ILLINOIS POLLUTION CONTROL BOARD
    September 15,
    1976
    INTERNATIONAL HARVESTER COMPANY,
    Petitioner,
    PCB
    75—271
    ENVIRONMENTAL PROTECTION AGENCY,
    Respondent.
    Mr. Alan
    I.
    Becker,
    Kirkland
    & Ellis,
    appeared on behalf of
    International Harvester Company;
    Mr. Michael
    R.
    Berman,
    appeared on behalf of Intervenor Citizens
    For A Better Environment;
    Mr. John Pal±ncsar, appeared on behalf of the Illinois Environmental
    Protection Agency.
    OPINION
    AND
    ORDER OF THE BOARD
    (by Mr. Goodman):
    This matter comes before the Board upon Petition for Variance
    filed by International Harvester
    (Harvester)
    for its coke facilities
    located at its Wisconsin Steel Division Plant
    in Chicago, Illinois.
    On August
    20,
    1975,
    Citizens For A Better Environment
    (CBE)
    filed a
    Petition for Leave to Intervene, which was granted on September
    5,
    1975.
    Hearing was held herein on April
    15,
    1976,
    at which time
    Harvester filed an Amended Petition for Variance.
    On May
    4,
    1976,
    the Hearing Officer herein reinstated the September 12, 1975
    Motion to Dismiss, and ordered that said Motion be taken by the
    Board with the
    case.
    The Board hereby denies CBE’s September 12,
    1975 Motion
    to Dismiss.
    On May
    10,
    1976,
    a Stipulation of Facts between
    the Illinois
    Environmental Protection Agency
    (Agency)
    and Harvester was filed
    and the Agency’s final recommendation
    in this matter was
    filed on
    June
    1,
    1976.
    Harvester has previously been granted variance for these
    facilities
    in PCB 73-176, which variance was extended by the Board
    until July 26,
    1975 in PCB 74-277.
    Harvester here seeks
    an extension
    of time to complete the installation of
    a pushing control
    system on
    coke battery
    #4 and to allow the retirement of coke battery
    #3.
    All
    23—441

    —2--
    of the technical information appropriate to this request for variance
    is contained in the Opinions and Orders
    in PCB 73-176 and PCB 74-277
    and will,
    therefore,
    not be recited here.
    Harvester has essentially
    complied with the Orders in the two previous variances and is expected
    to have its coke side shed installed and operative by August
    31,
    1976
    (Exhibit B, Agency Amended Recommendation).
    Harvester plans
    to
    retire
    #3 coke battery by October 31,
    1976
    at the latest, which is
    some nine months
    in advance of the date envisioned
    in PCB 74—277.
    The Agency recommends that the petition be granted subject to certain
    conditions,
    including a program of coke oven door and jam maintenance
    as indicated
    in Exhibit B of the Agency Recommendation, compliance
    progress reports
    to be sent to the Agency,
    and the submission of
    a
    performance bond.
    In general,
    the variance will be an extension of time to complete
    the program previously approved by the Board and to prevent unreason-
    able hardship to Petitioner.
    Considering the good faith efforts
    of Harvester to comply with the conditions of the previous variance
    and the continuing unreasonable hardship to the Petitioner should
    the variance petition be denied,
    the Board finds
    an extended variance
    to be appropriate in this case.
    Variance from Rule 203(d) (6) (B) (ii) (bb)
    relative to coke pushing
    and quenching will be granted for battery #3 until October
    31,
    1976,
    or until
    the coke side shed for battery #4 becomes operational, or
    until the signing of a coke supply contract to replace the capacity
    of battery
    #3,
    whichever comes first.
    Variance from Rule 203(d) (6)
    (B)
    (ii) (bb) with regard to coke pushing and quenching
    for coke battery
    #4 will be granted until August 31, 1976 or until the enclosed pushing
    and quenching operation becomes operational, whichever comes first.
    Variance from Rule 203 (d) (6) (B) (iv) (aa),
    concerning coke oven door
    and jamb emissions, will be granted until May 31,
    1977 under the
    condition that the Agency—suggested coke oven door and jamb leakage
    maintenance program be instituted as indicated in Exhibit D of the
    Agency’s Amended Recommendation.
    Variance from Rule 202(b)
    for coke
    battery #3 stacks will be granted during the term of the variance for
    coke pushing and quenching of that installation.
    The Train Decision
    Citizens for a Better Environment
    (CEE)
    is an Intervenor in
    this action and did not enter into the Stipulation of Facts submitted
    by the Agency and Harvester.
    CBE raises the questian of the effect
    of the U.
    S. Supreme Court’s decision in Train v.
    NRDC,
    421 U.S.60
    (1975)
    ,
    upon the State’s power to grant variances under the Illinois
    Environmental Protection Act
    (Act).
    Specifically, CBE alleges
    that,
    because the date has passed for compliance with the Federal Clean
    Air Act for the type of emissions involved herein,
    the Board has no
    power to grant the requested variance.
    A variance in this case wou1d~
    CBE contends, be
    a revision of the Illinois State Implementation Plan
    23
    442

    (SIP)
    ,
    subject to the approval of the Administrator of the United
    States Environmental Protection Agency
    (U.S.
    EPA).
    CBE argues that
    because Harvester~s plant contributes to the Chicago area’s failure
    to meet the national ambient air quality standards for particulate
    matter,
    the Board is precluded by the
    Train
    (supra)
    decision from
    granting the variance.
    Indeed, CEE alleges that the Board is without
    power to grant any variance beyond the attainment date for national
    primary ambient air quality standards for particulate matter
    in the
    Chicago metropolitan area.
    The Board finds that Harvester’s emissions
    from the coke oven
    installations do contribute to the violation in the Chicago area of
    the national primary ambient air quality standards for particulate
    matter.
    Harvester~s attempt
    to aggregate particulate readings for
    all sampling stations in the Cook County Illinois area in order to
    prove ambient air quality for the area approximate to Harvester’s
    plant
    is rejected
    as being nonresponsive to the problem of ambient
    air quality.
    Following
    the
    Train decision,
    in King-Seeley Co.,
    Thermos
    Division v,
    EPA,
    16 PCB
    505,
    the Board stated:
    “The April
    16,
    1975 decision
    in Train
    v. N,R.D.C,
    43
    U,S.L,W.
    4467
    (U.S. April 16,
    1975),
    gives us
    several tests which we will follow in all cases
    of variances
    from the Air Pollution Regulations.
    (Our authority
    to so act is
    clear under Sections
    5(b),
    5(c)
    and 26 of the Environmental Protection
    Act,
    Ill.
    Rev,
    Stat.
    Ch,
    111—1/2,
    Sec.
    5(b),
    5(c),
    26
    (1975)
    As we interpret the Court’s decision,
    we shall not,
    in essence,
    grant variances beyond July
    31,
    1975
    which result in violations of the Primary Ambient
    Air Quality Standards adopted by the Board in R72-7,
    May
    3, 1973”
    The Board then went forward to state that a petition
    for variance
    would be deemed inadequate under Procedural Rule 401(c)
    unless the
    following
    showing
    were
    made:
    1.
    Whether
    the
    ambient
    air
    quality
    of
    the
    area
    affected
    by
    the
    variance
    meets
    the
    Primary
    Ambient
    Air
    Quality
    Standards
    adopted
    by
    the
    Board;
    2.
    If
    the
    emission
    source
    is
    contained
    within
    an
    area
    which
    does
    meet
    or
    exceed
    Ambient
    Air
    Quality
    Standards,
    that
    its
    emissions,
    alone
    or
    in
    conjunction
    with
    other
    sources,
    will not cause such
    a violation, or
    cause
    a
    failure
    to maintain the applicable
    standards;
    23
    443

    —4—
    3.
    If the emission source is contained within
    an area which does not currently meet or
    exceed Ambient Air Quality Standards,
    that
    its emissions,
    alone or in conjunction with
    other sources, do not cause or contribute to
    such a violation.
    This policy has been generally followed by the Board up
    to the present
    time.
    Upon reconsideration
    of the situation,
    however, the Board
    hereby overturns
    its previous policy and interpretation of the impact
    of the Train decision upon the Board’s power to grant variances under
    the Act.
    When the Illinois General Assembly,
    in its wisdom, enacted the
    Environmental Protection Act,
    it included
    a provision under Title 19
    which permits
    the Board
    to grant individual variances beyond the limi-
    tations prescribed in the Act.
    The individual variances are restricted
    to situations where the Board finds that compliance with any rule or
    regulation,
    requirement or order of the Board would impose an arbitrary
    or unreasonable hardship.
    Section
    36 of the Act authorizes the Board
    to impose upon variances such conditions as the policies of the Act
    may require.
    The variance section of the Act has proven to be a very
    useful tool
    in the fight against pollution.
    The
    provision allows the
    Board
    to review individual situations and grant justified temporary
    exemptions from the Rules and Regulations, while, at the same time,
    it permits
    the Board to impose such conditions upon these exemptions
    as the policies
    of the Act may require.
    The Board is a creature of State Law.
    Any act by the Board
    must necessarily be limited to state-wide authority and cannot be
    construed to affect federal law or authority.
    A variance granted
    by the Board under the Environmental Protection Act does not and
    cannot protect the recipient from federal actions under federal acts
    unless that variance is ratified by the federal government through
    the U.S.
    EPA.
    It is the opinion of the Board that the Supreme Court
    in the Train case
    (supra)
    acknowledged that situation by insisting
    that U.S
    -
    BPI\ enc1or~eany van
    ance
    qra
    nt ed
    by
    he ~Ia
    t~c
    of Grorqi a
    in
    order
    for
    that variance
    to be implemented as
    a chanyc in
    the
    State
    Implementation
    Plan
    and,
    therefore,
    act as
    a
    shield
    against
    federal
    prosecution
    under
    the
    Clean
    Air
    Act.
    So
    far
    as
    the
    Board
    is
    aware,
    none
    of
    the
    variances from the
    Illinois
    Act
    and
    Regulations
    granted
    by
    the
    Board
    thus
    far
    have
    ever
    been submitted to or ratified by U.S. EPA as a chu~~ein the Illinois
    State Implementation Plan.
    It is thus apparent that any variance
    granted by this Board has been and
    is a variance from State Regulations
    only.
    By the same token,
    the Board can find no reason why it may
    not grant variances from its own regulations,
    as mandated in the
    Act,
    for local situations
    so long as it does not purport to grant
    variance from federal legislation or regulation.
    Under such a
    variance, a Petitioner would still be subject to enforcement action
    by U.S.
    EPA pursuant to Section
    113 of the Clean Air Act and by
    citizens pursuant to Section
    304 of the same Act.
    2~
    444

    The Board must nevertheless find adequate proof that denial of
    a variance would impose an arbitrary and unreasonable hardship.
    There can be no argument that achievement of ambient air quality
    as
    dictated by both the state and federal regulations must be of primary
    importance
    in any Board decision concerning a variance petition.
    In
    this case the Board
    finds that Harvester has followed a program of
    compliance under previous variances in
    a good faith manner and
    is
    therefore entitled, under the circumstances,
    to the requested exten—
    sion in order to complete the aforementioned compliance program.
    This Opinion constitutes the findings and fact and conclusions
    of law of the Board in this matter.
    ORDER
    IT
    IS THE ORDER OF THE POLLUTION CONTROL BOARD that International
    Harvester Company be granted variance from Rule 202(b)
    and Rule
    203
    (d) (6) (B) (ii) (bb)
    and Rule 203(d) (6) (B) (iv) (aa) with regard to
    their
    coke oven operations of the Wisconsin Steel Division Plant in Chicago,
    Illinois until October
    31, 1976 with respect to pushing operations
    and July
    31,
    1977 with respect to door leakage under the following
    conditions:
    1.
    Variance from Rule 203(d) (6) (B) (ii) (bb) with respect
    to battery
    #3 shall terminate
    in the event that a coke
    supply contract
    to replace the capacity of battery #3
    is
    signed or the coke side shed for battery #4 becomes opera-
    tional, prior to October 31,
    1976.
    2.
    Variance from Rule 203(d) (6) (B) (ii) (bb) with respect
    to coke battery #4 shall terminate
    in the event the coke
    side shed for said battery #4 becomes operational prior
    to
    August 31,
    1976.
    3.
    Harvester shall
    conduct a proqram of coke oven door
    and jamb maintenance
    to minimize emission as outlined in
    Exhibit
    D of the Agency’s Amended Recommendation
    filed
    June
    1,
    1976, which Exhibit D is hereby incorporated by
    reference as
    if fully set forth herein.
    4.
    Variance from Rule 202(b) with respect to coke battery
    #3 stacks shall terminate
    in the event the coke side battery
    for battery #4 becomes operational or until
    a coke supply
    contract is signed prior to October 31,
    1976.
    23
    445

    —6—
    5.
    Harvester shall submit reports
    to the Agency indicating
    the progress of its final control program,
    said report to be
    sent
    to:
    Illinois Environmental Protection Agency
    Control Program Coordinator
    2200 Churchill Road
    Springfield,
    Illinois
    62706
    6.
    Harvester
    shall
    submit
    a
    performance
    bond
    to
    the
    Agency
    in
    a
    form
    acceptable to the Agency in the amount of $25,000.00
    no
    later
    than
    21
    days
    from
    the
    date
    of
    this
    Order,
    said
    bond
    to
    be
    submitted
    to
    the
    Control Program Coordinator.
    7.
    Harvester
    shall,
    within
    21
    days
    of
    the
    date
    of
    this
    Order,
    execute and forward to the address
    as shown
    above,
    a Certificate
    of Acceptance
    in the following form:
    CERTIFICATION
    I,
    (We)
    ,
    ______________________________ having read
    the
    Order
    of
    the
    Illinois
    Pollution Control Board in
    case
    No.
    PCB
    75-271,
    understand and accept said Order,
    realizing that such acceptance renders all terms and
    conditions thereto binding and enforceable.
    SIGNED
    TITLE
    DATE
    Mr.
    Dumelle
    dissented.
    Mr.
    Zeitlin
    concurred.
    23
    446

    —7—
    I,
    Christan
    L.
    Moffett,
    Clerk
    of
    the
    Illinois
    Pollution
    Control
    Board,
    he~y
    certify
    th
    ab~ve Opinion
    and
    Order
    we
    e
    adopted on
    :ihe
    /
    day
    of~?~~L~
    1976,
    by
    a
    vote
    of
    _____
    Illinois
    Pollution

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