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