WRITER’S
DIRECT DIAL
NUM8ER
ROY M.
HARSCH
(312) 245-8723
rharsch@gcd.com
GARDNER,
CHICAGO,
ILLINOIS
60610
(312)
644-3000
FAX:
(312)
644-3381
INTERNET:
gcdlawchgo~gcd.com
ECE
k
V ED
CLERIcS
QFrT~
JUL
2
2
2002
STATE OF
ILLiNOIS
Pol/u~o,~
Control
~
WAS HINGTON,
D.C.
MEMBER
WORLD
LAW
GROUP
A
GLOBAL
NETWORK
OF
INDEPENDENT
FIRMS LOCATED
IN
30
COUNTRIES
July
19, 2002
VIA
U.S.
MAIL
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois
60601
Re:
Proposed Site-SpecificAir Pollution Regulations Applicable to Horween
Leather Company ofChicago,
Illinois
R02-20 (Site-Spec~flc
Rulemaking
—
Air)
Dear Ms.
Gunn:
Enclosed please find an original and
eleven copies ofPost-Hearing Comments
for the
above-captioned case, which we request that you please file.
Also, please return file stamped copies to me in the self-addressed stamped envelope.
Thank you very much.
RMH/dml
Enclosures
CHO2/22198401.1
Very truly yours,
Roy M. Harsch
SUITE
3400
IN THE
MATTER OF:
PROPOSED SITE-SPECIFIC
AIR
POLLUTION REGULATIONS
APPLICABLE TO HORWEENLEATHER
COMPANY OF CHICAGO, ILLINOIS
35
Iii. Adm. Code 211.6170
DorothyM.
Guim, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
William
Murphy
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street,
Suite 11-500
Chicago, Illinois
60601
NOTICE OF FILING
Rachel Doctors, Assistant Counsel
Division ofLegal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Post Office Box 19276
Springfield, Illinois
62794-9276
Illinois Department ofNatural Resources
524 South Second Street
Springfield,
Illinois 62701-1787
Environmental Bureau
Office ofthe Illinois Attorney General
500
South Second
Street
Springfield, Illinois
62706
PLEASE TAKE NOTICE
that I have today filed with the Office ofthe Clerk of the
Pollution Control Board
the
POST-HEARING COMMENTS, a copy
ofwhich is herewith
served upon you.
Dated:
July
19, 2002
GARDNER, CARTON & DOUGLAS
Roy M. Harsch
321
N. Clark Street
Suite 3400
Chicago, IL
60610-4795
Telephone:
(312) 245-8723
Facsimile:
(312) 644-3381
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CF~1VEL
CLERM’~OFFrCE
JUL.
2
2
2002
STATE OF ILLINOIS
R02-20
Pollution
Control Board
(Site-Specific Rulemaking
—
Air)
THIS FILING IS SUBMITTED
ON RECYCLED
PAPER
REc~vED
CLERK’S
OFP,r’r
BEFORE THE ILLiNOIS POLLUTION CONTROL
BOARD
JUL
2
2
200?
STATE OF
ILLINOIS
IN THE MATTER OF:
)
POllUtiOfl
Control
Board
)
PROPOSED SITE SPECIFIC
)
R02-20
AIR
POLLUTION REGULATIONS
)
(Site-Specific Rulemaking
-
Air)
APPLICABLE
TO
HORWEEN
)
LEATHER COMPANY
OF
)
CHICAGO, ILLiNOIS
)
35
Ill.
Adm. Code 218.112 and218.929
)
POST-HEARING COMMENTS
Horween Leather Company (“Horween”) hereby submits to the Illinois Pollution Control
Board (“Board”) these post-hearing comments following the June 26, 2002 Hearing pursuant to
35
Ill. Adm.
Code Part 102,
Subpart B and
Sections 27 and 28 ofthe Illinois Environmental
Protection Act, 415 ILCS
5/27-5/28
(“Act”).
As stated in its original Petition and throughout the
Hearing,
Horween requests that the Board issue a site-specific rule from 35 Ill.
Adm. Code
211.6170 and 218.926
to change the control requirements as applied to a small amount ofnew
specialty leathers that Horween would like
to produce that currently can not be produced in
compliance with either the general leather or specialty leather coating rules.
The requested rule
change would allow Horween to continue to produce its existing specialty leathers pursuant to
the existing regulations, and develop new specialty leatherproducts in compliance with
environmental law pursuant to these requested regulations.
Horween hopes that the additional
information provided in these comments allows the Board to grant the rule suggested by the
Illinois Environmental Protection Agency (“IEPA”),
as modified by Horween.
Discussion
Horweenbelieves that the record presently before the Board supports the requested
revision as posed in the draft rule submitted by IEPA as a pre-hearing Exhibit related to Gary
Beckstead’s testimony.
See Hearing Transcript 49.~949.~13
and 59:9-59:16.
At
Hearing, there
were no new substantive issues raised.1
Accordingly, based on a thorough review ofthe record, there are only two outstanding
issues that must be resolved by the Board prior to proceeding to
First Notice in this matter.
Hearing Transcript 49:2-49:4.
First, the Board must determine whether to require Horween to
install High Pressure Low Volume (“HPLV”) Spray Equipment as a condition ofthe proposed
rule.
Id.
Second, theBoard
must determine whether to require Horween to significantly
expand
its current recordkeeping requirements.
Id.
In addition to the two outstanding issues for the
Board to decide, Horween would also like
to clarify the Board’s record regarding the delisting of
Ethylene Glycol Butyl Ether (“EGBE”) from the list of Hazardous AirPollutants (“HAP”).
I.
The Board Should Not Require Horween To Install HPLV Spray Equipment
Because It is Not Reasonably Available Control Technology.
Horween contends that the Board should not require Horween to install HVLP spray
equipment to manufacture the newly proposed specialty leathers because the equipment is not
ReasonablyAvailable Control Technology (“RACT”) as applied to
its leather finishing
operations.
See Hearing Transcrzpt 128:20-130:13.
Section
172(c)(1) ofthe Clean Air Act, 42
USC
7502(c)(1),
requires that State Implementation plans (“SIPs”) fornonattainment areas
provide for the implementation ofreasonably available control measures
(“RACM”)
including
emission reductions obtained through the adoption ofRACT.
The United
States Environmental
Protection Agency (“U.S. EPA”) has historically defined RACT as the lowest emission
limitation that a particular source is
capable of meeting by the application ofcontrol technology
that
is reasonably available considering technological and economic feasibility.
See 44 Fed.
Reg.
I
At hearing the Board raised the
issue of the appropriateness of the-existing heading in the requested relief.
Following the Hearing, counsels for the parties conferred with the Hearing Officer and submitted a joint request on
July
1, 2002 proposing an amendment to the heading.
Based upon the parties understanding the heading issue will
be dealt with when the Board proceeds to First Notice.
2
53762 (September 17,
1979).
By regulation, the Illinois
Pollution Control Board has adopted the
U.S. EPA’s historical definition of
RACT.
See 35 IAC2JJ.53 70.
There are two criteria that must be satisfied to determine RACT: (1) technological
feasibility and (2) economic feasibility.
Unlike case-by-case determinations made by the U.S.
EPA for Best Available Control Technology (“BACT”) orthe Lowest Achievable Emission Rate
(“LAER”) under the Clean Air Act’s New Source Review Program, RACT determinations
typically have beenprescribed by State and
local rules and regulations.
The determination oftechnological feasibility must focus on factors specific to the source
and should not be an evaluation ofthe feasibility ofcontrol measures for the entire source
category. The evaluation should be restricted to the
particularprocesses to be controlled by a
single technology application.
Thus, the technological feasibility analysis should not be an
attempt at technology-forcing for the industry,
but an attempt
to compare the most similar
sources to
identify RACT
forthe sources.
With regard to
economic feasibility,
a RACT determination should include the
consideration ofthe cost ofreducing emissions and the difference in costs between-the -particular
source for which RACT is being determined and other similar sources that have implemented
emission reductions.
Ifnecessary, a facility should include affordability in its analysis of
economic feasibility.
It was this review that originally led the IEPA to agree with Horween and the Board to
ultimately adopt the specialty leather subcategory in R93-14.
See Hearing Transcrz~t
52:15-
55:21.
Horween demonstrated that it was not technically feasible and/or economically
reasonable to meet the general RACT
leather coating limitation of
3.5
lbs. per gallon or install
capture and
control equipment at its
Chicago plant.
Id.
This remains true today and just as
applicable to the
small quantity ofnew specialty leathers that Horween would hope to produce.
U.S. EPA’s most recent
RACT
determination is the approval ofthe Prime Tanning Company’s
RACT limitation in Maine.
65 Fed.
Reg.
20749,
20751
(April 18, 2000).
The reliefjointly
proposed by Horween and the IEPA is based in substantial part on this
RACT determination.
3
However, U.S. EPA’s staff has reportedly triedto
further limit this relief to the use ofHVLP
spray guns.
The IEPA’s suggested use ofHVLP spray equipment as RACT fails because the
equipment is technologically and economically infeasible.
To
start, the
“HVLP” nozzles
recommended by the IEPA do not meet the current definition ofHVLP in the Illinois Pollution
Board Regulations.
See Hearing Transcript 63:2-64:16.
Next, even the HVLP manufacturer
recommended by the IEPA lacks any understanding ofthe application or use ofHVLP in the
leather manufacturing industry.
See Hearing Transcript 134:18-135:9.
Finally, after extensive
testing by Horween in response to IEPA and U.S.
EPA’s concerns, Horween determined that it
could not make its proposed specialty leather products with the recommended HVLP spray
nozzles.
See Hearing Transcrzpt 21:20-25:13 and 40:5-40:12.
Moreover, the IEPA admits that the requirement to
install HVLP on a specialty leather
coating line is technology-forcing, which is notRACT.
See Hearing Transcrzpt 135:21-136:19.
In addition, although Prime Tanning Company may use HVLP spray nozzles on two ofits lines
at its
facility in Maine, even IEPA agrees that Prime Tanning Company’s operations are
fundamentally different.
See Hearing Transcrzpt 131:13-131:14.
Specifically, Prime Tanning
Company produces upholstery leather predominantly for the automotiveindustry.
See Hearing
Transcrz~t67:23-68:13.
Because the leatherproduced
by Prime Tanning Company is not for
high quality shoes like Horween’s leather production, Prime Tanning Company’s products and
operations are fundamentally different.
See Hearing Transcript 38:19-38:20 (HVLP spray guns
are generally usedfor garment and upholstery leathers, not shoe leather).
As
stated above,
technological feasibility should be determined by comparing the most similar sources to identify
RACT.
Consequently,
although these sources both make leather products, the type ofproducts
manufactured and the processes used to manufacture those products are significantly different.
Therefore, the use ofHVLP spray nozzles at Prime Tanning Company does not define RACT for
Horween.
4
Withregard to economic feasibility, Horween’s direct
testimony clearly shows that
requiringHorween to installHVLPspray guns would requireHorween to significantlyredesign
its facility.
Hearing Transcript 22:16-22:20 and 25:3-25:13.
Furthermore, the redesign ofthe
facility to install untested technology, even if only for only one year as proposed by the IEPA,
would be entirely costprohibitive and does
not make any
economic sense.
Id.
In fact, the
necessary facilitychangesmay
defeat the entire purpose ofmanufacturing the new products-if
Horween cannot
find a market for those products.
Finally,
the use ofHVLP spray nozzles may
not even result in
VOM emission reductions.
Hearing Transcript 23:12-23:13.
Therefore, basedon
the foregoing, Horween requests that the Board adopt the final Site
SpecificRule by deleting Section 218.929(c)(4) from IEPA’s proposed
rule to exclude the
requirement to installHVLP spray gunsbecause it is not RACT.
II.
The Board Should
Not
Require Increased Recordkeeping Requirements For The
Limited
Production ofAdditional
Specialty
Leathers Because Current
Recordkeeping Requirements Are Adequate.
The Board should not require Horween to substantially increase its recordkeeping
requirements for the increased manufacturing ofa small amount ofnew specialty leathers
because the current recordkeeping requirements areadequate.
As both Horween and the IEPA
have testified, the IEPA
and the U.S.
EPA have previously approved Horween’s current
recordkeeping system to demonstrate compliance with VOM and HAP
emission
limitations.
Hearing Transcript 33:15-37:22 and 60:21-61:.
In
fact, the U.S.
EPAhas recently affirmed
that Horween’s current recordkeeping system will also meet the new Leather Coating NESHAP
standard’s recordkeeping requirements.
Hearing Transcript 3 7.~4-3
7.~3.
Furthermore, Horween understands thatIEPA’s
request for batch by batch recordkeeping
derives from the U.S.
EPA’s concern that it’s field inspectors will not be able “to verify and
confirm ordeny
Horween’s monthly emission
estimates.”
Hearing Transcript 60:9-6:.
However, as explainedduring theHearing, U.S. EPA’s concern is illegitimate based on
the
5
limited number ofVOM compounds at issue and the maximum actual emissions from those
compounds per year.
Hearing Transcrzpt
73:8-73:17 and 79:20 -80:8.
Specifically, there are
only two
compounds that are
used on multiple types ofleathers manufactured at the facility.
Id.
These compounds were identified as Ucosoloar dyes and Unithane 9107.
Id.
Although it is
true
that these compounds have uses that could have a minor impact on recordkeeping exactitude,
these two compounds’
maximum
annual emissions are less than4 tonsper year.
Id.
Thus,
establishing an extensive recordkeeping program for such a small
amount ofemissions is
unnecessary
and unjustified.
Furthermore, hiring an
additional employee solely to keep records, as suggested by the
Board,
should not be accepted as a potential solution.
Hearing Transcrzpt 127:22-127:24.
First,
as discussed above, the level ofemissions that concern IEPA and U.S. EPA are minimal.
Hearing Transcript 73:8-73:17 and 79:20 -80:8.
Second, as described during the Hearing,
Horween does not knowwhether or not the proposed leathers
still have a significant market
based on the two year delay Horween has had to wait for approval to manufacture these leathers.
See Hearing Transcript 124:19-125:15.
Thus, any profit marginwill be tight and
any additional
overhead may negate any economic reason to
move forward with manufacturing the proposed
products.
Therefore, based on the foregoing, Horween requests that the Board adopt the final Site
Specific Rule by excluding the words “by batch” in Section 218.929(d)(1) of IEPA’s proposed
rule.
III.
Delisting ofEGBE.
Horweenwould like to
take this opportunity
to clarify direct some testimony offered by
Mr. Roy Harsch regarding the petition to U.S.
EPA to
delist EGBE.
Hearing Transcript at
119:12- 119:18.
In his
testimony, Mr. Harsch stated that the Can Coaters’ representative
submitted a petition to
the U.S.
EPA to delist EGBB as a hazardous substance.
Id.
The
organization that actually submitted the petitionwas the Chemical Manufacturers Association
6
(“CMA”).
64 Fed. Reg. 42125 (August 3,
1999).
CMA originally submitted the petition on
August 29,
1997, but the petition was not published in the Federal Register until August 3, 1999.
Id.
This Federal Register notice identifies the extensive studies submitted by CMA to the U.S.
EPA to
support its petition to delist EGBE.
Id. at 42127.
However, to Horween’s knowledge, the
U.S. EPA has not yet taken any action on this petition.
Conclusion and
Prayer for Relief
In conclusion, Horweenbelieves that there were no substantive issues raised at hearing
apart from the two issues separating IEPA and Horween that are discussed above.
Specifically,
those issues are the use ofHVLP spray guns and recordkeeping on a batch basis.
Horween understands that these remaining areas ofconflict discussed in this post-hearing
submission derive from the IEPA’s attempt to encourage U.S.
EPA’s quick approval ofthis Site
Specific Rule as a non-controversial SIP change.
Hearing Transcrzpt 48:14-49:8.
We thank the
IEPA for their intention because it is very important that Horween be granted the relief it has
sought for over two
years.
However, as stated during the Hearing and supported in this post-
hearing submission, Horween’ s requested relief is supported by federal and state laws and
policies.
Therefore, although an individual U.S.
EPA engineer may personally disagree with the
Site Specific Rule as proposed, there is no
legal basis for the U.S. EPA to
reject approval ofthe
Site Specific Rule as proposed by Horween as a non-controversial SIP
change.
WHEREFORE, Horween requests the Board grant a site-specific rule from compliance
with 35 Ill. Adm.
Code 211.6170 and 218.926
and add anew rule 218.929 as submitted by the
IEPA and modified by Horween in this post-hearing submission.
More specifically,
Horween
requests that the Board change the heading as agreed upon and sought in the joint request.
Next,
Horween requests that the Board proceed to a First Notice proposal on the proposed rule
submitted by the IEPA as a pré-hearing Exhibit, with the deletion ofthe bolded language
concerning HVLP spray nozzles and “by batch” recordkeeping.
See Hearing Transcript 49:9-
49:13 and 59:9-59:16.
A Board decision consistent with this prayer for relief will allow
7
Horween to continue to produce its
new products in compliance
CHO2/22 198243 .2
H
leathers and to develop a small amount of
8
CERTIFICATE OF SERVICE
It is hereby certified that true copies ofthe foregoing
POST-HEARING COMMENTS,
were mailed, first class to each
ofthe following on July
19, 2002:
Dorothy M. Guim,
Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite
11-500
Chicago, Illinois 60601
William Murphy
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite
11-500
Chicago, Illinois
60601
CHO2/22198397.1
Rachel Doctors, Assistant Counsel
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
PostOffice Box 19276
Springfield, Illinois
62794-9276
Illinois Department of
Natural Resources
524 South Second Street
Springfield, Illinois 6270 1-1787
L
Environmental Bureau
Office ofthe Illinois Attorney General
ond Street
~~n~el~,Illnois
62706
THIS FILING IS SUBMITTED
ON RECYCLED PAPER
