ILLINOIS POLLUTION CONTROL BOARD

November 26

,

1975

CONTINENTAL

CAN

COMPANY,

INC.,

Metals Division,

Petitioner,

v.

)

PCB 75—199

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Mr. Harvey M.

Sheldon, Plunkett,

Nisen, Elliott

& Meier,

appeared on behalf of the Petitioner;

Mr.

Peter

E. Orlinsky, appeared on behalf of the Respondent.

OPINION AND ORDER OF THE BOARD

(by Mr. Goodman):

This matter comes before the Pollution Control Board

(Board)

upon the petition of Continental Can Company,

Inc.

(Can)

for variance from Rule 205(f)

of the Air Regulations

until January

1,

1976.

Can seeks this variance for its

manufacturing plant, Continental Can Company Plant No.

64

(North Grand Plant), which is located at 1657 North Kilpatrick,

Chicago, Cook County,

Illinois.

An additional information

order was issued on May 15,

1975.

The Environmental Protec-

tion Agency

(Agency)

filed its ~ReconmiendationAugust 28,

1975.

On October

17,

1975,

a hearing was held at which a

“Stipulation for an Agreed Order” was submitted to the

Board.

The North Grand Plant has nine coat lines and eight

litho press lines for the manufacture of cans which are the

subject of this petition.

These lines manufacture some 245

million cans per year ranging from very small to 2.5 gallons

in size.

The cans are intended for use in containing paint,

household and industrial products.

Petitioner consumes

46,000 gallons of enamel,

37,000 gallons of coatings,

and

21,000 gallons of varnishes.

The foregoing include organic

materials and chemical compounds,

e.g., acrylics,

alkyds,

vinyls, phenolics and epoxys.

Depending upon the end use

and contents, each can requires one or more coating, varnish

or enamel,

inside and out.

Petitioner’s Agency-issued operating permit expired on

August 31,

1975.

Included in the permit was

a Project

Completion schedule whereby Petitioner would reduce its use

of organic material in its processes to 20 per cent or less

total volume by May

30,

1975

Rule

205 (f) (2) (D).

19—317

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—2—

Can had been assured by its suppliers that reformulation

of materials was possible and that said reformulated materials

would be available by mid-1975 so as

to allow Petitioner to

reduce its consumption of organic material and achieve

compliance via Rule 205(f) (2) (D) of the Air Regulations.

It

became apparent to Can that in spite of its intensive research

and testing efforts, reformulated coatings would not be

available.

Without these reformulated coatings, Petitioner’s

emissions of photochemically reactive organic materials

exceed the eight pounds per hour standard of Rule 205(f)

of

the Air Regulations.

The extent of violation varies daily

as non-photochemically reactive materials are phased in on

an as-available basis.

Recognizing that compliance through reduction was not

possible by May

30,

1975, Can took the initiative and installed

an 8,000 CFN catalytic fume incinerator unit and heat

exchanger to control emissions on three coater lines.

Petitioner will achieve compliance by January,

1976,

for its

remaining coater lines and eight litho press lines by con-

verting to exempt materials.

Petitioner will have reduced

its total emissions of photochemically reactive materials by

95

of 1970 levels by November 15,

1975.

The Board finds that Petitioner has acted in good faith

and that the actions taken by it toward compliance are

laudable.

The Board recognizes that exempt materials are in

short supply and that to deny this variance would cause

Petitioner unreasonable hardship.

Indeed,

the Board would

ordinarily grant Petitioner’s variance based upon the facts

presented to it.

However, Petitioner’s stipulation is

deficient.

On July 17, 1975,

the Board issued an Opinion in this

matter stating:

Can’s amended petition included an allegation

that Can’s emissions would “not materially inter-

fere with the attainment or maintenance of national

or state ambient air quality standards.”

We hold

that Can’s variance petition states a prima fade

cause of action entitling it to a hearing.

How-

ever, we caution Petitioner that, in said hearing,

it will have the burden of proof in substantiating

its allegation by a preponderance of the evidence.

Petitioner stipulates that it has not “significantly

contributed to deterioration of air quality by reason of the

operations subject to a variance”

(Stip.

7).

The Board

finds that this statement does not meet Can’s burden of

proof under Train v. NRDC 43 USLW 4467.

Such matters involve

the health and general welfare of the citizens of the State.

We cannot accept a stipulation

to the effect that these

19

—

318

---

—3—

emissions do not contribute

to violations of ambient air

quality standards.

The Board must have

a data base on which

such a stipulation is made.

Therefore,

the Board must

reluctantly deny Can’s petition in this matter.

This Opinion constitutes the findings of

fact and

conclusions of law of the Board in this matter.

Mr. Young will submit

a Concurring Opinion.

ORDER

It is the Order of the Pollution Control Board that

Continental Can Company,

Inc.’s petition for variance from

Rule 205(f)

for its North Grand Plant be and is, hereby,

dismissed without prejudice.

I,

Christan

L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify the above Opinion and Order

were adopted on the

~L~’

day of

~1

~

,

1975 by

a vote of

4,~p

Cth~L.

~t~O1~

Illinois Pollution C

ol Board