ILLINOIS POLLUTION CONTROL BOARD

February 14, 1975

SMITH OIL CORPORATION, Peru Terminal,

Cunningham Terminal, Rockford Bulk

Plant,

Petitioner,

v.

)

PCB 74—456

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

OPINION AND ORDER OF THE BOARD (by Dr. Odell)

On December 5, 1974, Smith Oil Corporation (Smith) filed

with the Pollution Control Board (Board) its request for a

variance from the Operating Permit requirement of Rule 103(b) of

the Air Pollution Regulations (Chapter Two) and the storage limita-

tions of Rule 205(a) of Chapter Two. The variance was sought from

February 1, 1973, until March 1, 1975, for three of its facilities

where gasoline and distillate fuel oil are stored and distributed.

Petitioner applied for Operating Permits for the three facilities

in April, 1973; the applications were denied by the Environmental

Protection Agency (Agency) in May. On December 27, 1974, the

Petitioner reapplied for Operating Permits for all three storage

facilities.

The facilities are used to store and distribute gasoline

and distillate fuel oil to an area including the northern half of

Illinois, southern Wisconsin, and parts of eastern Iowa. Smith

also supplies and services rural areas, agricultural bulk plants,

farm communities, service stations, and residential areas. No

refining occurs at the facilities. The product is received at the

terminals, either by pipeline or truck transport, stored in above-

ground tanks, and distributed in various size tank cars. The three

terminals have a total combined throughput of approximately 195,000

barrels per month; 60 is gasoline and 40 is fuel oil.

The Agency filed its Recommendation on January 29, 1975.

The Agency stated that since Petitioner’s facilities are only

storage and distribution sites, they are subject to the storage

and loading limitations in Rules 205(a) and (b), which became

effective on December 31, 1973. Furthermore, the Agency alleged

that Rule 103(b) (2) (A) for Petroleum and Coal Products Industry

Operations required Petitioner to have permits by January 1, 1973.

15 —531

---

The Agency recommended denial of the variance for several

reasons. First, Petitioner failed to supply the necessary in-

formation pursuant to Rule 401 of our Procedural Rules. Petitioner

failed to indicate the nature and extent of the present failure to

meet the regulations at each facility and failed to sufficiently

indicate past and present efforts to achieve compliance. Second,

the Agency investigated each facility and indicated additional

reasons for each facility why the variance should be denied:

Peru Terminal: Although compliance has recently been

achieved with Rule 205(a) (and presumably Petitioner is now en-

titled to a permit at this facility)

,

Petitioner was dilatory in

its efforts to achieve compliance. The Agency cites the letter

of November 26, 1974 from Smith, which was included in its

variance petition, which states in pertinent part:

“Almost a year has elapsed since the initial

order until the shipment and more than a year since

we entered into negotiations with Mayflower Vaporseal.

I am sure that most of the delay has been because of

the demand that EPA Requirements have placed on manu-

facturers such as Mayflower. We were originally

promised delivery in March, then June, then August,

and the equipment finally arrived in November, The

decks are currently being installed at our Peru

Terminal by North Michigan Pump Company with tank #7

almost complete, and 3 and 5 to follow without

further delay. Installation should be completed dur-

ing the month of December.”

The Agency argues that since Petitioner states in its variance

request that it has been in compliance at Peru since April, 1973,

this quoted admission of lack of compliance shows that Smith has

been dilatory. We agree that the seeming inconsistency in

Petitioner~s statement underscores the need for further clarification

by Smith.

Cunningham Terminal: The Agency investigation revealed that

tank No, 5 at the facility is the only tanc currently not in com-

pliance with Rule 205 (a). Agency investigators were advised that

this tank was taken out of operation in early January, 1975 and

that a floating roof will be installed by the end of January. The

Agency argued that the following language in the November 26, 1974,

letter referred to above amounted to an admission by Petitioner of

“dilatory compliance efforts at this location”.

“The second floating deck for our Rockford

Cunningham Road Terminal has been received on the

site and will be installed at Peru. The first deck

was installed in Rockford and completed on July 5,

1974.”

---

—3--.

Rockford Bulk Plant: The Agency investigation of the

site revealed three tanks which each store in excess of 40,000

gallons of gasoline. The three tanks are vented to a vapor sphere

which, under Rule 205(a), must collect 85 or more of the uncon-

trolled volatile material which would otherwise be emitted to the

atmosphere. Although there was no evidence in the Petition for

Variance to indicate whether the vapor sphere achieves the 85

efficiency under Rule 205 (a), the Agency was of the opinion, on

the basis of a recently submitted permit application, that this

efficiency has been achieved.

In summary, while it appears that Smith’s facilities

located at Peru and Rockford were in compliance under 205(a) by

the date of permit submission, Cunningham’s Terminal Tank No, 5

was not in compliance on that date. The Agency indicated that

Petitioner was entitled to a permit at Peru and Rockford and once

Tank No. 5 is properly fitted with the floating roof, the requisite

permit can be issued for the Cunningham Terminal,

We agree with the Agency that the issue is whether the

Board should grant a variance to Smith for its past violations of

Rule 103(b) and Rule 205(a). First, it is not specified whether

a variance is sought from Rule 103 (b) (1) or 103 (b) (2), While the

Agency assumes that Rule 103(b) (2) is the applicable Rule,

Petitioner does not indicate and there is some question whether

code 29 of the Standards Industrial Classification Manual (1972)

requires a permit for facilities like those of Petitioner. Petition

for Variance from Rule 103(b) of Chapter Two is dismissed without

prejudice for lack of specificity. Second, we rule that insufficient

facts have been supplied under Procedural Rule 401 to enable us to

decide whether the Petitioner has met the test of arbitrary or un-

reasonable hardship under Section 35 of the Environmental Protection

Act for its variance request from Rule 205(a) of Chapter Two.

Petition for Variance is hereby dismissed without prejudice

because of insufficient information,

IT IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, hereby certi~fy~thatthe above Opinion and Order was adopted

on the

i’1~’~

day ~

1975, by a vote of

4

to

~0—’

C ristan L. ffett