May 15,

1975

OWENS-ILLINOIS, INC~,

)

an

Ohio Corporation,

)

Petitioner,

)

PCB 75—7

Respondent,

OPINION AND ORDER

OF THE

BOARD

(by Mr, Zeitlin):

This Variance case was conurtenced on

January

6,

1975, by

the filing of a “Petition to Extend Variance” by Owens-

Illinois, mc, (Owens—Illinois)

This Petition relates to the

Owens—illinois Shabbona Sand Plant,

located in~Serena,

LaSalle County, Illinois, and recites that it seeks extension

of

a Variance previously granted by the Board in Owens-

Illinois, mc, Shabbona Sand Plant

v.

EPA, PCB 73-237,

9. PCB

~

Owens-Illinois

requests that

th..e Board incorporate into this proceeding the

record

i.n the earlier matter,

First, the Board must note that the Petition in this

matter is improperly titled.

Although the Petition is

styled as one to “Extend Variance”,

the relief sought here

is not identical to that granted by the Board in the earlier

case

re...gar••ding Petitioner’s ShabbonaSand Plant,

In that

case

the.,• Board granted

a

Variance until March

1,

1974, from

Rule 3-3,111 of the Old Rules and Regulations Governing the

Con...trol of

‘

Air Pollution,

and from Rules 104,

104(b),

114,

203(a)

and 203(i) (2)

of Chapter

2: Air Pollution of the

Board’s Rules and Regulations.

9 PCB at 172,

On the Other

hand in Part

3,

“Statertent of Relief Sought” of

the’ Variance

Petition submitted in

t”he instant case, Petitioner additionally

seeks Variances from Section 9(a) and

9(b) of the ~Environmenta1

Protection Act, and also from Rules

103 (b) (2) and 208 of

Chapter

2,

Ill, Rev,

Stat,

Ch, 111 1/2,Sections 1009 (a),

1009(b); PCB Regs~, Ch.

2, Rules 103(b) (2),

208,

it is

obvious

that Petitioner here seeks a much broader shield

from

enforcement

than

was

granted

in

the

earlier Petition,

As

will

be

discussed

below,

this

fact

alone

would serve

to

render

the

Petition

in

this

matter

inadequate,

and require

~t

~srn~a1

B~i~first, there are other ~ssues

raised

here which nerit our discussion and treatment.

17—19

---

—2—

The earlier Variance in this matter was granted with

regard to an existing direct rotary dryer for sand drying at

the Shabbona Sand Plant.

Variance was granted to allow

Petitioner sufficient opportunity to install, on the existing

dryer, a W.W. Sly scrubber to control particulate emissions.

Petitioner was to have installed the scrubber on its old

dryer by March

1,

1974.

As part of its Order in the earlier

case the Board imposed upon Owens—Illinois several conditions

regarding that proposed compliance plan:

a.

Petitioner was to have submitted progress

reports to the Agency on November

1,

L973 and January

1974 regarding progress made towards completion of the

compliance project.

b.

Petitioner was to have applied for and

obtained all necessary permits from the Agency.

c.

Petitioner was to have executed an

and operation of the wet scrubber.

d.

Petitioner was to have performed, within

~30

a stack test,

the results of which were to have been

forwarded to the Agency.

Progress reports were in fact submitted to the

Agency on September 26,

1973 and October 26, 1973.

Petitioner complied with no other conditions of our

earlier Order.

In fact, Petitioner never did install a

scrubber on its old dryer,

as was envisioned in our

earlier Order.

Instead, Petitioner constructed and

installed

a new rotary dryer, which was to be ready for

start up on January

1,

1975; Owens-Illinois now proposes

to use the scrubber ordered as a part of its compliance

plan under our previous Order in conjunction with this

new dryer.

By the terms of its own Petition, Owens—

Illinois has failed to meet the conditions

subject to

which the prior Variance was granted.

(We do not,

however, here reach a decision on the merits as to

Petitioner’s liability under the earlier performance

bond).

---

—3—

Owens-Illinois claims that these failures are the

result of conditions beyond its control.

Petitioner states

that its wet scrubber was not delivered with all components

and equipment until February,

1974;

by that time, Petitioner

had already elected to phase out the existing dryer, and

contemplated that the new dryer would be in operation on or

about August l~, 1974.

Petitioner estimated that it could

not have the scrubber completely operational on the old

dryer until May

1,

1974.

Petitioner further determined that

as it had already ordered the new dryer,

it would be required

to ‘begin dismantling the scrubber from the old dryer after

only approximately 45 days of operation,

in order to have it

reinstalled on the new dryer by August 1,

1974.

Petitioner

thus determined that it would be uneconomical to complete

the work required for compliance under our earlier Order,

and did not do

so.

Thereafter, Owens—Illinois experienced, according to

the Petition in the instant case, considerable delay in the

installation of its new dryer.

Petitioner states that the

new dryer was not to have been ready for start up until

January

1,

1975, and would require two months for complete

debugging and stack testing,

so that it would not be fully

operational until approximately March

1,

1975.

It is unclear in the instant Petition whether the new

dryer has in fact become operational.

The Petition states

“that the new dryer will not be ready for start up until

January

1,

1975”, although the Petition itself was filed

before the Board on January

6,

1975.

It is clear that by this PetitionOwens—Illinois seeks

a shield from enforcement for a period which has already

passed.

Petitioner delayed filing its Petition here for

over nine months after the prior Variance had expired.

Were

the Board to grant this Variance,

it would relate to a

period already ended, and to

a time more than a year past.

We do not elect to grant such a shield.

In similar past cases, the Board has dismissed Variance

Petitions for prior periods as moot.

Owens-Illinois should

be familiar with that fact.

See, Owens—Illinois,

Inc.

v~.

~,

PCB 70-31,

2 PCB 397

See also,

City of Highland v.

EPA, PCB 71—181, 71—284

539

(1971); National Gypsum Co.

v.

EPA, PCB 71—99,

(1971) (The Board there stated:

Variance is no longer necessary.

whether a Variance should be granted is now moot.

17— 21

---

—4-.

The question of mootness with regard to Variance for

an expired period has been explored by this Board several

times.

A discussion of

the

issue is particularly apt where,

as here,

Petitioner seeks immunity fo~past occurrences,

The

issue is properly described by Mr. Currie in a somewhat

similar case:

“We do not believe the case is moot in the

technical sense, since a Variance grant today would immunize

the company from any further prosecution

for delay.,.”

Midstate Foundry Co,

V.

EPA, PCB 70-53,

1 PCB 355

(1971)

Ttio~~Tsmissed,byi~licationwithout prejudice).

The resolution of the problem was also reached by

Mr. Currie,

in two subsequent cases:

The period for which the Variance

was requested has also expired, and there

seems to be no present controversy as whether

the late filing was justified,

In the unlikely

event an enforcement action is filed on the

basis of,, ,delay,

we ~canconsider the company’s

justification at that time.

On the present facts

the Petition is “dismissed as moot”,

Babitrite Products_Co,

v,

EPA, PCB 72-294,

5 PCB 643

(1972) (emphasis added),

in an analogous case, when responding

to a Motion to Withdraw Petition,

Mr. Currie stated,”.

the installation of the equipment leaves the company seeking

nothing from the Board at this time,

The Opportunity will

remain for either party to seek any relief that may seem

~

through the filing of a Complaint,

Petition fot Variance,

or otherwise,”

George E, Hoffman

&

Scna~:Ii~e,v...EPA, PCB 71-204,

2 PCB 371(1971) (emphasis added).

The analysis presented by those cases is applicable here,

Petitioner Owens-Illinois has no need for Variance for its

futute operations, and has not demonstrated a need for one

relating to past operations.

On these grounds alone, we would

dismiss the Petition,

Further, Petitioner’s unilateral

decision, based on economic considerations,

to’ ignore the

conditions imposed by our prior Order would weigh heavily

against the grant of

a further Variance.

The Environmental

Protection Act requires a showing of progress as a condition

for the grant of a Variance Extension,

and it is difficult

to determine whether Petitioner actively sought to achieve

such progress during the now-past period for which it seeks

a shield from enforcement.

The Board has previously stated

that a “Petitioner is not to cc~cludeunilaterally that the

cc~3itionsto

a Variance

are meaningless or

unnecessary.”

pCompan~~PA,

PCB

75—18, April 10,

1975(Opinion

at

3).

---

—5—

Finally, returning to the problem we noted above

regarding our treatment of this matter as

a Petition for Variance

Extension,

we find that the Petition must also be dismissed

for inadequacy

on that basis.

It is noted above,

the instant

Petition seeks considerably more protection than was granted

in the earlier Variance.

The instant Petition alleges as

unreasonable hardship only the “install-dismantle—reinstall

dilemma” described above with relation to the new and old

dryers;

the Petition does,

however, make reference to the

earlier record regarding the Shabbona Sand Plant.

But that

record,

even when taken in conjunction with the instant

Petition, certainly does not contain allegations of hardships

sufficient on their face to justify the granting of

a broader

Variance protection,

as is asked here.

What is sought here

is in reality a new Variance, with expanded coverage, based

on the old hardship.

That hardship would be insufficient,

taken alone,

to justify such an action by the Board.

No hearing was held in this matter.

The Agency

or denied.

This Opinion constitutes the findings of fact and

ORDER

IT IS THE ORDER of the Pollution Control Board that the

prejudice.

I, Christan L. Moffett,

Clerk of the Illinois Pollution

Control Board hereby certify that the above Opinion and

Order of the Board were adopted on the

‘1

day of

(~\

,

1975 by a vote of __________to

Illinois PollutionL~ntro1 Board

17

—