ILLINOIS POLLUTION CONTROL BOARD
September 8, 1988
DEERE & COMPANY, JOHN DEERE
)
HARVESTER EAST MOLINE WORKS,
Petitioner,
v.
)
PCB 88—22
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
MS. ELIZABETH 0. SHAW APPEARED ON BEHALF OF PETITIONER;
MR. JAMES J. O’DONNELL APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by R. C. Flemal):
This matter comes before the Board on a Petition for
Variance filed on January 21, 1988 by Deere & Company, John Deere
Harvester East Moline Works (“Deere”). Deere requests variance
for a period of six months from the December 31, 1987 compliance
date specified in 35 Ill. Adm. Code 215.211(b) with respect to
meeting the limitations for emissions of volatile organic
material (“VOM”) found at 35 Ill. Mm. Code 215.204(j)(3).
Hearing was originally scheduled for March 21, 1988.
However, hearing was continued to May 17, 1988 pursuant to a
Motion for Continuance filed by Deere. The Agency filed its
Recommendation (“Rec”) to grant the requested relief on April 20,
1988.
Based on the record before it, the Board finds that Deere
would suffer an arbitrary or unreasonable hardship not justified
by the environmental impact if denied the requested variance.
Accordingly, the Board will grant the variance, subject to
conditions.
BACKGROUND
Deere operates a facility for the manufacture of combines
and related agricultural equipment located on a 246—acre site in
East Moline, Illinois; the facility employs approximately 2,500
persons. Deere generates VOM emissions from its painting
operations and vents the emissions to the atmosphere. These
emissions are subject to limitations as specified in the Board’s
rules and regulations.
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Deere has been engaged in a ten—year, $10 million effort to
develop a coating process capable of meeting VOM emission
limitations and suitable for painting products of heavy metal
thickness (Petition at 4). This effort culminated in the
development of two electrodeposition surface coating (“E—Coat”)
systems. Deere obtained construction permits for installation of
the E—Coat systems in August and September 1986 (Petition,
Appendix B) and was issued an operating permit on April 28, 1987
(Id.
).
However, after several months of operating of the new E—Coat
systems, it became apparent to Deere that “de—bugging” of the E—
Coat system was proving to be more complicated than anticipated,
and that there was uncertainty as to whether the system would be
functioning in a manner sufficient to meet the pending December
31, 1987 compliance deadline. Accordingly, Deere filed the
instant petition requesting that the December 31, 1987 deadline
be moved out six months to allow it the additional time needed
for tuning its E—Coat systems.
COMPLIANCE PROGRAM
Deere’s efforts to achieve compliance with VOM limitations
have already achieved a substantial reduction in VOM emissions,
estimated to be a reduction of about 754 tons/year (55
reduction) over pre—RACT emissions (Petition at 4).
Additionally, the decrease would have been more than twice as
large had Deere been able to maintain earlier product production
levels (Id.).
Deere estimates that an additional reduction of a maximum of
12.6 tons per six—months is necessary to assure compliance
(Petition at 4). Deere believes that this reduction can be
achieved through continued internal system adjustments, and that
such adjustments can be implemented within the term of the
requested variance (R. at 15, 30).
The adjustments which Deere has or is undertaking include
reduction in spray time (R. at 23—4), increase in coating load
density (R. at 24—5), reduction in the primary solvent (R. at 25—
6, 29), adjustment and replacement of spray nozzles (R. at 26,
28), modification of flow rates (R. at 26), modification of the
exhaust system (R. at 27), covering of coating tanks during
periods of non—operation (R. at 28), reduction of purging of
permeate (R. at 29), and reformulation of some coatings (R. at
29).
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ENVIRONMENTAL IMPACT
Deere contends that the additional emissions during the
pendency of the requested variance, a maximum of 12.6 tons, would
produce a de minimus environmental impact (Petition at 4). Deere
further notes that Rock Island County, in which its facility is
located, is an attainment county for ozone pursuant to 40 CFR
81.314, and contends that the excess emissions would have no
adverse impact on air quality in Rock Island County or in any
nonattainment county in Illinois or neighboring states (Id.).
The Agency agrees that, given the emissions from the Deere
facility and the location of the facility, air quality in the
area would not deteriorate as a result of grant of the
variance. The Agency also notes:
The emissions released from the painting
processes at the Deere facility are considered not
toxic in concentrations in which they are released.
While the materials released from the painting
operations have a slight solvent odor, detectable
around the facility, no citizens’ complaints for
painting odors are on record against the facility.
Therefore, there appears to be no unreasonable
interference with the health or well—being of
residents in the area. Rec. at par. 4.
The Agency further notes that Deere may be in compliance
well before the end of the variance period, and believes that,
due to the small amount of excess emissions produced during the
short variance period, “there is very little injury that could
result from grant of this variance” (Rec. at par. 4).
HARDSHIP
Deere submits that failure to grant this variance would
constitute an arbitary or unreasonable hardship. Deere contends
that denial simply because de—bugging problems have proven more
difficult than anticipated would penalize Deere for its extra
efforts to develop and utilize the best available technology.
The Agency also submits that denial would constitute an
arbitrary or unreasonable hardship. The Agency contends that
Deere has made a good faith effort to de—bug the complex E—Coat
systems, and points out that the Deere has notified the Agency
and the Board promptly upon encountering difficulties (Rec. at
par. 2—2). The Agency concludes:
In view of the fact that petitioner is nearing
compliance at this time and may be in compliance
before the variance period, petitioner’s history of
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cooperation in regard to air pollution problems, the
minimal impact of excess VOCs during the variance
period, and the complexity of the new technology E—
Coat systems, the Agency agrees that failure to grant
the requested variance would impose an arbitrary and
unreasonable hardship on the company. Rec. at par.
2—3.
RETROACTIVITY
The Board notes that the variance herein requested is
retroactive in its entirety. A variance is not retroactive as a
matter of law (IEPA v. Citizens Utilities Company of Illinois,
PCB 79—142, 56 PCB 04), and the Board does not grant variances
retroactively unless the retroactive relief is specially
justified (Quaker Oats Company v. IEPA, PCB 83—107, 59 PCB 27;
Hansen—Sterling Drum Co., v. IEPA, PCB 83—240, 62 PCB 389; City
of Farmington, v. IEPA, PCB 84—166, 63 PCB 98; Fedders—USA v.
IEPA, PCB 83—47, 63 PCB 461; Borden Chemical Company v. IEPA, PCB
82—82, 67 PCB 04).
A principal consideration in the granting of retroactive
relief is a showing that the petitioner has diligently sought
relief and has made good faith efforts at achieving compliance
(Midwest Solvents Company of Illinois v. IEPA, PCB 84—5, 57 PCB
370; Kable Printing Company v. IEPA, PCB 85—57, 67 PCB 420;
Classic Finishing Company, Inc. v. IEPA, PCB 84—174(B), 70 PCB
233; Bloomington/Normal Sanitary District v. IEPA, PCB 87—207,
March 10, 1988, slip op. at 2). The Board believes that the
record demonstrates that Deere has diligently sought relief and
has made good faith efforts to comply, as is in fact demonstrated
by apparent attainment of compliance during the pendency of the
Petition. The Board therefore believes that Deere has made a
showing sufficient for grant of retroactive variance.
CONCLtJS ION
Based on the record before it, the Board finds that, absent
the requested relief, Deere would incur an arbitrary or
unreasonable hardship not justified by the environmental
impact. For these reasons the Board will grant the requested
relief, subject to conditions.
ORDER
Petitioner is hereby granted variance from 35 Ill. Adm. Code
2l5.204(j)(3) for its John Deere Harvester East Moline Works,
subject to the following conditions:
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1. Variance shall begin on January 1, 1988 and terminate on
June 30, 1988.
2. No later than forty—five days from the date of this Order
Petitioner shall submit a report to the Agency, informing
the Agency on progress attained in Petitioner’s effort to
complete the compliance program. This report shall be
addressed to: Mr. Richard Jennings, Regional Manager,
Division of Air Pollution Control, Illinois Environmental
Protection Agency, 5425 North University, Peoria,
Illinois 61614.
3. Within 45 days of the date of this Order, Petitioner
shall execute and forward to Ms. Bobella Glatz,
Enforcement Programs, Illinois Environmental Protection
Agency, 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 88-22, September 8,
1988.
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.
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IT IS SO ORDERED.
Board Member Jacob D. Dumelle concurred.
Board,I, herebyDorothycertj~~thatM.
Gunn, Clerkthe
abovof
the Illinois Pollutiond
Order wasControl
adopted on the
________
day of
___________________,
1988, by a
vote of 7—c~
.
Illinois
Control Board
92—96