ILLINOIS POLLUTION CONTROL BOARD
June 22,
1989
JEFFERSON SMURFIT CORPORATION,
Petitioner,
v.
)
PCB 87—185
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ROY M.
HARSCH
and DANIEL
F.
O’CONNELL, OF GARDNER, CARTON
&
DOUGLAS, APPEARED ON BEFIALF OF PETITIONER;
AND
JOSEPH
R.
PODLEWSKI,
OF THE ILLINOIS ENVIROt’1MENT~LPROTECTION
ASENCY,
APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J. Anderson):
This matter comes before the Board upon
a
request
for
variance filed by Jefferson Srnurfit Corporation (“Smurfit”),
On
November
30,
1987,
as amended on January 20,
1988,
as secondly
amended on February 23,
1988 and
as thirdly amended on November
18,
1988.
In
its third amended petition
(November
18,
1998),
Smurfit
is requesting
a variance from the Board’s regulations
governing emissions from flexographic and rotogravure printing
operations under
35
Ill.
Adm.
Code 215.401—215.407 and 215.245
until December
31,
1989.
PROCEDURAL HISTORY
In response
to
a December
3,
1987 Board Order, Srnurfit filed
an amended petition on January 20,
1988.
This amended petition
advised
the Board
that Smurfit had
filed
a petition
for site—
specific relief from Section 215.245
as
a primary compliance
method,
with installation
of control equipment
as
an alternative
compliance method.
However,
Srnurfit did not address the
challenge to the validity of Section 215.245 raised
in its
original petition, which
the Board had required Smurfit
to brief
in
its December
3,
1987 Order.
By an Order
of January
21,
1988,
the Board noted Smurfit’s failure
to address
the issues raised
in
challenging
the validity of Section 215.245 and again ordered
Smurfit
to brief
those
issues.
In
response to the Board’s January 21,
1988 Order,
the
Agency filed
a prehearing brief on February 19,
1988 and Smurfit
filed
its brief
on February
23, 1988 with
a second amended
variance petition.
Smurfit’s second amended petition asserted
that the Board’s Subpart P rules were invalid because
they were
not properly adopted.
(2d Amended Pet,
at
1).
100—169
—2—
On June 16, 1988,
the Board issued an Interim Order
in
regard to the issues discussed
in Smurfit’s prehearing brief.
In
that Order
the Board
found
that challenges
to the validity of the
regulations as applied
are limited “within the variance
proceeding
to matters concerning uncertainty of meaning of
the
regulations.” (Jefferson Smurfit Corporation
v.
IEPA,
PCB 87—185,
June 16,
1988 at 3).
The Board
also found
that “such burden
of
proof
as may exist in the instant matter resides with
Petitioner.”
(Id.).
Finally,
the Board
found
that
the standard
of review for this proceeding was arbitrary
or unreasonable
hardship as specifically provided
for
in the Environmental
Protection Act
(“Act”)
and not technical feasibility or economic
reasonableness
as maintained by Smurfit.
The Board
then directed
the Hearing Officer
to proceed
to hearing.
In response to Smurfit’s
third amended petition,
the Agency
filed
its recommendation
to grant
the variance with conditions
on
December
14,
1988 and Smurfit
filed
a response
to the Agency’s
recommendation on December
19,
1988.
Hearings
on this matter
were held on January 24,
1989 and March 27, 1989;
no members of
the public attended either hearing.
BACKGROUND
Smurfit’s Bedford Park plant manufactures folding cartons
at
6550 South Lavergne Avenue
in Chicago.
Plant operations
include
printing by using
a
rotogravure press,
which is the subject
of
this variance proceeding.
Fumes
and hot air are collected
in the
hoodirig at each printing station and vented through three
roof
stacks.
Presently,
there
are no control devices on
the
rotogravure press.
(3rd Amended Pet,
at 2,3).
According
to the Agency,
actual annual volatile organic
material
(“VO~1”) emissions from Smurfit’s
rotogravure press were
as follows:
1984
—
260
tons per year
(“TPY”),
1985
—
250 r~pyand
1986
—
297 TPY.
The Agency could
not provide
1987
or
1988 VOM
emission
figures but Smurfit has estimated
its 1997 annual VON
emission rate
to be
in
the vicinity of 300 tons.
(Agency Rec.
at
6).
Since Smurfit emits
less than 1,000
tons
of VOM yearly,
it
was exempt from the Board’s emission limitations for rotogravure
printing
operations until November
9,
1987.
(35 Ill.
Adm. Code
215.401,402).
When the Board amended
its regulations governing
VOM emissions
from rotogravure and flexographic printing
operations,
the amount
of
VOM
emissions triggering the exemption
from the
requirements, of Section
215.401
for sources
in ozone
nzn—attainrn~nt
areas
decreased
from
1,000
TPY
to
100
TPY.
(In
r~:Prooos~d~ndm~nts
to
35
111.
Ad~.
Code
215:
F.exo9rap:iic
and
Roto9ravure Printin~,R85—2l, Docket
8;
35
Ill.
Adm.
Code
215.245).
Affected
facilities were required to be
in compliance
by December
31, 1987.
Since Smurfit
filed
its original variance
petition within
twenty days
of the effective date of Section
215.245,
the effect of
that rule as
it applies
to Smurfit
is
100—170
—3—
stayed pending
the disposition
of this variance proceeding.
(Ill.
Rev.
Stat.
ch. 111—1/2, par.
l038(b)(l987);
35 Ill.
Adm.
Code 104.102).
COMPLIANCE PLAN
In its third amended petition, Smurfit states that
it will
bring
its plant
into compliance by December
31,
1989,
by
installing and operating
an incinerator system.
Smurfit
anticipates
an installation cost of $425,000, plus an annual
operating cost of $35,000.
(R,
at
15, March 27,
1989).
As alternative methods
of compliance,
Smurfit considered the
utilization of
a solvent recovery system or the conversion of
its
operations
to
a water—based
ink,
(3rd Amended Pet,
at 7).
Smurfit determined that use
of
a solvent
recovery system was not
feasible at
its olant as
it has a relatively small press that
uses
a variety of solvents.
Smurfit contends
that the most
common solvent recovery system,
a carbon absorption system, works
best
in
a large plant utilizing
a single non—water soluble
solvent
in
its
ink.
(3rd Amended Pet,
at
7).
Similarly, Smurfit
rejected the possibility of converting to water—based inks,
alleging that
it was neither technically feasible nor
economically reasonable to
so convert.
HARDSHIP AND ENVIRONMENTAL IMPACT
Smurfit’s Bedford Park plant
is located
in Cook County,
a
non—attainment area for ozone.
The two ozone monitors located
closest
to Smurfit’s Bedford Park facility are
in Cicero
(1850
‘3.
51st St.)
and Lemont
(729 Houston).
According
to the Agency,
neither monitor
reported a violation of the ozone ambient air
quality standard
(“AAQS”)
in
1986.
At least
one violation of the
ozone AAQS was reported
at each monitor
in 1987 and two
violations were
reported at
the Cicero monitor
in
1988.
(Agency
Rec.
at
12).
The Agency also states that
“a
s
a major
hydrocarbon source
in an ozone non—attainment
area,
Smurfit
contributes,
to
an unquantified degree,
to the
‘frequent,
pervasive and substantial’
violations
of the ozone AAQS
in
northern Illinois.”
(Id.).
The Board notes that although both Smurfit’s
third amended
petition and
the Agency’s recommendation state
that Smurfit will
come into compliance
by installing
a catalytic incinerator,
the
term “catalytic” was deleted by Smurfit
at the March
27,
1989
hearing.
Since
the Agency did not object
to this change at the
hearing
or subsequently,
the Board assumes that the efficiency
rate of these
incinerators
is essentially the same.
The Agency states
in its recommendation that
it “agrees with
Smurfit
that compliance with the VOM emission limitations of
Section 215.401 will create
an unreasonable hardship.”
(Agency
Rec.
at
15).
According
to the Agency,
immediate compliance would
require Sniurfit to either
reduce operations so that emissions do
100—17
1
—4—
riot
exceed
100 tons annually or shut down its printing
operations.
The Agency points out that since
“more than 75
of
all products manufactured
at Smurfit are printed using
the
rotogravure press,
a shutdown of that press would very likely
result
in
a shutdown of the entire plant.”
(Id.).
Similarly,
the
Agency points out that decreasing production enough
to reduce VOM
emissions
to 100 TPY or less would also have an adverse impact
upon plant operations, possibly requiring Smurfit
to shut down.
The Agency states
in
its recommendation
that the requested
variance should
be granted “because an unreasonable hardship will
exist
in the absence
of
a variance and Smurfit
is committed to
a
definite program designed
to achieve compliance
by a date
certain.”
(Agency Rec.
at
18).
CONCLUSION
Although the Agency’s recommendation
indicates that there
is
some environmental
impact,
that impact
is not resolved by the
Agency except to
the extent that Smurfit does have
a definite
compliance plan
to be achieved relatively soon,
by December 31,
1989.
The Board
notes with special concern Srnurfit’s
contribution
to the ozone violations.
However, based on the
record before
it, the Board
finds
that Smurfit
has presented
adequate proof that immediate compliance with Sections 215.401—
407 and Section 215.245 would
impose an arbitrary or unreasonable
hardship upon Smurfit.
The Board will grant
the requested
relief,
subject
to conditions.
The Board notes
the Agency’s concern in
its recommendation
that Smurfit’s ambitious
schedule leaves little room for delay or
error.
Several deadlines,
in addition
to those conditions
recommended
by the Agency, have been
included
in the Order
following
this Opinion
to ensure Smurfit’s adherence
to
its
timetable.
In addition,
Smurfit’s
stay
from
the Board’s
regulations
in
Section
215.245 ends upon granting this variance;
in
case
of
delay,
Smurfit
is
forewarned
to
timely
file
a
petition
for
variance,
allowing
120
days
for
a
decision
by
the
Board.
This
Opinion
constitutes
the
Board’s findings
of
fact and
conclusions
of law
in this matter.
ORDER
1.
Jefferson Smurfit Corporation
(“Smurfit”)
is hereby granted
variance from 35 Ill.
Adm. Code
215,
Subpart P (35
Ill.
Adm.
Code 215.401—215.407)
and
35 Ill.
Adm.
Code 215.245
for
its
Bedford Park facLlity,
subject
to
the following conditions:
~.,
This
var iance
terminates
on
December
31,
1939
or
when
compliance
with
35
ill.
Adm.
Code
215.401—215.407
and
215.245
is
achieved,
whichever
occurs
first.
B.
Installation
of
the
new
incinerator
shall
begin
no
later
than
September
15,
1989.
100—172
—5—
C.
Installation of the new incinerator shall
be completed
no later than December
15,
1989.
D.
The new incinerator
shall be operable and Smurfit
shall
be
in compliance with 35
Ill.
Adm. Code 215,
Subpart P
(35 Ill.
kdm. Code
215.401—407)
and 35
Ill.
Adm.
Code
215.245 no later
than December
31,
1989.
E.
Smurfit
shall give thirty
(30)
days notice prior
to the
expected date of any stack
test
to
the Agency’s regional
office and Emission Source Specialist at the Agency’s
Maywood address provided above.
The Agency’s Emission
Source Specialist shall
be further
notified within
a
minimum of five
(5) working days of the exact date,
time,
and place
of these
tests,
to enable Agency to
witness these
tests.
F.
During the term of this variance, Smurfit shall submit
quarterly written reports to the Agency detailing
all
progress made
in achieving compliance with
35
Ill.
Adm.
Code 215,
Subpart P at its plant located
at
6550 South
Lavergne Avenue,
Chicago, Illinois.
The first quarterly
report will
be due thirty (30) days
from the date
of
this Order.
These quarterly reports shall
include
monthly VOM emission data from the press department.
The first quarterly report shall
also include copies
of
material data sheets showing
the composition
(in terms
of percentage
of solid solvent and water)
of all
inks
and coatings used during the rotogravure printing
processes.
All
of the above information shall be
submitted
to the Agency at the following addresses:
Manager, Permit Section
Division of Air Pollution Control
Illinois Environmental Protection Agency
1340 N. Ninth Street
Springfield,
Illinois
62702
Manager, Field Operations Section
Division
of Air Pollution Control
Illinois Environmental Protection Agency
1701
5.
First Avenue
Suite 600
Maywood,
Illinois
60153
2.
Within forty—five
(45)
days after
the date
of this Order,
Smurfit
shall
execute
and
send
to:
100—173
—6—
Mr. Joseph R.
Podlewski,
Jr.
Enforcement Attorney
Illinois Environmental Protection Agency
1701 S.
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
arid 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:
CERTIFICATION
I,
(We), _________________________,
having
read the Order
of the Illinois Pollution Control Board,
in PCB 87—185 dated June
22,
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.
1997
ch.
111 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
Oi~DE~ED.
100—174
—7—
I, Dorothy M. Gunn, Clerk
of the Illinois Pollution Control
Board, hereby certify that the a~oveOpinion and Order was
adopted on the ~
-~
~/day
of
_______________,
1989,
by
a vote
of
_____________.
/
~
~
~
Dorothy M.
Gu9’n,
Clerk
Illinois Pollution Control Board
100— 175