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