ILLINOIS POLLUTION CONTROL BOARD
December 17, 1987
GENERAL TIRE, INC.,
Petitioner,
v.
)
PCB 86—224
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
MESSERS JEFFREY C. FORT AND DANIEL F. O’CONNELL OF MARTIN, CRAIG,
CHESTER AND SONNENSCHEIN APPEARED ON BEHALF OF PETITIONER; AND
MS. BOBELLA GLATZ APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by B. Forcade):
This matter comes before the Board upon a Petition for
Variance filed December 30, 1986, by General Tire, Inc. (“General
Tire”). On January 8, 1987, the Board received an objection from
the Illinois Environmental Protection Agency (“Agency”). The
Board issued a “more information” order on January 8, 1987. A
citizen’s objection was filed with the Board on January 21,
1987. On February 6, 1987, General Tire filed an Amendment to
Petition for Variance.
In its amended petition, General Tire failed to respond to
that portion of the Board’s “more information” order that
directed General Tire to “explain the rationale for extending
compliance with 35 Ill. Adm. Code Sections 215.462 and 215.465(b)
until December 31, 1991, when the compliance option has not yet
been selected”. General Tire amended its compliance date to
December 31, 1989, without further comment (Amend. Pet. p. 3).
On February 19, 1987, the Board accepted the matter for hearing.
The amended petition requests: (1) a one—year variance from
the December 31, 1986 Compliance Plan submittal requirement of 35
Ill. Adm. Code Section 215.466(b); and (2) a two—year variance
from 35 Ill. Adm. Code Sections 215.462 and 215.465(b) (Tr.
132). The Agency filed its Recommendation (“Rec.”) in this case
on April 8, 1987, recommending that General Tire’s request for
variance relief be denied. Hearing was held in this matter on
July 16, 1987 in Mt. Vernon, Illinois. Post—Hearing Briefs were
filed by General Tire on September 4, 1987 (“Br. 1”) and by the
Agency on October 14, 1987 (“Br. 2”). A Reply Brief was filed by
General Tire on October 23, 1987 (“Br. 3”).
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On September 8, 1987, the Board was advised that General
Tire is a wholly—owned subsidiary of GenCorp, Inc. General Tire
also informed the Board that GenCorp, Inc. has entered into a
stock purchase agreement with Continental Gummi—Werke, A.G. and
G.T. Acquisition Corporation to sell all of its shares of General
Tire (which represents all of the shares of General Tire) in a
transaction which is scheduled to be closed on or before November
1, 1987 (Letter from Daniel F. O’Connell, filed on September 8,
1987).
For the reasons developed below, including General Tire’s
failure to state a compliance plan and General Tire’s failure to
provide adequate proof that compliance with the Board’s
regulations would impose an arbitrary or unreasonable hardship,
the Board denies the requested relief.
BACKGROUND
General Tire owns and operates a tire manufacturing plant in
Mt. Vernon, Illinois, Jefferson County (Tr. 132). Production of
the tires is accomplished through the compounding and mixing of
raw materials to produce an extruded rubber stock which is then
built through a number of individual processes into the form of a
green tire. The green tire has the general form of a finished
automobile or truck tire but does not exhibit the tread details
or sidewall details of the finished tire. The green tire is
coated and placed in a mold which transforms the green tire into
the finished product. The molded tire is buffed and subjected to
a number of quality control checks before being stored in the
warehouse at the facility (Tr. 136—141).
The subject of the variance petition deals with the spraying
of green tires prior to the molding process. The plant uses 4
green tire spray booths which are semi—automatic. Green tires
are placed in each booth manually at a rate of 202 tires per
hour, a rate which is equivalent to a production of 19,392 tires
per day. Once the tires are placed in the booth, they are
automatically turned and sprayed both inside and out with a tire
lubricant material. Each tire is sprayed with an estimated 55
grams of an organic—based outside lubricant designated as C—261,
which does not comply with Section 215.462 (Tr. 131). The
primary purpose of this lubricant is to assist in bleeding off
the air from inside the tire molding presses during the molding
process (Tr. 140). This lubricant (C—26l) is the subject of the
variance petition before the Board.
TESTIMONY OF JOHN B. JUSTICE
In its Post—Hearing Brief, General Tire argues that the
Board should disregard the limited testimony of the Agency’s one
witness because his identity and the subject matter of his
testimony was withheld in violation of the Hearing Officer’s
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discovery order, and because it is not relevant to the issues in
this proceeding. In the alternative, General Tire argues that
the Board should find that his testimony supports a grant of a
variance. General Tire also argues that the Agency has unfairly
contended “that General Tire should be required to convert its
operations to a water—based outside lubricant without first
testing the available lubricants to see if they will produce an
acceptable tire” (Br. 1, p. 38).
General Tire has misstated the claim of the Agency. What
the Agency contends is stated in its response to interrogatories
in which it states that:
The Agency does contend that it is unrea-
sonable for General Tire to test water—based
outside lubricants before committing to a
compliance plan. 1) General Tire’s own plant
in North Carolina uses water—based outside
lubricants, and the company, therefore, has
experience with these lubricants. 2) Water—
based outside lubricants are currently in use
at other tire manufacturing plants in
Illinois. (Letter from Bobella Glatz/IEPA to
Dan O’Connell, filed with the Board on
7/15/87.)
Mr. Justice is the regional manager for the Division of Air
pollution Control with the Agency office located in Collinsville,
Illinois. He is familiar with the General Tire manufacturing
facility at Mt. Vernon, Illinois, based on inspections he made
for approximately 12 years as a district engineer (Tr. 208—09).
He was not presented by the Agency as an expert witness, but
simply as a person who has visited and observed another tire
manufacturing plant in Illinois (Tr. 212).
At the hearing, General Tire objected to allowing Mr.
Justice to testify on the basis that: (1) his testimony is not
relevant; (2) his testimony exceeds the Agency Recommendation
which did not make an issue of any other facilities; and (3) the
Hearing Officer’s Discovery Order required that all expert
witnesses be disclosed and Mr. Justice was not disclosed prior
to hearing (Tr. 211). General Tire also objected on the basis of
surprise since there was no indication in the Agency Recommen-
dation or any of the answers to discovery about experience in
other plants that would be relevant to this proceeding (Tr. 213
and 215). The hearing officer expressed concern about presenting
the Board with something less than expert testimony with regard
to the issue of whether or not the water—based outside lubricant
system can be used by General Tire’s Mt. Vernon facility (Tr.
214). But he did allow Mr. Justice to testify (Tr. 215 and 216).
84—59 1
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The Board finds the admission of Mr. Justice’s testimony
proper. The testimony is relevant because it goes to the issue
of hardship, i.e., the availability of alternative compliance
plans and efforts made by General Tire to investigate for such
alternatives. As pointed out to General Tire at the hearing, the
testimony does not exceed the Agency Recommendation. In the
Recommendation, the Agency states one reason for denial of
variance is that “the water—based lubricants are currently used
at other similar facilities” (Rec., p. 12). General Tire’s third
basis for objection is irrelevant since Mr. Justice did not
testify as an expert witness. Clearly, the Agency had previously
raised, as a factual issue, the matter about which Mr. Justice
subsequently testified. Therefore, there was no surprise.
During the testimony by Mr. Justice, the hearing officer
sustained the hearsay objection as to the commercial availability
of the beehive rack (Tr. 221). The reason for sustaining the
objection was the hearing officer’s belief that the Agency “could
have brought somebody in that could, perhaps, testify to that
directly” (Tr. 221). The Agency made an offer of proof (Tr.
222). The Board finds that denying admission of this information
over a hearsay objection was improper since it is “evidence which
is material, relevant, and would be relied upon by reasonably
prudent persons in the conduct of serious affairs” (35 Ill. Adm.
Code Section 103.204(a)). The Board recognizes that the hearing
officer had discretion on whether to allow this testimony into
evidence, but still finds that the hearing~officer should have
done so.
Another argument made by General Tire is that if the Board
chooses to consider Mr. Justice’s testimony, that the Board
should find that his testimony supports a grant of a variance.
The Board finds that the testimony of Mr. Justice goes to the
issue of hardship, not to the issue of whether General Tire will
be able to successfully convert its outside spraying operations
to a water—based lubricant. Therefore, the Board finds his
testimony does not support the grant of a variance.
The final contention of General Tire is that the Board
should remand this proceeding if it finds that the testimony of
Mr. Justice is proper because the hearing officer improperly
limited General Tire’s attempts to impeach Mr. Justice (Br. 1, p.
43). The Board disagrees with this contention. As stated by the
hearing officer, even though Mr. Justice’s testimony is
admissible, the Board will determine what weight to give his
testimony (Tr. 232). General Tire was given ample opportunity to
cross—examine Mr. Justice for the purpose of allowing the Board
to determine what weight to attribute to his testimony (Tr. 224—
254). The limitation imposed by the hearing officer was in
response to cross—examination by General Tire designed to prove
that Mr. Justice was not an expert witness. Since Mr. Justice
was not claiming to testify as an expert, the Board finds that
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General Tire was not improperly limited by the hearing officer
during its cross—examination of Mr. Justice. Therefore, General
Tire’s request for a remand is denied.
COMPLIANCE PLAN
It is axiomatic that a variance does not grant permanent
relief from compliance with a regulatory requirement. One
necessary aspect of a variance petition is that it describe how
and when the facility will come into compliance. This concept is
articulated at 35 Ill. Adin. Code 104.121(f):
A detailed description of the existing and
proposed equipment or proposed method of
control to be undertaken to achieve full
compliance with the Act and regulations,
including a time schedule for the implemen-
tation of all phases of the control program
from initiation of design to program com-
pletion and the estimated costs involved for
each phase and the total cost to achieve
compliance.
General Tire’s petition for variance requests relief for a one—
year period from December 31, 1986 Compliance Plan submittal
requirement of 35 Ill. Adm. Code Section 215.466(b) and for a
two—year period from the requirements of the regulations
pertaining to Green Tire Spraying operations (35 Ill. Adm. Code
Sections 215.462 and 215.465(b)). The proposed method of
compliance is to file a compliance plan by December 31, 1987. As
stated by Mr. James B. Rippy of General Tire, “General Tire is
testing water—based outside lubricants to determine if it could
use these in its regular tire production. When General Tire
obtains the results of these tests this fall, it will decide how
to bring its outside spraying operation into compliance” (Tr.
131—132).
At hearing, General Tire presented evidence on three methods
that could be employed to secure compliance. The three methods
are as follows:
1. Eliminate the use of a solvent—based
outside lubricant in its tire manufac-
turing process by substituting a water—
based outside lubricant in accordance
with Section 215.462;
2. File a request with the Board for site—
specific regulatory relief to allow
General Tire to install a catalytic
incinerator on its existing collection
system, which does not meet the 90
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percent capture requirement of Section
2l5.462(a)(l); or
3. Install a catalytic incinerator and
two(2) limberger spray booths to meet the
capture and destruction efficiency
requirements of Section 215.462.
General Tire began experimenting with water—based outside
lubricants in the early 1970s (Tr. 68). General Tire’s objective
was to eliminate the use of petroleum—based solvents to avoid
problems with possible oil shortages and to reduce possible
worker exposure (Tr. 68). In March, 1986, General Tire concluded
that it could not achieve compliance by the December 31, 1987
deadline in the Board’s rules with the water—based outside
lubricant option (Tr. 176). Therefore, at that time, General
Tire began development of an incinerator control system (Tr.
176). The final engineering report on the Ilmberger spray
booths/incineration system (identified above as Method No. 3) was
received in November, 1986 (Tr. 179). General Tire concluded
that “the cost of complying by this means was totally
unreasonable” (Tr. 181). Therefore, General Tire “decided to
undertake a test of water—based lubricants on actual production
tires at the plant” (Tr. 181).
On December 30, 1986, General Tire initiated this variance
proceeding to obtain time to “aggressively pursue the use of a
water—based outside lubricant to achieve compliance” (Petition
for Variance (hereinafter “Pet.”), p. 7) and to develop a
compliance plan by December 31, 1987.
In the Petition for Variance and at hearing, General Tire
made it clear that the chances for successfully using a water—
based outside lubricant were minimal. At hearing on July 16,
1987, General Tire testified that it planned to run tests on
water—based lubricants beginning in August of 1987 (Tr. 181).
Also at hearing, General Tire’s expert witness on water—based
outside lubricants was asked by General Tire’s counsel if he
anticipated that there would be a significant danger of an
unacceptably high rate of anomalies. His response was that
“biased on past data, I predict it” (Tr. 122).
In its Petition for Variance, General Tire has agreed to
“diligently investigate the utilization of a water—based outside
lubricant” (Pet., p. 9). But as already indicated, it did not
offer a compliance plan. At hearing, General Tire has again
promised to test the use of water—based outside lubricants, but
it is clearly not committed to the use of such lubricants as a
means to obtain compliance. In fact, General Tire has retained
the right to decide that a water—based outside lubricant is not
an acceptable alternative to the use of the organic—based outside
lubricant currently being used. Therefore, the Board finds that
85— 594
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since General Tire is not committed to Method No. 1, then Method
No. 1 is not a compliance plan. Retaining the right not to
perform in accordance with Method No. 1, the history of extensive
testing done by General Tire, the timing of events, and General
Tire’s own witnesses’ testimony convinces the Board that Method
No. 1 is not an acceptable compliance plan.
With regard to Method No. 2, the Board has repeatedly held
that in the context of a variance proceeding, an “intention” to
file for site—specific relief does not represent a compliance
plan justifying long—term variance relief. Modine Manufacturing
v. IEPA, PCB 79—112, August 18, 1982; Modine Manufacturing v.
IEPA, PCB 85—59, May 16, 1985; Borden Chemical v. IEPA, PCB 82—
82, December 5, 1985. Consequently, General Tire’s “possible
intention” to file a site—specific regulatory proposal does not
represent a compliance plan to support a multi—year variance.
With regard to Method No. 3, it is clear that General Tire
has not committed itself to this method as its compliance plan.
In fact, in General Tire’s Post—Hearing Brief, General Tire
states that it could agree to install Method No. 3 (Br. 1, p.
32). But then it states that it could choose (because of the
cost of the Ilmberger System) to request the Board to adopt a
site—specific rule, i.e., Method No. 2 (Br. 1, p
.
33). Thus, it
is clear, based on testimony at hearing and from General Tire’s
Post—Hearing and Reply Briefs, that General Tire considers the
cost for Method No. 3 to be economically unreasonable (Br. 1, p.
27). For these reasons, although General Tire presented a lot of
evidence regarding the description and cost of Method No. 3, the
Board finds that General Tire is not committed to Method No. 3 as
an alternative compliance plan to water—based outside
lubricants. The Board makes no finding as to whether or not
sufficient evidence has been presented regarding the accuracy of
the cost estimate for Method No. 3, which was challenged by the
Agency. Therefore, the Board makes no finding as to whether or
not Method No. 3 is economically unreasonable.
The Board has previously held that contemplation of a
proposal for regulatory relief does not constitute a compliance
plan (Citizens Utilities Company of Illinois v. EPA, PCB 85—95,
April 10, 1986; City of Mendota v. Illinois Environmental
Protection Agency, PCB 85—182, July 11, 1986). Since General
Tire has not committed itself to any of the three (3) methods for
compliance presented at hearing, the Board finds that General
Tire has not presented a compliance plan. Therefore, the Board
is not able to grant variance relief in this case, where the
relief is not conditioned upon identification of and commitment
to a compliance plan.
HARDSHIP
Section 35 of the Environmental Protection Act (“Act”)
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grants authority to the Board to grant a variance whenever it is
found, upon presentation of adequate proof, that compliance with
any rule or regulation, requirement or order of the Board would
impose an arbitrary or unreasonable hardship. Ill.Rev.Stat.
1985, ch. 111—1/2, par. 1035. Section 37 of the Act places the
burden of proof on the person seeking a variance.
The standard for granting a variance regarding the issue of
hardship was reviewed in City of Mendota v. Pollution Control
Board and IEPA, No. 3—86—0549, Third District, Slip. Op., October
1, 1987 (hereinafter “Mendota II”). The Mendota II court stated
that:
In granting or denying a variance the Board
must balance individual hardship against
environmental impact (Monsanto Co. v. Pol-
lution Control Bd., (1977), 67 Ill.2d 276, 367
N.E.2d 684.) To this end the Board requires
that one who seeks a variance provide:
“An assessment, with supporting
factual information, of the environ-
mental impact that the variance will
impose on human, plant, and animal
life in the affected area, includ-
ing, where applicable, data des-
cribing the existing air and water
quality which the discharge may
affect;” 35 Ill. Adm. Code Section
104.121(g).
Id. at p. 7
In addition, the Board requires that one who seeks a
variance also provide:
1. A discussion of the availability of
alternate methods of compliance, the
extent that such methods were studied,
and the comparative factors leading to
the selection of the control program
proposed to achieve compliance. 35 Ill.
Adm. Code Section 104.121(i)
2. A concise factual statement of the
reasons the petitioner believes that
compliance with the particular provisions
of the regulations or Board Order would
impose an arbitrary or unreasonable
hardship. 35 Ill. Adm. Code Section
104. 121(k)
85— 596
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The outside lubricant used in General Tire’s operations
contain volatile organic material (VOM). Four individual spray
booths discharge through a common exhaust duct (Ex. 1).
In General Tire’s Post—Hearing Brief, it is stated that
“General Tire’s emissions do not interfere with the maintenance
of ambient air quality standards” (Br. 1, p. 30). General Tire
also points out that Jefferson County has always been designated
attainment for ozone (Br. 1, p. 29) and there has not been a
monitored air quality violation in Jefferson County in the last
five years (Br. 1, p. 30). This argument is insufficient.
General Tire has not complied with the requirement of an
assessment of the environmental impact that a variance would
impose on human, plant, and animal life in the affected area. If
a variance is not granted and General Tire complied with Sections
215.462 and 215.465(b), General Tire has testified that VOM
emissions would be reduced from its plant by 170 tons during the
7—month ozone season (Tr. 183—84). This is based on VOM
emissions for 1986 of 360 T/y. Based on projected 1987 VOM
emissions or the projected maximum of 455 T/y, the reduction
during the 7—month ozone season would be 193 tons and 215 tons,
respectively. General Tire failed to present an environmental
assessment on the effect that 215 tons of VOM emissions would
have on human, plant, and animal life in the affected area during
the 7-month ozone season. Since General Tire has not presented
such assessment, it has failed to meet its burden as established
by Section 104.121(g).
With regard to the availability of alternate methods of
compliance, the Agency contends that General Tire did not present
documentation of a thorough investigation (Br. 2, p. 5). The
Agency also contends that insufficient information was presented
by General Tire to determine that the fully automatic limberger
Spray Booth/Incineration System (Method No. 3) was required to
achieve compliance with the Board’s regulations (Br. 2, p. 5).
The Agency points out that no testing information or calculations
were presented to support General Tire’s assertion that the
present capture efficiency is only 35—50 percent. Also, no
information was presented as to which spray booths General Tire
investigated, and why it rejected all but the Ilmberger System
(Br. 2, p. 5). In addition, the Agency claims that less costly
approaches, such as the High Thermal Recovery Systems, as well as
the Combined Carbon Adsorption Afterburner System, are available
(Br. 2, p. 5).
General Tire counters the above claims of the Agency by
pointing out that there is absolutely no evidence in the record
regarding the High Thermal Recovery Systems or the Combined
Carbon Adsorption Afterburner System (Br. 3, pp. 5—6). General
Tire also claims that the real costs of compliance are those
necessary to assure 90 percent capture efficiency (Br. 3, p.
6). It claims that “it takes approximately thirty minutes for 90
85—59 7
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percent of the C—261 solvent to evaporate off the green tires”
(Br. 3, p. 6). General Tire also argues that the Agency made no
attempt to raise a factual issue as to General Tire’s evidence
regarding capture efficiency of existing equipment (Br. 3, p. 7)..
In accordance with Section 37 of the Act, General Tire bears
the burden of proof that alternate methods of compliance do not
exist. This burden is not on the Agency, but on the person
seeking a variance (Mendota II). If the record is insufficient
in this regard, then the petitioner has not met its burden of
proof.
With regard to General Tire’s argument that it takes
approximately thirty minutes for 90 percent of the C—26l solvent
to evaporate off the green tires, the Board takes note of the
fact that this data was obtained at ambient temperature in still
air (Tr. 177). Clearly these are not the conditions at which
Ilmberger proposes to operate its drying ovens, since a two
minute residence time is provided at a temperature of 120 to 160
degrees Fahrenheit (see Ex. 21). In reviewing the information
presented by General Tire, it appears to the Board that the only
additional equipment required is a drying oven, an incinerator,
and miscellaneous ducting and conveyors. The Board is not making
a finding as to exactly what equipment is required, since that
burden is on General Tire. But the Board does find, in agreement
with the Agency contentions, that General Tire has not borne its
burden of presenting sufficient information to conclude that
alternative, less costly compliance plans are not available.
General Tire argues that denial of the requested variance
from the December 31, 1986 Compliance Plan deadline would impose
an arbitrary and unreasonable hardship on General Tire because
General Tire must test water—based lubricants before committing
to use them in production. General Tire also argues that
requiring General Tire to install the Ilmberger/Incinerator
Control System (Method No. 3) would impose an arbitrary and
unreasonable hardship because the cost of such a system is not
economically reasonable.
Since the Board has determined that insufficient information
was presented as to whether or not alternative, less costly
compliance plans are available, it has not reached the issue of
whether the Ilmberger/Incinerator System is economically
reasonable. The Board agrees with General Tire that it must test
water—based outside lubricants before committing to use them in
production. But the Board notes that General Tire has been
testing such lubricants since the early 1970s, and that is uses
such a lubricant at its North Carolina plant. The Board also
notes that General Tire concluded in March, 1986, that it could
not achieve compliance by the December 31, 1987 deadline with the
water—based outside lubricant option. Therefore, the Board does
not find that denial of the requested variance from the December
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31, 1986 Compliance Plan deadline would impose an arbitrary and
unreasonable hardship on General Tire. Rather, the Board finds
that General Tire’s situation is similar to the “far from unusual
difficulty of not providing sufficient time to finish your plans,
order the equipment and deliver and install such equipment in
order to meet a specific compliance date” (GTE Automatic
Electric, Inc. v. IEPA, PCB 80—225, September 3, 1981). As in
GTE, the Board holds that inadequate planning by General Tire for
a variance is not a basis for granting a variance from
compliance.
General Tire has failed to present an assessment of
environmental impact as required by Section 104.121(g). General
Tire has failed to adequately discuss the availability of
alternate methods of compliance as required by Section
104.121(i). And General Tire has failed to provide sufficient
time to finish its plans in order to meet the specified
compliance dates in the Board’s regulations. Therefore, the
Board concludes that General Tire failed to meet its burden of
showing an arbitrary or unreasonable hardship and its request for
variance is denied.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The December 30, 1986, Petition by General Tire, Inc., for
Variance from 35 Ill. Adm. Code Sections 215.466(b), 215.462 and
215.465(b) is hereby denied.
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
Chairman J.D. Dumelle dissented and Board Member John Marlin
concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the abo e Opinion and Order was
adopted on the /7~day of ________________________, 1987, by a
vote of
J~/
4~L7~77.
~
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
85—59 9
