Noveon, Inc.
V.
RECEIVED
CLERK’S OFFICE
APR
152004
BEFORE
THE
ILLINOIS POLLUTION CONTROL
BOARD
STATE OF ILIJNOIS
Pollution Control
Board
Illinois Environmental
Protection Agency
)
)
)
)
)
)
NOTICE OF FILING
Dorothy M. Gunn, Clerk
Illinois Pollution
Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL
60601
Deborah Williams
Assistant Counsel
Division of Legal Counsel
Illinois Environmental Protection
Agency
1021 N. Grand Avenue East
Springfield,
IL
62794-9276
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL
60601
PLEASE
TAKE
NOTICE
that on Thursday,
April 15, 2004,
we filed the attached
POST-HEARING MEMORANDUM OF NOVEON, INC.
with
the Illinois
Pollution Control
Board, a copy of which is herewith served upon you.
Respectfully submitted,
NOVEON, INC.
Richard J. Kissel
Mark Latham
Sheila H. Deely
GARDNER CARTON & DOUGLAS LLP
191
N. Wacker Drive
—
Suite 3700
Chicago, IL
60606
By:
~
One ofIts Att7eys
PCB 91-17
(Permit Appeal)
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
RECEIVED
CLERK’S OFFICE
APR
152004
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILUNOIS
Pollution Control Board
Noveon, Inc.
)
)
)
PCB91-l7
)
(Permit Appeal)
Illinois Environmental
)
Protection Agency
)
POST-HEARING MEMORANDUM
OF
NOVEON.
INC.
Noveon, Inc.,
f/k/a The BFGoodrich Company (“Noveon”), through its undersigned
attorneys, respectfully submits
this Post-Hearing Memorandum in support ofits appeal of
NPDES Permit No. IL000 1392.
I.
Issues
On Appeal and ReliefRequested
The NPDES Permit subject to this appeal was issued
on
December 28,
1990.
Noveon
timely appealed fourconditions of the permit.
The first condition concerns an effluent limit for
ammonia placed in the permit by Illinois EPA based on Section 304.122(b) ofthe Board’s rules,
which was promulgated by the Board in
1972 but neverpreviously applied by the Illinois EPA in
any ofNoveon’s prior NPDES
permits.
Noveon requests that the Board remand the permit to
rescind the effluent limit for ammonia, which is not required under Section 304.122.
A plain
reading ofthis regulation supports Noveon’s position, not the position ofIllinois EPA, and the
ammonia limit must be rescinded because it has no
legitimate basis.
The second condition on
appeal concerns the Illinois EPA’s designation of two outfalls in the permit forpurposes of
monitoring and compliance:
Outfall 001 and
Outfall OOlA.
Noveon’s discharge is physically
one outfall,
and Noveon requests that the Board reverse and remand the separation ofthis outfall.
The third condition on appeal is the toxicitytesting and biomonitoring requirements.
Illinois
EPA has conceded that if the ammonia limit is rescinded or relief is granted in the pending
adjusted standard proceeding (AS
02-5),
this condition is not necessary.
Finally, Noveonhas
appealedthe manner in which Illinois EPA interpreted and applied the federal regulations
governing discharges from Organic Chemicals, Plastics, and Synthetic Fiber (OCPSF) facilities.
Based on a review of additional federal guidance issued after the initial hearings in this appeal,
Noveon is withdrawing this portion ofthe appeal.
II.
Statement ofFacts and Procedural History
A.
The Noveon and PolyOne Manufacturing Facilities
The Noveon Henry Plant is located on the West Branch ofthe Illinois River in Marshall
County, to the north ofthe City ofHenry.
1991
Tr.
26.1
When the NPDES Permit was issued,
the Henry Plant was owned by BFGoodrich.
It had two manufacturing units:
a specialty
chemicals manufacturing unit, which started operations in 1958 producing rubber chemicals, and
a PVC resins unit that began operating in 1965.
In the periodprior to
issuance of the 1990
NPDES Permit,
two major expansions took place:
the start-up ofthe Recirculating Fluid Bed
Coal Fired Boiler and a Rubber Accelerator expansion (the Cure-Rite 18 process).
1991
Tr. 26-
28andPet.Ex.
1.
The Henry Plant has had a very positive economic impact on the City ofHenry and the
State ofIllinois through taxes and employment.
This economic impact is demonstrated in a Fact
Sheet concerning
the former BFGoodrich attached at Petitioners Ex.
1.2
This exhibit also shows
the HenryPlant’s payment ofwages and benefits to all employees for the two manufacturing
units, which in
1991
exceeded $17
million for the combined BFGoodrich operations.
Finally,
Noveon will refer to the transcript ofhearings that occurred in
1991
as “1991 Tr.
“and the transcript
ofthe hearing from 2004 as “2004 Tr.
.“
2
This
financial information does not include Noveon’s financial expenditures for worker salaries or
environmental
compliance subsequent to issuance ofthe
1990 NPDES Permit, although the figures
provided are comparable and certain financial information is included in the testimony in the pending
adjusted standard proceeding.
2
this exhibit demonstrates the financial commitment BFGoodrich made to the environment,
spending $14 million from
1972 to
1982 on environmental controls and an additional $6.9
million in 1987 to upgrade the wastewater treatment area.
Pet. Ex.
1.
Both manufacturing units
of BFGoodrich were subsequently sold to
independent entities but still operate at Henry.
The
resins unit is now known as PolyOne Corporation, and the specialtychemicals unit became
Noveon, Inc.
Noveon’s wastewater treatment facility continues to serve both Noveon and
PolyOne.
Pet. Ex.
16 at
5,
6.
The current Noveon Henry Plant is a chemical manufacturing facility.
Noveon
manufactures two general groups ofproducts.
The first general group ofproducts is the rubber
accelerators that are used in the vulcanizing process ofthe tire-curingprocess for the tire
industry.
The accelerators decrease the curing time ofrubber products (e.g., tires) and are
essential for manufacturing and operation or products such as tires.
The other product line
consists ofplastic and rubber anti-oxidants.
This manufacturing process produces additives that
are used in plastics and rubbers to prevent the degradation ofthe material from light and heat in
products, including such products as rubber baby bottle nipples.
1991
Tr. 30-32.
B.
The Wastewater Treatment Facility
A visual depiction ofthe wastewater source and treatment facility is
available in a
flowchart
at Pet. Ex.
1 8.~All wastewater from the Noveon facility’s manufacturing areas are
discharged for equalization to the Polymer Chemical (PC)
Tank,
with wastewater from Noveon’s
Cure-Rite 18 manufacturing area also receiving pretreatment prior to discharge to a separate
~A more extensive
narrative description
ofthewastewater
treatment process is also available at Pet. Ex..
16 and 2004 Tr.
35-47
3
equalization tank.
Following equalization, the wastewaterreceives additional primary treatment
consisting ofpH adjustment, addition of coagulant and polymer to assist in removing solids, and
primary clarification;
secondary treatment consisting ofaeration and secondary clarification
with returned sludge to
maintain an
appropriate population ofbacteria;
and tertiary treatment
consisting of filtering wastewaterprior to discharge.
Pet. Ex.
16 at
5, 6.
The PolyOne facility’s
wastewater is discharged for equalization to the Polyvinyl Chloride (PVC) Tank, with the
exception ofcertain manufacturing wastewaterwhich receives pretreatment unrelated to
ammonia prior to discharge to
the PVC Tank.
ThePVC Tank also receives return streams such
as backwash water from the sand filter, filtrate from sludge dewatering,
and, potentially, primary
sludge from the primary clarifier.
2004 Tr. 36,
37.
This wastewater is then pumped with the
Noveon wastewaters for primary, secondary and tertiary treatment.
Pet. Ex.
16, 7.
TheNoveon and PolyOne facilities also discharge wastewaterto a StormflJtility Pond,
which consists ofstormwater runoffand discharges from cooling towers, boilers and well water
treatment.
A portion ofthe pond water discharges to the PVC Tank in order to provide the BOD
removal required to maintain a minimum operating level in the PVC Tank or is diverted to the
PVC Tank when the filter used to treat the remaining pond water reaches capacity.
Pet. Ex.
16 at
7;
2004 Tr. 41-42.
A portion ofthe PVC Tank discharge is
in turn combined with the PC Tank
discharge to ensure the PC Tank discharge is limited
to 23 percent ofcombined influent flow to
aeration basins in order to maintain compliance with effluent Biological Oxygen Demand (BOD)
concentrations. Pet. Ex.
16 at.
7;
2004
Tr.
42.
Thewastewater is then discharged to the Illinois
Riverthrough
Outfall 001.
The remaining pond water goes through a filter fortreatment to
remove Total Suspended Solids (TSS), and then combines with the other treated wastestreams
prior to discharge through a pipe to the Illinois River.
The outfall is a pipe that travels
4
approximately 1,000 yards downstream before turning and going into the Illinois River.
1991
Tr.
87-88.
Nitrification is the conventional treatment for ammonia.
Noveon’s wastewater treatment
facility is constructed similarlyto municipal wastewater treatment plants to nitrify ammonia, and
in fact the design and operation ofNoveon’s plant meet the conditions defined in 35
Ii. Adm.
Code 370.920, 35
Il. Adm. Code 370.1210, and Ten State Standards to grow ammonia-degrading
bacteria in order to nitrify ammonia.
Pet. Ex.
16, at 9;
2004 Tr. 48.
These standards
are used by
regulators to
critique wastewatertreatment facility designs
to ensure they provide adequate
facilities to support complete nitrification.
The ammonia in the Henry Plant wastewater does not nitrify, however, because ofthe
inhibiting effect of certain compounds (principallythe building block ofaccelerator production,
mercaptobenzothiazole (MBT)).
The lack ofnitrification is not due to
a lack ofequipment or
inadequate design, but due to the fact that the bacteria necessary for nitrification will not grow
because they are inhibited by the organic nitrogen compounds.
Pet. Ex.
16,
at 9;
2004 Tr. 48,
49.
Importantly, Noveon does not use any significant amounts ofammonia in its processes.
PolyOne uses a minimal
amount ofammonia in its production areas.
The predominance ofall
ammonia in the effluent is a result ofthe wastewater treatment.
Noveon’s influent contains the
organic amines, morpholine and MBT.
These organic compounds have two effects:
first they
degrade to form ammonia nitrogen during the wastewater treatment process;
second, MBT
inhibits nitrification so that ammonia nitrogen is not reduced during wastewater treatment.
Pet.
Ex.
16 at 8,
9;
2004 Tr. 44-45.
It is for these reasons that the unique wastewater flow at the
HenryPlant poses significant technical challenges to treat ammonia.
5
C.
Evaluation ofAlternatives to Treat Ammonia
When the draft permit was issued in 1990 with proposed ammonia limits, not only did
Noveon undertake its ownreview ofliterature and its processes to determine whetherit could
meet the permit condition, but it also engaged Eckenfelder, Inc., a premiere wastewater treatment
consulting firm, to provide wastewatertreatment consulting services concerning
ammonia.4
Pet.
Ex.
16;
2004
Tr.
31.
Noveon looked at the source ofammonia, which was determined to be the
degradation oforganic nitrogen compounds.
Noveon then reviewed various options to eliminate
ammonia from the wastewater.
These options included reusing the organic nitrogen compound
morpholine, which is used to produce accelerators that aid in the vulcanizing process for tires, by
stripping and segregating it.
1991
Tr. 78.
But this option presented a serious safety concern to
plant workers, because the intermediate step ofcapturing the morpholine was potentially
explosive.
The process also raised other environmental concerns due to the generation of
hazardous waste and quality control issues associated with recyclingmorpholine.
1991
Tr. 78-
79.
Noveon also reviewed the possibility ofrecycling morpholine from the Cure-Rite
18
accelerator process.
This alternative presented the same safety and other environmental concerns
noted above.
1991
Tr.
80.
Noveon then evaluatedpretreatment ofthe organic nitrogen compounds.
The only
technologies that were identified for pretreatment were unproven;
two were also not actually in
use, and a third was a patented proprietary technology in use in-only one location in Europe.
Further, even with these technologies, the ammonia would still not have met the ammonia limits
~The curriculum vitae ofHouston Flippin, Noveon’s expert witness at Eckenfelder, a/k/a Brown and
Caldwell, may be found at Pet.
Ex.
17.
6
imposedby the draft permit.
These pretreatment alternatives were determined to be impractical.
1991 Tr.
82-83.
Finally, Noveon extensively reviewed post treatment technologies,5 including ozonation
and evaporation, break point chlorination, ion exchange,
single-stage nitrification, air stripping,
and a
separate-stage biological
system.
None ofthese treatment processes would have allowed
Noveon to consistently meet the NPDES Permit ammonia limitations, and many ofthem
presented other safety and environmental concerns or difficulties ofa magnitude that would
make them impractical.
1991
Tr.
83-87.
Noveon’s conclusion from its review ofpre-treatment
and post-treatment alternatives was that it could not treat, remove or pre-treat the organic
compounds in a safe and effective manner, and there was no proven technology available that
would allow Noveon to meet the ammonia limits in theNPDES Permit.
D.
Course
of Proceedings
Between Issuance of
Draft NPDES Permit and
Current Continuation of Permit Appeal with Adjusted Standard Petition
Noveon appealed the four permit conditions on January 24,
1991.
The initial public
hearing took place on November 19,
1991
and December 16,
1991, at which Noveon presented a
substantial part ofits case-in-chief.
The hearing was continued at that time because of the
unexpected illness ofNoveon’s expert witness at the time, Dr. Patterson, who was afflicted with
an eye illness that prevented his participation.
Subsequent to
the 1991
hearings, Eckenfelder, n/k/a Brown & Caldwell, continued to
assist Noveon in conducting studies and pilot tests to assess methods oftreating ammonia at
Noveon’s expert witness, Houston Flippin, was to testify
in moredetail about Noveon’s continued
review ofpost-treatment alternatives, but because much of his work occurred after Illinois EPA issued the
permit, Illinois EPA objected to its inclusion in the record and consideration by the Board in this
proceeding.
See discussion ofIllinois
EPA’s objection at Section
III.
Nevertheless,
Mr. Flippin’s
testimony is available as Hearing Officer Exhibit I and it was also entered in its entirety in the pending
adjusted standardproceeding, AS 02-5.
7
Noveon.
During the time betweenthe 1991
hearings and the hearings in February 2004,
settlement talks between Noveon and Illinois EPA also proceeded,
and Noveon and Illinois EPA
regularly met to confer on Noveon’s progress and to
allow Illinois EPA to have input into the
work that was proceeding.
Noveon and its consultants performednumerous studies and tests in
an attempt to resolve the issues on appeal.
Pet. Ex.
16
at 4,
5.
While no settlement was reached
between the Illinois EPA and Noveon, neither was any new permit issued, and the status quo was
maintained between Noveon and Illinois EPA.
During this time, Noveon also filed a Petition for
Variance.
See BFGoodrich v. illinois Environmental Protection Agency,
PCB 92-167.
Noveon
subsequently concluded from its
assessment oftreatment technologies that no technology was
both economically reasonable and technically feasible.
As
a result, Noveon withdrew the
Petition for Variance because, should Section 304.122 be determined to require application of an
ammonia limitation, the appropriate mechanism for relief is an adjusted standard, not a variance.
See
Motion ofNoveon, Inc.
to Withdraw Variance Petition, PCB 92-167 (June
17, 2002), and
Order ofthe Board, PCB 92-167 (June 26, 2002).
ARGUMENT
III.
Noveon’s Appeal Should Be Subject to
De
Novo
Review
Noveonproceeded at the time of its permit comments in 1990 and on appeal under the
assumption that the legal and factual issues
on appeal would be heard by the Board under a
de
novo
standard of review, and there was no limitation to the record developed before Illinois EPA
during the permit proceedings.
This standard ofreview governed the hearings that took place in
1991.
At the continuation ofthe hearings this year, however, Illinois EPA took the position that
the hearing was limited
to material in existence at the time ofthe permit proceedings, and the
Hearing Officer agreed with this approach.
The result was that the testimony ofHouston
8
Flippin, Noveon’s expert on the
same matters as Dr. Patterson, was entered in a form redacted by
Illinois EPA as Pet. Ex.
16.
See
2004 Tr.
16-20.
A substantial amount ofinformation
unquestionably relevant to the applicability of35 Il. Adm.
Code 304.122
and on treatment
alternatives for ammonia was consequently removed from Mr. Flippin’s testimony.
The
unredacted testimony was entered only as an offer ofproofas Hearing Officer Exhibit
1.
At the time ofthe permit proceedings and the initial round ofhearings in this case, there
was no question but that the Board’s review of an Illinois EPA decision on an appeal of a permit
was
de novo.
See IBP,
Inc.
v. Illinois Pollution Control Board,
204 Ill. App. 3d 797,
563 N.E.2d
72 (3d Dist.
1990);
Dean Foods
Co.
v. Illinois Pollution Control Board,
143 Ill. App. 3d 322,
492 N.E.2d 1344 (2dDist.
1986).
For permit appeals by an applicant, not a third party, this
standard of review for factual determinations is still consistent with the statute.
Nothing in the
statute has changed that would warrant revising the standard ofreview to
limit the information
the Board may consider to the record before the Illinois EPA.
Permit appeals by the applicant, not a third party, are governed by Section 40(a)(1) of the
Illinois Environmental Protection Act, 415
ILCS 5/40(a)(1).
Section 40(a)(1) ofthe Act
provides that the rules prescribed for Board hearings in Section 32 and subsection (a) of Section
33 ofthe Act apply to permit appeals.
It also provides that the burden ofproofis
on the
petitioner, except with respect to limits in NPDES permits which “are based upon a criterion,” in
which case “the Agency shall have the burden ofgoing forward with the basis for the derivation
ofthose limits or criterion which were derived under the Board’s rules.”
415
ILCS 5/40(a)(l).
Section
32 ofthe Act requires hearings before a qualified hearing officer and allows the
applicant to submit oral or written argument and testimony and cross-examine witnesses.
Section
3 3(a) ofthe Act requires the Board to issue a written opinion with the facts and reasons
9
for its decision.
415 ILCS 5/32 and 33(a).
Unlike other provisions of the Act restricting the
Board’s consideration to information “exclusively on the record compiled in the Agency
proceedings,”
see,
e.g,
415 ILCS 40(b), (c), (d) and (e) (applicable to
third-party NPDES permit
appeals), there is no such limitation in the statutory provisions applicable to this hearing where
the applicant is
appealing the NPDBS Permit.
At the time ofthe initial hearings, the Board’s rules read as follows:
The hearings before the Board shall extend to all questions oflaw and fact presented by
the entire record.
The Agency’s findings and conclusions on questions of law and fact
shall be prima facie true and correct.
Ifthe Agency’s conclusions offact are disputed by
the partyor if issues offact are raised in the review proceedings, the Board may make its
own determination offact based on the record.
Ifany partydesires to introduce evidence
before the Board with respect to any disputed issue offact, the Board shall conduct a de
novo hearing and receive evidence with respect to such issue offact.
35 Il. Adm. Code
l05.102(b)(8).
Subsequently, effective January
1, 2001, new procedural rules
by the Board became effective for appeals offinal decisions of state agencies.
These new
procedural rules do
not recognize the differences in the statute governing the Board’s review
depending upon whether the party appealing a permit is the applicant or a third party.
See
415
ILCS 5/40.
Instead, the Board’s rules
establish one blanket procedure that “tjhe
hearing will be
based exclusively on the record before the Agency atthe time the permit or decision was issued.”
To the extent the Board’s rules differ
from the statute, they cannot apply to this proceeding.
The hearing officer’s ruling with respect to Mr. Flippin’s testimony should be overturned,
and Mr. Flippin’s testimony should be entered and considered in its entirety.
By established
caselaw, the standard ofreview the Board should apply to Illinois
EPA decisions appealed by an
applicant is still
de novo.
The Board’s rules cannot overturn the statute or its
interpretation by
caselaw.
The cases have found that review under Section 40(a) ofthe statute is
de novo.
See
IBP, Inc.,
204 Ill. App. 3d 797;
Dean Foods
Co.,
143 Ill. App.
3d 322.
This rule must continue
10
to be applied.
All ofthe issues addressed in Mr. Flippin’s unredacted testimony are central to
this case, and those areas that were redactedunquestionably relate to areas that were raised in the
permit proceedings before the Illinois EPA.
Even if the Board considers the standard of review to have changed, however,
fundamental fairness requires that the rules in existence whenthe NPDES Permit was issued and
appealed should continue to be applied.
It would be prejudicial to Noveon if the rules applicable
to its proceeding were altered during the proceeding.
On the other hand, in light ofthe fact that
the prior rules were properly promulgated by the Board and upheld by the courts and
governed
this case during the prior proceedings, there is no cognizable prejudice to Illinois EPA should
those rules continue to be applied in this case. In fact, Illinois EPA expressed its understanding
ofthis standard ofreview when the hearings proceeded in 1991, and reminded Noveon that the
standard to proceed was
de novo.
1991 Tr.
155.
Forpurposes ofthis Post-Hearing Memorandum, Noveon will address only Mr. Flippin’s
testimony as redacted by Illinois EPA in
Pet. Ex.
16.
Because Mr. Flippin’s testimony was
entered in
its entirety in the adjusted standard proceeding, however, Noveon will file a later
addendum indicating which portions of the post-hearing memorandum to be filed in that
proceeding are also relevant and properly admissible inthisproceeding,
IV.
The Ammonia Limits Placed in the Permit by Illinois EPA Are Improper
In the
1990 permit, for the first time, the Agency determined that Section 304.122(b) of
the Board’s rules required an ammonia effluent limitation for theNoveon Henry Plant’s
discharge.
Illinois EPA’s application of the rule ignores its plain meaning and relies on a
misinterpretation that has no basis in the language ofthe rule, the Board’s opinion promulgating
it, or any Illinois guidance document.
Section 304.122 reads
as follows:
11
a)
No effluent from
any source which discharges to the Illinois River, the Des
Plaines River downstream ofits confluence with the Chicago River System or the
Calumet River System, and whose untreatedwaste load is 50,000 or more
population equivalents shall contain more than 2.5 mg/L oftotal ammonia
nitrogen as N during the months ofApril through October, or 4 mg/L
at other
times.
b)
Sources discharging to any ofthe above waters and whose untreated waste load
cannot be computed on
a population equivalent basis comparable to
that used for
municipal waste treatment plants
and whose total ammonia nitrogen as N
discharge exceeds 45.4 kg/day (100 pounds per day)
shall not discharge an
effluent ofmore than 3.0 mg/L of total ammonia nitrogen as N.
c)
In addition to
the effluent standards set forth in subsections (a) and (b) ofthis
Section, all sources are subject to Section 304.105
requiring
compliance with
water quality standards,
including those for ammonia.
A.
The Agency Is Estopped from Including
an Ammonia Limit in the
Permit
As notedbefore, it is important to understand that Noveon does not use any significant
amounts of ammonia in any of its processes, although ammonia has been a component of
Noveon’s wastewater since it started operations in Henry.
Illinois EPA has been aware ofthe
presence ofammonia in Noveon’s discharge since the
1 970s, when the Board passed this
regulation.
In fact, Illinois EPA placed an ammonia limit in the 1977 draft NPDES Permit issued
to Noveon, but Illinois EPA subsequently determined the limit was improperly applied to
Noveon and removed the limit.
1991
Tr.
138.
No otherNPDES Permit contained an ammonia
limit until the
1990 Permit, sixteen years later.
Illinois EPA’s interpretation that the ammonia effluent limitations in Section 304.122(a)
or (b) were inapplicable to Noveonprior to the
1990 NPDES Permit was long-standing.
There
was no permit limit for ammonia in
any ofthe prior finalpermits since BFGoodrich began its
operations, though Illinois EPA began placing ammonia effluent limits in permits as a result of
the adoption of Section 304.122
in 1970.
This
is readily apparent in the prior permits
attached as
Petitioner’s Exhibit 2 (1978 Permit), Exhibit 4
(1985 Permit), and Exhibit
5
(1986 Permit).
The
12
presence of ammoniawas disclosed in permit applications as well.
See, e.g.,
Pet. Ex. 3 at V-i.
In fact, the permit writerresponsible for the permit on appeal also wrote a 1984 NPDES Permit
‘without an effluent limit for ammonia.
2004 Tr.
159-63.
Noveon relied on the absence ofa permit limit for ammonia.
When Noveon decides on a
new production process forinstallation, it undertakes an evaluation ofthe best location among
the existing Noveon facilities for the new process.
1991
Tr. 70.
Elements that are reviewed
include economics ofconstructing the project;
utility services such as electrical, steam
generation, and cooling capacities; location to
suppliers and customers; the work force; the
health, safety and environmental impact; the safety of employees and the public;
and regulations.
1991 Tr. 71.
The regulatory review Noveon conducts consists ofan evaluation to determine whether
the process would meet local
and federal regulations when it is developed and installed.
Emissions into the air and discharges to water are assessed.
With respect to wastewater, Noveon
assesses whetherthe discharges would upset existing treatment at the facilityand whether
compliance with permits would be maintained.
Future regulations are also assessed to determine
whetherthere will be additional costs and controls required.
1991
Tr. 71-72.
The Cure-Rite
18 accelerator expansion, as well as the associated upgrades to
the
wastewater treatment system to ensure compliance with the BOD limits in Noveon’s existing
permit, increased organic amines and consequently increased ammonia in Noveon’s discharge,
although no ammonia is used in this process.
1991
Tr.
105-06.
The accelerator expansion was
first
assessedin
1979, subsequently delayed, reconsidered in 1984, and constructed and started
up in
1986-87.
The capital costs to
construct that process in Henrywere in the range of$12
to
$14 million.
Noveon constructed that process and relied on the regulatory limits in place,
13
including the absence ofan
ammonia limit, in its regulatory review and its decision to install the
new process at the Henry Plant.
1991
Tr. 76, 118-19.
While it was apparent that manufacturing
the product would result in an increase in ammonia, because there had neverbeen a permit limit
in a final NPDES Permit issued to
the plant, Noveon did not consider that ammonia would pose
an additional cost for construction ofthe new process.
1991
Tr.
118-19.
Prior to the
1990 permit, Noveon also undertook upgrades to its wastewater treatment
facility.
Those upgrades were intended to make the facility more efficient and ensure
compliance with TSS and BOD limits.
Ammonia was not a consideration, again because no
ammonia limit had been imposed in a final NPDES Permit.
1991
Tr.
118.
As a consequence,
however, the increased efficiency also
led to greater degradation oforganic nitrogen compounds,
increasing ammonia in the effluent.
1991
Tr.
105-06.
When the draft permit was issued in 1990, the ammonia limitation was a surprise to
Noveon.
Ammonia had never been a permit parameter, notwithstanding the prior presence of
ammonia in the wastewater at levels that would have exceeded the limits in Section 304.122(b) if
that section were applicable.
Noveon nevertheless undertook a review to determine whether it
could meet the permit condition.
The review included looking at the source ofammonia—
degradation oforganic nitrogen compounds—to determine whether elimination ofthe organic
nitrogen compounds was feasible;
assessing recovery and recycling of amines;
evaluating
pretreatment;
and reviewingpost-treatment.
1991
Tr.
76-77.
Noveon concluded that
eliminating the source ofinhibition ofnitrifying bacteria—principally MBT—would require
abandoning any product line responsible forthis
compound, namely all ofthe organic
compound-usingprocesses.
In addition, recycling a primary organic nitrogen compound
(morpholine) to
remove it from the wastewater would present a safety hazard to Noveon’s
14
operating employees in that therecycled material would be explosive, recycling would generate
hazardous waste, and the qualityofthe products that would be produced with recycled
morpholine could not be guaranteed.
1991
Tr. 79-80.
Tn addition to these problems, recycling
morpholine would not remove all ofthe ammonia from the wastewater.
And, with respect to
treatment options, at the time ofthe hearing Noveonhad
assessed a variety oftreatment
technologies.
1991
Tr. 85-87.
Noveon concluded that there was no
proven treatment technology
that would consistently allow it to meet the draft permit condition.
Noveon relied on this interpretation and the absence ofa permit limit for ammonia in
constructing its operations at Henry and in evaluating which products to produce at Henry.
The
plant was constructed at a cost ofmillions ofdollars in reliance on existing permit limits based
on existing rules.
It would be inequitable to allow Illinois EPA to
change its regulatory
interpretation after Noveon has relied on it and apply a regulation with which Noveon simply
cannot comply.
Caselaw on this point is clear.
Ifthe meaningof a regulation is debatable,6 and
circumstances have not changed, an administrative agencyis bound by a long-standing
interpretation ofthe regulation.
See CentralIllinois Public Service
Co.
v. Pollution Control
Board,
165 Ill.
App. 3d 354,
518 N.E.2d 1354
(4th
Dist.
1988) (Administrative agencies are
bound by theirlong-standing policies and customs ofwhich affected parties had prior
knowledge).
Illinois EPA cannot change the rules to the detriment ofa regulated partywho has
acted in reliance on an interpretation.
Noveon reasonably relied on the absence ofa permit limit
based on Section
304.122(b), because the regulationhad been in existence for almost 20 years
prior to the
1990 Permit, itwas determined by Illinois EPA as inapplicable when questioned by
6
Noveon believes that the language ofSection 304.122 is clear—that
is,
it does not apply to Noveon’s
discharge.
But Illinois EPA believes that it does;
therefore, we use the term “debatable.”
15
Noveon in 1974, and no ammonia limit based on Section 304.122(b) was ever imposed in a final
permit issued by the Illinois EPA until 1990.
B.
Section 304.122(a) Does Not Require an Ammonia Limit Because a
Population Equivalent Can Be Calculated for Noveon’s Untreated Wasteload
By its unambiguous terms, Section 304.122(a) applies to
sources that discharge to
specified waterways,
including the Illinois River, and “whose untreated waste load is
50,000 or
more population equivalents.”
A population equivalent is defined in Board regulations as
follows:
Population Equivalent is
a term used to evaluate the impact ofindustrial or other waste
on a treatment works or stream.
Onepopulation equivalent is
100 gallons (380 1) of
sewage per day, containing 0.17 pounds (77 g) of BOD5 (five day biochemical oxygen
demand), and 0.20 pounds (91 g) ofsuspended solids.
The impact on a treatment works
is evaluated as the highest ofthe three parameters.
Impact on a stream is the higher of
the BOD5 and suspended solids parameters.
See 35
Il. Adm.
Code 30 1.345.
That Noveon’s P.E.
is less than 50,000 was part ofthe record before Illinois EPA as it
was
submitted in written comments on the draft permit by Ken Willings, Noveon’s then-
Manager of Environmental Health and
Safety.
The P.E. has also been calculated using permit
applications and other documents in the record by Houston Flippin, Noveon’s expert witness in
this proceeding.
Using all relevant calculations, the untreated waste load ofthe Noveon Henry
Plant has a population equivalent ofless than 50,000.
Pet. Ex.
16 at
12,
13;
Pet. Ex.
19;
2004
Tr.
53-55.
Consequently, by its plain language,
3511. Adm.
Code 304.122(a) is not properly the
basis for any ammonia effluent limit on the Henry Plant’s wastewater discharge.
Population equivalents can be and have been calculatedby Noveon’s expert Houston
Flippin.
See
Pet. Ex.
16 at
11-12;
Pet.
Ex.
19.
Mr. Flippin evaluated data that existed and was
16
before the Illinois EPAprior to
1990.
Based on that data, calculation ofthe Noveon Henry
Plant’s population equivalents show the following:
TSS:
information in Illinois EPA documents, or pre-1990 applications submitted by
Noveon to Illinois EPA,
and therefore before Illinois EPA at the time the permit was
issued, show aPE ranging from 41,700 PB (1983) to
14,300 (1987-1989).
BOD: information in Illinois EPA documents, or pre-1990 applications submitted by
Noveon to Illinois EPA, and therefore before Illinois EPA at the time the permit was
issued, show a PE ranging from 4,906
to
14,300.
Flow:
information in Illinois EPA documents, orpre-1990
applications submitted by
Noveon to Illinois EPA,
and therefore before Illinois EPA at the time the permit was
issued, show a PE ranging from
7,500
to 14,300.
Pet. Ex.
19;
2004 Tr.
55-60.
Mr. Rick Pinneo, the permit writer at Illinois EPA, agreed that Mr. Flippin “properly
calculated” the population
equivalents.
2004
Tr.
147.
Tn addition, though not a part ofthe
definition ofpopulation equivalents in the Board regulations, a population equivalent can also be
calculated based on ammonianitrogen and Total Kjedahl Nitrogen (TKN), which is really the
thrust ofSection 304.122.
These population equivalents
are also below 50,000.
The Noveon
Henry Plant’s untreated waste load would yield a population equivalent of20,263 for ammonia
nitrogen and 35,793 for TKN.
Pet. Ex.
16 at
13.
C.
Rule
304.122(b),
Cited
By
Illinois EPA, Does Not Apply to
Noveon Because a
Population Equivalent Can Be Calculated
Illinois EPA testified that the ammonia limit in Noveon’s permit was required by Section
304.122(b) ofthe Board’s regulations.
This regulation became effective in 1973, although
Illinois EPA did not apply it in
a final permit until the
1990 Permit at issue in these proceedings.
This
is notwithstanding that ammonia has beenpresent in Noveon’s wastewater since the
1 970s.
Section 304.122(b) requires
an ammonia limit for sources “whose untreated waste load
cannot be computed on a population equivalent basis comparable to that used for municipal
17
waste treatment plants.”
Section 304.122(b)’s phrase “comparable to that used for municipal
‘waste treatment plants” defines “computed on a population equivalent basis.”
It cannot be read
any other way.
The rule merely questions whether the data exist to
express an untreated waste
load in population equivalents such as would be evaluated when regulators and municipal plants
design or evaluate those plants.
It is intended to put the relative size of an untreated wasteload in
perspective.
2004 Tr. 51; Pet. Ex.
16 at 11;
Pet. Ex.
19.
Further, the definition of“population
equivalent,” which specifically references industrial wastewater, establishes that the purpose of
“population equivalent,” is to
facilitate comparisons of
industrial
and other waste to municipal
wastewater using the defined factors.
See
Section 301.345.
Illinois EPA does not appear to have calculated the population equivalents for Noveon,
and has in fact conceded that a population equivalent can be computed.
1991
Tr.
127-28.
Instead, Illinois EPA has relied on differences it believes are dispositive ofthe applicability of
Section 304.122(b) between Noveon’s wastewater and that ofa municipal wastewater.
The
relevance ofthose purported differences to the applicability ofthe rule is not reflected in the
language ofthe rule, in the Board’s opinion adopting the rule, or, indeed, in any written guidance
document or policy.
The Board promulgated what is now Section 304.122(a) in 1972, after hearing and
testimony on the effects ofammonia on dissolved oxygen levels in the Illinois River.
See Board
Order, In the Matter ofEffluent Criteria, In
the
Matter of Water Quality Standards, and In the
Matter of Water Quality Standards Revisionsfor Intrastate
Waters,
CR 70-8, 7 1-4, and
71-20
(Jan. 6,
1972).
This rule applied to
sources “whose untreated wasteload is 50,000 or more
population equivalents.”
In 1973, the Board followed up with what is now Section 304.122(b),
specifically directed at “industrial dischargers ofmore than 100 lbs. of ammonia as N, whose
18
wasteload cannot be computed on a population equivalent (PB) basis.”
See Board Order, In the
Matter of Water Quality Standards Revisions,
R 72-4 (Nov. 8,
1973).
It is clear that the Board intended Section 304.122(b) to apply to industrial discharges.
But there is no such limitation in
Section 304.122(a), which is not limited
to either industrial or
municipal dischargers.
There was no limitation or discussion in the Board’s orders concerning
the nature ofthe wastewater subject to Section 304.122(a), whetherthe wastewaterhad to be
comparable to municipal wastewater, what factors would be used to make this assessment, or any
otherfactor that might support the Illinois EPA’s interpretation.
Its application was simply a
question ofwhether a population equivalent couldbe calculated ornot.
And the explicit use of
“population equivalents” which in turn explicitly references industrial sources, is
clear that
Section 304.122(a) applies to industrial sources.
A 1989 memorandum by James Kamniueler, the chiefofIllinois EPA’s Peoria field
office, who has been responsible for field inspections
ofNoveon, appears to have concurred that
the question ofwhich provision ofSection 304.122 applies is determined based solely on
whether a population
equivalent can be calculated.
2004 Tr.
56-57.
In that memorandum, Mr.
Kammueler asked the following question:
Since BF Goodrich and Pekin Energy appear to have untreated waste loads of greater
than 50,000 PE
population
equivalents,
should their NPDES permit contain effluent
limitations per 304.122?
2004
Tr.
56-57,
citing Document Number 207
in Administrative Record filed by Illinois EPA.
Though Mr. Kammueler was wrong about the population equivalent calculation, he was correct
aboutthe meaning and
applicability of Section
3 04.122(a) ofthe Board’s regulations—that is,
that a population equivalent applies here.
Because that population equivalent is below 50,000,
the NPDES
Permit should not contain an ammonia effluent limitation.
19
Illinois EPA’s creative interpretation ofthe rule is not based on a writtenpolicy or
guidance document.
2004 Tr.
153.
Rick Pinneo, the permit writer for the permit at issue,
testified during the hearing that he determined that factors such as the ratio of Chemical Oxygen
Demand (COD)
to BOD were relevant to application ofthe rule.
2004 Tr.
149.
But he also
testified that he did not find any support for Illinois EPA’s interpretation in the Board’s opinion
or Illinois EPA documents dealing with the alleged comparability ofindustrial wastewater to
municipal wastewater:
Q.
.
.
.
I’m
a person that wants to build a plant.
Where do
I find that comparability
factors
in the rules?
Where do I find that position taken by the Agency?
A.
You will not find it.
Q.
So this is basically from yourhead?
Ms. Williams:
I would object
Q.
From your mind, yourthoughts, whatever you want to do?
Hearing OfficerHalloran:
Overruled.
A.
It’s from what I would consider what the regulation says.
2004
Tr.
153.
Mr. Pinneo testified that he was the one who brought the COD-to-BOD ratio in,
among other “things” he utilized, to determine comparability.
2004 Tr.
149.
Mr. Pinneo even
testified that his interpretation could be stretched to mean that if municipal waste did not have a
BOD or TSS comparable
to “typical” municipal waste, then that municipal waste would not be
“comparable” to municipal waste under the rule.
Mr.
Pinneo also considered the degradability of
the wastewater.
2004 Tr.
15
1-55.
Wouldn’t the Board have noted these factors if Section
304.122 were to be interpreted the wayMr. Pinneo said it should?
20
Mr. Pinneo did cite a memorandum by Toby Frevert ofIllinois EPA as a basis for his
interpretation.
1991 Tr.
137-38;
2004 Tr.
155-57.
Mr. Frevert’s
memorandum was written in
responseto
Mr. Kammueler’s memorandum supporting Noveon’s interpretation ofthe rule. Mr.
Frevert states in cursory and conclusory fashion that becauseNoveon’s wastewater is
“industrial,” it is subject to
Section 304.122(b), not (a).
Thatconclusory interpretation is
inconsistent with the plain language of35
Il. Adm. Code 304.122.
Mr. Frevert’s
memorandum
does not constitute a document ofgeneral agency policy or a guidance document interpreting a
rule in a generally applicable manner.
And Mr.
Pinneo wavered as to whether Mr. Frevert
interpreted the rule properly and applied the correct terminology.
2004 Tr.
156-57
Illinois EPA’s argument and imposition into Section 304.122(a) offactors concerning the
nature of the industrial wastewater from a particular facility is simply an
attempt to
question the
basis for the rule and whether calculation ofpopulation equivalents makes sense or has meaning.
This is not the proper forum to make this argument.
Whether the rule’s plain meaning is sensible
makes no difference to its application.
Where the language ofa rule is
clear and certain, an
administrative agency’s interpretation ofthe regulation that runs counter to the regulation’s plain
language is entitled to
little, if any, weight in determining the effect to be accorded the
regulation.
See CentralIllinois Public Service
Co.
v.
Pollution Control Board,
165 Ill. App.
3d
354,
518 N.E.2d 1354
(4th
Dist.
1988),
citing Chicago TransitAuthority v.
Industrial Comm ‘n,
141
Ill. App. 3d 930,
491
N.E.2d 58
(1986).
IfIllinois EPA wants to change the rule, it must
propose a rulemaking before the Board, allowing the public the notice and comment required by
the law.
Illinois EPA’s interpretation of Section 304.122(a) and (b) also represents an unexplained
change in its position concerning the interpretation and applicability ofthe regulation to Noveon.
21
Under this circumstance,
to the extent Illinois EPA’s interpretation ofa Board rule would
otherwise be entitled to any deference before the Board, this wholly unsupported change in
position makes the Agency’s interpretation unpersuasive.
See Dean Foods
Co.
v. Illinois
Pollution Control Board,
143 Ill.App.3d 322, 492 N.E.2d. 1344 (2d Dist.
1986).
Illinois EPA’s
reading of the rule is simply arbitrary and capricious, and
it lacks any support in the Board’s
opinions adopting 35
Il. Adm.
Code 304.122(a)
and (b).
Absent this support, it cannot stand as a
basis for the ammonia limit in Noveon’s NPDES Permit.
D.
Water Quality Is Not Adversely Affected by Noveon’s Discharge
It is unquestioned that the waterquality in the Illinois River has not been affectedby
Noveon’s discharge.
In fact, Illinois EPA’s witness concerning water quality, Robert Mosher,
testified that the water quality in the entire upper Illinois River, including downstream of
Noveon’s discharge, is better since 1972, notwithstanding Noveon’s discharge:
Q.
You indicated there was better aquatic life as a result ofthe adoption ofthis
standard;
is that correct?
A.
Yes.
Q.
What evidence do you have of that?
A.
Well, the Agency does trend analysis ofwater quality data collected in all rivers
and streams, including the Illinois River.
And there has been a pretty dramatic change in
the water quality.
Ammonia levels have gone down, dissolved oxygen levels have gone
up, fish have repopulated the river.
Q.
Is this downgradient ofthe Henry discharge?
A.
I’m speaking ofthe entire upper Illinois River.
Q.
I’m talking about the discharge from the Henryplant, and has there been a
positive impact downgradient ofthe Henry plant
as a result ofthe adoption ofthis
regulation?
A.
I think I said that the whole upper Illinois River, and I would
include the Henry
area as being in the upper Illinois River.
Q.
So the water quality has improved downgradient ofthe Henry Plant;
is that
correct?
22
A.
You could say that.
Q.
No.
I’m asking you.
You are the witness.
A.
Well, I think Ijust
did say that.
Q.
Fine.
That’s all I want to
know.
So notwithstanding the fact that the Henry plant
has continued to discharge ammonia, the water quality has gotten better?
Is that correct?
A.
That’s correct.
2004Tr. 117-18.
In addition, the purpose ofSection 304.122 was to protect against dissolved oxygen sags
in the Illinois River, based on a study by T.A. Butts, R.L. Evans and others.
2004
Tr. 120-22.
The Board’s own opinion in another case shows that Mr.
Butts and Mr. Evans abandoned the
conclusions ofthese earlier studies and claimed that, based on the relative influence ofthe three
primaryoxygen demand sinks—carbonaceous BOD, nitrogenous BOD, and sediment oxygen
demand—effluent limitations in the ammonia rule were unjustified and severely restrictive.
In
theMatter ofSite Specific Exception to Effluent Standardsfor the Greater Peoria Sanitary
District and Sewage DisposalDistrict,
R87-2 1 (Oct.
6,
1988).
As a party to that proceeding,
Illinois EPA was aware ofall ofthis evidence atthe time it made its permit decision and
formulated a new interpretation ofSection 304.122.
V.
Noveon’s Permit
Should Not Separate Wastestreams into Different Outfalls
Prior to the 1990 NPDES Permit, there was one outfall at the Henry Plant, and physically
there still is.
The 1990 Permit designated two outfalls:
Outfalls 001
and OOlA.
This separation
is not representative of the physical makeup ofNoveon’s discharge orits wastewatertreatment
process and is neither required nor authorized by law; it was apparently done because of
purported dilution ofthe wastewater by pond wastewater.
TheNoveon facility has several different wastewater streams that discharge to the Illinois
River though Outfall 001.
This outfall is a pipe that travels approximately 1,000 yards
23
downstream before turning and going into the Illinois River.
1991
Tr. 87-88.
The flows are part
ofone integrated wastewatertreatment system, all flows receive the Best Degree ofTreatment
(BDT), and the configuration ofthe wastewater treatment system is not intended to effect
dilution of Noveon’s discharge.
Illinois EPA’s separation ofthe outfalls is based on a fundamental misconception about
Noveon’s discharge.
Illinois EPA believes that there is an effluent, the pond water, which is
being discharged past treatment into the outfall structure.
2004
Tr.
133,
134.
This is simply not
correct.
Thepond discharge includes process wastewater (discharges from cooling towers, boilers
and well water treatment), and stonnwater runoff.
The pond water either goes through a filter for
treatment to
remove TSS, and then combines with other treated wastestreams prior to discharge
through
a pipe to the Illinois River, or it becomes an essential component ofwastewater
treatment for other wastestreams by discharge to
thePVC Tank in order to maintain a minimum
operating level in the tank.
A portion ofthe PVC Tank discharge is in turn combined with the
PC Tank discharge to ensure the PC Tank discharge is limited to 23 percent ofcombined
influent
flow to aeration basins in order to provide the BOD removal required to maintain compliance
with
effluent BOD concentrations. Pet. Ex.
16
at 7.
The treatment system is one
integrated
treatment system.
2004 Tr. 97.
Further, Section 304.102 ofthe Board’s regulations allows dilution ifBDT
is being
provided.
When the Board
adopted the dilution rule in 1972, the Board specifically noted that
the rule was not a wholesale prohibition on dilution.
The Board stated that “it is desirable to
require the employment ofreadily available treatment methods to reduce as much as practicable
the total quantities of contaminants discharged to
the waters before resorting to dilution either
24
before or after discharge.”
In the Matter ofEffluent Criteria, In theMatter of Water Quality
Standards, In the Matter of Water Quality Standards Revisionsfor Intrastate Waters,
Opinion at
3-403, R 70-8, R 71-14, R 71-20 (Jan. 6,
1972).
Additionally, recognizing the significant
opposition to
applying the dilution rule in a manner that would
impair engineeringjudgment or
economics, the Board stated that the revised standard left “some room for engineeringjudgment
as to the desirability ofseparating or combining wastestreams for treatment.”
Id.
Where BDT
is being provided, dilution is not objectionable.
Where a permit condition is not necessary to
accomplish the purposes ofthe Act or Board regulations, it is arbitrary and must be deleted from
thepermit.
See Browning-Ferris Industries ofIllinois, Inc.
v. PCB,
179 Ill. App. 3d 598, 534
N.E.2d 616 (2d Dist.
1989).
At the hearing, Mr. Pinneo
conceded in his testimony that if BDT
is in fact being
provided, then no wastestream separation is required.
2004 Tr.
167.
Tim Kiuge, the then-
manager ofthe industrial permit unit in the division ofwater pollution control, testified in this
matter in 1991.
In his testimony, Mr. Kluge agreedthat with the exception of ammonia, which is
at issue in this appeal as well as the pending adjusted standard proceeding,
Noveon is providing
BDT for every parameter it is required to monitor.7
1991 Tr.
130-31.
Noveon’s expert, Houston
Flippin, testified that wastewater treatment at Noveon, which includes pre-treatment, primary
treatment @H adjustment, coagulation and primary clarifier), and secondary treatment (aeration
and secondary clarifier with sludge return), is defined by U.S. EPA as the “Best Available
Technology Economically Available” for purposes ofthe OCPSF
sector, which regulations
At
the hearing in 2004, Mr. Pirmeo attempted to change the prior admission by his then-supervisor, Mr.
Kluge, that Noveonis providing BDT for all parameters except ammonia.
The hearing officer sustained
an objection to Mr. Pinneo’s testimony
in this regard.
Mr. Pinneo’s
attempted change in Illinois EPA’s
position on
BDT is both arbitrary and capricious, and is unexplained and unsupported.
25
govern both Noveon and PolyOne.
Noveon treats the wastewater even further by discharging the
effluent from the secondary clarifier to a filter to remove additional solids, and by filtering the
pond water that is discharged to the PVC Tank.
Pet. Ex.
16, at 8.
Under these circumstances, Illinois EPA has not supported its position requiring
separation ofOutfall 001 into two outfalls.
Requiring separate outfalls is neither authorized nor
required by Board regulations governing dilution and BDT, and this condition should therefore
be deleted from the permit.
VI.
Toxicity Testing Should Not Be Required
Noveon has also appealed Special Condition
6, which would require Noveon to conduct
extensive investigation to determine what is “toxic” in its effluent, and if any ofthose parameters
exist, conduct an investigation to reduce or treat those parameters.
Noveon has already
performed extensive investigation,
and further testing is unwarranted and duplicative.
Illinois EPA agrees that if ammonia does not have a required limit or ammonia relief is
granted by the Board in the pending adjusted standardproceeding, AS
02-5,
there is no need for
toxicity testing.
1991
Tr.
132-33, 141-43.
Noveon believes that this requirement for additional
testing is not necessary in light ofthe fact that Noveon has sought an adjusted standard, water
quality has not been impaired by Noveon’s discharge, and Noveon’s discharge has not and will
not cause any violation ofwater quality standards downstream ofthe plant.
Therefore, Noveon
believes Illinois EPA should be directed to reconsiderthe need for toxicity testing and
biomonitoring in light ofthe decision on the permit appeal orthe pending adjusted standard
proceeding.
26
VII.
Conclusion
Noveon requests the Board to
direct Illinois EPA to rescind the effluent limit for
ammonia placed in the permit by Illinois EPA based on Section
304.122(b) ofthe Board’s rules,
which was promulgated by the Board in
1972 but never previously applied by the Illinois EPA in
any ofNoveon’s prior NPDES permits.
Based on a plain reading ofthe regulation and the
Board’s opinions adopting Section 304.122(a) and (b), Illinois EPA’s interpretation is arbitrary
and capricious and must be rescinded.
Noveon also requests the Board to direct Illinois EPA to
designate the NPDES permitted outfall in accordance with the physical makeup ofNoveon’s
discharge and the Board’s rules as Outfall 001.
Finally, Noveon requests rescission ofthe
condition requiring toxicitytesting
and biomonitoring.
Illinois EPA has conceded that if the
ammonia limit is rescinded or relief is granted in the pending adjusted standard proceeding (AS
02-5),
this condition is not necessary.
Respectfully submitted,
NOVEON, INC.
By:
________
One ofIts Attorneys
Richard J. Kissel
Mark Latham
Sheila H. Deely
GARDNER CARTON & DOUGLAS LLP
191
N. Wacker Dr.
-
Suite 3700
Chicago, IL 60606
CHO2/ 22300278.1
27
CERTIFICATE OF SERVICE
The
undersigned certifies that a copy ofthe foregoing
Notice ofFiling
and
POST-HEARING
MEMORANDUM OF NOVEON, INC.
was filed by hand delivery with the Clerk ofthe
Illinois Pollution Control Board and served upon the parties to whom said Notice is directed by
DorothyM. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
(personal delivery)
Deborah Williams
Assistant Counsel
Divisionof Legal Counsel
IllinoisEnvironmental Protection
Agency
1021 N. Grand Avenue East
Springfield, IL 62794-9276
(first class mail and electronic
delivery)
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100
WestRandolph Street
Suite 11-500
Chicago, IL
60601
(personal delivery)
on Thursday, April
15, 2004.
CHO2I
22306297.1
