ILLINOIS POLLUTION CONTROL BOARD

May 9,

1986

DUPAGE PUBLICATIONS CO.,

)

Petitioner,

v.

)

PCB 85—44, 85—70

)

85—130

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

OPINION AND ORDER OF THE BOARD

(by B.

Forcade):

This matter comes before

the Board as three

separate permit

appeals filed

on behalf of DuPage Publications,

Co.

(DuPage) on

April 9,

1985

(PCB 85—44), May 7,

1985,

(PCB 85—70)

and August

26,

1985

(PCB 85—130).

These

cases were consolidated on

the

motions of DuPage.

A hearing was held on October

22,

1985 at

which an agreed stipulation

of facts

and fourteen exhibits were

presented

in lieu of testimony.

Briefs were filed on November

26,

1985 and January 17,

1986 by DuPage and on January 6,

1986 by

the Illinois Environmental Protection Agency (Agency).

DuPage owns and operates a printing and bindery operation

in

West Chicago, DuPage County, Illinois.

In its printing

operations,

DuPage uses six heatset web offset presses

in which

feed roll paper

is printed with overlay colors on both sides of

the web by several

individual

sections

of each press.

Fountain

solutions are used to wet non-image areas where ink

is not

used.

These solutions consist primarily of water but also

contain

a small amount of gum arabic and may

contain traces of

ethylene glycol but do not contain isopropyl alcohol.

A print

web is then dried

in natural gas-fed dryers

to evaporate the ink

solvent.

The print web from dryer passes over chilled

rolls to

cool and set the ink.

The cooled web

is then folded and set into

signatures

—

printed,

folded sheets.

(Pet.

Brief pp.

1—3).

DuPage uses three ink types on the heatset web offset

presses.

These include insert process inks, cover process inks

and commercial

inks.

The inks used are approximately 33

solvent

on a weighted average basis.

The solvents are mainly aliphatic

hydrocarbons from straight run or hydrotreated middle

distillates.

The ink solvents have

a vapor pressure of 0.0007

kPa.

(0.0010 psia)

or less

at 68

F.

DuPage’s

ink solvent

is not

a volatile organic material

as that term is defined

in Section

211.122 and DuPage’s heatset printing ink

solvent

is not a

photochemically reactive material

as defined

in Section

211.122.

(Stip. pp.

2—3).

69.364

---

—2—

On January 10, 1985,

the Agency granted permits to DuPage

to

operate heatset web offset press nos.

1 through

4.

Special

Condition No.

1

in each permit established separate organic

material emission limits for each press based on certain emission

rates

and hours

of operation.

Special Condition No.

2

in each

permit established an organic material emission limit of 145.3

tons/year from all four presses

combined.

DuPage submitted a

request

to the Agency on March

12,

1985,

to delete these Special

Conditions from the operating permits.

The Agency denied the

request stating that the annual emissions limits are necessary to

demonstrate

that emissions from press nos.

1 through

4 are below

the level

at which press nos.

4 and

5 would

be subject to

35 Ill.

Adm. Code 203:

Major

Stationary Sources Construction and

Modification.

DuPage appealed this decision to the Board

on May

7, 1985

(PCB 85—70).

On March

5,

1985,

the Agency granted DuPage

a permit to

construct

a catalytic afterburner for press no.

5 and to operate

nos.

1 through

7 of

the operating permit for press

no.

5

contained provisions concerning

the construction, operation,

testing and monitoring

of the afterburner.

Special Condition No.

9 established an organic material emissions

limit of 39.9

tons/year

to keep emissions below

the level

at which

the Agency

believes

35

Ill. Adm.

203, Subpart B would

apply.

DuPage

appealed

the

imposition of

these conditions

to the Board on April

9,

1985 (PCB 85—44).

Also,

on March

5, 1985,

the Agency issued

a Notice

of

Incompleteness

to DuPage concerning

its application for

a joint

construction and operating permit for press

no.

6.

On July

22,

1985,

the Agency denied the permit on the grounds that press no.

6 together with other

new equipment at the facility may be

subject

to 35

Ill. Adm. Code 203 and requirements

of this part

were

not addressed

in DuPage’s application.

DuPage appealed

this

denial

to the Board on August

26, 1985

(PCB 85—130).

The central issue

in this permit appeal

is

the applicability

of the Board’s regulations

in Part 203 to DuPage’s six heatset

web offset presses.

Part 203 contains the rules which are

commonly referred

to as the New Source Review

(NSR)

rules

and,

in

effect, constitute

a preconstruction review program for

any

construction of

a major

stationary emission source in a non—

attainment area.*

A major stationary emission source

is defined

as;

1)

any stationary emission source of air pollutants which

emits,

or has the potential

to emit,

100 tons/year

or more of any

pollutant;

2)

any physical change at a stationary emission source

which

itself qualifies

as

a major stationary emission source;

and

3)

the reconstruction of an emission source

if the fixed capital

costs of new components exceeds 50

of the fixed capital costs of

*

These

rules were adopted

on July 14, 1983

in R81—l6(B) which

implement Section 9.1(d)

of the Environmental Protection Act;

69.365

---

—3—

an entirely new stationary source.

35

Ill. Adm. Code 203.206.

A

major modification of an emission source

is any physical change

or change

in operation of

a stationary source which creates

a

significant net emission increase

of any pollutant.

Section

203 .207.

DuPage’s facility

is located

in DuPage County which

is

designated as non-attainment for ozone.

Since ozone

is formed

in

the atmosphere,

the Board’s

rules are designed

to control

the

emission

of those contaminants which lead

to the formation of

ozone.

Specifically,

the Board’s NSR rules provide that

a major

stationary emission source that

is major

for organic material

shall

be considered major

for ozone.

Section 203.206.

The

Board’s NSR rules also provide that any net emissions increase

that

is significant

for organic material

shall

be considered

significant for ozone.

Section 203.207.

The level

for which a

net emissions increase

is considered significant

for ozone

is 40

tons/year of organic material.

Section 203.209(e).

DuPage argues that either

the Board

lacks

the statutory

authority

to regulate organic materials that do not lead

to the

formation

of ozone

and,

therefore,

the NSR rules are invalid

as

applied

to DuPage;

or, assuming arguendo that the Board has the

statutory authority,

the regulation

of organic materials which do

not lead

to the formation of ozone was arbitrary and unreasonable

and, therefore,

the rules

are

invalid as applied

to DuPage.

In

support of

its first argument, DuPage asserts that the

legislature authorized

the Board

to establish

a permit program in

accordance with Section 173

of the Clean Air Act which shall

apply to new and modified sources

of certain pollutants,

including those which contribute

to the formation of ozone,

in

non—attainment areas.

Pursuant to this authority,

the Board was

empowered

to require new source review of those sources which

emit criteria pollutants,

or

in the case of ozone,

those sources

which emit volatile organic compounds.

Consequently,

the Board

overstepped its authority when

it promulgated the NSR rules

to

cover many compounds which do not contribute

to the formation of

ozone.

(Pet.

Brief pp.

7—9).

In support

of its second argument,

DuPage asserts that the

NSR rules

to the extent they regulate new and modified sources of

nonvolatile, non-photochemically reactive organic compounds are

arbitrary and unreasonable because they are not reasonably

related

to the Board’s own stated purpose

of the NSR rules,

namely,

that they are intended

to ensure that as—built or

modified potentially large sources

of air pollutants do not

contribute

to a region’s air quality problems.

Secondly, DuPage

asserts that the NSR rules

are also contradictory

to the Board’s

own description of them in its Opinion

in R8l-16(B) which stated

“the significant levels which

are found at Section 203.209 are

these listed at 40 C.F.R. 5l.l8(j)(1)(x)

for

40 C.F.R. 61.”

Yet,

40 C.F.R.

51.18 defines significant levels of ozone

as 40

tons

per year of volatile organic compounds.

40 C.F.R.

5l.18(j)(1)(v)(a).

Thirdly,

DuPage asserts that nothing in

69-366

---

—4—

either

the Board’s Opinion or

in the

record demonstrates that the

Board even considered

the propriety of

a deviation from the

federal provisions.

Lastly,

DuPage asserts that the Board’s

decision

to require all major new and modified sources of any

organic material

to participate

in the permit program was

unreasonable

in light of USEPA’s position that although

it has

not developed

a specific definition of volatile organic compound

for purposes of non—attainment permit programs,

it stresses that

only volatile, photochemically reactive materials should

be

regulated.

(Pet.

Brief pp.

9—12).

The Agency responds to these arguments by asserting that

going beyond

the definition of organic material found in Section

211.122 would

ignore

the plain language of the Board’s NSR

rules.

The Agency also contends that the Board’s NSR rules are

valid as applied

to DuPage because DuPage’s organic material

emissions do lead

to the formation of ozone

in a non—attainment

area even though they are neither

volatile nor photochemically

reactive as these

terms are defined

in Section 211.122.

Lastly,

the Agency responds

to DuPage’s “arbitrary and unreasonable”

argument by asserting that DuPage’s organic material emission

attributable

to

its printing ink oils may contribute

to ozone

formation;

that the distinction between

“organic material”

as

found

in Part 203 and

the

term “volatile organic compounds”

used

in 40 C.F.R. 51.18(j)(1)(v)(a)

to describe significant annual net

emissions increases

is without import;

that the Board considered

all information before

it when

it decided

to accept the term

“organic material”

rather than ~‘volatileorganic

compounds” or

“volatile organic material”;

and,

that USEPA has never considered

the printing oils used in the heatset web offset printing

industry not

to be ozone precursors and

in fact USEPA has

recently notified DuPage that it considers DuPage

to be

a major

source of volatile organic compounds.

(Agency Brief pp.

8—20).

Part 203

is one segment of the State’s overall ozone control

strategy,

along with Reasonably Available Control Technology

(RACT) controls for existing major stationary sources, New Source

Performance Standards

(NSPS) for specially designated new sources

and Inspection and Maintenance

(I/M)

for automobile emission

systems.

The common, and sole, focus

of these various programs

is the control of ozone precursors emitted

to the atmosphere.

The conceptual approach has been

to control volatile organic

material

(VOM), which

is generally presumed

to be photochemically

reactive,

i.e.,

an ozone precursor.

Thus, VOM, rather

than non-

volatile organic material

is controlled because

it

is more likely

to be emitted

to the atmosphere and,

therefore, available for

photochemical reactivity.

Certain VOM’s

that are of negligible

photochemical reactivity are specifically excluded.

The Board defines VOM

in terms of

a material’s behavior

at a

specific temperature and pressure.

Sections 211.122 and

215.102.

The Board also has

a specific definition

for

“photochemical reactivity.”

Section 211.122.

It

is

a matter of

agreement

in the

instant proceeding that the ink solvents

at

69.367

---

—5—

issue are neither VOM’s or photochemically reactive,

as defined

in

the Board regulations.

As DuPage points out, it would be inappropriate to adopt

a

regulatory control program for emissions of compounds that do not

contribute

to ozone formation under

rules

related to attainment

of the ozone

air quality standard.

While such

a regulatory

control program would not necessarily be beyond

the Board’s

authority,

providing there was an adequate alternative basis

for

control,

such as control

of toxic air emissions,

in the instant

situation such an interpretation could be arbitrary

or

unreasonable.

The Agency argues that ink solvents are ozone

precursors and,

therefore, are legitimately regulated under Part

203.

However, based on the Agency Record, Stipulation of Facts

and Exhibits,

this proposition

is not factually supported.

The

Agency cites two documents which

are not

in the record:

The

University of California at Riverside Report or Carter Report and

a tJSEPA Administrative Order regarding the DuPage facility.

The

Board cannot rely on “facts”

not in the record

in making a

determination.

The record

in the

instant proceeding does support

the proposition that the ink solvents are negligibility

photochemical reactivity and that

the solvents do not fall within

the Board’s definition of VOM or photochemically reactive.

The

Board notes, however,

that the issue of whether

heatset web

offset

ink oils are ozone precursors

is

a hotly contested issue

and

is

currently being considered by the Board

in R82—14, RACT

III.

At present,

these compounds are not regulated under

R.ACT

rules.

The Board

need not reach

the issue of whether Part

203

is

arbitrary or unreasonable

as applied

to DuPage because

it can

reasonably interpret the language at issue.

Part 203 uses the

language

“organic material”

(OM) rather than “volatile organic

material”

(VOM)

in establishing the emission threshold for

the

new source review process.

The ink solvents

at issue do fall

into the Board’s definition of

“organic material.”

Section

211.122.

The Agency argues that the Board intentionally chose

the stricter

“OM” term after considering all options.

However,

the only reference

to this language in the Board’s adopting

Opinion

is

in

a reference to the federal language,

which provides

for

a threshold based on volatile organic compound emissions 40

CFR 5l.l8(j)(l)(v)(a).

The record

of R81—l6 seems

to indicate

that the terms “OM” and “VOM” were used interchangeably by the

Agency.

(R8l—16(b), P.C.

17).

Additionally, while OM

is

used

rather than VOM,

the quantities

of emissions which establish the

threshold for new source review is unchanged from the federal

regulations

to the Board’s regulation.

If the scope of the

69.368

---

—6—

regulation was

intended to be broader

than

the federal language,

a corresponding change

in the quantity of emissions would be

necessary.

*

The Agency argues

that the Board cannot look beyond the

plain language of Part 203, citing Continental Grain

v. Illinois

Pollution Control Board, 131 Ill.App. 3d 838, 475 N.E.2d

1362

(1985).

The Board believes its holding here is not inconsistent

with the Continental Grain decision.

In that case, the

regulation specifically listed certain named townships as falling

within

the rule’s applicability,

and the court determined

that,

given the specifity of the listing,

the Board’s reliance on the

record

to increase the scope

of the regulation by adding another

township was arbitrary

or unreasonable.

Thus,

the “plain

language” controlled.

However,

the court,

in Continental Grain,

did not hold

that the Board could never

look beyond “plain

language”,

no matter what

the circumstances,

and

no matter what

the consequences.

Regulations for the control

of ozone are not

so specific.

In this case,

applying the language

in

a manner

that increases the scope of the regulation beyond its clear

purpose of controlling

ozone formation could result

in an

arbitrary or

unreasonable action by this Board.

It

is well

established rule of statutory construction that when there

is

some ambiguity as

to the language and there

is

a choice between

an interpretation that will either validate

a statute

or render

the statute invalid,

the validating interpretation should be

followed.

This approach

is particularly appropriate

in

interpreting regulatory language

as well, given

the Act’s

requirement that the Board’s regulations be supported

by,

and

based

upon,

a formal record.

Therefore, Part 203 should properly

be interpreted

to regulate new major

stationary sources

or major

modifications based

on significant VOM emissions

rather than OM

emissions.

This interpretation would also provide

a measure of

consistency between RACT regulations and NSR regulations.

While

these programs do entail different regulatory approaches,

they

both utilize

the same definitional terms and address the same

problem

—

achieving the NAAQS

for ozone,

in non-attainment

areas.

Therefore,

the Board reverses the Agency’s decisions

regarding

the DuPage facility.

The matter

is remanded

to the

Agency for permitting consistent with the Board’s

interpretations

of applicable regulatory language.

*The Board also takes administrative notice of the Agency’s

proposed amendment

of Part 203

in R85—20, which would change

the

threshold from organic material

to volatile organic material

emissions,

in order

to reconcile the definitions adopted

in RACT

II,

to avoid

“excessive stringency,” and ensure conformity with

federal

regulations.

69.369

---

—7—

ORDER

The Board reverses the Agency’s imposition of conditions

in

DuPage Publications’ operating permits for press numbers

1

through

5 and

the Agency’s denial

of

an operating permit

for

press number

6 at DuPage Publications’ facility located

in West

Chicago,

Illinois.

The matter

is

remanded to the Agency for

permitting consistent with the accompanying Opinion.

IT

IS SO ORDERED

Chairman J.D. Dumelle and Board Member

R.

Flemal dissented.

I, Dorothy M.

Gunn, Clerk

of the Illinois Pollution Control

Board,

hereby certify that the above Opinion and Order was

adopted on the

___________

day of

~

,

1986,

by a vote

of

~

-

.

/

Dorothy M. dunn,

Clerk

Illinois Pollution Control Board