ILLINOIS POLLUTION CONTROL BOARD
March 20, 1997
THE D.B. HESS COMPANY, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 96-194
(Variance - Air)
WILLIAM J. ANAYA, JOHNSON & BELL, APPEARED ON BEHALF OF PETITIONER;
CHRISTINA ARCHER, ASSISTANT COUNSEL, APPEARED ON BEHALF OF
RESPONDENT.
OPINION AND ORDER OF THE BOARD (by M. McFawn):
This matter comes before the Board on the March 15, 1996 variance petition filed by
The D.B. Hess Company, Inc. (DB Hess), as amended on August 1, 1996. As explained in
more detail below, DB Hess seeks relief from various provisions of 35 Ill. Adm. Code
218.407(a) and 218.411(b) as they relate to emissions of volatile organic material (VOM) from
its lithographic printing operations located in Woodstock, McHenry County, Illinois. DB Hess
seeks a variance from the compliance date for these rules for a period from March 15, 1996
through March 30, 1999. DB Hess, therefore, is requesting that the Board retroactively apply
this variance. This relief is requested in lieu of purchasing, installing, and maintaining an
afterburner for three older presses which it intends to shut down on or before March 30, 1999.
A hearing was held in this matter on January 23, 1997 at the McHenry County Courthouse
before Hearing Officer Deborah Frank.
On October 1, 1996, the Agency filed its variance recommendation in support of grant
of amended petition for variance, subject to certain conditions. At hearing, the Agency and
DB Hess agreed to modify the petition and the proposed compliance plan. (Tr. at 7-8.)
For reasons expressed below, the Board finds that DB Hess has presented adequate
proof that immediate compliance with the Board’s regulations would result in the imposition of
an arbitrary or unreasonable hardship. Accordingly, the variance is granted, subject to
conditions set forth in the attached order.
2
BACKGROUND
The Board’s responsibility in this matter arises from the Environmental Protection Act
(Act). (415 ILCS 5/1
et seq.
(1994).) The Board is charged there with the responsibility of
granting a variance from Board regulations whenever it is found that compliance with the
regulations would impose an arbitrary or unreasonable hardship upon the petitioner. (415
ILCS 5/35(a).) The Illinois Environmental Protection Agency (Agency) is required to appear
in hearings on variance petitions. (415 ILCS 5/4(f).) The Agency is also charged with the
responsibility of investigating each variance petition and making a recommendation to the
Board as to the disposition of the petition. (415 ILCS 5/27(a).)
DB Hess, an Illinois corporation, owns and operates a lithographic printing plant
located in Woodstock, McHenry County, Illinois (the Woodstock plant). (Pet2. at 2.)
1
The
Woodstock plant uses heatset web offset lithographic printing processes. (Pet2. at 2.) DB
Hess prints education workbooks and commercial and industrial catalogues. (Pet2. at 2.) The
Woodstock plant emits VOM into the atmosphere from these printing processes. (Pet2. at 2.)
The production equipment at the Woodstock plant consists of two heatset web offset
lithographic printing presses, presses 1 and 2, controlled by a thermal oxidizer. (Ag. Rec. at
4.) Presses 1 and 2 are also known as the Solna C96 and Harris M1000B presses,
respectively. (Pet2. at 5.) Three heatset web offset presses, presses 3, 4, and 5, are
uncontrolled and the subject of this variance. (Ag. Rec. at 4.)
2
Press 3 is also known as an
ATF press and presses 4 and 5 are also known as Harris presses. Each heatset printing line
includes one drying oven, fired with natural gas. (Pet2. at 5.)
In the lithographic printing process, ink is transferred from rubber-covered “blanket”
cylinders to one or both sides of a moving paper web at one or more printing units (one color
per unit). (Pet2. at 5-6.) In heatset web lithography, the printed paper passes through a
heated dryer to evaporate the ink oil and set the image. (Pet2. at 6.) The printed paper is then
directed through ancillary finishing equipment, such as trimmers, folder or stitchers. (Pet2. at
6.) At the Woodstock plant, the exhausts from the heatset press dryers for presses 3, 4, and 5
are vented through the roof of the Woodstock plant. (Pet2. at 6.)
Emissions of VOM from the Woodstock plant result from the use of inks, fountain
solution additives and cleaning solutions in the heatset printing process. (Pet2. at 6.) Fountain
solution is an additive that is used in the offset printing process to displace printing ink from
the blanket cylinder. (Pet2. at 6.) Fountain solution often contains alcohol or other VOM in
small amounts, and is diluted from a concentrate and applied from reservoirs shared by the
1
DB Hess’ August 1, 1996 petition for variance shall hereinafter be referred to as (Pet2.
at__.); DB Hess’ March 15, 1996 petition for variance shall be referred to as (Pet1. at __.);
the Agency’s recommendation shall be referred to as (Ag. Rec. at__.); The January 23, 1997
hearing with regard to this matter shall be referred to as (Tr. at ___.)
2
In addition to the aforementioned presses, two cold set sheet presses, presses RZ5 and 10, are
operated pursuant to 35 Ill. Adm. Code 218.407 through 218.411.
3
presses. (Pet2. at 6.) The Woodstock plant currently uses and will continue to use fountain
solutions which are applied at a concentration of less than 5% VOM and contain no alcohol.
(Pet2. at 6-7.) Cleaning solution is used to clean ink residues from the blanket cylinders at
intervals that depend on the quantity of ink used during a run. (Pet2. at 7.) Like fountain
solution, cleaning solution at the Woodstock plant is diluted from a concentrate. (Pet2. at 7.)
Cleaning solution may be applied either manually, using spray bottles and towels to wipe down
the cylinders or automatically with autowash equipment fitted specially for the press. (Pet2. at
7.) Presses 3, 4, and 5 are cleaned manually. (Pet2. at 7.)
Heatset printing inks are formulated from solids, inks oils and solvents, a proportion of
which are VOM. (Pet2. at 6.) At the Woodstock plant, the highest VOM content of any
heatset inks currently used at the time of DB Hess’ amended petition for variance is 42%, but
several inks used in significant volumes contain significantly less VOM. (Pet2. at 6.) DB
Hess uses the mass balance technique to measure the quantity of VOM actually emitted from
the Woodstock plant. (Pet2.at 7.) DB Hess keeps daily records at the Woodstock plant and
records the quantity and VOM content of each ink prepared for application and the quantity
and VOM content of each batch of fountain solution and cleaning solution prepared and used at
the Woodstock plant. (Pet2. at 7.) From these records and from emission factors considered
by the United States Environmental Protection Agency (USEPA) to reflect Reasonably
Achievable Control Technology (RACT), DB Hess calculates uncontrolled and controlled
VOM emissions on a monthly basis. (Pet2. at 7.) In 1995, DB Hess emitted approximately
eleven tons of VOM. (Pet2. at 8.) A little more than five tons resulted from heatset ink oils
and a little more than four tons resulted from cleaning solvent. (Pet2. at 8.) The Woodstock
plant currently operates under a Federally Enforceable Operating Permit (FESOP), issued by
the Agency on December 11, 1995, which limits all VOM from the Woodstock plant to less
than 25 tons per year. (Pet2. at 8, Att. F.)
The Woodstock plant employs 143 full-time employees working three shifts. (Pet2 at
2.) The Woodstock plant produces 50 million printed products for use in industrial,
commercial and educational sectors. (Pet.2 at 2.)
Woodstock has a population of approximately 14,500 people, and is located in
McHenry County, in a rural section at the northwestern edge of the Metropolitan Chicago
Interstate Air Quality Control Region (AQCR), as defined pursuant to Section 107 of the
Clean Air Act. ( 40 C.F.R. 81.14 (1995); 42 U.S.C. Section 7407.) (Ag. Rec. at 5.)
REGULATORY FRAMEWORK
In determining whether any variance is to be granted, the Act requires the Board to
determine whether a petitioner has presented adequate proof that immediate compliance with
the Board regulations at issue would impose an arbitrary or unreasonable hardship. (415
ILCS5/35 (a) (1994).) Furthermore, the burden is on the petitioner to show that its claimed
hardship outweighs the public interest in attaining compliance with regulations designed to
protect the public. (Willowbrook Motel v. Pollution Control Board (1985), 135 Ill. App. 3d
343, 481 N.E. 2d 1032.) Only with such a showing can the claimed hardship rise to the level
of unreasonable hardship.
4
A further feature of a variance is that it is, by its nature, a temporary reprieve from
compliance with the Board’s regulations, and compliance is sought regardless of the hardship
which the task of eventual compliance presents an individual polluter. (Monsanto Co. v.
Pollution Control Board (1977), 67 Ill. 2d 276, 367 N.E. 2d 684.) Accordingly, except in
certain special circumstances, a variance petition is required, as a condition to a grant of
variance, to commit to a plan which is reasonably calculated to achieve compliance within the
terms of the variance.
The Lithography Rules
The variance requested concerns several of the Board’s air regulations, found at 35 Ill.
Adm. Code 218.407(a)(1)( C), (D), (E) and 218.411(b)(1), (2), (3)(1995), and which are a
part of “the Lithography Rules.”
The Lithography Rules were first proposed on October 28, 1994, when the Agency
submitted a proposal for rulemaking entitled In the Matter of: 15% ROP Plan Control
Measures of VOM Emissions - Part V: Control of VOM Emissions from Lithographic
Printing: Amendments to 35 Ill. Adm. Code Parts 211, 218 and 219, and docketed as R94-
31. R94-31 was published as a final rule in the Illinois Register, and had an effective date
of May 9, 1995, and a compliance date of March 15, 1996. (19 Ill. Reg. 6823, 6848, and
6958 (May 19, 1995).) The Agency submitted R94-31 to the USEPA as a State
Implementation Plan revision. (Ag. Rec. at 2.) USEPA published a final rule in the
Federal
Register
to be effective January 8, 1996 (60
Fed Reg
56238 (November 8, 1995).)
The regulations under R94-31 tightened the requirements for heatset web offset
lithographic printing and promulgated new requirements for other types of lithographic
printing. (Ag. Rec. at 2.) Specifically, the new requirements apply to any owner or operator
of lithographic printing presses if the maximum theoretical emissions from all heatset lines are
more than 100 tons per year (TPY) of VOM unless a FESOP limits uncontrolled emissions to
less than 100 TPY from all heatset lines. (See 35 Ill. Adm. Code 405(d)(1).) The FESOP,
under which the Woodstock plant currently operates, limits uncontrolled emissions to less than
100 TPY from all heatset lines. (Pet2. at Att. F.) However, the new requirements also apply
if the source emits 100 pounds or more per day of VOM before control, from all printing
processes. (See 35 Ill. Adm. Code 218.405(d)(2).) Because the permitted, uncontrolled VOM
emissions from all printing processes at the Woodstock plant exceed 100 pounds per day, the
Lithography Rules apply to the Woodstock plant. DB Hess is not in compliance with the
afterburner requirement of the Lithography Rules as those rules apply to presses 3, 4 and 5.
On March 15, 1996, the compliance date for the Lithography Rules, DB Hess filed a
petition for variance from the Part 218 requirements for heatset web offset lithographic
printing operations. In pertinent part they read:
Section 218.407 Emission Limitations and Control Requirements for Lithographic
Printings On and After March 15, 1996
5
a) On and after March 15, 1996, no owner or operator of lithographic printing line(s)
subject to the requirements of this Subpart shall:
1) Cause or allow the operation of any heatset web offset lithographic printing
line unless:
* * *
B) The air pressure in the dryer is maintained lower than the air
pressure of the press room, such that air flow through all
openings in the dryer, other than the exhaust, is into the dryer
at all times when the printing line is operating;
C) An afterburner is installed and operated so that VOM
emissions (excluding methane and ethane) from the press
dryer exhaust(s) are reduced by 90 percent, by weight, or to a
maximum afterburner exhaust outlet concentration of 200
ppmv (as carbon);
D) The afterburner is equipped with the applicable monitoring
equipment specified in Section 218.105(d)(2) of this Part and
the monitoring equipment is installed, calibrated, operated,
and maintained according to manufacturer’s specifications at
all times when the afterburner is in use; and
E) The afterburner is operated at all times when the printing line
is in operation.
* * *
b) An owner or operator of a heatset web offset lithographic printing line subject to
the requirements of subsection (a)(1)(C) of this Section may use a control device
other than an afterburner, if:
1) The control device reduces VOM emissions from the press dryer exhaust(s)
by at least 90 percent, by weight, or to a maximum control device exhaust
outlet concentration of 20 ppmv (as carbon).
* * *
(35 Adm. Code 218.407 (1995))
Section 218.411
Recordkeeping and Reporting for Lithographic Printing
b) An owner or operator of a heatset web offset lithographic printing line(s) subject to
the control requirements of Section 218.407(a)(1)(C) or (b)(1) of this Subpart shall
comply with the following:
6
1) By March 15, 1996, upon initial start-up of a new printing line, and upon
initial start-up of a new control device for a heatset web offset printing line,
submit a certification to the Agency that includes the following:
A) An identification of each heatset web offset lithographic printing line
at the source;
B) A declaration that each heatset web offset lithographic printing line is
in compliance with the requirements of Section 218.407(a)(1)(B),
(a)(1)(C), (a)(1)(D) and (a)(1)(E) or (b) of this Subpart, as
appropriate;
C) The type of afterburner or other approved control device used to
comply with the requirements of Section 218.407(a)(1)(C) or (b)(1)
of this Subpart;
D) The control requirements in Section 218.407(a)(1)(C) or (b)(1) with
which the lithographic printing line is complying;
E) The results of all tests and calculations necessary to demonstrate
compliance with control requirements of Section 218.407(a)(1)( C)
or (b)(1) of this Subpart as applicable; and
F) A declaration that the monitoring equipment required under Section
218.407(a)(1)(D) or (b) of this Subpart, as applicable, has been
properly installed and calibrated according to manufacturer’s
specifications.
2) If testing of the afterburner or other approved control device is conducted
pursuant to Section 218.409(b) of this Subpart, the owner or operator shall,
within 90 days after conducting such testing, submit a copy of all test results
to the Agency and shall submit a certification to the Agency that includes the
following:
A) A declaration that all tests and calculations necessary to demonstrate
whether the lithographic printing line(s) is in compliance with
Section 218.407(a)(1)(C) or (b)(1) of this Subpart, as applicable,
have been properly performed;
B) A statement whether the lithographic printing line(s) is or is not in
compliance with Section 218.407(a)(1)(C) or (b)(1) of this Subpart,
as applicable; and
C) The operating parameters of the afterburner or other approved
control device during testing, as monitored in accordance with
Section 218.410(c) or (d) of this Subpart, as applicable;
7
3) On and after March 15, 1996, collect and record daily the following
information for each heatset web offset lithographic printing line subject to
the requirements of Section 218.407(a)(1)(C) or (b)(1) of this Subpart:
A) Afterburner or other approved control device monitoring data in
accordance with Section 218.410(c) or this Subpart, as applicable;
B) A log of operating time for the afterburner or other approved control
device, monitoring equipment, and the associated printing line;
C) A maintenance log for the afterburner or other approved control
device and monitoring equipment detailing all routine and non-
routine maintenance performed, including dates and duration of any
outages; and
D) A log detailing checks on the air flow direction or air pressure of the
dryer and press room to insure compliance with the requirements of
Section 218.407(a)(1)(B) of this Subpart at least once per 24-hour
while the line is operating.
(35 Ill. Adm. Code 411 (1995))
Stay of Rule or Regulation
Section 38(b) of the Act addresses under what circumstances a rule or regulation may
be stayed pending the disposition of a petition for variance. In pertinent part, it reads:
If any person files a petition for a variance from a rule or regulation within 20 days
after the effective date of such rule or regulation, the operation of such rule or
regulation shall be stayed as to such person pending the disposition of the petition;
however, provided that the operation of any rule or regulation adopted by the Board
which implements, in whole or in part, a State RCRA, UIC or NPDES program shall
not be stayed.
(415 ILCS 5/38(b) (1994))
PETITION AND COMPLIANCE PLAN
DB Hess seeks relief from 35 Ill. Adm. Code 218.407(a)(1)(C), (D), (E) to the extent
the rules relate to VOM emissions from its printing processes 3, 4, and 5. DB Hess also seeks
relief from 35 Ill. Adm. Code 218.411(b)(1), (2), (3) in so far as they relate to DB Hess’
violation of afterburner notice requirements from its printing presses 3,4, and 5.
3
The variance is sought from March 15, 1996 through March 15, 1999, during which
DB Hess proposes a plan to reduce its emissions using a phased compliance plan. Currently,
presses 3, 4, and 5 are not equipped with control equipment. In lieu of purchasing, installing
and maintaining an afterburner for presses 3, 4, and 5 at this time, DB Hess proposes a phased
8
plan for upgrading or replacing and otherwise reducing its VOM emissions for presses 3, 4,
and 5. (Pet2. at 12.)
DB Hess proposes a compliance plan in which, among other things, it commits to begin
using only cleaning solution that does not exceed 30% VOM by weight at the Woodstock plant
on or before March 30, 1997. On or before March 30, 1998, it will cease operation of press
3. (Pet2. at 24.) Moreover, by March 30, 1999, DB Hess maintains it will do one of the
following: cease operations of presses 4 and 5, retrofit presses 4 and 5, or obtain replacements
for presses 4 and 5 in compliance with Board regulations. (Pet2. at 24.) Finally, DB Hess
maintains that from the time the petition was filed with the Board, it limited the combined
VOM emissions from the presses at the Woodstock plant to 18 TPY or 1.5 tons per month or
less. (Pet2. at 23.) (Ag. Rec. at 14.) DB Hess requests that the variance terminate when
presses 3, 4, and 5 have ceased operation, have been replaced, or have been retrofitted with
control equipment, and have been tested and demonstrated compliance with all applicable
Lithography Rules to the Agency on or before March 30, 1999, at which time the variance
will terminate. (Ag. Rec. at 16.)
Ralph Frank, Vice-President of Manufacturing at DB Hess, testifed at hearing that DB
Hess is already complying with portions of its proposed compliance plan. For instance, DB
Hess is already using cleaning solutions on presses 3, 4, and 5 that have a VOM composite
partial vapor of less than 10 mm Hg at 20 degrees Celsius. (Tr. at 25.) Further, DB Hess is
already storing and disposing of its cleaning towels in closed containers. (Tr. at 26.)
Moreover, DB Hess is already limiting its combined VOM emissions to 18 TPY or 1.5 tons
per month. Finally, Mr. Frank testified that DB Hess is prepared to do the following: file
quarterly reports, maintain records, monitor presses 3, 4, and 5 in accordance with 35 Ill.
Adm. Code 218.410(b), (c),(d), and use fountain solutions on presses 3, 4, and 5 that are less
than 5% VOM by volume. (Tr. at 24-26.)
PAST EFFORTS TOWARD COMPLIANCE
In order to achieve compliance with the Lithography Rules, DB Hess considered three
add-on control technologies commercially available for use in the lithographic industry to
control VOM emissions: (1) carbon adsorption technology; (2) chilled condenser technology;
and (3) catalytic or thermal oxidation technology. (Pet2. at 10.)
DB Hess maintains that carbon adsorption is not conducive to controlling VOM
emissions from the heatset process. (Pet2. at 10.) The vapor pressure of heatset ink oils, the
primary source of VOM emissions in this process, is sufficiently low to prevent efficient
desorption of saturated carbon beds. Carbon adsorption beds may not be used for long before
replacement is necessary. (Pet2. at 11.) Therefore, DB Hess claims that carbon adsorption
technology cannot reasonably be applied to control presses 3, 4, and 5.
DB Hess also contends that chilled condensor technology is inappropriate for the
heatset process. (Pet2. at 11.) This technology is often rated at a VOM removal efficiency
under ninety percent. (Pet.2 at 11.) Also, because ink oils are heavy, however, chilled
condensors are prone to clogging and often cannot achieve a removal efficiency greater than
9
50%. (Pet2. at 11.) Accordingly, DB Hess alleges that chilled condensor technology cannot
reasonably be applied to control presses 3, 4 and 5.
Finally, while catalytic or thermal oxidation technology is adaptable to the heatset
process, DB Hess maintains that this technology is expensive to apply to presses 3, 4, and 5
because they are old, and the environmental benefit would be negligible. (Pet2. at 11.)
During the past year, DB Hess has reduced VOM emissions at the Woodstock plant by
working with Deluxe Corporation, a supplier of low VOM inks. (Pet2. at 12.) DB Hess had
successfully produced quality products with these inks at a vastly reduced uncontrolled VOM
emissions rate. (Pet2. at 12.) Due to circumstances beyond DB Hess’ control, Deluxe
Corporation has stopped its production of these inks at competitive prices. DB Hess still
remains committed to seeking other sources of low VOM ink suppliers. (Pet2. at 12.)
HARDSHIP
DB Hess’ Assertions
DB Hess contends that the generally applicable standards pose an arbitrary or
unreasonable hardship for two reasons: 1) the rules pertaining to lithographic printing
operations arbitrarily require DB Hess to incur substantial business risks by making a
substantial, short-lived, capital investment involving older equipment all for a negligible
environmental benefit; and 2) the rules require DB Hess to bear an unreasonable cost to
control an environmentally negligible quantity of VOM emissions. (Pet2. at 18.) Presses 3,
4, and 5 represent only a small proportion, 33% of the plant’s entire production and 35% of
the plant’s total uncontrolled VOM emissions, of the Woodstock plant’s heatset production
capacity. (Pet2. at 18.) Further, DB Hess contends that presses 3, 4, and 5 were installed in
1975, 1984 and 1984, respectively, and have an average production life of 25 years. (Pet2. at
18.)
According to the 35 Ill. Adm. Code 218.407(a)(1)(C), DB Hess must install an
afterburner to control its older presses. (Pet2. at 18.) Adding an afterburner to control the
three older presses would require DB Hess to make a very substantial, short-lived capital
investment in excess of the value of each press and in excess of the expected value produced
by these presses during their estimated useful life. (Pet2. at 19.) Ralph Frank, Vice-President
of Manufacturing for DB Hess, testified at hearing that a new press stripped down costs $4
million and an average press costs between $6 million and $8 million. (Tr. at 20.) Moreover,
DB Hess alleges that the estimated cost of installing an afterburner to control presses 3, 4, and
5 is $215,000 in capital investment and approximately $65,000 annually in operating and
maintenance costs. (Pet2. at 19.) Therefore, DB Hess alleges, that retrofitting older
technology in reaction to environmental regulation is arbitrary, inefficient, inappropriate, and
unreasonable. (Pet2. at 19.)
Further, Richard J. Trzupek, Environmental Consultant for DB Hess, testified at
hearing that it would cost DB Hess between $48,000 and $69,000 per ton per year to control
its VOM emissions (Tr. at 36.) Mr. Trzupek testified, that upon analysis of independent
10
standards for reasonable cost controls, the average cost of emissions controls is between $1800
and $3100 per ton per year. (Tr. at Ex. 8.) Therefore, in order to control VOM emissions,
DB Hess would have to spend far beyond the average estimated cost.
Finally, William J. Anaya, attorney for DB Hess, noted at hearing that two of the
heatset web presses at the Woodstock plant are in complete compliance through efforts of DB
Hess. (Tr. at 47.) Mr. Anaya also noted that all of the coldset web sheet fed presses at the
Woodstock facility have been in full compliance since they began operation. (Tr. at 47.)
The Agency’s Recommendations
The Agency states that DB Hess has not previously sought a variance from the
aforementioned regulations. (Ag. Rec. at 6.) After DB Hess obtained its FESOP that restricts
uncontrolled VOM emissions to below 100 tons per year and prior to March 15, 1996, DB
Hess was in compliance with applicable state regulations. (Ag. Rec. at 6.) Except for presses
3, 4, and 5, DB Hess is in compliance with all other aspects of 35 Ill. Adm. Code 218.407.
(Ag. Rec. at 6.)
The Agency agrees that denial of a variance would result in an arbitrary or
unreasonable hardship to DB Hess. (Ag. Rec. at 11.) The Agency affirms, DB Hess would
be making a substantial, short-lived capital investment if required to install an afterburner on
presses that are expected to be shut down within three years because such an expenditure
would be in excess of the value of each press and the expected value produced by those presses
during their estimated useful life remaining. (Ag. Rec. at 12.)
The Board agrees that DB Hess would suffer a financial hardship if compelled to
retrofit these three presses with control equipment this near to the end of their useful lives.
Furthermore, the replacement costs ranging from $4 to $8 million per press justify the need for
the phased approach proposed by DB Hess over the term of the variance. Accordingly, the
Board finds that to require immediate compliance with the rules pertaining to lithographic
printing operations would impose an arbitrary or unreasonable hardship on DB Hess.
ENVIRONMENTAL IMPACT
DB Hess’ Assertions
DB Hess maintains that there will be no adverse environmental impact from its
proposed compliance plan. (Pet2. at 16.) DB Hess notes that its Woodstock plant is located
in the Chicago AQCR and that the data from the closest ambient ozone monitoring station in
McHenry County has not recorded a single violation during the past four years. (Pet2. at 16.)
Furthermore, DB Hess contends that its current and proposed operations do not represent a
material threat to the environment. (Pet2. at 16.) In 1995, DB Hess’ records indicate that the
Woodstock plant emitted eleven tons of VOM. (Pet2. at 16, Ex. E-2.) The rules relating to
the afterburner requirement would reduce these emissions by approximately six tons. (Pet2 at
16.) DB Hess maintains that its proposed plan would create a negligible environmental impact
of six tons of VOM per year in the short term, e.g., over the next five years. (Pet2 at 17.)
11
Moreover, DB Hess alleges that the environmental benefit of the Lithography Rules
are non-existent as they relate to the Woodstock plant. (Pet2. at 17.) In its compliance plan,
DB Hess commits to limiting VOM emissions to 18 tons of VOM annually. (Pet2. at 17.)
Without a variance, DB Hess is required to limit VOM to just below 25 tons per year, even if
presses 3, 4, and 5 were controlled in accordance with the Lithography Rules. (Pet2. at 17.)
In its proposed compliance plan, DB Hess voluntarily agrees to lower the Woodstock plant’s
potential to emit (PTE) to a point below that which the new regulations require. (Pet2. at 17.)
Accordingly, DB Hess alleges that its proposed compliance plan will result in real
environmental benefit over the long term as DB Hess’ production increases and its VOM
emissions decrease. (Pet2. at 17.) Finally, DB Hess contends that as it approaches the
proposed lower VOM emissions limit, DB Hess will be forced to look to new technology to
allow the Woodstock plant to increase production. (Pet2. at 17.)
The Agency’s Recommendations
The Agency concludes that, based upon the emission limitation of VOM to 18 TPY
suggested in DB Hess’ compliance plan, there will not be “substantially or significantly more
adverse environmental impact than those effects considered in the adoption of the RACT in
R94-31.” (Ag. Rec. at 9-10.) The Agency, however, takes issue with several assertions made
by DB Hess. First, the Agency, noted that the fact that the closest monitor to DB Hess has not
had any exceedences does not mean that DB Hess has not contributed to the problem of ozone.
(Ag. Rec. at 8.) In its proposed compliance plan, DB Hess maintains that it will limit its
VOM emissions to 18 TPY. The Agency maintains that DB Hess’ statement that it will
“voluntarily lower the Woodstock plant’s potential to emit (PTE) to a point below that which
the new regulations require” confuses the terms “actual emissions” and “potential to emit”.
(Ag. Rec. at 8.) The Agency claims that PTE is defined by 35 Ill. Adm. Code 211.4970 as
the “maximum capacity of a stationary source to emit any air pollutant under its physical and
operational design”, i.e., the maximum amount of emissions that a source could potentially
emit. (Ag. Rec. at 9.) Actual emissions, the Agency claims, is defined as the “quantity of
pollutants a facility actually emits.” Reducing “potential” emissions does not equate to a real
environmental benefit especially when in fact, DB Hess does not actually emit near its PTE.
(Ag. Rec. at 9.) So, while the Agency disagrees with DB Hess that there will be no
environmental impact, it concludes that the impact will not be “substantially or significantly
more adverse than the impact intended in the adoption of the RACT regulations of R94-31.”
(Ag. Rec. at 10.)
The Board concludes that given the 18 TPY emission limit contained in DB Hess’
compliance plan, there will be a minimal environmental impact for the relatively short term of
the variance.
CONSISTENCY WITH FEDERAL LAW
DB Hess’ Assertions
12
DB Hess maintains that the proposed variance is consistent with federal law. (Pet2. at
20.) Specifically, DB Hess alleges that there is no federal requirement that DB Hess comply
with the generally applicable requirements to control heatset presses with an afterburner of
90% overall VOM control efficiency. (Pet2. at 20.) The Clean Air Act, 42 U.S.C. Section
7401
et seq.,
and the applicable federal regulations, codified at 40 C.F.R. Part 51, require
only that the State achieve and maintain the primary and secondary National Ambient Air
Quality Standards for ozone. (Pet2. at 20.) DB Hess notes, however, that the Illinois State
Implementation Plan (SIP) contains an ozone control strategy for the Chicago AQCR and that
this strategy includes the rules governing lithographic operations. (See 40 C.F.R.
52.741(h)(5) (Pet2. At 21.) Therefore, in the event of a variance involving the ozone control
strategy, the Illinois SIP must be revised. (40 C.F.R. 52.741(a)(7).)
The Agency’s Recommendations
The Agency notes that, as required by 35 Ill. Adm. Code 104.122(a), DB Hess has
alleged compliance with the requirements of the Clean Air Act. (Ag. Rec. at 11.) The
Agency concludes that a variance from 35 Ill. Adm. Code 218.407(a)(1)(C), (D), (E) and
218.411(b)(1), (2), (3) would not violate the Clean Air Act as amended in 1990. (42 U.S.C.
Section 7511(b)(3)(B)(ii) (1990).) Finally, the Agency maintains that all federal procedural
requirements for a SIP revision have been met. (Ag. Rec. at 12.) The requirements of notice
and opportunity for public participation have been met by the hearing held in this matter on
January 23, 1997. In accordance with federal requirements, if the variance is granted, the
Agency will submit to USEPA a SIP revision regarding the variance because it is located in a
nonattainment area. (Ag. Rec. at 12.)
The Board finds that grant of this variance is consistent with federal law.
RETROACTIVE RELIEF
DB Hess requests that this variance commence on March 15, 1996, and therefore, that
the Board retroactively apply this variance. (Tr. at 48.) The Agency agreed with DB Hess
that retroactive relief should be granted in this matter. (Tr. at 49.) The Board has determined
that, in the absence of unusual or extraordinary circumstances, the Board grants a variances as
effective on the date of the Board order in which it is issued. (LCN Closures, Inc. v. IEPA
(July 24, 1989), PCB 89-27, 101 PCB 283, 286; Borden Chemical Co. v. IEPA (December 5,
1995), PCB 82-82, 67 PCB 3, 6.) As the appellate court discussed in Monsanto Co. v.
Pollution Control Board, “[t]he Board can provide relief from the hardship of immediate
compliance and yet retain control over a polluter’s future conduct by granting a temporary
variance.” (Monsanto Co. v. Pollution Control Board 67 Ill.2d 276, 288 (1977).) The very
concept of a retroactive variance would eliminate the Board’s ability to retain any control over
the polluter’s activity during the term of the variance.
Although the Board does not generally grant variances retroactively, retroactive
variances have been granted upon specific justification. (Deere & Company, John Deere
Harvester East Moline Works v. IEPA (September 8, 1988), PCB 88-22, 92 PCB 91.) The
Board stated that the reasoning behind the general policy is to discourage untimely filed
13
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. (Fedders-USA v. IEPA (April 6,
1989), PCB 86-47, 98 PCB 15, 19; DMI, Inc. v. IEPA (February 23, 1987), PCB 88-132, 96
PCB 185, 187; and American National Can Company v. IEPA (August 31, 1989), PCB 88-
203, 102 PCB 215, 218.)
The Board finds that this variance will begin on the date of this order, and therefore, it
will not retroactively apply this variance. The Board notes that DB Hess filed its petition for
variance on March 15, 1996, the compliance date of the Lithography Rules; the effective date
of the applicable rules was May 9, 1995. (Supra at 4.) DB Hess did not file it petition within
20 days after the effective date of the Lithography Rules; therefore, the rules are not stayed as
to its Woodstock plant printing presses 3, 4, and 5. (415 ILCS 5/28(b) (1994).) Further, DB
Hess never presented any “special or unusual circumstances” giving rise to a need for
retroactive application of this variance. As discussed, specific justification must be given for
the Board to grant retroactive relief. Accordingly, the variance shall commence on the date of
this order.
CONCLUSIONS
Balancing the alleged hardship against the anticipated environmental impact, the Board
finds that to require immediate compliance with the rules pertaining to lithographic printing
operations would impose an arbitrary or unreasonable hardship on DB Hess. Further, the
Board concludes that there will be a minimal environmental impact for the relatively short
term of the variance. Finally, the Board finds that grant of this variance is consistent with
federal law. The Board, accordingly, grants DB Hess variance from 35 Ill. Adm. Code
218.407(a)(1)(C), (D), (E) and 218.411(b)(1), (2), (3)(1995).
The order reflects the Agency’s recommendations; however, it has been altered to
achieve greater clarity. The order also takes into account the fact that DB Hess testified at
hearing that it is already implementing various terms of its variance as set forth in the
compliance plan and schedule section of its petition. The order reflects the fact that DB Hess
testified at hearing it is already doing the following: maintaining its records pursuant to 35 Ill.
Adm. Code 218.411(b), (c), (d); submitting quarterly reports to the Agency; using cleaning
solutions on presses 3, 4, and 5 that have a VOM composite partial vapor pressure of less than
10 mm Hg at 20 degrees Celsius; and storing and disposing of all cleaning solution towels in
closed containers. (Tr. at 24-25.) Moreover, the order considers DB Hess’ testimony that it is
prepared to implement or is already implementing the following: monitoring presses 3, 4, and
5 pursuant to 218.410(b), (c), (e); using fountain solutions on presses 3, 4, and 5 that are less
than 5% VOM by volume, and which contain no alcohol; reducing the VOM emissions to 18
TPY or 1.5 tons per month; and using cleaning solution that does not exceed 30% VOM by
weight. (Tr. at 25.)
This opinion constitutes the Board’s findings of fact and conclusions of law in this
matter.
14
ORDER
The D.B. Hess Company, Inc. is hereby granted a variance from 35 Ill. Adm. Code
218.407(a)(1)( C), (D), (E) and 218.411(b)(1),(2), (3) for one ATF and two Harris heatset
web offset lithographic presses, identified as presses 3, 4, and 5, at its facility located at 1530
McConnell Road, Woodstock, McHenry County, Illinois, subject to the conditions outlined
below.
1. Variance term. The variance begins on March 6, 1997 and terminates when presses 3, 4
and 5 have ceased operation, or have been replaced or retrofitted with control equipment,
which has been tested and compliance with all applicable rules has been demonstrated to
the Agency. This variance shall terminate no later than March 30, 1999.
2. On or before March 20, 1997 the combined VOM emissions from all of petitioner’s
presses at the Woodstock plant in operation shall not exceed 18 TPY or 1.5 tons per
month.
3. On or before March 20, 1997, petitioner shall use only cleaning solution that does not
exceed 30% VOM by weight at the Woodstock plant.
4. On or before March 20, 1997, petitioner shall use cleaning solutions on presses 3, 4, and 5
that have a VOM composite partial vapor pressure of less than 10 mm Hg at 20 degrees
Celsius, and the new cleaning solutions shall comply with 35 Ill. Adm. Code
218.407(a)(4).
5. On or before March 20, 1997, petitioner shall store and dispose of all cleaning towels in
closed containers.
6. On or before May 5, 1997, petitioner shall use fountain solutions on presses 3, 4, and 5
that are less than 5% VOM by volume, as applied, and which contain no alcohol.
7. On or before May 5, 1997, petitioner shall monitor presses 3, 4, and 5 pursuant to 35 Ill.
Adm. Code 218.410(b), (c), (e).
8. On or before May 5, 1997, petitioner shall prepare and maintain records pursuant to 35 Ill.
Adm. Code 218.411(b), (c), (d) for presses 3, 4, and 5 to show compliance with the
requirements of 35 Ill. Adm. Code 218.407(a)(1)( C), (D), (E) and 218.411(b)(1), (2),
(3).
9. On or before May 5, 1997, petitioner shall submit quarterly reports to the Illinois
Environmental Protection Agency’s Compliance and Systems Management Section, as
identified in Number 13 of this order, demonstrating compliance with the terms of the
Board order.
10. On or before March 30, 1998, petitioner shall cease operation of press 3.
11. On or before March 30, 1999, petitioner shall either:
15
A. Cease operation of presses 4 and 5, and notify the Illinois Environmental
Protection Agency of such cessation; or
B. Retrofit presses 4 and 5 or replace presses 4 and 5 in compliance with 35 Ill.
Adm. Code 218.407(a)(1)( C), (D), (E) and 218.411.(b)(1), (2), (3), in which
case:
(1) Petitioner shall apply for and obtain necessary construction permits by
March 30, 1998, or six months before retrofitting or replacing presses 4
and 5, whichever is earlier.
(2) Petitioner shall send monthly status reports, due on the 15
th
day of the
month after the prior month’s status report, to the Illinois Environmental
Protection Agency at the address identified in Number 13 of this order,
on the progress of the installation of the presses and control equipment
and testing of the control equipment, with the following information:
(a) Dates construction will commence and be completed;
(b) Test results; and
(c) Any relevant correspondence from the control equipment
manufacturer or the construction company regarding the status of
installation/construction (i.e., unexpected delay,
installation/construction on schedule, completion ahead of
schedule).
12. On or before March 30, 1999, petitioner shall cease operations at presses 3, 4, and 5
except for those it has applied for and obtained permits, retrofitted presses and installed
controls, which have been tested and demonstrated to be in compliance with applicable
rules by March 30, 1999.
13. All notifications to the Illinois Environmental Protection Agency required hereunder
shall be sent to:
David J. Kolaz, P.E., Manager, Compliance & Systems Management Section,
Division of Air Pollution Control, P.O. Box 19276,Springfield , Illinois
62794-9276
IT IS SO ORDERED.
Within 45 days of the date of this order, or on or before May 5, 1997, petitioner shall
certify that it accepts the terms of the variance by executing and forwarding to Christina
Archer, Division of Legal Counsel, Illinois Environmental Protection Agency, P.O. Box
19276, 2200 Churchill Road, Springfield, Illinois 62794-9276, a certificate of acceptance and
agreement to be bound by all of the terms and conditions of the granted variance. Such
acceptance shall be signed by an officer of The D.B. Hess. Company, Inc., duly authorized to
16
bind The D.B. Hess Company, Inc., to all of the terms and conditions of the final Board order
in this matter. 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 and of no force and effect as a shield against enforcement of rules from which the Board
has granted relief.
CERTIFICATION
I (We), ____________________________________________, hereby accept and agree to be
bound by all the terms of the Order of the Pollution Control Board in PCB 96-194 dated
March 20, 1997.
___________________________
Petitioner
___________________________
Authorized Agent
___________________________
Title
___________________________
Date
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1994)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of the date of
service of this order. The Rules of the Supreme Court of Illinois establish filing requirements.
(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 order was adopted on the _____ day of ___________, 1997, by a vote of
______________.
___________________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board