ILLINOIS POLLUTION CONTROL BOARD
December 4, 1997
WHITE CAP, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 98-24
(Variance - Air)
TRACEY L. MIHELIC and RICHARD M. SAINES, GARDNER, CARTON & DOUGLAS,
APPEARED ON BEHALF OF PETITIONER;
CHRISTINA L. ARCHER APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD (by J. Yi):
This matter comes before the Board on a petition for extension of variance filed August
1, 1997, by White Cap, Inc. (White Cap). The petition requests an extension of variance from
certain testing requirements of the Board’s air emissions regulations.
1
35 Ill. Adm. Code
218.105(b), 218.205(c)(2), 218.207, 218.211. White Cap originally requested the Board to
extend the variance granted in PCB 96-191 until December 5, 1998, and allow White Cap
until such time to conduct capture efficiency testing on its coating lines. By motion on
September 12, 1997, White Cap seeks to change the termination date of the variance from
December 5, 1998, to September 7, 1998, or the date by which White Cap obtains a final,
effective CAAPP permit, whichever is earlier.
The Illinois Environmental Protection Agency (Agency) filed its recommendation on
September 26, 1997. The Agency agrees that an arbitrary or unreasonable hardship would
continue to result if the requested relief is denied and therefore recommends a grant of
1
The Board previously granted White Cap a variance from the capture efficiency test methods
in Continental White Cap, Inc. v. IEPA (April 22, 1993), PCB 92-155. An extension of this
variance was granted in White Cap, Inc. v. IEPA (August 11, 1994), PCB 94-93; the
extension expired on April 22, 1996. On November 7, 1996, the Board extended White Cap’s
variance until White Cap obtains a federally enforceable state operating permit pursuant to the
Clean Air Act Permit Program (CAAPP), or 90 days after Illinois revises its State
Implementation Plan to include alternative test methods for capture efficiency, but in any case,
no later than January 12, 1998. White Cap, Inc. v. IEPA (November 7, 1996), PCB 96-191.
2
variance. (Rec. at 7.)
2
However, pursuant to petitioner’s motion to change effective date of
variance, the Agency recommends that the variance expire on September 7, 1998, or the date
by which White Cap obtains its CAAPP permit, whichever occurs first. Rec. at 7.
In its petition White Cap requested a hearing in this matter. A hearing was held
October 1, 1997, in Chicago, Illinois before Chief Hearing Officer Michael L. Wallace. No
members of the public attended. At hearing, the parties waived filing post-hearing briefs.
Hearing Report.
For the reasons set forth below, the Board finds that to require immediate compliance
with capture efficiency test method regulations would continue to impose an arbitrary or
unreasonable hardship on White Cap. The Board further finds that White Cap has
demonstrated satisfactory progress toward achieving compliance during the term of its prior
variance. The Board therefore grants White Cap an extension of its prior variance, subject to
certain conditions set forth in the attached order.
The Board’s responsibility in this matter arises from the Illinois Environmental
Protection Act (Act). 415 ILCS 5/1 et seq. (1996). The Board is charged therein with the
responsibility of granting variance from Board regulations whenever it is found that immediate
compliance with the regulations would impose an arbitrary or unreasonable hardship upon the
petitioner. 415 ILCS 5/35(a) (1996). A request for extension of variance may be extended
from year to year upon a showing of satisfactory progress during the prior variance. 415
ILCS 5/36(b) (1996). The Agency is required to appear at hearings on variance petitions (415
ILCS 5/4(f) (1996)), and is charged, among other things, with the responsibility of
investigating each variance petition and making a recommendation to the Board as to the
disposition of the petition. 415 ILCS 5/37(a) (1996).
BACKGROUND
White Cap employs approximately 500 people at its manufacturing facility located at
1819 North Major Avenue in Chicago, Cook County, Illinois. Tr.96-191 at 49. White Cap is
the largest U.S. manufacturer of metal closures or caps for baby food, pickles, preserves,
juices and iced teas. Tr.96-191 at 7, 46. Multiple layers of coatings are applied to sheet
metal. This process results in Volatile Organic Material (VOM) emissions and thereby
subjects White Cap to the Board’s VOM emissions regulations set forth at 35 Ill. Adm. Code
Part 218. Tr.96-191 at 47, Rec. at 2. Strips of sheet metal are then fed into a dye and shells
are punched out, creating the caps. Tr.96-191 at 48-49.
Originally, White Cap operated 12 process lines that consisted of four printing lines
and eight coating lines. Seven catalytic oxidizers controlled VOM emissions from these lines.
Tr.96-191 at 26. In November 1995, White Cap began a modernization program on its
2
The petition for variance will be cited as (Pet. at __.), the Agency Recommendation will be
cited as (Rec. at __.), the hearing transcript will be cited as (Tr. at __.), and the hearing
transcript from PCB 96-191 will be cited as (Tr.96-191 at __.).
3
lithographic operations at its Chicago facility to replace all existing lines with permanently
totally enclosed lines. Tr.96-191 at 26-27. In August 1995, White Cap replaced four of its
twelve coating lines with two new permanently enclosed lines, thereby allowing White Cap to
assume 100% capture efficiency. Rec. at 5. White Cap also installed an ABB Preheater
Regenerative Thermal Oxidizer (Oxidizer) to control emission from the two new lines as well
as two existing lines. Rec. at 5. The installation of the new lines and the Oxidizer have
reduced emissions from the facility. The two new lines are permanently enclosed, and no need
exists to conduct capture efficiency tests on these two lines. White Cap conducted a
destruction efficiency test on the Oxidizer in July 1996 which resulted in 98% efficiency.
Rec. at 6.
White Cap is further committed to its modernization program. White Cap intends to
remove two non-enclosed lines in August of 1997. These lines should be replaced with one
permanently enclosed line by the end of 1997. Pet. at 10. White Cap intends to replace two
additional non-enclosed lines with one permanently enclosed line by May of 1998. Pet. at 10.
By 1999, White Cap intends to have replaced the remaining four non-enclosed lines with two
final permanently enclosed lines. (Pet. at 11.) At this time, White Cap has received a
construction permit to replace one additional line and has submitted construction permit
applications to the Agency to replace the remaining lines. Rec. at 6.
REGULATORY FRAMEWORK
In determining whether any variance is to be granted, the Act requires the Board to
ascertain whether a petitioner has presented adequate proof that immediate compliance with the
Board regulations at issue would impose an arbitrary or unreasonable hardship. 415 ILCS
5/35(a) (1996). Furthermore, the burden is upon petitioner to show that its claimed hardship
outweighs the public interest in attaining compliance with regulations designed to protect the
public. Willowbrook Motel v. PCB, 135 Ill. App. 3d 343, 481 N.E.2d 1032 (1st Dist. 1977).
Only upon such a showing can the claimed hardship rise to the level of arbitrary or
unreasonable hardship. In addition, the Board may grant a request for extension of variance
on a year-to-year basis, but only upon a showing of substantial progress toward achieving
compliance. 415 ILCS 36(b) (1996).
A variance, by its very nature, is a temporary reprieve from compliance with the
Board’s regulations, and compliance is to be pursued regardless of the hardship which eventual
compliance presents an individual petitioner. Monsanto Co. v. PCB, 67 Ill.2d 276, 367
N.E.2d 684 (1977). Accordingly, as a condition to the granting of variance, a petitioner is
required to commit to a plan which is reasonably designed to achieve compliance within the
term of the variance, unless certain special circumstances exist.
The instant variance request concerns VOM emissions test methods set forth in Section
218.105 and relating to Section 218.108(b) of the Board’s regulations. These sections read in
part:
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Section 218.105
Test Methods and Procedures
(c)
Capture System Efficiency Test Protocols
(2)
Specific Requirements
The capture efficiency of an emission unit shall be
measured using one of the four protocols given below.
Any error margin associated with a test protocol may not
be incorporated into the results of a capture efficiency
test. If these techniques are not suitable for a particular
process, then an alternative capture efficiency protocol
may be used, provided that the alternative protocol is
approved by the Agency and approved by the USEPA
[United States Environmental Protection Agency] as a SIP
[State Implementation Plan] revision.
Section 218.108
Exemptions, Variations, and Alternative Means of Control or
Compliance Determination
Notwithstanding the provisions of any other Sections of this Part:
(b)
Any equivalent alternative control plans, equivalent device, or
other equivalent alternative practice authorized by the Agency
where this Part provides for such alternative or equivalent
practice or equivalent variations or alterations to test methods
approved by the Agency shall be effective only when included in
a federally enforceable permit or approved as a SIP revision. 35
Ill. Adm. Code 218.105(c)(2), 218.108(b)
COMPLIANCE PLAN
As previously stated, White Cap is in the process of replacing its 12 coating lines with
new lines which will be permanently closed and which White Cap believes will achieve 100%
capture efficiency. White Cap has replaced four lines in the last year, and installed an ABB
Preheater Regenerative Thermal Oxidizer which controls emissions from two new lines, as
well as two existing lines. Rec. at 5. White Cap expects to complete its modernization
program by 1999. Pet at 11.
White Cap asserts that, although it has had variance relief since 1993, it is only now
that White Cap is asking for an extension of time by which it must actually conduct the capture
efficiency tests. White Cap explains that the previous variance extensions were sought because
either the USEPA had not developed the necessary test methods, or the Agency had not yet
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provided for the use of said test methods in a federally enforceable state operating permit or in
Illinois’ SIP.
In PCB 96-191, the Board extended White Cap’s variance until the Agency issued
White Cap a CAAPP permit allowing White Cap to conduct capture efficiency tests using the
alternative test methods or until 90 days following a SIP revision incorporating the alternative
capture efficiency test methods, but no later than January 12, 1998. The January 12, 1998,
date was established because this was the statutory deadline by which the Agency was required
to issue White Cap a CAAPP permit. White Cap asserts that the Agency has now determined
it is not practical to issue White Cap a CAAPP permit by January 12, 1998, and that the
Agency intends to delay the issuance of CAAPP permits in the Chicago nonattainment area
until the Agency completes review of the Emission Reduction Market System (ERMS)
applications
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. White Cap states that the CAAPP permit is necessary before it can use
alternative test methods to achieve compliance with Board regulations. White Cap states it is
requesting the variance to terminate on September 7, 1998, as the latest date by which the
Agency believes White Cap will obtain a final, effective CAAPP permit, and so that White
Cap will not be required to spend money to test coating lines it intends to replace with
permanently enclosed lines.
The Agency asserts that it could, in fact, issue a CAAPP permit by January 12, 1998,
but that to do so would be impractical because of the ERMS considerations already noted. The
Agency recommends that White Cap amend its CAAPP permit application to include the
alternative capture efficiency test methods White Cap intends to implement. The Agency asks
that if the Board grants the variance in this matter, the amendment of the CAAPP permit
application occur no later than 30 days after the order granting the variance becomes final.
Although White Cap is willing to amend its CAAPP permit to include alternative capture
efficiency test methods, it requests until January 31, 1998, to submit the amended permit
application. White Cap asserts that this would alleviate the considerations involving the ERMS
application as well as allowing White Cap to make one revision to its CAAPP permit
application that incorporates all necessary changes arising from the modernization program.
ARBITRARY OR UNREASONABLE HARDSHIP
White Cap states that in PCB 96-191, the Board found an arbitrary or unreasonable
hardship would result if no extension of the previous variance was granted. White Cap
maintains that the situation has not changed. White Cap further states that although it applied
for a CAAPP permit, no such permit has been issued, and it is not practical for the Agency to
issue one before the variance expires. White Cap states that until such time that a CAAPP
permit is issued, there is no technical or economically reasonable method for White Cap to
comply with the regulations in question. Pursuant to a December 5, 1995, consent agreement
with the USEPA, White Cap is required to achieve compliance with the instant regulations by
3
The Board has recently adopted the ERMS rules substantially as proposed by the Agency.
See In the Matter of: Emissions Reduction Market System Adoption of 35 Ill. Adm. Code
205 November 20, 1997, R97-13.
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December 5, 1998
4
. White Cap states that to require it to conduct testing before this date
would require White Cap to test lines which will ultimately be replaced thus costing White Cap
an inordinate amount of money with no corresponding environmental benefit. Pet. at 17.
However, in its motion to change the termination date of the variance, White Cap requests that
the variance be extended to September 7, 1998.
The Agency agrees that the Board previously found an arbitrary or unreasonable
hardship existed in its grant of the original variance in PCB 92-155, the extension in PCB 94-
93, and the second extension in PCB 96-191. The Agency acknowledged that USEPA has
extended the time for White Cap to conduct capture efficiency testing until November 10,
1998. Since White Cap does not have a federally enforceable permit allowing the use of
alternative capture efficiency test methods, the Agency agrees that requiring immediate
compliance with the capture efficiency testing requirements of the Board’s regulations would
continue to impose an arbitrary or unreasonable hardship. However, the Agency concludes
White Cap’s hardship would be self-imposed because it may address the use of an alternative
equivalent plan for capture efficiency testing by amending its compliance schedule in its
CAAPP permit application. Rec. at 7. The Agency recommends that the Board grant White
Cap an extension of its prior variance until September 7, 1998, or until White Cap obtains a
CAAPP permit, whichever is earlier. Rec. at 7; Tr. at 15.
ENVIRONMENTAL IMPACT
White Cap states that it is in compliance with the emission standards set forth in the
Board’s regulations and therefore a grant of variance extension regarding the date by which
emissions testing must be completed would not pose an environmental or human health threat.
(Pet. at 15.) White Cap further states that, because of its ongoing modernization program, it
has had a positive impact on the air quality in the Chicago nonattainment area. Tr. 7, 15.
The Agency maintains that the issuance of the requested variance may result in an
environmental impact. The Agency states that White Cap emitted 128 tons per year (TPY) of
VOM in 1995, and 115 TPY of VOM in 1996. Rec. at 5. Based on Section 302 of the Clean
Air Act (42 U.S.C. 7401 et seq. (1996)) and Section 39.5 of the Act (415 ILCS 5/1 et seq.
(1996)), the Agency asserts that White Cap is a major source of air pollution. Since VOM
contributes to the formation of ozone, the Agency concludes that a grant of the requested
extension of variance may have an adverse impact on the ozone air quality in the Chicago
nonattainment area.
4
In the petition for a variance, White Cap notes that the termination date of the consent
agreement is December 5, 1998, not November 10, 1998, as suggested by the Agency. A
review of paragraph 23 of the consent agreement proves the termination date of the consent
agreement to be December 5, 1998.
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CONSISTENCY WITH FEDERAL LAW
Pursuant to Section 35 of the Act, the Board may grant variances only if they are
consistent with the provisions of the Clean Air Act. (42 U.S.C. 7401 et seq.) The Agency
states that USEPA has approved the coating rules set forth in Subpart F of Part 218 of Illinois’
RACT regulations as part of Illinois’ SIP, as well as 35 Ill. Adm. Code Section 218.108(b).
(Rec. at 6.) The Agency notes that the consent agreement into which White Cap and USEPA
entered grants White Cap an extension of time to conduct capture efficiency testing, and the
requested variance would, therefore, be consistent with federal law. Rec. at 6.
DISCUSSION
The Board finds the hardship that existed during the prior variance continues to exist
for White Cap. Specifically, the Board finds that an arbitrary or unreasonable hardship would
result if White Cap were required to conduct coating line testing pursuant to Section 218.105
before alternative test methods are available through a FESOP.
The Board further finds that White Cap has made substantial progress towards
achieving compliance during the term of its prior variance. Namely, White Cap has applied
for a CAAPP permit, receipt of which will allow it to conduct either the DQO or LCL
alternative test method. In addition, White Cap is committed to reducing its total VOM
emissions. It has implemented a modernization program to replace all of its coating lines with
five permanently totally enclosed lines by 1999. Pet. at 10-11. In 1995, White Cap replaced
four lines and four oxidizers with two permanently totally enclosed lines and an ABB preheater
regenerative thermal oxidizer which controls emissions from the two new lines and two
existing lines. Rec. at 5. White Cap’s modernization efforts have resulted in 80% reduction
in emissions per year, and will, in theory, reduce emissions by approximately 300 tons per
year. Tr. at 7-8. The Board therefore grants White Cap an extension of its prior variance.
Termination Date
Section 218.108 of the Board’s regulations states that “[n]otwithstanding the provisions
of any other Sections of this Part” any alternative test methods approved by the Agency “shall
be effective only when included in a federally enforceable permit or approved as a SIP
revision.” 35 Ill. Adm. Code 218.108(b). The Board construes this section to mean that,
regardless of other language found in Part 218, alternative test methods are acceptable
provided they are included in either a FESOP or approved as a SIP revision. By its terms,
Section 218.108 supersedes Section 218.105 regarding alternative test methods. Accordingly,
the logical termination date for the requested variance would be the earlier occurrence of the
two options provided in Section 218.108(b). The Board’s order must provide a date certain by
which the variance will terminate and the Board believes this date should be tied to the option
that will further the Act’s underlying policy of achieving compliance as soon as possible.
White Cap applied for a CAAPP permit, which is a federally enforceable permit, on
December 7, 1995. The Agency found the application complete on January 12, 1996. Tr.96-
8
191 at 21. The Agency is required to issue the CAAPP permit within two years of
application; therefore, the permit should issue on January 12, 1998 at the latest. However, the
Agency has stated that it would be impractical to issue the CAAPP permit by January 12,
1998. As noted, issues involving ERMS such as determining baseline emissions must be
resolved prior to incorporation into a CAAPP permit, and under the ERMS proposal, sources
are not required to submit applications to address ERMS until March 1, 1998. The Agency
does not intend to submit a SIP revision. The relief available to White Cap is, thus, limited to
that provided via a final, effective CAAPP permit. Tr. at 6. At the time of the hearing in this
matter, October 1, 1997, the parties assumed the ERMS applications would be due on January
1, 1998. As adopted, ERMS requires applications to be submitted on or before March 1,
1998. In the Matter of: Emissions Reduction Market System Adoption of 35 Ill. Adm. Code
205 (November 20, 1997), R97-13. Neither party has requested an extension of the variance
based on this information. White Cap has stated that the Agency intends to delay the issuance
of CAAPP permits until after review of the ERMS applications. The Agency is allowed 120
days to review ERMS applications. The Agency must complete review of applications
submitted on March 1, 1998, on or about July 1, 1998; approximately two months before the
variance terminates. The Agency expects that it will be able to issue a CAAPP permit to
White Cap on or before September 7, 1998. Both parties agree to this date as the termination
date of the variance. Tr. at 11-12, 15.
Accordingly, this variance extension shall terminate on September 7, 1998, or when
White Cap obtains its CAAPP permit, whichever is earlier. This termination date resolves the
considerations involving the ERMS proposal, and provides White Cap time to continue its
modernization program of replacing its coating lines.
Inception Date
By its terms, the variance granted in PCB 96-191 expires no later than January 12,
1998. Regarding the inception date for the requested variance, the Board notes its well-
established rule of beginning the term of a variance on the date the Board renders its decision,
absent unusual or extraordinary circumstances. DMI, Inc. v. IEPA, (December 19, 1991),
PCB 90-227, 128 PCB 245-249. The reasoning behind this general rule is to discourage
untimely filed petitions for variance. Fedders-USA v. EPA, (April 6, 1989), PCB 86-47, 98
PCB 15, DMI, Inc. v. EPA, (February 23, 1987), PCB 88-1332, 96 PCB 185. As stated in
DMI, Inc., if a petitioner wishes a variance to commence on a certain date, its petition must be
filed at least 120 days prior to the desired inception date. Id. Here, no request to commence
the variance on a date certain was received. Thus, the inception date for this variance will be
December 4, 1997; the date on which the Board renders this decision.
CONCLUSION
The Board finds that an arbitrary or unreasonable hardship continues to exist for White
Cap if White Cap is required to achieve immediate compliance with the Board’s VOM
emissions testing requirements. The Board further finds that White Cap has demonstrated
substantial progress towards achieving compliance during its prior variance. Therefore, the
9
Board grants White Cap an extension of its prior variance subject to the conditions outlined in
the Order. The effective inception date of this variance is December 4, 1997. The variance
shall continue until White Cap obtains a final, effective CAAPP permit, or until September 7,
1998, whichever is earlier.
This finding constitutes the Board’s findings of fact and conclusions of law in this
matter.
ORDER
Petitioner, White Cap, Inc., is hereby granted variance from the testing requirements
found in 35 Ill. Adm. Code 218.105(b), 218.205(c), 218.207 and 218.211 for its facility
located at 1819 North Major Avenue in Chicago, Illinois. This grant of variance shall begin
on December 4, 1997, and is subject to the following conditions:
1.
Variance shall terminate on the date upon which White Cap obtains a final,
effective federally enforceable state operating permit pursuant to the Clean Air
Act Permit Program, or on September 7, 1998, whichever is sooner.
2.
White Cap shall test its applicable lines for Capture Efficiency (CE) pursuant to
either the seven proposed test methods (Methods 204A through G) or the
alternative CE test methods (i.e., Data Quality Objective or Lower Competency
Level), as specified in the United States Environmental Protection Agency CE
Guidance Memorandum dated February 7, 1995.
3.
White Cap shall amend the compliance schedule in its CAAPP permit
application to include alternative capture efficiency test methods as specified in
this Order and in the United States Environmental Protection Agency CE
Guidance Memorandum dated February 7, 1995. This amendment must be
submitted to the Agency on or before January 31, 1998.
4.
White Cap shall keep daily records of the following items starting on the date of
this order, including:
a.
the amount of each coating used in each coating line;
b.
the VOM content of each coating applied (lb VOM/gal of solids);
c.
the weight of VOM per volume of coating solids applied daily on each
coating line (VOMs, pursuant to 35 Ill. Adm. Code 218.105(e)(2)).
5.
White Cap shall prepare a monthly report for Agency inspection on the daily
records required above. The report must also demonstrate White Cap’s
compliance with 35 Ill.Adm.Code 218.207(b)(2). White Cap shall submit one
copy of the monthly compliance demonstrations on a quarterly basis to each of
the following Agency officers:
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Illinois Environmental Protection Agency
Bureau of Air
1021 N. Grand Avenue East
Springfield, Illinois 62702
Attn: Compliance Section Manager
Illinois Environmental Protection Agency
Division of Air Pollution Control
Intercontinental Center
1701 First Avenue
Maywood, Illinois 60153
Attn: Mel Villalobos
If White Cap chooses to accept this variance subject to the above order, within forty-
five days of the grant of the variance, White Cap must execute and forward the attached
certificate of acceptance and agreement to:
Christina L. Archer
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 N. Grand Avenue East
Springfield, Illinois 62702
Once executed and received, that certificate of acceptance and agreement shall bind White Cap
to all terms and conditions of the granted variance. The 45-day period shall be held in
abeyance during any period that this matter is appealed. Failure to execute and forward the
certificate within 45 days renders this variance void. The form of the certificate is as follows:
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CERTIFICATION
I (We), ______________________________________________, hereby accept and
agree to be bound by all the terms of the Order of the Pollution Control Board in PCB
98-24, December 4, 1997.
_________________________________
Petitioner
_________________________________
Authorized Agent
_________________________________
Title
_________________________________
Date
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this
order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 145 Ill. 2d
R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the
above opinion and order was adopted on the 4th day of December 1997, by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
