ILLINOIS POLLUTION CONTROL BOARD
July 27, 1989
LCN CLOSERS, INC.,
Petitioner,
v.
)
PCB 89—27
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
STEPHEN H. GUNNING, ATTORNEY-AT-LAW, APPEARED ON BEHALF OF
PETITIONER; AND
LISA MORENO, ATTORNEY-AT-LAW, APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by M. Nardulli):
This matter comes before the Board upon a petition for
variance filed February 8, 1989 by petitioner, LCN Closers, Inc.
(“LCN’t). LCN seeks a variance from the requirements of
regulations 215.183 governing emissions from open top vapor
degreasers (35 Ill. Adm. Code 215.183) through July 15, 1989 and
from the coating emission limitations of regulation 2l5.204(j)(2)
through December 1, 1990. A hearing was held on June 2, 1989.
One member of the public attended. On May 12, 1989, the Illinois
Environmental Protection Agency (“Agency”) filed its
recommendation asserting that LCN’s request for variance from
regulation 215.183 be denied, but recommending that variance be
granted from 215.204(j)(2) subject to certain conditions.
Background
LCN owns and operates a manufacturing plant which produces
hydraulic door closers, including the component metal parts of
the finished product. (Pet. at 2.) The facility is located in
Princeton, Bureau County, Illinois, a city of approximately 7,500
persons. (Pet. at 2.) LCN employs 300 people and has a 21
percent share of the national market for its product. (Pet. at
2.)
Before assembly and painting, a variety of metal component
parts are cleaned of dirt, metal chips and cutting oils in an
open top solvent degreasing machine. The present degreasing
machine was installed in 1979, replacing identical equipment
which had been installed in 1968. (Pet. at 3; Tr. at 7.) The
degreaser uses trichloreothylene, which is heated to 189°F, to
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clean the metal component parts. (Pet. at 3.) The parts are
placed in a basket, lowered into the degreaser and rotated for 30
seconds. (Pet. at 3.) The basket is lifted out of the solvent
and the parts are allowed to drain. (Pet. at 3.) The degreaser
remains uncovered during an entire eight—hour work shift. (Pet.
at 3.)
Volatile organic material (t1VOM”) is emitted during the
cleaning process. Based upon the amount of solvent recycled each
year compared to the amount of solvent purchased, LCN asserts
that VOM emissions from the degreaser were 31,500 lbs. in 1986
and 16,440 lbs.in 1987. (Pet. at 5.) The use of the degreaser
is governed by 35 Ill. Adm. Code 215.183 which specifies both
operating and equipment requirements. Compliance with this
regulation was required by July 1, 1980. (35 Iii. Adm. Code 215,
Appendix C, Rule 205(j).) LCN acknowledges that its degreaser is
not in compliance with this regulation. (Pet. at 3; Tr. at 11.)
As part of its manufacturing process, LCN applies coatings
to the door closers using a Ransberg No. 2 electrostatic
application process. (Pet. at 7.) After the coating is applied,
the parts pass through a hot air dryer at 154°F. (Pet. at 8.)
The parts are then air dried as they move through the plant on
1,900 feet of overhead track. (Pet. at 8.)
The VOM emissions from LCNts coating process are regulated
by 35 Ill. Adm. Code 215.204(j)(2) which establishes a limit of
3.5 pounds VOM per gallon of coating for air—dried coatings of
miscellaneous metal parts. LCN has calculated its actual
emissions for 1987 as 89.06 tons per year and its allowable
emissions as 48.35 tons per year. (Pet. Ex. E.) Compliance with
the limitations of Section 2l5.204(j)(2) was required by December
31, 1987. (35 Ill. Adm. Code 215.211(b).)
Hardship and Environmental Impact
LCN asserts that immediate compliance with the regulation
governing operation of the open top vapor degreaser would impose
an arbitrary or unreasonable hardship because LCN cannot properly
clean the component parts of the door closers without use of the
degreaser. (Pet. at 7.) LCN states that if it cannot properly
clean the component parts, it would be without a marketable
product and would be out of business. (Pet. at 7.)
The Agency opines that any hardship incurred by LCN is self-
imposed. (Agency Rec. at 6.) The Agency notes that, in
installing the present degreaser in 1979, LCN replaced identical
equipment which had been installed ten years earlier. (Agency
Rec. at 6.) The record indicates that LCN became aware in 1984
that the degreaser was not in compliance. (Tr. at 7, 10-12; Pet.
Ex. 2.) Yet, the Agency did not receive LCN’s application for a
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permit until 1988. (Agency Rec. at 7.) The Agency believes that
it would be inappropriate to grant a variance where the degreaser
has been out of compliance for eight years. (~gencyRec. at 7.)
The burden of proving arbitrary or unreasonable hardship is
on the party seeking the variance. (Ill.Rev.Stat. 1987, ch. 111
1/2, par. 1037; United Ventures v. Pollution Control Board, 476
N.E.2d 1368 (2d Dist. 1985).) The petitioner must establish that
the hardship resulting from a denial of the variance would
outweigh the injury to the public from a grant of the variance.
(Id.) LCN’s petition does not adequately address these
concerns. LCN’s allegation of hardship is conclusory. While LCN
states that it became aware of compliance problems with the
degreaser in 1984 (Tr. 7, 10—13; Pet. Ex. 2), and attempted to
reduce VOM emissions by covering the degreaser when not in use
and by using it less (Tr. 12-13), LCN does not adequately
demonstrate that it investigated alternative methods of coming
into compliance. Unlike its assertion of hardship regarding its
coating process, LCN does not set forth any evidence that costs
of alternative cleaning methods are prohibitive. We conclude
that LCN has failed to meet its burden of proving that immediate
compliance with regulation 215.183 would impose an arbitrary or
unreasonable hardship. Therefore, the Board need not address the
Agency’s assertion that the hardship is self—imposed.
LCN also asserts that immediate compliance with 35 Ill. Adm.
Code 2l5.204(j)(2) would impose an arbitrary or unreasonable
hardship. (Pet. at 9—10.) In support of this assertion, LCN
states that, in addition to producing door closers that function
properly, it is important to produce a durable coating for the
closers that meets customer demands regarding finished quality
and color. (Pet. at 9—10.) The manager of manufacturing at LCN
testified that architectural standards require that the coating
have a certain metalic appearance that will match storefronts.
(Tr. at 43.) To require an immediate abandonment of the current
coating process would require substantial modification of LCN’s
design and production processes with attendant capital costs and,
in all likelihood, result in a product unacceptable to LCN’s
customers. (Pet. at 10.)
LCN has considered alternative coating methods. Powder
paint was rejected by LCN because the extreme heat associated
with this method is not suitable for the parts LCN assembles with
linkages, 0—ring seals and hydraulic fluid. (Pet. at 10.) A
dipping method was rejected because the heavy application of
coatings resulting from this process would impair the mechanical
functioning of the equipment. (Pet. at 10.)
Recognizing the need to comply with the Board4s regulations,
LCN has in the past investigated two other alternative coating
methods. These methods are the use of an alternate non—volatile
coating which meets customer specifications or, alternatively,
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installation of an incinerator to destroy the VOM’s released by
the coating process. (Pet. at 11; Pet. Ex. 4.) LCN had a stack
test performed on its plant at a cost of approximately $7,500.
(Pet, at 11.) This study concluded that installation of a new
incinerator would be 95 percent efficient in destroying VOM
emissions. (Pet. at 11.) The estimated cost of such equipment
is $1 million. (Pet. at 11.)
LCN has also consulted with representatives of several paint
companies regarding whether these suppliers could create a non-
volatile coating that would meet LCN’s specifications. (Pet. at
12.) While these efforts have not been completely successful,
LCN has seen some improvement in the materials produced and has
been informed that an acceptable non—volatile coating will be
available in the near future. (Pet. at 12.)
The Agency agrees that immediate compliance with the coating
emission standard imposes an arbitrary or unreasonable hardship
upon LCN. (Agency Rec. at 8.) The parties also agree that,
while VOM emissions contribute to the formation of ozone, the
variance sought by LCN from the coating emission standard (35
Ill. Adm. Code 2l5.204(j)(2)) will not result in an adverse
environmental impact. The Agency notes that in 1988 ozone
monitoring stations located near LCNts facility have not
registered a violation of the air quality standards. (Agency
Rec. at 5.)
Given the technical problems and financial costs associated
with changing from the current electrostatic coating method to a
different coating method, the costs of installing an incinerator
and LCN’s commitment to conclude its search for a non—volatile
coating acceptable to its customers, the Board concludes that LCN
has established that immediate compliance with regulation
2l5.204(j)(2) would impose an arbitrary or unreasonable hardship
upon LCN.
LCN requests that is variance from the coating emission
limitations extend through December 1, 1990 but it does not
suggest when the variance should begin. (Pet. at 6). Similarly,
the Agency does not recommend a starting date for the proposed
variance. LCN installed the present coating process in the
summer of 1985. (Pet. at 8). Compliance with section
215.204(j)(2) was required by December 31,1987. (See, 35 Ill.
Adm. Code 215.211(b)). Although the record does not state the
exact date LCN applied for an operating permit, the Agency notes
that LCN’s application for a permit for its coating process was
denied on February 7,1988. (Agency Rec. at 4). There must be
exceptional circumstances supoorting the grant of a retractive
variance. (Classic Finishing Co., Inc. v. IEPA, PCB 84-174 (June
20, 1986).) LCN does not argue that it should be granted a
retroactive variance nor does the record reveal any special
circumstances indicating that such a grant would be proper.
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Compliance Plan
LCN proposes to come into compliance with 35 Ill. Adm Code
215.183 by purchasing new cleaning equipment which is being made
to LCN’s specification at the cost of approximately $278,000.
(Pet. at 6; Pet. Ex. B.) LCN states that this new equipment will
meet applicable design standards, including having a cover over
the cleaning area when the degreaser is in operation and a drying
function that will reduce VOM emissions. (Pet. at 6.) LCN
believes that this equipment will be installed as of July 15,
1989. (Pet. at 6.)
LCN proposes to come into compliance with 35 Ill. Adm. Code
2l5.204(j)(2) through the use of non—volatile coatings. (Pet. at
13.) LJCN expects these newly formulated coatings to be available
by December 1, 1989. (Pet. at 6.) Alternatively, if LCN cannot
procure an acceptable alternate coating by December 1, 1989, it
commits itself to purchasing an incinerator which will be
operational no later than December 1, 1990. (Pet, at 6.) In the
interim, LCN will replace its existing cover dip with a
waterborne product resulting in a decrease of VOM emissions.
(Pet. at 6.)
Consistency with Federal Law
LCN states that its proposed variance from 35 Ill. Adm. Code
215.183 is consistent with the requirements of the Clean Air
Act. (42 USC 7401 et seq.) While LCN asserts that the proposed
variance would be approved by the United States Environmental
Protection Agency (“USEPA”) as part of the State Implementation
Plan (“SIP”) for ozone, the Agency asserts that the USEPA would
not approve such a SIP revision because LCN’s degreaser has been
out of compliance for eight years. (Agency Rec. at 6.)
The parties agree that the proposed variance from the
requirements of 35 Ill. Adm. Code 2l5.204(j)(2) is consistent
with the Clean Air Act.
Conclusion
In view of the hardship demonstrated and the minimal
projected environmental effects expected during the term of this
proposed variance, the Board finds that adequate proof has been
presented that immediate compliance with 35 Ill. Adm. Code
2l5.204(j)(2) would impose an arbitrary or unreasonable hardship
upon LCN. Accordingly, the variance will be granted subject to
the conditions outlined in the Order below. Because of LCN’s
failure to establish that immediate compliance with 35 Ill. adm.
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Code 215.183 would impose an arbitrary and unreasonable hardship,
the proposed variance from this regulation is denied.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
LCN Closers, Inc. is hereby granted a variance from 35 Ill.
Adm. Code 2l5.204(j)(2) for its facility in Princeton, Illinois,
subject to the following conditions:
1. This variance begins July 27, 1989 and ends December 1,
1990;
2. LCN shall submit to the Agency reports on a quarterly
basis detailing the progress achieved in finding low—VOM coatings
to the following address:
Illinois Environmental Protection Agency
Division of Air Pollution Control.
1340 North 9th Street
Springfield, IL 62706
3. In the event that LCN does not find acceptable low—VOM
coatings by December 1, 1989, it shall install an incinerator to
be operational by December 1, 1990, according to the following
schedule:
a. December 1, 1989; Order equipment and apply to the
Agency for a construction permit;
b. December 1, 1989
—
August 1, 1990: Install new gas line
and electrical wiring at the plant and obtain a new
transformer necessary to the operation of equipment;
c. August 1, 1990: Delivery of equipment;
d. August 1, 1990
—
November 1, 1990: Install incinerator
and appurtenant duct work and electrical control
equipment;
e. November 1, 1990
—
December 1, 1990: Test and calibrate
equipment; and
f. December 1990: Apply for operating permit;
4. LCN shall submit to the Agency at the above—stated
address quarterly reports detailing its progress in installing
the incinerator;
5. Within 45 days after the date of this Opinion and Order,
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LCN shall execute and send to:
Illinois Environmental Protection Agency
Attention: Thomas Davis
Enforcement Programs
2200 Churchill Road
Springfield, IL 62794—9276
a certificate of acceptance of this variance by which it agrees
to be bound by the terms and conditions contained herein. This
variance will be void if LCN fails to execute and forward the
certificate within the 45—day period. The 45—day period shall be
in abeyance for any period during which the matter is appealed.
The form of the certification shall be as follows:
CERTIFICATION
I, (We)
,
having
read the Opinion and Order of the Illinois Pollution Control
Board in PCB 89-27, dated July 27, 1989, understand and accept
the said Opinion and Order, realizing that such acceptance
renders all terms and conditions thereto binding and enforceable.
Petitioner
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1985, ch. 111—1/2, par. 1041, provides for appeal of final
Orders of the Board within 35 days. The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the bove Opinion and Order was
adopted on the ~7¼z day of ______________________, 1989, by a
voteof
‘.-0
.
Control Board
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