9941v2.PDF

ILLINOIS POLLUTION CONTROL BOARD

November 19, 1998

WHITE CAP, INC.,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB 99-41

(Variance - Air)

OPINION AND ORDER OF THE BOARD (by J. Yi):

This matter comes before the Board on a petition for extension of variance filed

September 2, 1998, by White Cap, Inc. (White Cap).

In the petition, White Cap requests an

extension of its prior variance from capture efficiency (CE) testing requirements of the Board’s

air emissions regulations for volatile organic material (VOM).

See 35 Ill. Adm. Code

218.105(b), 218.205(c)(2), and 218.211.

In summary, White Cap requests time to complete plant modernization which may

allow it to avoid the need for CE testing. If CE testing is necessary, White Cap requests time

to do it using an alternative test method. In furtherance of its plan, White Cap makes three

requests in its petition. First, White Cap requests that the Board extend its variance until

December 31, 1999. Second, White Cap requests that the Board grant it retroactive relief

from September 7, 1998, the date on which its prior variance granted by the Board in White

Cap, Inc. v. IEPA, PCB 98-24 expired. Finally, White Cap asks that the Board not include

the requirement that White Cap demonstrate compliance with 35 Ill. Adm. Code 218.207(b)(2)

contained within condition 5 of the variance granted in White Cap, Inc. v. IEPA, PCB 98-24.

On October 1, 1998, the Illinois Environmental Protection Agency (Agency) filed its

recommendation that variance be granted until either White Cap obtains a federally enforceable

Clean Air Act Permit Program (CAAPP) permit or 90 days after Illinois revises its State

The petition for variance will be cited as Pet. at __; the recommendation of the Illinois

Environmental Protection Agency will be cited as Rec. at __; White Cap’s response will be

cited as Resp. at __; and the hearing transcript from White Cap, Inc. v. IEPA (November 7,

1996), PCB 96-191 will be cited as Tr.96-191 at __.

On December 4, 1997, the Board extended White Cap’s variance until White Cap obtained a

federally enforceable state operating permit pursuant to the CAAPP or on

September 7, 1998, whichever is sooner (see White Cap v. IEPA (December 4, 1997), PCB

98-24)). White Cap’s variance history is outlined in this opinion in the section entitled “Prior

History.” See

infra

at 4-5.

Implementation Plan (SIP) to incorporate alternative CE testing, but in no case later than

December 31, 1999. On October 16, 1998, White Cap filed a response.

In its petition, White Cap waived hearing. Pet. at 14. White Cap also requested that

the Board incorporate into its petition the record in White Cap, Inc. v. IEPA, PCB 98-24. Pet

at 1. On October 1, 1998, the Board granted White Cap’s motion to waive hearing and to

incorporate the record in White Cap, Inc. v. IEPA, PCB 98-24 into this instant petition. See

White Cap, Inc. v. IEPA (October 1, 1998), PCB 99-41.

For the reasons below, the Board finds that to require White Cap to immediately

comply with CE test method requirements would continue to impose an arbitrary or

unreasonable hardship. The Board further finds White Cap has demonstrated satisfactory

progress toward achieving compliance during the term of its prior variance. The Board

therefore grants White Cap’s variance, subject to conditions, until December 31, 1999. The

Board grants White Cap’s request for retroactive relief from September 7, 1998. By August,

3, 1999, White Cap must notify the Agency whether it will replace the temporary enclosed

lines (non-PTE) with new permanently enclosed lines (PTE) or whether it will conduct CE

testing on the remaining non-PTE lines. The Board also grants White Cap’s request to delete

the requirement that it demonstrate compliance with 35 Ill. Adm. Code 218.207(b)(2)

contained within condition 5 of the variance granted in White Cap, Inc. v. IEPA, PCB 98-24.

Finally, this variance extension terminates January 19, 1999, if by that date, White Cap fails

to negotiate an extension of its existing consent agreement with the United States

Environmental Protection Agency (USEPA) and if White Cap fails to notify the Agency of

such extension.

The Board’s responsibility in this matter arises from the 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 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 investigate each variance petition and make a recommendation to the Board as to

the disposition of the petition. 415 ILCS 5/37(a) (1996).

BACKGROUND

White Cap employs approximately 600 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 United States manufacturer of metal closures or caps for baby foods, pickles,

preserves, juices, and iced teas. Tr.96-191 at 7, 46. In the manufacturing process, multiple

layers of coatings are applied to sheet metal. Tr.96-191 at 47. The process results in VOM

emissions which subject White Cap to the Board’s VOM emissions regulations set forth at 35

Ill. Adm. Code 218. Tr.96-191 at 47. Strips of metal are then fed into a dye and shells are

punched out, creating the closures and caps. Tr.96-191 at 48-49.

Originally, White Cap operated twelve process lines that consisted of four printing lines

and eight coating lines. Tr.96-191 at 26. Seven catalytic oxidizers controlled VOM emissions

from these lines. Tr.96-191 at 26. White Cap has modernized its facility by replacing six of

its old non-PTE lines with three new, state-of-the-art, PTE lines at a cost of $9 million. Pet.

at 2. White Cap has also rebuilt three of its catalytic oxidizers to increase their destruction

efficiency at a cost of $600,000. Pet. at 2. White Cap has also replaced the other four

catalytic oxidizers with a regenerative thermal oxidizer at a cost of $1 million. Pet. at 2.

White Cap had planned to complete the replacement of the remaining six older non-

PTE lines with new PTE lines by December 1998. Pet. at 2. Due to unforeseen delays and

performance problems with the new PTE lines, White Cap states it must postpone replacing

the remaining older non-PTE lines until it can solve the performance problems with its new

PTE lines and ensure that the new PTE lines will provide the necessary productivity gains to

justify their cost. Pet. at 2.

White Cap states that it remains committed to its modernization program but that it

needs additional time to focus on correcting the performance problems. Pet. at 2. White Cap

requests an extension of its variance until December 31, 1999. Pet at 2. By that time, White

Cap believes it will have solved the performance problem and removed its remaining old non-

PTE lines and replaced them with new PTE lines. Pet. at 2. In the event that it is unable to

resolve the performance problems, White Cap requests the extension until December 31, 1999,

so that it can properly perform the requisite CE testing and submit the final test reports to the

Agency and the USEPA. Pet. at 2.

REGULATORY FRAMEWORK

In determining whether any variance is to be granted, Section 35(a) of 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). 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. See 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. City of St. Charles v. IEPA

(July 21, 1991), PCB 91-58.

The instant variance concerns VOM emission 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:

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 is approved by

the Agency and approved by the USEPA [United States Environmental

Protection Agency] as a SIP revision. 35 Ill. Adm. Code 218.105(c)(2).

Section 218.108

Exemptions, Variations, and Alternative Means of Control or

Compliance Determination

Notwithstanding the provision of any 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 108(b).

PRIOR HISTORY

On April 22, 1993, the Board granted White Cap a variance from the requirements of

the Board’s air pollution control regulations for miscellaneous metal coating operations found

at 35 Ill. Adm. Code 218.105, 218.205, 218.207, and 218.211. The Board determined that

compliance with the CE testing regulations would cause an arbitrary or unreasonable hardship

on White Cap because it was technically and/or economically infeasible to conduct the CE tests

pursuant to the approved test methods. See Continental White Cap, Inc. v. IEPA (April 22,

1993), PCB 92-55, slip op. at 4. The variance granted in Continental White Cap, Inc. v.

IEPA, PCB 92-55 permitted White Cap to operate its original 12 lines without conducting CE

tests as required by Section 218.207(b)(2) until July 1, 1993, or until USEPA made a final

determination on White Cap’s pending federal implementation plan (FIP) revision request,

whichever was later.

Id.

The USEPA did not take final action on White Cap’s FIP revision nor did it complete

its review of the CE testing methods on or before July 1, 1993. On July 22, 1993, the Board

issued an order in Continental White Cap, Inc. v. IEPA, PCB 92-55, extending the variance

date until the USEPA took final action on White Cap’s FIP request or April 22, 1994,

whichever was earlier. See Continental White Cap v. IEPA (July 22, 1993), PCB 92-55, slip

op. at 3.

On August 11, 1994, the Board granted an extension of the variance until the USEPA

took final action on White Cap’s FIP revision request or April 22, 1996, whichever was

earlier. White Cap v. IEPA (August 11, 1994), PCB 94-93, slip op. at 1.

In 1995, the USEPA finally approved alternative CE test methods and recommended

that states, such as Illinois, that had already adopted the previous test methods into their State

Implementation Plans (SIPs), but wanted to allow the use of the new alternative CE test

methods, should revise their SIPs. Exh. 1 at 4. Thereafter, the USEPA negotiated a consent

decree with White Cap whereby White Cap agreed to conduct CE testing on any non-PTE

lines by December 5, 1998. Exh. 1 at 4-5. Accordingly, on March 6, 1996, White Cap

submitted a request for extension of variance. The Board extended the variance until the

Agency should issue White Cap a federally enforceable CAAPP permit, or 90 days following a

SIP revision incorporating the alternative CE testing methods, but no later than January 12,

1998. See White Cap, Inc. v. IEPA, PCB 96-191.

On December 4, 1997, the Board again extended White Cap’s variance until White Cap

obtained a federally enforceable CAAPP permit or on September 7, 1998, whichever was

sooner. See White Cap, Inc. v. IEPA, PCB 98-24.

In this action before the Board, White Cap requests the Board extend the variance until

December 31, 1999, so that it can either solve the performance problems on the new PTE lines

and replace the remaining non-PTE lines with new PTE lines, or perform the requisite CE

testing.

COMPLIANCE PLAN

White Cap has modernized its facility by replacing six of the twelve non-PTE lines

with three new, state-of-the-art, PTE lines. Pet. at 2. Two of those old non-PTE were

replaced with one new PTE line since the Board granted the most recent variance extension in

White Cap, Inc. v. IEPA, PCB 98-24. Pet. at 11.

White Cap had planned to complete the replacement of the remaining six non-PTE lines

with new PTE lines by December 1998. Pet. at 2. Unforeseen delays and performance

problems with the three new PTE lines have meant that the new lines have not yet produced

the expected production levels to justify their expense. Pet. at 9. The first and second lines

White Cap purchased and installed resulted in mechanical and electrical problems that required

reworking, such as parts failures and poor designs. Pet. at 8-9. White Cap has experienced

installation problems with the third new PTE line and has been “debugging” it since March of

1998. Pet. at 9. While White Cap has a purchase order approved and an initial downpayment

made for the next new PTE line, White Cap is holding off making further payments, accepting

delivery, and installing the next new line until it identifies and corrects the performance

problems with the existing third line. Pet. at 9. White Cap states that it has been forced to

outsource a portion of its production during the installation of the three new PTE lines. Pet. at

10. If White Cap must install new lines prior to solving its production problems, White Cap

believes that it will be forced to outsource a significant portion of its production, thereby

severely curtailing its ability to stay in business. Pet. at 10.

White Cap asserts that it is committed to completing its modernization program by

1999. In furtherance of this goal, White Cap plans to do one of the following: (1) if White

Cap resolves its performance problems with the existing PTE lines by July 31, 1999, White

Cap will replace the remaining six lines with PTE lines by December 31, 1999; or (2) if, by

July 31, 1999, White Cap is unable to resolve its performance problems with the new lines, by

December 31, 1999, White Cap will conduct CE testing. Pet. at 10-11. White Cap states it is

negotiating with the USEPA to extend the time from December 5, 1998, to December 31,

1999, by which White Cap will either remove the old non-PTE lines to be replaced with new

PTE lines or test the old non-PTE lines for CE. Pet. at 11.

White Cap points out that while it has requested variance relief since 1993, it was not

until White Cap, Inc. v.

IEPA, PCB

98-24, that White Cap asked for an extension of time in

which to actually conduct the CE tests. White Cap states that the previous variance extensions

were sought because either the USEPA had not developed the necessary test methods, or the

Agency had not yet provided for the use of said test methods in a federally enforceable

CAAPP permit or in Illinois’ SIP.

The CAAPP permit is necessary before White Cap can

use alternative CE test methods, since no SIP revision has been made to allow use of the

alternative CE tests.

White Cap asserts that the Agency will not finalize the CAAPP permit until mid 1999,

or later, due to the Agency’s review of numerous CAAPP permits for the ERMS sources.

Resp. at 5. By agreeing that the variance extension is warranted and not offering another

viable date to conduct the CE testing, White Cap asserts that the Agency agrees that

December 31, 1999, is a reasonable date for the variance to expire. Resp. at 3-4. Thus,

White Cap concludes that extending the variance until December 31, 1999 is not only

reasonable to allow White Cap’s modernization program to continue but is consistent with the

In White Cap v.

IEPA, PCB

96-191, the Board extended White Cap’s variance until the

Agency issued White Cap a federally enforceable CAAPP permit allowing White Cap to

conduct CE testing using the alternative test methods or until 90 days following a SIP revision

incorporating the alternative CE 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. In White Cap v. IEPA, PCB 98-

24, the Board extended the variance until September 7, 1998, finding that it was impractical

for the Agency to issue White Cap a federally enforceable CAAPP permit by January 12,

1998, as the Agency had not completed review of the Emissions Reduction Market System

(ERMS) applications.

amount of time that may be needed by White Cap to obtain a final, effective, federally

enforceable CAAPP permit. Resp. at 5.

The Agency states that the variance should be extended only until the Agency issues a

final, effective, federally enforceable CAAPP permit or until 90 days after the revision of the

Illinois SIP to incorporate the alternative CE test methods, whichever occurs first, but in no

case later than December 31, 1999. Rec. at 5. The Agency disagrees that the variance should

be extended outright until December 31, 1999. Rec. at 5.

In response to the Agency’s recommendation, White Cap asserts that the CAAPP

permit process is still in its early draft stages. Resp. at 5. White Cap maintains that, given

the lengthy CAAPP permitting process, it is unlikely that the Agency will issue a final,

effective, federally enforceable CAAPP permit until June 1999. Resp. at 5. If the USEPA

becomes involved in the permitting process, White Cap alleges that the permitting process

could extend beyond that projected date. Resp. at 5. Even if the Agency issues a CAAPP

permit by June 1999, White Cap asks that the Board allot it time to decide which compliance

plan it will implement,

i.e.,

replace non-PTE lines with PTE lines or conduct CE testing.

White Cap states that it is committed to making a compliance decision by July 31, 1999, and

committed to implementing that plan by December 31, 1999.

If the Board accepts the Agency’s recommendation that the variance expire at the time

the Agency issues a final, effective, federally enforceable permit, White Cap requests that the

Board’s order: (1) provide time for White Cap to determine whether additional lines will be

removed; (2) require White Cap to conduct CE tests only on non-PTE lines which will not be

removed before December 31, 1999, or provide reasonable amount of time to remove the

lines; (3) provide for a reasonable amount of time to conduct CE testing, if necessary; (4)

allow for the use of alternative CE tests set forth in the USEPA CE Guidance Memorandum

dated February 7, 1995; and (5) provide time for White Cap to submit final tests to the

Agency. Resp. at 5-6.

White Cap states that it cannot test the CE of its lines “on demand,” but must have a

reasonable amount of time to conduct such tests. Resp. at 6. Prior to conducting such tests,

White Cap must provide a minimum of 30 days notice to the Agency and the USEPA, setting

forth the test parameters. Resp. at 6. Moreover, the CE testing will require White Cap to run

the same product through the lines for several days; thus White Cap, a facility that runs several

products on each of its lines every day based on customer demand, could be required to

produce the same product when it is not certain it has the customer base to support such

product. Resp. at 6.

ALLEGED ARBITRARY OR UNREASONABLE HARDSHIP

White Cap states that in White Cap, Inc. v. IEPA, PCB 98-24 and the prior variances

granted in this matter, the Board found that an arbitrary or unreasonable hardship would result

if White Cap was not granted an extension of its variance until the Agency issued a final,

effective, federally enforceable CAAPP permit or Illinois modified its SIP to include

alternative CE testing. Pet. at 13. White Cap maintains that the situation has not changed.

To date, White Cap has not been issued a final, effective, CAAPP permit. Moreover, Illinois

has not modified its SIP. Pet. at 13.

In the short term, White Cap alleges that if the petition is not granted, White Cap

would be left with no mechanism to demonstrate compliance with the Board’s regulations

because it does not have a final CAAPP permit which would allow alternative CE testing.

Pet. at 13-14. In the long term, White Cap argues that if the petition is not granted, White

Cap will have to immediately conduct costly CE testing when it could be focusing its efforts

towards resolving the performance problems with its existing PTE lines, so that it can continue

to replace its old lines with new PTE lines. Pet. at 14. Therefore, White Cap asserts that

immediate compliance with the Board’s regulations will result in an unreasonable or arbitrary

hardship.

The Agency agrees that the Board previously found an arbitrary or unreasonable

hardship existed in its grant of the prior variances in this matter. Rec. at 8. The Agency

acknowledges that White Cap does not currently have a final, effective, federally enforceable

CAAPP permit allowing it to use the alternative CE test methods. Rec. at 8. Consequently,

the Agency agrees that requiring White Cap to conduct CE testing now using its current non-

PTE lines would cause an arbitrary or unreasonable hardship since it would place White Cap in

the position of having to comply with air regulations which require CE testing by methods that

White Cap could not feasibly accomplish. Rec. at 8-9. However, the Agency disagrees that

an arbitrary or unreasonable hardship will exist for White Cap once a federally enforceable

CAAPP permit is issued or 90 days after alternative CE test methods are incorporated into the

Illinois SIP. Rec. at 9-10.

ENVIRONMENTAL IMPACT

White Cap states that it is in compliance with emission standards set forth in Illinois’

air pollution regulations, but cannot demonstrate compliance through the required test

methods. Pet. at 11. Therefore, White Cap alleges that a grant of variance extension

regarding the date by which emission testing must be completed would not pose an

environmental or human health threat. Pet. at 11-12. White Cap further asserts that, because

of its ongoing modernization program, it has had a positive impact on the air quality in the

Chicago nonattainment area. Pet. at 12.

The Agency maintains that the issuance of the requested variance may result in an

environmental impact. Rec. at 6. The Agency states that White Cap emitted 241 tons per

year (TPY) of VOM in 1995, 209 TPY of VOM in 1996, and 206 TPY of VOM in 1997.

Rec. at 6. As White Cap is a major source of air pollution (see 42 U.S.C. § 302 (1990); 415

ILCS 5/39.5 (1996)) and VOM contributes to the formation of ozone, the Agency concludes

that the grant of variance extension may have an impact on ozone in the Chicago

nonattainment area. Rec. at 6.

CONSISTENCY WITH FEDERAL LAW

Pursuant to Section 35 of the Act (415 ILCS 5/35 (1996)), the Board may grant

variances only if they are consistent with applicable provisions of federal law,

i.e.,

the Clean

Air Act (42 U.S.C. § 7401

et seq.

(1990)). White Cap states that it is working with the

USEPA to modify the consent agreement to extend the deadline for CE testing until

December 31, 1999, so that the variance will be consistent with federal law. Pet. at 11.

The Agency states that the 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 218.108(b). Rec. at 7. The Agency notes that the consent agreement into which White

Cap and the USEPA entered granted White Cap an extension of time to conduct CE testing

until December 5, 1998. Rec. at 8. The Agency states that, if the consent agreement is

extended, the requested variance would be consistent with federal law. Rec. at 8.

VARIANCE CONDITIONS

Conditions 4 and 5

The Agency recommends that the Board continue to impose the requirements of

condition 4 in White Cap, Inc. v. IEPA, PCB 98-24, which requires daily reporting

requirements for VOM content and weight. Rec. at 10. The Agency also asks that the Board

require White Cap to prepare a monthly report of the daily VOM content reporting

requirements and submit a copy to the Agency on a quarterly basis as it was required in

condition 5 of the Board’s order in White Cap, Inc. v. IEPA, PCB 98-24. Rec. at 10-11.

White Cap agrees to the VOM content reporting requirements that were outlined in

condition 4 of the Board’s order in White Cap, Inc. v. IEPA, PCB 98-24. However, White

Cap disagrees with the Agency’s recommendation regarding quarterly submittals of monthly

reports to the Agency. White Cap states that it will maintain daily records on the premises and

when needed to demonstrate compliance, White Cap will prepare monthly reports for the

Agency’s review. Resp. at 9.

White Cap asks that the Board delete from any variance granted here condition 5 from

the variance in White Cap, Inc. v. IEPA, PCB 98-24, requiring it to demonstrate compliance

with 35 Ill. Adm. Code 218.207(b)(2). Specifically, condition 5 requires White Cap to “. . .

demonstrate White Cap’s compliance with 35 Ill. Adm. Code 218.207(b)(2).” See White

Cap, Inc. v. IEPA, PCB 98-24, slip op. at 9-10. White Cap asserts that it is unable to satisfy

this requirement because an integral part of demonstrating compliance with this section is that

White Cap perform CE. Pet. at 15. White Cap cannot demonstrate compliance with this

section because it has variance relief from testing for CE. Pet. at 16.

The Agency agrees that the Board should grant relief from the requirement in condition

5 which requires that White Cap submit reports to the Agency demonstrating compliance with

Section 218.207(b)(2). Rec. at 10.

Timing of CE Testing

In its recommendation, the Agency asks that the Board require White Cap to conduct

CE testing 90 days after Illinois revises its SIP. Rec. at 5.

White Cap asks that the Board not include the 90-day post-SIP revision requirement for

CE testing. Resp. at 7. White Cap believes this may not be a reasonable timeframe for White

Cap to conduct such tests, depending upon White Cap’s production demands. Resp. at 7.

Further, if White Cap decides to replace the old lines with new PTE lines, but is unable to

replace the lines until the 91st day after a SIP revision, White Cap would still be required to

test on lines which would immediately be nonexistent following the tests. Resp. at 7. As the

Agency has failed to present any support for the reasonableness of the 90-day period, White

Cap requests that the Board not incorporate it into the termination date of this variance. Resp.

at 7.

CAAPP Permit Application

The Agency recommends that White Cap amend its compliance schedule in its CAAPP

permit application, within 30 days after the Board grants the variance, to include requirements

that it test its applicable lines for CE pursuant to either the seven proposed test methods

(Methods 204A through G) or the alternative test methods (

i.e.,

Data Quality Objective or

Lower Confidence Limit) as specified in the USEPA’s CE Guidance Memorandum dated

February 5, 1995. Rec. at 10. This requirement was originally incorporated into condition 2

of the Board’s order in the variance granted in White Cap, Inc. v. IEPA, PCB 98-24.

White Cap responds that the Board need not require it to amend its compliance

schedule at this time. Resp. at 8. White Cap states that is has already amended its CAAPP

permit application to be consistent with its variance petition by stating that it will either replace

the non-PTE lines with PTE lines or it will conduct CE tests pursuant to the alternative test

method set forth in the USEPA’s CE Guidance Memorandum by December 31, 1999. Resp.

at 9.

DISCUSSION

The Board finds that the hardship that existed during the prior variance term continues

to exist for White Cap. Specifically, the Board finds that an arbitrary or unreasonable

hardship would result if White Cap was not allowed to continue modernization but instead was

required to conduct coating line testing pursuant to Section 218.105 before the alternative

testing methods are permitted in a final, effective, federally enforceable CAAPP permit or

until Illinois revises its SIP.

The Board further finds that White Cap has made substantial progress towards

achieving compliance during the term of its prior variance. White Cap continues to negotiate

with the Agency for a CAAPP permit, the receipt of which will allow it to use alternative CE

test methods. In addition, since the Board granted a variance extension in White Cap, Inc. v.

IEPA, PCB 98-24, White Cap has demonstrated its commitment to reducing its total VOM

emissions by replacing two old non-PTE lines with one new state-of-the-art PTE line.

Moreover, White Cap appears committed to resolving the performance problems in its existing

PTE lines so that it can either replace the remaining old non-PTE lines with new PTE lines or

conduct CE testing pursuant to a final, effective, federally enforceable CAAPP permit.

The Board therefore grants White Cap an extension of its prior variance.

Termination Date

The parties disagree over when the variance should terminate. White Cap requests that

the Board extend the variance until December 31, 1999, so that it can do one of the following:

(1) resolve performance problems and replace the old non-PTE lines with new PTE lines; or

(2) conduct CE testing once the Agency issues a final, effective, federally enforceable CAAPP

permit. Resp. at 10. The Agency, however, asks that the Board terminate the extended

variance once White Cap receives a final, effective, federally enforceable permit or 90 days

after Illinois revises its SIP, whichever comes sooner, but in no case later then December 31,

1999. Rec. at 10.

The Board grants variance until December 31, 1999, without the Agency’s

recommended interim condition. The Agency has not demonstrated a rationale or need for its

suggestion. The Board notes that White Cap outlines two compliance plans in its petition for

variance extension: White Cap will conduct CE testing once it receives a final, effective,

federally enforceable CAAPP permit; or it will replace the non-PTE lines with PTE lines,

thereby negating the need for CE testing.

The December 31, 1999 termination date is no large departure from the Agency’s

requested termination condition as the record indicates that a final, federally enforceable

CAAPP permit will not be issued until mid to late 1999. The December 31, 1999 termination

date gives White Cap time to resolve any performance problems with its new PTE lines and to

assess whether to replace the remaining six non-PTE lines with new PTE lines or, upon receipt

of a CAAPP permit, to initiate CE testing. Further, when the CAAPP permit is issued and if

White Cap elects to conduct CE testing rather than replace the non-PTE lines, White Cap has

demonstrated that it will need additional time to properly demonstrate compliance with the

Board’s regulations regarding such testing.

Inception Date/Retroactivity

By its terms, the variance granted in White Cap, Inc. v. IEPA, PCB 98-24, expired on

September 7, 1998. White Cap asks that the Board grant retroactive relief from September 7,

1998. The Agency did not object to White Cap’s request for retroactive relief. Retroactive

relief is appropriate, White Cap asserts, because the two factors causing delay in White Cap’s

ability to either perform CE testing or render such testing moot by installing new PTE lines are

not self-imposed. Pet. at 5; see Minnesota Mining and Manufacturing, Co. v. IEPA

(February 19, 1998), PCB 95-90. First, White Cap states that it cannot immediately perform

CE testing because it has no legal mechanism to do so. Pet. at 5. Negotiations with the

Agency to determine White Cap’s ERMS baseline has delayed issuance of the CAAPP permit

and thus the mechanism by which White Cap can perform CE testing. Second, White Cap

argues that production problems with the new lines have caused it to reformulate its time-table

for completion of the modernization plan.

Regarding the inception date of the requested variance, the Board notes its well-

established practice of beginning the term of a variance on the date the Board renders its

decision, absent unusual or extraordinary circumstances. See

e.g.,

DMI, Inc. v. IEPA

(December 19, 1991), PCB 90-227, 128 PCB 245-249. The Board’s goal thereby is to

discourage untimely filed petitions for variance. Fedders-USA v. EPA (April 6, 1989), PCB

86-47, 98 PCB 15; DMI, Inc. v. IEPA (February 23, 1987), PCB 88-1332, 96 PCB 185.

White Cap has no control over delays regarding issuance of the CAAPP permit. The

Board disagrees with White Cap’s assertions that the performance problems with its new PTE

lines are not self-imposed. White Cap should have filed a petition for variance extension when

it initially experienced performance problems with its new PTE lines.

Notwithstanding, the performance problems, the Board finds that the facts of this case

and the Agency’s support for retroactive relief demonstrate unusual or extraordinary

circumstances which justify retroactive relief. The parties have made good faith efforts to

timely complete the CAAPP permit process. Again here, as we have held previously, “to

expect White Cap to have filed its petition 120 days prior to the expiration date would have

required White Cap to prepare its petition before knowing whether or not the Agency approved

its CAAPP application.” White Cap, Inc. v. IEPA, PCB 96-191, slip op. at 8-9. Considering

all the facts and circumstances in this case, then, the Board finds that the lack of a federally

enforceable CAAPP permit was not self-imposed, and therefore grants White Cap retroactive

relief from September 7, 1998.

Consistency with Federal Law

Finally, the Board finds that this variance expires January 19, 1999, if by that date, the

consent agreement between White Cap and the USEPA is not extended until December 31,

1999. The initial agreement between White Cap and the USEPA provided that White Cap

would test any non-PTE lines by December 5, 1998. The Board provides White Cap and the

USEPA 45 days from the expiration of that consent agreement to negotiate an extension. The

Board finds that White Cap must obtain an extension from the USEPA so that this variance is

consistent with federal law.

Other Variance Conditions

Conditions 4 and 5

Condition 4, contained within the Board’s order in White Cap, Inc. v. IEPA, PCB 98-

24, will be included in today’s order as the parties agree to continued need for the condition.

With regard to the Agency’s request for quarterly submittals of VOM content reports,

the Board includes a condition requiring such reporting. In White Cap, Inc. v. IEPA, PCB

98-24, condition 4 outlined daily reporting requirements regarding VOM content. In condition

5 of the order in White Cap, Inc. v. IEPA, PCB 98-24, the Board required White Cap to

“prepare monthly reports for Agency inspection on the daily records required above . . .

submit one copy of the monthly compliance demonstrations on a quarterly basis” to the

Agency. White Cap, Inc. v. IEPA, PCB 98-24, slip. op. at 9-10. Condition 5 in that order

required White Cap to prepare monthly reports of the daily VOM content records, as required

by condition 4, and to submit those records (along with a 35 Ill. Adm. Code 218.207(b)(2)

compliance demonstration) to the Agency on a quarterly basis.

While the Board finds that White Cap is no longer required to demonstrate compliance

with 35 Ill. Adm. Code 218.207(b)(2), we do find that White Cap must fulfill, as it did in

White Cap, Inc. v. IEPA, PCB 98-24, the reporting requirements, as outlined in condition 5

of the Board’s order in White Cap, Inc. v. IEPA, PCB 98-24. Accordingly, White Cap must

prepare a monthly report of the daily VOM content records and submit that monthly report to

the Agency on a quarterly basis.

Finally, the Board agrees the requirements to demonstrate compliance with 35 Ill.

Adm. Code 218.207(b)(2) are infeasible given that White Cap is unable to perform CE testing

until it receives a federally enforceable CAAPP permit or Illinois revises its SIP. Therefore,

the Board will not include a similar condition in today’s order.

CAAPP Permit Application

With regard to the CAAPP permit application, the Board finds that White Cap does not

need to supplement its CAAPP permit application to include its commitment to demonstrate

compliance with the USEPA CE Guidance Memorandum. The Board finds credible White

Cap’s response that it has already complied with this condition in the most recent submittal of

its CAAPP application.

CONCLUSION

The Board finds that an arbitrary or unreasonable hardship continues to exist for White

Cap if it is required to achieve immediate compliance with the Board’s VOM emissions testing

requirements. The Board further finds that White Cap continues to demonstrate substantial

progress towards achieving compliance during the term of its prior variance. Therefore, the

Board grants White Cap an extension of its prior variance subject to the conditions outlined in

the order below. The inception date of this variance is September 7, 1998. The variance shall

terminate December 31, 1999. However, this variance extension expires on January 19, 1999,

if by that date, White Cap and the USEPA do not extend the consent agreement until

December 31, 1999, and if White Cap does not notify the Agency of the extension of the

consent agreement. In addition, by August, 3, 1999, White Cap must notify the Agency

whether it will replace the non-PTE with PTE lines or whether it will conduct CE testing on

the remaining non-PTE lines. Finally, in light of White Cap’s lengthy variance history, the

Board notes that it will view strictly any further petitions for variance extension.

This opinion 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 September 7, 1998, and is subject to the following conditions:

The variance terminates December 31, 1999. However, this variance expires

on January 19, 1999, if by that date, the consent agreement between White Cap

and the USEPA is not extended until December 31, 1999. By January 19,

1999, White Cap must notify the Agency that White Cap and the USEPA have

agreed to extend the consent agreement until December 31, 1999. Such written

notice must be sent to the following address:

Deborah J. Williams

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 N. Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

White Cap shall elect to either conduct capture efficiency (CE) testing on the

remaining non-PTE lines, or to replace the non-PTE lines with PTE lines. By

August 3, 1999, White Cap shall provide the Illinois Environmental Protection

Agency with written notice of its elected compliance plan. White Cap shall

send written notice of its elected compliance plan to the address specified in

condition 1 of this Order.

White Cap shall test its applicable lines for 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.

White Cap shall keep daily records of the following items starting on the date of

this order, including:

the amount of coating used in each coating line;

the volatile organic material (VOM) content of each coating applied (lb

VOM/gal of solids); and

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)).

White Cap shall prepare a monthly report for Agency inspection on the daily

records required above. White Cap shall submit one copy of the monthly

compliance demonstrations on a quarterly basis to each of the following Agency

officers:

Illinois Environmental Protection Agency

Bureau of Air

Attention: Compliance Section Manager

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

Illinois Environmental Protection Agency

Division of Air Pollution Control

Attention: Mel Villalobos

Intercontinental Center

1701 First Avenue

Maywood, Illinois 60153

If White Cap chooses to accept this variance, within forty-five days of the grant of the

variance, White Cap must execute and forward the attached certificate of acceptance and

agreement to:

Deborah J. Williams

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 N. Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

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:

CERTIFICATE

I (We), ________________________________________________, hereby accept and

agree to be bound all the terms of the Order of the Pollution Control Board in PCB 99-41,

November 19, 1998.

________________________________

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 172 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 19th day of November 1998 by a vote of 7-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board