ILLINOIS POLLUTION CONTROL BOARD
    January 21, 1999
    WHITE CAP, INC.,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 99-41
    (Variance - Air)
    SUPPLEMENTAL OPINION AND ORDER OF THE BOARD (by C.A. Manning):
    On November 19, 1998, the Board granted White Cap, Inc.’s (White Cap) petition for
    variance extension from the capture efficiency (CE) testing requirements under 35 Ill. Adm.
    Code 218.105(b), 218.205(c)(2), and 218.211 until December 31, 1999. White Cap, Inc. v.
    IEPA (November 19, 1998), PCB 99-41. White Cap requested the extension so that it could
    either replace its remaining six non-permanently totally enclosed (non-PTE) lines with
    permanently totally enclosed (PTE) lines and negate the requirement to conduct CE testing or,
    if it does not replace the lines, conduct CE testing pursuant to 35 Ill. Adm. Code 218.
    This matter comes before the Board on a motion for modification (Mot. at __) filed
    December 22, 1998, by White Cap. In the motion, White Cap requests that the Board amend
    its November 19, 1998 order to mandate that the variance terminate on the date a final CE test
    report must be submitted to the Illinois Environmental Protection Agency (Agency) pursuant to
    a final, effective Clean Air Act Permit Program (CAAPP) permit, but in no case later than
    December 31, 1999. Mot. at 3. The Agency filed its response (Resp. at __) to the motion on
    January 6, 1999, and affirmed its support for White Cap’s motion. The Board grants White
    Cap’s motion to modify.
    The basis for White Cap’s motion is a change in circumstances since the November 19,
    1998 grant of variance,
    i.e.,
    the conclusion of certain negotiations with the United States
    Environmental Protection Agency (USEPA). White Cap seeks to modify a condition of the
    variance order to enhance its consistency with federal law as embodied in the administrative
    order by consent (consent agreement) between it and the USEPA.
    During the pendancy of the variance petition, White Cap and the USEPA were in the
    process of negotiating an extension of its consent agreement. As a condition to the variance
    extension to maintain consistency with state and federal law, the Board, in its November 19,
    1998 order, required White Cap to obtain an extension of the consent agreement with the
    USEPA by January 19, 1999. White Cap, Inc. v. IEPA, PCB 99-41, slip op. at 13. The
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    Board’s order required White Cap and the USEPA to extend the consent agreement until
    December 31, 1999. White Cap, Inc. v. IEPA, PCB 99-41, slip op. at 13.
    White Cap states it ultimately finalized a consent agreement with the USEPA, but that
    the consent agreement does not contain a “blanket extension” until December 31, 1999, as
    required by the Board’s November 19, 1998 order. Mot. at 2. Rather, the consent agreement
    with USEPA gives White Cap up to 90 days after the issuance of a final, effective CAAPP
    permit to perform CE testing and submit a final report to the USEPA and the Agency, but not
    later than December 31, 1999. Mot. at 2, Exh. A. White Cap also maintains that the USEPA
    has agreed to “consider extending the Consent Agreement further to allow White Cap time to
    remove the lines if White Cap subsequently rectifies the problem with the new lines and is able
    to make a firm commitment to replace the remaining non-PTE lines by a date certain.” Mot.
    at 2, Exh. B. Since the consent agreement does not outright extend the variance until
    December 31, 1999, White Cap states that, under the terms of the current variance granted by
    the Board on November 19, 1998, its variance expired on January 19, 1999. Mot. at 2.
    White Cap, therefore, requests deletion of the termination date of January 19, 1999, from the
    Board’s November 19, 1998 order. Mot. at 2.
    To ensure consistency with federal law, White Cap requests that the Board set the
    variance termination date to be consistent with the schedule for CE testing and report
    submission ultimately set forth in White Cap’s CAAPP permit, but in no case later than
    December 31, 1999. Mot. at 2. White Cap requests that the Board not include a condition
    that the variance terminate 90 days after the issuance of the CAAPP permit, as outlined in the
    CAAPP permit, because the USEPA may extend the consent agreement beyond this period of
    time if White Cap subsequently is able to meet the USEPA demands and commit to a specific
    date to remove the lines. Mot. at 2-3. White Cap asserts that any extension of the consent
    agreement will be incorporated into White Cap’s CAAPP permit. Mot. at 3.
    The Agency concurs with White Cap that the Board should strike the January 19, 1999
    variance termination date provision contained in its November 19, 1998 order. Resp. at 3.
    The Agency, therefore, recommends that the Board order White Cap’s variance to terminate
    on a date consistent with the consent agreement agreed to by White Cap and the USEPA.
    Resp. at 3.
    The Board agrees with the parties that modification of the November 19, 1998 order
    will ensure consistency with federal law as required by 35 Ill. Adm. Code 104.122. The
    Board modifies condition 1 of the November 19, 1998 order by deleting the January 19, 1999
    termination date provision. The Board sets the variance termination date to be consistent with
    the schedule for CE testing and report submission set forth in the CAAPP permit, but in no
    case later than December 31, 1999. For the sake of clarity, the Board sets forth below the
    order as modified in its entirety.
    This supplemental opinion constitutes the Board’s findings of fact and conclusions of
    law in this matter.
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    ORDER
    Petitioner, White Cap, Inc., is hereby granted variance from the testing requirements
    found in 35 Ill. Adm. Code 218.105(b), 218.205(c), 218.207, and 218.211 for its facility
    located at 1819 North Major Avenue in Chicago, Illinois. This grant of variance shall begin
    on September 7, 1998, and is subject to the following conditions:
    1.
    The variance terminates on the date a final capture efficiency (CE) test report
    must be submitted to the Illinois Environmental Protection Agency pursuant to a
    final, effective Clean Air Act Permit Program permit, but in no case later than
    December 31, 1999.
    2.
    White Cap shall elect to either conduct CE testing on the remaining non-PTE
    lines, or to replace the non-PTE lines with PTE lines. By August 3, 1999,
    White Cap shall provide the Illinois Environmental Protection Agency with
    written notice of its elected compliance plan. White Cap shall send written
    notice of its elected compliance plan to the following address:
    Deborah J. Williams
    Division of Legal Counsel
    Illinois Environmental Protection Agency
    1021 N. Grand Avenue East
    P.O. Box 19276
    Springfield, IL 62794-9276
    3.
    White Cap shall test its applicable lines for CE pursuant to either the seven
    proposed test methods (Methods 204A through G) or the alternative CE test
    methods (
    i.e.,
    Data Quality Objective or Lower Competency Level) as specified
    in the United States Environmental Protection Agency CE Guidance
    Memorandum dated February 7, 1995.
    4.
    White Cap shall keep daily records of the following items starting on the date of
    this order, including:
    a.
    the amount of coating used in each coating line;
    b.
    the volatile organic material (VOM) content of each coating applied (lb
    VOM/gal of solids); and
    c.
    the weight of VOM per volume of coating solids applied daily on each
    coating line (VOMs, pursuant to 35 Ill. Adm. Code 218.105(e)(2)).
    5.
    White Cap shall prepare a monthly report for Agency inspection on the daily
    records required above. White Cap shall submit one copy of the monthly
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    compliance demonstrations on a quarterly basis to each of the following Agency
    officers:
    Illinois Environmental Protection Agency
    Bureau of Air
    Attention: Compliance Section Manager
    1021 North Grand Avenue East
    P.O. Box 19276
    Springfield, Illinois 62794-9276
    Illinois Environmental Protection Agency
    Division of Air Pollution Control
    Attention: Mel Villalobos
    Intercontinental Center
    1701 First Avenue
    Maywood, Illinois 60153
    If White Cap chooses to accept this variance, within 45 days of the grant of the
    variance, White Cap must execute and forward the attached certificate of acceptance and
    agreement to:
    Deborah J. Williams
    Division of Legal Counsel
    Illinois Environmental Protection Agency
    1021 N. Grand Avenue East
    P.O. Box 19276
    Springfield, IL 62794-9276
    IT IS SO ORDERED.
    Once executed and received, that certificate of acceptance and agreement shall bind
    White Cap to all terms and conditions of the granted variance. The 45-day period shall be
    held in abeyance during any period that this matter is appealed. Failure to execute and
    forward the certificate within 45 days renders this variance void. The form of the certificate is
    as follows:
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    CERTIFICATION
    I (We), __________________________________, hereby
    accept and agree to be bound all the terms of the order of the
    Pollution Control Board in PCB 99-41, granted November 19,
    1998, as modified January 21, 1999.
    ________________________________
    Petitioner
    ________________________________
    Authorized Agent
    ________________________________
    Title
    ________________________________
    Date
    Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
    the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this
    order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 172 Ill. 2d
    R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above supplemental opinion and order was adopted on the 21st day of January 1999 by a
    vote of 7-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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