ILLINOIS POLLUTION CONTROL BOARD
    March 20, 1997
    THE D.B. HESS COMPANY, INC.,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 96-194
    (Variance - Air)
    WILLIAM J. ANAYA, JOHNSON & BELL, APPEARED ON BEHALF OF PETITIONER;
    CHRISTINA ARCHER, ASSISTANT COUNSEL, APPEARED ON BEHALF OF
    RESPONDENT.
    OPINION AND ORDER OF THE BOARD (by M. McFawn):
    This matter comes before the Board on the March 15, 1996 variance petition filed by
    The D.B. Hess Company, Inc. (DB Hess), as amended on August 1, 1996. As explained in
    more detail below, DB Hess seeks relief from various provisions of 35 Ill. Adm. Code
    218.407(a) and 218.411(b) as they relate to emissions of volatile organic material (VOM) from
    its lithographic printing operations located in Woodstock, McHenry County, Illinois. DB Hess
    seeks a variance from the compliance date for these rules for a period from March 15, 1996
    through March 30, 1999. DB Hess, therefore, is requesting that the Board retroactively apply
    this variance. This relief is requested in lieu of purchasing, installing, and maintaining an
    afterburner for three older presses which it intends to shut down on or before March 30, 1999.
    A hearing was held in this matter on January 23, 1997 at the McHenry County Courthouse
    before Hearing Officer Deborah Frank.
    On October 1, 1996, the Agency filed its variance recommendation in support of grant
    of amended petition for variance, subject to certain conditions. At hearing, the Agency and
    DB Hess agreed to modify the petition and the proposed compliance plan. (Tr. at 7-8.)
    For reasons expressed below, the Board finds that DB Hess has presented adequate
    proof that immediate compliance with the Board’s regulations would result in the imposition of
    an arbitrary or unreasonable hardship. Accordingly, the variance is granted, subject to
    conditions set forth in the attached order.

    2
    BACKGROUND
    The Board’s responsibility in this matter arises from the Environmental Protection Act
    (Act). (415 ILCS 5/1
    et seq.
    (1994).) The Board is charged there with the responsibility of
    granting a variance from Board regulations whenever it is found that compliance with the
    regulations would impose an arbitrary or unreasonable hardship upon the petitioner. (415
    ILCS 5/35(a).) The Illinois Environmental Protection Agency (Agency) is required to appear
    in hearings on variance petitions. (415 ILCS 5/4(f).) The Agency is also charged with the
    responsibility of investigating each variance petition and making a recommendation to the
    Board as to the disposition of the petition. (415 ILCS 5/27(a).)
     
    DB Hess, an Illinois corporation, owns and operates a lithographic printing plant
    located in Woodstock, McHenry County, Illinois (the Woodstock plant). (Pet2. at 2.)
    1
    The
    Woodstock plant uses heatset web offset lithographic printing processes. (Pet2. at 2.) DB
    Hess prints education workbooks and commercial and industrial catalogues. (Pet2. at 2.) The
    Woodstock plant emits VOM into the atmosphere from these printing processes. (Pet2. at 2.)
    The production equipment at the Woodstock plant consists of two heatset web offset
    lithographic printing presses, presses 1 and 2, controlled by a thermal oxidizer. (Ag. Rec. at
    4.) Presses 1 and 2 are also known as the Solna C96 and Harris M1000B presses,
    respectively. (Pet2. at 5.) Three heatset web offset presses, presses 3, 4, and 5, are
    uncontrolled and the subject of this variance. (Ag. Rec. at 4.)
    2
    Press 3 is also known as an
    ATF press and presses 4 and 5 are also known as Harris presses. Each heatset printing line
    includes one drying oven, fired with natural gas. (Pet2. at 5.)
    In the lithographic printing process, ink is transferred from rubber-covered “blanket”
    cylinders to one or both sides of a moving paper web at one or more printing units (one color
    per unit). (Pet2. at 5-6.) In heatset web lithography, the printed paper passes through a
    heated dryer to evaporate the ink oil and set the image. (Pet2. at 6.) The printed paper is then
    directed through ancillary finishing equipment, such as trimmers, folder or stitchers. (Pet2. at
    6.) At the Woodstock plant, the exhausts from the heatset press dryers for presses 3, 4, and 5
    are vented through the roof of the Woodstock plant. (Pet2. at 6.)
    Emissions of VOM from the Woodstock plant result from the use of inks, fountain
    solution additives and cleaning solutions in the heatset printing process. (Pet2. at 6.) Fountain
    solution is an additive that is used in the offset printing process to displace printing ink from
    the blanket cylinder. (Pet2. at 6.) Fountain solution often contains alcohol or other VOM in
    small amounts, and is diluted from a concentrate and applied from reservoirs shared by the
    1
    DB Hess’ August 1, 1996 petition for variance shall hereinafter be referred to as (Pet2.
    at__.); DB Hess’ March 15, 1996 petition for variance shall be referred to as (Pet1. at __.);
    the Agency’s recommendation shall be referred to as (Ag. Rec. at__.); The January 23, 1997
    hearing with regard to this matter shall be referred to as (Tr. at ___.)
    2
    In addition to the aforementioned presses, two cold set sheet presses, presses RZ5 and 10, are
    operated pursuant to 35 Ill. Adm. Code 218.407 through 218.411.

    3
    presses. (Pet2. at 6.) The Woodstock plant currently uses and will continue to use fountain
    solutions which are applied at a concentration of less than 5% VOM and contain no alcohol.
    (Pet2. at 6-7.) Cleaning solution is used to clean ink residues from the blanket cylinders at
    intervals that depend on the quantity of ink used during a run. (Pet2. at 7.) Like fountain
    solution, cleaning solution at the Woodstock plant is diluted from a concentrate. (Pet2. at 7.)
    Cleaning solution may be applied either manually, using spray bottles and towels to wipe down
    the cylinders or automatically with autowash equipment fitted specially for the press. (Pet2. at
    7.) Presses 3, 4, and 5 are cleaned manually. (Pet2. at 7.)
    Heatset printing inks are formulated from solids, inks oils and solvents, a proportion of
    which are VOM. (Pet2. at 6.) At the Woodstock plant, the highest VOM content of any
    heatset inks currently used at the time of DB Hess’ amended petition for variance is 42%, but
    several inks used in significant volumes contain significantly less VOM. (Pet2. at 6.) DB
    Hess uses the mass balance technique to measure the quantity of VOM actually emitted from
    the Woodstock plant. (Pet2.at 7.) DB Hess keeps daily records at the Woodstock plant and
    records the quantity and VOM content of each ink prepared for application and the quantity
    and VOM content of each batch of fountain solution and cleaning solution prepared and used at
    the Woodstock plant. (Pet2. at 7.) From these records and from emission factors considered
    by the United States Environmental Protection Agency (USEPA) to reflect Reasonably
    Achievable Control Technology (RACT), DB Hess calculates uncontrolled and controlled
    VOM emissions on a monthly basis. (Pet2. at 7.) In 1995, DB Hess emitted approximately
    eleven tons of VOM. (Pet2. at 8.) A little more than five tons resulted from heatset ink oils
    and a little more than four tons resulted from cleaning solvent. (Pet2. at 8.) The Woodstock
    plant currently operates under a Federally Enforceable Operating Permit (FESOP), issued by
    the Agency on December 11, 1995, which limits all VOM from the Woodstock plant to less
    than 25 tons per year. (Pet2. at 8, Att. F.)
    The Woodstock plant employs 143 full-time employees working three shifts. (Pet2 at
    2.) The Woodstock plant produces 50 million printed products for use in industrial,
    commercial and educational sectors. (Pet.2 at 2.)
    Woodstock has a population of approximately 14,500 people, and is located in
    McHenry County, in a rural section at the northwestern edge of the Metropolitan Chicago
    Interstate Air Quality Control Region (AQCR), as defined pursuant to Section 107 of the
    Clean Air Act. ( 40 C.F.R. 81.14 (1995); 42 U.S.C. Section 7407.) (Ag. Rec. at 5.)
    REGULATORY FRAMEWORK
    In determining whether any variance is to be granted, the Act requires the Board to
    determine whether a petitioner has presented adequate proof that immediate compliance with
    the Board regulations at issue would impose an arbitrary or unreasonable hardship. (415
    ILCS5/35 (a) (1994).) Furthermore, the burden is on the petitioner to show that its claimed
    hardship outweighs the public interest in attaining compliance with regulations designed to
    protect the public. (Willowbrook Motel v. Pollution Control Board (1985), 135 Ill. App. 3d
    343, 481 N.E. 2d 1032.) Only with such a showing can the claimed hardship rise to the level
    of unreasonable hardship.

    4
    A further feature of a variance is that it is, by its nature, a temporary reprieve from
    compliance with the Board’s regulations, and compliance is sought regardless of the hardship
    which the task of eventual compliance presents an individual polluter. (Monsanto Co. v.
    Pollution Control Board (1977), 67 Ill. 2d 276, 367 N.E. 2d 684.) Accordingly, except in
    certain special circumstances, a variance petition is required, as a condition to a grant of
    variance, to commit to a plan which is reasonably calculated to achieve compliance within the
    terms of the variance.
    The Lithography Rules
    The variance requested concerns several of the Board’s air regulations, found at 35 Ill.
    Adm. Code 218.407(a)(1)( C), (D), (E) and 218.411(b)(1), (2), (3)(1995), and which are a
    part of “the Lithography Rules.”
    The Lithography Rules were first proposed on October 28, 1994, when the Agency
    submitted a proposal for rulemaking entitled In the Matter of: 15% ROP Plan Control
    Measures of VOM Emissions - Part V: Control of VOM Emissions from Lithographic
    Printing: Amendments to 35 Ill. Adm. Code Parts 211, 218 and 219, and docketed as R94-
    31. R94-31 was published as a final rule in the Illinois Register, and had an effective date
    of May 9, 1995, and a compliance date of March 15, 1996. (19 Ill. Reg. 6823, 6848, and
    6958 (May 19, 1995).) The Agency submitted R94-31 to the USEPA as a State
    Implementation Plan revision. (Ag. Rec. at 2.) USEPA published a final rule in the
    Federal
    Register
    to be effective January 8, 1996 (60
    Fed Reg
    56238 (November 8, 1995).)
    The regulations under R94-31 tightened the requirements for heatset web offset
    lithographic printing and promulgated new requirements for other types of lithographic
    printing. (Ag. Rec. at 2.) Specifically, the new requirements apply to any owner or operator
    of lithographic printing presses if the maximum theoretical emissions from all heatset lines are
    more than 100 tons per year (TPY) of VOM unless a FESOP limits uncontrolled emissions to
    less than 100 TPY from all heatset lines. (See 35 Ill. Adm. Code 405(d)(1).) The FESOP,
    under which the Woodstock plant currently operates, limits uncontrolled emissions to less than
    100 TPY from all heatset lines. (Pet2. at Att. F.) However, the new requirements also apply
    if the source emits 100 pounds or more per day of VOM before control, from all printing
    processes. (See 35 Ill. Adm. Code 218.405(d)(2).) Because the permitted, uncontrolled VOM
    emissions from all printing processes at the Woodstock plant exceed 100 pounds per day, the
    Lithography Rules apply to the Woodstock plant. DB Hess is not in compliance with the
    afterburner requirement of the Lithography Rules as those rules apply to presses 3, 4 and 5.
    On March 15, 1996, the compliance date for the Lithography Rules, DB Hess filed a
    petition for variance from the Part 218 requirements for heatset web offset lithographic
    printing operations. In pertinent part they read:
    Section 218.407 Emission Limitations and Control Requirements for Lithographic
    Printings On and After March 15, 1996

    5
    a) On and after March 15, 1996, no owner or operator of lithographic printing line(s)
    subject to the requirements of this Subpart shall:
    1) Cause or allow the operation of any heatset web offset lithographic printing
    line unless:
    * * *
    B) The air pressure in the dryer is maintained lower than the air
    pressure of the press room, such that air flow through all
    openings in the dryer, other than the exhaust, is into the dryer
    at all times when the printing line is operating;
    C) An afterburner is installed and operated so that VOM
    emissions (excluding methane and ethane) from the press
    dryer exhaust(s) are reduced by 90 percent, by weight, or to a
    maximum afterburner exhaust outlet concentration of 200
    ppmv (as carbon);
    D) The afterburner is equipped with the applicable monitoring
    equipment specified in Section 218.105(d)(2) of this Part and
    the monitoring equipment is installed, calibrated, operated,
    and maintained according to manufacturer’s specifications at
    all times when the afterburner is in use; and
    E) The afterburner is operated at all times when the printing line
    is in operation.
    * * *
    b) An owner or operator of a heatset web offset lithographic printing line subject to
    the requirements of subsection (a)(1)(C) of this Section may use a control device
    other than an afterburner, if:
    1) The control device reduces VOM emissions from the press dryer exhaust(s)
    by at least 90 percent, by weight, or to a maximum control device exhaust
    outlet concentration of 20 ppmv (as carbon).
    * * *
    (35 Adm. Code 218.407 (1995))
    Section 218.411
    Recordkeeping and Reporting for Lithographic Printing
    b) An owner or operator of a heatset web offset lithographic printing line(s) subject to
    the control requirements of Section 218.407(a)(1)(C) or (b)(1) of this Subpart shall
    comply with the following:

    6
    1) By March 15, 1996, upon initial start-up of a new printing line, and upon
    initial start-up of a new control device for a heatset web offset printing line,
    submit a certification to the Agency that includes the following:
    A) An identification of each heatset web offset lithographic printing line
    at the source;
    B) A declaration that each heatset web offset lithographic printing line is
    in compliance with the requirements of Section 218.407(a)(1)(B),
    (a)(1)(C), (a)(1)(D) and (a)(1)(E) or (b) of this Subpart, as
    appropriate;
    C) The type of afterburner or other approved control device used to
    comply with the requirements of Section 218.407(a)(1)(C) or (b)(1)
    of this Subpart;
    D) The control requirements in Section 218.407(a)(1)(C) or (b)(1) with
    which the lithographic printing line is complying;
    E) The results of all tests and calculations necessary to demonstrate
    compliance with control requirements of Section 218.407(a)(1)( C)
    or (b)(1) of this Subpart as applicable; and
    F) A declaration that the monitoring equipment required under Section
    218.407(a)(1)(D) or (b) of this Subpart, as applicable, has been
    properly installed and calibrated according to manufacturer’s
    specifications.
    2) If testing of the afterburner or other approved control device is conducted
    pursuant to Section 218.409(b) of this Subpart, the owner or operator shall,
    within 90 days after conducting such testing, submit a copy of all test results
    to the Agency and shall submit a certification to the Agency that includes the
    following:
    A) A declaration that all tests and calculations necessary to demonstrate
    whether the lithographic printing line(s) is in compliance with
    Section 218.407(a)(1)(C) or (b)(1) of this Subpart, as applicable,
    have been properly performed;
    B) A statement whether the lithographic printing line(s) is or is not in
    compliance with Section 218.407(a)(1)(C) or (b)(1) of this Subpart,
    as applicable; and
    C) The operating parameters of the afterburner or other approved
    control device during testing, as monitored in accordance with
    Section 218.410(c) or (d) of this Subpart, as applicable;

    7
    3) On and after March 15, 1996, collect and record daily the following
    information for each heatset web offset lithographic printing line subject to
    the requirements of Section 218.407(a)(1)(C) or (b)(1) of this Subpart:
    A) Afterburner or other approved control device monitoring data in
    accordance with Section 218.410(c) or this Subpart, as applicable;
    B) A log of operating time for the afterburner or other approved control
    device, monitoring equipment, and the associated printing line;
    C) A maintenance log for the afterburner or other approved control
    device and monitoring equipment detailing all routine and non-
    routine maintenance performed, including dates and duration of any
    outages; and
    D) A log detailing checks on the air flow direction or air pressure of the
    dryer and press room to insure compliance with the requirements of
    Section 218.407(a)(1)(B) of this Subpart at least once per 24-hour
    while the line is operating.
    (35 Ill. Adm. Code 411 (1995))
    Stay of Rule or Regulation
    Section 38(b) of the Act addresses under what circumstances a rule or regulation may
    be stayed pending the disposition of a petition for variance. In pertinent part, it reads:
    If any person files a petition for a variance from a rule or regulation within 20 days
    after the effective date of such rule or regulation, the operation of such rule or
    regulation shall be stayed as to such person pending the disposition of the petition;
    however, provided that the operation of any rule or regulation adopted by the Board
    which implements, in whole or in part, a State RCRA, UIC or NPDES program shall
    not be stayed.
    (415 ILCS 5/38(b) (1994))
    PETITION AND COMPLIANCE PLAN
    DB Hess seeks relief from 35 Ill. Adm. Code 218.407(a)(1)(C), (D), (E) to the extent
    the rules relate to VOM emissions from its printing processes 3, 4, and 5. DB Hess also seeks
    relief from 35 Ill. Adm. Code 218.411(b)(1), (2), (3) in so far as they relate to DB Hess’
    violation of afterburner notice requirements from its printing presses 3,4, and 5.
    3
    The variance is sought from March 15, 1996 through March 15, 1999, during which
    DB Hess proposes a plan to reduce its emissions using a phased compliance plan. Currently,
    presses 3, 4, and 5 are not equipped with control equipment. In lieu of purchasing, installing
    and maintaining an afterburner for presses 3, 4, and 5 at this time, DB Hess proposes a phased

    8
    plan for upgrading or replacing and otherwise reducing its VOM emissions for presses 3, 4,
    and 5. (Pet2. at 12.)
    DB Hess proposes a compliance plan in which, among other things, it commits to begin
    using only cleaning solution that does not exceed 30% VOM by weight at the Woodstock plant
    on or before March 30, 1997. On or before March 30, 1998, it will cease operation of press
    3. (Pet2. at 24.) Moreover, by March 30, 1999, DB Hess maintains it will do one of the
    following: cease operations of presses 4 and 5, retrofit presses 4 and 5, or obtain replacements
    for presses 4 and 5 in compliance with Board regulations. (Pet2. at 24.) Finally, DB Hess
    maintains that from the time the petition was filed with the Board, it limited the combined
    VOM emissions from the presses at the Woodstock plant to 18 TPY or 1.5 tons per month or
    less. (Pet2. at 23.) (Ag. Rec. at 14.) DB Hess requests that the variance terminate when
    presses 3, 4, and 5 have ceased operation, have been replaced, or have been retrofitted with
    control equipment, and have been tested and demonstrated compliance with all applicable
    Lithography Rules to the Agency on or before March 30, 1999, at which time the variance
    will terminate. (Ag. Rec. at 16.)
    Ralph Frank, Vice-President of Manufacturing at DB Hess, testifed at hearing that DB
    Hess is already complying with portions of its proposed compliance plan. For instance, DB
    Hess is already using cleaning solutions on presses 3, 4, and 5 that have a VOM composite
    partial vapor of less than 10 mm Hg at 20 degrees Celsius. (Tr. at 25.) Further, DB Hess is
    already storing and disposing of its cleaning towels in closed containers. (Tr. at 26.)
    Moreover, DB Hess is already limiting its combined VOM emissions to 18 TPY or 1.5 tons
    per month. Finally, Mr. Frank testified that DB Hess is prepared to do the following: file
    quarterly reports, maintain records, monitor presses 3, 4, and 5 in accordance with 35 Ill.
    Adm. Code 218.410(b), (c),(d), and use fountain solutions on presses 3, 4, and 5 that are less
    than 5% VOM by volume. (Tr. at 24-26.)
    PAST EFFORTS TOWARD COMPLIANCE
    In order to achieve compliance with the Lithography Rules, DB Hess considered three
    add-on control technologies commercially available for use in the lithographic industry to
    control VOM emissions: (1) carbon adsorption technology; (2) chilled condenser technology;
    and (3) catalytic or thermal oxidation technology. (Pet2. at 10.)
    DB Hess maintains that carbon adsorption is not conducive to controlling VOM
    emissions from the heatset process. (Pet2. at 10.) The vapor pressure of heatset ink oils, the
    primary source of VOM emissions in this process, is sufficiently low to prevent efficient
    desorption of saturated carbon beds. Carbon adsorption beds may not be used for long before
    replacement is necessary. (Pet2. at 11.) Therefore, DB Hess claims that carbon adsorption
    technology cannot reasonably be applied to control presses 3, 4, and 5.
    DB Hess also contends that chilled condensor technology is inappropriate for the
    heatset process. (Pet2. at 11.) This technology is often rated at a VOM removal efficiency
    under ninety percent. (Pet.2 at 11.) Also, because ink oils are heavy, however, chilled
    condensors are prone to clogging and often cannot achieve a removal efficiency greater than

    9
    50%. (Pet2. at 11.) Accordingly, DB Hess alleges that chilled condensor technology cannot
    reasonably be applied to control presses 3, 4 and 5.
    Finally, while catalytic or thermal oxidation technology is adaptable to the heatset
    process, DB Hess maintains that this technology is expensive to apply to presses 3, 4, and 5
    because they are old, and the environmental benefit would be negligible. (Pet2. at 11.)
    During the past year, DB Hess has reduced VOM emissions at the Woodstock plant by
    working with Deluxe Corporation, a supplier of low VOM inks. (Pet2. at 12.) DB Hess had
    successfully produced quality products with these inks at a vastly reduced uncontrolled VOM
    emissions rate. (Pet2. at 12.) Due to circumstances beyond DB Hess’ control, Deluxe
    Corporation has stopped its production of these inks at competitive prices. DB Hess still
    remains committed to seeking other sources of low VOM ink suppliers. (Pet2. at 12.)
    HARDSHIP
    DB Hess’ Assertions
    DB Hess contends that the generally applicable standards pose an arbitrary or
    unreasonable hardship for two reasons: 1) the rules pertaining to lithographic printing
    operations arbitrarily require DB Hess to incur substantial business risks by making a
    substantial, short-lived, capital investment involving older equipment all for a negligible
    environmental benefit; and 2) the rules require DB Hess to bear an unreasonable cost to
    control an environmentally negligible quantity of VOM emissions. (Pet2. at 18.) Presses 3,
    4, and 5 represent only a small proportion, 33% of the plant’s entire production and 35% of
    the plant’s total uncontrolled VOM emissions, of the Woodstock plant’s heatset production
    capacity. (Pet2. at 18.) Further, DB Hess contends that presses 3, 4, and 5 were installed in
    1975, 1984 and 1984, respectively, and have an average production life of 25 years. (Pet2. at
    18.)
    According to the 35 Ill. Adm. Code 218.407(a)(1)(C), DB Hess must install an
    afterburner to control its older presses. (Pet2. at 18.) Adding an afterburner to control the
    three older presses would require DB Hess to make a very substantial, short-lived capital
    investment in excess of the value of each press and in excess of the expected value produced
    by these presses during their estimated useful life. (Pet2. at 19.) Ralph Frank, Vice-President
    of Manufacturing for DB Hess, testified at hearing that a new press stripped down costs $4
    million and an average press costs between $6 million and $8 million. (Tr. at 20.) Moreover,
    DB Hess alleges that the estimated cost of installing an afterburner to control presses 3, 4, and
    5 is $215,000 in capital investment and approximately $65,000 annually in operating and
    maintenance costs. (Pet2. at 19.) Therefore, DB Hess alleges, that retrofitting older
    technology in reaction to environmental regulation is arbitrary, inefficient, inappropriate, and
    unreasonable. (Pet2. at 19.)
    Further, Richard J. Trzupek, Environmental Consultant for DB Hess, testified at
    hearing that it would cost DB Hess between $48,000 and $69,000 per ton per year to control
    its VOM emissions (Tr. at 36.) Mr. Trzupek testified, that upon analysis of independent

    10
    standards for reasonable cost controls, the average cost of emissions controls is between $1800
    and $3100 per ton per year. (Tr. at Ex. 8.) Therefore, in order to control VOM emissions,
    DB Hess would have to spend far beyond the average estimated cost.
    Finally, William J. Anaya, attorney for DB Hess, noted at hearing that two of the
    heatset web presses at the Woodstock plant are in complete compliance through efforts of DB
    Hess. (Tr. at 47.) Mr. Anaya also noted that all of the coldset web sheet fed presses at the
    Woodstock facility have been in full compliance since they began operation. (Tr. at 47.)
    The Agency’s Recommendations
    The Agency states that DB Hess has not previously sought a variance from the
    aforementioned regulations. (Ag. Rec. at 6.) After DB Hess obtained its FESOP that restricts
    uncontrolled VOM emissions to below 100 tons per year and prior to March 15, 1996, DB
    Hess was in compliance with applicable state regulations. (Ag. Rec. at 6.) Except for presses
    3, 4, and 5, DB Hess is in compliance with all other aspects of 35 Ill. Adm. Code 218.407.
    (Ag. Rec. at 6.)
    The Agency agrees that denial of a variance would result in an arbitrary or
    unreasonable hardship to DB Hess. (Ag. Rec. at 11.) The Agency affirms, DB Hess would
    be making a substantial, short-lived capital investment if required to install an afterburner on
    presses that are expected to be shut down within three years because such an expenditure
    would be in excess of the value of each press and the expected value produced by those presses
    during their estimated useful life remaining. (Ag. Rec. at 12.)
    The Board agrees that DB Hess would suffer a financial hardship if compelled to
    retrofit these three presses with control equipment this near to the end of their useful lives.
    Furthermore, the replacement costs ranging from $4 to $8 million per press justify the need for
    the phased approach proposed by DB Hess over the term of the variance. Accordingly, the
    Board finds that to require immediate compliance with the rules pertaining to lithographic
    printing operations would impose an arbitrary or unreasonable hardship on DB Hess.
    ENVIRONMENTAL IMPACT
    DB Hess’ Assertions
    DB Hess maintains that there will be no adverse environmental impact from its
    proposed compliance plan. (Pet2. at 16.) DB Hess notes that its Woodstock plant is located
    in the Chicago AQCR and that the data from the closest ambient ozone monitoring station in
    McHenry County has not recorded a single violation during the past four years. (Pet2. at 16.)
    Furthermore, DB Hess contends that its current and proposed operations do not represent a
    material threat to the environment. (Pet2. at 16.) In 1995, DB Hess’ records indicate that the
    Woodstock plant emitted eleven tons of VOM. (Pet2. at 16, Ex. E-2.) The rules relating to
    the afterburner requirement would reduce these emissions by approximately six tons. (Pet2 at
    16.) DB Hess maintains that its proposed plan would create a negligible environmental impact
    of six tons of VOM per year in the short term, e.g., over the next five years. (Pet2 at 17.)

    11
    Moreover, DB Hess alleges that the environmental benefit of the Lithography Rules
    are non-existent as they relate to the Woodstock plant. (Pet2. at 17.) In its compliance plan,
    DB Hess commits to limiting VOM emissions to 18 tons of VOM annually. (Pet2. at 17.)
    Without a variance, DB Hess is required to limit VOM to just below 25 tons per year, even if
    presses 3, 4, and 5 were controlled in accordance with the Lithography Rules. (Pet2. at 17.)
    In its proposed compliance plan, DB Hess voluntarily agrees to lower the Woodstock plant’s
    potential to emit (PTE) to a point below that which the new regulations require. (Pet2. at 17.)
    Accordingly, DB Hess alleges that its proposed compliance plan will result in real
    environmental benefit over the long term as DB Hess’ production increases and its VOM
    emissions decrease. (Pet2. at 17.) Finally, DB Hess contends that as it approaches the
    proposed lower VOM emissions limit, DB Hess will be forced to look to new technology to
    allow the Woodstock plant to increase production. (Pet2. at 17.)
    The Agency’s Recommendations
    The Agency concludes that, based upon the emission limitation of VOM to 18 TPY
    suggested in DB Hess’ compliance plan, there will not be “substantially or significantly more
    adverse environmental impact than those effects considered in the adoption of the RACT in
    R94-31.” (Ag. Rec. at 9-10.) The Agency, however, takes issue with several assertions made
    by DB Hess. First, the Agency, noted that the fact that the closest monitor to DB Hess has not
    had any exceedences does not mean that DB Hess has not contributed to the problem of ozone.
    (Ag. Rec. at 8.) In its proposed compliance plan, DB Hess maintains that it will limit its
    VOM emissions to 18 TPY. The Agency maintains that DB Hess’ statement that it will
    “voluntarily lower the Woodstock plant’s potential to emit (PTE) to a point below that which
    the new regulations require” confuses the terms “actual emissions” and “potential to emit”.
    (Ag. Rec. at 8.) The Agency claims that PTE is defined by 35 Ill. Adm. Code 211.4970 as
    the “maximum capacity of a stationary source to emit any air pollutant under its physical and
    operational design”, i.e., the maximum amount of emissions that a source could potentially
    emit. (Ag. Rec. at 9.) Actual emissions, the Agency claims, is defined as the “quantity of
    pollutants a facility actually emits.” Reducing “potential” emissions does not equate to a real
    environmental benefit especially when in fact, DB Hess does not actually emit near its PTE.
    (Ag. Rec. at 9.) So, while the Agency disagrees with DB Hess that there will be no
    environmental impact, it concludes that the impact will not be “substantially or significantly
    more adverse than the impact intended in the adoption of the RACT regulations of R94-31.”
    (Ag. Rec. at 10.)
    The Board concludes that given the 18 TPY emission limit contained in DB Hess’
    compliance plan, there will be a minimal environmental impact for the relatively short term of
    the variance.
    CONSISTENCY WITH FEDERAL LAW
    DB Hess’ Assertions

    12
    DB Hess maintains that the proposed variance is consistent with federal law. (Pet2. at
    20.) Specifically, DB Hess alleges that there is no federal requirement that DB Hess comply
    with the generally applicable requirements to control heatset presses with an afterburner of
    90% overall VOM control efficiency. (Pet2. at 20.) The Clean Air Act, 42 U.S.C. Section
    7401
    et seq.,
    and the applicable federal regulations, codified at 40 C.F.R. Part 51, require
    only that the State achieve and maintain the primary and secondary National Ambient Air
    Quality Standards for ozone. (Pet2. at 20.) DB Hess notes, however, that the Illinois State
    Implementation Plan (SIP) contains an ozone control strategy for the Chicago AQCR and that
    this strategy includes the rules governing lithographic operations. (See 40 C.F.R.
    52.741(h)(5) (Pet2. At 21.) Therefore, in the event of a variance involving the ozone control
    strategy, the Illinois SIP must be revised. (40 C.F.R. 52.741(a)(7).)
    The Agency’s Recommendations
    The Agency notes that, as required by 35 Ill. Adm. Code 104.122(a), DB Hess has
    alleged compliance with the requirements of the Clean Air Act. (Ag. Rec. at 11.) The
    Agency concludes that a variance from 35 Ill. Adm. Code 218.407(a)(1)(C), (D), (E) and
    218.411(b)(1), (2), (3) would not violate the Clean Air Act as amended in 1990. (42 U.S.C.
    Section 7511(b)(3)(B)(ii) (1990).) Finally, the Agency maintains that all federal procedural
    requirements for a SIP revision have been met. (Ag. Rec. at 12.) The requirements of notice
    and opportunity for public participation have been met by the hearing held in this matter on
    January 23, 1997. In accordance with federal requirements, if the variance is granted, the
    Agency will submit to USEPA a SIP revision regarding the variance because it is located in a
    nonattainment area. (Ag. Rec. at 12.)
    The Board finds that grant of this variance is consistent with federal law.
    RETROACTIVE RELIEF
    DB Hess requests that this variance commence on March 15, 1996, and therefore, that
    the Board retroactively apply this variance. (Tr. at 48.) The Agency agreed with DB Hess
    that retroactive relief should be granted in this matter. (Tr. at 49.) The Board has determined
    that, in the absence of unusual or extraordinary circumstances, the Board grants a variances as
    effective on the date of the Board order in which it is issued. (LCN Closures, Inc. v. IEPA
    (July 24, 1989), PCB 89-27, 101 PCB 283, 286; Borden Chemical Co. v. IEPA (December 5,
    1995), PCB 82-82, 67 PCB 3, 6.) As the appellate court discussed in Monsanto Co. v.
    Pollution Control Board, “[t]he Board can provide relief from the hardship of immediate
    compliance and yet retain control over a polluter’s future conduct by granting a temporary
    variance.” (Monsanto Co. v. Pollution Control Board 67 Ill.2d 276, 288 (1977).) The very
    concept of a retroactive variance would eliminate the Board’s ability to retain any control over
    the polluter’s activity during the term of the variance.
    Although the Board does not generally grant variances retroactively, retroactive
    variances have been granted upon specific justification. (Deere & Company, John Deere
    Harvester East Moline Works v. IEPA (September 8, 1988), PCB 88-22, 92 PCB 91.) The
    Board stated that the reasoning behind the general policy is to discourage untimely filed

    13
    petitions for variance, i.e., variances filed after the start of the claimed arbitrary or
    unreasonable hardship creating the desire for a retroactive start; and because the failure to
    request relief in a timely manner is a self-imposed hardship. (Fedders-USA v. IEPA (April 6,
    1989), PCB 86-47, 98 PCB 15, 19; DMI, Inc. v. IEPA (February 23, 1987), PCB 88-132, 96
    PCB 185, 187; and American National Can Company v. IEPA (August 31, 1989), PCB 88-
    203, 102 PCB 215, 218.)
    The Board finds that this variance will begin on the date of this order, and therefore, it
    will not retroactively apply this variance. The Board notes that DB Hess filed its petition for
    variance on March 15, 1996, the compliance date of the Lithography Rules; the effective date
    of the applicable rules was May 9, 1995. (Supra at 4.) DB Hess did not file it petition within
    20 days after the effective date of the Lithography Rules; therefore, the rules are not stayed as
    to its Woodstock plant printing presses 3, 4, and 5. (415 ILCS 5/28(b) (1994).) Further, DB
    Hess never presented any “special or unusual circumstances” giving rise to a need for
    retroactive application of this variance. As discussed, specific justification must be given for
    the Board to grant retroactive relief. Accordingly, the variance shall commence on the date of
    this order.
    CONCLUSIONS
    Balancing the alleged hardship against the anticipated environmental impact, the Board
    finds that to require immediate compliance with the rules pertaining to lithographic printing
    operations would impose an arbitrary or unreasonable hardship on DB Hess. Further, the
    Board concludes that there will be a minimal environmental impact for the relatively short
    term of the variance. Finally, the Board finds that grant of this variance is consistent with
    federal law. The Board, accordingly, grants DB Hess variance from 35 Ill. Adm. Code
    218.407(a)(1)(C), (D), (E) and 218.411(b)(1), (2), (3)(1995).
    The order reflects the Agency’s recommendations; however, it has been altered to
    achieve greater clarity. The order also takes into account the fact that DB Hess testified at
    hearing that it is already implementing various terms of its variance as set forth in the
    compliance plan and schedule section of its petition. The order reflects the fact that DB Hess
    testified at hearing it is already doing the following: maintaining its records pursuant to 35 Ill.
    Adm. Code 218.411(b), (c), (d); submitting quarterly reports to the Agency; using cleaning
    solutions on presses 3, 4, and 5 that have a VOM composite partial vapor pressure of less than
    10 mm Hg at 20 degrees Celsius; and storing and disposing of all cleaning solution towels in
    closed containers. (Tr. at 24-25.) Moreover, the order considers DB Hess’ testimony that it is
    prepared to implement or is already implementing the following: monitoring presses 3, 4, and
    5 pursuant to 218.410(b), (c), (e); using fountain solutions on presses 3, 4, and 5 that are less
    than 5% VOM by volume, and which contain no alcohol; reducing the VOM emissions to 18
    TPY or 1.5 tons per month; and using cleaning solution that does not exceed 30% VOM by
    weight. (Tr. at 25.)
    This opinion constitutes the Board’s findings of fact and conclusions of law in this
    matter.

    14
    ORDER
    The D.B. Hess Company, Inc. is hereby granted a variance from 35 Ill. Adm. Code
    218.407(a)(1)( C), (D), (E) and 218.411(b)(1),(2), (3) for one ATF and two Harris heatset
    web offset lithographic presses, identified as presses 3, 4, and 5, at its facility located at 1530
    McConnell Road, Woodstock, McHenry County, Illinois, subject to the conditions outlined
    below.
    1. Variance term. The variance begins on March 6, 1997 and terminates when presses 3, 4
    and 5 have ceased operation, or have been replaced or retrofitted with control equipment,
    which has been tested and compliance with all applicable rules has been demonstrated to
    the Agency. This variance shall terminate no later than March 30, 1999.
    2. On or before March 20, 1997 the combined VOM emissions from all of petitioner’s
    presses at the Woodstock plant in operation shall not exceed 18 TPY or 1.5 tons per
    month.
    3. On or before March 20, 1997, petitioner shall use only cleaning solution that does not
    exceed 30% VOM by weight at the Woodstock plant.
    4. On or before March 20, 1997, petitioner shall use cleaning solutions on presses 3, 4, and 5
    that have a VOM composite partial vapor pressure of less than 10 mm Hg at 20 degrees
    Celsius, and the new cleaning solutions shall comply with 35 Ill. Adm. Code
    218.407(a)(4).
    5. On or before March 20, 1997, petitioner shall store and dispose of all cleaning towels in
    closed containers.
    6. On or before May 5, 1997, petitioner shall use fountain solutions on presses 3, 4, and 5
    that are less than 5% VOM by volume, as applied, and which contain no alcohol.
    7. On or before May 5, 1997, petitioner shall monitor presses 3, 4, and 5 pursuant to 35 Ill.
    Adm. Code 218.410(b), (c), (e).
    8. On or before May 5, 1997, petitioner shall prepare and maintain records pursuant to 35 Ill.
    Adm. Code 218.411(b), (c), (d) for presses 3, 4, and 5 to show compliance with the
    requirements of 35 Ill. Adm. Code 218.407(a)(1)( C), (D), (E) and 218.411(b)(1), (2),
    (3).
    9. On or before May 5, 1997, petitioner shall submit quarterly reports to the Illinois
    Environmental Protection Agency’s Compliance and Systems Management Section, as
    identified in Number 13 of this order, demonstrating compliance with the terms of the
    Board order.
    10. On or before March 30, 1998, petitioner shall cease operation of press 3.
    11. On or before March 30, 1999, petitioner shall either:

    15
    A. Cease operation of presses 4 and 5, and notify the Illinois Environmental
    Protection Agency of such cessation; or
    B. Retrofit presses 4 and 5 or replace presses 4 and 5 in compliance with 35 Ill.
    Adm. Code 218.407(a)(1)( C), (D), (E) and 218.411.(b)(1), (2), (3), in which
    case:
    (1) Petitioner shall apply for and obtain necessary construction permits by
    March 30, 1998, or six months before retrofitting or replacing presses 4
    and 5, whichever is earlier.
    (2) Petitioner shall send monthly status reports, due on the 15
    th
    day of the
    month after the prior month’s status report, to the Illinois Environmental
    Protection Agency at the address identified in Number 13 of this order,
    on the progress of the installation of the presses and control equipment
    and testing of the control equipment, with the following information:
    (a) Dates construction will commence and be completed;
    (b) Test results; and
    (c) Any relevant correspondence from the control equipment
    manufacturer or the construction company regarding the status of
    installation/construction (i.e., unexpected delay,
    installation/construction on schedule, completion ahead of
    schedule).
    12. On or before March 30, 1999, petitioner shall cease operations at presses 3, 4, and 5
    except for those it has applied for and obtained permits, retrofitted presses and installed
    controls, which have been tested and demonstrated to be in compliance with applicable
    rules by March 30, 1999.
    13. All notifications to the Illinois Environmental Protection Agency required hereunder
    shall be sent to:
    David J. Kolaz, P.E., Manager, Compliance & Systems Management Section,
    Division of Air Pollution Control, P.O. Box 19276,Springfield , Illinois
    62794-9276
    IT IS SO ORDERED.
    Within 45 days of the date of this order, or on or before May 5, 1997, petitioner shall
    certify that it accepts the terms of the variance by executing and forwarding to Christina
    Archer, Division of Legal Counsel, Illinois Environmental Protection Agency, P.O. Box
    19276, 2200 Churchill Road, Springfield, Illinois 62794-9276, a certificate of acceptance and
    agreement to be bound by all of the terms and conditions of the granted variance. Such
    acceptance shall be signed by an officer of The D.B. Hess. Company, Inc., duly authorized to

    16
    bind The D.B. Hess Company, Inc., to all of the terms and conditions of the final Board order
    in this matter. The 45-day period shall be held in abeyance during any period that 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 the Board
    has granted relief.
    CERTIFICATION
    I (We), ____________________________________________, hereby accept and agree to be
    bound by all the terms of the Order of the Pollution Control Board in PCB 96-194 dated
    March 20, 1997.
    ___________________________
    Petitioner
    ___________________________
    Authorized Agent
    ___________________________
    Title
    ___________________________
    Date
    Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1994)) provides for
    the appeal of final Board orders to the Illinois Appellate Court within 35 days of the date of
    service of this order. The Rules of the Supreme Court of Illinois establish filing requirements.
    (See also 35 Ill.Adm.Code 101.246 "Motions for Reconsideration.")
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the _____ day of ___________, 1997, by a vote of
    ______________.

    ___________________________________
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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