ILLINOIS POLLUTION CONTROL BOARD
    June 16, 1988
    SIMKINS INDUSTRIES, INC.
    Petitioner,
    v.
    )
    PCB 87—181
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    MESSRS. THOMAS M. GILLER AND ANDREW H. PERELLIS OF GESSLER,
    FLYNN, LASWELL, FLEISCHMANN, HUGHES & SOCOL, LTD., APPEARED ON
    BEHALF OF PETITIONER;
    MR. JOSEPH R. PODLEWSKI, JR., APPEARED ON BEHALF OF RESPONDENT.
    OPINION AND ORDER OF THE BOARD (by R.C. Flemal):
    This matter comes before the Board upon a request for
    variance filed on November 25, 1987 by Simkins Industries, Inc.
    (“Simkins”). Sirnkins requests variance from 35 Ill. Adm. Code
    215.245 until May 31, 1989.
    35 Ill. Adm. Code 215.245 was promulgated pursuant to the
    Board’s final order in R85—21, Docket B (In the Matter of:
    Proposed Amendments to 35 Ill. Adm. Code 215: Flexographic and
    Rotoc~ravure Printing, October 29, 1987). It provides in
    pertinent part that Flexographic and Rotogravure Printing
    operations which are located in non—attainment counties and which
    have aggregate uncontrolled emissions of volatile organic
    material (‘tVOM”) greater than 100 tons per year comply with rules
    regarding Flexographic and Rotogravure Printing, as specified at
    35 Ill. Adm. Code 215 Subpart P, by December 31, 1987. Prior to
    adoption of Section 215.245 Simkins was exempt from the
    requirements of Subpart P. Because Simkins filed the instant
    variance petition within twenty days of the effective date of
    Section 215.245, application of the rule is stayed as to Simkins
    pending a decision on the variance petition pursuant to Ill. Rev.
    Stat. ch. 111—1/2 par. 1038(b).
    On February 1, 1988 the Illinois Environmental Protection
    Agency (“Agency”) filed a recommendation that the requested
    relief be granted to March 31, 1989 subject to certain
    conditions. Hearing was held on March 16, 1988 and continued to
    90—113

    —2—
    March 31, 19881 On the latter date a Stipulation of Facts (Joint
    Exhibit 1) was submitted by the parties. Briefs were filed by
    Simkins and the Agency on May 16, 1988 and May 19, 1988,
    respectively; Simkins filed a response brief on May 31, 1988.
    Based on the record before it, the Board finds that Simkins
    would incur.an arbitrary or unreasonable hardship, not justified
    by the environmental impact, if the requested relief were to be
    denied. Accordingly, the variance will be granted, subject to
    conditions.
    BACKGROUND
    Simkins is a closely—held Connecticut corporation with its
    Illinois facility located at 5701 West Ogden, Cicero, Cook
    County, Illinois. The Cicero facility has approximately 200
    full—time employees and operates both rotogravure
    arid
    lithographic printing presses. The lithographic operation
    produces no VOM emissions, and is not of concern in the instant
    matter.
    Simkins’ rotogravure printing operation consists of a single
    Champlain press which prints on paperboard. The end—products are
    folding cartons for consumer applications, including, but not
    limited to, pharmaceuticals, packaging, hardware, toys, and food
    packaging. Simkins’ characterizes its rotogravure printing as
    highly specialized, with individual production runs lasting two
    to three days, each with unique specifications and different ink
    formulations. The rotogravure press normally operates sixteen
    hours a day, five days a week.
    Simkins discharges VOM to the atmosphere as a consequence of
    its rotogravure printing operation. The emissions are derived
    primarily from solvents contained in printing inks. Sirnkins
    calculates its annual VOM emissions rate to be approximately 350
    tons per year based on ink purchases from the period July 1, 1985
    through June 30, 1986 as corrected (Ft. at 44); Simkins contends
    that ink usage has not changed substantially since that time. An
    independent estimate of VOM emissions for the calendar year 1987
    is 322 tons per year (Ft. at 43; Joint Ex. 1 at par. 9). All VOM
    emissions are currently uncontrolled and vented directly to the
    atmosphere (Id. at 8).
    1 The Transcripts of the two hearings have separately numbered
    pages. All citations to the transcripts herein (i.e., Ft. at
    are to the transcript of March 31, 1988.
    90—114

    —3—
    COMPLIANCE PLAN
    At the time of hearing this matter Simkins had not yet made
    a selection among two compliance options considered to be viable
    by both Simkins and the Agency. These are substitution of VOM—
    inks with water—based inks and installation of VOM control
    equipment (R. at 43). Simkins asserts that both options are
    presently under study by Simkins’ consultants, and that the
    information necessary to make an informed decision should be
    available shortly (R. at 54). Accordingly, Simkins stipulates
    that it will make a specific choice among the options on or
    before May 31, 19882 (Joint Ex. 1 at par. 26, 29(B)).
    Simkins has been investigating the use of water—based inks,
    including conducting printing trials, for a period of
    approximately two to three years (Petition at par. 11; Ft. at 78—
    9). Sirnkins contends that complete conversion to water—based
    inks “may take more than a year” from the time the decision is
    made to comply via water—based inks, with the actual time
    dependent “on the frequency of repeat product orders” (Ft. at 49,
    69).
    Preliminary analysis by Simkins’ consultants indicates that
    the most economical of the add—on control options is oxidation
    via either thermal or catalytic incineration (Ft. at 50). Simkins
    estimates that the time required to achieve operation of an
    incineration system is 54 weeks (Ft. at 53), although under cross—
    examination Simkins’ consultant indicated that this time period
    “might be shortened a little bit” (Ft. at 63).
    HARDSHIP AND ENVIRONMENTAL IMPACT
    Simkins contends that it cannot come into immediate
    compliance via either the water—based ink or the add—on control
    options. Because ink usage on the Champlain press cannot be
    readily switched between water—based and VOM—based inks (Ft. at
    81), it is necessary to identify a full spectrum of water—based
    inks in order to accomplish the switch from VOM—based inks;
    additionally, modifications must be made to the press itself (Ft.
    at 96).
    2 The Board notes that the May 31, 1988 date is now past.
    Although the record is silent as to whether Simkins has made its
    selection of compliance plans as proffered, the Board will accept
    that the selection has been made in the absence of evidence to
    the contrary.
    90—115

    —4—
    Similarly, add—on control equipment requires design and
    construction time. Simkins also contends that the immediate
    necessity to incur an estimated $400,000 to $700,000 (Ft. at 57—8)
    in capital expenditures would impose an unreasonable financial
    hardship upon a facility which incurred an operating loss of
    nearly $700,000 in the fiscal year ending September 30, 1987 (Ft.
    at 84; Joint Ex. 1 at par. 18).
    The Agency, for its part, notes:
    Immediate compliance with the substantive
    requirements of Section 215, Subpart P is simply not
    feasible. Water—based or low—VOM content inks which
    are both compatible with Simkins’ rotogravure press
    and satisfy customer requirements have not yet been
    developed. With respect to VOM control equipment,
    the IEPA has stated as a matter of record in the
    rulemaking proceeding which led to adoption of
    Section 215.245 that “expeditious installation” of
    control equipment at affected facilities would take
    one year from the date that regulation was enacted.
    The Agency does not expect Simkins to be able to do
    in two months (November and December of 1987) what it
    reasonably expects will take one year.
    The Agency agrees with Simkins that compliance
    with the VOM emission limitations of Section 215.401
    will create an unreasonable hardship. Because
    existing water—based inks are not satisfactory and
    Simkins cannot realistically install and operate
    control equipment by December 31, 1987, its only
    compliance alternative is to shut down its
    rotogravure printing operations. A shut down of the
    rotogravure press would very likely result in a shut
    down of the entire plant, causing a temporary loss of
    200 jobs and $25 million in sales.
    Agency Recommendation at par. 22—23.
    Contrasting with hardship is the issue of environmental
    impact. The ozone monitor nearest to Sirnkins’ facility is
    located at 1850 S. 51st Street in Cicero; no ozone excursions
    were recorded at this monitor during 1986, but two were recorded
    during 1987 (Joint Ex. 1 at par. 21). Nevertheless, given the
    large number of VOM sources in the Chicago area and the multiple
    exceedences of the ozone standard throughout the Chicago area
    during 1987, it is difficult to quantify Simkins’ contribution to
    this environmental problem. However, Simkins’ compliance
    program, if successful, will significantly reduce the amount of
    VOM emitted by its facility.
    90—116

    5*
    The parties contend that the requested relief can be granted
    consistent with the federal Clean Air Act (42 tJ.S.C.A. par. 7401
    et seq., 1983), and that the variance should be approvable as
    part of the Illinois State Implementation Plan (Joint Ex. 1 at
    par. 24).
    CONTESTED ISSUES
    There remain two3 issues in dispute between the parties,
    both dealing with conditions of the requested variance. These
    are: (1) Simkins requests variance until May 31, 1989, whereas
    the Agency recommends variance until March 31, 1989; (2) Simkins
    requests that the Certification of Acceptance not be required,
    contrary to the Agency’s recommendation.
    On the matter of the termination date of the variance
    Simkins argues that it requires the additional two months based
    upon testimony from its witnesses thereto (Ft. at 44—54, 57,
    71). Conversely, the Agency believes that Simkiris can achieve
    compliance within the shorter timeframe, and, moreover, that it
    is desirable for Simkins to achieve compliance prior to onset of
    the 1989 ozone season (R. at 38).
    While the Board agrees with the Agency that it is desirable
    that Simkins achieve compliance by the onset of the 1989 ozone
    season, the Board also finds merit in Simkins’ contention that
    the Agency has not demonstrated that it is possible for Simkins
    to come into compliance in a shorter timeframe than that
    testified to by Simkins. Under these circumstances, the Board
    believes that the proper resolution is to terminate the variance
    consistent with the attested to compliance schedule.
    On the matter of the Certification of Acceptance, Simkins
    contends, among other matters, that the Board has stricken
    similar conditions in other cases (citing Waste Management, Inc.
    v. IEPA, PCB 85—45 etal, 60 PCB 173 at 196—7; Illinois Power Co.
    v. IEPA, PCB 83—53, 55 PCB 13). Simkins badly mischaracterizes
    the Board action in the two cited cases; both deal with
    conditions within permits, and have little to do with the instant
    matter of variance. Contrary to Simkins apparent belief, the
    A third issue of dispute unresolved at the time of hearing was
    resolved in the briefs. Namely, Simkins requests the insertion
    of the phrase “on an annual basis” within the proposed condition
    which limits, during the term of the variance, increase in annual
    emissions to no more than 20 above 1987 emission levels; the
    Agency agrees to this modification (Agency Brief at 15).
    90—117

    —6—
    Certificate of Acceptance has been and continues to be a standard
    element in the conditions associated with grant of variance.
    The Board believes that the Agency well capsulizes the
    necessity of inclusion of a Certification of Acceptance as a
    condition of grant of variance:
    It is well settled law that a variance granted by
    the Board is not binding upon a variance petitioner
    until petitioner accepts the variance upon the terms
    imposed (Citizens Utilities Co. v. PCB, 9 Ill. App 3d
    158, 289 N.E.2d 642 (1972); Flintkote Co. v. PCB, 53
    Ill. App 3d 665, 368 N.E.2d 984 (1977)). Therefore,
    contrary to Simkiris assertions, the Certification of
    Acceptance is not a mere restatement of its legal
    obligations should a variance be granted. Without
    the execution of the Certification of Acceptance, no
    legal obligations exist. It is only with the
    execution of the Certification of Acceptance and the
    resultant acceptance of the variance terms that legal
    obligations are created and the variance becomes
    binding.
    Agency Brief at 16—17.
    The Board would further note that it has experienced cases
    where, due to failure of a successful petitioner to identify that
    it had accepted the variance via submission of a Certification of
    Acceptance or other vehicle, substantial doubt arose as to
    whether a granted variance was in force. This condition has led
    to added litigation at the expense of petitioners, the Agency,
    and the Board. To rectify this circumstance, the Board has
    within recent times required as standard procedure that a
    successful petitioner not only submit the Certification of
    Acceptance, but that the submission be within a time certain.
    Failure to timely submit the Certification of Acceptance renders
    the grant of variance void.
    CONCLUS ION
    The Board finds that Simkins would suffer an arbitrary or
    unreasonable hardship not justified by the environmental impact
    if denied the requested relief. Accordingly, the relief will be
    granted with conditions consistent with this Opinion.
    This Opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    90—118

    —7—
    ORDER
    Petitioner, Simkins Industries, Inc., is hereby granted
    variance from 35 Ill. Adm. Code 215.245 for its facility located
    at 5701 W. Odgen Avenue, Cicero, Illinois, subject to the
    following conditions:
    1) Variance expires on May 31, 1989, or when compliance
    with 35 Ill. Adm. Code 215.245 is achieved, whichever
    occurs first.
    2) During the term of this variance, Petitioner shall
    submit quarterly written reports to the Agency detailing
    all progress made in achieving compliance with 35 Ill.
    Mm. Code 215, Subpart P at its plant located at 5701
    West Ogden Avenue, Cicero. The first quarterly report
    shall be due thirty (30) days from the date of this
    Order. The quarterly reports shall include monthly VOM
    emission data from the Champlain rotogravure press. 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
    used during the rotogravure printing process. The
    reports shall be submitted to the Agency at the
    following addresses:
    (a) Manager, Permit Section
    Division of Air Pollution Control
    Illinois Environmental Protection Agency
    1340 N. Ninth Street
    Springfield, Illinois 62702
    (b) Manager, Field Operations Section
    Division of Air Pollution Control
    Illinois Environmental Protection Agency
    1701 5. First Avenue, Suite 600
    Maywood, Illinois 60153
    3) By May 31, 1988, Petitioner shall decide whether the
    installation of VOM control equipment will be necessary
    to achieve compliance with 35 Ill. Mm. Code 215,
    Subpart P. Notice of this decision shall be provided to
    the Agency in the next scheduled quarterly report.
    4) No later than ninety (90) days prior to the initiation
    of construction of a VOM control system, Petitioner
    shall submit an application for a construction permit
    for that system in accordance with 35 Ill. Adm. Code
    201.152. Construction shall not begin until a
    construction permit is issued. Operation of the
    emission control system is not allowed until an
    operating permit is issued by the Agency, pursuant to 35
    Ill. Adm. Code 201.143.
    90—119

    —8—
    5) Petitioner 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
    address provided in Condition 2(b). 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 the these tests, to enable
    Agency to witness these tests.
    6) During the period of this variance VOM emissions from
    rotogravure printing operations shall not increase more
    than 20, on an annual basis, above 1987 levels.
    7) Within 45 days of the date of this Order, Petitioner
    shall execute and forward to Joseph R. Podlewski, Jr.,
    Enforcement Attorney, Illinois Environmental Protection
    Agency, 1701 S. First Avenue, Suite 600, Maywood,
    Illinois 60153, a Certification of Acceptance and
    Agreement to be bound to all terms and conditions of
    this variance. The 45—day period shall be held in
    abeyance during any period that this matter is being
    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 said Certification shall be as follows:
    CERTI Fl CATION
    I (We),
    ,
    hereby
    accept and agree to be bound by all terms and conditions of the
    Order of the Pollution Control Board in PCB 87—181, June 16,
    1988.
    Petitioner
    Authorized Agent
    Title
    Date
    Section 41 of the Environmental Protection Act, Ill. Rev.
    Stat. 1985 ch. llJL/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.
    90—120

    —9—
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the abov~Opinion and Order was
    adopted on the
    ~
    day of
    ____________________,
    1988, by a
    vote of
    7—to
    .
    Dorothy M/Gunn, Clerk
    Illinois Pollution Control Board
    90—121

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