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07/12/89 Ekco Glaco Corporation, v. the Environmental

July 12, 1989

EKCO GLACO CORPORATION, PETITIONER-APPELLANT

v.

THE ENVIRONMENTAL PROTECTION AGENCY ET AL., RESPONDENTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

542 N.E.2d 147, 186 Ill. App. 3d 141, 134 Ill. Dec. 147 1989.IL.1090

Petition for review of order of Pollution Control Board.

APPELLATE Judges:

PRESIDING JUSTICE FREEMAN delivered the opinion of the court. RIZZI and CERDA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Petitioner, Ekco Glaco Corporation (Ekco Glaco), appeals from an order of the Illinois Pollution Control Board (Board) which denied its request for an extension of a previously granted variance from certain Board air pollution control regulations relating to petitioner's commercial bakery pan coating operations. The Board also denied petitioner's motion for rehearing. Ekco Glaco filed a petition, in this court, for direct review of the Board's decision pursuant to section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1041). Ekco Glaco contends that the following Board findings are contrary to the manifest weight of the evidence: (1) immediate compliance with the Board's regulations would not impose an arbitrary and unreasonable hardship upon Ekco Glaco; and (2) Ekco Glaco did not have a firm compliance plan and was not committed to achieving compliance.

For the reasons stated below, we affirm the order entered by the Pollution Control Board.

The record indicates that Ekco Glaco manufactures and reconditions commercial bakery pans at a plant located at 1949 North Cicero Avenue in Chicago. The plant employs approximately 300 to 350 people and has an annual payroll of $5.4 million. Annual production of new pans is approximately 1.2 million pans, which comprises approximately 50% of the domestic commercial bakery pan market. Ekco Glaco also exports new bakery pans. Ekco Glaco reconditions approximately 440,000 used bakery pans annually for approximately 35 commercial bakeries located within a 150-mile radius of Chicago. Ekco Glaco's used pan facility is the only such facility in the area. Used pan reconditioning involves the removal of heavy carbon and grease buildup and subsequent application of a silicone coating. The coating facilitates easy release of bakery products from the pans. Reconditioning can be completed in as few as 24 hours. Sales for the used pan reconditioning operation were $714,000 for 1986. Seventy-five percent of the new pans are coated at the plant, in addition to all of the used pans. The coating process involves the use of solvents which contain volatile organic material , as defined under 35 Ill. Adm. Code § 211.122 (1985). VOM emissions are generated during the coating process and are vented through a stack to the atmosphere.

Board regulations required manufacturing plants to comply by December 31, 1983, with certain limitations on VOM emissions. (35 Ill. Adm. Code § 215.211(a)(1) (1985).) Further, a compliance plan was required to be submitted to the Illinois Environmental Protection Agency (Agency) by August 19, 1983. (35 Ill. Adm. Code § 215.212(a) (1985).) Section 215.204(j)(1) of the Board regulations provides a limitation of 4.3 pounds per gallon of VOM emission for a plant such as petitioner's. (35 Ill. Adm. Code § 215.204(j)(1) (1985).) Alternatively, the plant may utilize one of the following systems in order to comply with Board regulations: (1) an afterburner system, provided that 75% of the emissions from the coating line and 90% of the nonmethane VOM which enter the afterburner are oxidized to carbon dioxide and water; or (2) a system shown to have a control efficiency equivalent to or greater than that provided under section 215.204. 35 Ill. Adm. Code § 215.204 (1985).

In March 1983, the Agency initially notified Ekco Glaco's corporate predecessor, Ekco Products, Inc., that it would be required to comply with relevant VOM limits. Since the original notification, the company has changed from Ekco Products, Inc., to Glaco Corporation to Ekco Glaco Corporation. The corporation initially argued that the Board regulations do not apply to its operations. The company then agreed that the rule limiting emissions does apply to its operations. The company hired consultants, prepared reports, and evaluated alternatives. In March 1985, the company filed its first petition for a variance and decided to install a thermal afterburner system on the bakery pan coating lines. The petition asserted that the company would achieve compliance with section 215.204(j)(1) within one year through a two-phase compliance program. In the first six months, the company would modify the existing process equipment and exhaust systems to provide for adequate capture of VOM emissions for incineration in thermal afterburners. Then the company

On June 23, 1986, Ekco Glaco filed a petition to extend the variance for its new pan operation. In its petition, Ekco Glaco asserted that effectuation of its compliance plan was delayed when two of the three contractors who received bid packages for the first phase of the project refused to bid. The third contractor would bid on only a portion of the project. Ekco Glaco then instructed its consultant to attempt to eliminate spray leakage from the spraying machine, one of the major tasks of the first phase of the proposal. In December 1985, after three months, the consultant determined that a total redesign of the machines was necessary, but that redesigning could not be accomplished within the variance compliance schedule. Ekco Glaco rejected a proposal to relocate the new pan spray machine. Two new consultants, SAIC and Richmond Tech-Air (Richmond), evaluated Ekco Glaco's operations. Richmond visited Ekco Glaco's plant, measured the exhaust air flow for solvent concentration, and on June 30, 1986, submitted its report to Ekco Glaco.

Ekco Glaco did not propose modifications for its used pan line in its extension petition, since the company decided to take the used pan line out of operation and relocate it by June 1987. In its recommendation, the Agency urged the Board to grant the variance extension, but only until January 1, 1987. The Agency reasoned that if the VOM control equipment on the new pan line could reduce overall VOM emissions by 75%, then plantwide compliance would be made under the Board's internal offset rule. (35 Ill. Adm. Code § 215.207 (1985).) This rule allows a facility to achieve compliance by overcontrolling emissions from one source while excess emissions are produced from another source. On November 20, 1986, the Board granted Ekco Glaco a variance extension to January 1, 1987.

On December 19, 1986, Ekco Glaco filed a petition for rehearing of the Board's November 20, 1986, ruling, and requested that the variance extension be given until February 15, 1987. Ekco Glaco asserted that unforeseen events, including delays in finalizing the purchase of the afterburner unit, precluded the company from complying with the January 1, 1987, deadline. On January 8, 1987, the Board granted Ekco Glaco's request to extend the variance to February 15, 1987.

On February 10, 1987, hydrocarbon testing was performed on the new pan line with the new afterburner system. The test results, compiled in a report of the Almega Corporation dated March 19, 1987, showed that the new control system was not capable of 75% overall VOM emission reduction as required by section 215.205. On April 1, 1987, Ekco Glaco filed another petition for variance extension, seeking until November 1, 1987, to allow it to repair the afterburner and achieve compliance. Ekco Glaco also requested that the variance granted in the original proceeding for the used pan line be ...


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