ILLINOIS POLLUTION CONTROL BOARD
February 23, 1989
DM1, INC.,
Petitioner,
v.
)
PCB 88—132
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
MR. ROBERT MCCLURE, OF DM1, INC., APPEARED ON BEHALF OF THE
PETITIONER;
MS. LISA. MOPENO, OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD (by J. Marlin):
This matter comes before the Board upon a request for
variance initially filed on August 22, 1988 and amended November
1, 1988 by DM1, Inc. (“DM1”). DM1 requests variance from 35 Ill.
Adm. Code 215.204(j) and 215.211 until July 1, 1989 to allow time
to achieve compliance with the substantive requirements of the
Board’s regulations governing volatile organic material (“VOM”)
emissions from miscellaneous metal parts coating processes.*
On December 6, 1988, the Illinois Environmental Protection
Agency (“Agency”) filed a recommendation that the variance be
granted. A hearing was held on January 4, 1989; no members of
the public attended.
Based on the record before it, the Board finds that DM1
would incur an arbitrary or unreasonable hardship if the
requested relief were to be denied. 1~ccordingly, the variance
will be granted, subject to conditions.
*
Although DMI’s petition requested variance from Section
215.202, the Agency correctly states that DM1 actually needs
variance relief from Sections 215.204 and 215.211.
96—185
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BACKGROUND
DM1 manufacturers farm machinery and dump truck bodies in
Wpodford County. It is employee—owned and employs approximately
260 people. (P. at 1).
The paint process at DM1 is conducted in two paint areas.
One paint room utilizes a spray system with medium solid paints
in the coating of dump trucks and grain wagons. This room is
currently in compliance with the Board’s regulations (35 111.
Ac3rn. Code 215.204(k)) and does not require a variance. (P. at 5,
Agency Rec. at 2).
The second paint area, the “paint deck”, is the subject of
DMI’s variance petition. The paint deck area consists of primer
and finish coat dip tanks and two spray booths on a deck. The
parts to be painted travel by a conveyor through the primer dip
tank and then through a 140°Fheating oven. (P. at 2). The parts
continue on the conveyor through a paint booth where some are
sprayed by electrostatic paint guns for the top coat. These
operations in the paint deck area have resulted in VOM emissions
of 5.8 lb/gal from the prime coat and 4.7 lb/gal from the top
coat according to the second quarter of 1988 emissions report.
(P. at 6).
PAST EFFORTS
According to DMI’s petition for variance, it has attempted
to come into compliance since December, 1984. (P. at 7). DM1
investigated and rejected several alternative methods for coming
into compliance including the use of urethanes, flow coating
(with water borne paints) and powder coatings. DM1 tested a
water—borne primer coating extensively but was unable to utilize
this method when the paint company refused to guarantee the paint
in the tank on May 6, 1987. Thus, DM1 chose the one—coat bake
system as the best paint system to bring it into compliance. (P.
at 7,8).
COMPLIANCE PLAN
DM1 states in its petition for variance that it intends to
use a one—coat system with a baked enamel finish to achieve
compliance with Section 215.204. As such, DM1 proposes to
discontinue use of the primer tank, install a baking oven and
change the black dip tank to water—borne baked paint. (P. at 6).
In DMI’s original petition it requested a variance from
January 1, 1988 until January 1, 1989. DMI’s amended petition
requests extension of the variance until July 1, 1989. (Amended
P. at 1). DM1 alleged that trouble obtaining the necessary
permits halted installation of the oven, necessitating DMI’s
request for an extension. (P. at 8).
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Although the Agency’s recommendation did not include a
requirement and schedule for written reports by DM1, such a
requirement for written reports has been included in the Board’s
Order following this Opinion. The dates of March 30th and June
30th were chosen as the half—way and end points of the variance,
for which DM1 must submit written reports to the Agency.
DMI’s amended petition provides greater detail regarding the
compliance schedule. Some of this schedule has already been
completed
—
the construction and operating permits have been
issued. At the January 4, 1989 hearing, DM1 stated that the
baking oven was 90 complete and was expected to be running and
ready for testing by January 9, 1989. DM1 asserted in its
amended petition that it will be in compliance 120 days after the
permits are filed. (Amended P. at 1). DM1 further stated at the
January 4th hearing that it expects to be in compliance at the
end of its 30 day test run period. (P. at 6). In any event, DM1
agrees to be in compliance by July 1, 1989 and the Agency agrees
with the reasonableness of this timeframe. (Amended P. at 1; P.
at 13). The Board notes that DM1 could already be in compliance
by the date of this Order and that some requirements of this
Order may have already been fulfilled.
There has been some discussion as to which regulation
applies to DMI’s coating operations. According to the Agency,
before DMI’s installation of the baking oven, it was subject to
35 Ill. Adm. Code 2l5.204(k)(2) because its parts coating process
was an extreme performance top coat which was air dried, allowing
emissions of 4.3 lb/gal. Since DM1 has chosen to install a
baking oven which operates at temperatures above 194°Fas part of
its compliance plan, DM1 will be subject to more stringent
regulations under Section 215.204(j) as the coating is no longer
air dried. (P. at 11). DM1 believes that its compliance program
will meet the more stringent standard under 215.204(j) of 3.5
lb/gal. (R. at 11—13). The Board agrees with the Agency that
DMI’s compliance program is adequate to comply with the Board
regulations.
DM1 wants the variance to be retroactive to January 1,
1988. The Board notes that DM1 has been aware of the need to
comply for many years and as of May, 1987 knew that its plan to
use different paint was not going to be implemented. No reason
is given for waiting until August of 1988 to apply for a
variance. To grant retroactive relief as requested would
encourage other companies to file in an untimely manner.
Accordingly, the Board will grant relief beginning December 20,
1988, which is 120 da.ys from the date DM1 filed.
HARDSHIP AND ENVIRONMENTAL IMPACT
The Agency agrees with DM1 that denial of this variance
would be an arbitrary or unreasonable hardship. (Amended Rec. at
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6). The Agency believes that DM1 has made a good faith effort to
come into compliance. The Agency agrees that it would not have
been financially prudent to move forward with the compliant
coatings after the manufacturer withdrew its guarantee in May,
1987 and notes that DMI’s financial situation is not very strong.
(Amended Rec. at 6).
The Agency believes that the variance sought by DM1 will not
have any adverse environmental impact. DM1 asserts that its VOM
emissions for the first half of 1988 were 42,500 pounds. (P. at
7). Although the Agency, at:the hearing, stated that it was
uncertain about some of the data used to arrive at that figure
for total annual VOM emissions, there is rio dispute that DM1 is a
relatively small source. Using DMI’s emissions figure of 42,500
ibs, the Board estimates total annual VOM emissions to be 42.5
tons/yr. Thus, •there is no dispute that DM1 emits more than 25
tons of VOM per year, and could not be exempted from compliance
under Section 2l5.206(a)(l). It is important to note that under
the Board’s regulations for coating operations, VOM emissions
limitation are rate—based (i.e., lb/gal).
DM1 is located in rural Woodford County, an attainment area
for ozone. According to the Agency, ozone ambient air quality
standards that have been recorded at the closest monitor in
Peoria have not been exceeded for the past several years.
(Amended Pec. at 5).
CONCLUS ION
In view of the hardship here demonstrated, as well as the
projected environmental effects during the term of this proposed
variance, the Board finds that adequate proof has been presented
that immediate compliance with 35 Ill. Adm. Code 215.204(j) and
215.211 would impose an arbitrary or unreasonable hardship upon
DM1. Accordingly, the variance will be granted with the
conditions outlined in the Order below.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1. Petitioner, DM1, Inc., is hereby granted variance from
35 Ill. Adm. Code 215.204(j) and 215.211 for its
facility located on Route 150 in Woodford County,
Illinois, subject to the following conditions:
A) This variance begins on December 20, 1988 and
expires on July 1, 1989 or when compliance with 35
Ill. Adrn. Code 215.204(j) is achieved, whichever
occurs first.
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B) DMI’s present dip tank for primer coating shall be
eliminated.
C) A conveyor system shall be installed to convey
parts to electrostatic spray booths to be painted
with low—VOM coatings without a primer.
D) The black coating dip tank shall continue to be
used, with a water—reducible black enamel coating
with a VOM content of 3.39 lb/gal.
E) All coated parts shall be conveyed through a gas—
fired bake oven and cooling tunnel. Installation
of the gas—fired bake oven shall be completed 30
days after the construction permit is received.
F) During the term of this variance, DM1 shall submit
two written reports to the Agency detailing all
progress made in achieving compliance with 35 Ill.
Adrn. Code 215.204(j) and 215.211. The first report
shall be due March 30, 1989. The second report
shall be due June 30, 1989 or when compliance with
35 Ill. Adm. Code 215.204(j) is achieved, whichever
occurs earlier. These reports shall be sent to:
Control Programs Coordinator
Division of Air Pollution Control
Environmental Protection Agency
2200 Churchill Road
Springfield, IL 62706
G) DM1 shall abide by all conditions of its joint
construction and operating permit issued on
December 28, 1988.
2) Within 45 days of the date of this Order, Petitioner
shall execute and forward to Lisa Moreno, Enforcement
Attorney, Illinois Environmental Protection Agency, 2200
Churchill Road, Springfield, Illinois 62706, 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:
96—189
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CERTIF ICAT ION
I, (We), ____________________________, having read the
Order of the Illinois Pollution Control Board, in PCB 88—132,
dated February 23, 1989, understand and accept the said Order,
realizing that such acceptance renders all terms and conditions
thereto binding and enforceable.
Petitioner
By: Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1987 ch. Ill 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.
J. D. Dumelle concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the~bove Opinion and Order was
adopted on the 2~”~day of
____________,
1989, by a vote
of 7-C’
~7,
~
/
Dorothy M./9’unn, Clerk
Illinois Pdllution Control Board
96—190