ILLINOIS POLLUTION CONTROL BOARD

May 19, 2002

 

IN THE MATTER OF:

 

PETITION OF SCHAEFER ENTERPRISES

OF WOLF LAKE, INC. FOR AN ADJUSTED

STANDARD FROM TIRE STORAGE

RULES AT 35 ILL. ADM. CODE

848.202(B)(5) AND 848.404

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AS 05-6

(Adjusted Standard - Land)

 

 

ORDER OF THE BOARD (by T.E. Johnson):

 

Today the Board dismisses March 24, 2005 petition for an adjusted standard filed by

Schaefer Enterprises of Wolf Lake, Inc. (Schaefer) because of several deficiencies in the petition.

Schaefer seeks an adjusted standard from the requirements at 35 Ill. Adm. Code 848.202 and

848.404 of the Board’s used tire regulations for its used tire facility located in Wolf Lake, Union

County. Generally, these regulations require that owners of used or waste tires cover the used

tire storage, maintain minimum aisle spacing and provide financial assurance for the inventory.

See

35 Ill. Adm. Code 848.202 and 848.404. Schaefer waived hearing in the petition. The

Illinois Environmental Protection Agency (Agency) has not filed a recommendation in this

matter.

 

Schaefer buys and sells salvage equipment, and often sells inexpensive spare tires. Many

tires are stored on their rims or the original equipment until Schaefer learns how the tires will be

resold. Pet. at 3. Other tires are stacked pyramid style. Pet. at 6. Under Section 848.202, used

tires must be altered, reprocessed, converted, covered or otherwise prevented from accumulating

water within 14 days of arriving at the facility. Schaefer contends that in order to satisfy this

requirement, they would have to construct a building to cover the tires at a cost of $80,000 with

annual expenses of $6000. Under the proposed adjusted standard relief, Schaefer would instead

implement a program of monthly inspections and pesticide use to control mosquito infestation.

 

The petition is deficient in several ways. First, the Board’s procedural rules require that

“[i]f filed singly, the petitioner shall also serve the petition upon the Agency. . .” 35 Ill. Adm.

Code 104.402. Here, there is no proof of service accompanying the petition (35 Ill. Adm. Code

101.304(d)) and Schaefer did not submit any additional documentation indicating that the

Agency was served.

 

Second, the Act provides that if the rule of general applicability does not specify a level

of justification required of a petition to qualify for an adjusted standard, the Board may grant an

adjusted standard upon adequate proof of the factors listed in Section 28.1(c) of the Act.

See

415

ILCS 5/28.1(c) (2002). 35 Ill. Adm. Code 848 does not specify a level of justification, and

Schaefer did not provide adequate proof of the factors in Section 28.1(c)(1) of the Act (415 ILCS

5/28.1(c)(1) (2002)). Specifically, Schaefer did not adequately show how the factors relating to

its facility are substantially and significantly different from the factors relied upon by the Board

in adopting the general regulation, how the existence of the facts under Section 28.1(c)(1) justify

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the adjusted standard, or that the requested standard will not result in environmental or health

effects substantially more adverse than the effects considered by the Board in adopting the rule

of general applicability.

 

Third, a petition for an adjusted standard must contain “[a] reference to and description of

standard from which an adjusted standard is sought and the effective date . . .” 35 Ill. Adm. Code

104.406(a). Schaefer’s petition indicates that an adjusted standard is requested from 35 Ill. Adm.

Code 848.202(b)(5), but the proposed adjusted standard language does not include 35 Ill. Adm.

Code 848.202(b)(5).

 

Fourth, a petition for an adjusted standard must contain a description of the nature of the

petitioner’s activity which is the subject of the proposed adjusted standard, including the location

of and area affected by the petitioner’s activity, the number of persons employed by the

petitioner’s facility, the age of that facility, the relevant pollution control equipment already in

use, and the qualitative and quantitative nature of emissions, discharges or releases currently

generated by the petitioner’s activity.

See

35 Ill. Adm. Code 104.406(d). The petition does not

identify the street address of the tire storage facility, the location of nearby water bodies and

ditches, or the nearest street intersection. In addition, the overall acreage of the area where tires

are stored is not identified, nor is a map of the facility indicating storage or staging areas

provided. The petition also fails to show where tires are separated from the wheel rims, does not

describe the area affected by the proposed adjusted standard, the surrounding land uses, whether

the facility stores more than 250 used tires at any time, or whether the tire business was certified

before January 1, 1992.

   

Fifth, a petition must contain a description of the efforts which would be necessary if the

petitioner were to comply with the regulation of general applicability such as corresponding

costs for each alternative, overall capital costs, and annualized capital and operating costs for all

compliance alternatives.

See

35 Ill. Adm. Code 104.406(e). The petition fails to describe the

proposed storage facility in terms of size, materials of construction, and floodplain provisions,

and does not provide a cost breakdown for the estimated capital and annual operating expenses.

The petition does not clarify the difficulty in constructing a suitable covered storage facility for

the largest tires, discuss whether tires that remain on the rims or equipment pose the same

potential breeding grounds as open tires, or address how the size and cost requirements of a

storage facility would change if Schaefer were to only build a covered facility for open tires, not

for tires that remain on the rims or equipment.

 

Sixth, a petition for an adjusted standard must contain a narrative description of the

proposed adjusted standard as well as proposed language for a Board order that would impose

the standard. Efforts necessary to achieve this proposed standard and the corresponding costs

must also be presented. 35 Ill. Adm. Code 104.406(f). The petition is generally insufficient

regarding this requirement and needs further specificity including, for example, information

financial assurance exemptions contained at 35 Ill. Adm. Code 848.400(c).

 

Seventh, a petition must contain the quantitative and qualitative impact of the petitioner's

activity on the environment with and without the adjusted standard including cross-media

impacts and nature of emissions, discharges or releases.

See

35 Ill. Adm. Code 104.406(g). The

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petition is lacking in that it does not address the feasibility and cost of providing a shelter

without walls to improve maneuverability, or one equipped with sprinklers or strategically

placed hoses and water hook-ups, does not indicate what pesticides (and material safety data

sheets) would be used and the method of application, does not indicate in the mosquito control

plan if monthly inspections are to be year-round, does not describe how monthly inspection

intervals are adequate to ensure mosquito development is not successful, and does not indicate

the feasibility and cost of increasing the inspection frequency to once every 14 days.

 

Finally, the Board rules provide that “[w]ithin 30 days after the filing of the petition, the

petitioner must file a certificate of publication, issued by the publisher of the petition notice

certifying the publication of that notice.” 35 Ill. Adm. Code 104.410. Further, publication of

notice of filing within 14 days after filing is jurisdictional.

See

 

In re

Petition of SCA Tissue

North America, L.L.C. for an Adjusted Standard From: 35 Ill. Adm. Code 218. 301 and

218.302(c), AS 05-1 (Jan. 6, 2005);

In re

Horsehead Resource and Development Company, Inc.,

for an Adjusted Standard under 35 Ill. Adm. Code 720.131(c), AS 00-1(Aug. 5, 1999);

In re

Heritage Environmental Services, Inc. for an Adjusted Standard from 35 Ill. Adm. Code

702.126(d)(1), AS 00-14 (June 8, 2000). Schaefer did not file proof of publication with the

Board. As a result, the Board has no basis to conclude that it has statutory authority to hear the

petition.

 

For these reasons, the Board dismisses Schaefer’s petition for an adjusted standard and

closes the docket. Schaefer may refile at a later date curing the deficiencies listed in this order.

 

IT IS SO ORDERED.

 

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2002);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on May 19, 2005, by a vote of 5-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board