OAR Box 1781 

Prepped by Ollie Stewart 

Document Number: 

58) ll-K-15 

Docket Number: 

A-90-37 

Printed 10/29/2008 10:46:20 AM Sheet 58 of 142 

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BEFORE THE ADMINISTRATOR 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 

In the Matter of: 

World Color Press, Inc. 

Applicant 

IEPA ID Nos. PSD-1988-IL-1, 2, & 3 

f.jxJ^tx^ 

PSD Appeal No.^ 88-4 

••i2gie 

111" 

P 

REMAND ORDER 

On April 1, 1988, the Illinois Environmental Protection 

Agency ("IEPA") issued Prevention of Significant Deterioration 

("PSD") permits to World Color Press ("WCP") for the operation of 

printing presses in three Illinois locations.

 y I granted 

review of these permits pursuant to 40 CFR §124.19(b) on May 4, 

1988, on the ground that the permits did not contain emission 

limitations reflecting the best available control technology 

("BACT"). Because it appeared that the IEPA applied an 

interpretation of the statutory BACT definition which was 

rejected in Columbia Gulf Transmission Company. PSD Appeal No. 

88-11 (June 21, 1989), I directed the parties on June 7, 1990, to 

show cause why the permits should not be remanded to correct this 

y

 The I2£A made its determination pursuant to a delegation of 

authority from the U.S. Environmental Protection Agency, Region 

V. Thus, these permits are EPA issued permits for purposes of 

federal law, and are subject to the review provisions of 4 0 CFR 

§124.19. 40 CFR §124.41. 
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error.

 s/ I conclude that IEPA's BACT determination is based on 

an erroneous interpretation of the statutory BACT definition, and 

thus a remand is warranted to determine what constitutes BACT for 

these permits. 

BACKGROUND 

In July 1986, WCP submitted to IEPA applications to obtain 

PSD permits for the construction of heatset web offset printing 

presses at its Mt. Vernon, Sparta and Salem plants. ^ These 

presses are major sources of volatile organic compounds ("VOCs"), 

a precursor of ozone. Operation of these presses would result in 

an increase in VOC emissions from each plant. ^ The principal 

27 During the period between May 4, 1988 and June 7, 1990, U.S. 

EPA obtained background information from WCP and IEPA to aid in 

designating the issues for review. See February 7, 1989 letter 

from Chief Judicial Officer to Director, IEPA; March 23, 1989 

letter from Manager, IEPA Division of Air Pollution Control to 

Chief Judicial Officer; April 14, 1989 letter from counsel for 

WCP to Chief Judicial Officer. Much of this background 

information pertained to what extent, if any, the reactivity of 

the volatile organic compound (VOC) emissions at issue in this 

permit should be considered in a BACT analysis for VOC emission 

control technology. There is no need to address this issue here, 

however, because regardless of the reactivity of WCP's VOC 

emissions, IEPA misapplied the statutory BACT definition when 

determining WCP's permit conditions. 

11 Some of the presses at the Salem plant already had PSD 

permits, and WCP requested a modification of those permits. 

^ The net increase in VOC emissions at each plant exceeds 4 0 

tons per year ("tpy") and is thereby "significant" pursuant to 4 0 

CFR §52.21(b)(23)(i). Because the printing presses would produce 

a significant incr^-se in emissions of a regulated pollutant, 

they would be "ra;. . modifications" under 40 CFR §52.21(b) (2) (i).. 

Major modificatia, must apply BACT for each regulated pollutant 

emitted which results in a significant net emissions increase at 

the source. 40 CFR §52.21(j)(3). Alternatively, the printing 

presses would produce VOC emissions at each plant in excess of 

250 tpy, thus making each plant a major stationary source 

(continued...) 
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sources of VOC emissions in heatset web offset printing are the 

solvents in the ink and the wetting agents commonly used in the 

fountain solution.

 v Prior to submitting its PSD permit 

applications, WCP had substantially reduced its VOC emissions by 

using low volatility wetting agents and inks with lower solvent 

concentrations. ^ 

A PSD permit for a major emitting facility or a major 

modification must contain BACT for each regulated pollutant, 

including VOCs, emitted in significant amounts by the facility. 

42 U.S.C. §7475(a)(4); 40 CFR §52.21(j)(2) and (3). BACT is 

statutorily defined as 

[A]n emission limitation based on the maximum degree of 

reduction of [the] pollutant * * * which the permitting 

authority, on a case-by-case basis, taking into account 

energy, environmental, and economic impacts and other 

costs, determines is achievable for such facility 

through application of production processes and 

available methods, systems and techniques * * * for 

control of [the] pollutant. 

17 (... continued) 

pursuant to 40 CFR §52.21(b)(1)(i)(b). A major statutory source 

must apply BACT for each regulated pollutant it has the potential 

to emit in significant amounts. 40 CFR §52.21(j)(2). Therefore, 

in either event, a BACT determination is required for these VOC 

emissions. 

y

 The ink and fountain solutions are applied to the "web" (the 

paper being printed), makj-. :• the web wet. As the web is dried by 

passing through heaters, v.. •.-* are released through vents into the 

atmosphere. Add-on pollu. .un controls reduce these emissions. 

y

 For example, these efforts resulted in a 43% reduction of 

emissions at the Salem plant. IEPA Project Summary for Operating 

Permits for World Color Press Salem Gravure Division for Heatset 

Web Offset Presses, p.7 (Nov. 5, 1987). 
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42 U.S.C. §7479(3).

 v In other words, the PSD permits for each 

WCP facility must contain an emission limitation for VOCs that 

reflects BACT for VOCs, i.e., the available control technology 

that results in the maximum degree of VOC emission reduction and 

that is achievable at the facility in light of its environmental, 

energy and economic impacts and other costs. 

In addition, a PSD permit applicant must demonstrate that 

emissions from the operation of the facility will not cause or 

contribute to air pollution in excess of the national ambient air 

quality standards ("NAAQS"). 42 U.S.C. §7475(a)(3).

 v This air 

quality requirement is independent from the technology (i.e., 

BACT) requirement. "Both of these provisions of the Clean Air 

Act7must be.satisfied by an applicant seeking a PSD permit, and 

compliance with one provision does not relieve or lessen an 

applicant's burden of complying fully with the other." Columbia 

Gulf, p.9. 

WCP identified three VOC emission control technologies as 

potential BACT candidates: catalytic incineration, thermal 

incineration, and electrostatic precipitation. WCP concluded 

that the "excessive costs associated" with each of these 

technologies made all of them unachievable, and that its present 

7J See also 40 CFR §52.21(b) (12) . 

27 See also 40 CFR §52.21(k) (1) . 
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5 

method of controlling, VOC emissions through low volatility 

wetting agents and low solvent inks was BACT.

 y 

IEPA issued WCP's PSD permits in April 1988. As required by 

42 U.S.C. §7475(a)(3), IEPA evaluated WCP's air quality analysis 

to determine if the proposed emissions would violate the NAAQS. 

IEPA concluded that even without control equipment, it was 

unlikely that the proposed VOC emissions would have any 

measurable effect on the ozone in the region given the low 

reactivity of the emissions and the limited presence of other 

ozone precursors.

 w 

IEPA also conducted a BACT analysis as required by 42 U.S.C 

§7475(a)(4). IEPA concluded that the three alternative control 

technologies 

[P]ose[d] additional cost impacts but are not 

accompanied by reduction of ozone air quality 

impacts so as to warrant those costs. This occurs 

because even though the control devices reduce 

emissions of ozone precursors to the atmosphere, 

a corresponding improvement in ozone air quality 

does not result. This is due to the limited reactivity 

of these materials, the character of the area in which 

these are released, and distance from areas which are 

conducive to and are experiencing excessive levels of 

ambient ozone air quality. 

Response to Comments, p.21.

 w Consequently, IEPA determined 

2/ see "Demonstration of Prevention of Significant 

Deterioration to Ambient Air Quality," p.48, submitted by WCP in 

support of its PSD permit applications. 

^ "IEPA Response to Comments: World Cole 7 -ress, Heatset 

Offset Printing at Mt. Vernon, Salem and'S"burta" pp.4-5 (March 

31, 1988) (hereinafter "Response to Comments"). 

^ IEPA also noted that there were no other environmental 

benefits, e.g., elimination of nuisance odor and smoke, which 

(continued...) 
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that WCP's present control strategy of using low solvent inks and 

wetting agents constituted BACT. 

On May 4, 1988, I granted review of these PSD permits on the 

ground that the permits lacked VOC emission limitations 

representing BACT. Specifically, as explained in the Designation 

of Issues order, it appeared that IEPA incorrectly determined 

that "an alleged absence of significant photochemical reactivity 

of the facilities' VOC emissions was an 'environmental impact' 

that would justify less stringent emission limitations, 

particularly in view of the added monetary costs associated with 

more stringent control technologies." Designation of Issues, 

p.2. A like application of the statutory BACT definition was 

subsequently rejected in Columbia Gulf, and on June 7, 1990, I 

requested that WCP and IEPA show cause why the permits should not 

be remanded for revision in accordance with the principles stated 

in Columbia Gulf. 

IEPA declined to submit a brief on this issue.

 w WCP filed 

its brief on July 27, 1990. WCP argues that the negligible 

impact of the VOC emissions on air quality was not IEPA's sole 

justification for rejecting the more stringent technologies. WCP 

also argues that the Columbia Gulf decision should not be applied 

retroactively and that the BACT analysis used in Columbia Gulf 

117 (... continued) ,\ 

justified the costs of the alternative control tec' -logies. 

Response to Comments, p.22. 

^ See letter dated July 23, 1990, from IEPA Assistant Counsel, 

Division of Air Pollution Control, to U.S. EPA's Chief Judicial 

Officer. 
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was flawed because it involved the "top-down" approach which WCP 

maintains is a substantive rule adopted by the Agency without 

notice and comment. 

ANALYSIS 

As discussed above, BACT is an emission limitation based 

upon the use of available control technology that will result in 

the maximum reduction of a regulated pollutant and that is 

achievable at a specific facility in light of the technology's 

"energy, environmental, and economic impacts or other costs." 

42 U.S.C. §7479(3). 

The latter clause is in the BACT definition to 

temper the stringency of the technology requirements 

whenever one or more of the specified "collateral" 

impacts — energy, environmental or energy — renders 

use of the most effective technology inappropriate. 

Columbia Gulf, p.5. BACT, which statutorily must be decided on a 

case by case basis, 42 U.S.C. §7479(3), was defined this way to 

allow flexibility in BACT determinations based upon sourcespecific factors while still maximizing the use of improved 

control technology. ^ Thus, 

[T]he collateral impacts clause operates primarily as 

a safety valve whenever' unusual circumstances 

specific to the facility make it appropriate to 

use less than the most effective technology. 

Columbia Gulf, p.6. In other words, the collateral impacts 

clause focuses upon specific local impacts which constrain a 

^ Senate Debate on S.252 (June 8, 1977) reprinted in 3 Senate 

Committee on Environment and Public Works, A Legislative History 

of the Clean Air Act Amendments of 1977, p.729. 
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particular source from using the most effective control 

technology. Id. at p.7. 

In Columbia Gulf, a BACT determination was required for the 

facility's NO, emissions. According to modelling results, the 

most effective available NO, control technology would reduce 

ambient concentrations of NO, by only a negligible amount. Id.. 

at p.3. The permitting authority rejected the technology as BACT 

because of its negligible impact on ambient concentrations of 

NO,. The permitting authority argued that the modelled 

negligible impact of the proposed facility on overall air quality 

was an impact that can be factored into the BACT analysis to 

justify using less than the most effective technology to control 

NO, emissions. Id. at pp.6-7. 

I rejected this interpretation of the statutory BACT 

definition, and held that the more efficient technology's 

projected negligible impact on ambient NO, air quality was not, 

by itself, an environmental impact justifying rejection of that 

technology as BACT. ^ The permitting authority's decision 

failed to give effect to the primary purpose of the collateral 

impacts clause, which is to allow use of a less effective control 

^ WCP maintains that Columbia Gulf held that a facility's 

negligible environmental impact cannot be considered in a BACT 

analysis, and that this holding is incorrect. WCP apparently 

misunderstands the holding in Columbia Gulf, which does not 

preclude a permitting authority from considering a facility's 

environmental impact when determining BACT. Columbia Gulf held 

only that an appropriate environmental impact does not include 

the impact on air quality standards for a regulated pollutant 

which would be produced by a proposed control technology for that 

pollutant. 
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technology only when source-specific energy, environmental or 

economic impacts or other costs constrain a source from using a 

more effective technology. Because the negligible air quality 

impact of the proposed control technology did not constrain the 

source from using the technology, it was not an environmental 

impact to be considered in the BACT determination. ^ This 

interpretation of the BACT definition is confirmed by the terms 

of 42 U.S.C. §7475(a)(3) and (4), which impose two distinct 

requirements for a PSD permit, each of which must be satisfied: 

air quality and technology (i.e., BACT) requirements. 

WCP has failed to show any differences between this case and 

Columbia Gulf sufficient to justify a decision not to remand 

these permits for correction of IEPA's misapplication of the 

collateral impacts clause. The permitting authorities' reasoning 

in both cases suffers from the same defect. In both cases, the 

permitting authorities concluded that the more effective 

technology's negligible impact on improving ambient pollution 

levels of the subject pollutant was an environmental impact 

justifying the rejection of that .technology as BACT.

 w For the 

reasons stated in Columbia Gulf. IEPA misinterpreted the 

statutory BACT definition. 

111 An exceptional demand on water resources is an example of an 

environmental impact associated with a technology that would 

constrain a source from using that technology in favor of a less 

stringent*., less water-intensive technology. See Columbia Gulf, 

p.7. 

w

 The error is especially egregious in this case, however, as 

the IEPA used this faulty reasoning to reject three more 

stringent alternative control technologies. 
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WCP contends that "the minimal environmental impact of the 

VOCs emitted at the World Color facilities was by no means the 

sole or exclusive justification" for rejecting the more stringent 

technologies as BACT. WCP Brief in Response to Designation of 

Issues, p.15 (hereinafter "WCP Brief"). WCP fails to demonstrate 

any other "justification" used by IEPA. Moreover, WCP's 

contention is not supported by the record. WCP did not present 

energy impacts in its permit applications and IEPA did not 

consider any. ^ Although WCP presented some information about 

the economic impacts of the alternative control technologies, 

IEPA expressly stated that "[t]he basis for the IEPA's BACT 

determination is not costs, which are not unreasonable in 

comparison with costs expended elsewhere for VOC control 

systems." Response to Comments, p.10 (emphasis added). ^ IEPA 

w

 For example, if the most stringent technology requires the 

use of a locally scarce fuel, i.e., one which is in short supply 

locally, the permitting authority could determine that a less 

effective technology that used an available fuel was BACT. 

w

 IEPA stated that the alternative control technologies' 

increased costs were not offset by a corresponding benefit to air 

quality, and were therefore unwarranted. This reasoning, which 

was also used by the permitting authority in Columbia Gulf, blurs 

the statutory distinction between technology and air quality. As 

explained in Columbia Gulf. BACT is a technology consideration 

(which allows consideration of "costs" — a measure of economic 

impact) and is to be analyzed separately from air quality 

considerations. 

No such blurring of statutory distinctions would have 

occurred had IEPA concluded, for example, that the alternative 

technologies• increased costs were not warranted because they 

lacked a corresponding benefit in emissions reduction. This 

conclusion is consistent with the statutory distinction, because 

the concepts employed —costs, technology and emissions 

(continued...) 
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concluded that "the environmental impact analysis appears to be 

the critical analysis" in the BACT determination, Response to 

Comments, p.8, and relied exclusively upon this factor in 

rejecting the alternative control technologies.

 w 

WCP further argues that Columbia Gulf should not be applied 

retroactively. WCP Brief, pp.18-19. WCP's assertion that the 

Agency is attempting to hold it to a standard which did not exist 

when IEPA issued the permits is without merit. The result in 

Columbia Gulf is strictly the product of my interpretation of 42 

U.S.C. §§7475 and 7479, whose language and legislative history 

have not changed since WCP applied for the PSD permits. The 

result in this case is dictated by that same language and 

history. Thus, even if Columbia Gulf had never been decided, 

^(...continued) 

reduction — are all confined to BACT. A cost comparison of two 

or more technologies relative to their respective emissions 

reduction efficiencies represents a legitimate use of the 

economic impact factor in BACT. For example, if a particular 

technology has a cost that is exceptionally high relative to 

another technology, but has only a negligibly higher emissions 

reduction efficiency, its greater cost (economic impact) might 

justify rejecting it as BACT. 

According to WCP's permit applications, the proposed 

incineration technologies would reduce VOC emissions by 47-49% at 

a cost in the range of $l,256-$3,424 per ton, depending on the 

facility. The proposed electrostatic precipitation technology 

would reduce VOC emissions by 17-19% at a cost in the range of 

$3,811-$10,437 per ton, depending on the facility. 

& WCP also argues that there are "significant energy and 

economic constraints" associated with the alternative control 

technologies which justify their rejection as BACT. WCP Brief, 

p.17. WCP presents these costs in an affidavit attached to its 

brief. This information was not presented to IEPA during the 

permitting process, and therefore should not be used to determine 

if IEPA erroneously granted a permit. In this case, this 

information is best left for consideration on remand. 
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remand would be necessary to correct this misapplication of the 

collateral impacts clause. Moreover, decisions of agency 

adjudications apply retroactively unless manifest injustice would 

result. Clark-Cowlitz Joint Operating Agency v. Federal Energy 

Regulatory Commission. 826 F.2d 1074, 1081 (D.C. Cir. 1987), 

cert, denied. 485 U.S. 913 (1988). WCP has failed to demonstrate 

any such injustice. 

Lastly, WCP argues that the BACT analysis used in Columbia 

Gulf was flawed and cannot be applied here because it was based 

on the "top-down" method of determining BACT, which WCP maintains 

is a substantive rule adopted without notice and comment as 

required by 5 U.S.C. §553. -^ The issue in Columbia Gulf and in 

this case is whether a control technology's projected negligible 

impact on improving ambient pollution levels of a particular 

pollutant subject to BACT was an environmental impact that 

justified rejection of that control technology as BACT for that 

pollutant. In both cases, I have interpreted the relevant 

statutory terms by deciding that the negligible impact under the 

circumstances is not the sort of .environmental impact that would 

justify the rejection of that technology as BACT. The decision 

in Columbia Gulf was not dependent on the use of the "top-down" 

—' ..a, Pennsauken County Resource Recovery Facility, PSD Appeal, 

Ny. \.:_8- P-5 (Nov. io, 1988) (under the "top-down" method', the 

mbi-J':stringent control technology is evaluated first, and is 

presumed to be BACT unless the permit applicant demonstrates that 

there are technical or other collateral impacts which make it 

infeasible, unreasonable or otherwise not "achievable" for that 

facility, in which case the next most stringent control 

alternative is evaluated as BACT, and so forth). 
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methodology; ^ rather it reflected my interpretation of the 

legislative intent in adopting the environmental impacts clause 

of the BACT definition. WCP and IEPA were directed to address 

this issue by the Designation of Issues order, and WCP's argument 

concerning the top-down method is simply not relevant to this 

review. 

CONCLUSION 

IEPA's rejection of all more stringent VOC emission control 

technologies proposed as BACT because of their projected 

negligible impact on improving ambient ozone levels is a clearly 

erroneous application of the Clean Air Act. Because "permit 

conditions should be finally determined at the Regional [State] 

level," 45 Fed. Reg. 33,412 (May 19, 1980), it is appropriate to 

remand these permits to IEPA for a correct BACT analysis. IEPA 

is directed to reopen the permit proceedings for the limited 

purpose of determining BACT for the VOC emissions in a manner 

consistent with this opinion. IEPA may reissue the permits as 

written if it concludes, after a full review, that low volatility 

wetting agents and low solvent inks constitute BACT, or it may 

revise the permit if it concludes that more stringent control 

technologies constitute BACT. 

227 For tht: rarposes of the issue in Columbia Gulf, namely 

whether the collateral impacts clause was properly applied, it 

did not matter whether the rejected technology was the most 

stringent. In fact, in Columbia Gulf the parties agreed that the 

most stringent technology was not achievable due to technological 

problems. Columbia Gulf, p.4 n.2. 
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After making its preliminary BACT determination, IEPA shall 

reopen the public comment period to allow comments on the 

proposed BACT by WCP, Region V, and any other interested party. 

IEPA's final permit upon remand is subject to review pursuant to 

40 CFR §124.19, and any appeal from its final permit is subject 

to the exhaustion of administrative remedies requirement in 40 

CFR §124.19(f)(1)(iii). 

So ordered. 

William K.^R^illy 

Administratoj 

Dated: OEC 1 3 1990 
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CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing Remand Order 

in the matter of World Color Press, PSD Appeal No. 88-4, were 

sent by First Class Mail to the following persons: 

Dr. Richard J. Carlson, Director 

Illinois Environmental Protection Agency 

2200 Churchill Road 

Springfield, IL 62706 

Michael Hayes, Manager 

Division of Air Pollution Control 

Illinois Environmental Protection Agency 

2200 Churchill Road 

Springfield, IL 62706 

William Rogers 

World Color Press 

P.O. Box 1248 

Effingham, IL 62401 

David Kee, Director 

Air & Radiation Division 

U.S. EPA, Region V 

23 0 South Dearborn Street 

Chicago, IL 60604 

Valdas V. Adamkus 

Regional Administrator 

U.S. EPA, Region V 

23 0 South Dearborn Street 

Chicago, IL 60604 

J. Bennett Clark 

Gallop, Johnson & Neuman 

Interco Corporate Tower 

101 South Hanley 

St. Louis, Missouri 63105 

ji^ Brenda H. Selden 

Legal Staff Assistant 

Dated: DEC 1 7 1990