RECEIVED
CLERK’S OFflCF.
BEFORE
THE ILLINOIS POLLUTION CONTROL
BOARD
JUN 182003
TO:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph, Suite 11-500
Chicago, Illinois 60601
NOTICE OF FILING
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100W. Randolph, Suite 11-500
Chicago, Illinois 60601
STATE OF ILLINOIS
Pollution
Control
Board
AS 02-5
(Adjusted Standard
-
Water)
Mark Latham
Richard Kissel
Gardner, Carton, & Douglas
191 North Wacker Drive, Suite 3700
Chicago, Illinois 60606
PLEASE
TAKE
NOTICE that I have today filed with the Office ofthe Clerk of
the Pollution Control Board the attached Recommendation ofthe Illinois Environmental
Protection Agency, a copy ofwhich is herewith served upon you.
ENVIRONMENTAL PROTECTION AGENCY
OF THE STATE OF ILJ~INOIS
B1(Qk9~Ac~.
Deborah J. illiams
Assistant Counsel
Division ofLegal Counsel
DATED: June 16, 2003
Illinois Environmental Protection Agency
1021 N. Grand Ave. East
P.O.Box 19276
Springfield, Illinois 62794-9276
(217)
782-5544
THIS FILING IS SUBMITTED
ON RECYCLED PAPER
iN THE MATTER OF:
PETITION OF NOVEON, INC. FOR
AN ADJUSTED STANDARD FROM
35
ILL. ADM. CODE 304.122
)
)
)
)
)
)
RECE1~VED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’S
(~FPT(~V~
JUN 182003
)
STATE OF ILLINOIS
IN THE MATTER OF:
)
Pollution
Control Board
)
PETITION OF NOVEON, INC. FOR
)
AS 02-5
AN ADJUSTED STANDARD FROM
)
(Adjusted Standard
-
Water)
35
ILL.
ADM.
CODE 304.122
)
)
RECOMMENDATION OF
THE
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
NOW COMES the Illinois Environmental Protection Agency (“Illinois EPA”) by one of
its attorneys, Deborah J. Williams, in response to the Petition for Adjusted Standard
(“Petition”) ofNoveon, Inc. (“Noveon” or “Petitioner”) from 35 Ill. Adm. Code 304.122
and pursuant to 35 III. Adm. Code 104.416, hereby recommends that the Pollution
Control Board (“Board”) DENY Noveon’s request for an Adjusted Standard. In support
ofits recommendation, the Illinois EPA states as follows:
I.
INTRODUCTION
1.
On May 22, 2002, Noveon filed a Petition for an Adjusted Standard with
the Board. The Petition requests relief from 35 Ill. Adm. Code 304.122 as these
regulations apply to the discharge ofammonia nitrogen from Noveon’s Henry, Marshall
County, Illinois facility.
2.
Pursuant to Section 28.1(d) ofthe Environmental Protection Act,
Petitioner filed a Certificate ofPublication with the Board on June 11, 2002 stating that
notice ofthe adjusted standard petition was timely published on May 29, 2002. 415
ILCS
5/28.1(d).
On June 20, 2003, the Board accepted the Petition for hearing.
3.
The Illinois EPA is required to respond to a Petition for Adjusted Standard
within forty-five
(45)
days offiling pursuant to 35 Ill. Adm. Code 104.416. Hearing
Officer Orders dated January 22, 2003, March 20, 2003 and May
15,
2003 extended the
deadline for submittal ofthe Illinois EPA’s Recommendation in this matter until June 16,
2003.
II. BACKGROUND
4.
Noveon’s Henry Plant is located on 1550 County Road,
850
N., in Henry,
Marshall County, Illinois. Petition for Adjusted Standard (“Pet.”) at 9. This facility was
owned and operated by BFGoodrich until 1993. At that time, part ofthe facility was
divestedto form The Geon Company and is now known as PolyOne. In 2001, the
remainder ofthe Henry facility was sold by BFGoodrich and is now known as Noveon.
Pet. at 9. Noveon operates the wastewater treatment facilities for both PolyOne’s and
Noveon’s productions processes.
5.
On January 24, 1991, Noveon (at that time doing business as The
BFGoodrich Company) appealed its National Pollutant Discharge Elimination Permit
(“NPDES”) No. IL0001392, issued on December 28, 1990. Pet. at 1. Over a decade
later, that permit appeal is still pending before the Board as docket number PCB 9 1-17
and no subsequent permits, have been issued pending resolution ofthe appeal.
6.
The permit appeal proceeding was stayed, while Noveon filed a variance
petition with the Board to provide Noveon additional time to explore treatment options
and methods for coming into compliance. That proceeding was filed on October 30,
1992 and docketed as PCB 92-167. After l0.years ofstudy, Noveon concluded that no
affordable options were available and filed the instant Adjusted Standard petition to
obtain permanent relieffrom the Board’s requirements.
2
‘7.
Noveon treats 360, 000 gallons per day from PolyOne and 180,000 gallons
per day from Noveon’s operations. Process and non-process water discharged per day is
approximately 800,000 gallons. Pet. at 9.
8.
Noveonproduces rubber accelerators and antioxidants for the rubber,
lubricant, and plastic industries. Pet. at 9. PolyOne produces polyvinyl chloride (“PVC”)
resins. Pet. at 10.
9.
Noveon’s wastewater treatment plant was upgraded in 1987. Pet. at 10.
This included installation oftwo above ground biotreators, two above ground
equalization tanks, and a tertiary filtration system. Pet. at 10. In addition, a third
biotreator was added in 1989 and a fourth in 1998. According to Noveon, “the major
source ofammonia is the degradation ofamines that occurs in the wastewater treatment
process at the Henry Plant.” Pet. at 10.
10.
The wastewater treatment system treats process wastewaterfrorn both
plants,’ as well as stormwater and non-contact cooling water. Pet. at 10. Treatment
begins with pre-treatment (separate for Noveon and PolyOne), process water then goes to
separate equalizationtanks while stormwater and utility waters go to holding ponds. This
is followed by primary treatment and a primary clarifier. Solids are then sent to a
collection tank and are dewatered in a filter press and sent to a landfill. Primary
clarification is followed by activated sludge treatment in four biotreators to degrade the
organic matter. Finally, the wastewater is sent to a secondary clarifier followed by
tertiary treatment that consists ofpolishing by a traveling bridge sand filter. Pet. at 12-13.
11.
The discharge from the City ofHenry’s publicly owned treatment works
(“POTW”) combines with Noveon’s effluent and is discharged through Noveon’s outfall
3
to the Illinois River. The effluents are sampled prior to combining, but not at the outfall.
Pet. at 13. Noveon’s Outfall 001 is located on the Illinois River between river mile 198
and 199. Pet. at 14. According to Noveon, the 7-day, 10-year low flow forthe Illinois
River at Henry, Illinois is 3,400 cubic feetper second. Pet. at 14.
III.
RELIEF REQUESTED
12.
Although Noveon’s Petition goes into some detail regarding its
interpretation of35 Ill. Adm. Code Sections 304.122(a) and (b) and Noveon’s argument
that it should be subject to 304.122(a) rather that 304.122(b), the instant adjusted standard
petition requests relief from 304.122 in its entirety. Noveon has not requested relief for
the ammonia nitrogen water quality standards of 35 Ill. Adm. Code 302.2 12, because it
claims it can meet those standards. However, “Noveon also seeks from the Board as part
ofthis proceeding, a determination that the ammonia water quality standards will be met
with the ZID and mixing zone calculated in Exhibit 1 and 3 and as discussed above for
the Henry plant discharge.” Pet. at 8.
13.
The language of35 Ill. Adm. Code 304.122 from which Petitioner seeks
regulatory reliefstates as follows:
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
oftotal ammonia nitrogen as N during the months ofApril 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 ofmore than 3.0 mg/L oftotal ammonia nitrogen
as N.
4
c)
In addition to the effluent standards set forth in subsections (a) and (b) of
this Section, all sources are subject to Section 304.1.05.
14.
Section 304.122(b) requires sources subject to that provision meet an
effluent limit of3.0 mg/L total ammonia nitrogen, while 304.122(a) limits discharges of
greater than 50,000 population equivalent (“PE”) to 2.5mg/L from April through October
and 4.0 mgIL total ammonia nitrogen at all other times. The Illinois EPA has determined
that Noveon is subject to subsection (b) of 304.122, because its “untreated waste load
cannot be computed on a population equivalent basis comparable to that used for
municipal waste treatment plants.” Noveon is not able to meet the effluent limits in
either provision, but claims it should be subject to subsection (a) and that its PE would be
less than 50,000 and therefore, it should not be subject to any effluent limitation for total
ammonia nitrogen under Section 3 04.122.
15.
Petitioner has presented three alternative forms ofrelief in its adjusted
standard Petition. Each alternative exempts Noveon from all the requirements of 35 Ill.
Adm. Code 304.122 and requires Noveon to install a multi-port diffuser. Each alternative
presented conditions adjusted standard relief on an effluent limit expressed in a different’
format. Alternative #1 imposes an effluent limit for calculated un-ionized ammonia of
3.5
mg/L’ during April through October and 7.9 mg/L during November through March.
Alternative#2 expresses the effluent limit as 1200 lbs/day oftotal ammonia during April
through October and 1735 lbs/day during November through March. Alternative #3
expresses the effluent limitation in terms ofa concentration of
155
mg/L total ammonia
nitrogen during the months ofApril through October and 225 mg/L during the months of
November through March.
5
16.
Noveon does not exp’ain the differences between the alternative effluent
limits or the preferred alternative from Noveon’s point ofview. In addition, Noveon does
not explain why it is requesting a 225mg/L winter effluent limit in Alternative #3 when
its consultants determined that the water quality standards would be met with an effluent
limit of 189 mg/L year round. Pet. at 7.
IV.
LEVEL
OF JUSTIFICATION REQUIRED
17.
The Illinois EPA agrees with the Petitioner that the regulation ofgeneral
applicability at issue, 35 Ill. Adm. Code 304.122, does not specify a level ofjustification
or other requirements necessary forthis type of adjusted standard. Since there is no
specific level ofjustification for adjusted standards from the regulations at issue in this
Petition, the general level ofjustification provided in Section 28.1 ‘ofthe Environmental
Protection Act (“Act”), 415 ILCS
5/28.1,
is the standard of review by which the Board is
to judge the instant adjusted standard petition. Section 28.1(c) of the Act, 415 ILCS
5/28.1(c),
provides the general level ofjustification the Board must find a petitioner to
have met when granting an adjusted standard petition. That subsection provides:
The Board may grant individual adjusted standards whenever the
Board determines, upon adequate proof by petitioner, 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 ofthose
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 ofgeneral applicability; and 4) the adjusted standard
is consistent with any applicable federal law.
The Illinois EPA believes that this is the proper standard for the Board to consider and
that Noveon has failed to meet this standard of review for the reasons outlined more fully
below. In particular, Noveon has failed to demonstrate both that it possesses
6
substantially and significantly different factors than those considered by the Board in
adopting the regulation ofgeneral applicability and that there will not be a negative
environmental impact from this adjusted standard greater than the rule of general
applicability.
V.
FACTS PRESENTED IN
THE
PETITION
18..
The rule ofgeneral applicability at issue in the matter was adopted on
January 6, 1972 as Rule 406. Petitioner claims the basis for adoption ofthis rule by the
‘Board was to limit discharge ofammonia from large dischargers to the Illinois River,
because it was believed at the time these dischargers were impacting dissolved oxygen
levels. Pet. at
4-5.
Petitioner appears to question the validity ofthe underlying basis for
the rule of general applicability in this case, but such concerns are properly addressed by
a rulemaking proceeding not an adjusted standard. Pet. at
5-6.
19.
Noveon is one ofthe large dischargers ofammonia to the Illinois River
that the rule was intended to address. The number ofsources subject to these provisions
is relatively small, but except forNoveon, all dischargers have made efforts to reduce
ammonia levels in their discharge (through process changes and/or controls) since these
rules were implemented. For example, Mobile Oil Company engaged in several
measures to conserve water, pre-treat and reduce ammonia in its discharge. Though the
Illinois EPA ultimately supported a site-specificrulemaking, it was only after Mobile Oil
Company had reduced the ammonia in its effluent by
50.
Similarly, Union Oil
Company engaged in a series ofactivities to reduce the ammonia in its effluent. The 3M
Company changed its process and engaged in treatment to reduce the ammonia in its
effluent. The City ofPeoria’s POTW also reduced the ammonia in its discharges.
7
20.
Noveon claims it is not seeking relief from the water quality standards
adopted in 1996 for ammonia or those recently promulgated by the Board in R02-19
adopted in’ an October 17, 2002 final opinion and order. The new water quality standards
retain the limit oftotal ammonia concentrations to in no case greater than 15 mgIL and
establish new formulas to calculate acute, chronic and sub-chronic total ammonia
nitrogen water quality standards. 35 Ill. Adm. Code 302.2 12(a) and (b). The acute and
chronic water quality standards are no longer expressed in the form ofun-ionized
ammonia nitrogen.
21.
Noveon also claims that “with an appropriately calculated zone ofinitial
dilution (‘ZID’) and mixing zone, consistent with both Agency and U.S. EPA guidance
on mixing zones, the discharge from the Henry Plant will meet the summer/winter acute
and chronic limitations set for in the amended ammonia water quality standards.” Pet. at
6. Petitioner attaches Exhibit I and explains in its Petition the basis for its conclusion
that it will be in compliance with the former water quality standards for un-ionized
ammonia nitrogen. Since Petitioner has not requested relief from the water quality
standards, it is not necessary forthe Agency determine with certainty from the
information presented whether the water quality standards will be met. However, the
Petitioners are asking the Board to go beyond its authority to grant adjusted standard
reliefto request a declaratoryjudgment that the Illinois EPA must accept the mixing zone
and ZID calculated by Noveon and find that the water quality standards will be met.
Such a determination would be based both on a detailed analysis ofthe multi-port
diffuser Noveon indicates it will install at some point after adjusted standard relief is
granted, as well as a determination whether Noveon has met the requirement of
8
implementing the “best degree of treatment” under Section 304.102, which is a pre-
requisite to obtaining any mixing zone under 35 Ill. Adm. Code 302.102. The proper
forum for such a determination would be forNoveon to apply for a construction permit
and/or permit modification taking into account the multi-port diffuser, forthe Agency to
determine the appropriate mixing zone and ZID, and for Noveon to file a permit appeal
with the Board if it disagrees with that determination. Setting a ZID and mixing zone are
permitting functions that should only be reviewed through a permit appeal.
22.
Noveon states that it will be able to meet water quality standards with a
discharge no greater than 189 mg/L total ammonia nitrogen effluent limits for winter and
summer.’ Pet. at 7,
15.
Noveon does not explain why Alternative request for relief #3
asks for limits of 1 55mg/L in the summer and 225mg/L in the winter. The Board should
not allow an alternative effluent standard that implements a limit greater than even what
Petitioner says is requiredto meet the water quality standard.
23.
Noveon states theyhave agreed to replace the single-port diffuser with a
‘multi-port diffuser as part ofthis proceeding. Pet. at 7. Although Noveon could have
undertaken this project at any time to assure that sufficient mixing was occurring to meet
water quality standards, they have not agreed to do so until an adjusted standard is
granted by the Board. Noveon indicates that it will not install the diffuser that is a
condition ofthe adjusted standard reliefuntil 1 year after suchrelief has been granted.
The Board should condition any relief granted in this case to take effect only after the
required diffuser has been installed and is operational.
24.
According to Petitioners, the biological oxygen demand (“BOD”)
reduction rate ofthe plant is over
95
and ammonia nitrogen is discharged at an effluent
9
concentration range of23 mg/L to 150 mg/L. Pet. at 12. The Illinois EPA believes the
accurate assessment ofthe range ofNoveon’s effluent to the river can fluctuate from a
low of lOmg/L to a high of250 mg/L.
25.
Petitioner’s basis for the claim that it should not be subject to any effluent
limit under Section 304.122(a) is because its PE is less than 50,000. No calculations are
provided in the petition to explain howthis was determined. The Illinois EPA has
determined that Section 304.122(a) does not apply to Noveon because its untreated waste
load cannot be computed on a population equivalent basis comparable to that used for
municipal waste treatment plants. One basis for the conclusion that Noveon’s waste is
not comparable to municipal waste is that a typical municipal waste stream has a
chemical oxygen demand (“COD”) to biochemical oxygen demand (“BUD”) ration of2.5
to 1. Noveon’s waste stream has a COD to BOD ratio of 6 to 1. This causes Noveon’s
waste stream to be resistant to biological degradation. It also means that the BOD values
for the Noveon waste stream are not as high as what they could be if the waste was as
degradable as a municipal waste. Therefore, the Agency concluded that Noveon’s
untreated waste stream could not have a PE computed comparable to a municipal waste.
VI.
EFFORTS NECESSARY
TO ACHIEVE COMPLIANCE
AND
ALTERNATIVES
26.
Noveon states in its Petition that”... Noveon and its consultants have
concluded, that the evidence presented in this proceeding will show, that none ofthe
available treatment technologies are both economically reasonable and technically
feasible for Noveon to significantly reduce the ammonia in the wastewater from the
Henry Plant to levels that would achieve compliance with 35 Ill. Adm. Code 304.122(b).”
Pet. at4.
10
27.
Ammonia treatment is referred to as “nitrification” because treatment of
ammonia involves oxidizing ammonia to nitrates. Noveon studied the nitrification ability
ofthe existing plant and concluded that: “The results ofthe treatability study
conclusively demonstrated that the Henry Plant could not achieve single-stage
nitrification under existing waste loads and optimum conditions ofmixed liquor pH,
D.O., temperature, alkalinity, F/M ratio and mean cell residency time.” Pet. at 16.
Noveon also determined that addition ofnitrifier-rich bio-mass would not help because of
wasteload characteristics ratherthan operating conditions. “The inability ofthe Henry
Plant wastewater treatment system to nitrify was due to inhibition ofnitrifying bacteria
by the PC tank and C-18 tank contents flows.” Pet. at 16.
28.
Noveon analyzed the alternative compliance methods by looking at three
categories ofalternatives: 1) in-process reductions; 2) pretreatment ofthe wastestream;
and 3) post-treatment ofthe wastestream. Pet. at 17. Noveon concluded that it would not
be willing to implement any alternatives to reduce the ammonia in its wastestream.
Noveon has offered,that in return for receiving regulatory relief from Section 3 04.122
from the Board, “Noveon will agree to replace the current single-port diffuser with a
multi-port diffuser as part ofthis proceeding.” Pet. at 15. This change is likely necessary
to assure Noveon is in compliance with the water quality standards and is not an effort to
reduce its ammonia discharge.
29.
In evaluating in-process reduction, Noveon concluded that amines could
not be eliminated from the process and recycling would create an inferior product and
potentially generate a hazardous waste material by-product. Noveon states that: “Excess
• amines are, however, currently recovered from processes where recoverymethods
11
provide reusable quality materials and are not cost prohibitive.” Pet. at 17. No
information is provided on what Noveon considers “cost prohibitive.”, The Agency is not
in a position to analyze the ability to have in-process reductions with the information
provided. In most cases it can be assumed that if there was an alternative cheaper to
providing treatment, a discharger would select that alternative. However, since Noveon
is not agreeing to implement any form of treatment in this case, that assumption can not
be made. The Illinois EPA indicated to Noveon that if they had agreedto make in-
process reductions in their ammonia levels, the Agency might have been willing to
support adjusted standard relief from the 304.122 effluent standard. However, given that
Noveon is arguing that all available treatment options are not cost-effective, it is
insufficient for Noveon to simply state that in-process reductions are not possible without
providing additionaljustification.
30.
Noveon reviewed its Pretreatment options by studying morpholine
recovery, TBA recovery, and a liquid extraction process in which a solvent is passed
counter-current to the wastewater removing the amines from the water. Pet. at 17.
According to Noveon, none ofthese alternatives would result in compliance with Section
304.122. In evaluating Petitions for Adjusted Standard, the Agency expects to see the
Petitioner perform those options available to it to minimize the impact on the
environment. It is not a sufficient justification to simply state, without further evidence,
that these methods will not achieve compliance so they are not gOing to be implemented.
31.
Noveon reviews about 8 potential post-treatment compliance options prior
to concluding that none ofthese are technologically feasible and economically
reasonable.’ The eight options will be reviewed in the ordered they were discussed by
12
‘
Noveon. For the options where Noveon provides cost figures, the Illinois EPA has
analyzed those figures on a per pound reduced basis and compared them to municipal
treatment plants that have recently installed nitrificationtechnologyas contemplated by
40 CFR
l25.3(d)(2).
Noveon included Operating and Maintenance (“O&M”) costs in its
evaluation ofalternatives and based those on a 10-year life ofthe equipment with no
salvage value. Because the Illinois EPA felt this 10 year time frame was rather short and
because figures available from POTW’s did not include O&M, the Illinois EPA
subtracted those costs when comparing Noveon’s costs with other treatment facilities.
32.
The Illinois EPA calculated the cost per pound of ammonia removed from
four recent sewage treatment plant nitrification projects for comparison purposes:
Geneva, Batavia, St. Charles and Wauconda. Wauconda was left out ofthis comparison
because its project also included a plant expansion and did not seem representative ofthe
cost ofadded nitrification treatment alone. None ofthese figures include, O&M costs
which constitute a significant percentage ofthe figures presented by Noveon. Costs of
rehabilitation and demolition ofexisting facilities are also included where required. All
three facilities chose to install a single stage facility similar to what Noveonproposes in
the pretreatment and biological treatment option after evaluation ofthe most cost
effective treatment alternatives. In January 1998, Genevaproposed to reduce 1,042
lbs/day of ammonia from its
5
MGD plant at a total cost of$8,423,000 or $8,083 per
pound. In February 2002, Batavia proposed to reduce 875.7 lbs/day at its 4.2 MGD plant
at a cost of$6,011,000 or $6,864/lb. In April 2002, St. Charles proposed to reduce 976
lbs/day from its 9.0 MGD plant at a cost of$8,414,000 or $8,621/lb. In Exhibit 7,
Noveonprovided updated cost figures from the options studied in May 2002. These
13
updated cost figures should make a good comparison with the dollar figures forthe recent
nitrification projects.
33.
Alkaline air stripping at different points in the wastewater treatment
system (e.g., PC tank, PVC tank, and secondary clarifier) is the first alternative addressed
by Noveon in the Adjusted Standard Petition. Pet. at 19. This alternative involves
increasing pH in the wastewater to remove the ammonia by turning it into a gas. In 1996,
Noveon’s consultants evaluated using this treatment technology at three points in the
current process: within the PC tank, the PVC tank and the secondary clarifier effluent.
Id. Noveon claims a reduction of20 ofthe ammonia was achieved in the PC tank and
the PVC tank at a cost in 1997 of$2.3 millionand $14.1 million respectively including
O&M costs as described above. Noveon states that a
95
reduction in ammonia could
be achieved for a cost ofover $14 million using this technology in the secondary clarifier.
Noveon found all of these options to be economically unreasonable. The capital cost of
this technology in Exhibit 7 is $6,980,000 and would reduce 864 lbs/day ofammonia at a
cost of$8,079 /lb. This figure is within the range of the comparable POTWs.
34.
Struvite precipitation from the combined wastestream influent was
evaluated next and found to cost
$5.1
million to reduce final ammonia effluent levels by
24.
This alternative was disregarded by Noveon because it could not achieve full
compliance with Section 304.122. The Illinois EPA has indicated to Noveon and
reiterates to the Board, that Noveon should be willing to undertake some treatment
options. If the best degree oftreatment did not achieve full compliance with Section
304.122, then the Illinois EPA would consider supporting adjusted standard relief in this
matter. However, since this particular alternative only results in a reduction of217
14
lbs/day at a capital cost of$4.81 million, this actually is an unreasonable alternative at a
per pound cost of$22,165.
35.
Noveon evaluated use ofeffluent breakpoint chlorination and determined
it was also economically unreasonable, but also pointed out that this technology is of
concern because it increases total dissolved solids levels and may result in formation of
chlorinated organics in the effluent. Pet. at 21. The Illinois EPA does not agree that ‘a
capital cost of
$1.53
million dollars to reduce 891 lbs/day ofammonia is economically
unreasonable, but shares Noveon’s concerns about the possible environmental impacts of
this technology.
36.
The alternative ofsingle-state biological nitrification ofnon-PC waste
stream combined with separate biological treatment ofthe PC tank discharge was
evaluated by Noveon and dismissed because it only achieved a 47 reduction ata cost of
$4.9 million. At a capital cost of $2.68 million and reducing 423 lbs/day, this technology
had per pound reduction cost of$6,335 per pound. This alternative is not economically
unreasonable when compared to POTWs. It is not clear whether this alternative would
achieve full compliance with Section 304.122, but the Illinois EPA encourages the Board
to require Noveon to at least implement some ammonia reductions rather than granting
the relief requested by Noveon.
‘
37.
Noveon concluded that ‘biological nitrification ofthe combined influent
wastestream with the addition of river water was a technically feasible alternative for
• ,bringing Noveon into compliance with Section 304.122. This is the technology most
similar to that used by the comparison POTWs, but Noveon found it to be both unreliable
and cost prohibitive at a cost of$11.7 million. When looking at capital costs only, as was
•
15
done by the POTWs, Noveon’s cost would be $4.4 million to reduce 891 pounds per day
(98 removal). This results in a cost of$4,938 per pound reduced
—
significantly less
expensive than any ofthe POTWs studied. It appears that this alternative is both
technically feasible and economically reasonable and would achieve full compliance with
Section 304.122(b).
38.
Ion exchange treatment offinal effluent was also found to be a technically
feasible method of compliance forNoveon, but was dismissed based on “poor removal
efficiency.” Noveon’s cost forthis alternative was
$5.1
million. But at a capital cost of
$1.2 million and a 98 removal rate, this alternative could reduce 891 pounds of
ammonia per day at a cost ofonly $1,346 per pound. Noveon recently found that
ozonotion is an alternative that would also achieve compliance with Section 304.122.
This alternative was rejected because Noveon claimed the cost was unreasonable, but
also because of a concern that this technology would cause BOD effluent violations.
Tertiary nitification was found to be a technologically feasible alternative that would also
bring Noveon into full compliance with Section 304.122, but Noveon found this
technology economically unreasonable at a cost of$11.4 million. At a capital cost of
$6.76 million dollars, this technology could reduce 891 pounds ofammonia per day at a
cost of$7,587 per pound. This cost is not greater than the comparison POTWs. In
summary, the Agency does not agree with Noveon’s conclusion that there is no
economically reasonable and technologically feasible compliance alternative available for
it to achieve compliance with Section 304.122(b). Noveonhas been allowed to delay
coming into compliance while all other sources subject to Section 304.122 have made
16
•
•••••
attempts to do so and many other POTWs have invested similar or greater amounts of
money to meet ammonia water quality standards.
39.
It is the Agency’s opinion that in reviewing available alternatives, Noveon
should have looked more thoroughly at the alternative ofusing granular activated carbon
followed by biological treatment. Noveon only looked at powdered activated carbon and
only gave a cursory look at that alternative. U.S. EPA guidance indicates granular
activated carbon followed by biological treatment is effective at removal ofinhibitors
(including MBT, the inhibitor at issue for Noveon) ‘which would then allow biological
treatment to be more successful and require little upgrade to the existing system.
VII. ENVIRONMENTAL
IMPACT
40.
•
Noveon claims that granting adjusted standard relief from Section 3 04.122
will not result in any adverse environmental impacts. Pet, at
25.
The first basis for this
claim is that the rule ofgeneral applicability incorrectly was premised on the beliefthat
larger dischargers were contributing to dissolved oxygen “sags.” The regulation in
Section 304.122 is contained within the Board’s technology regulations, rather than water
quality standards. It is possible that a future rulemaking proceeding would some day
overturn the rule ofgeneral applicability; but in the meantime, the Illinois EPA does not
agree that it is unnecessary to control large dischargers ofammonia to protect the Illinois
River.
41.
Noveon further claims that acute water quality standards will be met at the
edge ofthe ZID and the chronic standard will be met at the edge ofthe mixing zone. The
Illinois EPA disagreed that Noveon was entitled to a mixing zone as calculated by its
consultant for a variety ofreasons. Noveon may be using too large a percentage ofthe
17
Illinois River for mixing than allowed by the regulations. Also, no mixing zone is
allowed until the dischargerhas complied with Section 304.102 and has met the “best
degree oftreatment” requirement. Since Noveon has made no attempt to reduce its
ammonia discharge, Noveon can not claim to be meetingthe “best degree oftreatment”
as required by Section 302.102(a). Noveon points to each provision in Section
302.102(b) and claims to be meeting it, but does not explain how it will achieve
compliance with Section 302.102(a), which in turn requires compliance with Section
304.102. The Illinois EPA does not agree with Noveon’s conclusion that water quality
standards will be met and therefore there is no environmental impact from granting relief
from Section 304.122.
42.
In addition, it is the Illinois EPA’s opinion that Noveon’s discharge is the
single most toxic remaining discharge to the waters ofthe State of Illinois. Now that
other highly toxic (or single digit percentage LC5O)’ dischargers in the State such as
Sauget and 3M have improved the quality oftheir discharge, Noveon is the last
remaining discharger fail to improve the toxicity ofits effluent above the single digit
percentage LC5O level.
•
VIII.
PETITIONER’S JUSTIFICATION OF PROPOSED
ADJUSTED STANDARD
43.
In requesting adjusted standard relief from the Board, a Petitioner has an
obligation to first prove to the Board that “factors relating to the petitioner are
substantially different from the factors relied upon by the Board in adopting the general
regulation.” 415 ILCS 2 8.1(c). To meet this requirement, Noveon simply states “there
are no alternatives that are both technologically feasible and economically reasonable to
LC-50 means the •concentration of a toxic substance or effluent which is lethal to
50
of the exposed
organisms in a given time period.
18
achieve the ammonia reduction necessary to comply with 35 ‘Ill. Adm. Code 304.122(b).”
Pet. at 28. Noveon presents no evidence that either the technological factors or cost of
reducing ammonia are substantially different than what was contemplated by the Board.
As indicated above, all other dischargers have made some effort to comply with this
regulation and the costs ofcompliance for Noveon are not significantly different than the
cost ofinstalling nitrification capabilities at a conventional wastewatertreatment plant.
40 CFR
125.3(d)(2)
provides that the removal costs incurred by an industrial discharger
must be compared to the costs incurred by a POTW in assessing economic
reasonableness.2 This’evaluation also would be conducted to determine compliance with
the “best degree oftreatment ofwastewater consistent with technological feasibility,
economic reasonableness and sound engineering judgment” under Section 304.102.
44.
The only other argument Noveon makes to demonstrate that its Plant
meets the “substantially different” test is to question the validity ofthe assumptions
underlying the Board’s adoption ofthe rule of general applicability. Pet. at 29. This is
not a legitimate basis forjustifying adjusted standard relief, but merely a basis for
proposing a revision to the regulation ofgeneral applicability.
45.
Noveon proceeds to base its justification for relief on its claim that no
environmental benefit will result from forcing Noveonto comply and that the costs are
economically unreasonable. Although the Illinois EPA believes there is significant
environmental benefit to requiring compliance with the regulation of general applicability
2
That provision provides that when determining the best conventional pollutant control technology
(“BCT”), the permit writer setting case-by-case effluent limitations must consider “(ii) The comparison of
the cost and level ofreduction of such pollutants from the discharge from publicly owned treatment works
to the cost and level of reduction of such pollutants from a class or category of industrial sources.”
19
and that the costs ofcompliance are not unreasonable, even if accurate, these arguments
are not sufficient to justify adjusted standard relief.
46.
Noveon has also failed to meet its burden under Section 28.1(c) ofthe
Environmental Protection Act (“Act”) to demonstrate that “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 ofgeneral applicability.”
Noveon claims that no measurable impact upon the environment or human health would
result from the reliefrequested. Pet. at 29. In one senseNoveon is correct in this regard,
since Noveon has never come into compliance with Section 304.122 since its adoption in
1972, the existing level ofenvironmental impact will not change. However, Illinois EPA
believes that the results ofthis existing situation are indeed substantially and
significantly more adverse than contemplated by the Board. It is possible that the
suggested diffuser will eventually bring Noveon into compliance with the ammonia water
quality standards. That eventual compliance does not change the environmental harm
caused by the toxicity ofNoveon’s discharge and its refusal to even attempt to make
some effort to reduce the ammonia level in its discharge to at least begin to approach
compliance with Section 304.122(b).
47.
Noveon rests its entire argument for adjusted standard relief on the
premise that it is too expensive to implement the available treatment alternatives. Yet the
Petitioner fails to present any contextual information in which to place its conclusion that
would justify a claim ofeconomic hardship. The Illinois EPA attempts to give the
figures’ provided some context by comparing them to recent nitrificationprojects by
POTWs and did not find Noveon’s costs to be out of line on a cost per pound basis.
20
Noveon’s total cost would be high, because the total pounds ofammonia to be reduced is
very high.
48.
BecauseNoveon has failed to meet its burden to justify the relief it has
requested under Section 28.1(c) of the Act, the Illinois EPA must recommend that the
Board deny Noveon’s request in its entirety.
IX.
CONSISTENCY WITH
FEDERAL
LAW
49.
The Illinois EPA agrees with Noveon’s conclusion that the Board has
authority to grant relief from 35 Ill. Adm. Code 304.122 without conflicting with any
federal statutes or regulations. On its face, the Petition does not request relief from water
quality standards or mixing zone regulations and therefore would not need U.S. EPA
approval as a change in water quality standards. However, it is not clear what type,of
reliefNoveon is requesting by asking the Board to determine that the ZID and mixing
zone identified in the Exhibits attached to its Petition are “appropriate.” The vague and
unusual nature ofthis relief makes it unclear to the Illinois EPA whetherthis type of
relief would be consistent with federal law.
,
-
X.
HEARING
•
50.
•
Petitioner has requested a hearing in this matter. The Illinois EPA agrees
that a hearing is necessary if Noveon is to justify that it has met the standard ofreview •to
receive Adjusted Standard relief from the Board in this matter.
XI. RECOMMENDATION AND CONCLUSION
WHEREFORE, for the reasons stated herein, the Illinois EPA recommends that
21
‘
‘
the Pollution Control Board DENY the Adjusted Standard Petition ofNoveon, Inc.
Respectfully Submitted,
ENVIRONMENTAL
PROTECTION AGENCY OF THE
STATE OF ILLiNOIS
•
‘
B~JJ~~J~
AssistantC~Lel
Division ofLegal Counsel
DATED: June 16, 2003
Illinois Environmental Protection Agency
1021 N. Grand Ave. East
P.O.Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
22
)
STATE OF LLINOIS
COU1~TYOFSANGAMON
)
)
SS
)
)
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the attached,
Recommendation ofthe Iffinois
Environmental
Protection
Agencyupon the person to whom it is directed, by placing a copy in an
envelope addressed to:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
(First ClassMail)
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
(First Class Mail)
MarkLatham
Richard Kjssel
Gardner, Cartonand Douglas
191 North Wacker Drive, Suite 3700
Chicago, Illinois 60606
(First Class
Mail)
and mailing it from Springfield, illinois on
June 16, 2003
with sufficient postage affixed as indicated
above.
OFFICIAL SEAL
CYNTHIA L. WOLFE
~:
~ NOTARY PUBLIC, STATE OF ILLINOIS :~
+
~ COMMI$SION
EXPIRES
3-2O’~OO7~
+ 4,
*
**
SUBSCRIBED
AND SWORN TO BEFORE ME
this
16th day of June 2003
THIS
FILING
IS SUBMITTED ON RECYCLED PAPER
