ILLINOIS POLLUTION CONTROL BOARD
February 27, 1975
ACME BARREL COMPANY,
INC.
Petitioner
v.
)
PCB 74—454
ENVIRONMENTAL PROTECTION
AGENCY
Respondent
OPINION
& ORDER of the Board
(by Mr. Zeitlin)
The Petition for Variance in this matter was filed by
Acme Barrel Company,
Inc.
(Acme) on December
4,
1974.
In
its Petition Acme requests an extension of a previous var-
iance expiring on November 1,
1974.
That variance, granted
on July 25,
1974, was from the requirements of an even earlier
Pollution Control Board Order dated December 13, 1973.
BACIGROUND
The operation of Acme’s Barrel reclamation plant in
Chicago has been adequately described in two previous Board
Opinions EPA v. Acme Barrel Company, PCB 72-404, December 13,
1973,
10 PCB 301 Acme Barrel Company v. Environmental Pro-
tection Agency, PCB 74-138, July 25,
1974;
13 PCB 207.
This
matter originally came .before the Board in an enforcement
action filed by the Agency on October
13,
1972.
In that complaint
the Agency alleged that Acme caused and allowed the burning of
refuse in pits in front of Acm&s
incinerator in violation of
the Environmental Protection Act.
That complaint also
alleged that Acme caused air pollution by the operation of
its salamanders, barrel preheating process, and its waste
material collection.
The hearing testimony and stipulated
facts in that matter,
as detailed in the Board’s Opinion,
showed various violations and nuisances caused by Acme.
10
PCB at 302.
The Board Order in the original enforcement action
adopted an agreement of the parties which covered the elim-
ination of several emission problems at the Acme plant.
Acme
was ordered to have operating a system for drum cleaning by May
1,
1974,
and to continue vigorously pursuing investigations
and implementation of alternatives regarding disposal of drum
drainings generated at the plant.
Acme was also to maintain
a
high degree of maintenance in its paint booth filters and on
its shop baghouse.
Acme was also ordered to pay a $1,000 pen-
alty at that time.
15 —621
—2—
On April IL
1974 Acme filed
a Petition for Variance
from the terms of the Board Order in PCB 72—404.
Petitioner
at that time stated that due to conditions
in the business
community it was unable to acquire the equipment or materials
necessary to achieve compliance with the Board’s Order in
PCB 72—404,
as to the drum cleaning and draining system,
scheduled for completion on May 1,
1974 under the original
plan.
On the basis of problems which it incurred in acquiring
the necessary steel and other equipment,
Acme asked an
extension of six months during which time it would fabricate
the necessary equipment and materials.
The Board’s Opinion
in that case pointed out that Petitioner had begun
a program
of compliance
in accord with the earlier Order, and was
apparently complying with that earlier Order in several
ways,
13 PCB at 208.
It also appeared to the Board at that
time that Petitioner had already purchased much of the
necessary equipment,
including conveyor, gear box,
chain and
pumps.
The Agency at that time recommended that the variance
be granted, and felt that six months would be sufficient
time to complete the system.
The Board granted Acme a
variance until November 1,
1974 from the provisions
of the
original Order relating to the drum cleaning and draining
system.
The instant petition was filed on December 4,
1974,
thirty-four days subsequent
to the expiration of the previous
variance. Acme now claims that its inability to get many of
the needed components for the original system with which it
was to achieve compliance has required a complete revamping
of its compliance plan.
These problems, Acme claims, have
put the company several months behind schedule in achieving
compliance.
Acme claims that it has expended every effort
during the period of the original variance to control the
possibilities of open burning and the resultant emission of
pollutants.
The company now feels that an extension of its
variance until March
1,
1975 will give it sufficient time to
complete the necessary drum draining equipment,
start up,
and debug it to achieve compliance.
The Agency in its recommendation has pointed out that
Acme has in fact complied with many requirements of the
Board’s original Order.
A new baghouse has been installed,
under Agency permit,
to control emissions from a shotbiasting
unit.
Acme has also constructed
a concrete pit as part of
the drum draining system.
The Agency does not, however,
recommend
a grant to this variance extension.
The Agency,
based on a December,
1974 inspection,
feels that Acme is not
fully complying with several provisions
of
the Board’s
original Order of December 13,
1973.
The Agency alleged
that incinerator overloading by Acme is leading to continued
emission problems, and that Acme’s progress towards comple-
tion of the barrel draining line is much slower than could
reasonably be expected.
The Agency inspector felt that
the concrete pit installed’by Acme could have been con-
structed
in
one week,
and the Agency points out that
a new conveyor line installed by Acme doe s not even run
past
a proposed drum drainage line.
Further, the Agency
feels that Acme is not achieving the high degree of maintenance
in other sections of its operation,
as required under the
original
Board
Order.
Specifically,
the
Agency
points
out
that
the filter pads on Acme’s spray booths are either
missing
or
are
clogged
with
paint.
Whether
this
constitutes
a showing of bad faith,
as alleged by the Agency, it is not
clear however.
In
the instant variance petition Acme claims
that reformulation of
its paint solvents has solved any
emission problems resultant from these
spray booths.
The
Board has no way of knowing whether a continued emission
problem exists at the spray booths as currently operated.
PRESENT_CONSIDERATIONS
Section
35
of
the
Act
impowers
the Board to grant
individual variances when
i~
finds that compliance,
if
required immediately, would Impose an unreasonable hardship
upon the Petitioner.
Although as the Agency points out,
Acme has not. in this Petition shown any new or overriding
hardship dictating the grant in this variance, the Board
takes notice of the fact that this petition is requested for
a short period of time,
and that it is couched in terms of
an extension rather than a new variance.
The period requested
in this variance is only four months, which if Petitioners
allegations are taken as true,
is not an unreasonable period
of time.
Further It can be assumed in
this situation that
those hardships found in the prior variance grant still
obtain and still provide
a basis for this variance grant.
Those hardships,
based primarily on the availability of
materials, probably still exist, as is alleged by Peti-
tioner.
As
is pointed out by the Agency, however, Petitioner
has not in the instant case shown with specificity that such
hardships and shortages still exist.
While we are willing
for this short period of time to accept Acme’s general
allegations that the hardships still exist, we would not be
so disposed in future extension petitions.
Further, Acme’s allegations of material unavailability
begin to strain at the limits of credibility. The drum
draining and cleaning operations, which are the subject of
this variance petition, have been before the Board almost
continuously since the Agency filed its original enforcement
action in 1972.
The conditions leading up to that action
are still not fully abated. While the original Order of the
Board was not filed until December of 1973, we feel that the
grant of this additional extension should provide more than
ample time for Petitioner
to complete his plan of compliance.
It
is
expected
that
at
the
close
of
the
currently
granted
variance period, on March
1,
1975,
the Agency will closely
inspect
the
degree
to
which
Acme
has
completed
its
compliance
efforts.
15—
623
—4—
Petitioner will, upon the issuance of this Order, have
been given a total of ten months extension past its initial
deadline of May 1,
1974.
It is the Opinion of the Board that
such a ten-month period,
in addition to the period granted
by the Board in its original Order, constitutes a reasonable
period for Acme to achieve compliance in light of the exigent
circumstances pleaded in its variance petitions.
This grant
cannot be seen as merely one of a series granting Acme an
indefinite period to achieve compliance.
While the Board
feels that ten months additional may be required for compliance,
it does not at the present time feel that a longer time will
be warranted on the basis of facts currently pleaded.
Although the Board has accepted the hardships previously
pleaded .as continuing, such hardships cannot be inferred to
be of indefinite nature or duration.
Acme will be expected
to,
in its own words,
“in the course of the extended variance...
continue.
.
.
continue to bend every effort to be certain” that
compliance is achieved.
This Opinion constitutes the findings of fact and
conclusions of law of the Board.
ORDER
It is the Order of the Pollution Control Board that
Petitioner
Acme
Barrel
Company,
Inc.
is
granted
a
variance
from November
1,
1974 to March
1,
1975,
from the provisions
of
paragraph
1
in
the
Board’s
Order
of
December
13,
1973
in
the
Case
of
EPAv
Acme
Barr ~
~7~4
~.4
JO
PCB
301,
Mr. Dumelle dissents.
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control
Board,
here~
certify
t
e
ove
Opinion
&
Order
were
adopted
on
the
~.yr’~
day
of
,
1975 by a
vote
of
~to
~
.
Christan
L.
Mo
~ett,
erk
Illinois
Pollution
trol
Board