evidence is irrelevant,
refuse to comply with
Board
and
hearing
officer
orders
directing
compliance
with
discovery.
Therefore,
we
agree with the Agency that the proper
sanction for American’s failure to comply with discovery as ordered.
by the Board and the hearing officer
is dismissal with prejudice
of
the
second
amended
variance
petition.2
(See,
Fredette
v.
Village
of
Beecher,
PCB
89—61
(March
22,
1990).)
However,
in
the
interest
of
administrative economy, the Board
will address the substantive merits of American’s variance request.
COMPLIANCE
PLAN
Coating of the exteriors of the barrels is limited to 3.5 lb
VON/gal of coating material and coating of the interiors is limited
to 4.3 lb VON/gal.
(35 Ill. Adm. Code 215.204(j) (1) (3).)
American
has a long history of investigating methods of compliance with the
VON emissions limitations; its first variance was granted in 1984.
At
one
time,
American
proposed
to
vent
fumes
from
the
spray
booths
and the exterior and interior ovens to the drum incinerator.
(PCB
86-22
and
86—23
(consolidated).)
However,
this
plan
was
not
implemented because
it posed
a potential
fire hazard.
(Tr.
27.)
American
has
also
explored
the
use
of
powder
coatings,
electrostatic application, water—based coatings, use of methylene
chloride and after burners as means of attaining compliance.
(Tr.
18-20,
49-51.)
These
alternatives have
been rejected
as being
economically unreasonable, technically infeasible and for failure
to meet customer specifications.
In
October
of
1987,
American
began
investigating
the
feasibility of a thermal oxidizer to attain compliance.
American
consulted with the Agency as to whether thermal oxidization was a
viable compliance method.
(Tr.
33.)
On March 21,
1989, American
submitted
an
application
for
a
construction
permit
for
the
thermal
oxidizer.
(Resp.
Ex.
2; Tr.
36, 55.)
On June 22, 1989, the Agency
issued American a construction
permit.
(Resp.
Ex.
3;
Tr.
56.)
In
May
of
1990,
American
purchased
the
thermal
oxidizer.
(Tr.
30,
37.)
American’s president, Mark Spitz, testified that he expected
2
In the context of a variance proceeding, dismissal with
prejudice means that petitioner may not file a petition
for variance covering the same time period
for which
variance
is sought
in the instant petition.
120—263
4
the installation of the oxidizer to be complete by January of 1991.
(Tr.
38;
Resp.
Ex.
1.)
Spitz also testified that American had
taken other measures designed to reduce emissions.
(Tr.
40—41.)
In addition to closing its Pail Shop in January of 1989, American
has pursued more of the unlined drum business and has “shied away
from going toward more of the lined business.”
(Tr.
40-41.)
Hence,
after prolonged attempts at implementing a method of
compliance,
American has finally chosen thermal oxidization as
a
means
of attaining compliance with the VON emissions limitations.
While
the
record
establishes
that
the
Agency
has
issued
a
construction permit for the thermal oxidizer, American presented
no expert testimony demonstrating that the oxidizer will achieve
compliance with the VON emissions limitations.
(Tr.
39,
65.)
HARDSHIP
Although
at
hearing
American
testified
that
it
seeks
a
variance until mid-March of 1991,
in its brief American requests
a variance until June of 1991 to allow time after installation of
the oxidizer to obtain operating permits.
(Tr. 40; Pet. Brief at
13.)
American argues that,
considering that
it
“has undertaken,
out of necessity due to the failure of any other means of achieving
compliance, to expend the requisite funds to achieve compliance in
perhaps
the most
expensive
way,
it
is
only just
that
it
be
granted the time
to complete the project.”
(Pet.
Brief,
at
9.)
According to American, denial of its variance request would impose
an arbitrary and unreasonable hardship particularly “in light
of
the fact that American
has diligently and in good faith over the
years made every effort to comply with existing VOC regulations.”
(Pet. Brief at 10.)
The
Agency
argues
that
American
has
failed
to
make
the
requisite showing of arbitrary or unreasonable hardship.
Harish
Narayen,
a field engineer for the Agency’s air pollution division,
testified that he is familiar with the thermal oxidizer equipment
and that such equipment has been available “for a long, long time.”
(Tr.
85-86.)
According to the Agency,
“
American
was required
to comply with the VON limitations no later than December 31, 1983
and that
“La
more than seven-year delay without
any showing of
financial
inability
to
install
readily
available
afterburner
technology is inexcusable.”
While
immediate
compliance
with
the
VON
regulation
might
impose a hardship on American, we do not find that hardship to be
either arbitrary or unreasonable.
The Agency established that the
method
of
compliance
finally
implemented
by American
has
been
available
for many
years.
American chose
not
to
present
any
evidence of its financial situation which would enable the Board
to
find
that only
recently
has
the purchase
of such
equipment
become an economically reasonable method of attaining compliance
for American.
American has been out
of compliance
since
J983.
120—264
5
While the Board granted a variance in 1984 which expired in 1985,
American did not accept the variance granted
it by the Board
in
1986.
Based upon the
record,
the Board
finds that American has
failed to present adequate proof that immediate compliance
with
the
VOM emissions limitations would impose an arbitrary or unreasonable
hardship on American.
ENVIRONMENTAL IMPACT
American
asserts
that
its
VON
emissions
have
a
“minimal
effect” on the ability of the state to attain National Ambient
Air
Quality Standards (NAAQS) for ozone.”
(Sec. Am. Pet. at 3.)
While
American’s second amended petition incorporates its post-hearing
brief and the Board’s prior opinion issued in the previous variance
(PCB
86-22
and
PCB
86-23
(consolidated)),
American
makes
no
affirmative
assertion
that
the
emission
rates
are
the
same.
American testified that
it had not performed any environmental
assessment of the
impact of its emissions on the Chicago area or
its immediate neighborhood.
(Tr. 71.)
The Agency asks that the Board to reevaluate its determination
in PCB 86-22 and 86-23 that American’s showing of minimal adverse
environmental impact was adequate.
In the Board’s April
16,
1987
opinion,
it
rejected
American’s
attempt
to
prove
minimal
environmental
effect
by
a
comparison
of
its
emissions
to
the
emissions
of
mobile
source
emissions
in
the
six
county
non-
attainment area.
(PCB 86-22 and PCB 86-23
(consolidated)
at 14-
15.)
However,
based upon the emissions data
submitted and
the
acknowledgment that determining the contribution of any one source
to ozone exceedance in a general area is difficult, the Board found
that American’s environmental showing was adequate.
American
has
failed
to
submit
such emissions data
in
the
instant case or to adequately tie-in the previously submitted data
to this case.
Therefore,
the Board cannot conclude as it did in
the
previous
matter
that
American’s
environmental
showing
is
adequate.
CONSISTENCY WITH FEDERAL
LAW
35 Ill.
Adm. Code 104.122(a)
requires that all petitions for
variance
from
the
Board’s
air
pollution
regulations
indicate
whether the grant
of variance would be consistent with the Clean
Air
Act.
American’s
second
amended
petition
makes
no
such
statement, nor does its post—hearing brief address this issue.
The
Agency, however, argues that the instant variance cannot be granted
consistent with the Clean Air Act.
The Agency bases this argument
on the recently adopted Federal Implementation Plan (FIP).
55 Fed.
Reg.
26814
(June
29,
1990).)
American plans
to
install
add—on
equipment
(ie.,
the
thermal
oxidizer)
to
control
its
exterior
coating line emissions and, pursuant to 35 Ill. Adm. Code 215.207,
offset
against uncontrolled
emissions
from
the
interior
line.
120—265
6
According to the
Agency,
“this
type
of
offset may have
been
allowable under Section 215.207 at the time the construction permit
was granted on June 22,
1989, but it will not be allowed under the
FIP.”
(Resp. Brief at 6.)
The FIP disapproyes Section 215.207 for
inclusion in the Illinois State Implementation Plan (SIP).
55 Fed.
Reg. 26847
(June 29, 1990).)
Additionally, the Agency states that
the FIP will not allow emissions—averaging across separate coating
lines.
55 Fed. Reg. 26869-70 (June 29,
1990).)
Consequently, the
Agency argues that the variance requested by American cannot be
granted consistent with federal
law.
CONCLUSION
Based upon the foregoing, the Board concludes that the second
amended petition is dismissed for American’s failure to comply with
discovery.
Additionally,
in
the
interest
of
administrative
economy,
the
Board
has
reached
the
merits
of
this
case
and
concludes that American has failed to present adequate proof that
immediate compliance with the Board’s VON regulation would result
in
the
imposition
of
arbitrary
or
unreasonable
hardship.
Furthermore,
American has failed to demonstrate
compliance with
federal
law.
Therefore,
American’s variance request
is hereby
denied.
This constitutes the Board’s findings
of
fact and conclusions
of law in this matter.
IT IS SO ORDERED.
J.D.
Dumelle concurs.
Section
41 of the Environmental Protection Act provides for
appeal
of
final
Board
Orders within
35
days.
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2, par.
1041)
The Rules of the Supreme Court of
Illinois establish filing requirements.
I,
Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was adopted
on the ~-day
of
____________
,
1991 by a vote of
7-~o
Dorothy M.,’~unn, Clerk
Illinois ~‘ol1utionControl Board
120-266