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
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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.
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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.
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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.
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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).
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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.
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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.
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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.
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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
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