ILLINOIS POLLUTION CONTROL BOARD
March
23,
1989
CATTY CORPORATION,
)
Petitioner,
v.
)
PCB 88—169
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
ERIC
E. BOYD,
OF SIDLEY
& AUSTIN, APPEARED ON BEHALF OF
PETITIONER;
JOSEPH
R.
PODLEWSKL,
JR.,
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J. Marlin):
This matter comes before
the Board upon
a request
for
variance filed on October
20, 1988
by the Catty Corporation
(~Catty11)
Catty requests variance from the Board’s regulations
governing emissions from flexographic and rotogravure printing
•operations under
35
Ill. Adm. Code 215.245(a) until December 31,
1988.
On December
27,
1988,
the Illinois Environmental Protection
Agency
(“Agency~’) filed
a recommendation that the requested
relief be granted subject
to certain conditions.
Hearing was
held
on January 17,
1989;
no members of the public attended.
BACKGROUND
Catty performs flexographic and rotogravure printing at
its
plant located
in Huntley, McHenry County, where
it prints
patterns and labels on
foil,
cellophane and paper wrappers and
packaging for merchandise.
The plant operates six rotogravure
and two flexographic printing pressess which use inks containing
volatile organic material
(“VOM”).
According to the Agency,
Catty’s annual VOM emissions
in tons per year
(“TPY”)
for
the
last three years were:
1986—143.5 TPY;
1987—95.6
TPY; and
1988—
120.0 TPY (projected).
(Agency
flec.
at
2;
P.
at
11).
Catty’s
testimony
at hearing verifies these figures except that
it
states
VOM emissions of approximately 153 TPY
in 1987 and updates
the
actual VOM emissions
for 1988
as 120.7 TPY.
(R.
at
13)
This
97—183
—2—
discrepancy between the Agency’s and Catty’s 1987 figures
is not
addressed
in the record.
Catty emits
less than 1,000
tons of VOM yearly and was
exempt from the Board’s emission limitations for rotogravure and
flexographic printing operations,
until November
9,
1987.
(35
Ill. Adm. Code 215.401,
402).
When the Board amended
its
regulations governing
VONI emissions
from Elexographic and
rotogravure printing
operations,
the amount of VOM emissions
triggering
the exemption from the requirements
of Section 215.401
for sources
in ozone non—attainment areas decreased from 1,000
TPY to 100 TPY.
(In re: Proposed Amendments to
35 Ill.
Adrn.
Code
215:
Flexographic and Rotogravure Printing,
R85—21,
Docket B;
35
Ill.
Adrn.
Code 215.245).
Affected facilities were
required to be
in compliance by December
31,
1987.
On April
27,
1988, Catty was issued
a permit by the Agency
for its printing and laminating presses until April
21,
1993.
Pursuant
to Section 215.245, Catty’s permit was issued subject to
the condition that VOM emissions from Catty’s facility would not
exceed
100 TPY
in the absence
of air pollution control equipment.
(P.
at Attach.
“An).
Section 215.245(a)
states
in pertinent
part:
The
limitations
of
Subpart
P
shall
apply
unless
the
facility’s
aggregate
uncontrolled
rotogravure and/or flexographic printing press
emissions
of
volatile
organic
material
are
limited by operating permit conditions
to 90.7
Mg
(100
tons)
per year
or
less
in
the absence
of
air
pollution
control
equipment
or
whose
actual
emissions
in
the
absence
of
air
pollution control equipment would
be less than
or
equal
to
90.7
Mg
(100
tons)
per
year when
averaged
over
the
preceding
three
calendar
years.
35
Ill.
Adm. Code 215.245(a).
The issuance
of
a permit with
a
special condition limiting Catty
to 100 TPY of VOM emissions
eliminated the need to demonstrate average VOM emissions of 100
TPY or
less over the last three years.
Since Catty’s total
VOM
emissions were 84.9 tons as
of September
23,
1988,
it anticipated
that it would exceed
its VOM emission limitation of
100 TPY
in
1988 and
filed
a petition on October
20,
1988 requesting this
variance until December 31,
1988.
(P.
~it
par.
4).
In
its petition, Catty states that
it has been investigating
substitute
inks,
containing
lower VOM,
for approximately two
years.
(P.
at par.
6).
As
of January
12,
1989, CaLty has spent
$43,126.29
for 1988 on research and development activity in
reducing VOM emissions.
(P.
at
9).
97—184
—3—
Catty has been recently converting
its new customers to
water—based inks.
Catty’s second largest customer
is “virtually
all water—based” and
it has converted its third and fourth
largest customers
to water—based.
(P.
at
19,
20).
Catty is
currently working
on
a water—based
ink
for its largest customer
and was planning test runs in January of 1989 for
a water—based
ink
to be used
in an item for this customer.
(P.
at
17).
HARDSHIP AND ENVIRONMENTAL IMPACT
In addressing
the matter
of hardship,
the Agency relies on
Catty’s statement that “immediate compliance would mean a total
plant shutdown which would result
in
the loss of
40 jobs.”
(Agency Rec.
at
6).
Catty states
in
its Petition that to achieve
immediate compliance with Section
215.245
by installing
a
capture
and control system would
impose “extreme and unnecessary costs
on
Catty”.
(P.
at par.
8).
Catty also stated at
the hearing
its
concerns
of losing
its largest customer
which would cause the
plant
to shut down.
(P.
at 16).
The
Agency
states
in
its
Recommendation
what
regulations
Catty will
be required to meet
if
it
is
no longer exempt under
Section 215.245:
If
Catty
cannot
keep VOM emissions at
100 TPY
or
less,
it
will
be
required
to
meet
the
substantive requirements of
Section 215.401:
a.
Under
Section
215.401(a)
the
inks would
have
to
be
reformulated
so
that the volatile
fraction
of
the
ink
is
either
a)
25
or
less
by
volume
organic
solvent
and
75
or
more
by
volume
water
or
b)
as
applied
to
the
substrate,
less water,
40
or
less by volume.
b.
Under Section 215.401(c)
and
(d)
a control
system
which
provides
at
least
a
90
destruction
efficiency
would
have
to
be
installed
in
conjunction with capture
systems
which
will
afford
a
65
overall
reduction
in
VOM emissions from Catty’s rotogravure presses
and
a
60
overall
reduction
in VOM
emissions
from Catty’s flexographic presses.
(Agency Rec.
at 4).
The Agency states
that refusal
to grant this variance would
impose an arbitrary ~r unreasonable hardship upon Catty.
(Agency
Rec.
at.
6).
Catty
is
located
in Mcflenry County.
Although McHenry County
is an attainment county for ozone,
it
is
situated
in
a major
urbanized area
(Chicago Metropolitan area), which
is non—
97—185
—4—
attainment
for ozone
and
is therefore included
in the Board’s
regulations from which Catty
is requesting this variance.
(See
P85—21).
According
to the Agency’s Recommendation,
the ozone
monitor located closest to Catty is
in Cary,
approximately twelve
miles northeast of Catty.
In 1987 there was one day when the
monitor recorded an ozone reading above 0.12 ppm.
(Agency Rec.
at
5).
Regarding compliance
with
federal
law,
the Agency states
that:
Because
Section
215.245
has
not
yet
been
approved
by
the
United
States
Environmental
Protection
Agency
(“USEPA”)
as
part
of
the
State
Implementation
Plan
(“SIP”)
to
attain
and maintain primary and secondary
air quality
standards,
the
Agency
does
not
believe
that
the
variance
requested,
if
granted,
needs
to
be submitted
to the USEPA
as
a revision
to the
Illinois
SIP.
Since
the
variance
petition
submitted
by Catty Corporation is only
to last
until
December
31,
1988,
and
Section
215.245
will not be approved by the USEPA by then,
the
Agency
feels
it
is
not
necessary
to
obtain
approval of
the variance
as
a
revision
to the
SIP by USEPA.
(Agency Rec.
at 5).*
CONCLUSION
Based on the
record before
it, including environmental
impact,
the Board finds that Catty has presented adequate proof
that compliance with Section
215.245 would impose an arbitrary or
unreasonable hardship upon Catty.
In
so
finding,
the
Board takes
special note of Catty’s assertions that
it will
be
in compliance
in 1989 and subsequent years.
For these reasons,
the Board will
grant
the requested relief,
subject
to conditions.
The Board notes
that two conditions contained
in
the
Agency’s recommendation have been omitted from the Board’s Order
following
this Opinion.
Catty will not
be
required by the Board
to submit
a
final report to the Agency;
it
is after
the term of
the variance has ended and also the Board considers
this reguest
by the Agency
for
a final report to be entirely reasonable and
may
be required pursuant to
35 Ill.
Adm.
Code Section 215.404
without
a Board Order.
*
The Board takes Administrative Notice
that USEPA took
final
rulemaking action to disapprove
the Chicago portion of the
Illinois SIP for ozone, effective November
16,
1988.
(53
Fed.
Peg.
200,
40415 (1988)).
97—186
—5—
Secondly,
the Agency’s recommended condition of
prospectively requiring Catty
to
be
in compliance in
1989 or
impose
a production cap
is surplusage.
The Board’s regulations
require Catty
to be
in compliance in 1989 and subsequent years,
absent a variance.
The Board notes that compliance with the
Agency’s permit limiting emissions to
100 TPY is an alternative
method
to the three year demonstration required
in Section
215.245.
Also,
this grant
of variance
is not an appropriate
vehicle
for imposing
a production cap remedy for
a potential
future violation.
Issues
as
to whether
a violation has occurred
and
if
so,
what
is an appropriate remedy must
be resolved on
their merits
in another proceeding.
In
so saying,
the Board
cautions Catty
that it gave
it the benefit of
the doubt
in this
case regarding the timing of its projections of non—compliance
and its petition for variance
in the last quarter
of the year.
This Opinion
constitutes
the Board’s findings of fact and
conclusions
of law
in this matter.
ORDER
1.
Catty Corporation
is hereby granted variance for the calendar
year 1988 from
35
Ill.
Adm. Code 215.245, subject to the
following conditions:
A.
This variance terminates on December
31,
1988.
B.
No new high solvent coatings shall
be introduced during
the time of
the variance.
2.
Within forty—five
(45) days after
the date of the Board Order
the Petitioner
shall execute and send to:
Mr. Joseph R.
Podlewski,
Jr.
Enforcement Attorney
Illinois Environmental Protection Agency
1701 South First Avenue, Suite
600
Maywood, Illinois
60153
a certification
of
its acceptance
of this variance by which
it agrees to be bound by
its terms and conditions.
This
forty—five
(45) day period shall be held
in abeyance
for any period which 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 variance was granted.
The form of the
certification shall
be
as
follows:
97—187
—6—
CERTIFICATION
I,
(We), ______________________________, having read the
Order of the Illinois Pollution Control Board,
in PCB 88—169,
dated March 23,
1989, understand and accept the said Order,
realizing that such acceptance renders all terms and conditions
thereto binding
and enforceable.
Petitioner
By:
Authorized Agent
Title
Date
Section
41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1987 ch.
ill 1/2 par.
1041,
provides for
appeal of Final
Orders
of the Board within
35 days.
The Rules of the Supreme
Court
of Illinois establish filing requirements.
IT
IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify that the ~ove
Opinion and Order was
adopted on the
‘~~‘-‘~
day of
~
,
1989, by
a vote
of
7-~
Dorothy M.
n, Clerk
Illinois
Poj4ution
Control
Board
97—188