ILLINOIS POLLUTION CONTROL BOARD
APRIL 25,
1974
W.
R.
MEADOWS,
INC.
)
PETITIONER
v.
)
PCB 74—56
ENVIRONMENTAL PROTECTION
AGENCY
RESPONDENT
JAMES MARTIN,
ATTORNEY,
in behalf of
W.
R. MEADOWS,
INC.
KATHRYN
NESI3URG, ATTORNEY,
in behalf of
the
ENVIRONMENTAL PROTECTION
AGENCY
OPINION
AND
ORDER OF
THE
BOARD
(by Mr. Marder)
This case comes to the Board on Petition filed February
5,
1974,
by W.
R.
Meadows,
Inc.,
for a variance for one year from Rule 205
(e) of Chapter
2 of the Board’s
Rules
and Regulations.
The Agency filed its recommendation on March 13, 1974.
The Agency
recommends a variance be granted subject to certain conditions.
Hearing was held in the Kane County Court house, Geneva,
Illinois,
on March 29,
1974.
Petitioner manufactures
a concrete curing compound that is used to
provide
a longer wearing concrete surface.
The curing compound is
applied wherever large amounts of concrete are used to prevent damage
from evaporation of mixing water in the concrete.
The largest use for
the compound is in highway construction.
Rule
205
(e)
prohibits
the
sale
or
use
of
architectural
coatings
which
contain
more
than
20
by
volume
of
photochemically
reactive
mat-
erial
in
containcrs
having
a
capacity
gre~~er
than
one
gallon
in
the
Chicago
and
St.
Louis
(Illinois)
major
metropolitan
areas.
About 60
of the product is mineral spirits, which are photochemic—
ally reactive.
Hardship:
Petitioner alleges
as the reason for this variance the
fact that
it cannot receive non—photochemically reactive materials for
its product, because of short supply and federal allocations.
Petit-
12—161
—2—
ioner has contacted suppliers of these solvents and has not been able
to obtain sufficient amounts of the exempt solvents.
Two
days before
the hearing Petitioner contacted Shell Chemical Corporation,
Exxon,
Gulf Oil, Mobil Oil,
and Union
Oil companies and received negative re-
sponses to its attempts
to order the exempt materials
(R.
9-10)
.
The
Petitioner alleges hardship not
only to itself, but also to contractors
who will not be able
to cure their concrete or will have to cure it at
a much greater cost.
Petitioner further alleges that the public will
also be injured through higher costs
for
road construction, or,
in the
alternative,
roads that will not be
of the highest quality.
Environmental Impact:
Petitioner alleges and the kgency concurs that
the~T~on~limp~ct
of granting this variance will not be signif-
icant.
When applied the product is only used once,
in an area where
there is good ventilation.
The evaporation time for the product ranges
from 30 minutes to two hours, depending on weather conditions
CR.
11)
Less than 10
of the Petitioner’s output goes
to the Chicago and E.
St.
Louis areas
(R.
12)~.
Rule 205
Ce)
is unique in that it restricts the sale as well as the
use of the product.
A variance for the sale of this product causes
problems that do not exist in the normal variance case.
First, Petit-
ioner does not sell his products directly to the ultimate user of the
product.
He sells
it to distributors, who have standing relationships
with
contractors.
It is not unusual for Petitioner
to sell his product
to a distributor in Springfield and have the ultimate purchaser use it
in Chicago
(R.
13)
.
By giving Petitioner
a variance to sell
the prod-
uct to his distributors, we then must determine whether the distributors
must also obtain variances.
To this question, we answer no.
The result
of not reaching this conclusion would be to force all of Petitioner~s
distributors
to file variance cases, which would do nothing more than
reiterate the facts in this
case.
This result would be in fact no re—
lief to Petitioner.
We hold that
a variance in
a case from Rule 205
(e)
granted to the manufacturer of a product covers the sale by the
manufacturer’s distributors
to the ultimate user.
This decision only
applies to Rule 205
(e)
cases.
The next question this case raises is whether the ultimate purchaser
and
user
of
the
product
must
also
apply
for
and
receive
a
variance
be-
fore he can use the product in the Chicago and St. Louis
areas.
The
answer
is yes. While the Board can extend the variance
to the distrib-
utor,
as there are no emissions caused by his transaction,
the ultimate
user will be causing the actual emission.
The Board feels that without
data as
to the location of each application of the product,
the amount
to be used,
the period of time in which it is
to be used,
and the char-
acter
of
the
surrounding
area
near
the
application
site,
the Board can
not grant a blanket variance for the use of the product.
Petitioner
has
indicated
to
the Agency
(Agency
Rec.
P.
2)
that
it
would perform research and development to try to find suitable alter-
nate solvents and would also attempt to modify its product to
he
water—
reducible.
12
—
162
—3
The Board finds that there will be little or no environmental im-
pact by granting a variance to Petitioner to sell his product,
Hard-
ship imposed on the public due to the grant of this variance would be
far
less
than
the
hardship
imposed
on
the
Petitioner
should
the
Board
not
grant
a
variance.
Petitioner will
be
granted
variance
from
Rule
205
Ce)
of
Chapter
2
for
one
year,
subject
to
conditions
stated
in
the
Order.
It
is
the
Board’s
feeling
that
Petitioner
should
send
notice
to
his distributors that use of the concrete curing compound in the Chi-
cago and St. Louis
(Ill.)
areas violates Rule 205
Ce),
unless the
ultimate user obtains a variance from the Pollution Control Board
under Title
9 of
the
Environmental
Protection
Act.
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
W.
R.
Meadows
is
hereby
granted
a
variance
from
Rule
205
Ce)
until
April
25,
1975,
to
allow
the
sale
of
its
concrete
curing
compound
in
the
Chicago
and
St.
Louis
(Ill.)
major
metropolitan
areas,
subject
to
the
following
conditions:
A)
Petitioner
shall
file,
within
60
days
from
the
entry
of this Order,
a compliance plan~outlining its program
to
develop
a
water
reducible
product
or
a
product
with
exempt
solvents,
with
the
Environmental
Protection
Agency.
B)
Petitioner
shall
file
reports
quarterly
subsequent
to
the compliance plan filing, outlining progress as
to the
abovementioned compliance plan.
C)
Petitioner
shall attempt to obtain exempt solvents, and
whenever such solvents are available,
shall use them.
IT
IS SO ORDERED.
I,
Christen L.
Moffett,
Clerk of the Illinois Pollution CorA~rol
Board,
certify that the above Opinion and Order was
adopted by the
Board on the 25th day of April,
1974,
by a vote of
5 to
0.
12
—
163