ILLINOIS POLLUTION CONTROL BOARD
February 19, 1998
MINNESOTA MINING AND
MANUFACTURING COMPANY,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 95-90
(Variance - Air)
OPINION AND ORDER OF THE BOARD (by M. McFawn):
Before the Board is the “Petition for Declaration of Compliance or in the Alternative,
for Variance” filed by Minnesota Mining and Manufacturing Company (3M). After reviewing
the petition and the evidence submitted at hearing, the Board grants 3M a variance from 35 Ill.
Adm. Code 218.Subpart QQ, subject to the conditions set forth below. The Board notes that
3M withdrew its request for a compliance declaration at the hearing. Tr. at 18.
PROCEDURAL HISTORY
3M filed its original petition on March 10, 1995. In its petition 3M sought a
declaration that it was in unquestioned compliance with 35 Ill. Adm. Code 218.204 or, in the
alternative, a variance from the requirements of 35 Ill. Adm. Code 218.Subpart QQ, from
March 15, 1995, to March 15, 1997. The Board received one objection to the granting of the
variance, from Patrick Rogers, township supervisor for Lyons Township.
The petition concerned regulation of air emissions from 3M’s adhesive and saturant
compounding operation at it’s plant in Bedford Park, Illinois. 3M and the Illinois
Environmental Protection Agency (Agency) attempted to resolve the regulatory status of 3M’s
compounding operations at the plant through 3M’s participation in the federal “Regulatory
Reinvention (XL) Pilot Project” (Project XL). In 1995, 3M was accepted into the federal
Project XL program, to develop and implement innovative environmental programs at the
facility. 3M met several times with representatives of the Agency, the U.S. Environmental
Protection Agency (USEPA), and other stakeholders to develop its Project XL agreement.
Ultimately, 3M found that USEPA did not interpret the Project XL objectives consistently with
3M’s understanding of the program when it submitted it’s proposal; 3M subsequently
withdrew from the Project XL program. Pet. Ex. 1 at 3.
On March 12, 1997, 3M filed an “Amendment to Petition for Declaration of
Compliance or in the Alternative, for Variance,” by which it extended the term of the
requested variance to March 15, 1999. On July 1, 1997, 3M filed a “Second Amendment to
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Petition for Declaration of Compliance or, in the Alternative, for Variance” (2nd Am. Pet.),
updating the original petition with new information.
3M requested a hearing in its petition. A hearing was held before Board Hearing
Officer Deborah Feinen on December 5, 1997. At the hearing, 3M entered into evidence a
letter from Mr. Rogers, as well as State Representative Eileen Lyons and State Senator
Christine Radogno, supporting the grant of the requested variance to 3M. Res. Ex. 1.
BACKGROUND
3M operates a plant in Bedford Park, Illinois, where it manufactures pressure sensitive
tape. 3M manufactures over 70 different tape products and uses over 100 distinct coatings at
the plant. Pet. Ex. 1 at 1.
The first step in the coating process at Bedford Park is the production of adhesives and
saturants in the compounding area. The compounding area is composed of several rooms
containing seven blenders and three moguls. The product produced in the moguls and blenders
is not the final product applied to the substrates eventually coated; the product has an active
ingredient added in separate mixers and churns just before application to substrates. Tr. at 9-
10. Thereafter, the product is applied on the coating lines of the plant. Pet. Ex. 1 at 5.
All of the adhesives and saturants produced by 3M at the Bedford Park plant are used
on-site. Pet. Ex. 1 at 5. Most manufacturing facilities engaged in coating, however, obtain
their coatings from off-site and only perform the final steps needed to prepare the coatings for
application. The manufacturing of coatings generally occurs at other facilities that specialize
in producing certain types of coatings. Tr. at 10. These other facilities are regulated as
manufacturers of coatings under Subpart QQ rather than appliers of coatings under Subpart F
or Subpart PP of Section 218. Tr. at 11, 12.
STATUTORY AND REGULATORY FRAMEWORK
Jurisdiction and Authority
The Board's jurisdiction and authority in this matter arise from the Environmental
Protection Act (Act), 415 ILCS 5 (1996). In determining whether a variance is to be granted,
the Act requires the Board to decide if 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) (1998). Furthermore, the petitioner bears the burden of proving
that its claimed hardship outweighs the public interest in attaining compliance with regulations
designed to protect the public. Willowbrook Motel v. Pollution Control Board, 135
Ill.App.3d 343, 481 N.E.2d 1032 (1st Dist. 1977). Only by such a showing can the claimed
hardship rise to the level of arbitrary or unreasonable hardship.
A further feature of a variance is that it is, by its very nature, is a temporary reprieve
from compliance with the Act or Board regulations, and compliance is to be sought regardless
of the hardship which eventual compliance presents an individual polluter. Monsanto Co. v.
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Pollution Control Board, 67 Ill.2d 276, 287, 367, N.E.2d 684, 688 (1977). Accordingly, a
variance petitioner is required, as a condition to grant of variance, to commit to a plan which
is reasonably calculated to achieve compliance within the term of the variance, unless certain
special circumstances exist.
Section 36(a) of the Act (415 ILCS 5/36(a) (1998)) provides that “[i]n granting a
variance the Board may impose such conditions as the policies of this Act may require.” The
Agency 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) (1998).
Standard from which Variance is Sought
3M seeks a variance from the requirements of 35 Ill. Adm. Code 218.940 through
218.946 (collectively, Subpart QQ). Subpart QQ imposes general emission requirements on
manufacturing processes which are not subject to other specific provisions of Part 218.
Certain sources are excepted from the operation of Subpart QQ (see 35 Ill. Adm. Code
218.940(g)), but none of these exceptions applies to 3M. The provision of Subpart QQ of
greatest impact to 3M is Section 218.946, which provides:
Every owner or operator of a miscellaneous formulation manufacturing process
emission unit subject to this Subpart shall comply with the requirements of
subsection (a) or (b) below.
a)
Emission capture and control techniques which achieve an overall
reduction in uncontrolled VOM emissions of at least 81 percent from
each emission unit, or
b)
An equivalent alternative control plan which has been approved by the
Agency and the USEPA in a federally enforceable permit or as a SIP
revision.
3M and the Agency are negotiating an Environmental Management System (EMS)
agreement, which pursuant to Section 52.3-3 of the Act (415 ILCS 5.52.3-3 (1998)) would
supersede any inconsistent regulations. (The EMS agreement is discussed in more detail below
under “Compliance Plan.”) 3M seeks a variance to avoid noncompliance until the EMS
agreement has been finalized.
Applicability of Subpart QQ
The Agency takes the position that 3M’s compounding operation is separate from its
coating operation: the compounding operations are the formation, rather than application, of
coatings. In its initial petition, 3M took the position that the compounding operation should be
regulated as part of the coating operation
(i.e.
, under Subpart F of Section 218 rather than
Subpart QQ). This position was the basis of 3M’s request for a declaration that it was in
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unquestioned compliance with Section 218.204. At the hearing, the parties stated that they
had agreed to proceed with the request for variance, and that 3M was no longer seeking the
declaration of compliance with Section 218.204. Tr. at 18. Based on the testimony of
Christopher Romaine, a Unit Manager for the Agency, the Board finds that the coating and
compounding operations, although related and located at the same facility, are separate for the
purposes of regulation under Part 218. Accordingly, the Board concludes that Subpart QQ
applies to 3M’s compounding operation.
COMPLIANCE PLAN
As a means of compliance, 3M intends to enter into an EMS agreement with the
Agency. EMS agreements are authorized as part of a program created under Section 52.3-1 of
the Act (415 ILCS 5/52.3-1 (1998)). The program is described in Section 52.3-1(b), which
provides in part:
It is the purpose of this Section to create a voluntary pilot
program by which the Agency may enter into Environmental
Management System Agreements with persons regulated under
this Act to implement innovative environmental measures not
otherwise recognized or allowed under existing laws and
regulations of this State if those measures:
1.
achieve emissions reductions or reductions in discharges
of wastes beyond the otherwise applicable statutory and
regulatory requirements through pollution prevention or
other suitable means; or
2.
achieve real environmental risk reduction or foster
environmental compliance by other persons regulated
under this Act in a manner that is clearly superior to the
existing regulatory system.
Section 52.3-2(a) of the Act (415 ILCS 5/52.3-2(a) (1998)) authorizes the Agency to
enter into EMS agreements even if terms of the agreement would be inconsistent with other
applicable State statutes or regulations. Under Section 52.3-3(a) of the Act (415 ILCS 5/52.3-
3(a) (1998)), inconsistent statutes or regulations do not apply during the term of the EMS
agreement.
Under the strategy proposed by 3M for its EMS agreement, 3M would provide overall
reductions equal to 100% of volatile organic material (VOM) emissions from its compounding
operations. Tr. 15. (Total emission from compounding operation moguls and blenders are
only approximately 2% of total facility emissions, and total facility emissions are already
substantially below regulatory limits. Pet. Ex. 1 at 7.) This would enable 3M to more
effectively use resources that it would otherwise have expended for a control system for the
compounding operation. For instance, 3M would be able to reduce VOM emissions elsewhere
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at the facility much more productively by further controlling VOM emissions from the coating
lines, which generate the overwhelming majority of the plant’s emissions. Tr. at 15.
PAST EMISSION REDUCTION EFFORTS
3M describes the Bedford Park plant as a “model for achieving superior environmental
performance.” 2nd Am. Pet. at 3. The Bedford Park plant has been the site of a number of
emissions-reduction initiatives by 3M. In 1991, 3M accepted a voluntary limit on VOM
emissions from its control line of 4,500 tons per year (TPY). The corresponding reductions
(2,885 tons) were returned to the State for air quality improvement. In 1994, 3M voluntarily
reduced its VOM emissions limit to 4,000 TPY, and donated 500 tons of emission reduction
credits to the State and the City of Chicago for air quality improvement and economic
development purposes. Also in 1994, 3M received a permit for construction of a new coating
line, the 6G line. 3M offset the emissions from the new line by overcontrolling emissions
from two other lines. 3M’s current plant-wide VOM emission cap is 3,822 TPY. Pet. Ex. 1
at 1-2.
To date, 3M has already reduced the VOM emissions from its compounding operations
substantially. This reduction was a result of various process improvements, including the
replacement of blender tops, the installation of a system to air convey solids to the blenders
and moguls, and the installation of new reflux condensers on each of the blenders. By 1995,
improvements to 3M’s compounding operations had reduced emissions from blenders and
moguls by nearly 81% from 1988 levels. This reduction is comparable to the reduction
intended by Subpart QQ. Pet. Ex. 1 at 5.
HARDSHIP
The Agency’s concern is the loss of VOM into the workrooms in which the moguls and
blenders are located, which occurs when the units are charged with raw materials. The VOM
emissions resulting from the charging of raw materials are mixed with and dispersed in the
room ventilation air and discharged as part of the room ventilation system. Tr. at 9-10. Total
air flow necessary to capture all emissions from the rooms where compounding blenders and
moguls are located is in excess of 30,000 cfm. 3M cannot reasonably duct the amount of air
flow from the compounding area to one of the existing oxidizers at the facility; to further
control emissions from this area, 3M would most likely need to duct the entire airflow from
the compounding facilities to an entirely new control device. The duct work necessary to vent
these rooms to the control device would be expensive and time-consuming to construct. Pet.
Ex. 1 at 7-8.
Although 3M has not provided actual costs to control emissions from the compounding
operations, the Agency agrees that controls would be costly, involving either a permanent
system of partial capture on the individual compounding operations or total enclosure for the
rooms in which the compounding operations are located, where such systems were not
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contemplated in the original design of these areas and cannot now be readily accommodated.
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Neither of these options, the Agency agrees, is practical. (The Agency has expressed
confidence that the cost of a control system would exceed what the Board has previously
considered reasonable. Tr. at 14.) Thus, if required to comply with Subpart QQ, 3M could
be forced to dramatically reduce production of adhesives and saturants at the plant, which
could potentially paralyze 3M’s operations at the plant, since the compounding operations are
the first step in plant operations.
ENVIRONMENTAL IMPACT
As is noted above, the Bedford Park plant is already well under emissions limits, and
under the described EMS agreement total emissions will be further reduced. Already, 3M has
agreed to accept a plant-wide emissions cap of 2,790 TPY under its operating permit for the
new 6G coating line. This represents a reduction of 1,032 TPY; 200 TPY of this reduction is
not being reallocated elsewhere, but is being retired to improve air quality. 3M and the
Agency have agreed that 3M’s baseline under the Emission Reduction Market System (ERMS)
program will be further reduced because the emissions from the plant’s mixers and churns will
not be included in calculating emissions from its coating line. Thus, 3M’s seasonal allotment
under ERMS for 1999 and thereafter will be approximately 1,023 tons. These voluntary
reductions in 3M’s baseline will achieve environmental results superior to strict compliance
with Subpart QQ.
CONSISTENCY WITH FEDERAL LAW
Under Section 35 of the Act, the Board can grant variances only if they are consistent with
the federal Clean Air Act (P.L. 95-95, as amended). Because the plant is located in a severe
ozone nonattainment area, a variance from the requirements of Subpart QQ will be subject to
separate USEPA approval. Assuming such approval, the Board is unaware of any other federal
law which would prohibit the granting of the requested variance.
RETROACTIVE RELIEF
3M seeks a variance from March 15, 1995, to March 15, 1999,
i.e.
, a retroactive
variance. Although the Board does not generally grant variances retroactively, retroactive
variances have been granted upon specific justification. Deere & Company v. IEPA
(September 8, 1988), PCB 88-22. The Board has stated that the reasoning behind the general
policy is to discourage untimely filed petitions for variance,
i.e.
, variances filed after the start
of the claimed arbitrary or unreasonable hardship creating the desire for a retroactive start, and
because the failure to request relief in a timely manner is a self-imposed hardship. See
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3M estimates that a control device necessary to handle the intermittent operations and this
amount of air flow would require an initial capital cost in excess of $1,000,000. In addition,
operating costs would also be excessive since most of the time a very low amount of VOM
would be conveyed to the oxidizer. Pet. Ex. 1 at 8.
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Fedders-USA v. IEPA (April 6, 1989), PCB 86-47; DMI, Inc. v. IEPA (February 23, 1987),
PCB 88-132; and American National Can Company v. IEPA (August 31, 1989), PCB 88-203.
In this case, the petition for variance was filed prior to the rules from which a variance
was sought becoming effective. The long duration of this petition is due to the extensive
negotiations surrounding 3M’s participation in the federal XL Program and its proposed EMS
agreement with the Agency. The Board does not believe that these circumstances are in the
nature of a “self-imposed hardship.” The Board finds that granting of retroactive relief in this
case will not violate the policies behind the Board’s disfavor of retroactive variances. The
Board will therefore grant 3M’s variance for the requested period.
CONCLUSION
The Board finds that 3M will suffer a substantial hardship if forced to comply with the
provisions of Subpart QQ. The Board also finds, in light of the total emission reductions
proposed for the Bedford Park plant, that the hardship outweighs the public’s interest in
enforcement of the requirements of Subpart QQ. The Board further finds that 3M’s
compliance plan is reasonably calculated to achieve compliance within the term of the
requested variance. The Board accordingly grants 3M a variance from the requirements of
Subpart QQ. A condition of this variance will be 3M’s acceptance of limits on VOM
emissions and seasonal allotments under ERMS of 2,455 TPY and 1,023 tons, respectively.
This condition, to which 3M has agreed, will ensure that there is no adverse effect on the
environment as a result of the variance.
The term of the variance will be from March 15, 1995, to March 15, 1999. The
Agency included in its proposed language an alternative termination date of “the date the
Illinois EPA and 3M enter into an ‘Environmental Management Systems Agreement’ under
Section 52.3 of the Act[.]” Under Section 52.3-3(a) of the Act, any regulations inconsistent
with an EMS agreement do not apply during the term of the agreement. Thus, this alternative
termination date is superfluous. This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
3M is granted a variance from the requirements of 35 Ill. Adm. Code 218.Subpart QQ
for the compounding operations at its Bedford Park plant from March 15, 1995, to March 15,
1999. 3M must accept limitations on emissions of VOM and seasonal allotment under the
ERMS program of 2,455 TPY and 1,023 tons per season, respectively.
If 3M chooses to accept this variance subject to the above order, then within 45 days of
the date of this order 3M must execute and forward to:
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Laurel Kroack
Illinois Environmental Protection Agency
Division of Legal Counsel
1021 North Grand Ave., East
Springfield, IL 62702
a certificate of acceptance and agreement to be bound to all terms and conditions of the granted
variance.
Such acceptance must be signed by an officer of 3M, duly authorized to bind 3M to all
of the terms and conditions of the final Board order in this matter.
The 45-day period will 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 and of no force and effect as a shield
against enforcement of rules from which the Board has granted relief.
The form of the
Certificate of Acceptance should be substantially similar to the following:
CERTIFICATE OF ACCEPTANCE
Minnesota Mining and Manufacturing Company hereby accepts and agrees to be bound
by all the terms and conditions of the order of the Pollution Control Board adopted on
February 19, 1998, in PCB 95-90.
MINNESOTA MINING AND
MAUFACTURING COMPANY
By:
______________________________
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.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the 19th day of February 1998, by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
