ILLINOIS POLLUTION CONTROL BOARD

January

T30,

1973

ARMAX

COMPANY

v.

)

#72—414

72—415

(Consolidated)

ENVIRONMENTAL PROTECTION AGENCY

Steven C.

Bonaguidi, Assistant Attorney General,

on behalf of

Environmental Protection Agency

Leo Wykell and Lawrence Gunnels of Kirkland

& Ellis

on behalf

of Respondent

Opinion and Order of the Board

(by Mr. Lawton):

On October 19,

1972,

the Board received two petitions for

variance from Petitioner relating to the dates by which operating

permit applications were to be filed and approved permits received

for itts McCook and Carpentersville facilities.

Specifically, Chapter

2, Rule 103

(b) (2) (A) of the Rules

and Regulations of the Illinois Pollution Control Board provided

that chemical and allied products industries were required to

obtain approved operating permits by December

1,

1972, which date

was later amended

to January

1,

1973.

Chapter

2,

Rule 103(b) (2) (B)

provided that all requests for such operating permits were to have

been filed with the

Environmental Protection Agency

(“Agency”)

at least ninety days prior thereto, October

1,

1972.

Petitioner

manufactures fatty acids and derivatives at both its McCook and

Carpentersville facilities and requested extensions of the dates

by which applications for operating permits were to have been

submitted:

from October

1,

1972 to April

1,

1973 for McCook;

and from October

1,

1972 to February 1,

1973 for Carpentersvilre.

The variance request presumably also incorporates

a similar request

for extension of the date by which said permits were to have been

obtained as well.

With reference to the McCook site, Petitioner avers that

in order to provide the necessary technical and performance data

required in the permit application, complex efficiency tests on

existing emission control devices would have to be run, and

that a contract had already been granted for that purpose.

This

procedure would not, according to Petitioner, be completed until

at least February,

1973,

and since process flowsheets and other

materials would then have to be updated, permission to submit

permit application forms by April

1,

1973 was requested.

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661

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With reference to the Carpentersville site,

Petitioner point-

ed out that as a result of an ambient air odor study conducted

there by the Illinois Institute of Technology Research Institute,

an engineering firm had been retained to study Armak’s portion of

the problem in the area and to recommend solutions.

And similar

problems relating to updating process flow sheets and the like

at Carpentersville,

as at McCook, according to Petitioner, led to

their request to be allowed until February 1,

1973 to submit their

operating permit application.

The Agency recommended on 1)ecember 13, 1972 that the two

requests be denied because Petitioner is not devoting adequate

time or manpower to the completion

of permit applications and that

Petitioner unreasonably delayed the time for commencing permit

application preparation at its facilities.

The general facts re-

lating to the requests were set out by Stipulation of Fact sub-

mitted to the Board on December 21,

1972 and the stipulation

indicated that the necessary operating permit application forms

and

instruction

sheets

•were

not

received

by

Petitioner

until

August

12,

1972.

A

hearing

on

the

requests

was

held

in

Chicago

on December 16,

1972,

after the stipulation had been entered into

but before it had been received by the Board, and Petitioner’s

Manager

df

Environmental Control in its manufacturing division

reiterated the fact that Petitioner had not received the necessary

forms and instructional material until August 12

(R,

9-10).

Petitioner maintained that it had assigned 2 1/2 men working

full-time to collect the necessary data

(R,

8)

that assignment of

other qualified personnel in the company to work on the project

might have delayed the opening of its new Morris plant

(R.

9),

and that while it might have been possible to hire new people to

help accumulate the necessary data,

it would not have substantially

accelerated the program since the new people would have had to

become acclimatized to and familiar with company policies and

procedures before becoming truly effective workers

(R.

10,

17,

29).

Petitioner employs about 350 people at McCook and about

30 at Carpentersville

(R. 16-17).

Furthermore,

Petitioner’s

representative insisted that they were engaged in programs designed

to abate emissions from its facilities and that,

“we didn’t feel,

and don’t feel,

that the submission of these operating permit

applications will have any effect on that program, which is already

ictive.

So

we

felt

that there would be no harmful effect on the

public

“(IL

12).

Such

simplistic

reasoning

totally

disregards

the fundamental design underlying adoption of the statewide air

permit program, ai~dwere we to accept this argument, we would be,

in effect, repealing the deadline dates established in the re-

gulations for submission

of applications and for possession of

approved permits~. Those dates were included in the permit provisions

only after careful consideration and for a very definite purpose;

we are not inclined to alter them except where extraordinary or

exceptional conditions of hardship exist.

6

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662

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We find it difficult to understand how Petitioner’s abatement

programs would be seriously disrupted were several of the approximately

380 people employed at the two facilities

reassigned to work on the

permit project, especially

in view of the fact that the State has

indicated that

it considers the permit program to be an important ele-

ment of an overall program to combat pollution in Illinois,

and not

just a technical exercise.

Furthermore, we are not persuaded that a

good deal of time would not be saved by hiring additional help to work

on this project, since much of the work would appear to be of a clerical

and administrative nature.

And lastly, we are not convinced that the

time allowed is insufficient, even in the complete absence of any

new or reassigned personnel to assist in preparing the permit applica—

tion, provided that the proper priority is afforded to this project.

The permit requirements are an absolutely essential part of the

State’s air pollution control program; viewing them as loose or

avoidable technicalities can lead to a breakdown in the entire program

and it is therefore our opinion that the dates for submission of permit

applications and for

the

possession

of

approved

permits

should

not be

extended

or relaxed except in the most unusual or extraordinary cir-

cumstances.

And where such extensions

are not granted,

and compliance

with the requirements by the deadline dates cannot be had, further

action in the nature of an enforcement proceeding brought for a vio—

lation of the Board’s regulations,

is a distinct possibility since deniaa

of a variance (or refusal to relax the deadline dates)

in cases of this

sort is also a denial to the Petitioner of

a shield from prosecution;

the Agency, or anyone else, may pursue this matter as they see fit.

All contentions made by petitioner

to justify

a variance could be

asserted by way of defense in such a proceeding.

In vie~of the above consider~fions, the variances requested

herein are hereby denied.

Mr. Henss votes in favor of tne Order but disagrees with the

Opinion and will file a separate concurring Opinion.

I, Christan Moffett, Clerk of the Pollution Control Board, ,pertify

that the Board adopted the above Opinion and Order this Qb

“day

of

________________,

1973, by a vote of

,a

to

c

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663

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