ILLINOIS POLLUTION CONTROL BOARD
November 4, 2004
IN THE MATTER OF:
PETITION OF NOVEON, INC. FOR AN
ADJUSTED STANDARD FROM 35 ILL.
ADM. CODE 304.122
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)
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AS 02-5
(Adjusted Standard)
RICHARD J. KISSEL, MARK LATHAM, SHEILA H. DEELY, GARDNER, CARTON &
DOUGLAS, APPPEARED ON BEHALF OF PETITIONER; and
DEBORAH J. WILLIAMS APPEARED ON BEHALF OF THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD (by N.J. Melas):
Noveon, Inc. (Noveon) is a specialty chemicals manufacturer, and requests relief from
the Board’s ammonia nitrogen effluent limits as those limits pertain to Noveon’s discharge of
wastewater into the Illinois River. On May 22, 2002, Noveon filed a petition for an adjusted
standard from 35 Ill. Adm. Code 304.122. Noveon’s facility is located at 1550 County Road,
850 North in Henry, northwestern Marshall County. In the petition, Noveon requested a hearing,
which was held February 17, 18, and 19, 2004. On June 18, 2003, the Illinois Environmental
Protection Agency (Agency) filed a recommendation that the Board deny Noveon’s petition.
This petition relates to Noveon’s National Pollutant Discharge Elimination System
(NPDES) permit appeal recently decided by the Board, docketed as Noveon, Inc. v. IEPA, PCB
91-17. In the permit appeal, Noveon contested a condition imposed by the Agency requiring
Noveon to meet the ammonia effluent limit found at Section 304.122(b) of the Board’s rules. 35
Ill. Adm. Code 304.122(b). Noveon states it filed this petition for an adjusted standard in the
alternative to the NPDES permit appeal. Noveon requested that if the Board determined that the
Agency properly applied Section 304.122(b), the Board grant Noveon an adjusted standard from
that section. Also assuming Section 304.122(b) applies, Noveon requests that the Board grant
Noveon a mixing zone calculated in accordance with federal and state regulations. Pet. at 2.
On September 16, 2004, the Board issued a final opinion and order affirming the
Agency’s issuance of Noveon’s NPDES permit, finding that the Agency properly applied
Section 304.122(b) to Noveon’s effluent.
Based on the record before it, the Board finds that Noveon has provided sufficient
justification for each of the Section 28.1 factors. The Board grants Noveon’s petition for an
adjusted standard from the Board’s ammonia effluent limitation subject to conditions outlined in
this order.
ADJUSTED STANDARD PROCEDURE
2
The Environmental Protection Act (Act) (415 ILCS 5/1
et seq.
(2002)) and Board rules
provide that a petitioner may request, and the Board may grant, an environmental standard that is
different from the generally applicable standard that would otherwise apply to the petitioner and
the regulated community.
See
35 Ill. Adm. Code 104.400(a). This is called an adjusted standard.
The general procedures that govern an adjusted standard proceeding are found at Section 28.1 of
the Act and Part 104, Subpart D of the Board’s procedural rules. 415 ILCS 5/28.1 (2002); 35 Ill.
Adm. Code 104.400
et al
.
The Board rules for the content requirements of the petition and Agency recommendation
are found at Section 104.406 and Section 104.416, respectively. 35 Ill. Adm. Code 104.406,
104.416.
PROCEDURAL BACKGROUND
On May 22, 2002, Noveon filed this petition (Pet.), with the Board for an adjusted
standard from the ammonia effluent limitations. On May 29, 2002, Noveon published notice of
the petition in the
Henry News Republican
, and filed the certificate of publication with the Board
on June 11, 2002. The Agency filed its recommendation (Rec.) that the Board deny Noveon’s
requested relief on June 18, 2003.
On February 17, 2004, Hearing Officer Bradley Halloran conducted a hearing in this
matter at 122 North Prairie Street, Lacon, Marshall County. Six witnesses testified on behalf of
the petitioner: Mr. Michael Corn of AquAeTer, Inc.; Mr. Houston Flippin, consultant from the
firm of Brown and Caldwell; and Mr. William Goodfellow of AE Engineering; Ms. Linda Shaw,
an employee of Noveon, and Mr. Guy Davids, a recent plant manager at the Henry facility. Mr.
Robert Mosher and Mr. Richard Pinneo testified on behalf of the respondent. Hearing Officer
Halloran found all witnesses credible.
At hearing, Noveon renewed a motion to enter the transcript of a related matter, a permit
appeal filed by Noveon docketed as PCB 91-17, into the record. In the alternative, Noveon
moved to enter the testimony of the witnesses from PCB 91-17 into this record.
1
2004 Tr. at 15.
The Board has received six written public comments regarding Noveon’s request for
relief. Mr. Doug Hermann presented an oral public comment at hearing on behalf of Illinois
River Holdings (IRH), and later filed the section of the hearing transcript containing his oral
comment with the Board. Mr. Hermann stated that IRH is concerned about aquatic toxicity
problems caused by Noveon in the IRH property, located 500 feet downstream of the existing
Noveon diffuser. Mr. Hermann stated that IRH is planning a port development on the Illinois
River that will ship sand and gravel as well as various other commodities. 2004 Tr. at 501. Mr.
Brian Maubach and Mr. John Maubach, both landowners in Henry, submitted the second and
third public comments, respectively, in opposition of the adjusted standard. The fourth public
comment was submitted by Mr. Thomas Wilkinson, who is in favor of the adjusted standard.
Mr. Wilkinson stated he worked at the plant as a pipefitter and mechanical contractor for 32
1
The Board cites to the transcript of the hearings held in this matter from February 17, 2004
through February 19, 2004, collectively, as “2004 Tr. at __.”
3
years and believes that the Noveon employees are environmentally responsible. Mr. Thomas
Newby, the Henry Plant Controller, submitted the fifth public comment in favor of the adjusted
standard. Finally, the sixth public comment, favoring the adjusted standard, was filed by Mr.
Stephen Saunders, engineer and Operations Manager at the Henry Plant.
In addition, Mr. Richard Janssen, a former B.F. Goodrich employee from 1970 to 1997,
gave an oral public comment at hearing opposing the adjusted standard. Mr. Janssen stated that
in his opinion, B.F. Goodrich became progressively more concerned about increasing production
than treating wastewater at the Henry Plant in the 1980s. 2004 Tr. at 257-58.
Noveon filed a post-hearing reply memorandum on April 29, 2004 (Nov. Memo). On
June 1, 2004, the Agency also filed a post-hearing memorandum (Ag. Memo). Noveon replied
on July 14, 2004 (Nov. Reply).
As discussed above, on September 16, 2004, the Board issued a final opinion and order in
a related matter, PCB 91-17, affirming the Agency’s issuance of Noveon’s NPDES permit.
Included in Noveon’s permit is Condition 4, which limits Noveon’s ammonia effluent in
accordance with Section 304.122(b) of the Board’s effluent limits.
PRELIMINARY MATTER
Before hearing, Noveon moved the Board to incorporate the entire transcript of hearings
and exhibits in the related permit appeal, PCB 91-17, into this record. The Agency objected to
Noveon’s motion and Hearing Officer Halloran denied the motion. At hearing, Noveon renewed
its motion to incorporate the transcript, and submitted a redacted version of the transcript of 1991
hearings, removing material that Noveon believed was unrelated to the application of Section
304.122 to Noveon. Noveon argued that the testimony from the 1990 permit appeal hearing
regarding ammonia nitrogen would help the Board in deciding this matter. 2004 Tr. at 324. The
Agency objected to the motion stating that the motion was untimely and that the material
submitted would not aid the Board in making its decision. 2004 Tr. at 325. The Agency notes
that while Noveon claims it removed the unrelated material from the 1991 transcript, the material
submitted and accepted as an offer of proof contains 131 pages of the 160 total pages of the
transcript and all of the exhibits. 2004 Tr. at 324.
Hearing Officer Halloran denied Noveon’s renewed motion, but stated he would accept
the transcript as an offer of proof. 2004 Tr. at 326. At the end of hearing, Noveon submitted the
entire
transcript, including the 2004 hearing testimony, and it was accepted as an offer of proof.
2004 Tr. at 508-09; 2004 Tr. Exh. 38.
In its post-hearing memorandum, Noveon moves the Board to overturn the ruling by
hearing officer Halloran. According to Noveon, Section 101.306(a) sets forth a lenient standard
for incorporating a transcript from another Board proceeding into the record of another
proceeding. 35 Ill. Adm. Code 101.306(a). Noveon further argues that the burden is more
stringent in an NPDES permit appeal than for an adjusted standard, so therefore, the Agency can
claim no prejudice from incorporating the transcripts from PCB 91-17 into this proceeding. Ag.
Memo at 12.
4
The Agency opposes Noveon’s motion, contending that portions of the testimony are not
relevant and other portions were based on information not available at the time Noveon’s
NPDES permit was issued. Ag. Memo at 12. For these reasons, the Agency urges the Board to
affirm the hearing officer’s ruling. Ag. Memo at 13.
The Board reverses Hearing Officer Halloran’s ruling and accepts the transcript in PCB
91-17 as evidence. The Board finds that much of the transcript in PCB 91-17 is relevant because
at issue in both the permit appeal and adjusted standard are the same facility, discharge,
ammonia effluent limits, and NPDES permit. Accordingly, the Board accepts the offer of proof,
Hearing Exhibit 38, as evidence in this adjusted standard proceeding.
2
FACTUAL BACKGROUND
The Facility
The Noveon Henry Plant is located on the West Branch of the Illinois River north of the
City of Henry, at 1550 County Road, 850 N. in Northwestern Marshall County. Until 1993, the
facility was owned and operated by B.F. Goodrich. Pet. at 9. When the NPDES permit was
issued, the Henry Plant had two manufacturing units: (1) a specialty chemicals manufacturing
unit, which began manufacturing rubber chemicals in 1958; and (2) a polyvinyl chloride (PVC)
resins unit that began operating in 1965. The resins unit, divested in 1993, is now known as
PolyOne Corporation, and the specialty chemicals unit, sold in February 2001, became Noveon,
Inc.
Id
. At the specialty chemicals unit, Noveon produces two general kinds of products: (1)
rubber accelerators that are used in the vulcanizing process of the tire-curing process for the tire
industry; and (2) plastic and rubber antioxidants, which are additives used to prevent the
degradation of the material from light and heat in products such as rubber baby bottle nipples.
The Henry Plant is classified as industrial and currently employs 75 people. 2004 Tr. at 22.
Wastewater Treatment
Noveon operates the wastewater treatment facilities for both Noveon and PolyOne. Ag.
Memo. at 3. The facility treats discharges from production processes, the cooling tower, boiler
blowdown, and well water treatment, as well as stormwater. Ag. Memo at 4. The combined
process and non-process water discharged per day from the two facilities is approximately
800,000 gallons. Pet. at 9.
Noveon treats wastewater in several steps. The first step involves equalization of all
influent wastewaters. Pet. at 12; Nov. Memo at 5. All wastewaters from Noveon, excluding
those from rubber accelerator (Cure-Rite 18 or C-18) manufacturing, discharge directly into
equalization tank (PC Tank). The wastewater from C-18 manufacturing is pretreated prior to
discharge into a separate equalization tank (C18 Tank). Similarly, all wastewaters from PolyOne
production areas, except for waste stream from 213 manufacturing, discharge into an
equalization tank (PVC Tank).
Id
. Wastewater from 213 manufacturing is pretreated prior to
2
The Board cites to the transcript of hearings held in the permit appeal, PCB 91-17, held on
November 19, 1991 and December 10, 1991, collectively, as “1991 Tr. at __.”
5
discharge into the same equalization tank. The PolyOne equalization tank also receives
backwash water from sand filter, filtrate from sludge dewatering, and, potentially primary sludge
from primary clarifier.
Id
. at 5-6; 2004 Tr. at 36, 37. The wastewater from all equalization tanks
is combined in a pH adjustment tank prior to primary treatment. In addition to these
wastestreams, the non-process wastewater, including non-contact cooling water, stormwater,
water from the boilerhouse demineralizer and water treatment works is discharged to a holding
tank. The non-process water is then either sent to primary treatment or pumped directly to sand
filter to remove solids prior to discharge through the outfall.
Primary treatment involves the removal of settleable solids from the combined pH
adjusted wastewater. The combined wastewater is sent to primary clarifier after adding
coagulant and polymer. The solids removed during primary treatment are dewatered and sent to
a landfill. The wastewater from the primary clarifier is pumped to the four aeration basins for
secondary activated sludge treatment, which involves the removal organic compounds. The
effluent from the secondary clarifier is sent through a sand filter prior to discharge through the
outfall. This final treatment step is termed as tertiary treatment. Nov. Memo at 5; Pet. Exh. 7, at
5, 6.
Discharge from the City of Henry’s publicly owned treatment works combines with
Noveon’s effluent and is discharged through Noveon’s outfall into the Illinois River pursuant to
NPDES Permit No. IL0001392. Pet. at 14. Noveon’s outfall (Outfall 001) is located between
mile 198 and 199 on the Illinois River. Ag. Memo at 5. The effluent is discharged through an
18-inch, single-port submerged diffuser into the main channel of the Illinois River. Noveon
states that the Henry Plant sits on a bluff, 80-90 feet above the Illinois River. Nov. Memo at 9;
2004 Tr. at 189. As a result, Noveon asserts the discharge enters the river with a velocity that
causes rapid and immediate mixing. Pet. at 14.
Modifications
Noveon’s wastewater treatment plant was upgraded in 1987 by adding two above ground
biotreators, two above ground equalization tanks, and a tertiary filtration system. Pet. at 10.
Noveon states it added a third biotreator in 1989 and a fourth in 1998.
Id
. In 1997, Noveon
increased aeration tank capacity by 100 percent, or one million gallons, to accommodate
expanded production. 2004 Tr. at 57. Noveon states it has attempted to reduce ammonia in its
discharge through both source reduction and end-of-pipe discharge controls. 2004 Tr. at 41.
In 2000, Noveon modified the east biotreator by converting it to a temporary air stripper
using its normal air diffusion system and also by the installation of a floating aerator in the
Noveon waste tank or the PC tank. 2004 Tr. at 40.
Ammonia Discharge
PolyOne discharges a small amount of ammonia into the wastewater system in the form
of ammonium laurate, a dispersing agent. Nov. Memo at 6. Noveon’s manufacturing processes
do not discharge any significant ammonia nitrogen directly to the wastewater treatment system.
Pet. at 15. However, Noveon processes discharge organic nitrogen compounds tertiary butyl
6
amine, mercaptobenzothiazole (MBT) and morpholine. Nov. Memo at 6. Noveon has
determined that ammonia is generated by the degradation of organic nitrogen compounds in the
activated sludge treatment process. Nov. Memo at 8. Further, a significant amount of ammonia
nitrogen released during the wastewater treatment process remains in the effluent because
ammonia is not nitrified during the treatment process. According to Noveon, although the Henry
Plant is constructed similarly to municipal wastewater treatment plants to nitrify ammonia, the
plant does not achieve nitrification. Nov. Memo at 6-7.
The parties agree that nitrification does not occur at the Henry Plant for several reasons,
including: the inhibition of growth of nitrifying bacteria by specific inhibitory compounds in
Noveon’s wastestream (2004 Tr. at 448), insufficient oxygen due to poor oxygen transfer rates,
and the need for additional alkalinity to be chemically added (2004 Tr. at 433, 447).
The parties agree that Noveon’s discharge of ammonia nitrogen to the Illinois River
exceeds 100 pounds per day. 2004 Tr. Exh. 38 at 68. Noveon’s 1981 NPDES permit application
indicated that the facility’s maximum daily discharge of ammonia nitrogen was 34 milligrams
per liter (mg/L). 2004 Tr. Exh. 38, Exh. 3, 4. Then in 1989, Noveon’s permit application
indicated a maximum daily discharge of 230 mg/L ammonia, or 1,933 lbs/day, in the effluent.
2004 Tr. Exh. 38, Exh. 6, V-1. Noveon’s renewed NPDES permit, issued by the Agency on
December 28, 1990, indicated that the facility discharged approximately 80 to 120 mg/L
ammonia. 2004 Tr. Exh. 38; Exh. 9. In a memo regarding ammonia-nitrogen treatment
alternatives at the Henry Plant, Mr. Houston Flippin estimated the average ammonia effluent
value at 909 lbs/day, derived from wastestream data gathered in 1995 and effluent data gathered
in 1999 through 2000. Pet. Exh. 7.
STANDARD OF REVIEW/ BURDEN OF PROOF
The regulation of general applicability at 35 Ill. Adm. Code 215.301 does not specify a
level of justification for an adjusted standard. Pet. at 11; Rec. at 7. Therefore, pursuant to
Section 28.1(c) of the Act, the burden of proof is on the petitioner to demonstrate that:
1. Factors relating to that petitioner are substantially and significantly
different from the factors relied upon by the Board in adopting the general
regulation applicable to that petitioner;
2. The existence of those factors justifies an adjusted standard;
3. The requested standard will not result in environmental or health effects
substantially and significantly more adverse than the effects considered by
the Board in adopting the rule of general applicability; and
4. The adjusted standard is consistent with any applicable federal law. 415
ILCS 5/28.1(c) (2002); 35 Ill. Adm. Code 104.426(a).
The burden of proof in an adjusted standard proceeding is on the petitioner. 35 Ill. Adm.
Code 104.426. Noveon must also justify its request pursuant to the requirements of Section
7
27(a) of the Act.
Id
.; 415 ILCS 5/28.1(a) (2002). Under
Section 27(a), the Board considers the
existing physical conditions, the character of the surrounding area including the nature of the
receiving body of water, and “the technical feasibility and economic reasonableness of
measuring or reducing the particular type of pollution.” 415 ILCS 5/27(a) (2002).
CURRENT APPLICABLE STANDARDS
Section 301.345 defines population equivalent as:
“Population Equivalent” is a term used to evaluate the impact of industrial or other waste
on a treatment works or stream. One population equivalent is 100 gallons (380 l) of
sewage per day, containing 0.17 pounds (77 g) of BOD5 (five day biochemical oxygen
demand) and 0.20 pounds (91 g) of suspended solids. The impact on a treatment works is
evaluated as the equivalent of the three highest parameters. Impact on a stream is the
higher of the BOD5 and suspended solids parameters.
Section 304.122 of the Board’s effluent standards for ammonia nitrogen provides:
a) No effluent from any source which discharges to the Illinois River, the Des
Plaines River downstream of its confluence with the Chicago River System or the
Calumet River System, and whose untreated waste load is 50,000 or more
population equivalents shall contain more than 2.5 mg/L of total ammonia
nitrogen as N during the months of April through October, or 4 mg/L at other
times.
b) Sources discharging to any of the 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 of more 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) of this
Section, all sources are subject to Section 304.105.
NOVEON’S PROPOSED ADJUSTED STANDARD
In the petition, Noveon proposed the following three alternatives of adjusted standard
language for adoption by the Board:
Alternative #1
Noveon, Inc. (“Noveon”) is hereby granted an adjusted standard from 35 Ill.
Adm. Code 304.122. Pursuant to this adjusted standard, 35 Ill. Adm Code
304.122 shall not apply to the discharge of effluent into the Illinois River from the
Noveon plant located at 1550 County Road, 850 N., in Henry, Illinois as regards
8
ammonia nitrogen. The granting of this adjusted standard is contingent upon the
following conditions:
A. Noveon shall not discharge calculated un-ionized ammonia at
concentrations greater than 3.5 mg/l during the months of April through
October and 7.9 mg/l during the months of November through March from
its Henry, Illinois plant into the Illinois River.
B. Discharge into the Illinois River shall occur through a diffuser that is at
least 15 ft. in length, with 9 two-inch ports, angled at 60 degrees from
horizontal, co-flowing with the river, designed to achieve an effluent
dispersion of 43:1.
Alternative #2
Noveon, Inc. (“Noveon”) is hereby granted an adjusted standard from 35 Ill.
Adm. Code 304.122. Pursuant to this adjusted standard, 35 Ill. Adm Code
304.122 shall not apply to the discharge of effluent into the Illinois River from the
Noveon plant located at 1550 County Road, 850 N., in Henry, Illinois as regards
ammonia nitrogen. The granting of this adjusted standard is contingent upon the
following conditions:
A. The water quality standards will be met by Noveon Henry plant limiting
its total ammonia nitrogen discharge to 1200 pounds per day during the
months of April through October and 1735 pounds per day during the
months of November through March.
B. Discharge into the Illinois River shall occur through a diffuser that is at
least 15 ft. in length, with 9 two-inch ports, angled at 60 degrees from
horizontal, co-flowing with the river, designed to achieve an effluent
dispersion of 43:1.
Alternative #3
Noveon, Inc. (“Noveon”) is hereby granted an adjusted standard from 35 Ill.
Adm. Code 304.122. Pursuant to this adjusted standard, 35 Ill. Adm. Code
304.122 shall not apply to the discharge of effluent into the Illinois River from the
Noveon plant located at 1550 County Road, 850 N., in Henry, Illinois as regards
ammonia nitrogen. The granting of this adjusted standard is contingent upon the
following conditions:
A. Noveon shall not discharge calculated total ammonia nitrogen at
concentrations greater than 155 mg/l during the months of April through
October and 225 mg/l during the months of November through March
from its Henry, Illinois plant into the Illinois River.
9
B. Discharge into the Illinois River shall occur through a diffuser that is at
least 15 ft. in length, with 9 two-inch ports, angled at 60 degrees from
horizontal, co-flowing with the river, designed to achieve an effluent
dispersion of 43:1.
However, in its April 29, 2004 closing brief, Noveon withdraws proposed alternatives 1
and 2, and instead seeks a daily maximum limit for ammonia of 225 mg/L by modifying its
proposed alternative 3. Nov. Memo at 42. Noveon explains that an Agency memo conceding
that with using the multi-port diffuser Noveon’s daily limits would approximate 237.2 mg/L
during the summer and 398 mg/L during the winter.
Id
.; Pet. Exh. 37. The following is
Noveon’s amended proposed language:
Noveon, Inc. (“Noveon”) is hereby granted an adjusted standard from 35 Ill.
Adm. Code 304.122. Pursuant to this adjusted standard, 35 Ill. Adm Code
304.122 shall not apply to the discharge of effluent into the Illinois River from the
Noveon plant located at 1550 County Road, 850 N., in Henry, Illinois as regards
ammonia nitrogen. The granting of this adjusted standard is contingent upon the
following conditions:
A. Noveon shall not discharge total ammonia nitrogen at concentrations
greater than 225 mg/L from its Henry, Illinois plant in the Illinois River.
B. Discharge into the Illinois River shall occur though a diffuser that it at
least 15 ft. in length, with 9 two-inch ports angled at 60 degrees from
horizontal, co-flowing with the river, designed to achieve an effluent
dispersion of 43:1.
Agency Response to Noveon’s Proposed Alternatives
The Agency argues that if the Board grants Noveon’s requested relief, the adjustment
should not include relief from Section 304.122(c). Subsection (c) requires compliance with the
Board’s water quality standards. The Agency contends that Noveon has provided no justification
for relief from that section. Ag. Memo at 9.
The Agency also states that Noveon’s request for a Board determination that the
ammonia water quality standards will be met with the zone of initial dilution (ZID) and mixing
zone as calculated by Noveon is “inappropriate, unnecessary, and possible an attempt to gain
relief from the water quality standard into the future without requesting or justifying such relief
directly.” Ag. Memo at 10.
In assessing the four alternatives of adjusted standard language, the Agency states
it cannot support Noveon’s request for an even higher limit in the summer months than
originally requested at this late date. Ag. Memo at 10-11.
EFFORTS TO ACHIEVE COMPLIANCE AND ALTERNATIVES
10
Noveon states that it hired consultant Brown and Caldwell, f/k/a/ Eckenfelder Inc.,
beginning in the late 1980s to investigate whether the Henry Plant could nitrify, or oxidize
ammonia to nitrates. Pet. at 16. Noveon asserts that two different studies demonstrated that the
Henry Plant could not achieve single-stage nitrification under existing waste loads and optimum
conditions.
Id
. The reason was due to inhibition of nitrifying bacteria by the PC tank and C-18
tank content flows.
Noveon investigated various other technologies that would help it control and/or reduce
ammonia in its discharge, including: (1) reducing ammonia-nitrogen in various processes; (2)
pretreating the wastestream; and (3) post-treating the wastestream. Pet. at 16-17. In sum,
Noveon indicates that it investigated eleven potential treatment alternatives, but investigations
proved that no alternative is both technically feasible and economically feasible that would bring
the Henry Plant into compliance with the ammonia-nitrogen limits. Pet. at 24; Nov. Memo at 13.
Reducing Organic Nitrogen in Production
Noveon asserts that it investigated whether it could eliminate amines or recover and
recycle the precursors to ammonia in its production processes. Pet. at 17. Noveon concluded it
could not eliminate amines since they are an essential element to many of its production
processes.
Id
.
Noveon contends that the recycle and reuse alternative was also rejected because the
recycled material was of inferior quality and would not guarantee a high quality product.
Further, Noveon explains that the material generated in the recycling process would be classified
as a hazardous waste. Noveon notes that amines are recovered from some processes at the Henry
Plant where recovery methods produce reusable materials and are not cost prohibitive. Pet. at
17. However, Noveon did not indicate how much is reused or in which processes.
Pretreatment of the Wastestream
Noveon investigated several pretreatment options, including norpholine recovery, TBA
recovery and a liquid extraction process. Noveon states that none of the pretreatment options
would bring Noveon into compliance with the ammonia effluent standard. Pet. at 17. Noveon
added that these alternatives also raised plant personnel safety issues. Pet. at 18.
Post-treatment of the Wastestream
After analyzing the alternatives discussed above Brown and Caldwell, investigated six
post-treatment alternatives for Noveon. The post-treatment alternatives include the following:
(1) alkaline air stripping; (2) struvite precipitation from the combined wastestream influent; (3)
effluent breakpoint chlorination; (4) single-stage biological nitrification of non-PC wastestream
combined with separate biological treatment of the PC tank discharge; (5) biological nitrification
of combined influent wastestream; and (6) ion exchange treatment of final effluent. Pet. at 18.
Present costs were estimated for each including capital and operating and management costs.
After its initial evaluation, Brown and Caldwell further investigated ozonation, tertiary
nitrification, and activated carbon. In addition to providing present worth costs of each of the
11
full-scale operations, Brown and Caldwell also looked at increments of removal and the
associated costs. Brown and Caldwell concluded that the same reliability ratings and pros and
cons would apply. Tr. 2004 at 497-98; citing Exh. 12.
Alkaline Air Stripping
This process requires increasing the pH of a wastewater stream and then removing the
resulting ammonia gas. Noveon attempted air stripping at three different points: (1) within the
PC tank; (2) within the PVC tank; and (3) at the secondary clarifier effluent. Pet. at 18; citing
Pet. Exh. 6 at 2-1 to 2-2.
The test results, stated Noveon, showed that air stripping would result in some ammonia
reduction. However, the level of ammonia reduction was low, meaning that air stripping in both
the PC tank and PVC tank would not reduce ammonia enough to meet the effluent limitation of
Section 304.122(b). Further, Noveon stated the present worth capital and operation and
maintenance costs totaled $2.3 million for PC tank treatment and $14.1 million for PVC tank
treatment. Pet. at 19-20.
In the secondary clarifier, Noveon states ammonia removal surpassed 95% using packed
tower air stripping technology. Pet. at 20. The disadvantages of this technology is that it would
increase total dissolved solids (TDS) by more than 20%, which could lead to aquatic toxicity of
the effluent, as well as high costs of installation, operation, and maintenance. Noveon calculated
the present worth of this technology at $14 million. Pet. at 20; Pet. Exh. 7 at pp. 2-3. Noveon
explains that the costs of this alterantive are so high because additional equipment is required to
remove ammonia from the gases produced. Pet. at 20.
Struvite Precipitation
This alternative reduces ammonia by precipitating a struvite from the combined
wastestreams of Noveon and PolyOne. Pet. at 20; citing Pet. Exh. 6 at 2-2 to 2-4. This
alternative, states Noveon, would only reduce the average final effluent ammonia level by 24%,
while at the same time increasing TDS in the effluent. Noveon estimates the present worth cost
at $5.1 million. Pet. at 20-21.
Effluent Breakpoint Chlorination
Brown and Caldwell also tried adding chlorine gas together with caustic soda to the
secondary clarifier wastewater in a reaction tank in order to maintain a higher pH (approximately
6.9). Pet. at 21. This alternative could cause the discharge to meet the ammonia effluent limits.
Pet. at 21; Exh. 6 at 3-4. The problem with this alternative, states Noveon, is that its present
worth cost is $9.7 million, making it economically unreasonable to employ at the Henry Plant.
As with some of the other alternatives discussed, Noveon notes that this alternative will also
dramatically increase effluent TDS and may likely result in the formation of chlorinated organics
in the effluent.
Id
.
Single-stage Biological Nitrification of Non-PC Wastewater
12
Noveon states that the consultant’s results showed that this alternative reduced ammonia
by only 47% and had a present worth cost of $4.9 million. As a result, Noveon determined that
this alternative was not technically feasible. Pet. at 22.
Biological Nitrification of Combined Wastewater
This alternative employed pH reduction to two of the PC tank discharges, then the
addition of river water and combined single-stage nitrification with non-PC wastestreams. The
results of the analysis by Noveon’s consultant showed that this alternative is technically feasible,
but that it would not allow Noveon to reliably achieve compliance. Pet. at 22. Noveon explains
that biological nitrification of the combined wastewater stream is unreliable because it is
sensitive to the variable characteristics inherent in the wastewater produced by the different
batch processes.
Id
. Further, Noveon states this is an exceptionally costly alternative, estimating
the present worth cost at $11.7 million. Pet. at 22; citing Pet. Exh. 7 at pp. 2-3.
Ion Exchange
Brown and Caldwell also researched an ion exchange resin, using clinoptilolite, an
ammonia selective exchange resin, to treat the secondary clarifier effluent. Pet. at 22. The test
results showed that 50 pounds (lbs.) of clinoptilolite would be required to remove each pound of
ammonia, but that this alternative could meet the ammonia effluent standard. Noveon’s
consultant concluded that the poor removal efficiency was due to competing ions in the effluent.
Pet. at 22; citing Pet. Exh. 6 at 3-4. The present worth cost of this alternative, determined
Noveon, was $5.1 million. Pet. at 23.
Ozonation
Ozonation was evaluated as an alternative that could meet compliance but was rejected
due to its present worth cost of $20.3 million. Pet. at 23. Further disadvantages would be a
significant increase in the TDS effluent concentration, and an increase in effluent BOD,
potentially causing violations of BOD effluent limits.
Id
.
Tertiary Nitrification
Tertiary nitrification involves pumping the effluent through an aeration basin containing
a fixed filter that nitrifying bacteria grows on. Brown and Caldwell determined that this process
was technically feasible, but lacked reliability for the same reasons that biological nitrification of
the combined wastewater lacked reliability. Pet. at 23. The present worth costs were estimated
at $11.4 million.
Id
.
Powdered/Granulated Activated Carbon
At hearing, Mr. Flippin testified that Noveon considered powdered and granulated
activated carbon (GAC) as ammonia treatment alternatives, but determined that both would be
infeasible. Mr. Flippin stated that Noveon’s discharge would require a dose of 5,000 mg/L of
13
powdered activated carbon. A dose proportional to the actual flow would total approximately 17
tons a day of carbon. Mr. Flippin stated that GAC is about twice as efficient, but would still
require as much as eight and a half tons per day, or approximately 119,000 tons of the material
per week. 2004 Tr. at 490-91. Implementation of this alternative would require additional
treatment such as a solids separation step or a polymer addition. Two additional problems that
arise from using GAC as an alternative are scaling, resulting from too much salt, and biofouling
from lime and biomass as a result of too much BOD. 2004 Tr. at 492.
Agency Response
While conceding that some of the alternatives are quite expensive, the Agency contends
that evidence in the record clearly shows that there are technically feasible alternatives available
for the treatment of ammonia at Noveon’s facility. Ag. Memo at 17-18. Regarding Noveon’s
assertion that it will replace the current single-port diffuser with a multi-port diffuser, the
Agency clarifies that the change is necessary in order to bring Noveon into compliance with the
water quality standards, not a form of treatment to reduce its ammonia discharge. Ag. Memo at
18. After reviewing the treatment alternatives that Noveon presented, the Agency concluded that
the capital costs presented by Noveon are not economically unreasonable based on the large
quantity of ammonia that would be removed from the discharge.
Id
. at 20. There exist
treatments, argues the Agency, that could allow the Henry Plant to achieve at least partial
compliance with 304.122(b) for an economically reasonable cost. However, the Agency notes,
“it is not the role of the Illinois EPA or the Board to select Noveon’s treatment system.”
Id
. at
22.
The Agency argues that Noveon should propose to reduce ammonia in its effluent to
levels that would achieve the greatest reductions while still being economically reasonable in
order to minimize the environmental impact from the discharge of ammonia. Instead, the
Agency asserts, Noveon is taking an all or nothing approach. Ag. Memo at 24. The Agency
claims that Noveon is not willing to implement any of the alternatives that it investigated,
claiming that none are economically reasonable and technically feasible.
Id
.
SUBSTANTIALLY DIFFERENT FACTORS
Noveon contends that the factors relied on by the Board in promulgating Section 304.122
were substantially different than those that currently apply to the Noveon Henry Plant. Noveon
states Section 304.122 (a) and (b) were motivated by both the available technology to treat
ammonia and the desire to address the dissolved oxygen demand in the Illinois River. Pet. at 28;
citing Water Quality Standards Revisions, R72-4 (Nov. 8, 1973).
Noveon concedes that technology to help Noveon meet the ammonia limit of Section
304.122(b) is available, but that no alternative is both technologically feasible and economically
reasonable. Specifically, Noveon discusses three factors that make it difficult for Noveon to
comply with the ammonia nitrogen limit. Nov. Memo at 11. First, Noveon states “[t]hrough no
absence of equipment or flaw in design, the wastewater treatment facility simply does not
perform the treatment that it would absent influent bio-inhibiting compounds.” Nov. Memo at
21. Noveon explains that it uses a compound in production that prevents nitrification: MBT.
14
Noveon states that as a result, its waste stream requires pretreatment to remove bio-inhibiting
compounds so the treatment process can adequately remove BOD. Nov. Memo at 11. The
reduced nitrification, states Noveon, also requires Noveon to add alkalinity, in contrast to a
POTW, where most of the alkalinity required for nitrification is already found in the wastewater.
Second, Noveon claims that its waste stream contains compounds that reduce its oxygen
transfer capacity to approximately half of what a POTW experiences, requiring Noveon to
provide twice the amount of aeration to satisfy the same oxygen demand of its wastewater.
Id
.
Third, Noveon claims that another primary toxicant in its effluent is salt.
Id
. Noveon continues
that because all treatment processes for removing significant amounts of ammonia nitrogen
require the addition or release of salt, ammonia nitrogen removal would increase levels of this
toxicant.
Noveon also contends that since the promulgation of Section 304.122, the technical
justification for removing ammonia nitrogen has changed. According to Noveon, it has since
been determined that the dissolved oxygen sags were caused by sediment oxygen demand rather
by the discharge of ammonia nitrogen as previously thought. Pet. at 29. Noveon asserts that the
ammonia Noveon discharges has a minimal impact upon the level of dissolved oxygen in the
Illinois River. For these reasons, Noveon argues that the factors the Board relied upon in
promulgating 304.122(b) are significantly different than those that currently apply to the Noveon
Henry Plant.
Agency Response
The Agency disagrees with Noveon’s contention that the technological factors or cost of
reducing ammonia are substantially different than what was contemplated by the Board in
promulgating the ammonia nitrogen limit. Ag. Memo at 32. The Agency asserts that while
some factors make Noveon’s discharge more difficult to treat for ammonia than many other
industries, those distinctions do not justify the requested relief. The requested relief would grant
Noveon an effluent ammonia concentration limit of 75 times that contained in the rule of general
applicability. Ag. Memo at 34.
ADJUSTED STANDARD JUSTIFICATION
Noveon contends the primary factor that justifies its requested relief is economic
reasonableness. Pet. at 29. Noveon asserts that the current ammonia standard was adopted based
upon balancing potential adverse impact on dissolved oxygen against the cost and ease of
reducing ammonia.
Id
. According to Noveon, economic reasonableness weighs in its favor.
Noveon argues that the high cost of technically feasible control technology and minimal
environmental benefit that such technology would provide warrants the requested relief
. Id
.
IMPACT ON THE ENVIRONMENT
Noveon argues that granting the requested relief will not result in any adverse
environmental impact. Pet. at 25. Noveon contends the Board’s basis for adopting the
ammonia-nitrogen limitations was that larger dischargers were contributing to dissolved oxygen
15
sags. However, Noveon contends that rationale was refuted when researchers discovered that
dissolved oxygen sags occurred because of three primary oxygen demand sinks instead:
carbonaceous BOD, nitrogenous BOD, and sediment oxygen demand. Pet. at 26; Nov. Memo at
31; citing Site Specific Exception to Effluent Standards from the Greater Peoria Sanitary District
and Sewage Disposal District, R87-21 (Oct.6, 1988). Noveon argues that the two most important
criteria the Board should consider are: (1) whether Noveon is contributing to the limitation or
reducing dissolved oxygen of the Illinois River; or (2) whether Noveon is contributing to the
Board’s water quality standards regarding aquatic toxicity. 2004 Tr. at 12.
Noveon’s expert, Mr. Corn, ran a wasteload allocation model with Noveon’s organic
loadings and high ammonia loadings, both oxygen-depleting substances. Nov. Memo at 32.
According to Noveon, the results showed that during critical periods of low flow and high
temperatures, the DO concentration downstream from the Noveon discharge (7.5 mg/L) meets
the existing standards for DO (5 mg/L). Nov. Memo at 32; 35 Ill. Adm. Code 302.206. Noveon
therefore concludes that the discharge does not adversely impact DO levels downstream of its
discharge.
Regarding impact on aquatic life from the discharge, Noveon maintains there is none.
Noveon asserts that Agency testimony that the entire upper Illinois River has improved
notwithstanding Noveon’s discharge supports this conclusion. Nov. Memo at 34; citing 1991 Tr.
at 117-18.
As part of its requested relief, Noveon also requests a mixing zone designation in the
Illinois River. According to Noveon, the mixing zone and zone of initial dilution are critical
aspects of the relief that Noveon requests. Noveon asserts that Section 302.102 governs allowed
mixing, mixing zones and zones of initial dilution and that Noveon’s proposal will meet each of
the 12 requirements set forth in Section 302.102(b). 35 Ill. Adm. Code 302.102. Accordingly,
Noveon contends that its requested adjusted standard will not adversely impact the environment
or human health.
Noveon states that if it is granted the requested relief, it will install a multi-port diffuser.
Nov. Memo at 36. Noveon defines the multi-port diffuser as “an engineered structure that
enhances the mixing of an effluent into a receiving stream.”
Id
. Noveon asserts a multi-port
diffuser could achieve a dispersion rate of 43:1, as compared to 13:2:1 for the single-port
diffuser.
Id
.
Agency Response
The Agency contests Noveon’s assertion that the requested relief will have no adverse
environmental impacts. Ag. Memo at 25. The Agency points to its own testimony that
Noveon’s effluent is the single most toxic remaining discharge to the waters of the State of
Illinois. Ag. Memo at 25-26; citing 2004 Tr. at 350. The Agency asserts that Noveon has
performed no in-stream studies looking at the actual impact of its discharge on the aquatic life
downstream from its discharge, but nevertheless concluded there would be no adverse impact.
Ag. Memo at 26.
16
The Agency also disputes Noveon’s contention that the requested relief would have no
measurable impact on the environment or human health. Ag. Memo at 34. The Agency notes
that the Henry Plant is still not currently able to meet water quality standards for ammonia at the
edge of a mixing zone or ZID. Ag. Memo at 35. The Agency maintains that Noveon has not
proposed to reduce the amount of ammonia in its discharge by any amount. Accordingly, the
Agency argues that Noveon has not justified the requested relief and must continue to ask the
board to deny Noveon’s request.
Id
.
Regarding Noveon’s requested mixing zone, the Agency states that under Section
304.102 of the Board’s regulations, Noveon must show that it is providing the best degree of
treatment (BDT). Section 304.102 also prohibits using dilution to meet effluent standards. Ag.
Memo at 27. The Agency asserts this Section is relevant to the discussion of a mixing zone
because it has consistently claimed that Noveon is not providing BDT for ammonia. Further, the
Agency states that it never applied a mixing zone to Noveon’s discharge because the Agency’s
program post-dates Noveon’s most recently issued NPDES permit. Ag. Memo at 29. However,
the Agency and Noveon agree that with the adjusted standard relief and a multi-port diffuser,
Noveon would have an adequate mixing zone to achieve water quality standards.
Id
.
CONSISTENCY WITH FEDERAL LAW
Both the Agency and Noveon agree that the requested relief from Section 304.122(b) is
consistent with federal law. Pet. at 30. However, the Agency asserts that the Board must limit
any relief granted to Section 304.122(a) or (b), because relief from subsection (c) would require
approval from the United States Environmental Protection Agency (USEPA). Ag. Memo at 35-
36.
Noveon states there are no applicable federal numeric effluent standards or water quality
standards for ammonia. Noveon contends that federal regulations direct states to adopt water
quality standards that protect the uses, public health or welfare, enhance the quality of water and
serve the purposes of the Act. 40 C.F.R. §131.2. According to Noveon, granting this adjusted
standard will not impair any beneficial or existing use of the receiving stream. Noveon continues
that applicable water quality standards will be met. Pet. at 31; Nov. Resp. at 1.
DISCUSSION
Relief from the Ammonia Nitrogen Effluent Limits
Noveon seeks relief from the State’s ammonia-nitrogen limitation found at Section
304.122(b) in the form of an adjusted standard. The Agency recommends that the Board deny
Noveon’s request for relief.
The Board finds that Noveon’s request for relief from the ammonia-nitrogen standard
meets the statutory “fundamentally different” factors set forth at Section 28.1(c) of the Act.
Noveon has demonstrated that: (1) factors relating to it are substantially and significantly
different from the factors relied upon by the Board in adopting the general regulation; (2) the
existence of these factors justifies an adjusted standard; (3) the requested standard will not cause
17
substantially or significantly more adverse environmental or health effects than the effects
considered by the Board in adopting the rule of general applicability; and (4) the adjusted
standard is consistent with applicable federal laws. 415 ILCS 5/28.1(c) (2002). The Section
28.1(c) factors are discussed in turn.
Substantially Different Factors
The Board adopted the ammonia effluent limit, now Section 304.122(a), on January 6,
1972, as “Rule 406” to address the impact of ammonia nitrogen in municipal wastewater on
dissolved oxygen demand in the receiving stream. R70-8, R71-14, and R71-20 (Jan 6, 1972).
What became subsection (b) of Section 304.122, was adopted as an amendment to Rule 406 on
June 28, 1973, in R72-4. Water Quality Standards Revisions, R72-4. The amendment extended
the ammonia nitrogen effluent limits to non-municipal wastewater dischargers, mainly industrial
dischargers, but did not address the issue of available treatment technologies.
The Board finds that the quality and composition of the discharge that Noveon produces
in its manufacturing process is substantially and significantly different than wastewaters of other
industries and POTWs. The presence of MBT, a building block chemical used in Noveon’s
processes, inhibits the growth of nitrifying bacteria. The presence of degradable organic
nitrogen compounds generates large amounts of ammonia nitrogen during secondary treatment
of Noveon’s wastewater. Further, Noveon’s wastewater is very low in alkalinity, thus requiring
addition of alkalinity to achieve nitrification. Although Noveon’s wastewater treatment plant is
designed, constructed, and operated similarly to a POTW that achieves nitrification, the Henry
plant is unable to achieve nitrification because of the unique characteristics of Noveon’s
wastewater. The Board did not anticipate the specialty chemicals manufacturing processes that
Noveon employs at the Henry Plant when it promulgated the ammonia effluent limit at Section
304.122(b), applicable mainly to other industrial dischargers, in 1972.
Justification for Relief
Noveon bases its justification for the requested relief on the lack of an economically
reasonable and technically feasible alternative for removing ammonia nitrogen. Noveon argues
that the cost of technically feasible control technology is extremely high and yields a minimal
environmental benefit. Since Noveon is unable to nitrify ammonia in its existing wastewater
treatment plant, Noveon examined several treatment alternatives to reduce ammonia in its
effluent. The Board notes that the costs per pound of ammonia removed for the various
alternatives that Noveon investigated are significantly less than technologies investigated and
implemented in other site-specific rulemakings by facilities that reduced their effluent ammonia
concentrations to more acceptable levels.
See
Petition of PDV Midwest Refining, L.L.C. for a
Site-Specific Rulemaking Amendment to 35 Ill. Adm. Code 304.213, R98-14 (Dec. 17, 1998);
Site-Specific Petition of Mobil Oil Corp. for Relief From 35 Ill. Adm. Code 304.122, Ammonia
Nitrogen Effluent Standards, R97-28 (Jan. 22, 1998). However, the overall cost of reducing
ammonia nitrogen would be significantly higher due to the large quantity of ammonia that
Noveon must remove to meet the ammonia effluent limit.
18
The present worth cost of alternatives with an ammonia nitrogen removal rating above 90
percent range from $5.8 million to $ 14.1 million. Some of these alternatives such as effluent
stripping with off-gas control, combined single-stage nitrification, effluent ion exchange have
low performance reliability. Some alternatives also contributed to higher TDS levels or
chlorinated organics in the effluent. Pet. at 19-24. Moreover, the financial information
presented by Noveon indicates that implementing any one of the viable alternatives would
significantly affect the company’s return on revenue, and return on net plant, property and
equipment. The resulting return on revenue would be very small or negative for the evaluated
treatment alternatives. 2004 Tr. at 285. After considering all of these factors, the Board finds
that no treatment alternative investigated is economically reasonable, although some of them are
technically feasible.
Environmental Impact
The Board finds that Noveon’s discharge does not have an adverse environmental impact
on the receiving stream. Noveon submitted modeling in support of its argument that the
requested relief will not result in adverse environmental or health effects because the modeling
shows that DO concentration in the Illinois River downstream from Noveon’s outfall during
critical flow (7Q10) is above the current DO standard of 5 mg/L. Noveon has also submitted test
results showing that, other than ammonia and salinity, no other toxic parameters exist in its
effluent. The test is called the Toxicity Identification Evaluation (TIE), and provides
information on organic toxicity, metal toxicity, oxidane toxicity, and reducible compounds.
Nov. Reply at 25. Further, Noveon argues that with installation of the multi-port diffuser, the
discharge will meet the ammonia acute water quality standard at the edge of the ZID and the
ammonia chronic water quality standard at the edge of the mixing zone.
The Board finds these demonstrations provide assurance that Noveon’s discharge will not
adversely impact aquatic life. However, the Board shares the Agency’s concern that Noveon
has not provided any in-stream monitoring studies to assess the actual impact of its discharge on
aquatic life. Ag. Memo at 26. Special Condition 6 of Noveon’s NPDES permit, recently
affirmed in docket PCB 91-17, requires Noveon to prepare a preliminary plan for, and perform
biomonitoring of, at least two trophic levels of aquatic species; fish and invertebrates. Condition
6 requires Noveon to conduct these tests on a monthly basis for six months and submit the results
to the Agency within a week after they are available to Noveon.
Accordingly the Board will not order biological studies because biomonitoring is already
a condition of Noveon’s NPDES permit. Considering that Noveon discharges over 900 pounds
of ammonia per day into the Illinois River, biomonitoring will provide a quantification of
biological impact, if any, of Noveon’s discharge from its outfalls on aquatic life.
Condition 4 of the NPDES permit also requires Noveon to monitor and report the pounds
per day of ammonia discharged from its outfalls. Pursuant to the permit, Noveon must submit
the results to the Agency on a monthly basis. Further, since the Board’s finding concerning the
impact on aquatic life is partly premised on Noveon’s compliance with the ammonia nitrogen
water quality standards, the Board orders Noveon to demonstrate compliance with the applicable
ammonia nitrogen water quality standards at the edge of the mixing zone and ZID, as will be
19
defined by the Agency. The Board requires Noveon to monitor ammonia nitrogen in the Illinois
River in accordance with Board regulations on a quarterly basis. These monitoring requirements
are included as conditions to the adjusted standard, and will apply only after Noveon installs the
multi-port diffuser.
Throughout the duration of this adjusted standard, the Board encourages Noveon to
research and propose means, beyond the wastewater treatment plant and multi-port diffuser, of
providing environmentally beneficial improvements to the Illinois River in Marshall County.
The Board has incorporated voluntary environmental projects proposed by petitioners into
adjusted standards in the past. Petition of Illinois American Water Company’s (IAWC) Alton
Public Water Supply Replacement Facility Discharge to the Mississippi River for an Adjusted
Standard from 35 Ill. Adm. Code 302.203, 304.106, and 304.124, AS 99-6 (Sept. 7, 2000)
(petition for an adjusted standard for offensive discharges and conditions, and discharges of total
suspended solids and iron); Petition of City of East Moline and IEPA for an Adjusted Standard
from 35 Ill. Adm. Code 304, AS 91-9 (May 19, 1994); Petition of City of Rock Island for an
Adjusted Standard from 35 Ill. Adm. Code 304, AS 91-13 (Oct. 19, 1995). In IAWC’s adjusted
standard, IAWC was allowed to discharge directly into the Mississippi in exchange for IAWC’s
financial support of nearby non-point source sediment loading reduction projects. The projects
were implemented by a charitable non-profit trust, the Great Rivers Land Trust, whose goal it is
to protect the watersheds in the area.
Any project that Noveon researches and proposes must improve, restore or protect the
Illinois River in Marshall County and reduce risks to public health and the environment beyond
what is ordered by this adjusted standard. While research of potential improvements is not part
of the Board’s order, the Board will consider proposals by Noveon should Noveon choose to
renew this adjusted standard at a future date.
Consistency with Federal Law
Finally, the parties agree, and the Board finds, there is no inconsistency between granting
Noveon’s requested relief from Section 304.122(b) and federal law. Accordingly, the Board
grants an adjusted standard from the Board’s ammonia effluent limits and defines the mixing
zone applicable to Noveon’s discharge, but does not grant Noveon relief from the Board’s water
quality standards.
Best Degree of Treatment and Mixing Zone
The Board has found above that no investigated alternative is both technologically
feasible and economically reasonable, and has determined that Noveon has adequately supported
its petition for relief from the ammonia effluent limit. As discussed below, the Board further
finds that Noveon provides BDT at the Henry Plant and, thus, qualifies for a mixing zone and
ZID pursuant to Section 302.102 of the Board’s mixing zone regulations. Nonetheless, the
Board does not designate a mixing zone and ZID as part of the granted relief.
Under the “allowed mixing concept,” a discharger that is unable to comply with the
requirement of not causing or contributing to water quality violations, “after making every effort
20
to fulfill the obligations of the discharger . . . and given the limits imposed by the nature of the
receiving water body and the character of the outfall(s), is entitled to use a limited portion of the
receiving body of water to effect mixing of the effluent with the receiving water. Within this
limited portion of the receiving body of water, the discharger is excused from compliance with
304.105.” Marathon Oil Co. v. IEPA, PCB 92-166 (Mar. 31, 1994).
Although the Board has the authority to designate a mixing zone in an adjusted standard,
3
here the Board leaves that designation for the Agency to make in Noveon’s NPDES permit. The
Illinois Supreme Court has stated that the mixing zone is formally defined by the Agency in the
NPDES permitting process and, if granted, is included as a condition in the permittee’s NPDES
permit. Granite City Steel, Co. v. PCB, 155 Ill. 2d 149, 160, 613 N.E.2d 719 (1993). The Board
acknowledges that the Agency is typically charged with reviewing an NPDES permit application
requesting recognition of a mixing zone pursuant to its responsibilities as permitter.
See
Amendments to Title 35, Subtitle C (Toxics Control), R88-21(A) (Jan. 25, 1990). It is then the
Board’s position to resolve disputes between permit applicants and the Agency.
A mixing zone is “an area for allowed mixing which is formally defined by the Agency in
the NPDES permitting process and, if granted, is included as a condition in the permittee’s
NPDES permit.” Granite City Division of National Steel Co.,
et al
. v. PCB, 155 Ill. 2d 149, 613
N.E.2d 719 (1993);
see also
35 Ill. Adm. Code 302.102(d). “A ZID is likewise formally defined
and granted by the Agency during the permitting process and, if granted, is included in the
discharger’s mixing-zone permit condition.”
Id
.
Depending on the Agency’s permit decisions about the mixing zone, the permittee may
use mixing as a means of compliance with the Board’s water quality standards.
See
35 Ill. Adm.
Code 302.102(g), (h). Board regulations state that a mixing zone is available where the
discharger has made every effort to comply with 304.102, which requires all dischargers to
provide BDT. 35 Ill. Adm. Code 302.102(a). The regulations further provide that BDT must be
consistent with technological feasibility, economic reasonableness and sound engineering
judgment. 35 Ill. Adm. Code 304.102(a). Where a permit is silent as to mixing, the discharger
has the burden of proof to show compliance with the general allowed-mixing regulations. 35 Ill.
Adm. Code 302.102(i).
Until now, the Agency has not applied a mixing zone to Noveon’s discharge because the
Agency’s mixing zone program came after Noveon’s most recently issued NPDES permit. Ag.
Memo at 29. The Agency has stated that Noveon is providing BDT to all wastestreams for all
parameters except ammonia. 1991 Tr. at 131. The Board further finds in this order that Noveon
qualifies for an adjusted standard from the ammonia effluent limit because no other alternative
investigated is both technologically feasible and economically reasonable. Thus, the Board finds
that Noveon meets the threshold requirement for a mixing zone and ZID by providing BDT at
the Henry Plant.
3
“In adopting adjusted standards the Board may impose such conditions as may be necessary to
accomplish the purposes of the Act.” 35 Ill. Adm. Code 104.428(a).
21
Though the Board does not include the mixing zone and ZID in Noveon’s granted relief,
the Board does require Noveon to install and maintain a high-rate, multi-port diffuser as a
condition to the adjusted standard. The diffuser must be designed to achieve effluent dispersion
necessary to meet the applicable ammonia nitrogen water quality standards at the edge of the
mixing zone and ZID. The Agency will define both Noveon’s mixing zone and ZID, in
accordance with Board mixing zone regulations, through the NPDES permitting process.
Adjusted Standard Language
After hearing, Noveon withdrew the first two of the three proposed alternatives and
submitted revised adjusted standard language to which the Agency maintained its objection. The
revised wording incorporated a daily maximum limit for ammonia of 225 mg/L. The revised
wording, like alternatives one through three, also reiterated that Noveon will install and operate a
multi-port diffuser.
In granting this adjusted standard, the Board is adopting language based on the ammonia
effluent limits suggested by Noveon in alternative three. The Board finds no historic data that
shows Noveon cannot meet the limit of 155 mg/L ammonia year-round. The Board does not
agree that simply because the Agency calculated a theoretical level that is higher than what
Noveon actually discharges, Noveon should be permitted to discharge up to that amount.
Accordingly, the Board limits Noveon’s maximum ammonia concentration to 155 mg/L. The
Board also includes the requirement that Noveon install and operate a high-rate multi-port
diffuser and requires that the diffuser be designed to achieve a dispersion rate necessary to meet
the applicable ammonia nitrogen water quality standards at the edge of the mixing zone and ZID
as will be defined by the Agency.
The Board drafts this adjusted standard so that it terminates after seven years. This
period of time will allow Noveon to complete the installation of the multi-port diffuser and
perform water quality monitoring and reporting obligations required by this adjusted standard.
The Board also notes that in seven years results of the water quality monitoring will be in and
new, more economically reasonable technology may become available and revisiting the
ammonia nitrogen issue at that time will be beneficial.
The Board uses the language Noveon proposed in Alternative 3, applies the proposed
summer standard as a year-round limit, imposes a sunset provision, and adds monitoring and
reporting requirements. Any non-substantive changes are intended to bring this order into
conformity with the Board’s usual drafting style in adjusted standards.
CONCLUSION
The Board grants Noveon relief from the ammonia effluent limit found at Section
304.122(b) of the Board’s regulations at its facility in Henry, Marshall County. Noveon remains
subject to the water quality limits found at Section 304.105 and conditions included in the
Board’s order. The relief is effective as of the date of this order.
This opinion constitutes the Board’s findings of fact and conclusions of law.
22
ORDER
1. This adjusted standard will expire on November 4, 2011.
2. Noveon is hereby granted an adjusted standard from 35 Ill. Adm. Code
304.122(b). Pursuant to this adjusted standard, 35 Ill. Adm. Code 304.122 shall
not apply to the discharge of effluent into the Illinois River from the Noveon plant
located at 1550 County Road, 850 N., in Henry, Illinois as regards ammonia
nitrogen. The granting of this adjusted standard is contingent upon the following
conditions:
3. Noveon must not discharge calculated total ammonia nitrogen at concentrations
greater than 155 mg/L from its Henry, Illinois plant into the Illinois River.
4. Discharge into the Illinois River shall occur through a high-rate, multi-port
diffuser designed to achieve an effluent dispersion necessary to meet the
applicable ammonia nitrogen water quality standards at the edge of the mixing
zone and zone of initial dilution (ZID). Noveon must install the multi-port
diffuser within one year of issuance of its revised NDPES permit.
5. Monitoring Requirements: Noveon must monitor ammonia nitrogen in the
Illinois River on a quarterly basis to demonstrate compliance with the applicable
ammonia water quality standards in accordance with 35 Ill. Adm. Code 302.212.
The monitoring must commence within 30 days of the installation of the multi-
port diffuser and continue until the termination of this adjusted standard. The
monitoring results must be reported to the Agency in the annual report described
in section (6)(c), below.
6. New Production Methods and Technologies
a. Noveon must continue to investigate production methods and technologies
that generate less ammonia in Noveon’s discharge into the Illinois River.
Where practicable, Noveon must substitute current methods or
technologies with new ones so long as the substitution generates less
ammonia in Noveon’s discharge.
b. Noveon must perform any reasonable test of new technologically or
economically reasonable production methods or materials applicable to the
specialty chemicals manufacturing process, which may reduce ammonia
concentration in the discharge from Noveon’s facility which the Illinois
Environmental Protection Agency (Agency) specifically requests in
writing that they do.
c. Noveon must prepare and submit each year an annual report summarizing
the activities and results of these investigatory efforts. The annual report
23
must be submitted to the Agency, Bureau of Water, Compliance and
Enforcement Section.
7.
Noveon must operate in full compliance with the Clean Water Act, its National
Pollutant Discharge Elimination System program, the Board’s water pollution
regulations, and any other applicable regulation.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2002);
s
ee also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above opinion and order on November 4, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
