RECEIVED

Page 60

1

ILLINOIS POLLUTION CONTROL BOARD

2

3

IN THE MATTER OF:       

)

AS 02-5

4

)

(NPDES Adjusted Standard)

PETITION OF NOVEON, INC.,  

)

(Not Consolidated)

5  FOR AN 

ADJUSTED 

STANDARD FROM)

RECEIVED

35 ILL. ADM. CODE 304.122

)

Volume

ZXERICSOFFiCE

6

STATE

MARO

OF

1200~

ILLINOIS

B

Pollution Control Board

9

10

11

12

13

14

The following is the transcript of a hearing

15 held in the above-entitled matter, taken

16  stenographically by Gale G. Everhart, CSR-RPR, and

17  Jennifer E. Johnson, CSR, RMR, CRR, notary publics

18 within and for the Counties of Peoria and Tazewell and

19  State of Illinois, before Bradley P. Halloran, Hearing

20 Officer, at 122 North Prairie Street, Lacon, Illinois,

21 on the lath day of February, A.D. 2004, commencing at

22  9:05 a.m.

23

24

Page 61

1  PRESENT:

2

HEARING TAKEN BEFORE:

ILLINOIS POLLUTION CONTROL BOARD

3

100 West Randolph Street

James R. Thompson Center, Suite 11-500

4

Chicago, Illinois 60601

(312) 814-8917

5

BY: MR. BRADLEY P. HALLORAN, ESQUIRE

6

APPEARANCES:

7

GARDNER, CARTON & DOUGLAS

8

BY: RICHARD J. KISSEL, ESQUIRE

MARK LATHAM, ESQUIRE

9

SHEILA Ft. DEELY, ESQUIRE

Attorneys at Law

10

191 North Wacker Drive, Suite 3700

Chicago, Illinois 60606-1698

11

(312) 569-1442

On Behalf of the Petitioner.

12

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

13

BY: DEBORAH J. WILLIAMS, ESQUIRE

Attorney at Law

14

1021 North Grand Avenue East,

Springfield, Illinois 62794

15

(217) 782-5544

On Behalf of the Respondent.

16

17 ALSO PRESENT:

18

Richard Pinneo

Lorraine Robinson

19

David Giffin

Michael R. Corn

20

Anand Ran

Nicholas 3. Melas

21

Alisa Liu

Chen H. Lin

22

william L. Goodfellow, Jr.

Linda M. Shaw

23

Kenneth J. Willings

24

Members of the public and press

Page 62

INDEX       

Page

2

3  GREETING BY HEARING OFFICER. 

. . .

. .

63

4

WITNESSES FOR PETITIONER:

6

.

. . .

67

• . . .

103

• . . .

155

8

• . • .

186

9

.

- •

216

• . . .

230

10

. . • •

233

235

11

. . • .

237

12

238

13

. . . .

241

250

14

. . . .

251

255

16

. . . .

263

268

17

. . . .

279

18

281

19

• . . .

290

298

300

1

5

T. HOUSTON FLIPPIN, P.E., DEE

Direct Examination by Mr. Kissel

Cross-Examination by Ms. Williams.

Redirect Examination by Mr. Kissel

MICHAEL R. CORN, P.E.

Direct Examination by Mr. Kissel

Cross-Examination by Ms. Williams.

Redirect Examination by Mr. Kissel

Recross-Examination by Ms. Williams.

Further Redirect Exam by Mr. Kissel.

Further cross-Exam by Ms. Williams

WILLIAM L. GOODFELLOW, JR.

Direct Examination by Mr. Kissel

cross-Examination by Ms. Williams.

Redirect Examination by Mr. Kissel

Recross-Examination by Ms. Williams.

Further Recross-Exam by Ms. Williams

LINDA M. SHAW

Direct Examination by Ms. Deely.

Cross-Examination by Ms. Williams.

Recross-Examination by Ms. Williams.

GUY DAVIDS

Direct Examination by Mr. Latham

Cross-Examination by Ms. Williams.

Redirect Examination by Mr. Latham

Recross-Examination by Ms. Williams.

15

20

21

22

23

24

1   EXHIBITS:

2

20

21

22

23

24

PETITIONER’S 7.

PETITIONER’S 8.

PETITIONER’S 9.

PETITIONER’S 10

PETITIONER’S 11

PETITIONER’S 12

PETITIONER’S 13

PETITIONER’S 14

PETITIONER’S 15

PETITIONER’S 16

PETITIONER’S 17

PETITIONER’S 18

PETITIONER’S 19

PETITIONER’S 20

PETITIONER’S 21

PETITIONER’S 22

PETITIONER’S 23

PETITIONER’S 24

PETITIONER’S 25

PETITIONER’S 26 

-

PETITIONER’S 27

PETITIONER’S 28

PETITIONER’S 29

PETITIONER’S 30

PETITIONER’S 31

PETITIONER’S 32

PETITIONER’S 33

PETITIONER’S 34

PETITIONER’S 35

PETITIONER’S 36

PETITIONER’S 37

All exhibits were

1-Jalloran.

retained by Hearing Officer

Page 63

Page

Admitted

Identified

3

4

S

Page 64

1

HEARING OFFICER HALLORAN: Thank you. Good

2  morning. My name is Bradley Halloran. I am a hearing

3  officer with the Illinois Pollution control Board. I’m

4  also assigned to this matter entitled Adjusted Standard

5  02-5. It’s entitled In The Matter of Petitioner Noveon,

6  Inc., for an Adjusted Standard From 35 Illinois

7  Administrative code 304.122. This hearing is continued

8  from yesterday.

9

The petitioner was putting on his case in

10  chief. I believed we finished with one witness at that

11  time, Mr. 

Giffin. 

And I do want to note that it’s my

12  pleasure to announce that we have member Nick Melas

13  here, and we have technical advisors Anand Rao and Alisa

14  Liu. All three may or may not be asking questions

15  during the hearing itself.

16

Again, we are going to run this hearing

17 pursuant to section 104.400 to 104.428 under the Board’s

18  rules.

19

With that said, any preliminary motions,

20  Mr. Kissel?

21

MR. KIS5EL: No. We still have the issue of the

22  transcript and the testimony from the permit appeal, but

23  why don’t we wait on that until we begin the testimony.

24  We can always deal with that at some time. If that’s

Page 

65

1  okay with Debbie?

2

MS. WILLIAMS: I did my homework. So I’m ready to

3  talk about it any time.

4

HEARING OFFICER HALLORAN: Thank you very much,

5  Ms. Williams.

6

MR. KISSEL: Why don’t we go forward with the

7  testimony so we can get that out of the way.

8

HEARING OFFICER HALLORAN: I guess, for the record,

9  do you want to introduce yourselves again?

10

MR. KISSEL: My name is Richard Kissel of the law

11 firm Gardner, Carton & Douglas. To my right is Mark

12 Latham, also of that firm, and to my left is Sheila

13 Deely, also of that firm. We represent Noveon, Inc.

14

HEARING OFFICER HALLORAN: Thank you.

15

MS. WILLIAMS: Good morning. I am Deborah

16 Williams. I’m assistant counsel with the Illinois EPA.

17 And I have with me again today Lorraine Robinson, my

18  legal investigator, and Rick Pinneo, to my left,

19 Environmental Protection engineer and serving as my

20 technical advisor in this matter.

21

HEARING OFFICER HALLORAN: Thank you. And it looks

22 like there might be one or two members of the public.

23 Again, as I stated yesterday, the Board welcomes and, in

24  fact, encourages public comment, anything that’s

Page 66

1  relevant to the matter at hand. So raise your hand or

2  during a short break come up and talk to me and we can

3  get you up in the chair and you can state your piece.

4

with that said, Mr. Kissel, you may proceed.

5

(Witness sworn.)

6

MR. KISSEL: Before beginning this testimony,

7  Mr. Hearing Officer, he has pre-prepared testimony which

8  we filed with the Board. And the question was raised

9  yesterday as to whether we want him to read that

10 testimony or put it in the record as though read and

11 then, again, whatever additional questions we have and

12 then cross-examination. I have no particular

13 preference.

14

Obviously, not having him read the testimony

15  saves the Board and the rest of the people time. We do

16 have copies of his testimony available for review for

17  those members of the public. My suggestion 

--

I’ll lust

18 leave that as it is. I don’t know how the IEPA feels

19 about it or whatever.

20

HEARING OFFICER HALLORAN: Ms. Williams?

21

MS. WILLIAMS: I think primarily, like Mr. Kissel

22  said, it’s whatever is easier for the Board to process

23 and what works for the members of the public present.

24 guess I think maybe it would be best to ask them whether

Page 67

1  they prefer to be able to read the stuff when they go

2  home or whether they want to hear it here today to help

3  them provide their comments.

4

HEARING OFFICER HALLORAN: I think 

--

and, again,

S  we want to accommodate the members of the public, but I

6  have full confidence that they can read the written

7  testimony. And unless I’m mistaken 

--

I guess I will

8  ask the public. Anybody in the public have any thought

9  one way or another if, in fact, Mr. Flippin and a few of

10 the other witnesses sit up here and read verbatim what

11 will be available to you shortly or just leaving the

12 written testimony on a table you can pick it up and read

13  it yourself? Would that be fine? Do I see any hands?

14 Yes, sir?

15

AUDIENCE MEMBER: I would like to have a written

16 copy.

17

HEARING OFFICER HALLORAN: Yes, sir?

18

AUDIENCE MEMBER: I would as well.

19

HEARING OFFICER HALLORAN: We have three written

20  copies. So I guess, Mr. Kissel, we will just go ahead

21 and leave copies of the prefiled written testimony. And

22  then we will leave it at that and you can do your

23 summary questioning of Mr. Flippin.

24

Yes, sir?

Page

68

1

AUDIENCE MEMBER: Could we have the copies

2  available now as the cross-examination takes place?

3

HEARING OFFICER HALLORAN: Sure.

4

MS. WILLIAMS; What about exhibits? Are exhibits

S  included?

6

MS. DEELY; We don’t have copies of all the

7  exhibits, but we do have the testimony.

8

HEARING OFFICER HALLORAN: The exhibits will be at

9  the Board office in Chicago. In fact, quite a few of

10 them might be able to get online. It’s just a page.

11 think they scan them.

12

T. HOUSTON FLIPPIN, P.E., DEE,

13 called as a witness, after being first duly sworn, was

14 examined and testified upon his oath as follows:

15

DIRECT EXAMINATION

16

BY MR. KISSEL:

17

Q

Would you identify yourself for the record,

18 please?

19

A

Yes. I’m Thomas Houston Flippin.

20

Q

Mr. Flippin, I show you what has been marked

21 as Petitioner’s Exhibit 

--

what number are we on?

22

HEARING OFFICER HALLORAN: Number 7.

23

Q

For Adjusted Standard 02-5, and ask you to

24 tell me what that is.

Page 69

1

A

This is the written testimony which I have

2  prepared.

3

Q

Did you prepare that yourself?

4

A

Idid.

5

Q

And is that a true and correct copy of the

6  document you prepared?

7

A

It is.

8

Q

Can you verify that what is in there is true

9

and correct?

10

A

Yes, I can.

11

MR. KISSEL: I move the admission of the testimony,

12  and I would like it included as though read.

13

HEARING OFFICER HALLORAN: Ms. Williams?

14

MS. WILLIAMS: I have no objection.

15

HEARING OFFICER HALLORAN: That is admitted and the

16 record will so reflect that it is admitted into evidence

17 as if so read.

18

Q

Mr. Flippin, I ask you to identify this

19 document which has been marked as Petitioners Exhibit 8

20 in the Adjusted Standard 02-5.

21

A

This is a copy of my resume which I have

22 prepared.

23

Q

Is that a true and correct copy?

24

A

It is.

Page 70

1.

Q

And is the information contained therein

2  accurate, true and correct?

3

A

It is.

4

MR. KISSEL: I move the admission of Exhibit B.

5

HEARING OFFICER HALLORAN: Ms. Williams?

6

MS. WILLIAMS: We have no objection to that.

7

HEARING OFFICER HALLORAN: Exhibit Number 8 is

B  admitted.

9

Q

Mr. Flippin, I show you what has been marked

10 as Petitioner’s Exhibit 

9

for the Adjusted Standard

11 hearing 02-5. Would you please give a brief description

12 of what that is?

13

A

Be glad to. This is a collection of articles

14 that came from a literature search dealing with the

15 topic of mercaptobenziothiazole, also referred to in my

16 testimony as MBT. And in this collection of articles

17 what you will find is an article by Grady, Les Grady and

18 Mel 1-Jockenbury that references previous work by

19 Tomlinson and others that describe MBT as being an

20 inhibitor to biological nitrification.

21

Q

And where did you get those articles, that

22 series of articles?

23

A

These articles came from a literature search.

24 One being from the Journal of the Water Pollution

Page 71

1  control Federation, that being the Hockenbury and Grady

2  article. Another article came 

--

I apologize for not

3  mentioning this in my initial statement 

--

another

4  article describing MET as a nitrification inhibitor came

S  from the National Corn Handbook. And the last article

6  is one that Grady built his work on, Grady and

7  Hockenbury, and it came from the Journal 

--

this article

8   came from the Journal of Applied Bacteriology.

9

Q

And are those articles published in

10 recognized journals in your profession?

11

A

Yes, sir, they are.

12

Q

Did you rely on those articles in preparing

13 your testimony?

14

A

Idid.

15

MR. KISSEL: I move the admission of Petitioner’s

16 Exhibit Number 9.

17

MS. WILLIAMS: No objection.

18

HEARING OFFICER HALLORAN: Petitioner’.s Exhibit

19 Number 

9

is admitted into evidence.

20

Q

I show what has been marked as Petitioner’s

21 Exhibit Number 10 in the Adjusted Standard 02—S and ask

22 you to briefly describe what that is, please.

23

A

This exhibit actually is contained in the one

24 we just processed. And, again, it’s an article written

Page 72

1  in the National Corn Handbook describing how MET can be

2  used as a biological nitrification inhibitor in

3  fertilizers.

4

Q

Is that the National Corn 

--

what is it, the

S  National 

-

6

A

The National Corn Handbook.

7

Q

Is that a journal that is relied upon in your

8  business and trade?

9

A

It is.

10

Q

And did you rely upon that article in

11 preparing your testimony today?

12

A

I did.

13

MR. KISSEL: I move the admission of Petitioner’s

14 Exhibit Number 10.

iS

MS. WILLIAMS: We don’t have a copy of it.

16

MR. KISSEL: Do you want to take a look at it? We

17 will wait until she looks at it. I will go on if that’s

18 okay.

19

Q

The next three exhibits, Mr. Flippin, I will

20 ask you as I would have if you had testified with your

21 written statement to explain a little more. But in any

22 case, first let’s identify them. And I show you what

23 has been marked as Petitioner’s Exhibit 11 and ask you

24 to tell me what that is, please.

Page 73

1

A

This is a summary report that I prepared on

2  May 17th, 2002. And what this report did is it

3  summarized our findings about alternative treatment

4  technologies that would be applicable for reducing

5  effluent ammonia-nitrogen from the Noveon-Henry plant.

6  In this exhibit you will find not only the

7  description 

--

8

Q

Before going into that, just describe it so

9  we can get it into evidence.

10

A

Right. It’s basically a summary of

11 alternative technologies, their operating costs, their

12 capital costs and their present worth costs for reducing

13 effluent ammonia-nitrogen.

14

Q

Did you prepare that document?

lb

A

I did.

16

Q

What did you rely on to prepare that?

17

A

I relied on waste load information entering

18 the primary treatment system at the Noveon-Henry plant.

19  I relied on final effluent quality being discharged from

20  the Noveon-Henry plant. I relied upon my own process

21  design development capabilities. And I relied upon the

22  assistance of other engineers as well as construction

23 costs estimators within our company and knowledge of

24  the 

--

my working knowledge of the site, the

Page 74

1  Noveon-Henry plant.

2

Q

Did you 

--

does that document contain true

3  and correct information?

4

S

6  11

A

It does.

MR. KISSEL: I move the admission of Exhibit Number

7

MS. WILLIAMS: Can I ask a couple questions? First

8  of all, do you want to clarify for the Board that this

9  is the same exhibit that’s number 7 for the Petitioner,

10  is that correct, Exhibit 7 to the Petition for Adjusted

1.   Standard; is that correct?

12

MS. DEELY: Yes. That’s what it is.

13

MS. WILLIAMS: Would it be possible for the witness

14  to clarify what data he meant that he used as a basis

15 for these numbers as far as where we could find that

16  information elsewhere in the record?

17

THE WITNESS: The data that I used in developing

18 this waste load and used in developing the designs and

19 the cost estimates within this document, let’s take,

20 first of all, the waste load being discharged to the

21 primary treatment system. That data stated in the

22 exhibit was individual waste stream data gathered in

23  1995 which, in discussing this data with the

24 Noveon-Henry plant staff, is not significantly different

Page 75

1  from what would be present today.

2

The effluent data that I used and have

3  summarized is data that was gathered during 1999 through

4  2000. And, again, it would not be anticipated after

s

talking with the plant staff, particularly Guy Davids

6  and Dave Giffin, it would not be expected to be

7  appreciably different today.

B

MS. WILLIAMS; I have no objection to this exhibit

9  with those clarifications.

10

HEARING OFFICER HALLORAN: So what about the

11 Petitioner’s Exhibit Number 10?

12

MS. WILLIAMS: That’s fine, too.

13

HEARING OFFICER HALLORAN: Okay. Petitioner’s

14 Exhibit Numbers 10 and 11 are admitted into evidence.

15

Q

Mr. Flippin, please look at Petitioner’s

16 Exhibit 11 which is in evidence. And would you briefly

17 describe what is contained therein and some of the

18 conclusions you came to?

19

A

Yes. Be glad to. First of all, let me say

20 that what you are seeing if you had this document in

21 front of you is a listing of what I’ll call all proven

22  technologies for effluent ammonia reduction. And in

23 this list you will see alkaline air stripping. You will

24 see that applied to the PC tank, the PVC tank and the

Page 76

1  secondary clarifier effluent. In alkaline air stripping

2  you basically convert the ammonia in the wastewater to a

3  gas, and then you strip it off. Next you will see a

4  technology known as struvite precipitation; ammonia can

5  be precipitated. It can be precipitated as struvite

6  which is essentially ammonium magnesium phosphate. Next

7  you will see breakpoint chlorination of a secondary

8  clarifier effluent. In that process ammonia is oxidized

9  to nitrogen gas. Next you will see nitrification of the

10 nonNoveon wastewaters also called the PVC tank

11 wastewaters. You will see biological nitrification or

12 combined nitrification in a single stage of both the

13 Noveon wastewaters and the nonNoveon wastewaters called

14 the PVC tank wastewaters. When I speak of nonNoveon

15 wastewaters, please let me remind you that at the site

16  there are two companies that share a wastewater

17

treatment facility. One being the Noveon plant, the

18 other one being the PolyOne plant formerly known as

19 Geon, formerly known as BF Goodrich.

20

Then you will see a treatment called ion

21 exchange treatment which basically is a resins columns

22  system where either sodium or hydrogen, and in our case

23 we picked a hydrogen resin, where the resin releases

24 hydrogen in order to, if you will, take hold of the

Page 77

1  ammonia ion in solution.

2

Lastly, you will see ozonation of the final

3  effluent. And in a similar way as chlorine, ozone has

4  the opportunity to oxidize ammonia to nitrogen gas which

S  then leaves as a gas. In nitrification a second 

--

the

6  last option listed, which is number 10, is nitrification

7  of secondary clarifier effluent, also called tertiary

8  nitrification. We considered that. We believe these

9  are the proven technologies for effluent ammonia

10 reduction.

11

Q

At the Henry facility?

12

A

At the Noveon-Henry facility.

13

Q

These are on page 2 of Petitioner’s Exhibit

14  11, you list the technologies and they are listed under

15 bullet points; is that correct?

16

A

That is true.

17

Q

To the right of each technology is a number?

18

A

Yes, sir.

19

Q

To what does that number correspond in the

20  later document?

21

A

In the later document what those numbers

22  correspond to are headings of tables where we present

23 what we believe to be the capital cost required to

24  install those technologies at the Noveon-Henry plant,

Page 78

1  and those numbers also are presented in tables where we

2  present what we believe to be the annual operating and

3  maintenance costs that would be incurred if those

4  technologies were installed at the Noveon-Henry plant.

S

Q

Let’s take one of the options. Which option

6  would you prefer to discuss to give an example of what

7  this does?

8

A

The easiest one 

--

let’s just take number 1.

9

Q

Okay.

10

A

Using number 1, which is alkaline air

11  stripping of the PC tank contents with off-gas

12 collection and treatment. Let me first of all say that

13  when you strip ammonia or you strip volatile amines

14 which later can, in biological treatment, be converted

15  to ammonia, when you strip those, you cannot help but

16 also strip other volatiles. And the Noveon-1-ienry plant

17 analysis of air quality would indicate that if this

18  option were employed you would have to cover the PVC

19  tank and collect the off-gas and treat that off-gas to

20 maintain air permit compliance. So if you look in table

21  3, what you will see 

--

22

Q

What is the title of that?

23

A

The table 3 is entitled Capital Cost

24 Estimates for Treatment Alternatives. And what you will

Page 79

1  see there is, we believe, that the pretreatment 

- -

we

2  broke these costs in terms 

--

we split these costs out

3  in terms of pretreatment, primary treatment and

4  secondary treatment and tertiary treatment depending on

S  where the treatment option was employed. If it was

6  employed prior to primary clarification in treatment, it

7  was called pretreatment. If it was employed during the

8  primary treatment process, it was called primary

9  treatment. If it was employed as part of the activated

10 sludge treatment system that they already have in place,

11 it was termed secondary treatment. If it was employed

12 downstream of the secondary clarifier, it was called

13 tertiary treatment.

14

In this case the treatment would be employed

15 ahead of the primary treatment system; therefore, it was

16  termed pretreatment. We believe the capital costs of

17 installing that treatment system equipment-wise was

18  $650,000 or .65 million. All of the terms in this table

19 are presented in millions of dollars. So the subtotal

20  for the equipment and materials were $.65 million. We

21 then added to that what we believe was going to be

22  involved in site work and interface piping costs. And

23 those costs, if you will, were not rule-of-thumb

24 numbers. Those were calculated numbers based on knowing

Page 80

1  the proximity of the PC tank to where you could place an

2  off-gas treatment device and the proximity of the PC

3  tank to the primary treatment system. So that was not a

4  rule-of-thumb number. It was actually a calculated

5  number for site work and interface piping of $100,000.

6  The electrical and instrumentation costs, again, was a

7  calculated number, not a rule-of-thumb number. It was

S  based on the proximity of this treatment device to

9  available electrical power on the Noveon-Henry plant

10 site. That was an additional $250,000 or .25 million.

11

Now you are going to see a list of terms

12  called “contractor indirects.” Anytime a contractor

13  installs a piece of equipment he will have indirect

14  costs that he passes through to the purchaser or to the

15  buyer of this system. You will also see the costs for

16  engineering of this system and the construction

17  management of this system during its installation and

18  construction. And you will see a term called

19  “performance bonds.” And most projects of this nature

20 require a performance bond. The percentages listed for

21 contractor indirects, engineering and construction

22 management and performance bonds are conventional

23  numbers used for projects of this type.

24

Lastly, when you sum those up, you get $1.17

PageS!

1  million. And what that represents is the constructed

2  costs if all run smoothly. And you always have a

3  contingency in an installed-cost estimate. This type of

4  project, we believe the 15 percent contingency was a

S  reasonable number. That 15 percent represents .18 or

6  $180,000, .18 million or $180,000. When you sum it all

7  up, including the contingency, you get what we would

B  call a total-installed cost and that is $1.35 million

9  for what we are calling alternative number 1, which is

10 alkaline air stripping of PC tank contents with off-gas

11 collection and treatment.

12

Q

Did you do the same thing for alternatives 2

13 through 10 as well?

14

A

Yes, we did.

15

Q

So the total-installed costs for those

16 particular alternatives are listed under their number?

17

A

They are.

18

Q

And done on the same basis that you talked

19 about number 1?

20

A

Exactly.

21

Q

Now in addition to the information on table 3

22 there, you turn a couple of pages into your exhibit,

23 there is a document entitled Figure 1 Block Flow Diagram

24 of Waste Stream Sources and WWTF. Can you tell us what

Page 82

1  that is?

2

A

Yes. What that is is an illustration of the

3  current wastewater treatment facility provided at the

4  Noveon-Henry plant.

S

Q

Is that referred to in your testimony as

6  Figure 1?

7

A

It is.

8

Q

Now I’m looking at the next page. There is a

9  Figure 2. Can you tell us what that is?

10

A

Yes, I can. What that is is a block flow

11 diagram of alkaline air stripping of the alkaline air

12 stripping treatment alternatives that range from

13 applying that technology to the PC tank contents as we

14 just discussed, applying that to the PVC tank contents

15 and applying that to the secondary clarifier effluent.

16

Q

So am I correct in saying that if you looked

17 at Figure 2, you see the block flow diagram for the

18 various treatment alternatives numbered 1, 2 and 3; is

19 that correct?

20

A

Yes, sir, that’s true.

21

Q

And that is, there are flow diagrams or block

22  flow diagrams in this exhibit for each of the

23 alternatives 1 through 10?

24

A

There are. And one thing that should be

Page 83

1  noted about these block flow diagrams, the existing

2  equipment in these block flow diagrams is listed in bold

3  and the new equipment is listed in a nonbolded line. So

4  that would help people know what would have to be

5  installed to implement the alternative.

6

Q

Turn to the next page, page 3 of Petitioner’s

7  Exhibit 11 and look at table 4. will you tell the Board

8  what that is and use alternative number 1 again, please.

9

A

Be glad to. That is the annual operating and

10 maintenance cost estimates for the treatment

11 alternatives listed 1 through 10. And under number 1,

12 if you will, what you will see is the annual 0 and 1’!

13 costs listed in terms of thousand dollar increments.

14 So, for example, the labor cost associated with

15 operating alternative number 1 we estimated to be

16  $32,000 a year. That was based on a labor cost of $40

17 an hour which includes benefits. We estimated it would

18 cost $64,000 a year using an electrical cost of 6 cents

19 per kilowatt hours.

20

HEARING OFFICER HALLORAN: You may continue,

21 Mr. Flippin.

22

A

We estimated natural gas cost of this

23 alternative to be $18,000 a year, and that is based on 6

24 cents per therm. Then we estimated a maintenance

Page 84

1  materials cost 

--

2

Q

Before 

- -

there are other costs that are

3  listed that are not applicable to alternative 1. Just

4  describe those briefly.

5

A

Exactly. Thanks. The chemical costs that we

6  use here is actually the chemical costs 

--

we calculated

7  quantity of chemicals that would be needed and then used

8  actual costs that Noveon pays for those chemicals at the

9  time this document was written. Then there is a resin

10 replacement cost, and at the time this document was

11 written, the resin replacement cost if ion exchange had

12 been chosen would have been $35 per cubic foot.

13

On off-site disposal costs, that value used

14 there again referred to the ion exchange process

15 primarily. And that was based on a conventional value

16 and a typical and common value of 10 cents per gallon

17  for off-site disposal. For maintenance materials cost,

18 which was part of alternative number 1, we used a

19 conventional value of 5 percent of the equipment costs

20 to calculate the annual 0 and M maintenance cost. And

21  for alternative 1 that would have been $17,000 a year.

22 The next is the subtotal of what I will call the cost we

23 are able to define at this point. And that subtotal

24 cost was $130,000 a year. And what you know when you do

Page 

85

1  these annual 0 and N cost estimates is you are bound to

2  have missed something. And so we added a contingency

3  here of 10 percent which is quite reasonable. And 10

4  percent, needless to say, on $130,000 a year is $13,000

S  a year contingency.

6

when you sum all that up, you get a total

7  annual operating cost of $143,000 a year. And we

8  made 

--

we calculated that same total annual cost for

9  all 10 alternatives.

10

Q

So, for example, if for alternative number 8,

11  which is ion exchange treatment of effluent 

--

of final

12 effluent, the annual operating cost is $576,000?

13

A

Yes, sir.

14

Q

Now can you describe table 5 for us and why

15 you have that table in there.

16

A

I can. If you want to know what anything

17 costs you, it’s not just what you pay to have it

18  installed, it’s also what you pay to keep it going. And

19  so you have got to know when you build something how

20 much money do you need in the bank today, to not only

21 build it, but to keep it running. And that is called

22 present worth cost. And so anytime you make a

23 comparison of any treatment process and, candidly,

24 anything that has an installed cost and continuing

Page 86

1  operating cost, it must be done on a present-worth-cost

2  basis, that comparison, so you genuinely will know how

3  they compare. That comparison, again, defines what you

4  must have in your pocket today to fund that process.

5  And in this table 

--

and it’s called comparison of

6  present worth cost and ammonia removal for treatment

7  alternatives. And those costs were calculated for 1

8  through 10. The first column, a row in this table, is

9  the pounds per day of ammonia reduced through the use of

10 this process. The next column 

--

11

Q

would you describe that for alternative

12 number 1, please, what we have been following through

13  this?

14

A

Be glad to. For alternative number 1 we

15 calculated an estimated 247 pounds per day of effluent

16 ammonia reduction if this process were installed and

17 operating. The next row is the ammonia removal

18 expressed in a percentage. If this process were

19  installed while removing 247 pounds per day on average,

20  it would reduce the average effluent ammonia discharge

21 by 27 percent. The present worth cost of installing

22  this alternative is expressed in term of capital costs

23 which, if you remember earlier, we said would cost $1.35

24 million to install, and it’s present-worth-operating and

Page 87

1  maintenance cost based on a 10-year project life, based

2  on an annual interest rate of 8 percent, and based that

3  at the conclusion of that 10 years of having no salvage

4  value, it’s operating and maintenance cost would require

5  $960,000 in the bank today to fund it over the next 10

6  years.

7

Q

Mr. Flippin, there is no present worth cost

8  assigned to the capital cost because it is assumed that

9  it is paid on construction; is that correct?

10

A

That is true.

11

Q

If it was financed there would be an

12 additional cost as a result of that for the financing?

13

A

That is true.

14

Q

Or the lack of use of that capital for other

15 things, correct?

16

A

Yes, sir.

17

Q

And you use a 10-year period. Is that

18 customary?

19

A

The reason the 10-year period was used, if

20 you look at the life of concrete tanks and other things

21  like that, most would use a longer period of time.

22 However, if you look at the cost of equipment like air

23  strippers of pots of, if you will, that type of

24 equipment, a 10-year life is not an unusual life. And

Page 88

1  so a 10-year life, if you will, was considered to be a

2  minimum term in project life. Candidly, had we used a

3  longer life, it would have made our present worth costs

4  for operation and maintenance higher. So when I present

5  the total present worth cost for these alternatives,

6  please understand that these are minimum total present

7  worth costs because of the life that I chose of 10

8  years.

9

Q

Rave others used longer lives in assessing

10 present worth costs for waste treatment facilities?

11

A

Yes, sir, they have.

12

Q

How high or low have they gone?

13

A

The highest that I have seen, most 

--

let me

14  say the conventional practice is to use a life no longer

15 than 30 years, some use 20.

16

Q

And, generally speaking, what happens when

17 you use a longer life?

18

A

It makes the present worth cost of the annual

19 0 and N, operation and maintenance cost, much higher.

20

Q

That was not 

--

you used 10 years which makes

21  it lower than 30 years, is what I’m saying?

22

A

And makes it lower than 20 years as well.

23

Q

I show you what has been marked as

24  Petitioner’s Exhibit 12. would you tell us what that

Page 89

1  is, please?

2

A

Yes, I will. This exhibit is our attempt to

3  quantify what the present worth cost would be if we were

4  to provide incremental reduction of effluent

S  ammonia-nitrogen.

6

Q

Did you prepare this exhibit?

7

A

Idid.

B

Q

Are the data expressed therein true and

9  correct to the best of your knowledge?

10

A

They are.

11

MR. KISSEL: I move the admission of Petitioner’s

12  Exhibit 12.

13

MS. WILLIAMS: Is this attached to this testimony?

14

MR. KISSEL: Yeah. Yes, it is. It should be.

15

MS. wILLIAMs: what exhibit was it to the

16 testimony?

17

MS. DEELY: It was Exhibit D.

18

MS. wILLIAMs: I don’t see anything to object to.

19

HEARING OFFICER HALLORAN: Petitioner’s Exhibit

20  Number 12 is admitted. And, also, while we are on that

21 subject of exhibits, I’m missing Petitioner’s Exhibit

22  Number 10. I think Ms. williams was taking a look at

23  that.

24

MR. KISSEL: I think you admitted that into

Page 90

1  evidence.

2

MS. WILLIAMS: I gave that back.

3

HEARING OFFICER HALLORAN: I don’t have it

4  physically.

5

MS. WILLIAMS: You gave it to me to look at, and

6  then I gave it back.

7

(Brief pause in proceedings.)

8

HEARING OFFICER HALLORAN: Thank you.

9

MR. KI55EL: Are 11 and 12 in evidence?

10

HEARING OFFICER HALLORAN: 11 and 12 are in

11 evidence, correct.

12

MR. KISSEL: Okay. Thank you.

13

Q

How many pages does Exhibit 12 consist of,

14 Mr. Flippin?

15

A

Two pages.

16

0

would you take a representative technology

17 and run through the particular table?

18

A

I will be glad to. Let’s talk about one that

19 has where we looked at incremental removal to make

20 matters easier. Is that reasonable?

21

Q

Yes.

22

A

Effluent stripping, this is basically taking

23  the secondary clarifier effluent, elevating the pH to

24 approximately 10-1/2 or up to 11, and placement through

Page 91

1  the air strippers. The intent of that is to strip the

2  effluent ammonia from the liquid phase into the air.

3  And if you will notice in this option we are not

4  providing off-gas treatment. So in this table it’s

5  called effluent stripping with no off-gas treatment.

6

Q

Looking at the first page of Petitioner’s

7  Exhibit 12, with the line that starts “WWTF component,”

8  it starts with the third line, “effluent stripping”?

9

A

It starts with the 

--

10

Q

The fourth line.

11

A

Right. The third line, we did also look at

12 what the cost would be if we were to provide off-gas

13  treatment. But you are right, it starts with a fourth

14 line which is “effluent stripping without off-gas

15 treatment.”

16

will you describe that line?

17

A

Be glad to. That line, if you will, assumes

18  that we can strip 98 percent of the effluent ammonia

19 being discharged into the air. The next column is based

20 on the cost of stripping 75 percent of the ammonia into

21 the air. The next column is based on stripping SO

22 percent of the effluent ammonia into the air, and the

23 next column is based on stripping 25 percent of the

24 effluent ammonia into the air.

Page 92

1

Q

Would you take 

--

let’s take the 75 percent

2  removal, for example. would you just go down briefly

3  through the line below that to explain how you came to

4  the various numbers therein?

5

A

Glad to. The labor hours we believe to

6  operate this system would be 1,300 labor hours a year.

7  At the $40 per hour labor costs that are previously

S  explained, that would be $52,000 a year in labor. The

9  power requirement for this alternative is 450

10 horsepower. The kilowatt hours, just basically

11 converting the 450 horsepower are 2,940,732 kilowatt

12 hours for an annual electrical cost at 6 cents per

13 kilowatt hour of $176,444. The maintenance materials

14 costs, again, based on 5 percent of the

15 equipment 

--

capital equipment costs, is 101,000 

--

16  sorry, $1,013,600 and expressed as an annual cost, that

17 would be $50,680 per year over the 10-year project life.

18

For chemical costs, let me say that these

19 chemical costs on the front end, Noveon has done an

20 excellent job in negotiating good chemical costs. These

21 chemical costs would be higher for many people. For

22 caustic condition Noveon would be at $240 per ton for 50

23 percent caustic. In this alternative Noveon would be

24 spending $434,000 a year in caustic. And when you raise

Page 93

1  the pH up to approximately 11 to strip the ammonia, you

2  have to lower the pH to at least 8-1/2 before you

3  discharge it to maintain effluent permit compliance. So

4  we also have acid condition here to lower the pH, and

5  Noveon’s cost at this time was $46 per ton for 98

6  percent sulphuric acid. We believe the annual cost

7  incurred for the acid addition is $119,850.

s

when you sum 

--

and we also 

--

in some of

9  these alternatives we needed to add phosphorus. In some

10 of these alternatives we use, we looked at adding

11 magnesium hydroxide. In some of these alternatives we

12  looked at adding hydrochloric acid. In some of these

13 alternatives we looked at adding chlorine gas. And I

14 have listed the chemical cost that we assume for each of

15 those. And I say “assume,” those are what we believe

16  the Henry plant would need to pay for each of those.

17

The annual chemical cost was $553,850 a year.

18 The next column that you see is Annual Resin Replacement

19 Cost, Annual Off-Site Disposal Cost, Natural Gas Cost in

20 which this stripping alternative did not have any of

21  those. we then calculated the subtotal of the annual

22 cost, and for this alternative it would be for labor,

23 electrical, maintenance materials and chemical costs.

24 The annual operating cost would be $832,974. We added a

Page 94

1  contingency, as I described earlier, on the annual 0 and

2  M cost of 10 percent because you almost always leave

3  something out. And that contingency was $83,297. The

4  total annual operating and maintenance cost we estimated

5  for this alternative to be $916,271. And when that was

6  converted to a present worth value, what you would need

7  to have in the bank today to fund that annual operating

8  and maintenance cost over the next 10 years at an 8

9  percent interest rate, you would need to have in the

10 bank today $6,148,181. The capital cost for this

11 alternative was $3,770,418. And so the total present

12 worth cost, that is, adding the present worth annual

13 operating and maintenance cost, plus adding the capital

14 costs, the total present worth cost was $9,918,599. The

15 average ammonia removal that we believe this process

16  would provide was 648 pounds per day, again, resulting

17  in approximately a 75 percent removal. The present

18 worth cost expressed in dollars needed in the bank today

19 per pound of ammonia that would be removed over this

20  10-year project life is the cost we calculated which was

21  $4.20 per pound. Let me explain one more time how

22 that’s calculated. You take the total present worth

23 cost, what you must have in the bank today to install

24 this process and to operate this process over the next

Page 

95

1  10 years, and then you calculate, during that 10-year

2  period, how much ammonia you would remove. And that’s

3  simply the pounds per day of ammonia removed, times 365

4  days per year, times 10 years. And so you have the

5  total pounds of ammonia removed, the total present worth

6  cost during that 10-year period. You divide the two and

7  you get $4.20 present worth dollars per pound of ammonia

8  removed.

9

Q

You take the annual amount of ammonia removed

10  and divide it? You didn’t do it that way, did you? You

11 used the entire 10 years?

12

A

I did.

13

Q

How many technologies in Exhibit 12 did you

14  evaluate for this incremental approach?

15

A

We evaluated a total of 10 technologies. And

16 for the incremental approach we evaluated three.

17

Q

That is effluent stripping with no off-gas,

18 effluent ion exchange and tertiary nitrification?

19

A

Yes, sir.

20

Q

And those latter two appear on page two of

21  the exhibit?

22

A

Yes, sir.

23

Q

Thank you.

24

Mr. Flippin, I show you what has been marked

Page 96

1  as Petitioner’s Exhibit Number 13 for identification.

2

A

Yes, sir. This is a document that I

3  prepared, and the title of this document is the

4  Comparison of Costs and Removal of Effluent Ammonia

5  Removal Processes for the Noveon-Henry plant, the

6  Noveon-Henry wastewater treatment facility with a

7  10-year project life. And then I also repeated the same

8  calculations with a 20-year project life.

9

HEARING OFFICER HALLORAN: Mr. Kissel, do you have

10 Exhibit 12 that’s been admitted?

11

MR. KISSEL: I believe so. This is the 

--

12

HEARING OFFICER HALLORAN: Thank you.

13

A

And then 

--

14

Q

Let me, just so we make the record clear, the

15  10-year project life appears on the first two pages of

16 the exhibit; is that correct?

17

A

That is correct.

18

Q

And the 20-year project life appears on the

19 next two pages?

20

A

That is correct.

21

Q

And the next four pages is what?

22

A

The next four pages is a comparison of

23  removals and reliability of effluent ammonia removal

24 processes for the Noveon-Henry wastewater treatment

Page 97

1  facility. And in this document we list each technology,

2  what we believe to be the average effluent ammonia

3  reduction that can be achieved with that process. we

4  then give it a 

--

each process a reliability rating.

5 And the reliability rating, basically 10 would be the

6  highest and zero would be the lowest. And reliability

7  was based on our relative assessment of mechanical and

8  processed performance reliability to achieve the average

9  percent ammonia reduction removal stated. In essence,

10 reliability means the ability of a treatment process to

11  achieve the predicted effluent ammonia-nitrogen

12  concentrations on a routine basis. Then the next column

13  is a Comments column where we describe what each of

14 these technologies would involve and what obstacles, if

15 any, would they face.

16

Q

Going back to the first four pages, and I

17 think we pretty much talked about the capital cost,

18 operating costs and present worth costs, have we not, in

19  the percent removal?

20

A

Yes, sir.

21

Q

There is a column for each of these which

22  says dollars per pound ammonia or NH3-N removal. Would

23  you tell us both on the first page and on the third page

24  of the two cost comparisons what that is?

Page 98

1

A

Be glad to. For the first page that was

2  based on a 10-year project life at 8 percent interest.

3  And, again, we calculated over that 10-year life what

4  the present worth dollars one would need in the bank

S  today to not only build the process, but to fund the

6

process over a 10-year period, we then calculated the

7  cumulative pounds of ammonia that would be removed

8  during that 10-year project life and, basically, simply

9  divided the present worth dollars by the cumulative

10 pounds of ammonia removed during the 10-year life. And

11  that category is presented in column 4 in dollars per

12 pound of ammonia removed. And when you see NH3-N,

13  that’s an acronym for ammonia expressed as nitrogen.

14

Q

Did you prepare that document?

15

A

I did.

16

Q

And is it true and accurate to the best of

17 your knowledge?

18

A

It is.

19

MR. KISSEL: I don’t know if I moved the admission

20  of that.

21

MS. WILLIAMS: I would like to ask one question

22 before 

--

23

MR. KISSEL: I just want to move the admission of

24 Petitioner’s Exhibit 13.

Page 99

1

MS. WILLIAMS: Would you mind asking the witness to

2  clarify for us 

--

for those of us that are not

3  engineers, this gives me like major headaches 

--

that

4  the technologies listed in this Exhibit 13 are the same,

S  right, as what’s listed in Exhibit 11?

6

MR. KISSEL: Is that correct?

7

THE WITNESS: That is correct.

8

MS. WILLIAMS: There are some slight named

9  differences that if you understand what the technology

10  is probably you could probably tell right away that PC

11 tank stripping with off-gas control is the same as

12 alkaline air stripping of the PC tank, but I just want

13  to make sure that’s the case, right?

14

TIlE WITNESS: That’s the case.

15

MS. WILLIAMS: Thank you. I have no objection.

16

HEARING OFFICER HALLORAN: Petitioner’s Exhibit

17 Number 13 is admitted into evidence.

18

A

Would you like for me to discuss 

--

you had

19 asked me to discuss pages 1 and 3. And I just discussed

20  the column 4 on each of those pages. Is there any

21  further explanation you would like for me to offer?

22

Q

No. Not at this time. I show you what we

23 have marked as Petitioner’s Exhibit 14 for

24  identification. Tell me what that is, please.

Page 100

1

A

I will. A discussion occurred in which the

2  question was asked, What were the population equivalents

3  for the untreated waste load at the Noveon-Henry plant

4  prior to 1990. And this written testimony prepared by

5  me addresses that question.

6

Q

Can you briefly summarize 

--

or strike that.

7

Did you prepare this document?

8

A

Idid.

9

Q

The information relied on in that document

10  included what?

11

A

The information relied upon in that document

12  came from two sources. It came from Illinois

13  regulations, particularly section 

--

and I have listed

14  in this document 304.345. It needs to be corrected to

15 be 301.345. But it relies upon the regulations

16 definition of population equivalents. It relies upon

17 memos sent within the Illinois EPA. It relies upon the

18  Illinois EPA’s description of the Noveon wastewater

19 untreated waste load in 1983. It relies upon the

20  definition of the Noveon untreated waste load as defined

21 in permit applications for construction approval, dated

22 April 23, 1987 and approved on May 28th, 1987, by IEPA.

23 An application for permit construction submitted on

24 April 21st, 1988, by Noveon and approved by IEPA on

Page 101

i.    october 11th, 1988. Information presented of the

2  untreated waste load by Noveon and its application for

3  construction approval on April 24th, 1989, and approved

4  by IEPA on June 28th, 1989. An application for

5  construction approval submitted by Noveon on September

6  11th, 1989, where the untreated waste load was described

7  and approved by IEPA on October 20th, 1989. And I went

S  through this exercise to see if at any point in this

9  prior time previous to 1990, at any point was there any

10  information that would define the Noveon population

11 equivalents at greater than 50,000, and at no point did

12 that occur. At no point did the data suggest those

13 populations equivalents were greater than 50,000. In

14 all cases they were less.

15

MR. KISSEL: I move the admission of Petitioner’s

16 Exhibit Number 14.

17

MS. WILLIAMS: At this point I have some objection,

18  I guess, that I would like to raise. This probably can

19 be cured maybe by an additional exhibit. In the

20 Agency’s opinion I think it’s worth stating we don’t

21  really think this information is relevant or necessary

22 to the Board to make its decision in this case, but we

23  recognize that there is very broad latitude here. If

24  the hearing officer feels it’s relevant, then that

Page 102

1  pretty much goes. But I would like to request at this

2  point that if this exhibit is going to be entered that

3  the document referred to at the bottom of the first

4  page, August 24th, 1983, memo also be entered into the

5  record as an exhibit to support the foundation of it.

6

MR. KISSEL: I don’t think it’s necessary to

7  support the foundation, but I have no 

--

it’s an Agency

8  memo so I have no problem 

--

9

MS. WILLIAMS: I don’t have a clue in my box where

10 to find a copy of it. And I took your word for it

11 yesterday that it was somewhere as part of the permit

12 appeal record. And I would appreciate it, and I think

13  it would make it easier for the Board and us to be able

14  to refer to that document today. I don’t think it’s

15 unreasonable. They already have it ready. Thank you.

16

MR. KISSEL: Can we mark this exhibit as

17  Petitioner’s Exhibit 15 and ask Mr. Flippin to take a

18  look at that, please?

19

HEARING OFFICER HALLORAN: I’m sorry. What is it

20 again, 15?

21

Q

Would you describe what it is, please?

22

A

Sure. Exhibit 15 is a memorandum prepared by

23  the Illinois EPA in which the Illinois EPA states on

24 pages 1 and 2 what they believe to be the untreated

Page 103

1  waste load associated with the Noveon-Henry plant.

2

Q

It is an Illinois Environmental Protection

3  Agency memo that was provided to you?

4

A

Yes.

5

Q

Is this the memo that is referred to in your

6  testimony, Thomas W. Meyer and Lyle A. Ray, in their

7  memo dated August 24th, 1983?

8

A

It is.

9

MR. KISSEL: I move the admission of Exhibits 13

10 and 14 

--

I’m sorry, 14 and 15.

11

MS. WILLIAMS: 14 and 15. I just want to point out

12 for the hearing officer that going down this road of

13  looking at actually what the PE is, we are more than

14  prepared to cross-examine Mr. Flippin, present counter

15 testimony and even, possibly, bring in further rebuttal

16 testimony tomorrow, if necessary, to fully develop that

17 issue. But we do feel it’s really not relevant to what

18 we are talking about here today as to whether or not

19 relief from the standard as it exists is appropriate.

20

HEARING OFFICER HALLORAN: I’m going to split the

21 difference with you, Ms. Williams, so to speak. I’m

22  going to allow exhibit 

--

Petitioner’s Exhibit 14 is

23 admitted over your objection. But your request for

24 petitioner’s Exhibit Number 15 is also admitted. And

Page 104

1  that’s the memo you have just spoken to. 14 and 15 are

2  admitted into evidence. Objection so noted.

3

MR. KISSEL: I have no further questions at this

4  time.

5

HEARING OFFICER HALLORAN: Ms. Williams?

6

MS. WILLIAMS: Do you want me to get started?

7

HEARING OFFICER HALLORAN: Sure.

8

CROSS-EXAMINATION

9

BY MS. WILLIAMS:

10

Q

Good morning, Mr. Flippin. I’m going to

11 start by asking you some questions in general about the

12 prefile testimony, and then we will probably go more

13 specifically through some of your exhibits.

14

On the first couple of pages 

--

I believe

15  it’s page 3 of your testimony, yes, page 3 

--

you list

16 in several different categories a number of facilities

17 that you have worked on installing nitrification systems

18 that are in some way comparable to the work you have

19 done in this case, correct?

20

A

In this case I have evaluated nitrification

21  facilities. And in these other cases I’ve actually

22 developed designs which were installed.

23

Q

So in all these cases designs have actually

24 been installed and implemented?

Page 105

1

A

In the cases listed on page 3, these are

2  facilities that have been installed and they are

3  operational.

4

Q

With the exception 

--

S

A

With the exception of Eli Lilly in Puerto

6  Rico which is currently under construction.

7

Q

What about the Lower Bucks County?

8

A

Rohm and Haas combined with Lower Bucks

9  County, Bristol, Pennsylvania, facility; that facility

10 was designed but never installed due to lack of funding.

11

Q

How much was that project projected to cost?

12

A

We were responsible for developing the design

13  for a construction 

—-

sorry, for a detailed design

14 engineering firm, and they were the ones who prepared

15  the capital costs for that facility. So I’m unaware of

16 what their cost was for that facility.

17

Q

What about the others?

18

A

The other facilities 

--

if you will, these

19 facilities, my role in them, let me say, was primarily

20 to develop the process design.

21

Q

So in none of these were you responsible for

22 coming up with the cost estimates then?

23

A

On none of these 

--

let me look at this one

24 moment.

Page 106

1

(Pause in proceedings.)

2

A

On none of these was I responsible for coming

3  up with the cost.

4

Q

Did any of these plants, once the facilities

B  were implemented, have a discharge exceeding 225

6  milligrams per liter of ammonia-nitrogen?

7

A

In each of these cases these facilities were

S  designed to provide complete nitrification. And so the

9  effluent ammonia concentrations were very low.

10

Q

Like lower than 5?

11

A

They were certainly lower than 20. However,

12  I should note that for several of these facilities the

13  incoming ammonia concentration was as high as 400 to 600

14  or higher.

15

Q

Pounds per day?

16

A

Milligrams per liter. On a pounds-per-day

17 basis it would have been on some of these greater and on

18  some of these less.

19

0

Looking on page 19 

--

well, I might be

20  looking at page 19 of your old testimony. I’m having a

21  little trouble going from 

--

22

(Pause in proceedings.)

23

Q

In your testimony you discussed upgrading of

24  the tankage at the Noveon plant, correct, to be fully

Page 107

1  compliant with the ten state standards?

2

MR. LATHAM: Where is his testimony?

3

MS. WILLIAMS: It’s in here somewhere.

4

Q

Is it true 

--

I mean, if you don1t recall

5  testifying to that then I can ask another question.

6

(Pause in proceedings.)

7

Q

There we go, page 21, second paragraph. Are

8  you following me now?

9

A

lam.

10

Q

And you state that Noveon expanded aeration

11  in 1998 by 100 percent; is that correct?

12

A

That is true.

13

Q

Isn’t this because of an expansion in

14 production?

15

A

It was done for several reasons. One was to

16 accommodate expanded production. Two was to provide

17  greater treatment plant flexibility.

18

Q

Can you explain in more detail what you mean

19 by “greater flexibility!!?

20

A

Certainly. There are ways 

--

if all you

21 needed was greater oxygen aeration upgrades, there are

22 ways to accomplish that within a given tankage.

23  However, when you go to the extent of building

24  additional tankage, not only do you get the additional

Page 108

1  oxygen transfer, you get the additional flexibility of

2  having added tankage. That allows you, if needed, to

3

take aeration tanks out for service and other

4  flexibilities.

5

Q

And they doubled the tankage, correct?

6

A

They did.

7

Q

Did this doubling provide greater oxygen

8  transfer?

A

The additional aeration equipment

doubling certainly did.

Did it provide any improvement in

levels?

9

10

with this

11

Q

12 effluent

13

14

15

16

17

18

19

20

21

22

23

24

that came

ammonia

A

It did not to my knowledge.

Q

Can you explain why?

A

I believe the reason that it didn’t was

because of the presence of bio-inhibitors in the

influent to the Noveon-Henry plant wastewater treatment

facility.

Q

Did it have anything to do with alkalinity?

A

The Noveon-Henry plant has adequate

alkalinity to initiate and accomplish some

nitrification.

Q

What do you mean by “some nitrification”?

A

In nitrification

you require

--

when the

Page 109

1  bacteria removes essentially a pound of ammonia, they

2  consume approximately seven pounds of alkalinity. They

3  will continue to do that until they reach a limiting

4  concentration of alkalinity at which time they were

5  unable to provide additional ammonia removal. The

6  Noveon-Henry plant does, in fact, have alkalinity

7  present at concentrations great enough to achieve some

8   nitrification if it were not for the presence of

9  bio-inhibiting compounds that inhibit nitrification.

10

Q

So can you explain to us the statement on

11 page 16, “Consequently, if biological nitrification

12 could be implemented with inhibitor control, the

13  majority of alkalinity would have to be chemically

14  added”?

15

A

Clearly my two statements are very

16 consistent.

17

Q

I’m not saying they are inconsistent. I’m

18 just asking you to explain them for us.

19

A

Glad to. The Noveon-Henry plant 

--

20

Q

we are having a much more friendly proceeding

21  today than yesterday, Mr. Flippin.

22

A

The Noveon-Henry plant wastewater, when we

23  have analyzed it in the past, contained about 200 to

24  200-- between 200 and 300 milligrams per liter of

Page 110

1  alkalinity. We have found in our work that a limiting

2  concentration of alkalinity nitrifiers, basically,

3  quote, unquote, become inhibited because of a lack

4  thereof, is around 50 parts per million. So what you

5  see is Noveon wastewater frequently and commonly

6  contains about anywhere from 200 to 250 extra milligrams

7  per liter of alkalinity that could be used for

8  nitrification. If you divide the 200 to 250 by 7, what

9  you will see is that normally they can remove 

--

they

10 can nitrify approximately 30 milligrams per liter 

- -

11

Q

5.7, 35.7.

12

A

--

of ammonia. But, if you will, the ammonia

13  that needs to be nitrified if they were to provide

14  complete nitrification is certainly greater than 30 on

15  average. And so that is why I am saying that if they

16  were required to nitrify completely the bulk of the

17  alkalinity that they would need would have to be added.

18 There is just not enough present to do complete

19 nitrification.

20

Q

Can you explain why Mr. Giffin told us

21 yesterday that they didn’t add alkalinity when they

22  worked on attempting to reduce inhibitors?

23

A

What the facility did do is they ran a

24 pretreatment system designed to remove

Page III

1  mercaptobenziothiazole to a degree 

--

also known as MET

2  in my testimony 

--

and that pretreatment system was

3  successful in removing up to 50 percent MET and even

4  greater. If you will, they then after running that

5  pretreatment system for awhile with full scale

6  implementation, in other words, all of the polymer

7  chemicals wastewater went through it. After they had

8  run that pretreatment system for approximately two

9  months, they brought in nitrifiers from a facility whose

10  population was primarily that, nitrifiers, and added it.

11 When they added it, they had surplus alkalinity, surplus

12  dissolved oxygen. And if there had not been an

13  inhibiting environment, nitrification would have

14  initiated and would have been maintained to a certain

15 degree. And so the reason 

--

the fact that they did

16  not, quote, unquote, add any additional alkalinity did

17  not, if you will, jeopardize the ability to see if this

18  trial would initiate and maintain a certain level of

19  nitrification.

20

Q

You also talk in your testimony about

21 something you call alpha. Can you explain what you mean

22  by alpha?

23

A

Yes. 

Alpha is the oxygen transfer in

24  wastewater divided by the oxygen transfer in tap water

Page 112

1  or clean water, if you will. And so the higher the

2  alpha, the easier it is to transfer oxygen in a

3  wastewater.

4

Q

And you testify that Noveon’s alpha is

S  something like half that of a typical municipal?

6

A

Yes. Right. Typically, in a municipal

7  wastewater an alpha value for fine bubble-diffused

B  aeration is approximately 0.6. In 1987 when Gerry

9  Shell, a nationally recognized expert in oxygen

10 transfer, did test work on the Noveon-Henry plant

11 wastewater, they found with fine bubble-diffused

12 aeration an alpha of .35.

13

Q

Did you do any tests since then to figure out

14 what’s causing it?

15

A

I have not,

16

Q

Of course, it can be assumed that if that

17 number was higher, the efficiency of treatment at the

18 plant would be better, correct?

19

A

The oxygen transfer does not define the

20 treatment efficiency. What happens, the lower your

21 alpha, the more horsepower or the more aeration

22  equipment you have to install to provide the same level

23  of treatment.

24

Q

Does that translate to a rate of 4.6 pounds

Page 113

1  of oxygen per pound of nitrogen? Would you agree with

2  that?

3

A

I’m sorry, would you repeat the question?

4

Q

Did they supply a rate of 4.6 pounds of

5  oxygen per pound of ammonia-nitrogen they were trying to

6  remove in the tanks?

7

MR. KISSEL: I just 

--

I don’t get the context. Is

S  there some document that we are referring to? I just

9  want to make sure the witness understands what the

10 question is. That’s all.

11

THE WITNESS: And, candidly, I don’t.

12

MR. KISSEL: I sort of figured that.

13

Q

We are trying to get at just simply whether

14 there was an attempt made to provide as much oxygen as

15 would have been necessary to nitrify. I mean, we know

16 there is an issue with bio-inhibition, as well, but it

17 seems relevant to find out whether there was enough

18 oxygen provided as well?

19

A

Yes, it is relevant. And the answer to that

20 question is when the plant ran its interim pretreatment

21 system on a full-scale plan, treating all of the PC

22 wastewater for two months before adding the nitrifiers

23 at the time prior to the addition of the nitrifiers,

24 after the addition of the nitrifiers and for subsequent

Page 114

1  weeks following that addition, the plant maintained

2  ample dissolved oxygen for the nitrifiers to have been

3  able to nitrify.

4

Q

Can you quantify the ample oxygen for us at

S  all?

6

A

I can. The plant has a policy of typically

7  operating at dissolved oxygen levels of 3 milligrams per

8  liter or greater. And those concentrations by no means

9  would inhibit nitrification.

10

Q

Now sometimes they go lower than that,

11 correct, because your testimony says a minimum of 1.5

12 milligrams per liter?

13

A

At times they will go lower than 3, down as

14 low as 1-1/2. But again, let me say that plenty of

15 nitrification systems maintain nitrification at 1-1/2

16 milligrams per liter DO.

17

Q

On page 29, last paragraph 

--

I know I’m

18 jumping around a little bit. I apologize ahead of time.

19

A

That’s okay.

20

0

You talk about comparing the present worth

21  costs per pound removal with municipal plants. In the

22  last paragraph there you say, “It is less likely that

23  the present worth cost comparison of these facilities

24  reveal that the cost of ammonia-nitrogen removal is less

Page 115

1  than 20 cents a pound.” Can you tell me where you get

2  this, and is there something we can look to to find

3  figures like these?

4

A

Yes. There is something that you can look

5  to. We evaluated the surcharge cost for the City of

6  Nashville, Tennessee. And in making such an

7  evaluation 

--

8

Q

Surcharge to industrial sources, or 

--

9

A

Surcharge to anyone who discharged

10 concentrations that the city considered greater than the

11 concentration associated with typical domestic sewage.

12

MR. KISSEL: I think he is referring to industrial

13  user charges 

--

14

MS. WILLIAMS: Right.

15

MR. KISSEL: 

--

which a lot of sanitary districts

16 have.

17

Q

This isn’t looking at how much it costs to

18  treat the domestic waste then, or is it?

19

A

This is looking at how much does it cost to

20  treat the concentrations 

--

this is looking at the cost

21  of what it takes to treat wastewaters that are stronger

22  in concentration than domestic sewage.

23

Q

By a domestic plant that’s not built to do

24 that?

Page 116

1

A

No. By a domestic plant that is built to do

2  that.

3

Q

And that is which plant here are we talking

4  about?

5

A

The Knoxville Utility Board operates multiple

6  plants that receive industrial wastewaters and also

7  apply surcharges based on BOD, suspended solids and

8  ammonia.

9

Q

Did you look at any other? Was that the only

10 one you looked at?

A

I looked at the City of Chattanooga; the City

of Nashville, Tennessee; Louisville, Kentucky. We were

looking at plants of, at least, comparable size in the

national vicinity. The only one I found that was

surcharging on ammonia at that time was the Knoxville

Utility Board.

0

comparison

I don’t understand how that provides a

to what we are talking about here?

A

The purpose in a surcharge is to recoup your

it’s not just your operating costs.

Isn’t sometimes a surcharge also imposed to

industrial users from going over a certain

costs, and

0

discourage

effluent limit?

A

It is 

--

while it might be a discouragement,

Page 117

1  it is to recoup their costs.

2

Q

Let’s move on. Now you stated that the ten.

3  alternatives you provided to review in this case are

4  all 

--

are the 

--

I believe the word you used was

5  “proven”?

6

A

Proven.

7

Q

Proven technologies for providing

8

nitrification, correct?

9

A

Proven technologies for reducing effluent

10 ammonia.

11

0

Okay. Thank you. I want to get that very

12  clear. These are all proven technologies? We are not

13  looking at experimental technologies, or 

--

14

A

Exactly.

15

0

And they are technologies that are all in

16 place somewhere?

17

A

Yes.

18

Q

And have you worked with all of them

19 personally?

20

A

In my resume the ones that you see that I

21 have worked with personally from a design go to

22  full-scale implementation, go to full-scale operation,

23  have been nitrification, biological nitrification and

24  breakpoint chlorination. All the others I have

Page 118

1  evaluated on a bench scale treatability basis in order

2  to develop conceptual level designs and cost estimates

3  so the client themselves could see what their

4  alternatives were for reducing effluent

5  ammonia-nitrogen. So I have done that on other projects

6  as well this one.

7

0

So wouldn’t it be fair to state then,

8  Mr. Flippin, that each of these technologies listed in

9  your testimony from a design standpoint are

10 technologically feasible to implement for reduction of

11 ammonia-nitrogen?

12

A

Can they be built? Yes.

13

Q

Thank you. That was all I wanted to know for

14 that question.

15

Now like I asked, I think in the

16  clarification that the figures that 

--

sorry, or the

17 technologies that you list in Exhibit 11 are the same

18  technologies that you go through the cost with in 1

19 through 10, numbered 1 through 10. And they are the

20  same technologies that you were looking at in Exhibits

21  12 and 13 that provide more detailed cost?

22

A

That is true. The same technologies were

23  carried through.

24

Q

At this point I would like to just sort of

Page 119

1  ask you a number of questions about your cost figures.

2  I am not an economist, that’s for sure. And so a lot of

3  these terms are somewhat unfamiliar to me so I would

4  appreciate a little bit of explanation about how you

5  derive them and maybe about what some of them mean.

6

Now with regard 

--

you discussed use of a

7  contingency. And you use a contingency in both the

8  capital component and the operating component, correct?

9

A

Idid.

10

Q

And it sounded very logical to me what you

11 testified that, oh, it’s always true that you miss

12 something, right? I mean, that certainly makes sense to

13 me. How did you come up with a figure 15 percent?

14

A

When you look at a project and you look at

15 where it will be installed and you look at what

16 surrounds it and you look at the complexity of what you

17 are going to install, it derives what type of

18 contingency should you allow.

19

Q

But wouldn’t that have been different for

20  each of these alternatives, then, if that was the case?

21

A

Thankfully the land where these would be

22  installed is essentially the same location. So that

23 made the uncertainty about location comparable to all.

24  It made the concern about proximity to other pieces of

Page 120

1.    equipment common to all. It made the uncertainties

2  about power, of delivery being in the same location, it

3  made that uncertainty common to all. And so the 15

4  percent you see there for capital cost contingency is

5  one based on this project and what was involved seemed

6  to be a reasonable value to apply.

7

0

But it pretty much was just your guess of

8  what seemed like a reasonable value? You didn’t look to

9  abook, or--

10

A

Actually, what I looked to were construction

11 cost estimators employed within our company that do

12 these type of cost estimates frequently. And they are

13  in a better position to make that determination than I

14 am.

15

Q

What else did you use to develop this?

16

A

Pardon?

17

Q

Are you talking about a model that’s used at

18 your company or a person? I guess is my first question.

19

A

For developing construction cost estimates we

20 certainly have people.

21

Q

Right.

22

A

Construction cost estimators. We also have a

23 model that includes our historical knowledge of what it

24 costs to install various pieces of equipment, et cetera,

Page 121

1  et cetera. And so when looking at this project and

2  hearing me describe to them the locations, the distances

3  between units, the distance to substations, what other

4  projects had been built in that same area, if you will,

S  I relied upon their judgment as to what level of

6  contingency should be applied. And what I have

7  explained earlier are the factors that they considered.

8  And the 15 percent value that you used there was

9  considered reasonable. And in my dealings in these type

10 of estimates, that is not an unreasonable or unusual

11 number.

12

Q

So what would be the range?

13

A

Contingencies?

14

Q

Yeah.

15

A

I don’t think anyone would apply a

16  contingency smaller than 5 percent. I think, depending

17 on the uncertainty, that contingency can be as high as

18 25 percent.

19

Q

This is all still very fuzzy to me, I guess.

20  I don’t suppose we are going to have a witness to

21 testify about what goes into that model and how those

22 numbers were derived then? You relied on them, but they

23 are not going to be here to provide that information?

24

A

I certainly reviewed their construction cost

Page 122

1  estimates. And I certainly took the information that

2  they provided in those estimates and placed that

3  information in these tables.

4

Q

So you did place them in the tables yourself?

5

A

Idid.

6

0

why did you choose a different contingency

7  for 0 and N?

8

A

On operation and maintenance costs, the good

9  news about operation and maintenance costs, is there is

10 less uncertainty there than in the actual capital

11 installed costs or construction cost estimates. So

12 that’s why you see a lower contingency there. Now why

13  is there contingency still there? One thing is you will

14  notice that the cost of chemicals that you see me

15 providing were the cost of chemicals that Noveon

16 provided 

--

was paying at the time of this estimate.

17 Chemical 

--

18

0

So these are chemicals they currently use

19 already?

20

A

The 50 percent sodium hydroxide is used

21  today. Sulphuric acid is used today; phosphoric acid is

22 used today. And so those chemicals are used today.

23

Q

So you based that cost on what they pay?

24

A

On what they paid at the time of this

Page 123

1  estimate.

2

0

You stated that they had been able to

3  negotiate very good prices for those, correct?

4

A

Yes. In comparison to other cost estimates I

5  have done, yes.

6

Q

Can you give us some perspective on that?

7  What you mean by that?

8

A

What do I mean by that?

9

Q

10 percent, 15 percent cheaper than other

10 companies?

11

MR. KISSEL: What is the question? I’m sorry. I

12 was distracted by my compatriot.

13

MS. WILLIAMS: I’m just asking 

--

he stated that

14  they have negotiated very good rates. And I asked for

15  some perspective, how much better than other facilities?

16

MR. KISSEL: If you know.

17

A

For example, it’s interesting at the time

18 there is a publication called the chemical Marketing

19 Reporter that we use within our company where if we are

20 working with a client who is going to be using a new

21 chemical that they don’t currently use, a Chemical

22 Marketing Reporter is a common document one refers to to

23 get the cost of a particular chemical. Let’s just take,

24  for example, 50 percent caustic. If at the time this

Page 124

1  cost estimate was developed Chemical Marketing Reporter

2  would have had you believe that you should pay about 300

3  to $350 a ton for 50 percent caustic. And, yet, you

4  will see the number that I used was $240 a ton, and that

5  is what Noveon was paying at the time.

6

Q

I suppose it would make sense, though,

7  wouldn’t it, they have gotten these good rates, if they

8  increase the amount they buy they might be able to

9  negotiate better rates, wouldn’t they?

10

A

There is two things that drive costs, of

11 course, one is availability and one is usage.

12

0

supply and demand, is that what we call that?

13

A

Exactly.

14

Q

Let’s talk about some of these other ones.

15 You give an estimate for gas and electric. What’s that

16 one based on?

17

A

The gas and electric was based on contacting

18 Noveon and asking what is a reasonable value to assume

19  for electrical costs and to use 

--

to assume for natural

20 gas costs.

21

Q

Based on what they currently contribute to

22  PolyOne, or how do they 

--

based on what they currently

23 pay to run the plant?

24

A

Right. Based on their current 

--

based on

Page 125

1  their cost of electricity and cost of natural gas at the

2  time of these estimates, I simply ask, What is a

3  reasonable value for me to use in these cost estimates

4  for electrical and natural gas?

5

0

Do you know if they buy those off the market?

6

A

I don’t know how they purchase natural gas or

7  electricity.

8

Q

But wasn’t their testimony that 

--

yesterday

9  that they shared utilities with Polyone?

10

A

They do share utilities with PolyOne as it

11 equates to steam. They testified to that. As it

12  relates to river water treatment, they testified to

13  that. As far as electrical and natural gas, I don’t

14  remember them testifying to that.

15

Q

So you are not sure those figures are based

16  on buying it off the market or not?

17

A

I don’t know how they buy natural gas and

18  electricity.

19

0

Would we have to ask Mr. Giffin about that?

20

A

Or Mr. Davids.

21

Q

Mr. Davids, okay.

22

How about your labor costs, $40 an hour;

23  what’s that based on?

24

A

Again, based on contacting Noveon and saying,

Page 126

1  I need a labor cost including salary and benefits, what

2  values should I use that’s reasonable. And $40 an hour

3  is a value that was supplied to me.

4

Q

And the only reason I’m requesting at

S  all 

- -

we all understand the cost of benefits is pretty

6  substantial, but they did provide a figure elsewhere in

7  the petition of $23 an hour of being the average salary

S  in the plant. So was this a precise figure of the

9  difference between that $23 an hour and these benefits?

10

A

If you will, Mr. Davids could testify to

11  that.

12

Q

Was he the person you went to directly when

13  you wanted to get figures to plug into this table?

14

A

Yes. And Mr. Giffin.

15

Q

The next thing, I want to ask about labor;

16  and the last thing I want to ask about labor is, do you

17  assume for most alternatives, I think all of them except

18  1, 15 hours 

--

15, did you call them man-hours 

--

15

19 hours of labor a year to operate 1,500? On

20  exhibit 

--

turn to Exhibit 12. It looks like there is

21  some variety, but looking at Exhibit 12 the Labor Hours

22  line I think I was looking mostly at the second page

23 where they all were 1,500. The first page they do

24 range, several are 1,500, correct?

Page 127

3.

(Pause in proceedings.)

2

Q

Is my question unclear?

3

A

No. Your question is not unclear. I’m just

4  looking at the alternatives and what labor hours are

5  associated with them. 1,500 labor hours were associated

6  with alternative 3, alternative 5, alternative 6,

7  alternative 7, alternative 8 and alternative 10, when

8  complete treatment was provided.

9

Q

And 1,500 hours comes out to about 30 hours a

10 week over 50 weeks. So, presumably, this would involve

11 having to hire another full-time person under each of

12 these alternatives 3, 5, 6, 7, 8 and 10?

13

A

If you notice, if we were hiring a full-time

14 person, we would have put 2,080 labor hours. So it does

15 not represent hiring a full-time person. It represents

16  using people that are already on staff or using a

17 portion of a person, if you will.

18

0

People who are already being paid either $23

19 an hour or that plus something, maybe 40, including

20 benefits, correct?

21

A

For these labor hours.

22

0

When you give us the final figures on page 3

23 of Exhibit 11, the total at the bottom present worth

24 costs, you say they are based on a 10-year period which

Page 128

1  you discussed in your direct examination, and you also

2  say they are based on 8 percent interest and no salvage

3  value. Can you tell us, why did you do that? What did

4  you base the 8 percent figure on, and why did you assume

5  no salvage value?

6

A

Would you please show me which exhibit you

7  are referring to?

8

Q

This is the same one from May 17th. I’m

9  sorry. Page 3.

10

MR. KISSEL: Here you go.

11

THE WITNESS: Thank you.

12

MS. WILLIAMS: Like I said, if I jump around too

13  fast, just holler.

14

THE WITNESS: That’s okay. And the question again?

15

Q

what did you base the 8 percent interest

16 figure on? What did you base your decision to use no

17 salvage value?

18

A

In May of 2002 the interest rate which one

19 could get, if you will, or make on your money. In this

20 case 8 percent was considered by me, based on available

21 interest rate data at the time, to be a reasonable

22 value.

23

Q

At what time was it based on?

24

A

May 17th of 2002, just prior to that as I was

Page 129

1  preparing this document.

2

0

That’s what the interest rates were at that

3  time?

4

A

That’s what I believed one could make, in

5  fact, on their money.

6

0

Would that change at all if you were doing

7  this today?

8

A

If we were doing this today, I would

9  certainly have to revisit that.

10

Q

What about the no salvage value?

11

A

The no salvage value if you 

--

anyone who has

12  operated wastewater treatment facilities and have

13  finished operating them and then closes it 

--

and then

14 you closed them down for some reason, there is just not

15 much of an aftermarket value on wastewater treatment

16 equipment.

17

Q

Oh, I would buy it, wouldn’t you?

18

MR. LATI4AM: We will sell it to you.

19

Q

But not nothing is it usually? Nothing?

20

A

Well, I will be honest with you, we are

21 working on a project now in San Diego where a utility

22  company shut down their operations next to one of our

23 clients and said, You are welcome to have any of this

24 equipment if you will come get it.

Page 130

1

0

Did you go get it?

2

A

We are still looking to see what pieces we

3  can use.

4

Q

On the first page of that same exhibit you

5  talk about the information that you based your analysis

6  on from the plant, operating information, right? I

7  guess the design parameters; is that the right thing we

8  call it, when you give flow rate?

9

A

Are you looking at table 1, please?

10

Q

Table 1, influent and waste load, yes.

11

A

This is the design waste load, and I don’t

12 call this the design untreated waste load because,

13  again, due to the recycling of solids through the PVC

14  tank. But this is the design waste load which we looked

15 at all the alternatives with.

16

Q

And for a flow rate for the design waste load

17 you get an average of 401? Oh, no, I’m sorry, an

18 average of a total of 560?

19

A

Yes.

20

0

And a peak of 769, correct?

21

A

Yes.

22

0

Where did you get those figures from?

23

A

We did an individual waste stream data

24 gathering and data 

--

we did an individual waste stream

Page 131

1  characterization program in 1995 which provided the

2  basis for this table.

3

Q

Is that something that you can submit to the

4  Board to help them in making their decision?

S

A

The information is summarized here in

6  table 1.

7

Q

The information is summarized, but the data,

8  is the data something that you can provide to the Board

9  or to the Agency for that matter?

10

A

Yes. We could find that data and provide

11 that data.

12

MR. KISSEL: I’m not sure. We would have to

13  evaluate whether it’s necessary. And this information

14  has been available to the Agency for some time. And we

15 don’t think it’s necessary for the Board to make its

16 determination unless they disbelieve Mr. Flippin. He

17 has made the determination. He has relied on data. And

18 at this point I would not intend to present it to the

19 Board unless asked to do so by the Board itself.

20

HEARING OFFICER HALLORAN: Ms. Williams?

21

MS. WILLIAMS: I would make the suggestion to the

22 Board that they consider asking for the data on which

23  these numbers are based themselves. And that’s up to

24 them whether they want to do it or not.

Page 132

1

HEARING OFFICER HALLORAN: This information has

2  been available for some time?

3

MS. WILLIAMS: I’m not aware of that. I don’t

4  think we have that information.

S

MR. KISSEL: This table has been made available.

6

MS. WILLIAMS: The table has been, but the data on

7  which the table was derived front. I’m not aware of it.

8  I don’t know what form it’s in. You might have gotten

9  it somewhere in the boxes.

10

MR. KISSEL: That’s not what I said. I said the

11 Agency has had this table for a long time, and we have

12 never received a request for the back-up information.

13 And, presumably, they used that to evaluate for our

14 Petition for Adjusted Standard. There was never any

15 request or need, from our point of view, from them that

16 they needed those data. I think it comes as rather a

17 surprise at this hearing to ask for that now.

18

HEARING OFFICER HALLORAN: What exhibit are we

19 talking about the data was for?

20

MR. KISSEL: Exhibit 11.

21

HEARING OFFICER HALLORAN: I will take that up at a

22  later date.

23

MR. KISSEL: Thank you.

24

HEARING OFFICER HALLORAN: How much more testimony

Page 133

1  or cross 

--

I hate to interrupt, Ms. Williams, but are

2  you 

--

I’m not being sarcastic 

--

are you almost

3  finished? I’m trying to push this thing today because I

4  don’t think lightning can strike three times. I’m not

S  sure we can get the courtroom tomorrow. So I’m trying

6  to get as much finished today.

7

MS. WILLIAMS: I think both parties agree

8  Mr. Flippin is Petitioner’s primary witness that will

9  take longer than everybody else. I would say I’m

10 approaching the end. I have one major line of

11 questioning I haven’t even started, but I wouldn’t say

12 it would take more than 15.

13

HEARING OFFICER HALLORAN: We have redirect and the

14 technical people may want to ask some questions.

15

(Whereupon, a recess was taken and

16

Jennifer Johnson resumed as the court

17

reporter.)

18

19

20

21

22

23

24

Page 134

1

HEARING OFFICER HALLORAN: All right. We’re

2

back on the record. It’s February 18th, approximately

3

11:15. We did start this hearing 

--

excuse me, 11:20. We

4

did start this hearing at 9 a.m., and Miss Williams is

5

continuing with her cross on Mr. Flippin.

6

MR. KISSEL: That clock is about five minutes

7

off. It should be 11:16.

B

HEARING OFFICER HALLORAN: 11:16. Thank you.

9

CONTINUED CROSS-EXAMINATION

10

BY MS. WILLIAMS:

11

Q.  Mr. Flippin, we talked a little bit lust

12

before we went off the record about man-hours and how many

13

you used in your cost estimates. In your testimony, you

14

talk about the fact that you’ve been doing work for Noveon

15

and, prior to that, EF Goodrich since the mid ‘SOs,

16

correct?

17

A.  Actually, since 1988.

18

Q.

So, late ‘SOs. Do you have an estimate at all

19

of how many man-hours you’ve worked on this facility?

20

A.  I do not.

21

Q.

Would it be more than 1500, less than 1500?

22

I’m picking it arbitrarily, but something to give us an

23

idea of about how many.

24

A.  Please bear in mind that I’ve been working

Page 134

1

there since 1988, and the longest elapsed time that I

2

haven’t been on the site has been about two years since

3

then. That’s a lot of years and a lot of site visits, a

4

lot of work at my desk, a lot of work in the field.

5

Q.  How about money; do you have an estimate of

6

how much money the client has paid your company over that

7

period of time?

S

A.  Idonot.

9

Q.  Not even a guess?

10

A.  Honestly, that side of the 

--

that side of our

11.

practice I don’t really spend much time on.

12

Q.

Could you tell us if it’s more or less than

13

the alternatives you described here for treatment?

14

MR. KISSEL: I’m going to object. I think

15

we’re really trying to get into speculation again.

16

MS. WILLIAMS: Well, I didn’t expect that he

17

wouldn’t have any 

--

18

BY MS. WILLIAMS:

19

Q.  Can I ask Mr. Davids; do you think he would

20

know how much he paid your company over that period of

21

time?

22

HEARING OFFICER HALLORAN: You know what?

23

think 

--

as in the case of your witness yesterday,

24

Ms. Williams, I think this witness today has asked and

Page 135

1

answered the best he could.

2

MS. WILLIAMS: That he just doesn’t know?

3

Can I ask again if there’s someone who would

4

know?

5

HEARING oFFICER HALLORAN: Yes, you may. I

6

would sustain Mr. Kissel’s objection.

7

BY MS. WILLIAMS:

8

Q.  Is there someone that would know?

9

A.  I could certainly go to our accounting staff

10

at Brown and Caidwell and, and pull that information up.

11

I’m sure Noveon could go to their accounting staff and

12

pull that information up as well. I just don’t know it.

13

Q.

You just don’t know. In all that time, in all

14

the different work that you’ve performed, did any of the

is

work that you performed for Noveon involve completing of

16

construction permit applications?

17

A.  It did not.

18

Q.

And presumably not 

--

nor operating permit

19

applications either?

20

A.  It did not.

21

Q.  And Mr. Giffin testified yesterday about some

22

source reduction activities that were undertaken by

23

Noveon?

24

A.  Yes.

Page 136

1

Q.  Were you involved in those activities?

2

A.  I was not.

3

Q.  I would like to ask you some questions now

4

about your testimony and about Exhibit 13 

--

14? 14.

5

Sorry. Exhibit 14.

6

Now, in summary, I take this exhibit as saying

7

that 

--

trying to demonstrate, I guess, that you feel the

8

PE of this facility is calculated at a figure less than

9

50,000, correct?

10

A.  That’s true.

11

Q.  And what is the significance of that?

12

A.  I believe that the Illinois 

--

35 Illinois

13

Administrative Code Standard 304.122(a) and (b) do not

14

apply.

15

Q.  And by “not apply,” what you’re saying with

16

regard to 304.122(a) is that you believe the facility does

17

not trigger the 50,000 PB applicability threshold?

18

A.  That is true.

19

0.  You do believe that that’s the section that

20

would cover them, among the two sections?

21

A.  That is true.

22

Q.  And your testimony is that subsection B which

23

limits 

--

has an applicability threshold of 100 pounds per

24

day discharge does not apply, correct?

Page 137

1

A.  That is true.

2

Q.

And if that section did apply, they would

3

trigger that threshold, correct?

4

A.  If that section did apply.

5

0.  Right. So, the basis of this exhibit is to

6

explain to the Board why you concluded that under

7

subsection A they wouldn’t have to treat for ammonia

8

because they don’t trigger the threshold?

9

MR. KISSEL: Let me interject here so we can

10

put this in perspective and take just a second 

--

11

MS. WILLIAMS: Is that an objection? Are you

12

objecting?

13

MR. KISSEL: No, I think it’s important to

14

know 

--

15

NEARING OFFICER HALLORAN: I’ll allow

16

Mr. Kissel to state his case.

17

MR. KISSEL: I mean, what we did was we

18

asked 

--

we wanted Mr. Flippin to testify on the permit

19

appeal. Included in that testimony was a, a detailed

20

explanation of why there was less than 50,000 PB, and the

21

objection was made to that testimony and sustained that no

22

information post-1991 would be admitted into evidence. We

23

knew about that before we came to the hearing yesterday.

24

As a result of that, we asked Mr. Flippin to

Page 138

1

look at pre-1991 information, which he did, and put

2

together Petitioner’s Exhibit 14 which was introduced,

3

which was accepted in evidence, and on which there was

4

cross-examination on the permit appeal. I just want the

5

Board to 

--

if I 

--

6

MS. WILLIAMS: But why was it submitted today

7

then?

8

MR. KISSEL: To make sure that it’s in the

9

record so that the Board has all of the information, just

10

as the reason we’ve asked the Hearing officer to include

11

the entire 

- -

if the transcript of the other record had

12

been included, we would not have had this. But 

--

and I’m

13

not being 

--

by this trying to find fault or say somebody

14

made a wrong decision or whatever it is, but it was

15

important because it was documents and information that

16

had been reviewed, and I thought that 

--

in the adjusted

17

standard hearing we thought that the Board should have

18

this information. That’s the reason this is there. It

19

would not have been there except for reasons I’ve stated.

20

MS. WILLIAMS: Okay.

21

HEARING OFFICER HALLORAN: Ms. Williams?

22

MS. WILLIAMS: I 

--

do you want me to

23

continue, or do you want me to 

--

I don’t really have

24

anything 

--

I guess you’re trying to explain my

Page 139

1

characterization or he has a right to explain his

2

characterization. I don’t think it reflects on my

3

questioning.

4

MR. KISSEL: I’m just trying to say from the

S

public’s point of view 

--

because the Board will review

6

the entire record. But from the public’s point of view,

7

this is not the only document that Mr. Flippin has

8

prepared 

--

9

MS. WILLIAMS: Okay.

10

MR. KISSEL: 

--

to deal with the 50,000 PB.

11

MS. WILLIAMS: This in combination with his

12

testimony.

13

MR. KISSEL: Right, right.

14

MS. WILLIAMS: Exactly.

15

BY MS. WILLIAMS:

16

Q.  This in combination with your testimony. I

17

think it’s like page 12 and 13, right?

18

MR. KISSEL: Right. Or whatever it is.

19

BY MS. WILLIAMS:

20

0.  Page 12 and 13 of your testimony 

--

21

MR. KISSEL: Okay.

22

0.

--

together are there to show your belief,

23

right?

24

A.  (Witness nods head.)

Page 140

1

Q.  Okay. I’m sorry if I 

--

I wasn’t trying to

2

limit you to just what was in that exhibit regarding

3

pre-l9-- we’re going to look at all your figures.

4

I have to tell you In a little confused about

5

the figures that appear in your testimony. The reason I

6

asked the questions about Exhibit 11 and where that

7

information came from is that information made sense to me

8

as far as the flow values provided, BOO values provided,

9

COD values provided. That struck me as being within a

10

range of figures that I had seen before on this facility.

11

These figures don’t look anything like that.

12

MR. LATHAM: Can you help us?

13

MS. WILLIAMS: Sure. The figures on page 12.

14

MR. LATHAM: There’s a lot of figures.

15

MS. WILLIAMS: Well, it’s a little complicated

16

how he does it.

17

BY MS. WILLIAMS:

18

0.  I believe it adds up to a total flow value of

19

265.6 as a total flow value for all four waste streams.

20

Now, you calculate them individually, I think, but the

21

total flow 

--

you don’t 

--

when you total things out, you

22

don’t total for us what you have as a flow for gallons per

23

minute, but I believe the flow total here is 265.6. Is

24

that correct?

Page 141

1

MR. LATHAM: Where?

2

HEARING OFFICER HALLORAN: I’m on page 12 of

3

Mr. Flippin’s testimony.

4

BY MS. WILLIAMS:

5

Q.  Adding up the four items, the four bullet

6

points, the first tour bullet points. The fifth bullet

7

point is the total. Do you see that?

8

HEARING OFFICER HALLORAN: okay. Starts on

9

page 12.

10

MR. KISSEL: Bottom of 12.

11

BY MS. WILLIAMS:

12

Q.  So, there’s four bullet points where you break

13

down the waste streams, correct?

14

A.  Here we go. What I do on pages 12 and 13 of

15

the testimony is I use data that was provided to me by

16

Mr. Davids, and in this I summarize what Mr. Davids

17

provided me for the period of July 2002 through June of

18

2003.

19

Q.  July 2002 to what?

20

A.  July 2002 to June of 2003.

21

Q.  One year’s worth of data, correct?

22

A.  Yes.

23

Q.  One year’s worth of data on effluent?

24

A.  If you will, on the PVC lift station, that 

--

Page 142

1.

that is an untreated PVC waste stream discharge. It has

2

no effect of return solids in it, and that’s extremely

3

important because population equivalents are to be

4

calculated on the untreated raw waste load.

5

Q.  And you got a figure of 133 gallons per minute

6

for that?

7

A.  Yes. Mr. Davids did, in his summary of the

8

data that he provided me.

9

Q.  Now, in Exhibit 11 you tell us that the total

10

flow for that waste stream, you call it something

11

different. You call it the 

--

12

A.  PVC tank discharge.

13

Q.  Discharge. Is 401 gallons per minute?

14

A.  That is correct.

15

Q.  And are you trying to tell us the difference

16

between those figures, 133 and 401 gallons per minute, is

17

all based on recycled solids?

18

A.  Very well may be.

19

Q.  Twice the process flow rate is responsible for

20

the recycling of solids?

21

A.  Very well may be.

22

Q.  Does that make sense to you, Mr. Flippin, in

23

your professional opinion?

24

MR. KISSEL: I’ll object to that.

Page 143

1

HEARING OFFICER HALLORAN: Objection

2

sustained.

3

MR. KISSEL: Okay.

4

BY MS. WILLIAMS:

5

Q.  Do you agree with those figures that

6

Mr. Davids provided you as being credible?

7

A.  I have no reason to doubt Mr. Davids’ ability

8

to summarize waste load information.

9

Please, please bear in mind several things:

10

First, what goes back to the PVC tank 

--

this audience did

11

not have a chance to hear that, but I think it’s relevant

12

to the audience. What goes back to the PVC tank, if you

13

will, is effluent sand filter backwash water. To give you

14

a feel for that, it’s highly common for those values to be

15

as high as 15 percent of the forward flow going to those

16

units, if not higher, depending on the solids loading

17

going to them.

18

Q.  Do you have a calculator up there?

19

A.  I do. I’m not finished, though.

20

Q.  Well, I think you answered that.

21

MS. WILLIAMS: Has he answered the question?

22

MR. LATHAM: He’s still answering the

23

question.

24

A.  I’m still answering the question.

Page 144

1

Q.  The question was what?

2

A.  Why is there a difference between the PVC tank

3

discharge flow rate and the PVC lift station flow rate?

4

Q.

I think I asked you if it made sense to you,

5

but you’re right; go ahead.

6

A.  Okay. First, you have an effluent filter

7

that’s discharging backwash water. Again, common, common

8

discharge backwash water rates are as much as 15 percent

9

of the forward flow and even higher if the solids loading

10

to those filters is high and the condition of the filter

11

warrants more frequent backwashing.

12

Secondly, what also goes to the PVC tank is

13

when the filter 

-.-

when the filter press is dropping cake,

14

the primary clarifier underf low goes back to the PVC tank.

15

Next, the pond water can be, as I’ve testified

16

earlier, diverted to the PVC tank.

17

Q.  And you don’t count that in your values when

18

the pond water’s included?

19

A.  In the pond water sample that you 

-.-

in the

20

pond water value that you see here, that is the pond water

21

flow rate not going through the PVC tank.

22

Q.  But it does go through the PVC tank; you

23

didn’t count it as part of your flow?

24

A.  I didn’t count it twice.

Page 145

1

0.  You counted the total in the other? No?

2

A.  Where you see pond water listed 

--

3

Q.  Okay. Now you’re losing me. Where you see it

4

listed in your testimony or in your exhibit?

S

A.  I did not count pond water twice. If pond

6

water went to the PVC tank, it’s included in the PVC tank

7

flow. If it did not go to the PVC tank and went through

8

the filter prior to discharge, I counted it as pond water

9

in that category.

10

0.  So, pond water is included in this 133 gallons

11

per minute to the extent it went to the PVC 

--

12

A.  It is not because pond water does not go

13

through the PVC lift station.

14

Q.  So, it’s in this 94 gallons per minute if it

15

went to the PVC tank?

16

A.  If you will, pond water is 

--

the flow rate

17

for pond water is not included 

--

is not included on pages

18

12 and 13.

19

Q.  Okay. Thank you. I’m sorry for that

20

confusion. So, it’s not included in the total?

21

A.  (Witness nods head.)

22

Q.  You said you had a calculator? Would you mind

23

adding up for us the total flow that you used in coming up

24

with these PE values?

Page 146

1

A.  I did, and the value I get from summing what

2

you have here is what you reported earlier, 265.6 gallons

3

per minute.

4

Q.  Can you tell us what Noveon reports its flow

S

to the Agency as in its discharge monitoring reports?

6

A.  I have not reviewed Moveon’s discharge

7

monitoring reports in some time.

8

Q.  Would it be more or less than 265 gallons per

9

minute?

10

A.  It would be more than 265 gallons per minute.

11

Q.  What would happen if the Agency was to write

12

an NPDES permit for this facility based on this flow value

13

of 265?

14

MR. KISSEL: I’m going to object to the

15

question as being speculative.

16

HEARING OFFICER HALLORAN: You know, I’m going

17

to overrule it. If Mr. Flippin can answer it, he may.

18

A.  I don’t really understand the question.

19

Q.  One moment, please.

20

So, would you say the remaining difference

21

between the flow value that you provide here, 265, and the

22

figure in Exhibit 11 of an average of 560, is that

23

difference something you would describe as dilutional

24

flow, or what would you call that difference?

Page 147

1

A.  It’s other 

--

it is other process waste

2

waters, and it 

- -

and it can be, on occasion, potentially

3

contact storm water. And you’re also missing in this the

4

flow from well number two as well.

S

0.  What impact would a flow value like this 265

6

have on the mass limitations under the OCPSF regulations

7

in their permit if these values were used? Are you aware

S

of what would happen?

9

A.  If, if you would restate your question, I’d

10

appreciate it.

11

Q.  You’re familiar with the OCPSF regulations,

12

correct? We talked about those yesterday.

13

A.  Unquestionably.

14

Q.  Okay. And you’re aware that mass limitations

15

are calculated based on those?

16

A.  I am.

17

Q.  Do you know what would change about those mass

18

limitations if this flow value were used rather than

19

something more akin to 560 gallons per minute?

20

MR. KISSEL: I again object as to speculative.

21

The discharge from the plant has been well documented, and

22

a permit’s been issued on that basis.

23

HEARING OFFICER HALLORAN: Ms. Williams?

24

MR. KISSEL: And I think she’s trying to

Page 148

1

find 

--

2

MS. WILLIAMS: They’re asking us to accept a

3

flow value half of what’s been used to calculate the PE.

4

MR. KISSEL: That’s simply not the case.

S

That’s simply not the case. That’s a mischaracterization.

6

MS. WILLIAMS: And I’m trying to understand if

7

you take his flow value and use it for everything what

8

impact that would have on the plant.

9

HEARING OFFICER HALLORAN: You know what I’ll

10

do? I will allow that question to stand.

11

I would ask the Board to note Mr. Kissel’s

12

arguments. If Mr. Flippin can answer, he may.

13

BY MS. WILLIAMS:

14

0.  If you can.

15

A.  I candidly believe it would be inappropriate

16

to, to use a flow of 265.5 gallons per minute in

17

developing an effluent permit because it does not include

18

all of the streams that are regulated by OCPSF.

19

Q.  And I don’t disagree with you, Mr. Flippin.

20

I’m just trying to understand why what has been presented

21

to me as a very simple calculation, PE 

--

yesterday we

22

talked quite a bit about what a simple calculation PE is.

23

You take flow, you take aODs, you take suspended solids,

24

you multiply them by multipliers, and you get a very

Page 149

1

simple figure.

2

And this information you’ve provided in your

3

testimony is not at all to me a simple calculation.

4

MR. KISSEL: I’m going to object as

S

speculation. I don’t think the questioner understands

6

what those numbers represent as to what the discharge is.

7

I think that’s the whole difference. You’re comparing

8

apples and oranges.

9

HEARING OFFICER HALLORP.N: It sounds like

10

Mr. Flippin cannot answer the question Ms. Williams has

11

put forth, and I would take note that he, in the best of

12

his ability, has asked and answered it the best he can, so

13

we can move on.

14

BY MS. WILLIAMS:

15

Q.  The figures that you did reach, can you just

16

tell us today, since we didn’t go through this in your

17

direct, what the range is; what figures did you find for

18

PE under this method?

19

A.  The population equivalents that I

20

calculated 

--

I should first say that I stated prior to

21

this calculation the streams that were not included in

22

this calculation and referred the reader to the Baxter and

23

Woodman report to see that information.

24

In calculating the population equivalents that

Page 150

1

I did calculate, using what’s written on pages 12 and 13

2

of my testimony, I got population equivalents for

3

suspended solids of 24,955 population equivalents.

4

0.  And you state in your testimony this is much

5

less than the PE of 265,000 calculated by the Illinois

6

EPA1 correct?

7

A.  I do say that.

8

Q.  My understanding of your testimony is that you

9

chose to use different flow values than the EPA used,

10

correct?

11

A.  I chose to use untreated waste load values.

12

0.  untreated waste flow values, meaning what?

13

Why don’t you define that for us?

14

A.  Be glad to. The reason I believe that the

15

Illinois EPA calculated so much higher of a population

16

equivalent for total suspended solids is the Illinois EPA

17

used PVC tank discharge solids which are 

--

which are

18

inflated because of the presence of recycled solids within

19

the wastewater treatment facility.

20

A proper calculation of population equivalents

21

has to use untreated waste load information that excludes

22

streams that are merely recycled within the wastewater

23

treatment facility.

24

Q.  And Mr. Davids is the one who explained to us

Page 151

1

specifically for each waste stream what component the

2

recycled solids make up, or are you able to explain that

3

for us?

4

A.  What, what Mr. Davids was able to do for me 

--

5

and it was critical to the calculation 

--

was to go

6

upstream of the PVC tank where all of these recycled

7

solids enter and give me what is the true untreated waste

S

load solids load going into that tank was, excluding

9

recycled solids. I had to have that to calculate a

10

population equivalent accurately.

11

0.  And based on 

--

I mean, you would agree,

12

though, that using the figures of Baxter and Woodman 

--

I

13

mean, I take your testimony that that’s inappropriate

14

under your testimony. But 

--

15

MR. KISSEL: Again 

--

16

0.

--

you don’t disagree with the accuracy of

17

this 265,000 on a pure mathematical basis?

18

If you take the flow Baxter 

&

Woodman provided

19

and you plugged it into the calculation based on the TSS

20

values he provided, this is the figure you would get,

21

correct?

22

A.  It wouldn’t be a population equivalent.

23

0.  No, but this is the figure that he 

--

well, we

24

can

--

you’re saying it wouldn’t be a population

Page 152

1

equivalent because why?

2

A.  It has 

--

it is not based on an untreated

3

waste load information which is required by population

4

equivalent calculation.

5

0.  Okay. But you don’t dispute the math?

6

MR. KISSEL: I’m going to object. I think

7

we’ve been over this. For an issue which the Agency says

8

is not relevant to this proceeding, we’ve spent 40 minutes

9

onit.

10

MS. WILLIAMS: That’s exactly what I warned

11

you of an hour ago, so 

--

12

MR. KISSEL: That wasn’t  

I don’t 

--

I

13

didn’t hear the warning, I guess. But in addition, that

14

question’s been asked and asked, and I think the Agency is

15

unsatisfied with the answer because it doesn’t meet with

16

what they want. But he’s answered the question 

--

17

questions.

18

MS. WILLIAMS: I think he 

--

did I ask it over

19

and over? I thought I asked the question once and he

20

answered, but that’s fine.

21

HEARING OFFICER HALLORAN: I’ve heard it at

22

least once. But it you want to state it one more time, I

23

think I’ve heard the question once and the answer at least

24

once.

Page 153

1

MS. WILLIAMS: Okay. The question about

2

whether he disagreed with the math?

3

HEARING OFFICER HALLORAN: I’m sorry?

4

MS. WILLIAMS: With whether he disagreed with

5

the math of the calculation?

6

HEARING OFFICER HALLORAN: Correct.

7

MR. KISSEL: Can we 

--

what is the math? Give

8

him the equation and let him tell you whether 

--

to use

9

his computer rather than speculate.

10

MS. WILLIAMS: Sure.

11

MR. KISSEL: I think, Mr. Hearing Officer, we

12

can agree and we can perhaps work it out 

- -

13

MS. WILLIAMS: Maybe we can stipulate that

14

based on 

- -

15

MR. KISSEL: 

--

that if you divide four by

16

two, you get two. I’ll agree to that. Or whatever the

17

number is. We don’t disagree with 

--

I don’t think

18

Mr. Pinneo who, I think, did the calculations used a bad

19

computer. We’ll check it, but I don’t think he did. We

20

certainly 

- -

21

MS. WILLIAMS: Are you willing to stipulate

22

that, as we presented in our discovery, those numbers 

--

23

MR. KISSEL: I’m willing to say that whatever

24

the number 

--

the division is, we do not agree that it is

Page 

154

1

a PB for that plant. Absolutely, unequivocally. Is that

2

okay?

3

MS. WILLIAMS: Absolute fine. That’s all I

4

was trying to establish.

5

HEARING OFFICER HALLORAN: Okay. The record

6

should reflect that it is so stipulated, and we can move

7

on.

B

MS. WILLIAMS: I think if I can confer for

9

about one minute, I think we’re done.

10

Okay. We’re done with this witness. Thank

11

you for your patience, Mr. Flippin. I appreciate it.

12

HEARING OFFICER HALLORAN: Mr. Kissel,

13

redirect?

14

MR. KISSEL: Do you want me to wait until the

15

Board has 

--

it’s the Board’s discretion.

16

HEARING OFFICER HALLORAN: You know, I don’t

17

know. Maybe.

18

MR. KISSEL: I just have a very short.

19

HEARING OFFICER HALLORAN: What do you think?

20

Have Mr. Kissel wrap it up and then 

- -

21

MEMBER MELAS: It’s up to you.

22

HEARING OFFICER HALLORAN: Let’s finish up.

23

* * * * *

24

Page 155

1

REDIRECT EXAMINATION

2

BY MR. KISSEL:

3

0.  Okay. Mr. Flippin, during the course of your

4

cross-examination, I guess, you were asked the question of

S

whether the technologies that are listed in the various

6

exhibits for reducing ammonia in the effluent from the

7

Noveon plant were technically feasible. And you answered

S

--

I believe I’m quoting you correctly 

--

they could be

9

built. Would you like to explain your answer, please?

10

A.  I would. I would like to explain my answer.

11

Q.  How did I know that?

12

A.  The 

- -

candidly, any of these ten treatment

13

alternatives can be built. That’s not the issue. The

14

issue is, when it comes to technical feasibility, there’s

15

more involved in whether or not you can build something.

16

what’s involved is how reliable is it and what performance

17

will it achieve and what is involved in keeping it

18

running.

19

And several of these technologies presented

20

pose operational concerns that render them difficult, at

21

best, to operate; and some of these, if you will, render

22

themselves limited by what is present in the wastewater.

23

And let me explain. Take, for example, ion

24

exchange. The salt concentration that you’ll hear in

Page 

156

1

later testimony is high. And so when you put in ion

2

exchange, you just aren’t removing ammonia; you’re

3

removing a lot of competing cations. And so the frequency

4

of ion exchange regeneration will be extremely frequent.

5

Take, for example, some of the struvite

6

precipitation. Can it be done? Sure can. It generates

7

tremendous quantities of sludge and only provides a

8

nominal effluent ammonia reduction. So 

--

and I have

9

prepared as an exhibit, and it’s been entered, a whole

10

discussion of reliability, of what’s involved, of pros and

11

cons; and I think those things have to be considered if

12

you’re going to discuss technical feasibility.

13

And that comment was not made when I said,

14

sure, they can be built. And that’s basically what I’d

15

like to communicate.

16

Q.  Thank you.

17

MR. KISSEL: That’s all I have.

18

HEARING OFFICER HALLORAN: Thank you. Any

19

recross, Ms. Williams?

20

MS. WILLIAMS: No, thank you.

21

HEARING OFFICER HALLORAN: Okay. Personnel of

22

the Board, Member Melas, do you have any questions to pose

23

to this witness?

24

MEMBER MELAS: Yeah. Mr. Flippin, last

Page 

157

1

evening as I was going through this testimony of yours 

--

2

I might say, a very thorough job 

--

one question comes

3

into my mind. At one point, you’re talking about total

4

discharge from this plant at 800,000 gallons per day; and

S

in the breakdown, 360 come from PolyOne, and 180 from

6

Noveon. That leaves 260 gallons per day that I am not

7

quite sure of where they come from.

S

THE WITNESS: Thank you. And that is 

--

the

9

documentation of where that comes from has been provided;

10

I believe Miss Deely’s going to get that.

11

MR. KISSEL: Can you describe it some before,

12

while she’s doing that?

13

THE WITNESS: I would prefer, Dick, to have

14

that in front of me.

15

MS. DEFLY: We prepared a written document

16

responding to all the questions you submitted to us, and I

17

guess we can ask that that be submitted as an exhibit. I

18

just have to find it.

19

MR. ICISSEL: Miss Deely is referring to a

20

document we received from the Board, Mr. Melas, Board

21

Technical Staff.

22

MEMBER MELAS; Yeah, I have that.

23

MR. KISSEL: In response to that, we have 

--

24

if we can find it 

--

Sheila, is it 

--

Page 158

1

MS. DEELY: Yes.

2

MR. KISSEL: Is that the right 

--

Sheila, is

3

that the final one or 

--

4

MS. DEELY: Yes.

5

MR. KISSEL: Okay.

6

MS. WILLIAMS: Can we hold on until I can get

7

a copy, too, or are you just using it to refresh your

B

recollection?

9

MS. DEELY: I believe he’s just 

--

10

MR. KISSEL: We’re not introducing it as an

11

exhibit at this point.

12

MS. WILLIAMS: Okay. That’s fine.

13

THE WITNESS: Its a good question, and the 

--

14

what was excluded was well number two discharge which is

15

10 gallons a minute. The, the water coming from the pond

16

that goes through the sand filter before it combines with

17

the final outfall of 30 gallons a minute, pond number

18

one’s flow, if you will, that also was being discharged to

19

the facility and the filter backwash water, which was 70

20

gallons a minute, and the filter backwash water coming

21

from the tertiary filter of 70 gallons a minute, when all

22

added together equals 180 gallons a minute or 260,000

23

gallons a day.

24

MEMBER MELAS: From all those various sources?

Page 159

1

THE WITNESS: Yes, sir. Yes, sir.

2

MEMBER MELAS: Most of them 

--

not all of

3

them, but most of them internal to the plant itself?

4

THE WITNESS: Yes, sir.

S

MEMBER MELAS: The well, I don’t understand

6

where that 

--

what’s the significance of that well?

7

THE WITNESS: The well is a 

--

is a recovery

B

well and is being treated in the wastewater treatment

9

facility.

10

MR. MELAS: Okay. All right. Has that

11

document been sent to us?

12

MR. KISSEL: Yeah, we have re 

--

we have

13

prepared a response to the Board’s questions.

14

MEMBER MELAS: Okay.

15

MR. ICISSEL: We’ll probably ask that it be

16

entered into the record as our response, but clearly the

17

Board will have a copy of that.

18

MEMBER MELAS: Okay.

19

MS. WILLIAMS: Not today?

20

MS. DEELY: Yes, today. Just when we moved, I

21

don’t know where it is, so 

--

22

MEMBER MELAS: Getting on to some of those

23

other bullet points, Mr. Flippin, a number of them have

24

the concept of stripping?

Page 160

1

THE WITNESS: Yes, sir.

2

MEMBER MELAS: The first one, I think, was

3

nitrification. So, when you do strip, convert the

4

nitrogen from the liquid phase to a gaseous phase and it

5

goesupintheair~--

6

THE WITNESS: Yes, sir.

7

MEMBER MELAS: 

--

what kind of a problem does

B

that create?

9

THE WITNESS: It, candidly, transfers ammonia

10

from a 

--

it, candidly, transfers ammonia from being 

--

11

going out in your wastewater to simply going out in your

12

air emissions.

13

MEMBER MELAS: And what effect would that have

14

on the standard here in this area?

15

THE WITNESS: I’ll need to defer that question

16

to Mr. Giffin, who’s worked on their Title 

V

and other air

17

permits.

18

MEMBER MELAS: Okay. The other thing

19

that’s 

--

on another matter that’s 

--

that answer will

20

come; I’m quite sure that I know what it will be anyhow.

2.

There’s been an awful lot of discussion about

22

this population equivalent. Now, that is 

--

is that not

23

generally something that is commonly known throughout the

24

entire industry, throughout the entire country, wherever

Page 161

1

you’re talking about wastewater treatment plants? Isn’t

2

it commonly accepted methods of technology or calculation

3

that will translate it into what’s called PE?

4

THE WITNESS: Yes, sir.

S

MEMBER MELAS: And from the work that you’ve

6

done, as I understand it, that’s looking at page 12 and 13

7

here, you come up with your conclusion that there is no

8

question that the population equivalent contributed by the

9

wastewater of this particular plant comes to the 25,000

10

whatever number?

11

THE WITNESS: Certainly less than 50,000, yes,

12

sir.

13

MEMBER MELAS: That was my only question.

14

HEARING OFFICER HALLORAN: Thank you,

15

Mr. Melas.

16

MEMBER MELAS: I would defer to 

--

17

HEARING OFFICER HALLORAN: Miss Liu?

18

MS. LIU: It would be helpful, before we

19

proceed with our line of questioning, to have the answers

20

to the hearing officer questions.

21

MS. DEELY: Sure. Can we take a two-minute

22

break? I don’t want to disrupt everybody.

23

HEARING OFFICER HALLORAN: Sure.

24

(Whereupon, a recess was taken.)

Page 162

1

HEARING OFFICER HALLORAN: Mr. Flippin?

2

All right. We’re going to go back on the

3

record. We took a few-minute break to find some

4

documents. I believe our technical unit was going to pose

5

some questions of this witness.

6

MS. LW: Good afternoon, Mr. Flippin.

7

THE WITNESS: Afternoon.

8

MS. LW: Could you please identify the

9

address of your office with Brown and Caidwell?

10

THE WITNESS: I can. It’s 501 Great Circle

11

Road, Suite 150, Nashville, Tennessee, 37228.

12

MS. LW: Could you also please identify the

13

location of the corporate headquarters?

14

THE WITNESS: It is in 

--

it has recently

15

moved. It is now in Walnut Creek, California.

16

MS. LIU: On page six of your prefiled

17

testimony, you mention a C-lB waste stream that was

18

previously sent off site for treatment?

19

THE WITNESS: Yes, ma’am.

20

MS. LIt): Would you happen to know why they no

21

longer do that?

22

THE WITNESS: I do. I participated in

23

conducting a treatability study that led to the design of

24

a pretreatment facility that allowed the Noveon plant to

Page 163

1

pretreat the C-18 wastewater in such a way that it

2

rendered it treatable in the existing activated sludge

3

system that they have.

4

MS. LID: Using the pretreatment system, does

5

a C-lB waste stream contribute to the ammonia in the

6

effluent now?

7

THE WITNESS: The C-lB wastewater contains

8

organic nitrogen compounds that would biodegrade and

9

release ammonia into the wastewater, so C-lB does

10

contribute nitrogen loading on the facility and, and

11

should presumably contribute to the effluent ammonia.

12

MS. LID: Would eliminating this waste stream

13

again from the Henry plant have an impact on the level of

14

ammonia that is now experienced in the effluent?

15

THE WITNESS: The, the contribution of C-is to

16

the total effluent ammonia load, candidly, is quite low.

17

Would it reduce the effluent ammonia some? Most likely.

18

Much? Not really.

19

MS. LIt): Could you quantify, please?

20

MEMBER MELAS: Just roughly.

21

THE WITNESS: I’ll be glad to. I’d like to

22

refer to 

--

and this was one of the reasons for doing the,

23

the 1995 individual waste stream characterizations, and in

24

that 

--

I’m turning to it 

--

it’s 

--

I’ve got it here as

Page 164

1

exhibit 

--

2

Dick, is that Exhibit 11? The May 17th, 2002.

3

MS. DEELY: Yes.

4

THE WITNESS: Thanks. C-iS 

--

C-iS, on

S

average, contributes 82 pounds per day of total Cjeldahl

6

nitrogen, and the total Kjeldahl nitrogen going into the

7

treatment facility is 1,038. So, if 

--

8

MEMBER MELAS: okay. That’s good.

9

THE WITNESS: That represents 8 percent. The

io

c-is wastewater contributes 8 percent of the total

11

Kjeldahl nitrogen going into the facility.

12

MEMBER MELAS: May I just add, that sounds a

13

heck of a lot better than “some” and “more” and “much.”

14

THE WITNESS: Thank you. I apologize. I’ll

15

be more definitive in my answers.

16

MS. LID: On page nine of your prefiled

17

testimony, you mentioned the presence of bioinhibiting

18

compounds that frustrate the nitrification process. And

19

in the proven technologies that you discussed for possible

20

treatment alternatives, you said that they would work much

21

better if those bioinhibiting compounds weren’t there.

22

In the Agency’s recommendation on page 17, the

23

Agency suggests that Noveon should have looked more

24

thoroughly at the alternative of using granular-activated

Page 165

1

carbon to remove those inhibitors before treatment. Do

2

you know if Noveon looked into that at all?

3

THE WITNESS: Let me explain what we did do,

4

and then I think it sheds light on granular-activated

5

carbon usage. On page lB of my testimony, we actually

6

were running a continuous flow treatability study. Let me

7

let you get there.

B

MEMBER MELAS: Okay.

9

THE WITNESS: We were running a continuous

10

flow treatability study early on to look at what manner of

ii

pretreatment would be required to render C-iS wastewater

12

treatable within the existing facility. And during that

13

period, we noticed that even though we were providing

i4

ample alkalinity, ample dissolved oxygen, really warm

15

temperatures, ample means of residence time, we were not

16

getting any nitrification.

17

And so the question became, could we get

is

nitrification if we were to add powdered-activated carbon

19

to the activated sludge treatment facility. And what we

20

found was the answer to that question was yes, we could

21

get nitrification in our 

--

in our trial experiment by

22

adding 5,000 milligrams per liter of powdered-activated

23

carbon to the treatment facility.

24

At that dose, we would be using about 17 tons

Page 166

1

a day of carbon, and we 

--

that made us realize two

2

things. It made us realize that while carbon was removing

3

the inhibitor, it obviously was removing a lot more

4

because of the large dose required. And when you look at

S

the C-is 

--

sorry, when you look at the PC tank wastewater

6

that contains C-lB 

--

sorry, that contains the primary

7

inhibitor, we believe, which is mercaptobenzothiazoie, in

8

Exhibit 11, which I’ve referred to earlier, you’ll notice

9

that I list the PC tank as having an average flow rate of

10

107 gallons a minute and an average soluble COD of 8,280

ii

pounds per day. That gives it a soluble COD, just by

12

doing the math, of 6,440 milligrams per liter, so you’ve

13

got

--

what you’ve got is you’ve got a waste stream that’s

14

got 6,000 milligrams per liter of COD, a waste stream that

15

contains the inhibitor, and you’ll see in testimony on

16

page 12 of this 

--

of my written testimony, you’ll see

17

that the PC tank discharge also has 900 milligrams per

18

liter of total suspended solids.

19

So, our concern for 

- -

the reason we did not

20

look further at granular-activated carbon was several

21

fold: One is we would have to remove the suspended solids

22

from this waste stream before we, we placed it through a

23

granular-activated carbon column. Number two, a waste

24

stream that has 6,000 COD, if you will, and our prior

Page 167

1

experience of seeing that a lot of the carbon went to

2

removing other things than MBT, we felt like that the

3

carbon usage on this system would be tremendous 

--

would

4

be

--

would be large. Maybe instead of 17 tons per day,

S

the pack would have required 

- -

maybe it would have been

6

--

even if it was a fifth of that because of the driving

7

force in isotherms and the way it passes through the

8

column, we would have been in the multiple tons per day,

9

And because the PC wastewater not only

10

contains an inhibitor and 6,000 COD, the good news is it

11

also contains some readily degradable compounds like

12

tertiary butyl alcohol and some other things that would be

13

readily degradable. If we were to place that on a carbon

14

column, we couldn’t help it but turn that carbon column

15

into an anaerobic treatment vessel and grow slime all over

16

the carbon. And it would by no means, because of fouling,

17

because of slime, and also this wastewater has a high salt

18

content, we’re bound to experience scaling on the carbon,

19

too. All of those factors made us not look at carbon on

20

the PC tank wastewater to remove the inhibiters.

21

MS. LID: Thank you.

22

HEARING OFFICER HALLORAN: Mr. Rao, any

23

questions? Oh, I’m sorry.

24

MR. RAO: I didn’t have any questions of this

Page 168

1

issue, but 

--

2

MS. LID: 

Moving right along, in its

3

recommendation, the Agency took the numbers that you had

4

provided on cost figures for the treatment alternatives

S

and tried to compare them with municipal projects that

6

needed to remove ammonia from their effluent as well.

7

They came up with some dollars per pound figure, but they

B

did not go into the present worth cost calculations that

9

you did, nor did they include the 0 & H maintenance costs.

10

It makes it a little difficult to compare apples and

11

oranges. The Agency says that the 0 & M costs that you

12

document seem to be very significant, and I was just

13

wondering if you could characterize why Noveon’s 0 & M

14

costs would be different than a municipality’s 0 & M costs

15

for the same type of ammonia removal?

16

TIlE WITNESS: I’ll be glad to. Most, most

17

municipalities, the nitrification that they provide is

18

single-stage nitrification. And the good news about that

19

is they’re able to accomplish BOD removal and ammonia

20

removal in the exact same tankage. And also the good news

21

about it is most domestic wastewaters contain adequate

22

alkalinity or almost adequate alkalinity to support

23

complete nitrification without alkalinity addition.

24

Also, most municipalities, when you look at

Page 169

1

the oxygen demand exerted by the ammonia versus the oxygen

2

demand exerted by SODs, the oxygen demand exerted for

3

nitrification, while important, if you will, does not

4

greatly 

- -

is comparable if not slightly lower than that

S

f or SOD demand.

6

In the 

--

the second thing is in

7

municipalities, the alpha value for oxygen transfer, it’s

8

a lot 

--

it’s easy, relatively easy to transfer oxygen

9

into municipal wastewater in comparison to other

10

industries.

11

And so what makes the single-stage

12

nitrification at Noveon so much more expensive than

13

municipal wastewater treatment plants and why is the

14

operating cost and the capital cost so much greater 

--

I

15

think that’s the question 

--

and the answer to that is,

16

the only way that Noveon can experience single-stage

17

nitrification is to remove the inhibitors. The only

18

inhibitor removal step that we demonstrated would work 

--

19

and so does the chemistry demonstrate this. The good news

20

about MET, which we believe is the primary inhibitor, the

21

good news about it is it can be precipitated as you lower

22

the pH. And we did experiments where we lowered the pH to

23

3, and then we lowered the pH to 

2

and found that we

24

needed to lower it to pH 2 to get the MST low enough to

Page 170

1

support single-stage nitrification.

2

You can imagine that when you’re starting with

3

a stream at 120 gallons a minute or 107 gallons a minute

4

that naturally starts at about pH 10, when you lower it to

S

pH 2 and go through a precipitation stage, clarifiers,

6

solid separation, separate dewatering 

--

because you can’t

7

take what was at pH 2, combine it with other materials at

B

pH 7 and hope to keep the MET out 

--

or insoluble, so we

9

needed a separate pretreatment system that separated those

10

solids, that separately dewatered the solids, and got them

11

out of the system while still at pH 2.

12

Then we had to take that 100 to 120

13

gallon-a-minute stream and bring it back up to at least

14

8-1/2’s before we put it in the biological treatment

15

system so that we could have adequate alkalinity to

16

support nitrification. If you remember, to support

17

nitrification, Noveon has to add the bulk of their

18

alkalinity to support nitrification.

19

Secondly, Noveon has a wastewater that’s

20

almost twice as difficult to transfer oxygen in as a

21

municipal wastewater, so, the aeration horsepower is about

22

twice as big. So, you’ve got higher energy cost, you’ve

23

got higher alkalinity cost, you’ve got the chemical cost

24

of taking a stream from ~H 10 to pH 2, back up to pH

Page 171

1

8-1/2. You’ve got the cost of a separate pretreatment

2

facility that’s made out of fairly robust materials to

3

-

operate at pH 2. And you’ve also got, at the Noveon

4

plant, because of the poor oxygen transfer, if you were to

S

provide complete nitrification, you would have to add

6

additional aeration equipment because, while they do have

7

adequate aeration to support some nitrification, certainly

8

not complete nitrification. So, more aeration equipment

9

would have to be added.

10

And so 

--

and when you look at the

11

Noveon-Henry plant, I give them 

--

I’ll say this. They

12

were 

--

they were wise in only providing the power they

13

needed to the treatment plant. The bad news is any

14

upgrade that’s needed has to come from a substation of

15

electrical power that has to be run from a substation

16

about a half a mile away. So, you’ve got quite an

17

electrical component to that.

is

Next, the place that they have to build any

19

additional facilities are located where a pond had been,

20

and the fill material put in the pond was great for making

21

sod, but if you were to try to put aeration tanks on it,

22

you would have to dig all that soil out and put soil back

23

that could support the structure of aeration basins,

24

et cetera.

Page 172

1

So, candidly, when you lump all that together,

2

you end 

up

with just a much, much more expensive treatment

3

system to provide single-stage nitrification than a

4

municipality has to incur. And the biggest difference not

5

only is in the capital cost but the ongoing operating cost

6

of higher aeration requirements because of the poor oxygen

7

transfer, higher alkalinity addition because of not being

S

able to have enough alkalinity in the raw wastewater and

9

then, three, the whole ongoing chemical cost to take waste

10

streams from 10 to 2 to 8-1/2.

11

Does that 

--

does that answer your question?

12

MS. LItJ: Very thoroughly.

13

THE WITifESS: Thank you. Thank you.

14

MS. LIU: I understand in all of the treatment

15

alternatives that you’ve researched and how thoroughly you

16

went through them you understand better than anyone else

17

how much they will cost and what theyTre capable of

18

achieving as far as reaching compliance, and there seems

19

like there’s no perfect solution, no silver bullet, as

20

Mr. Giffin put it.

21

In the Agency’s recommendation they did

22

mention that even if the best degree of treatment didn’t

23

achieve full compliance, they would consider supporting

24

the adjusted standard. Looking at the glass as kind of

Page 173

1

half full rather than half empty, knowing the cost per

2

pound for removal, knowing the percent efficiency, knowing

3

the reliability of this system, could you in your best

4

engineering judgment make a recommendation to Noveon as to

S

a solution to the problem that might be a compromise?

6

THE WITNESS: The, the, the difficult part 

--

7

the difficult part here is a couple of things, honestly.

S

One is there’s a fundamental 

--

there’s a fundamental

9

disagreement about whether 304.122 even applies to Noveon.

10

And therefore, there’s a fundamental disagreement about

11

whether any effluent ammonia reduction should even be

12

required of the facility. It is my opinion that

13

304.122(a) nor (b) apply. And so, candidly, I can’t see

14

in the Illinois regulations why effluent ammonia reduction

15

would be required by the regulations. I honestly can’t

16

see it in 304.122(a) or (b)

17

And so any treatment that they would provide

is

would, would 

--

I don’t see why they would since it’s not

19

required by the Illinois regulations, in my 

--

in my

20

opinion. Are there things that could be done to provide

21

some ammonia reduction? That was the whole reason that we

22

went through, and it’s part of our exhibit. It’s, it’s

23

Exhibit 12, where we went through the incremental cost

24

because Noveon, in working with IEPA, everyone wanted to

Page 174

1

find some technically feasible, reasonable cost

2

alternative that could be used in reaching an agreement,

3

and we just didn’t find one that, that met with agreement.

4

MR. RAO: Can I follow up on that?

5

THE WITNESS: Did I answer the question?

6

MS. LIU: You did.

7

THE WITNESS: Okay.

S

MR. RAO: I would just like to follow up on

9

it. You mentioned how you had these discussions with IEPA

10

as to what you were 

--

I thought you were saying something

11

like what your 

--

what Noveon was willing to do.

12

could you explain it to the Board, what these

13

discussions entailed or in terms of whether you were

14

willing to implement any of these treatment alternatives

15

or—-

16

MR. ICISSEL: Mr. Hearing Officer, if I can

17

respond to that, I 

--

we

--

the difficulty we have in

18

responding to that question is not because there’s

19

anything that was said there that we wouldn’t tell the

20

Board, but the fact is that we 

--

when the original permit

21

appeal was suspended, it was suspended for the purpose of

22

the Agency and Noveon, then EF Goodrich, discussing and

23

studying various alternatives. We had 

--

we filed,

24

therefore, a petition for variance with the Board which we

Page 

175

1

have recently dismissed because these proceedings were

2

going to go forward.

3

During the course of that period of time,

4

which has been the last 12 years, we have had innumerable

S

meetings with the Agency and a lot of technical papers.

6

You’re hearing the summary of it here in the testimony.

7

The difficulty with going through it is that,

S

at the beginning of every meeting that I attended 

--

and I

9

think I attended most of them, as did some of the other

10

people in this room 

.--

we said, “These are settlement

11

discussions,” and so to allow for the openness and

12

frankness between us, that nothing in those meetings would

13

be brought forward to the 

--

to anybody else, not just the

14

Board, but, but to preserve the sanctity of settlement

15

discussions.

16

Now, so I, I think before we would respond to

17

that, I would want to discuss with the Agency whether they

18

would want us to really go into it because in those

19

meetings, do they want us to tell the Board what went on,

20

or the public, for that matter? I can say, without going

21

into detail about what was said, because I wouldn’t do

22

that, there 

--

you have the sum and substance of that 12

23

years of work before you today.

24

I don’t know if that answers the question or

Page 176

1

what the Agency wants to do. Perhaps we can talk about

2

it. But that’s the reason that I would say that we really

3

would be remiss in having Mr. Flippin or anybody else in

4

this room testify as to those discussions because they

S

were in terms of trying to settle this whole matter.

6

MR. RAO: I guess where I was coming from was

7

from the Agency’s recommendation when this had 

--

even if

8

full compliance was not achieved, there are certain things

9

that maybe, you know, the Board could order Noveon to do.

10

And that’s one side of the picture we have. I just wanted

11

to get some input from Noveon as to whether there was

12

some, you know, suggestions on Noveon’s part that they

13

were willing to do. You know, it’s up to you 

--

14

MR. !CISSEL: Right.

iS

MR. RAO: 

--

to complete the record.

16

MR. ICISSEL: First of all, let me say that it

17

is my perception and belief that while the Agency is

18

required by law to file a recommendation, that is not

19

evidence in this proceeding. That’s merely a guide of

20

what they say. If the Agency wants to come on the stand

21

here, which they are perfectly capable of doing, they have

22

people 

--

Mr. Pinneo is here, Mr. Mosher is here,

23

Mr. Frevert is not that far away 

--

and testify what they

24

would accept, we would be more than happy to listen to

Page 177

1

them.

2

So, our position was that 

--

or

is that the

3

technology is economically unreasonable or technically

4

infeasible, as that term is defined in the Board’s

S

regulations and statute. Secondly, that even if you

6

required the most stringent of technologies, a later

7

witness will testify what is being done right now; and

S

when the diffuser is installed, there will be 

- -

there

9

will be 

--

and the Agency agrees 

--

no impact on water

10

quality. Has not been and will not be. So, is the

11

technology being required as a tax to accomplish something

12

that really accomplishes nothing in the environment? In

13

fact, the effluent will be as, quote, toxic without

14

ammonia as it is with it. That’s what the testimony will

15

be. And that’s, in a nutshell, SF 

--

or Goodrich/Noveon’s

16

position.

17

HEARING OFFICER HALLORAN: Ms. Williams, do

18

you want to respond now? I saw you shaking your head.

19

MS. WILLIAMS: I’m sorry.

20

HEARING oFFICER HALLORAN: No, now is as good

21

a time as any.

22

MS. WILLIAMS: No, I wasn’t at a lot of those

23

meetings as Dick points out. As he says, the people who

24

were there are 

--

many of them are still available. I do

Page 178

1

have on my witness list Toby Frevert, who1s the manager,

2

Division of Water Pollution Control. The primary reason

3

he’s on my witness list, is not here today 

--

I did tell

4

him to save tomorrow if we needed him 

--

is that if the

S

Board really does want someone with authority to get on

6

the stand and say, “This is what we would accept,” he’s

7

available to do that. I don’t know that there was any 

--

8

I mean, you know, I don’t want to go back on any

9

commitment not to reveal anything in the course of

10

settlement, obviously, but I don’t know that there was

11

ever anything that anybody looked at in that vein in those

12

meetings.

13

MR. KISSEL: I think that in and of itself, if

14

you believe that, is disclosing what was said at those

15

meetings.

16

MS. WILLIAMS: I wasn’t there so I can’t speak

17

for sure.

18

MR. KISSEL: I don’t want to say it, but this

19

is what I say.

20

MS. WILLIAMS: It would seem like that you

21

would have had to have made an offer in the hope of

22

settlement, right, that you don’t want to disclosed. If

23

it was an offer made in the hope of settlement 

--

24

HEARING OFFICER HALLORAN: I think we can talk

Page 179

1

about this at lunch or off the record, but 

--

2

MS. WILLIAMS: But anyway, I guess the only

3

reason I say anything is I would like maybe the Board to

4

let me know this afternoon so I can let Toby know if you

S

feel that’s something that you do really need the Agency

6

to respond to, we can have him available.

7

HEARING OFFICER HALLORAN: Thank you.

S

MS. RAO: Mr. Kissel, the Board summarized

9

their position well for us, and I just wanted to get

10

something from 

--

11

MR. KISSEL: Okay. I was not being 

--

I’m not

12

trying to be lecturing there, but I did feel it was

13

important to bring this into perspective for the Board.

14

MR. RAO: Yeah. Thanks.

15

MS. LIU: Based on the discussion we just had,

16

minus your legal conclusion that 304.122(b) should not

17

apply, would you make a recommendation to Noveon as to

18

which treatment alternative to utilize?

19

THE WITNESS: I don’t know several things that

20

I would need to know. I don’t know what target is trying

21

to be hit. And I know that if the question of 

--

if the

22

question of relevancy to the cost of a POTW is, is one of

23

relevancy, if that is one of relevancy, what I do know is

24

that no matter what alternative we would select, whether

Page 180

1

you based it on a 20-year project life or whether you

2

based it on a 10-year project life, the cost for Noveon to

3

remove a pound of ammonia is about 18 to 

--

is about 12 to

4

18 times the cost of a municipal wastewater treatment

S

facility. And so you can see why I would hesitate, with

6

that kind of order of magnitude difference, ammonia

7

removal if not required.

8

MS. Liii: If Mr. Frevert were to come later on

9

and testify as to what a potential target might be, and if

10

you did have to choose, would you be able to do that?

11

THE WITNESS: If, if he gave us a target, I

12

certainly would be able to go back. And if the Board

13

deemed applicable that target, I would certainly be able

14

to go back, based on the studies we’ve done, and pick a

15

technology that would be the more appropriate of the ones

16

we studied.

17

MS. LItJ:  Thank you. Mr. Hearing Officer, may

18

we retain this witness to recall him after Toby Frevert

19

speaks, if he does?

20

HEARING OFFICER HALLORAN: Sure, I guess.

21

Mr.

--

is it Frevert, the earliest he can be here is

22

tomorrow, correct?

23

MS. WILLIAMS: I mean, I guess I could call

24

him now. But as far as I know, the earliest would be

Page 181

1

tomorrow. I mean, I don’t know 

--

you know, at some point

2

it’s the Board’s decision, you know. He can speak to

3

our

--

come to our 

--

how our recommendation might have

4

been different, but I guess I wanted some feedback from

S

the Board about how important that was based on 

--

rather

6

than the Board themselves, you know, being able to weigh

7

the evidence and make that decision, but 

--

8

MR. RAO: It’s just that, you know, you made

9

some recommendations to the Board, and we wanted to know a

10

little bit more in detail as to what those recommendations

11

mean. It’s just that in order to have full information in

12

the record, say they could have 

--

instead of achieving

13

full compliance, you said to the Board that maybe the

14

Board order them to implement some of these alternatives

15

to, if not full compliance, partial compliance, if I can

16

use that word, which I know 

--

so, we wanted to know what,

17

you know, it entailed or what target was the Agency

18

thinking of when it made the suggestion.

19

MS. WILLIAMS: I think 

--

20

HEARING OFFICER HALLORAN: I guess there’s a

21

couple of ways we can handle it. You need to call

22

Mr. Frevert at lunch.

23

MS. WILLIAMS: We can do post-hearing 

--

24

HEARING OFFICER HALLORAN: Right, right. If

Page 182

1

he answers Mr. Rao’s question, maybe Mr. Flippin can

2

respond in a reply or we can set a separate briefing

3

schedule. But we could work that out.

4

MR. RAO: Of course, the Board will make its

S

decision. It’s just that our part in this hearing is to

6

get all the information together so that the Board will

7

have as much information as possible in front of it when

8

it makes its decision.

9

MS. WILLIAMS: Absolutely.

10

HEARING OFFICER HALLORAN: Any other

11

questions, Mr. Rao? Miss Liu, I’m sorry. I forgot who

12

was up. Tag-teaming.

13

MR. RAO: I have a clarification question for

14

Mr. Flippin, and this is in Exhibit 13. And let me see

15

what the table number is. On 

--

let’s see 

--

page one of

16

four, it’s a comparison of removals and reliability of

17

effluent ammonia-nitrogen removal processes?

18

THE WITNESS: Yes.

19

MR. RAO: You go through all the alternatives,

20

and you have assigned a reliability rating for each

21

alternative?

22

THE WITNESS: Yes, sir.

23

MR. RAO: And some of these ratings are, you

24

know, think it goes from the scale of one to ten?

Page 183

1

THE WITNESS: Yes, sir.

2

MR. RAO: And they’re close to 10; you know,

3

there are a lot of number of B’s, 7’s in there. And I

4

just wanted to get a clarification from you as to when you

S

talk about this reliability rating, are you talking about

6

reliability in terms of treatment in the general, you

7

know, wastewater treatment arena; or if it was implemented

8

at the Noveon plant, would we still have the sane kind of

9

reliability rating?

10

THE WITNESS: Thank you. These reliability

11

ratings were my 

--

were my professional opinion about how

12

reliable this process would be at reducing effluent

13

ammonia-nitrogen at the Noveon-Henry plant.

14

MR. RAO: Okay. So, for example, if I pick PC

15

tank stripping with off-gas control which has a

16

reliability rating of 8, if this option was implemented,

17

then you can, you know, on a general sense assume that

18

this treatment option would be capable of removing 27

19

percent of hydrogen. I think that’s what it says, average

20

removal rate is 27 percent?

21

THE WITNESS: Yes, sir.

22

MR. RAO: So, is that something that we can

23

make that assumption with this treatment option, that’s

24

the removal rate that can be reliably achieved?

Page 184

1

THE WITNESS: One way to look at that would be

2

I certainly believe on average it would remove 27 percent.

3

I do believe that.

4

MR. RAO: Okay.

S

THE WITNESS: I believe that one way to look

6

at this reliability rating would be in a calendar year,

7

what percent of the time might you not achieve an average

8

removal rate of 27 percent.

9

MR. RAO: Okay.

10

THE WITNESS: And something that has a

11

reliability rating of 8 in a calendar year, you may see 20

12

percent of the days in which it really doesn’t get an

13

average removal of 27 percent.

14

MR. RAO: Okay. Thank you.

15

MS. LW: Thank you for explaining everything

16

so clearly. We appreciate that.

17

THE WITNESS: Glad to. Glad to.

18

HEARING OFFICER HALLORAN: Thank you. In

19

light of the questions posed, Mr. Kissel, do you have any

20

re-redirect of Mr. Flippin?

21

MR. KISSEL: None.

22

HEARING OFFICER HALLORAN: Ms. Williams,

23

re-recross?

24

MS. WILLIAMS: I will spare Mr. Flippin a

Page 185

1

re-recross.

2

HEARING OFFICER HALLORAN: You know, and I

3

promised the public before we took our lunch that if

4

anybody wanted to come up before lunch and make a comment

5

or statement to do so now. If not, we can revisit that

6

after lunch.

7

In light of the timing and everything, is it

a

possible for everyone to be back here at, say, 1:35? Grab

9

a bite across the street and get this thing going again?

10

Thank you and have a great lunch.

11

(whereupon, a noon recess was taken.)

12

HEARING OFFICER HALLORAN: All right. I think

13

we’ll go back on the record. It’s approximately 1:40.

14

Thank you for being so prompt. I hope you all had time to

15

brush and floss. I doubt it, but we’ll proceed.

16

Mr. Flippin just finished his testimony for

17

now, and Mr. Kissel 

--

18

MR. KISSEL: We have our next witness,

19

Mr. Corn.

20

(Witness sworn.)

21

MICHAEL R. CORN, P.E.,

22

called as a witness, after being first duly sworn, was

23

examined and testified upon his oath as follows:

24

* * * * *

Page 186

1

DIRECT EXAMINATION

2

BY MR. KISSEL:

3

Q.  Would you identify yourself for the record,

4

please?

5

A.  I’m Michael R. Corn.

6

Q.  Mr. Corn, I show you what has been marked as

7

Petitioner’s Exhibit Number 16 and ask you to identify

B

that, please?

9

A.  That’s the expert written testimony that I

10

prepared for this hearing.

11

Q.  Okay. Did you prepare it yourself?

12

A.  Yes, I did.

13

Q.  And is the statement 

--

are the statements

14

contained therein true and correct to the best of your

15

knowledge and belief?

16

A.  They are. I would like to make a few

17

corrections.

18

Q.  We’ll get to that.

19

A.  Okay.

20

Q.  But other than the corrections you would

21

make 

--

22

A.  Yes.

23

Q.

--

it’s correct?

24

MR. KISSEL: Okay. I would like to move the

Page 187

1

exhibit 

--

Petitioner’s Exhibit 16 into evidence, please.

2

HEARING OFFICER HALLORAN: Now, is that Number

3

16 or 17, Mr. Kissel, because we have this one outstanding

4

one here with the responses to the Illinois Pollution

5

Control Board’s questions.

6

MR. KISSEL: We have not marked that as an

7

exhibit yet.

8

HEARING OFFICER HALLORAN: Okay. I’ll just

9

let that 

--

okay. Number 16, Miss Williams?

10

MS. WILLIAMS: He stated there were some

11

corrections?

12

MR. KISSEL: There’s just some additions.

13

MS. WILLIAMS: Additions?

14

MR. KISSEL: Well, additions or corrections.

15

MS. WILLIAMS: I mean, I have no objection.

16

I’ve stated before that I have no objection to the

17

prefiled testimony as it’s been submitted, so 

--

18

HEARING OFFICER HALLORAN: Okay, terrific. It

19

is so admitted.

20

BY MR. KISSEL:

21

Q.

Mr.

Corn, I show you what has been marked as

22

Petitioner’s Exhibit 17 and ask you to identify that,

23

please?

24

A.  This is my resume, specifically on water

Page 188

1

quality and related experience.

2

Q.  Did you prepare that document?

3

A.  Idid.

4

Q.  Is it true and correct to the best of your

5

knowledge and belief?

6

A.  It is.

7

MR. KISSEL: I move the admission of

8

Petitioner’s Exhibit 17.

9

MS. WILLIAMS: This is 

--

10

MR. KISSEL: His resume.

11

MS. WILLIAMS: So far as we’re going along,

12

we’re going with the same stuff that was attached to his

13

testimony?

14

MR. KISSEL: Yes.

15

MS. WILLIAMS: Okay. As long as you let me

16

know when we get off that, I’m good.

17

MR. KISSEL: As far as I know, all of it is,

18

but I’m not sure.

19

HEARING OFFICER HALLORAN: okay. Petitioner’s

20

Exhibit Number 17 is also admitted into evidence.

21

BY MR. KISSEL:

22

Q.  And Petitioner’s Exhibit 17, Mr. Corn, is that

23

the

--

referred to in your testimony on page two as your

24

resume? It says, “My resume is attached.” Is that what

Page 189

1

you’re referring to?

2

A.  That is correct.

3

0.  Okay. I show you what’s been marked as

4

Petitioner’s Exhibit 18 in this proceeding and ask you to

5

identify that, please?

6

A.  This is a 

--

basically a USGS topographic map

7

of the site. The Henry plant sits up on a bluff as

8

cross-hatched here. It’s about 80 to 90 feet above the

9

river. POTW is over in this direction. It, again, is up

10

on a bluff. The two discharges come together and are

11

discharged at a point, oh, about 1,000 feet downstream

12

from the Noveon plant. Do you have 

--

13

Q.  Where did you get that? Where did we find 

--

14

you find that exhibit? Did you put it together?

15

A. Yes, I did.

16

Q.  And from what document?

17

A.  It’s the USGS topographic map with the

18

location of the discharge as presented in the NPDES

19

permit.

20

Q.  Does that accurately reflect that which it

21

intends to reflect?

22

A.  Yes, it does.

23

MR. KISSEL: All right. I move the admission

24

of Petitioner’s Exhibit Number 18.

Page 190

1

MS. WILLIAMS: No objection.

2

HEARING OFFICER HALLORAN: Petitioner’s

3

Exhibit Number 18 is admitted.

4

BY MR. KISSEL:

5

Q.

Is that the document you referred to in your

6

testimony as Figure 1?

7

A.  Itis.

S

Q.  Show you what’s been marked as Petitioner’s

9

Exhibit 19. Would you tell us what that is, please?

10

A.  In October of 1989, I directed a study on the

11

Illinois River of the Noveon discharge 

--

at that time, it

12

was EF Goodrich discharge 

--

and it shows basically the

13

effluent plumes from the discharge going out into the 

--

14

into the Illinois River.

15

Since that time, I might add, the POTW has

16

been added to the discharge.

17

Q.  Did you prepare that document?

18

A.  I did.

19

Q.  Is that a true and correct, accurate 

--

and

20

accurate representation of the discharge from the Noveon

21

facility?

22

A.  Yes, it is.

23

MV. KISSEL: Move the admission of Exhibit

24

Number 19.

Page 191

1

THE WITNESS: 19.

2

MS. WILLIAMS: No objection.

3

HEARING OFFICER HALLORAN: Exhibit Number 19

4

is admitted.

S

BY MR. KISSEL:

6

Q.  Is that exhibit referred to in your testimony

7

as Figure 2?

B

A.  It is.

9

Q.  Show you what’s been marked as Exhibit Number

10

20. Can you tell me what that is, please? I’m sorry.

11

A.  The exhibit is the 

--

basically the hydraulic

12

characterization of an effluent plume as it goes from a

13

near field, which is the area of rapid and immediate

14

mixing, into a far field, which is basically ambient river

15

diffusion. There are basically well-developed

16

mathematical models for each of these zones.

17

We have a jet momentum zone which, in many

18

cases, is referred to as a zone of initial dilution.

19

There may be a restratification zone. If the 

--

if the

20

dispersion is not enough, it may stratify like a heated

21

temperature plume. We have a buoyant spreading zone. The

22

buoyant spreading zone is really a transition zone from

23

the near field into the far field. It’s basically

24

gravitational spreading caused by any density differences

Page 192

1

between the two plumes, the river and the plume.

2

And then you have a far field zone which is

3

basically ambient driven dispersion, basically the energy

4

of the river disperses the plume at that point.

5

Q.  Did you prepare that document, or did you get

6

it from someplace?

7

A.  No, I prepared this.

S

Q.  You did. And it’s true and correct in

9

reflecting what it purports to reflect?

10

A.  Yes, it is.

11

MR. KISSEL: I move the admission of

12

Petitioner’s Exhibit Number 20.

13

MS. WILLIAMS: No objection.

14

HEARING OFFICER EALLORAN:  Thank you.

15

Petitioner’s Exhibit Number 20 is admitted into evidence.

16

BY MR. KISSEL:

17

Q.  Mr. Corn, is that referred to in your

18

testimony as Figure 3?

19

A.  Yes, it is.

20

Q.

I will show you what’s been marked as

21

Petitioner’s Exhibit Number 21. Would you identify that,

22

please?

23

A.  This is a drawing, a schematic that was

24

developed by the National Academy of Sciences back in

Page 193

1

1972, and really set the stage for mixing zones from that

2

time forward. And it basically enters in the concept of

3

time and concentration as important to toxicity to aquatic

4

species.

5

Q.  Where did you get that from?

6

A.  This actually came from the Technical Support

7

Document for Water Quality Based Toxic Control. It’s a

8

U.S. EPA document. I believe it came out in 1988 and 

--

9

but it was not in the current version, the ‘91 version.

10

Q.  Is that 

--

is Petitioner’s Exhibit 21 a

11

document on which you rely in your business as evaluating

12

discharges in water quality?

13

A.  Yes, it is.

14

MR. KISSEL: I move the admission of

15

Petitioner’s Exhibit Number 21.

16

MS. WILLIAMS: We are on Figure 4 now?

17

MR. KISSEL: Yes.

15

THE WITNESS: Yes.

19

MS. WILLIAMS: No objection.

20

HEARING OFFICER HALLORAN: So admitted.

21

BY MR. KISSEL:

22

Q.  And that is referred to as Figure 4 in your

23

testimony?

24

A.  Yes, sir. Yes, sir.

Page 194

1

Q.  Show you what’s been marked as Petitioner’s

2

Exhibit 22. Will you tell us what that is?

3

A.  This is a detailed drawing of the jet momentum

4

zone, and basically it gives a couple of different zones

S

--

a zone of flow establishment, and then basically a

6

concentration profile along the center line of the plume.

7

The zone of flow establishment I speak of in my testimony

8

as something called 50 times the square root of the

9

cross-sectional area, which is one of the things that EPA

10

designates as determining how, how much mixing should

11

occur in a ZID. And it’s usually a limiting factor, that

12

basically they say that within that zone of flow

13

establishment you should achieve at least 10 times or 10:1

14

dispersion. It’s not a total limit on the mixing zone; it

15

just says you have to meet 10:1 dispersion within that

16

short zone.

17

If we were looking at an effluent diffuser,

18

you would not have plume mergers at this point, but later

19

on in the 

--

at the end of the jet momentum zone, you

20

would still have plume mergers. It would still be an

21

individual plume.

22

Q.  Did you prepare that document?

23

A.  Yes, I did. It came from a 

U.S. 

EPA approved

24

document.

Page 195

1

Q.  It came from the TST?

2

A.  It actually came from a model description of

3

the UDKHDEN model.

4

Q.  And is that a document on which you rely in

5

your profession?

6

A.  Yes, it is.

7

MR. KISSEL: I move the admission of

8

Petitioner’s Exhibit Number 22.

9

MS. WILLIAMS: I’m sorry. No objection.

10

HEARING OFFICER HALLORAN: Number 22 is

11

admitted.

12

BY MR. KISSEL:

13

Q.  I show you what has been marked as

14

Petitioner’s Exhibit Number 23. Can you tell us what that

15

is?

16

A.  This is another depiction from one of the

17

other computer models that we rely on, the core mix model.

18

And it basically shows a profile view of the plume as it

19

reaches the surface, the buoyant spreading area, then the

20

ambient dispersion downfield. And the jet momentum zone

21

or the ZID is usually defined in this first part right

22

here.

23

Q.  Did you prepare that document?

24

A.  This came actually out of the core mix

Page 196

1

documentation for the model.

2

Q.

Okay.

Is that a document on which you rely in

3

your profession?

4

A.  It is.

5

MR. KISSEL: I move the admission of Exhibit

6

Number 23.

7

MS. WILLIAMS: No objection.

8

HEARING OFFICER HALLORAN: Petitioner’s

9

Exhibit Number 23 is admitted into evidence.

10

BY MR. KISSEL:

11

Q.  I didn’t ask the last time, but Petitioner’s

12

Exhibit 22 is referred to in your testimony as Figure 5?

13

A.  That’s correct.

14

Q.  And Petitioner’s Exhibit 23 is referred to as

15

Exhibit 6?

16

A.  Correct.

17

Q.  Okay.

18

A.  Figure 6.

19

Q.  Figure 6. I’m sorry. Show you what’s been

20

marked as Petitioner’s Exhibit Number 24.

21

A.  This is an actual profile of a plume from a

22

diffuser or diffuser port. And typically, the diffuser

23

models depict the end of the ZID as where the edge of the

24

plume reaches the surface, and that’s usually where we 

--

Page 197

1

there or a short distance downstream is where we define

2

the zone of initial dilution from a hydraulic standpoint.

3

Q.  Did you prepare that document?

4

A.  Yes, I did.

5

Q.  And is it true and correct in what it intends

6

to depict?

7

A.  Yes, it is.

8

MR. KISSEL: Move the admission of

9

Petitioner’s Exhibit Number 24.

10

MS. WILLIAMS: No objection.

11

HEARING OFFICER HALLORAN: Exhibit Number 24

12

is admitted into evidence.

13

BY MR. KISSEL:

14

Q.

And that is referred to as Figure 7?

15

A.  Figure 7, correct.

16

Q.  This is a little upside down, but 

- -

17

A.  We’ve got a big, big poster of this one.

18

Q.  Yes. Show you what’s been marked as

19

Petitioner’s Exhibit Number 25. 

Could you tell us what

20

that is, please?

21

A.  This is another depiction of an actual

22

isopleth from our actual study of the plume that we did

23

back in 1989, and it just basically shows the

24

concentration profiles. Maximum concentrations are always

Page 198

1

along the center line of the plume which is along the

2

length of the 

--

of the river.

3

Q.  Did you prepare that document?

4

A.  Yes, I did.

5

Q.  That was based on studies you did for

6

EF Goodrich/Noveon?

7

A.  That’s correct.

B

MR. KISSEL: Move the admission of

9

Petitioner’s Exhibit Number 25.

10

MS. WILLIAMS: No objection.

11

HEARING OFFICER HALLORAN: Admitted.

12

BY MR. KISSEL:

13

Q.  And that Petitioner’s Exhibit 25 is referred

14

to as Figure 8 in your testimony?

15

A.  That is correct.

16

Q.  Show you what’s been marked 

--

we’re almost

17

done 

--

Petitioner’s Exhibit Number 26. Will you please

18

describe that?

19

A.  This is the cross-sectional area of the

20

Illinois River at the discharge point. And in this

21

depiction, we are depicting one of the things in the

22

Illinois regulations and also in the U.S. EPA guidance on

23

mixing zones, is that the mixing zones, including the ZID,

24

are allowed a 25 percent of the cross-sectional area or

Page 199

1

volume of flow. And this just gives how much volume of

2

flow the present diffuser is using which, in this case,

3

is, I believe, about 16 percent of the 

--

of the

4

cross-sectional area.

5

Q.  Did you prepare that document?

6

A.  I did. It’s actually prepared from a Corps of

7

Engineers’ bathometric profile of the river.

8

MR. KISSEL: I move the admission of

9

Petitioner’s Exhibit Number 26.

10

MS. WILLIAMS: No objection.

13.

HEARING OFFICER HALLORAN: So admitted.

12

BY MR. KISSEL:

13

Q.  And that is 

--

that Petitioner’s Exhibit

14

Number 26 is referred to as Figure 9 in your testimony?

15

A.  That is correct.

16

Q.  Show you what’s been marked as Petitioner’s

17

Exhibit 27.

18

A.  27 is basically a planning profile view of

19

what the diffuser would look like. We have 

--

basically

20

were asked to look at a diffuser design, conceptual

21

diffuser design, and this is a multiport diffuser which

22

would give us greater dispersion in a smaller area.

23

It shows the port at an angle. We would point

24

these ports at a 60-degree angle to make sure, because

Page 200

1

it’s a denser plume, that we get it up into the water

2

column so the mixing is good. And the diffuser would

3

basically be about 15 feet long with four three-inch

4

ports.

5

There’s a couple different designs we’ve

6

looked at, but that’s sort of the one we’re looking at

7

right now.

8

Q.

Did you prepare that document, Mr. Corn?

9

A.  Idid.

10

Q.  And is it true and correct to the best of your

11

knowledge and belief?

12

A.  Yes, it is. I may add that the diffuser is a

13

fairly benign object or dispersion mechanism, not very

14

much maintenance on it. Usually send a hardhat diver down

15

to check it once a year to make sure the ports aren’t

16

clogged or broken. And usually diffusers last on the

17

order of about 30 years.

18

MR. KISSEL: Move the admission of Exhibit

19

Number 27.

20

MS. WILLIAMS: No objection.

21

HEARING OFFICER HALLORAN: 27 so admitted.

22

BY MR. KISSEL:

23

Q.

That Exhibit 27 is referred to as Figure 10 in

24

your testimony?

Page 201

1

A.  That is correct.

2

Q.

Okay. Show you what’s been marked as

3

Petitioner’s Exhibit Number 28. Can you tell me what that

4

is?

5

A.  That is a model run of a diffuser 

--

the

6

multiport diffuser, and the projected plume with a ZID,

7

and a total mixing zone, which might range from about 200

8

feet down to about 750 feet depending on the flow of the

9

river. As flow increases, it tends to elongate that plume

10

because ambient velocity pushes it a little bit further

11

downstream.

12

HEARING OFFICER HALLORAN: Mr. Kissel, do you

13

have a copy for either myself or, Miss Williams, do you

14

have a copy of it?

15

MS. WILLIAMS: Actually this one wasn’t

16

attached. Sheila did give me some color copies that

17

include this one. So, I do have one in front of me right

18

now.

19

HEARING OFFICER HALLORAN: Okay. My

20

exhibit 

--

21

MS. DEELY: Is it just that one that you want

22

a copy of?

23

HEARING OFFICER HALLORAN: Well, I just want

24

to make it known that my exhibits stop there as far as

Page 202

1

Figure 10.

2

MR. KISSEL: Okay.

3

HEARING OFFICER HALLORAN: But in any event,

4

I’m sorry to interrupt, Mr. Corn.

S

THE WITNESS: Oh, that’s okay.

6

MR. KISSEL: Do you have any objection to that

7

exhibit being introduced, Exhibit 28?

8

MS. WILLIAMS: I don’t think so. Sheila had

9

pointed out to us this morning that she saw there was one

10

that we didn’t have, and she gave it to us. So, that’s

11

fine.

12

HEARING OFFICER HALLORAN: Okay. Terrific.

13

Thank you.

14

MS. DEELY: It was those two?

15

MR. KISSEL: This is for you.

16

HEARING OFFICER HALLORAN: Thank you.

17

BY MR. KISSEL:

18

Q.  That document is referred to as what exhibit

19

in your testimony?

20

A.  As Figure 

--

21

Q.  Or figure?

22

A.

--

11.

23

Q.  11?

24

A.  Uh-huh

Page 203

1

Q.  I show you what’s been marked as Petitioner’s

2

Exhibit Number 29. Could you tell us what that is?

3

A.  This is a report prepared by BA Engineering

4

entitled “Results of an Acute Toxicity Identification

5

Evaluation,” TIE, on a filter effluent sample from EF

6

Goodrich.

7

Q.  What is that document? How did you come about

8

having it?

9

A.  This document I used in preparation of my

10

testimony on determining the toxicity of effluent. One of

11

the things we have to look at in mixing zones is to make

12

sure 

--

we, we make sure that the toxicity is diminished

13

at the end of the ZID and in the mixing zone.

14

Q.  Did you rely on that document in preparing

15

your testimony?

16

A.  Yes, I did.

17

Q.  Who’s the author of that testimony?

18

A.  Mr. Goodfellow who, I believe, will be

19

testifying later.

20

MR. KISSEL: All right. I move the admission

21

of Exhibit Number 29.

22

MS. WILLIAMS: So you want this entered with

23

Mr. Corn’s testimony?

24

MR. KISSEL: He’s referring to it. If you

Page 204

1

don’t 

--

if you have an objection, Mr. Goodfellow will

2

verify it.

3

MS. WILLIAMS: It’s not so much an objection.

4

It just seemed logical to us in some ways that

S

Mr. Goodfellow would have gone first, so I’m a little

6

surprised about that.

7

MR. KISSEL: I don’t think we did it

8

alphabetically. I’m not sure how we came about that.

9

MS. WILLIAMS: That’s fine.

10

HEARING OFFICER HALLORAN: Okay. Number 29 is

11

admitted.

12

BY MR. KISSEL:

13

Q.  Mr. Corn, you have your testimony before you

14

which is your Exhibit Number 16. Have you reviewed that

15

testimony since it’s been submitted to the Board?

16

A.  Yes, sir.

17

Q.  Are there any areas which you’d like to

18

comment on or, or change or modify?

19

A.  A couple 

-.

a couple of additions and 

--

20

Q.  Okay.

21

A.

--

some things that the Board has asked for

22

that I’d like to point out in my testimony.

23

Q.  Okay. Go ahead.

24

A.  On page two at the end of my qualifications

Page 205

1

and experience, I just wanted to note that I’ve been

2

working on water quality-related projects at Noveon/BF

3

Goodrich since 1989.

4

Q.  Okay.

5

A.  Also on page two, the Board asked a question

6

about what the average concentrations were of ammonia in

7

the effluent in 2003 and for the summer period. And I

8

believe that’s in the document we gave you. It was 77

9

milligrams per liter as an average. We’ve reported 135

10

milligrams per liter based on the work that Mr. Flippin

11

has done. But last year, in 2003, the average in the

12

summer was 77, and I think it’s 94 for the winter period.

13

MS. WILLIM4S: Can we 

--

so

this is coming

14

from 

--

can we please give it a number? Is that too much

15

to ask at this point, if we’re reading from the Board’s

16

answers?

17

MR. KISSEL: What he’s doing is not

18

necessarily reading from those. What he’s doing is he put

19

that together, and he’s testifying as to it. I’ll be

20

happy to give it a number. You know, we hadn’t decided

21

whether we would move its admission or just submit it to

22

the Board, but 

--

can we get a number to that?

23

MS. DEELY: If we want, yeah.

24

MR. KISSEL: Sure.

Page 206

1

MS. WILLIAMS: I mean, I think it would be

2

easier for me to be able to refer to it as an exhibit.

3

BY MR. KISSEL:

4

Q.  Okay. Anything else, Mr. Corn?

5

A.  Yes. On page five when I’m describing the

6

different zones 

--

7

Q.  What about page 

--

I thought you said you had

8

something on page three?

9

A.  I must have skipped over that.

10

Q.  Yes.

11

A.  Page three, the background pH in the report

12

says it’s 7.7. It’s actually 7.77. And the background

13

ammonia concentration should be 0.3 milligrams per liter,

14

and I believe we had 

--

I thought I put 0.09.

15

Q.  So that 

- -

the background concentration is in

16

paragraph one on page three, and the background ammonia

17

concentration is in paragraph three; is that correct?

18

A.  That’s correct.

19

Q.  All right. Above that, it said the water 

--

20

the sentence, “The water quality characteristics,” my

21

statement says, “U.S. EPA stored data.” Should that be

22

Storet?

23

A.  Storet. Thank you.

24

MS. WILLIAMS: Can you refer me to that line

Page 207

1

again?

2

MR. KISSEL: It’s the water quality

3

characteristics, U.S. EPA. It should be Storet database.

4

MS. WILLIAMS: Thank you.

5

A.  On page 

--

on page five, I previously

6

described the different zones of a mixing zone, of a

7

hydraulic mixing zone. And under near field zone, I

8

describe that in the fourth sentence down. The sentence

9

reads, “This zone consists of a jet momentum zone, a

10

restratification zone, depending upon plume river density

11

differences after the jet zone, a transition zone, the

12

buoyant spreading zone,” which I said was sort of a

13

transition zone between the near field and the far field,

14

and then the 

--

it should say, “and far field zone, “which

15

is a mixing area where the plume goes from

16

effluent-dominated mixing to mixing totally dominated by

17

the river ambient diffusion, which is a natural energy and

18

dispersive or spreading out forces of the receiving

19

stream.

20

Q.  Okay. Anything else?

21

A.  On page seven, the Illinois regulations

22

specify that you can only use 25 percent of the

23

cross-sectional area or volume of flow to establish the,

24

the mixing in a mixing zone. And that applies to the zone

Page 208

1

of initial dilution as well as the total mixing zone.

2

The intent of the 

--

all the guidance is to

3

minimize the area you use; and the more mixing you can get

4

in the ZID or the closer to the diffuser, the better you

5

are from impacts to the river. So, I would like to add,

6

after number two 

--

7

Q.  On page seven?

8

A.

--

on page seven, “The ZID dispersion is

9

limited by 25 percent of the volume of flow or

10

cross-sectional area.”

11

Q.  Thank you. Next? Anything else?

12

A.  Just a clarification under 

--

on page eight

13

under number two, that is describing the 

--

what we looked

14

at for the Noveon single port diffuser as it exists today.

15

For other discharges that don’t meet the

16

10-foot-per-second port exit velocity criterion, such as

17

for the Noveon discharge, and each of the following A, B

18

and C’s describe how we calculated that ZID distance.

19

Q.  What about paragraph 2(b)?

20

A,  2(b) should be and/or. You use the 

--

use the

21

smallest distance to establish your ZID.

22

Q.  Okay. Anything else?

23

HEARING OFFICER HALLORAN: Yes, Miss Williams?

24

MS. WILLIAMS: I’m lost. I’m sorry. We’re

Page 209

1

changing on page eight, is that what we’re doing here?

2

MR. KISSEL: Yes, ma’am. Where it says e.g.,

3

in paragraph two, Mr. 

--

4

MS. WILLIAMS: Oh, that should be and/or?

5

MR. KISSEL: No, that should be “for the

6

Noveon discharge,” right?

7

THE WITNESS: Correct.

8

MS. WILLIAMS: Okay. And then 

--

9

MR. KISSEL: Paragraph B, just add “slash or”

10

at the end of it.

11

MS. WILLIAMS: Thank you.

12

MR. KISSEL: Okay. You’re welcome.

13

BY MR. KISSEL:

14

Q.  Anything else, Mr. Corn?

i5

A.  On page ten, the last sentence under multiport

16

diffuser. “And the multiport diffuser will normally meet

17

chronic numeric criteria and chronic co-effluent toxicity

18

within about 100 to 250 feet from the diffuser with a

19

maximum distance on the order of about 750 feet, based on

20

flow.”

21

Q.  You’re adding the words “with a maximum” 

--

22

A,

--

“distance on the order of 750 feet.”

23

Q.  Okay.

24

A.  And then under number two, it’s got 

--

we talk

Page 210

1

about waste. It should be effluent. It’s treated

2

effluent.

3

Q.  All right. Anything else?

4

MS. WILLIAMS: Hang on. Let me catch up.

5

Where does “treated effluent” go?

6

MR. KISSEL: Pardon?

7

MS. WILLIAMS: I’m sorry. Where does “treated

8

effluent” go?

9

MR. KISSEL: Paragraph 6(2), it says, “and the

10

waste is mixed.” It should be, “and the treated effluent

11

is mixed primarily by ambient turbulence.”

12

MS. WILLIAMS: Okay.

13

BY MR. KISSEL:

14

Q.  Anything else, Mr. Corn?

15

A.  On page eleven, we have at 

- -

right before

16

water quality effects, IEPA allows a total of 26 acres for

17

the total mixing zone and the 16 acres, and that last

18

sentence should be 26 acres.

19

Q.  Anything further?

20

A.  The 

--

a little bit of clarification on the

21

two ammonias. NH4 which is the ionized form of ammonia is

22

not considered toxic. The un-ionized form, NH3, which

23

Mr. Flippin talked about being able to strip from because

24

it turns into a gas, is a toxic form, which shows up in

Page 211

1

aquatic toxicity tests.

2

Q.  So, your addition is to add the word 

--

3

A.  tinder 

--

after NH4 which is not considered

4

toxic.

5

Q.  So the word “considered” is added. Okay.

6

MS. WILLIAMS: Oh, I’m sorry, I lost 

--

I’m

7

lost again. I followed the words he was saying; I just

8

don’t understand exactly where 

--

I lost the line.

9

MR. KISSEL: I’m sorry. Oh, sure.

10

MS. WILLIAMS: Where does it say 

--

11

MR. KISSEL: It’s on page eleven, ammonia or

12

NH3, the last paragraph.

13

MS. WILLIAMS: Right.

14

MR. KISSEL: The sentence reads, “Ammonia

15

exists in the environment both as” 

--

16

MS. WILLIAMS: There it is.

17

MR. KISSEL: Yes. Okay.

18

MS. WILLIAMS: Thank you.

19

MR. KISSEL: You’re welcome.

20

BY MR. KISSEL:

21

Q.  Anything else, Mr. Corn?

22

A.  On page 12, and we’re talking about dissolved

23

oxygen. Just a clarification. The river meets DO

24

standards. It’s the next-to-last sentence in that

Page 212

1

paragraph under dissolved oxygen. “The river meets DO

2

standards based on the available data for downstream

3

locations that would potentially be affected by the Noveon

4

discharge.” It’s just to make sure that we’re talking

5

solely about the Noveon discharge at this point.

6

Q.  Okay. Anything else?

7

A.  I believe I’ve already 

--

on page 13 under

8

ammonia water quality standards, we’re talking about a

9

distance of 100 to 250 feet from the diffuser, and I’ve

10

clarified that that would normally be the distance to meet

11

the total mixing zone or chronic zone for ammonia.

12

Q.  Anything else, Mr. Corn?

13

A.  That is it.

14

Q.  Okay. I call your attention to page three of

15

your testimony, the last sentence on the page that reads,

16

“Data for the winter indicate that these months are not

17

limiting periods for ammonia discharges.” When you use

18

the term “limiting periods,” what do you mean?

19

A.  When we look at discharges, we try to find out

20

what is the most critical period that we have to design

21

for as far as the diffuser would go. And the summer

22

conditions of low flow, high temperatures gives us the

23

most critical periods to design for, both from a water

24

quality standpoint and toxicity standpoint.

Page 213

1

Q.  Water quality standards for ammonia are

2

divided into two times of the year; is that correct?

3

A.  Summer and winter.

4

Q.  Okay. And what is generally the summer, and

5

what is generally the winter, or what is 

- -

do you know

6

what they are in Illinois regulations?

7

A.  What the two different standards are?

8

Q.  No, what, what the months are? Do you know

9

what the 

--

10

A.  Oh, the months for summer are April through

11

October, and then November through March for winter.

12

Q.  All right. And for each of those periods,

13

there are 

--

what standards exist? What kinds of

14

standards?

15

A.  There’s whole effluent toxicity standards, but

16

there’s also specific ammonia acute standards, which is a

17

number that would be derived from p14 data, and then there

18

is a specific chronic ammonia standard that you would have

19

to meet.

20

Q.  So, Illinois has summer and winter standards;

21

and summer, there’s summer acute, summer chronic, winter

22

acute and winter chronic. Is that correct?

23

A.  Correct.

24

Q.  And in this instance of the Moveon discharge,

Page 214

1

what is the standard that you 

--

is most limiting, if you

2

will, as you defined that in your testimony?

3

A.  The one that we’ve always been limited in is

4

the acute standard which is at the edge of the ZID limits,

5

the

--

what dispersion we have to meet 

--

6

Q.  And what, what time of the year?

7

A.

--

to meet the standards. During the summer,

8

and September being the critical period because that’s the

9

lowest flow period for the Illinois River.

10

MR. KISSEL: That’s all I have.

11

HEARING OFFICER HALLORAN: Thank you.

12

Miss Deely, do you have copies of Mr. Corn’s written

13

testimony for the members of the public?

14

MS. DEELY: Yes, I think I passed them out.

15

HEARING OFFICER HALLORAN: Anybody else want a

16

copy of Mr. Corn’s written testimony?

17

AUDIENCE MEMBER: How can we arrange for

18

exhibits of that as well?

19

HEARING OFFICER HALLORAN: Well, you can go on

20

our website, and I believe they scan them, or you can come

21

in personally to the Chicago office, or you can call the

22

clerk, and I think he can take care of you there. And I

23

will give you 

--

next break I’ll give you our website, and

24

I will make it for the record at the conclusion.

Page 215

1

With that said, Miss Williams, is your cross,

2

do you know 

--

your crystal ball 

--

going to be long? The

3

reason I’m asking, Mr. Melas, Member Melas, has to take a

4

flight back to Chicago for a Board meeting, and he’s got

S

to leave about three. And I was remiss in 

--

I stated

6

earlier, but I wanted to see if any members of the public

7

wanted to make public comments, statement while Member

8

Melas is here and before he takes off to Chicago. And

9

that’s not to say you can’t make it later if you don’t

10

make it now, but 

--

11

MS. WILLIAMS: I think it would be appropriate

12

to break off now. I would probably actually like to take

13

a couple minutes to make a call back to the office, and if

14

we want to allow for public testimony during that period?

15

HEARING OFFICER HALLORAN: You don’t want to

16

be here?

17

Does anybody want to make a public comment,

18

statement at this time? I don’t see any hands.

19

Do you need to take a minute break?

20

MS. WILLIAMS: Just two or three minutes,

21

yeah.

22

HEARING OFFICER HALLORAN: Okay. We’re off

23

the record. Thanks.

24

(whereupon, a recess was taken.)

Page 216

1

HEARING OFFICER HALLORAN: We’re back on the

2

record, and I think Mr. Icissel has finished his direct,

3

and it’s Miss Williams’ turn.

4

CROSS-EXAMINATION

5

BY MS. WILLIAMS:

6

Q.  Good afternoon, Mr. Corn. How are you today?

7

A.  Very good.

8

Q.  Just like to ask you a few questions about

9

your testimony today. On page one, you talk about your

10

participation in the adoption of the Board’s mixing zone

11

rules; is that correct?

12

A.  Correct.

13

Q.  And you testified in those hearings?

14

A.  I did.

15

Q.  And who were you representing when you

16

testified in those hearings?

17

A.  The Village of Sauget, S-a-u-g-e-t.

18

Q.  Not Song Jay is what came through yesterday.

19

Were you here for that part? No?

20

A.  I was here.

21

Q.  And on page two of your testimony, in number

22

three, description of effluent and river, but then there’s

23

another number three under that, do you see that? It

24

starts with, “The Henry facility.”

Page 217

1

MR. KISSEL: Subparagraph three.

2

BY MS. WILLIAMS:

3

0.  Subparagraph three, I guess you’d call it, one

4

through four?

5

A.  Yes.

6

Q.  In that paragraph, it said, “Ammonia

7

measurements made by IEPA and Noveon or their contractors

8

indicate that ammonia concentrations in the effluent

9

average around 900 pounds per day or 135 milligrams per

10

liter.” Is there a specific place that you looked to to

11

come up with those figures?

12

A.  The number of 135 milligrams per liter, I

13

consulted with Mr. Flippin, and he gave me that number.

14

I’ve also looked back through numbers available from IEPA

15

and the people that have done the work.

16

Q.  When you say “numbers available from IEPA,”

17

could you 

--

18

A.  They have collected samples for ammonia

19

analysis over the years.

20

Q.  So, the annual discharge monitoring?

21

A.  Whatever they’ve monitored.

22

Q.  Okay.

23

A.  I believe all the samples have been grabs, but

24

I’m not sure.

Page 218

1

Q.  And on page three of your testimony, too, I

2

just wanted to clarify, you made a change 

--

and I’m not

3

sure if I heard you correctly 

--

background ammonia

4

concentration in the river, and it said 0.09. You changed

5

that to 0.3?

6

A.  0.3.

7

Q.  And was that a typo, or is that based on newer

8

information?

9

A.  No, that’s a typo. Sometimes my 

3’s 

look like

10

9’s.

11

Q.  But you also put in an extra zero then, too?

12

A.  I didn’t, but 

--

13

Q.  Okay.

14

A.  But that is .3 based on the 

--

15

Q.  You don’t do your own typing, Mr. Corn?

16

A.  Sometimes I do.

17

0.  I do my own typing.

18

A.  Most of the typing I do.

19

Q.  And on page six, you state under the subtitle

20

Actual Mixing Zone, you say, “The existing single port

21

diffuser is effective in dispersing the effluent into the

22

Illinois River, and the effluent has been and will

23

continue to meet water quality and whole effluent toxicity

24

limits in this mixing zone.”

Page 219

1

A.  Correct.

2

Q.  Now, are you talking about the acute and

3

chronic standards?

4

A.  Acute and chronic.

5

Q.  And are you talking about a regulatory mixing

6

zone here, or are you talking about something different

7

than that?

8

A.  The mixing zone as we monitored and reported

9

to IEPA.

10

Q.  I guess maybe I need you to explain that for

11

me a little bit more.

12

A.  The, the mixing zone as we measured, using

13

conductivity, basically went out to about 100 feet, and we

14

achieved a dispersion on the order of about 20:1 at that

15

point, and we will meet acute toxicity and numeric

16

criteria in the mixing zone for that mixing zone as, as

17

described.

18

0.  Now, when you say you measured, you don’t mean

19

that you went out and took samples of the water quality in

20

the river?

21

A.  We went out and we collected or measured

22

conductivity and used it as a surrogate to look at

23

dispersion in the river.

24

0.  But you didn’t actually measure to confirm

Page 220

1

whether your models were correct what the actual mixing

2

zone is?

3

A.  We confirmed that with the conductivity. It

4

is a tracer that can be used to measure the dispersion.

5

MS. WILLIAMS: I’m not sure if he answered my

6

question.

7

BY MS. WILLIAMS:

8

0.  You did 

--

I mean, you didn’t actually take

9

samples to make sure, at the edge of the mixing zone, the

10

water quality standard was being met?

11

A.  The water quality standard for?

12

Q.  The mixing zone would be chronic, I guess, or

13

at what your ZID would be that the acute was being met?

14

A.  For?

15

0.  Ammonia.

16

A.  Ammonia? No, we did not take ammonia samples.

17

Q.  Thank you. That’s all I was trying to get at.

18

And you state here in that same paragraph, “The dispersion

19

achieved at the downstream edge of the plume at about

20

1,000 feet downstream is 100:1 or more”?

21

A.  Correct.

22

0.  1,000 feet; that’s about the length of, what,

23

three football fields? Is that pretty close?

24

A.  Correct.

Page 221

1

0.  Are you aware of any other mixing zones in

2

Illinois that are this long?

3

A.  I believe there is one that I know of that’s

4

that long, and I believe the Village of Sauget has one

5

that’s that long or longer.

6

Q.  And where does the Village of Sauget discharge

7

to?

8

A.  Mississippi River.

9

0.  Are you aware of any others?

10

A.  The Olin diffuser at Alton, East Alton, we

11

requested 1,000 feet; I have not seen what the final

12

number they got. The 3M diffuser, we requested 1,000 feet

13

as well. That’s in Cordova, Illinois.

14

Q.  Are you aware that the Board’s water quality

15

standards for ammonia were amended recently?

16

A.  Yes, I am.

17

Q.  Can you tell us when they were amended?

18

A.  I believe that was in the 2001-2002 time

19

period.

20

Q.  Do you know if that changed the winter and

21

summer time periods at all?

22

A.  Not that I know of.

23

Q.  Are you familiar with the term that was used

24

in that rule-making, the subchronic water quality

Page 222

1

standard?

2

A.

No,

I have not looked at that.

3

Q.  So, you haven’t looked at whether Noveon is

4

meeting that standard?

5

A.  I have not looked at that.

6

0.  On 

--

I’m looking at page eight now of your

7

testimony. And down towards the second paragraph from the

8

bottom, the second sentence here, “Both Noveon and Henry

9

keep POTW discharging through the single port diffuser

10

and, using background, temperature, pH and total ammonia

11

values from upstream monitoring stations, total ammonia

12

concentration of 155 milligrams per liter could be

13

discharged from a single port diffuser and meet water

14

quality standards at the edge of the downstream edge of

15

the ZID.”

16

That’s your testimony, the effluent standard

17

that’s required in the summer months 

--

18

A.  Correct.

19

0.

--

to meet the 

--

to meet the acute water

20

quality standard?

21

A.  The acute, correct.

22

0.  And that’s as it stands currently with the

23

single port diffuser?

24

A.  That is correct.

Page 223

1

Q.  And with the multiport diffuser, you’re saying

2

they could go up to 220 milligrams per liter?

3

A.  Well, the dispersion for the multiple diffuser

4

that we have, have the conceptual design for would meet a

5

dispersion of 43:1, and that’s much greater than 200

6

milligrams per liter.

7

0.  So, it would be your testimony that with the

8

multiport diffuser theyTd actually be able to increase

9

their discharges of ammonia and comply with the water

10

quality standards still?

11

A.  I think it would give them a much greater

12

safety factor.

13

0.  Now, can you 

--

I’m not sure that you really

14

exactly explained for us how you used Mr. Goodfellow’s

15

data in your calculations. could you maybe explain that

16

to me a little bit? I’m not real familiar with his stuff

17

yet.

15

A.  Mr. Goodfellow 

--

and he will testify on this,

19

but basically, he identified two constituents in the

20

Noveon effluent that causes toxicity in whole effluent

21

toxicity tests. One of those constituents was ammonia,

22

and one was salt or total dissolved solids. Based on his

23

work and based on work that I’ve done in the past, the

24

salt alone will cause 

--

will require dispersion of on the

Page 224

1

order of 6 to 9 to 1 to meet just the salt toxicity.

2

So, I relied on that work to make sure that

3

when we design a multiport diffuser that we design it to

4

meet all the whole effluent toxicity acute standards and

5

the chronic as well. Obviously, 43:1 is much greater than

6

we would need to meet that toxicity from the salt.

7

Q.  But 43:1 is based on what?

8

A.  The multiport diffuser.

9

0.

I’m sorry, I take that back. What do you

10

believe you need to address ammonia then? What is that

11

based on?

12

A.  That is based on the multiport diffuser for

13

the future. There have been a couple of readings that I

14

have seen that are grab samples that are in the 200

15

milligram per liter range; and to ensure that we can meet

16

whole effluent toxicity for that, from an acute

17

standpoint, the multiport diffuser would be the assurance

18

that we would need for that.

19

Q.  Just a second. What I’m trying to understand,

20

Mr. Corn, is this: It appears to me from looking at

21

Mr. Ooodfellow’s work that he doesn’t know exactly how

22

toxic Noveon’s effluent limit goes because even at the

23

most diluted ratio of 6.25 percent, toxicity was

24

discovered, correct?

Page 225

1

A.  You’ll have to ask Mr. Goodfellow about that.

2

Q.  Well, I’m trying to decide 

--

that’s why I was

3

hoping he would go first because I have questions about

4

how he got his numbers. So, I guess to the extent there

5

are questions about his numbers, do they call into

6

question any of your findings with regard to the mixing

7

zone?

8

A.  I don’t believe so.

9

Q.  So, it’s not necessary for determining the

10

mixing zone to know how chronic and toxic Noveon’s

11

effluent is?

12

A.  The chronic toxicity? Yes, it 

is.

13

Q.  It is necessary? And what figure did you use

14

for that?

15

A.  I used 100:1.

16

Q.  And where did you 

--

how did you choose that?

17

A.  That was based on the 155, 155 milligrams per

18

liter.

19

MS. WILLIAMS: Well, Mr. Rearing Officer, my

20

technical advisor is asking me if he has permission to ask

21

a follow-up question of the witness. It’s up to you

22

whether you’re willing to break that kind of protocol.

23

HEARING OFFICER HALLORAN: Mr. Kissel?

24

MR. KISSEL: I think we’re sort of doing this

Page 226

1

through lawyers right now. If Mr. Mosher wants to do a

2

public comment 

--

3

HEARING OFFICER HALLORAN: I agree. Let’s try

4

to keep it to the attorneys because that could open a

5

whole floodgate.

6

MS. WILLIAMS: I warned him, but I told him

7

I’d ask.

8

HEARING OFFICER HALLORAN: Thank you.

9

BY MS. WILLIAMS:

10

Q.  Now, what 

--

can you repeat for us what the

11

dimension is of the ZID that you calculated?

12

A.  The ZID is less than five 

--

the ZID?

13

0.  Yes.

14

A.  For which, which diffuser?

15

Q.  Start with the single port.

16

A.  The single port diffuser would be about 66

17

feet long, and I think at that point it may be 30, 50 feet

18

wide, something like that. Maybe a little bit wider.

19

Q.  How long does it take to travel that distance

20

through the Illinois River?

21

A.  Well, if you look at just the velocity in the

22

river, it’s less than a few minutes.

23

0.  And is less than a few minutes 

--

I mean, I

24

would say less than a few minutes definitely means more

Page 227

1

than a minute, right?

2

A.  Less than a few minutes is three minutes or

3

less.

4

0.  About three minutes? Is about three minutes

5

what you mean when you say rapid and immediate mixing?

6

A.  Yes.

7

Q.  Remember that when it takes me three minutes

S

to look through whether I have any more questions.

9

Okay. A couple places in your testimony you

10

refer to the 1990 

--

1972 National Academy of Sciences’

11

theory of 

--

regarding limiting exposure time for aquatic

12

life?

13

A.  Correct.

14

0.  Isn’t it true that the Illinois EPA explicitly

is

rejected this concept in its guidance?

16

A.  And I so state in my testimony.

17

Q.  Are you aware of whether that guidance has

18

been approved by U.S. EPA?

19

A.  The EPA, the 

--

20

Q.  whether the Illinois EPA guidance has been

21

approved by U.S. EPA?

22

A.  I don’t know.

23

Q.  Are you aware of whether the Illinois EPA

24

water quality regulations still rely on un-ionized ammonia

Page 228

1

for measuring?

2

A.  That was my assumption when I’ve done most of

3

this work since 1989.

4

Q.  You know that U.S. EPA has gone to looking at

5

total ammonia again, though, correct?

6

A.  I have heard that.

7

Q.  Can you tell us whether you feel aquatic life

S

will be impaired inside the regulatory mixing zone you

9

proposed?

10

A.  I don’t believe so.

1.

Q.  And what do you base that on?

12

A.  Basically, the velocity of these discharges,

13

basically the sweep are rapid enough to move aquatic life

14

away from the maximum concentrations.

15

Q.  So, what you’re saying is aquatic life are

16

unable to even live in the mixing zone based on that?

17

A.  In the zone of initial dilution, the ZID area.

18

0.  What about in the mixing zone?

19

A.  In the mixing zone, they may pass through

20

that. They could 

--

they could potentially live there.

21

Q.  What would be the impact on mussels or clams

22

in the bottom of the river?

23

A.  I have no data to base that on.

24

Q.  Now, you state that 

--

I believe on page seven

Page 229

1

that Noveon has asked for less than five acres for its

2

total mixing zone; is that what 

--

that’s what we’re using

3

TMZ here for, right? Less than five acres?

4

A.  That is correct.

S

Q.  Are you aware of any other mixing zones in

6

Illinois that are equal to or greater than five acres?

7

A.  I would assume the ones that I’ve mentioned in

8

that area would be that distance, be that size area.

9

0.  And do you think the mixing zone regulations

10

as adopted by the Board intended for an area of five acres

11

without clams or mussels to exist in them?

12

A.  The 

--

as I understand it, the 26 acres is for

13

the total mixing zone, and that’s 

--

includes the ZID and

14

the total mixing zone, and I would assume that they

15

considered that.

16

Q.  And so you think it means that within that

17

maximum of 26 acres, it’s okay for there not to be a

18

condition to support mussels 

or

fingernail clams or that

19

type of bottom life?

20

A.  I think that what they’ve said is that they

21

will allow 26 acres for the total mixing zone.

22

MS. WILLIAMS: I think that’s all I have. Can

23

I just confer for one second?

24

HEARING OFFICER HALLORAN: Sure.

Page 230

1

(A pause was had in the record.)

2

MS. WILLIAMS: okay. I think I’m done. Thank

3

you.

4

HEARING OFFICER HALLORAN: Thank you.

S

Mr. fcissel, before your redirect, I want to ask Member

6

Meias if he had any questions before you took off for your

7

scheduled flight?

S

MEMBER MELAS: None, Mr. Court.

9

HEARING OFFICER HALLORAN: Okay. Thank you.

10

Mr. Kissel, you may proceed.

1.

REDIRECT EXAMINATION

12

BY MR. ICISSEL:

13

Q.  Mr. Corn, there was some discussion on 

--

14

using conductivity here?

iS

A.  Yes.

16

Q.  And what, what is conductivity just for

17

purposes of our discussion here?

18

A.  Conductivity is a way to measure salt content

19

or the concentration in the plume area.

20

Q.  All right. Is it also called salinity?

21

A.  Salinity is another name for conductivity.

22

Q.  And is salinity used as a tracking chemical?

23

A.  Yes, it is. It’s a conservative constituent.

24

And whatever happens to the salt or salinity, any other

Page 231

1

constituent would undergo those same dispersive forces.

2

0.  So, if there’s another contaminant in the

3

discharge and you track the salt, that contaminant will

4

act identically to the salt in the hydraulic atmosphere;

S

is that correct?

6

A.  That’s correct. If you have a 13:1 dispersion

7

of salt, you would have a 13:1 dispersion of the ammonia

8

or any other constituent.

9

0.  There was some discussion by Miss Williams

10

about this setting the dilutions and so forth. Is what

11

you’re attempting to do is to really set a water

12

quality-based effluent limit? Is that basically what

13

you’re doing?

14

A.  That’s correct.

15

0.  And howdo you do that?

16

A.  You basically take the dispersion at the edge

17

of the ZID and translate that back to the end of pipe.

18

0.  By using 

--

meeting what standard at the end

19

of the ZID?

20

A.  The water quality standard.

21

Q.  For?

22

A.  For salt or ammonia.

23

0.  Would that be the acute standard at the end of

24

the ZID?

Page 232

1

A.  At the end of the ZID, it would be the acute

2

standard. At the end of the total mixing zone, it would

3

be the chronic standard.

4

0.  So, take us through with a 43:1 in terms of

S

the

--

of the acute standard at the end of the ZID, you

6

determined that there was a dilution of 43:1 based upon

7

your studies; is that correct?

8

A.  Correct.

9

Q.  Which means at the end of the zone of initial

10

dilution where that 43:1 dilution exists, then you 

--

how

11

do you translate that back to a water quality-based

12

effluent?

13

A.  You would take the water quality 

--

the

14

acute 

--

the acute ammonia water quality standard and

15

multiply that by basically 43, and then that would be your

16

end-of-pipe discharge.

17

Q.  Also some question 

--

a question about the

18

time between the discharge and the end of the ZID, and I

19

think you said it was three minutes. And my understanding

20

of what you said, correct me if I’m wrong, was that was

21

based on the flow of the river?

22

A.  Well, it’s actually based on both, the flow of

23

the river and on the port exit velocity.

24

Q.  So, it would be a 

--

Page 233

1

A.  Obviously at 10 feet per second from a

2

multiport diffuser, it would be a lot less than three

3

minutes.

4

0.  All right. At the multiport diffuser, what

S

would you, ballpark, say the tine from the discharge to

6

the end of the ZID would be?

7

A.  A few seconds.

8

MR. KISSEL: That’s all.

9

HEARING OFFICER HALLORAN: Thank you.

10

Miss Williams, recross?

11

RECROSS-EXAMINATION

12

BY MS. WILLIAMS:

13

Q.  Are you familiar with regulations 35 Illinois

14

Administrative Code Part 355, Determination of Ammonia

15

Based Water Quality Effluent Limits?

16

A.  I’m sure I’ve read them, but

17

Q.  Well, I’m not sure that you have. I mean,

18

that’s why I’m asking. They were recently amended in

19

July, I think, of 

--

maybe actually in October of this

20

year 

--

of last year, I mean.

21

A.  Yeah, I’m not sure that I’ve read those.

22

Q.  Okay. Those are the Agency 

--

I’ll describe

23

them for you if it would help. They are the Agency

24

regulations we use to determine water quality-based

Page 234

1

effluent limits. Have you ever seen those or read those?

2

A.  I don’t believe.

3

Q.  For ammonia specifically? I’m sorry.

4

A.  For ammonia. I don’t recall.

S

MS. WILLIAMS: I think that’s all I have.

6

HEARING OFFICER HALLORAN: Thank you.

7

MR. CISSEL:  I have nothing else.

8

HEARING OFFICER HALLORAN: Thank you.

9

Technical Unit, any questions of Mr. Corn?

10

MS. LIU: Good afternoon, Mr. Corn. Would you

11

happen to know how much it might cost Noveon to install

12

the multiport diffuser and to maintain it?

13

TUE WITNESS: Noveon had an engineering firm,

14

Homer and Schiffrin, they’re out of Belleville, Illinois,

15

and St. Louis, Missouri, an engineer named Tom Thompson

16

came up with a cost, and I think we’ve put that in the

17

unit response. But it was $666,000 a few years ago, and

18

we used a 3 percent inflation rate and brought that up to

19

today’s dollars of $800,000.

20

MS. LIU: Thank you.

21

MEMBER MELAS: I had one question.

22

HEARING OFFICER HALLORAN: Yes, Member Meias?

23

MEMBER MELAS: One part I read that the single

24

port diffuser that’s used now is jointly used by the

Page 235

1

Noveon discharge and the Henry POTW?

2

THE WITNESS: That is correct.

3

MEMBER MELAS: And do they share the 

cost, 

or

4

how do they operate that? Do you have any idea?

5

THE WITNESS: The 

--

it’s my understanding

6

that Noveon made the diffuser available for the City. We

7

met with IEPA and that was approved.

B

MEMBER MELAS: Okay. Makes sense.

9

MR. KISSEL: Maybe we should be charging them.

10

No.

11

MEMBER MELAS: No. You’re good citizens.

12

MR. KISSEL: That is right. Excuse me. We

13

are.

14

I’m going to mark this as an exhibit. I’ve

15

asked the hearing officer 

- -

or I marked as Exhibit Number

16

30 the documents that we gave to the Pollution Control

17

Board so we can now refer to that.

18

MS. WILLIAMS: Thank you.

19

HEARING OFFICER HALLORAN; Any 

--

20

MR. KISSEL: I just have a couple more.

21

FURTHER REDIRECT EXAMINATION

22

BY MR. KISSEL:

23

Q.  Following up on that question of the technical

24

advisor to the Board, Mr. Corn, what about 

--

what would

Page 236

1.

be the construction schedule for the installation of a

2

diffuser?

3

A.  We have estimated a 

- -

about a one-year

4

construction schedule. We do have a conceptual design.

5

We think we can do the detailed engineering in three

6

months. We have put in three months for regulatory

7

approval. That would be IEPA, as well as the Corps of

S

Engineers. You have to get a Corps of Engineers permit.

9

And then the optimum time for building a

10

diffuser is obviously during the summertime, during low

11

flows. Then we would need a one- to two-month period to

12

knock any cobwebs out of the system. So, basically about

13

a year to get the diffuser up and running.

14

Q.  Is there any maintenance cost involved?

iS

A.  Maintenance costs are pretty minimal. Hardhat

16

diver once a year, and then if you have electric 

--

17

electrical lights or anything at your river control

18

structure for the diffuser. You’re not talking 

--

a

19

couple hundred, maybe a thousand dollars a month or, or

20

less.

21

MR. KISSEL: Thank you. That’s all I have.

22

HEARING OFFICER HALLORAN: Any follow-up,

23

Miss Williams?

24

* * * * *

Page 237

1

FURTHER CROSS-EXAMINATION

2

BY MS. WILLIAMS:

3

Q.  Just one question about what you just brought

4

up there. When you said IEPA approval, can you explain?

5

A.  We met with 

--

6

Q.  I’m sorry. When you 

--

you talked about the

7

requirement to get IEPA approval as part of your

8

construction schedule?

9

A.  Correct.

10

Q.  Do you know 

--

because my technical staff was

11

explaining to me yesterday, I think, that you don’t need a

12

permit for that, an actual construction permit. So, is

13

there some other type of permit?

14

A.  The Corps of Engineers requires 

--

I believe

15

the Corps of Engineers requires IEPA to okay the addition

16

of the diffuser under a 404 permit.

17

Q.  Okay. That’s probably what we call a 401

18

certification; does that sound right?

19

A.  I think that’s it. The water quality

20

certification under that, I believe.

21

Q.  Thank you.

22

A.  We’ve gotten that before on other diffusers.

23

MS. WILLIAMS: That’s all I have.

24

HEARING OFFICER HALLORAN: Okay.

Page 238

1

MR. KISSEL: Thank you, Mr. Corn.

2

HEARING OFFICER HALLORAN: Thank you,

3

Mr. Michael R. Corn. You can step down.

4

Petitioner’s Exhibit Number 30, any objection

S

for moving this into evidence, Miss Williams? It’s the

6

responses to the Board’s questions.

7

MS. WILLIAMS: No.

8

HEARING OFFICER HALLORAN: So admitted.

9

MR. KISSEL: Thank you.

10

(A pause was had in the record.)

11

MR. KISSEL: Would you identify yourself for

12

the record, please?

13

HEARING OFFICER HALLORAN: I’m sorry. Please

14

raise your right hand, and Jennifer will swear you in.

15

(Witness sworn.)

16

WILLIAM L. 000DFELLOW, JR.,

17

called as a witness, after being first duly sworn, was

18

examined and testified upon his oath as follows:

19

DIRECT EXAMINATION

20

BY MR. KISSEL:

21

Q.  Would you identify yourself for the record,

22

please?

23

A.  Yes. My name is William L. Goodfellow, Jr.

24

Q.  And where do you live, Mr. Goodfellow?

Page 239

1

A.  I live in York, Pennsylvania.

2

Q.  I show you what has been marked as

3

Petitioner’s Exhibit 31 and ask you to tell me what that

4

iS?

S

A.  It is my written testimony for this

6

proceeding.

7

Q.  Did you prepare that?

8

A.  I did.

9

Q.  And is it true and correct to the best of your

10

knowledge and belief?

11

A.  Yes, it is.

12

MR. KISSEL: I move the admission of

13

Exhibit 

--

Petitioner’s Exhibit 31.

14

MS. WILLIAMS: No objection. Does that

15

include 

--

16

MR. KISSEL: No, I’m going to add 

--

17

MS. WILLIAMS: 

--

the resume?

18

MR. KISSEL: It does include it.

19

BY MR. KISSEL:

20

Q.  But would you identify 

--

tell me what

21

Petitioner’s Exhibit 32 is, please?

22

A.  Yes. It is my resume.

23

Q.  And 

--

24

A.  Minus the header page that’s on the 

--

on the

Page 240

1

other document.

2

Q.  But is that a true and correct recitation of

3

your experiences, education, et cetera?

4

A.  Yes, it is.

S

MR. KISSEL: All right. Move the admission of

6

Petitioner’s Exhibit Number 32, I believe.

7

THE WITNESS: Yes.

8

MS. WILLIAMS: No objection.

9

MR. KISSEL: For the record, Exhibit 31 does

10

have this attached, but I thought we would have it

11

separately.

12

MS. WILLIAMS: What page does it start on?

13

Can you 

--

Exhibit 32 starts on page 

--

14

MR. KISSEL: Well, his, his testimony runs ten

15

pages.

16

THE WITNESS: Page eleven.

17

MS. WILLIAMS: So, page eleven.

18

MR. KISSEL: For the record, Mr. Hearing

19

Officer, all the testimony weTve entered will be entered

20

into the record as so read, correct?

21

HEARING OFFICER HALLORAN: That’s correct.

22

MR. KISSEL: Including Goodfellow and Flippin

23

and Corn.

24

HEARING OFFICER HALLORAN: So, Exhibit Number

Page 241

1

31 and 32 are admitted into evidence without objection?

2

MS. WILLIAMS: (Counsel nods head.)

3

HEARING OFFICER HALLORAN: And also,

4

Miss Deely, do we have copies of 

--

S

MS. DEELY: I just handed them out.

6

HEARING OFFICER HALLORAN: You’re way ahead of

7

me. Thank you. You may proceed.

8

MR. KISSEL: I don’t have any specific

9

questions. He’s familiar with cross-examination.

10

HEARING OFFICER HALLORAN: Okay. When you get

11

your bearings, Miss Williams, you can 

--

12

MS. WILLIAMS: Shouldn’t take too long.

13

CROSS-EXAMINATION

14

BY MS. WILLIAMS:

15

Q.  Can we start, I guess, maybe give 

--

have a

16

good transition here. Mr. Corn just testified that he

17

made use of your tests that you performed 

--

18

A.  Yes.

19

Q.

--

for Noveon, and I’m aware of two separate

20

tests that were performed, correct, from your testimony?

21

A.  Correct. Two rounds of testing.

22

Q.  Two rounds. can we call them the March ‘99

23

and the May ‘99 or 

--

24

A.  I think it was January and March.

Page 242

1

Q.  I’m going off the 

--

the one that was entered

2

as Exhibit 29 has March on the front of it. Is that the

3

first or the second?

4

A.  That would be the January testing.

5

0.  Okay. Would you mind if we called it March 

--

6

A.  That’s fine.

7

Q.

--

since 

--

B

A.  I think on the 

--

when the sample was

9

collected, but that’s fine.

10

Q.  We can call it the first round 

--

I guess

11

we’ll call it the first round and second round.

12

A.  That would be fine.

13

Q.  By first round we’re referring to Exhibit 29.

14

A.  That’s fine.

15

Q.  Can you explain for us how you communicate 

--

16

what you communicated to Mr. Corn to give him the

17

information he needed to perform his mixing zone 

--

18

A.  Sure.

19

Q.

--

evaluation?

20

A.  I provided him the written documentation, as

21

well as we had one meeting at Illinois EPA to discuss the

22

findings of the results, but it was 

--

23

Q.  So, you provided him the summary here or data

24

as well or 

--

Page 243

communicate with

your results or

--

your written

A.  It was the written report, yes.

Q.  So, the same as what we had here as 

--

A.  Uh-huh.

Q.  He relied on Exhibit 29?

A.  Correct.

Q.  Did you also provide him the second round of

tests, or did he rely purely on the first round?

A.  I am not sure. I provided it to Gardner,

Carton & Douglas, and then from there I don’t know what

happened to it.

Q.  So, you didn’t directly

Mr. Corn in order to explain to him

anything; he just relied on writing

report?

MR. KISSEL: I think he

meeting with him in Springfield.

BY MS. WILLIAMS:

Q.  At the IEPA?

A.  t3h-huh.

MR. KISSEL: Yeah.

BY MS. WILLIAMS:

Q.  I would like to talk about pages four and five

of your testimony.

A.  Okay.

testified he had a

Page 244

1

Q.  And here you’re discussing the results of the

2

first round of testing, correct?

3

A.  Correct.

4

Q.  And can you 

--

I guess since Counsel didn’t

5

really have anything to ask you, I guess I’d appreciate it

6

if you summarized real briefly for us what those first

7

round of tests concluded?

B

A.  Sure. We were asked to evaluate the effluent,

9

given the test species that were being used by the Agency

10

which were the water flea 

--

Ceriodaphnia dubia 

--

and the

11

fathead minnow, which is Pimephales promelas. And we

12

selected the chronic toxicity test as well as the acute

13

toxicity test.

14

However, at that time 

--

and I have yet to see

is

any additional data 

--

only acute toxicity testing was

16

performed. We selected chronic toxicity testing to also

17

be one of the parameters to evaluate because it uses three

18

samples within a short period of time so we could

19

determine if there was any kind of temporal variability of

20

effluent toxicity. And then we were going into it with

2.

the

--

proceeding to if it was toxic, to evaluate using

22

toxicity identification evaluation procedures. And we did

23

that on the most toxic sample of, of the 

--

24

Q.  You abbreviate that TIE?

Page 245

1

A.  Yeah, toxicity identification evaluation is

2

also referred to as the acronym TIE. The 

--

I’m sorry.

3

Q.  You state on 

--

you state on page four that

4

the objective was to determine the no observed effect

S

concentration, the lowest observed effect concentration,

6

which are abbreviated NOEC and LOEC respectively?

7

A.  Correct.

8

Q.  And the chronic value?

9

A.  Correct. As well as the acute end point.

10

Q.

Then on page five you state, “The chronic

11

toxicity suite of samples were also chronically toxic with

12

the NOEC of less than 6.25 percent effluent and LOEC of

13

6.25 percent effluent for both species”?

14

A.  Correct.

15

Q.  So, can you tell us, Mr. Goodfellow, what is

16

the no observed effect concentration for Noveon’s

17

effluent?

18

A.  It was less than 6.25.

19

Q.  Do you know how much less than 6.25?

20

A.  It was 

--

21

Q.  Did you test anything less 

--

more diluted

22

than 6.25?

23

A.  No, because the objective of the tests we were

24

performing was just to find the most toxic sample to then

Page 246

1

further take it through the acute TIE procedures.

2

Q.  But you said on page four that part of the

3

objective was to determine the no effect?

4

A. Yes, and we determined that it was less

5

than 

--

6

Q.  That it was less than 6.25?

7

A.  Less than 6.25 percent, which is a valid

8

toxicological end point.

9

Q.  Well, I don’t disagree with that. I guess I

10

just want to understand why then, when you went through

11

the samples collected in March 

--

12

A.  Uh-huh.

13

Q.

--

you had the same results, correct, less

14

than 6.25?

15

A.  Correct.

16

0.  And this was true even though the ammonia

17

concentrations were lower in the second round of samples,

18

correct?

19

A.  Correct. However, the salinity was higher.

20

Q.  Wouldn’t it have made sense in the second

21

round of testing to go below 6.25 to get something lower?

22

A.  Again, the objective of the test was to

23

determine 

--

to try to pick the most toxic of the three

24

samples within a chronic test to run an acute TIE

Page 247

1

procedure.

2

Q.  So, Mr. Corn couldn’t have used your data then

3

to make his estimates, could he?

4

A.  Yes, he could. Less than 6.25 is a valid

5

toxicological end point.

6

Q.  So, he just used less than 6.25; not a

7

specific number, just that it was less than 6.25?

8

A.  I 

--

you would have to ask him.

9

0.  Okay. Well, let’s, let’s talk about the

10

fractionation test, all right? That’s what you’re saying

11

was the primary goal, to go through that?

12

A.  Correct.

13

Q.  That was your primary goal. And you state in

14

your testimony, don’t you, that none of those tests were

15

successful in removing toxicity?

16

A.  Not completely, correct.

17

Q.  So, how can you conclude what’s causing the

18

toxicity?

19

A.  That’s a good question. The fractionation

20

procedure, which is also synonymous to the TIE, is a

21

series of physical and chemical procedures that is meant

22

to evaluate various fractions of the effluent, to thus

23

track and determine the characteristics of the wastewater.

24

Information, when you fractionate a sample,

Page 248

1

you will both be 

--

you will gain information from

2

removing toxicity as well as not removing toxicity. We

3

were looking for activities to determine if there was any

4

organic toxicity, any ammonia toxicity, any metal

S

toxicity, any oxidant toxicity, as well as reducible

6

compounds.

7

virtually the only parameter that stays after

8

doing all those treatments is salinity, and salinity is,

9

is the treatment that doesn’t get altered. In fact, many

10

of the other treatments actually add toxicity because

11

they’re actually increasing the, the total dissolved

12

solids in the wastewater that you’re evaluating.

13

Q.  How are you able to conclude that there was no

14

organic toxicity?

15

A.  By using the C-18 column. The C-lB column is

16

a solid phase extraction column that is selective for

17

pulling out non-polar organic compounds that are less than

18

2,000 molecular weight. C-18 columns are chosen over some

19

of the other columns because when a molecule is over 2,000

20

in its molecular weight, it can’t pass the membranes of a

21

cell. So, it’s 

--

they’re really not toxic.

22

MR. KISSEL: For purposes of the record,

23

there’s also a C-lB treatment facility. These are

24

unrelated.

Page 249

1

THE WITNESS: Yeah, just coincidentally.

2

MR. KISSEL: We didn’t use the plant to

3

determine that, the C-18 column.

4

HEARING OFFICER HALLORAN: Thank you.

S

BY MS. WILLIAMS:

6

Q.  When you talk about non-polar organic

7

compounds and amine contributing organic compounds, can

8

you explain to us 

- -

9

A.  Sure. The reason I said that one of the

10

principal toxicants in the testimony was un-ionized

11

ammonia and/or amine contributing organic compounds,

12

primary amines as well as secondary and tertiary amines

13

often, as part of the degradation process, get pushed

14

toward ammonia, so I can’t determine that those 

--

whether

15

the ammonia contribution was coming from inorganic ammonia

16

or from organic ammonia using these procedures.

17

I do know from, from data that I have seen

is

that primarily most of the ammonia is un-- of the

19

un-ionized ammonia is inorganic, but there is an organic

20

ammonia level.

21

But we 

--

I did evaluate other 

--

well, let me

22

back up. The amine contributing organics are also very

23

water soluble; and water-soluble organics, with the

24

exception of very few polymers, are non-toxic because,

Page 250

1

again, they stay in the water and don’t pass the membranes

2

because there’s a higher affinity to stay in the water

3

than to go into the organism. And it can only be toxic if

4

it goes inside the organism.

5

MS. WILLIA4S:  I think that’s all I have,

6

Mr. Goodfellow. Thank you.

7

HEARING OFFICER HALLORAN: Okay. Mr. Kissel?

8

REDIRECT EXAMINATION

9

BY MR. KISSEL:

10

Q.  Yes, I just want to get this 6.2S percent

11

stuff so I can clarify it. Can you sort of explain what

12

that is 

--

13

A.  Sure.

14

Q.

--

Mr. Goodfellow?

15

A.  When we set up a test, the standard test

16

procedures would be to set up an effluent with 100, then

17

50 percent by sections of the effluent. It would be a

18

whole effluent which is 100 percent, 50 percent,

19

2S percent effluent, 12.5 and 6.25, and a laboratory

20

control. We selected those because we were really trying

21

to just determine the slope of the toxicity and such.

22

Q.  Is this a 

--

23

A.  It’s the standard.

24

Q.  Right. Is there such a thing as going to 3.1

Page 251

1

percent, or do you 

--

is that called for in the test

2

procedure?

3

A.  If I was running it as a permit compliance

4

test, I would have run it at whatever the permit

5

compliance point was.

6

Q.

Did you feel it was necessary?

7

A.  But 

- -

no, because the objective was to

8

determine the principal toxicants as part of the TIE. We

9

selected this procedure because we were actually 

--

even

10

though we never got to 

--

we actually had more toxicity

11

statistically at the 6.25 percent to allow it to be

12

determined as the NOEC, we did get a lot of information on

13

the slope of the toxicity during the actual test itself.

14

MR. KISSEL: Okay. Thank you.

15

HEARING OFFICER HALLORAN: Anything further,

16

Miss Williams?

17

RECROSS-EXAI4INATION

lB

BY MS. WILLIAMS:

19

Q.  Just to reclarify, it would be possible to go

20

lower than 6.25?

21

A.  It would.

22

0.  And wouldn’t it be valuable to know the

23

definitive NOEC, no effect concentration?

24

A.  I guess if you had another objective of the

Page 252

1

test, but what we were asked to do back in 98 and ‘99 was

2

to determine the TIE.

3

MS. WILLIAMS: Great. Thanks.

4

The only other question, I guess, I have for

5

Counsel, you submitted as an exhibit the first test that

6

he refers to but not the second? Is there any reason not

7

to enter them both as exhibits?

8

MR. KISSEL: No.

9

MS. WILLIAMS: Was it just 

--

10

MR. KISSEL: I don’t know.

11

MS. DEELY: I think we have them here if you

12

want them.

13

MR. KISSEL: We used it only for Mr. Corn.

14

Mr. Goodfellow has testified to the results. The Agency

15

has copies of the tests and has for some time.

16

MS. WILLIAMS: We do. So, if the Board, I

17

guess, wants them, they can ask us for copies if they need

lB

them.

19

BEARING OFFICER HALLORAN: Okay. Thank you.

20

MR. KISSEL: Thank you.

21

HEARING OFFICER HALLORAN: Miss Liu, Mr. Rao?

22

Any questions of Mr. Goodfellow?

23

MS. LIII: Good afternoon, Mr. Goodfellow.

24

THE WITNESS: Good afternoon.

Page 

253

1

MS. LID: Could you please identify the

2

address of your office with the 

--

3

TIlE WITNESS: Yes. It is 15 Loveton Circle,

4

Sparks, Maryland.

S

MS. LIII: Is that the corporate headquarters

6

as well?

7

THE WITNESS: Corporate office is in actually

S

Hunt Valley, Maryland, which is two and a half miles from

9

our science and engineering operation.

10

MS. LItJ: When you did the TIE to identify the

11

specific toxicants in the effluent, your results pointed

12

to salinity, un-ionized ammonia, and the amines; is that

13

correct?

14

THE WITNESS: Correct. The first round of

15

testing that we did, it became very highly suspicious that

16

it was ammonia and salinity. The second round of testing

17

that we did, we actually used what’s called an EPA Tier II

18

procedure which is trying to more definitively identify 

--

19

in this case more definitively identify the toxicity

20

associated with ammonia, as well as other treatments to

21

make sure that the suspicions that it was salinity were

22

also valid.

23

And we added treatments and coupled them

24

together such as Zeolite, which is a natural aluminum

Page 254

1

silicate resin and various different pH’s and graduated

2

pH’s and such to more definitively narrow it down as to

3

the toxicant, make sure that what we were finding in the

4

first round was truly apparent in the second.

S

MS. LU!: Would there be any benefit in a test

6

like that to remove things like the ammonia and the 

--

7

THE WITNESS: We did, and the reason we used

8

Zeolite was that that has a high affinity for ammonia

9

removal, and, in fact, you’re able to remove about 99

10

percent of the ammonia out of the effluent. And we did

11

that; we still have remaining toxicity.

12

with the salinity that’s in this wastewater

13

for Ceriodaphnia, you would expect somewhere between 15 to

14

20 percent would be your acute toxicity, regardless of

15

what else was in the effluent.

16

MS. LIt!: So, you don’t think there was

17

anything else that might have been masked?

18

THE WITNESS: That’s why we, we couple them in

19

different, different proportions and in different

20

sequences to make sure that you can determine if there is

21

something underneath the toxicity because you can only

22

kill an organism once, and 

- -

you know, so you really

23

can’t determine, unless you do those tests, if there’s

24

anything underneath. And we did do the procedures to

Page 

255

1

determine there wasn’t anything underneath other than it

2

was just salinity and ammonia.

3

MS. LIt!: Thank you very much.

4

THE WITNESS: Okay.

5

HEARING OFFICER HALLORAN: Okay. Any

6

follow-up questions?

7

MR. KISSEL: None from me.

8

HEARING OFFICER HALLORAN: You may step down.

9

MS. WILLIAMS: Can I ask one follow-up?

10

HEARING OFFICER HALLORAN: Sure. Sure.

11

FURTHER RECROSS-EXANINATION

12

BY MS. WILLIAMS:

13

Q.  You were talking about that you used Zeolite?

14

A.  Uh-huh.

15

Q.  Can you tell us what else Zeolite removes

16

besides ammonia?

17

A.  Zeolite also removes 

--

actually it has a

18

higher affinity for removing potassium, followed by

19

ammonia, and then considerably lesser affinity for other

20

salinity ions. But it’s 

--

by far, it removes potassium

21

first and then ammonia and then everything is 

--

follows a

22

long way down the chain for removal.

23

MS. WILLIAMS: Okay. Thanks a lot.

24

HEARING OFFICER HALLORAN: Thank you. You may

Page 256

1

step down. Let’s take a five-minute break.

2

(Whereupon, a recess was taken.)

3

HEARING OFFICER HALLORAN: We’re going to go

4

back on the record; in fact, we are. It’s 3:30. By the

S

looks of the clock, it’s 3:35, and right now I want to ask

6

anybody who wants to make public comment, please do so.

7

Yes, sir? Now, do you want to be sworn in?

8

And what I mean by that is if you give public comment,

9

it’s just public comment. If you get sworn in, it’s a

10

public statement, and the Board will give it more weight.

11

And as long as it’s relevant to the matter at hand, you

12

may do so.

13

MR. JANSSEN: Just make a comment for right

14

now.

15

HEARING OFFICER HALLORAN: A comment? Okay.

16

You can have a seat here. You can state your name for the

17

record.

18

MR. JANSSEN: My name is Richard Janssen, and

19

I’m a former BFG employee. I worked there from 1970 to

20

1993. And my comment has to do with what ITve heard in

21

the last couple days. And what really troubles me is that

22

the EPA has a standard, and now 

--

not BEG anymore, but

23

Noveon says this doesn’t apply, this doesn’t apply.

24

Something has to be the standard, and everybody applies to

Page 257

1

the standard.

2

I look at it like a car on Interstate 80 going

3

90 miles an hour. And the cop stops a person, gets picked

4

up, gives them a ticket. They go in front of the judge,

5

and the person says, ‘Well, my car is high-powered. I

6

feel better, and I save a lot of time if I do 90.0

7

Well, the judge says you’re guilty. And the

8

person goes and says to the judge, “Well, I’ll pay the

9

ticket, I’m guilty, but I’m going to continue to do the

10

same thing over and over again.”

11

So, there should be a standard. The company

12

should meet that standard, and the EPA should put the

13

standard out, make it clear, to the point, and go from

14

there.

15

I disagree with some of the statements that

16

were made, and one of them that I disagree with is that

17

nothing can be done to improve the quality of water that

18

they discharge into the river. When I worked there, I was

19

given an opportunity to work in several areas, and I

20

assisted in the waste treatment several times. And it

21

goes back to the process buildings where all this waste

22

comes from. And over the years, when I first started

23

there in 1997 

--

or 1970, they made so many pounds of

24

material. And every year, there was an expansion to make

Page 258

1

more pounds, more pounds. And it seemed like somewhere in

2

the ‘SOs, they lost sight of treating the waste. It was

3

more based on how many pounds you could make and how many

4

dollars you were getting for this pound of material.

S

And what really bothers me today is I don’t

6

know how much Noveon makes off their chemicals a year, I

7

don’t 

--

I haven’t looked into, if I could even find that

8

out, but they would have to treat the waste, put it into

9

the river so itTs not harming the fish, the wildlife. And

10

I’m thankful that I live up river the other way, but I do

11

go to Peoria, Chillicothe; and I go to a restaurant, I get

12

a glass of iced tea, you know, and I’m not able to see

13

through it. I don’t know what’s in the water. This

14

really bothers me.

15

My family 

--

I’m disabled, but my family boats

16

in the Illinois River my grandchildren, they play in

17

there. And I just want the quality of the water to be the

is

best it can be. And I think that’s basically what

19

everyone wants, is the water quality to be safe for

20

drinking, for pleasure, for wildlife.

21

So, I don’t have all of the degrees that a lot

22

of people that spoke here have, and I have a disability,

23

and I have had quite a few problems in the past, but I

24

rely on the EPA and the pollution Board and all the people

Page 259

1

that work there to follow procedures.

2

Now, when I worked there, not everybody

3

followed procedures. There were a lot of spills. These

4

are not taken 

--

I never heard anything yet here about

5

spills and what happens to that, you know. I, I believe

6

the

--

Goodrich trained me on several things, and one was

7

analytic troubleshooting. And I believe this whole

B

wastewater system to be a day-one deviation, because when

9

certain processes run, and when some of them run together

10

the waste they put in is a lot different than on other

11

days. So, you know, I was involved a little bit in the

12

collection of this wastewater that they’re talking about

13

in the late ‘SOs when I worked there and the ‘90s. And

14

when some of these samples were taken, processes were not

15

discharging; the actual process was not discharging into

16

the sewer. And so I don’t know how you can tell, you

17

know, unless you collect samples, you know, at different

18

times, when they are discharging, you know. I just don’t

19

think it was 

--

in my estimation, I don’t think that it

20

was the right thing, right way to go about this.

21

I had a couple other things here. I left BE

22

Goodrich down there not on too good of terms; in fact,

23

it’s the only job ITve ever been fired from. And I

24

testified against SF Goodrich in 1990 

--

end of ‘91, ‘92

Page 260

1

on a wrongful death suit 

--

two wrongful death suits.

2

There was a fire and explosion, killed two people at

3

Goodrich. And I suffered from post-traumatic stress

4

disorder, tied to blood pressure, and I’ve been on

5

medication ever since. And I just want to see things at

6

that plant, you know, because you really can’t tell what

7

goes on at that plant.

S

I was listening, and I heard that there was a

9

discharge that went into the river that wasn’t treated

10

water, you know. These things in the years from ‘55 up

11

through the ‘90s when I was fired, these things happened.

12

And also about spills and stuff. And I can tell you

13

firsthand, because I have the accident report right here.

14

I was given this under court order. And this is 1991,

15

midyear.

16

Carbon disulfide. I was working at the tank

17

farm, and carbon disulfide spilled out of the underground

lB

bunker, and 400 gallons went down the ditch and was going

19

toward the river. I was in this area by myself. I tried

20

to get it diked up, tried to stop it as quick as I could,

21

but I couldn’t get it all. If you have a spill of carbon

22

disulfide, when it’s more than five pounds, you’re

23

supposed to report it to the federal government. Well,

24

all they did was send out a crew with some 55-gallon drums

Page 261

1

and try to get up as much as they could. The rest washed

2

toward the river, and was a low place, and sunk into the

3

ground. And these kind of things were happening.

4

I got wrote up for it. And they dropped 

--

5

they dropped going any farther than giving me any kind of

6

discipline for it for the simple fact was I was doing four

7

jobs at one time. And different people were gone, and I

B

was the back-up for these areas. And this is the kind of

9

thing for several years that was going on. And it’s

10

just 

--

well, you can see what it did to me. I mean, I

11

haven’t been right, and I won’t be right. So, I just hope

12

somebody else don’t have to go through, you know, the

13

things that I’ve gone through in the last 12 years.

14

But I have gone to the funeral of many of my

15

friends who worked at Goodrich, and, you know, they aren’t

16

much older than I am. And there’s gotta be reasons why

17

these people came down with the things that they did when

18

they worked at Goodrich.

19

And so I suppose I’m gonna catch a lot of hell

20

from Goodrich about this, but you can expect that I am

21

going to be filing a lawsuit against BF Goodrich for

22

wrongful discharge in 1993. And I’m sure they’re going to

23

want to argue about that, but I am willing to go to court.

24

My doctors have always told me they thought the stress

Page 262

1

would not be good for me, but I plan on getting this

2

concluded this year. So, I’ve tried to work with them

3

before, have communication to Goodrich headquarters. I

4

don’t get anywhere. I hired a couple lawyers to do it for

5

me, paid them money; evidently, they weren’t working for

6

me because they didn’t follow through. But I have new

7

legal staff now, and I have an agency that works with the

S

people with disabilities; and I do believe that this will

9

be, you know, the year that it’s gonna happen in 2004,

10

because I don’t know how many more years I have left. My

11

blood pressure, I’ve had three strokes in the last year

12

and a half.

13

HEARING OFFICER HALLORP,N: If I had some water

14

I’d give it to you.

lB

MR. JANSSEN: No, I don’t need water. So, I

16

wanted to say a lot more, but I better cut it short and do

17

a little bit of what my doctor has suggested, take it as,

15

as I can because I don’t think that I’m going to be able

19

to do too much more.

20

So, that was my comment. The EPA has a

21

standard, and it should be followed. And that standard

22

should be their 

--

they are trained in this field, and

23

that standard should be that it’s safe for wildlife, for

24

downstream drinking water. You know, nobody should be in

Page 263

1

the river for recreation if it’s going to be harmful. But

2

I guess that’s the end of my comment.

3

Thank you.

4

HEARING OFFICER HALLORAN: Thank you very

5

much, sir. I appreciate it.

6

I think, Mr. Kissel, you were going to call

7

your fourth witness or 

- -

is that correct or no?

8

MR. KISSEL: Number five.

9

HEARING OFFICER HALLORAN: Five. Okay. I

10

lost count.

11

MS. WILLIAMS: Four today, five total.

12

MS. DEELY: It’s fourth out of five.

13

MS. WILLIAMS: No, You had one yesterday.

14

HEARING OFFICER HALLORAN: You had one

15

yesterday. Then I am right.

16

MS. DEELY: You are right. We’re going to

17

call Linda Shaw as our next witness.

lB

(Witness sworn.)

19

LINDA M. SHAW,

20

called as a witness, after being first duly sworn, was

21

examined and testified upon her oath as follows:

22

DIRECT EXAMINATION

23

BY MS. DEELY:

24

Q.  Can you state your name for the record,

Page 264

1

please?

2

A.  My name’s Linda N. Shaw.

3

Q.  Okay. I’m going to show you what we’ve marked

4

as Petitioner’s Exhibit 33. Can you identify that for us,

5

please?

6

A.  This is a written testimony that I prepared.

7

Q.  And is that true and correct to the best of

8

your knowledge, information and belief?

9

A.  Yes, it is.

10

MS. DEELY: I’d like to move that we admit

11

Petitioner’s Exhibit 33 as if read.

12

MS. WILLIAMS: Can we just clarify for the

13

record how this compares with what was prefiled on

14

February 6th?

15

MS. DEELY: What we prefiled on February 6th

16

was redacted. There’s 

--

the subject of Miss Shaws

17

testimony is financial, so we had redacted some

18

information. I think we have went back and tried to

19

narrow our redactions so that this testimony is in its

20

entirety; there’s been nothing removed or redacted from

21

it. So, the public has access to the testimony.

22

MS. WILLIAMS: I mean, the reason I’m asking

23

is sort of twofold: One, to make sure I have read what’s

24

in here because I’ve read an unredacted version.

Page 265

1

MS. DEELY: Yes. You were provided with the

2

unredacted version originally, so this is what you have

3

received.

4

MS. WILLIAMS: And the second question then

S

would pertain to understanding if there are outstanding

6

trade secret claims so that the Agency is clear on what

7

we’re protecting and, you know, just to keep our files 

--

8

MS. DEELY: Okay. There are outstanding trade

9

secrets, not in this exhibit. When we get to that

10

exhibit, I’ll address them.

11

HEARING OFFICER HALLORAN: So, Exhibit Number

12

33, do you have any objection?

13

MS. WILLIAMS: Oh, no.

14

HEARING OFFICER HALLORAN: Okay. It’s

15

admitted.

16

MS. DEELY: Okay.

17

BY MS. DEELY

18

Q.  Can you identify that document, please, Miss

19

Shaw?

20

A.  Yes. This is my resume.

21

Q.  And is that accurate to the best of your

22

knowledge, information and belief?

23

A.  Yes, it is.

24

MS. DEELY: Okay. I move that Petitioner’s

Page 266

1

Exhibit Number 34 be admitted into the record.

2

MS. WILLIAMS: Do we have that? A resume? Is

3

that what you said?

4

HEARING OFFICER HALLORAN: Correct.

5

MS. WILLIAMS: I’m just making sure we have

6

it.

7

MS. DEELY: Do you have it?

8

MS. WILLIAMS: Yes. Fine. No objection.

9

HEARING OFFICER HALLORAN: Okay. 34 is

10

admitted.

11

BY MS. DEELY

12

Q.  I’d like to show you what’s been marked as

13

Petitioner’s Exhibit 35. Can you identify that, please?

14

A.  Yes. This is a spreadsheet that I prepared

15

showing the historical results of the last three years,

16

plus doing some sensitivities.

17

MS. DEELY: Okay. And just to be clear, this

18

information 

--

this spreadsheet we have redacted some

19

information. We’ve only redacted cost information,

20

nothing else. So, that cost information is trade secret

21

protected and confidential, but everything else is, you

22

know, free to Agency and public to view.

23

I’d like to move Petitioner’s Exhibit Number

24

35 be admitted into the record.

Page 267

1

MS. WILLIAMS: So, you’re saying this is

2

exactly the same thing that we were provided 

--

this isn’t

3

exactly what we were provided, is it?

4

MS. DEELY: This is exactly what you were

5

provided, which is with the redactions.

6

MS. WILLIAMS: Would you mind giving us just a

7

second to check?

8

MS. DEELY: Sure.

9

MS. WILLIAMS: Okay. Thanks. That’s fine.

10

HEARING OFFICER BALLORAN: Okay. Petitioner’s

11

Exhibit Number 35 is admitted into evidence.

12

BY MS. DEELY

13

Q.  Okay. I’d like to show you what has already

14

been marked as Petitioner’s Exhibit 11. when you refer to

15

the memorandum of Houston Flippin dated May 17th, 2002, is

16

that what you’re referring to?

17

A.  Yes, it is.

18

Q.  And this is what you used to assess the

19

various costs on the Henry Noveon plant?

20

A.  Yes, it is.

21

MS. DEELY: Okay. Thank you. I have no

22

questions for Miss Shaw.

23

HEARING OFFICER HALLORAN: okay. Thank you.

24

MS. DEELY: You can hold onto that.

Page 268

1

THE WITNESS: Okay.

2

HEARING OFFICER HALLORAN: Miss Williams?

3

CROSS-EXAMINATION

4

BY MS. WILLIAMS:

5

Q.  So when 

--

hi, Miss Shaw. Good afternoon.

6

A.  Hi. Hi.

7

Q.  Takes me a little minute to get adjusted

8

when 

--

it’s easier when you go through the testimony

9

first; it’s more fresh in my mind. So, I need to get a

10

little adjusted here.

11

So, just to clarify what Miss Deely said, when

12

you analyzed the cost of treating 

- -

the cost of

13

implementing some of the alternatives, you based those

14

costs on what Mr. Flippin provided to you, correct?

15

A.  I based it on the information in that

16

memorandum.

17

Q.  Did you assist Mr. Flippin with obtaining data

18

from Noveon when he 

--

19

A.  No.

20

Q.  You didn’t help him at all in preparing his

21

memorandum?

22

A.  No.

23

Q.  He did that, and the first you saw of it was

24

you

--

Page 269

1

A.  No, I was just asked to use these numbers and

2

show the impact at the Henry plant.

3

Q.  All right. Great. So, when he provided

4

figures such as labor cost and electricity cost, you

S

didn’t question any of those?

6

A.  That’s correct.

7

Q.  And from your testimony, you specifically

8

looked at four of the alternatives?

9

A.  Yes.

10

Q.  How did you choose those four from the

11

alternatives provided in Mr. Houston’s (sic) memo?

12

A.  Those were the four they asked me to do the

13

financial analysis on.

14

Q.  And “they” meaning Gardner, Carton & Douglas

15

or

--

16

A.  Yes.

17

Q.  Mr. Flippin has testified previously that

18

PolyOne Corporation provides a flow of about 60 percent to

19

the wastewater treatment plant at 

--

20

A.  tJh-huh.

21

Q.

--

Henry plant?

22

Are you aware of what percentage of the cost

23

of operating that plant they provide to Noveon?

24

A.  No, I’m not.

Page 270

1

Q.  If, for example, the cost in Mr. Flippin’s

2

memo had been 60 percent less, would that have changed

3

your conclusions in your memo, if the cost to Noveon had

4

been reduced by 60 percent? I assume that would have

S

changed your conclusions somewhat, right?

6

A.  It would have changed the results.

7

Q.  Right. On page two of your testimony, I’d

8

like to 

--

you provide several definitions of the terms in

9

the chart?

10

A.  Yes.

11

Q.  And I’d just like you to explain to us, when

12

you define 

--

I see it here both in the definition of

13

volume and the definition of revenue, you use the phrase

14

non-affiliated third parties?

15

A.  That’s true.

16

Q.  Can you explain to us if there’s such a thing

17

as affiliated third parties or second parties or 

- -

18

A.  There is. What that means is that means trade

19

sales. That means it doesn’t include any transfers to 

--

20

within the company. It’s actually product that is going

21

to third parties external to Noveon.

22

Q.  And transfers within the company means it

23

could go to another plant to be used in the production of

24

a different chemical, or how would that happen? How would

Page 271

1

you have transfers within the plant 

--

2

A.  Well 

--

3

Q.

--

or within the company?

4

A.  What that means is there’s a very small amount

S

of this product that is used at another plant. What I

6

mean by intercompany sales, we have offices in Europe and

7

offices in Asia that we transfer price to them at a

8

certain price. We don’t want to double-count those sales

9

to them and then count their final sales. So, we just

10

include the final sale to an unaffiliated third party in

11

our results because you would be double-counting the same

12

product sale.

13

Q.  Okay. I understand how from an accounting

14

perspective that’s true, right? Would you be

15

double-counting it for the purposes of the company as a

16

whole?

17

A.  Uh-huh.

18

Q.  But that means, under your table, for the

19

purposes of this plant that product’s not getting counted

20

at all, correct?

21

A.  That’s not true.

22

Q.  Okay.

23

A.  You know, we have to 

--

for tax reasons, you

24

need to sell to foreign affiliated parties at a transfer

Page 272

1

price. So, we are pricing to them at a particular price,

2

with a little bit of margin for ourselves. But then they

3

eventually sell that same product to a third party, so I

4

am including in my numbers their sales of that product.

5

Q.  So, you follow the product to the 

--

6

A.  Exactly.

7

Q.  okay.

8

A.  Exactly.

9

Q.  That was definitely not clear to me from this.

10

Thank you for that clarification.

11

And what you just leave out then is the

12

markup, or you include that in eventually, too?

13

A.  No. What we include in, in these results is

14

their selling price, the cost to make it in the United

15

States, or at the Henry plant in this case.

16

Q.  Let’s see if I have anything else. Can you

17

explain on page 

--

I just want to understand in your

18

conclusions here on page five and six, you talk about

19

declines in the return in revenue from the plant, 2001,

20

2002 to 2003.

21

But for the second numbers, you provide return

22

on net plant property and equipment, you just give 2002

23

and 2003. Can you explain why you didn’t provide 2001 for

24

that figure?

Page 273

1

A.  It’s not available.

2

Q.  Why is that?

3

A.  We went to a new fixed asset system that

4

tracks this type of data.

S

Q.  And presumably, the reason the data only goes

6

back to 2001 is because that’s the year that Noveon was

7

spun off or however you like to phrase it 

--

created?

8

A.  I guess I just 

--

I chose to give you a

9

three-year sample, you know, the most recent information.

10

Q.  So, could you have gone back then more than

11

three years for that type of information?

12

A.  Well, I could have definitely gone back five

13

years. I’ve been in the job since 1998. But the trend is

14

the same.

15

Q.  Could you say from your recollection where we

16

were at five years ago?

17

A.  No, I can’t.

19

Q.  And by “the same,” you mean that this plant is

19

--

what; how would you describe it?

20

A.  That 

--

21

Q.  How would you 

--

22

A.  That the return on revenue as well as the

23

return on net property is declining, not only over the

24

last three years, but over the last five years.

Page 274

1

Q.  That’s not true for the company as a whole, is

2

it? Just for this plant?

3

A.  I can only speak about this plant.

4

Q.  You don’t work just for this plant, though, do

5

you? I mean, when you say I can only speak for this

6

plant, you mean you don’t have information?

7

MR. LATHAM: Objection.

8

MR. KISSEL: Objection.

9

MS. DEELY: I’m gonna object. I’m just gonna

10

object. We’re talking about the Henry plant, not any

11

other facility; so, I’m just not sure why it’s relevant.

12

MS. WILLIAMS: I think the financial health of

13

the company as a whole is relevant to the Board in

14

considering whether they can afford the cost of these

15

treatment alternatives, isn’t it? I mean, that’s what I

16

was trying to get at, but 

--

17

MS. DEELY: I don’t 

--

18

MS. WILLIAMS: Just the general financial

19

health.

20

HEARING OFFICER HALLORAN: I would overrule

21

your objection; and if the witness can answer, she will do

22

so.

23

A.  I, I am not 

--

I don’t have that information

24

on total Noveon. What I will tell you, however, that I ant

Page 275

1

the finance manager for the polymer additives business

2

unit. The Henry plant is one piece of that business unit.

3

Noveon looks at each business unit separately,

4

as a stand-alone business, and makes 

--

and evaluates the

S

results at that point.

6

Q.  They look at each unit separately?

7

A.  Business unit.

8

Q.  And that 

--

what 

--

how many plants would be

9

in the business unit that you know?

10

A.  There’s two. There’s Henry and the Akron

11

plant.

12

Q.  Did you have a chance last week to take a look

13

at your website, your Internet 

--

the company’s website

14

where they have news, press releases?

15

A.  Uh-huh.

16

Q.  And just generally, those press releases,

17

would you agree, stated things like 

--

about 2003 

--

18

“Sales up, third quarter, sales up, second quarter”? Are

19

you aware of that?

20

A.  In other business units, that’s true.

21

Q.  “Record sales, second quarter of 2003”? Does

22

that sound correct?

23

A.  In other business units, that’s true.

24

Q.  Okay. “Revenue of 1.1 billion in 2002.” Does

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1

that sound accurate?

2

A.  It’s in that neighborhood, for total Noveon.

3

MS. WILLIAMS: Okay. That’s all I have.

4

Thank you.

S

HEARING OFFICER HALLORAN: Thank you.

6

Miss Deely, any redirect?

7

MS. DEELY: No, I don’t think so.

8

HEARING OFFICER HALLORAN: Okay. Mr. Rao,

9

Miss Liu?

10

MR. RAO: Miss Liu had a question.

11

MS. LItJ: Good afternoon, Miss Shaw.

12

THE WITNESS: Uh-huh,

13

MS. LIU: Could you tell us where the

14

headquarters for Noveon is?

15

THE WITNESS: Sure. Do you want the address?

16

It’s in Brecksville, Ohio.

17

MS. LIU: Does Noveon have any other plants

18

besides Henry and Akron that produce those types of

19

products?

20

THE WITNESS: No.

21

MS. LItJ: Is Noveon a private or a publicly

22

held company?

23

THE WITNESS: It’s private. It’s private.

24

MS. LIU: Does Noveon have any competitors for

Page 277

1

the products that it produces at the Henry plant?

2

THE WITNESS: Yes. Yes.

3

MS. LILT: Do you happen to know who those

4

competitors are and where they’re located?

5

THE WITNESS: I can tell you who the

6

competitors are. Flexis, Behr, Crompton are the three big

7

ones, and there’s smaller competitors.

8

MS. LILT: In the table that you provided, you

9

mentioned that it only represents 

--

if Noveon were to pay

10

the entire cost for a treatment alternative 

--

11

THE WITNESS: Uh-huh.

12

MS. LILT: 

--

if you were to share that cost

13

with PolyOne, it would change these numbers. Would you be

14

able to recalculate, based on sharing, to provide that in

15

a post-hearing brief for us later?

16

THE WITNESS: Noveon has the responsibility

17

for operating the water, wastewater treatment so the way I

18

did my analysis was we have the ultimate responsibility

19

for the capital investment as well as the operating cost.

20

There are contracts in place with the PolyOne

21

part of the Henry plant that could potentially look at

22

those and maybe change those, but I, I couldn’t say what

23

that percentage would be or have any idea what it would

24

be.

Page 278

1

MS. LIU: Okay.

2

THE WITNESS: Or whether they could do it.

3

MR. RAO: Just a follow-up question on that.

4

You mentioned that you have contracts with PolyOne for

5

treating their waste stream. Does that involve any, you

6

know, certain amount of money that Noveon charges PolyOne?

7

THE WITNESS: I’m not close enough to that

B

situation. Maybe, maybe Mr. Davids can help you out on

9

that.

10

MR. RAO: Okay. If there is such a

11.

contractual agreement which, you know, brings in a certain

12

amount of money for treating PolyOne’s waste, is that

13

something that you can work in your calculations to show

14

what kind of impact it would have?

15

THE WITNESS: Can you rephrase it?

16

MR. RAC: Yeah. You know, if you’re getting

17

an income by treating their waste, like if you’re charging

18

them so many dollars per year 

--

19

THE WITNESS: Okay.

20

MR. RAO: 

--

can you put 

--

calculate that

21

cost in income and see what kind of change?

22

THE WITNESS: These costs are net.

23

MR. RAO: Okay.

24

THE WITNESS: These are strictly what is

Page 279

1

Noveon’s cost so that’s already 

--

so that’s already been

2

taken out.

3

MR. RAO: Oh, it’s already been taken out?

4

THE WITNESS: If we are charging them for

waste treatment, that is billed to them, and that is their

6

expense. These are strictly what belongs to Noveon at

7

that plant.

8

MR. RAO: Okay. Thanks.

9

HEARING OFFICER HALLORAN: Any follow-up,

10

Miss Deely?

11

MS. DEELY: I don’t think so.

12

HEARING OFFICER HALLORAN: Miss Williams?

13

RECROSS-EXAMINATION

14

BY MS. WILLIAMS:

15

Q.  Just maybe to clarify the question they asked

16

about the number of plants, you said there were two that

17

manufacture 

--

how do you define it, the unit that you

18

work for is?

19

A.  Oh, polymer additives business unit.

20

Q.  Polymer additives?

21

A.  Uh-huh.

22

Q.  How many plants total does Noveon have?

23

A.  I want to say in the neighborhood of 20, 28,

24

something 

--

in the 20’s.

Page 280

1

MS. WILLIAMS: Thank you. That’s all I have.

2

HEARING OFFICER HALLORAN: No further

3

questions. You may step down, Miss Shaw. Thank you very

4

much.

5

Here is what we’re going to do. We have to

6

take a short break now. The Clerk of the Court informs us

7

that she’s leaving at 4:30, and we want the parties 

--

if

8

they have to lock stuff up because, what I wanted to do, I

9

wanted to finish this hearing today, but it doesn’t look

10

like it’s going to happen.

11

My thought is 

--

and correct me if I’m wrong

12

here 

--

to finish up Noveon’s case in chief. I think you

13

have one more witness.

14

MR. LATHAM: Right.

15

HEARING OFFICER HALLORAN: I assume the IEPA

16

has two witnesses that will probably take a couple hours

17

and then Noveon will probably have a rebuttal. So, it’s

18

not going to happen tonight unless we stay till 8, and I

19

don’t think anybody wants to do that.

20

So, let’s take a short break and come back

21

here in five, ten minutes, and we’ll wrap it up for today

22

Thank you.

23

(Whereupon, a recess was taken.)

24

HEARING OFFICER HALLORAN: We’re going to go

Page 281

1

back on the record. Sorry about that; I had to call work.

2

In any event, we’re back on the record. It’s

3

approximately 4:25, and I think Noveon is still presenting

4

its case in chief.

5

MR. LATHAN: Right. We have one more witness.

6

HEARING OFFICER HALLORAN: Okay. Mr. Latham,

7

you’re on.

8

MR. LATHAM: Call Guy Davids.

9

(Witness sworn.)

10

MR. LATHAM: Just so everybody knows, we did

11

not file prefiled testimony for Mr. Davids, so 

--

12

HEARING OFFICER HALLORAN: Thank you.

13

GUY DAVIDS,

14

called as a witness, after being first duly sworn, was

15

examined and testified upon his oath as follows:

16

DIRECT EXAMINATION

17

BY MR. LATHAM:

18

Q.  Would you please state your name for the

19

record?

20

A.  Guy H. Davids.

21

Q.  What’s your current address?

22

A.  Current address is Chillicothe, Illinois. Do

23

you want the 

--

24

Q.  Could you summarize your educational

Page 282

1

background for us, please?

2

A.  I have a bachelor of science in chemistry from

3

the California State Polytechnic University in Pomona.

4

Q.  When did you graduate?

S

A.  1990.

6

Q.  Prior to Noveon 

--

can you summarize your work

7

experience prior to joining Noveon?

8

A.  Sure. In chronologic order, I’ve worked for

9

Chevron USA in El Segundo Refinery; that’s El Segundo,

10

California. Also worked for Betts Laboratories in

11

Beaumont, Texas, as a technical sales representative. And

12

also Baker Petrolite, also in the Houston area, as a

13

business development manager.

14

Q.  And when did you join Noveon?

15

A.  I joined 

--

actually joined BF Goodrich in

16

April 1999, and then subsequently became Noveon.

17

Q.  What was your first position with Noveon or BF

18

Goodrich?

19

A.  I was hired as maintenance and utilities

20

supervisor in the Henry plant.

21

Q.  What were your responsibilities in that role?

22

A.  My responsibilities were the day-to-day

23

operation of the waste treatment facility at the Henry

24

plant.

Page 283

1

Q.  Did you have any other positions at the Henry

2

plant?

3

A.  Yes, sir, I did. In March of 2000, I was

4

appointed the production superintendent, which basically

5

meant that I kept the existing responsibilities I had and

6

picked up responsibilities for the day-to-day production

7

of products in the plant.

8

Q.  Any other positions at the Henry plant?

9

A.  In October of 2001, I was promoted to site

10

manager.

11

Q.  And as the site manager, can you summarize

12

your responsibilities in that role?

13

A.  Yes. My responsibilities basically entailed

14

day-to-day operation, compliance with all regulatory 

--

15

regulatory issues, meeting the business objectives, as

16

well as the compliance objectives of the plant.

17

Q.  In your time at the 

--

what’s your current

18

position with Noveon?

19

A.  My current position is plant manager at the

20

Noveon Wilmington, Massachusetts, facility.

21

Q.  While at Henry, did you have any involvement

22

with the wastewater treatment 

--

23

A.  Yes.

24

Q.

--

facility?

Page 284

1

A.  Yes. I actually was supervising the operation

2

in my first position, and actually through all the

3

positions I had at least 

- -

I had responsibility and

4

interaction at least several times a week, if not daily,

5

in the operation of the unit.

6

Q.  I think you testified that as the site manager

7

you helped the plant meet its business objectives. Can

S

you tell us a little bit more about that role?

9

A.  Sure. Yes. The business 

--

the polymer

10

additives business has business objectives as far as

11

sales. We were charged with making the product that the

12

salespeople would sell. We were also charged with

13

improving efficiencies throughout the plant, both in raw

14

materials, utilities, and throughput, through the plant.

15

Q.  In that role, did you have the opportunity to

16

interact with management back at the corporate

17

headquarters?

18

A.  Yes.

19

Q.  Let me 

--

I just want to show you what’s

20

already been marked as Petitioner’s Exhibit Number 35 when

21

Miss Shaw was testifying. Can you take a look at that for

22

a minute?

23

A.  Okay.

24

Q.  Have you seen that document before?

Page 285

1

A.  I believe I have seen the version that does

2

not have the redacted information. I’ve studied that,

3

that one. This one I have seen today.

4

Q.  Okay. I just want to ask you a couple

5

questions about 

--

under the heading 2003 Historical

6

Restated for Treatment Alternatives, there’s a 

--

7

MS. WILLIAMS: Mark, could you speak up just a

S

little bit?

9

BY MR. LATHAM:

10

Q.  Yes, I’ll repeat that. I just want to ask you

11

a couple questions about this column that’s headed 2003

12

Historical Restated for Treatment Alternatives, and I’m

13

going to focus on this box here that’s called Adjusted

14

Operating Income, Percent Return on Revenue.

15

As the former site manager at the Henry plant,

16

what do these numbers show to you?

17

A.  Basically, these numbers show that I 

--

that

18

the return on revenue would be very small, if not

19

negative, for the treatment alternatives three, six, seven

20

and ten. Basically this product, this, this product line,

21

this plant would be at a negative return.

22

Q.  Negative return, meaning it would lose money?

23

A.  That’s correct.

24

Q.  Now, as far as that, what impact, if any,

Page 286

1

would that have on your ability to attract new capital to

2

the plant based on your dealings with Noveon management

3

and helping the plant achieve its business objectives?

4

A.  Based on these numbers, I would have a very

S

difficult time justifying essentially any capital in this

6

plant. Not to say that I wouldn’t get any, but I would

7

have a very difficult time justifying it, and I would

S

expect that I would get 

--

I would be 

--

I would probably

9

be made to operate with what I could, what I could get by

10

with.

11

Q.  Uh-huh. Would these numbers have any 

--

what

12

impact, if any, would the numbers we just discussed have

13

on your ability to attract new products to the plant?

14

A.  It would be very difficult to attract new

15

products.

16

0.  As the site manager, with this type of

17

financial return, would that raise any concerns about the

18

long-term viability of the plant in your mind as the

19

former site manager?

20

A.  I would be concerned about the long-term

21

viability.

22

Q.  Thank you. I just want to show you what’s

23

already been marked as Petitioner’s Exhibit Number 11 

--

24

Mr. Houston Flippin used this in his testimony 

--

if you’d

Page 287

1

just take a look at that?

2

A.  I’m familiar with this document.

3

Q.  Okay. Under table 1, there’s flow data

4

provided. Based on your experience at the Henry plant,

S

does that 

--

are those flows consistent with what you saw

6

when you were responsible for the wastewater treatment

7

plant?

S

A.  Those numbers are consistent with my

9

recollection, yes.

10

Q.  There was also discussion during Mr. Flippin’s

11

testimony about certain 0 & M costs that he included in

12

his calculations I’d like to ask you about. If you could

13

just take a look at table 4 

--

14

A.  Right.

15

Q.

--

for a second?

16

One of the 0 & M costs that he has is the

17

labor for the various treatment alternatives, and he’s

18

used a $40-per-hour cost. Are you familiar with that 

--

19

A.  Yes.

20

Q.

--

labor cost?

21

A.  $40 per hour is a number that we would use.

22

It is a general number that would take into account the

23

wage, the benefits, projected overtime with a given

24

position, and some increase in that wage over a period of

Page 288

1

time.

2

Q.  Of that $40, what would the wage 

--

hourly

3

wage be?

4

A.  In the area that we’re talking about, an

5

operator makes $23.60 an hour straight wage.

6

Q.  So, would it be fair to say that the 17 

--

7

roughly $17 would be benefits, and the other 

--

8

A.  Keep in mind that based on their schedule,

9

they’re paid a premium for hours worked over 40 hours in a

10

week. They typically work a schedule that would build in

11

some overtime into that.

12

Q.  So, it would be typical that they would have

13

some overtime?

14

A.  In a typical 

--

in a typical one-month

15

rotation, the operator will be paid some portion of that

16

at time and a half, double time for Sundays, double time

17

for anything over seven days. And that’s, that’s not too

18

common, but it does happen.

19

Q.  Okay. There’s a couple other of these costs.

20

Are you familiar with these electrical costs?

21

A.  Yes.

22

Q.  Can you explain the successive kilowatt hours?

23

A.  Successive kilowatt hours is a number that

24

would be accurate. Again, I’ve been away from this

Page 289

1

facility for a couple of months now, but my understanding

2

is that 6 cents, 5-1/2 to 6 cents is the current rate

3

right now.

4

Q.  Yes?

S

A.  And 

--

go ahead.

6

Q.  I’m sorry. When this was prepared in May of

7

2000, you were at the facility, correct?

B

A.  That’s correct.

9

Q.

Okay.

10

A.  That’s correct.

11

Q.  What about the natural gas cost of 6 cents a

12

therm?

13

A.  Natural gas cost at the time was 6 cents.

14

Prom what I understand, it would be 8 cents today.

15

Q.  Okay. There was testimony during Mrs. Shaw’s

16

testimony about the polymer additive business, and it has

17

--

consists of two plants, one in Akron and then the other

18

one at Henry?

19

A.  That’s correct.

20

0.  Do those plants make the same products?

21

A.  No, sir.

22

Q.  What’s the difference?

23

A.  They make completely different 

--

completely

24

different products. They go into similar end uses, but

Page 290

1

there’s no chemistry that is practiced in Akron that is

2

practiced in Henry and vice versa.

3

MR. LATHAM: Thank you very much. That’s all

4

I have.

S

HEARING OFFICER HALLORAN: Thank, Mr. Latham.

6

Miss Williams?

7

CROSS-EXAMINATION

8

BY MS. WILLIAMS~

9

Q.  Why don’t we just start with where you left

10

off. The Akron and Henry plants make totally different

11

products; no crossover?

12

A.  That’s, that’s correct.

13

Q.  Would you say all the Noveon plants make

14

different products from each other?

15

A.  I’m 

--

can you 

--

16

Q.  Does it 

--

there are over, what, 20? How many

17

plants does Noveon have?

18

A.  I think 26, 28 is correct.

19

Q.  okay. Is it true that they all make different

20

things or 

--

21

A.  Some 

--

22

Q.

--

do any of them make the same thing that

23

they make at Henry?

24

A.  No.

Page 291

1

Q.  Do any of them make the same thing that’s made

2

in Akron?

3

A.  Mo.

4

Q.  And there are probably other examples of

5

Noveon plants that make things that none of the other

6

plants make, aren’t there?

7

A.  Yes, that’s correct.

B

Q.  And when you talked about the cost component

9

of the labor portion 

--

10

A.  Yes.

11

Q.

--

and you explained a portion of that is

12

overtime as well as the regular wage and benefits as

13

well 

--

14

A.  That’s correct.

15

Q.

--

you said in there?

16

But it’s not your testimony that you’re going

17

to have to hire additional staff to run any of these

18

treatment alternatives, is it?

19

A.  That’s, that’s correct.

20

0.  You also testified that your concern, if

21

Noveon was forced to implement one of these alternatives

22

at the Henry plant, is that it would have an impact on the

23

long-term viability of the plant and its viability to

24

attract new products, correct?

Page 

292

1

A.  That’s my opinion.

2

Q.  Can you tell us when the last time was a new

3

product line was implemented at the Henry plant?

4

A.  Yes. After a lot of lobbying on our part, we

S

were able to bring a new product, made 

--

actually made

6

for another division within Noveon. At the beginning of

7

2003, we made several 

--

between the beginning of 2003 and

8

my departure in December of 2003.

9

Q.  And what department within Noveon is that that

10

you’re making those for?

11

A.  That was personal care.

12

0.  Personal care?

13

A.  Very small volumes.

14

Q.  But even with the uncertainty of this

15

proceeding, you’ve been able to attract new product lines

16

to that plant?

17

A.  The product lines that we were able to attract

18

were currently being made by outside manufacturers. They

19

were being tolled by Noveon, toll manufactured by other,

20

other manufacturers. We were able to bring them to the

21

Henry plant.

22

Q.  I think that was yes, right? Yes, they were

23

able to attract new 

--

24

A.  Yes.

1

Q.  I asked Miss Shaw about what caused her to

2

evaluate the four alternatives that she chose here, three,

3

six, seven and ten, and her testimony was that Noveon’s

4

attorneys directed her to look at those alternatives. Are

S

you aware of why other alternatives were not analyzed for

6

their financial impact?

7

A.  I don’t remember being part of that

B

discussion.

9

Q.  So, it’s possible that some of these other

10

alternatives might have an impact on the plant that’s less

11

than what’s presented in Exhibit 35?

12

A.  It’s possible.

13

Q.  I believe Mark asked you about the flow data

14

provided on this Exhibit 11 dated May 17th?

is

A.  Yes.

16

0.  It’s your testimony that in the Total line

17

where it says total average flow of 560 gallons per

18

minute, that’s an accurate flow value for the Henry

19

facility, correct?

20

A.  That’s 

--

21

Q.  To the best of your recollection?

22

A.  That’s a number that would be inside of what I

23

would expect, inside the range of what I would expect.

24

Q.  How big is the range of what you would expect?

Page 294

1

A.  I would typically see between S00 gallons per

2

minute and 600 gallons per minute on a day-to-day basis,

3

somewhere in there.

4

0.  Yesterday around this time 

--

maybe a little

5

later 

--

I asked Mr. Giffin about some of the in-process

5

reductions that he looked at?

7

A.  Yes.

8

Q.  And one question that I asked him that he

9

wasn’t able to answer I just thought I’d ask you, if maybe

10

you know. I had asked him about how much TBA is used at

11

Noveon. There were some figures provided about a

12

treatment that was able to reach S percent reduction. We

13

were trying to go 

--

back-calculate from that, and I asked

14

him if he knew, and he said he didn’t know. Do you know?

15

A.  What number are you looking for? What are you

16

looking for?

17

Q.  Pounds per day.

18

A.  Pounds per day? Off the top of my head, I

19

don’t know what that number is, pounds per day. It’s

20

going to depend on the actual production for that day.

21

Q.  So 

--

yeah, would it vary? Would there be

22

some days where it would be much less, some days much more

23

based on what was being produced?

24

A.  If we’re not making that product, it would be

Page 

295

1

zero. If we are making that product, there would be an

2

average amount that would be used in a day to make the

3

product and/or process losses.

4

0.  I believe Miss Thaw also told us that you

S

would be the one to talk to about contracts with PolyOne?

6

A.  Yes.

7

Q.  Do you want to explain how those work for us?

8

A.  Do you have something specific, or do you want

9

me to explain the whole 

--

10

Q.  Her testimony 

--

well, was it her testimony?

11

I think it was Mr. Giffin’s testimony that said the costs

12

would vary based on suspended solids, BOD, that it was

13

complicated. So, as simplified as you can make it for us.

14

A.  Okay. As simplified as I can make it. In

15

1994, the current contract was negotiated such that at the

16

time Geon, now PolyOne, pays 55 percent of the monthly

17

operating cost of the waste treatment facility.

lB

0.  Well, that’s pretty simple. Thank you. We’ll

19

just leave it right there.

20

And does that have an expiration date? I

21

guess the contract 

--

22

A.  It is an evergreen contract. We have

23

annual 

--

we have the ability to adjust it annually,

24

although it’s never been adjusted.

Page 296

1

Q.  Okay. The only other thing I can recall that

2

was

--

that came up where they said, “Well, you have to

3

ask Mr. Davids about that,” was when we talked to

4

Mr. Flippin about the information he used to calculate the

S

PE of the facility; he said he was provided figures from

6

you, data from July 2002 to June 2003.

7

A.  Okay.

8

Q.  Are you able to provide those to the Board and

9

to the Agency as well?

10

A.  I would expect that data should be available.

11

Mr. Flippin should have it. I don’t have access to it

12

because I’m not in that plant right now, but it should be

13

available. That’s, that’s data that’s collected daily;

14

it’s daily averages.

15

Q.  Daily averages?

16

A.  Yes. All the data came from our data

17

collection system.

18

Q.  You’re not required under your permits to

19

measure daily effluent data, are you?

20

A.  I don’t 

--

I don’t know. I don’t know.

21

Q.  I think that’s 

--

just one second.

22

If I give you a 

--

I would like to maybe ask

23

one more quick question. When we talked about TBA, I

24

realize you didn’t know exactly how many pounds per day

Page 297

1

would be an average, but if I 

- -

would a number like

2

10,000 be in the ballpark that you would consider as an

3

estimate or 

--

4

A.  An estimate for?

5

Q.  10,000 pounds per day.

6

A.  Used per day?

7

Q.  Used per day.

8

A.  I, I would have to 

--

9

0.  If you don’t know, you can say you don’t know.

10

But if you think that’s in the ballpark or it sounds like

11

you can give us some perspective, I would appreciate it.

12

A.  Again, it depends on if the product 

--

are you

13

looking for a daily average or over a year, or are you

14

looking for 

--

again, if we’re not making a product,

15

there’s none used.

16

MR. PINNEO: Daily average over 

--

17

A.  Daily average over the year?

18

I would hesitate to give a number at this

19

point in time, but probably it could be 

--

it could be

20

found. It, it is 

--

it’s relatively easily found from the

21

plant data.

22

0.  Based on usage data?

23

A.  That’s correct.

24

MS. WILLIAMS: Thanks. That’s all I have.

Page 298

1

HEARING OFFICER HALLORAN: Mr. Latham?

2

MR. LATHAM: Can I take a quick, like

3

60-second break with the witness?

4

HEARING OFFICER HALLORAN: Sure. We’re off

S

the record.

6

(A discussion was held off the record.)

7

HEARING OFFICER HALLORAN: Mr. Latham?

8

MR. LATHAM: Yes.

9

HEARING OFFICER HALLORAN: We’re back on the

10

record.

11

REDIRECT EXAMINATION

12

BY MR. LATHAM:

13

0.  Mr. Davids, I just have a couple of other

14

questions for you. You’re familiar with the cost figures

15

that Linda Shaw used. Can you tell us whether that

16

includes 

--

that 55 percent, whether that 

--

those numbers

17

account for that 55 percent of operating costs that

lB

PolyOne pays for?

19

A.  My understanding is that Linda Shaw’s analysis

20

used numbers 

--

the cost numbers were Noveon’s portion of

21

the waste treatment cost.

22

Q.  Now, you had testified in response to

23

questions by Ms. Williams that PolyOne, under a contract,

24

pays 55 percent of the operating cost of the wastewater

Page 299

1

treatment plant?

2

A.  That’s correct.

3

Q.  Are you 

--

under that same contract, is

4

PolyOne required to pay 55 percent of any capital costs

5

associated with the wastewater treatment plant?

6

A.  Not in any provisions that I’m aware of in the

7

contract. As a matter of fact, I do have an example of a

8

situation we talked 

--

I heard testimony earlier about the

9

expansion of the waste treatment plant to basically double

10

the capacity. The agreement at that time was that PolyOne

11

did not pay the depreciation portion associated with the

12

equipment that was installed. There is 

--

to my

13

knowledge, there is no obligation of PolyOne to pay the

14

capital costs 

--

pay for any portion of the capital costs

iS

provided for in that contract.

16

Q.  Are you aware of any provision in the contract

17

that would obligate PolyOne to pay any costs of additional

18

ammonia being used?

19

A.  No, I’m not aware of any provision in that

20

contract.

2i

MR. LATHAM: Thank you. That’s all I have.

22

HEARING OFFICER HALLORAN: Thank you,

23

Mr. Latham. Miss Williams?

24

* * * * *

Page 300

1

RECROSS-EXAMINATION

2

BY MS. WILLIAMS:

3

Q.  Mr. Davids, aren’t the upgrades you’re

4

referring to, weren’t those in order to deal with the

5

increases on the PC side, the Noveon side?

6

A.  That’s correct.

7

0.  And can you explain for us what you base your

8

conclusion on that the figures in Exhibit 35 included only

9

Noveon’s portion?

10

A.  My discussion with, with Miss Shaw.

11

0.  Prior to her testimony?

12

A.  No.

13

0.  After her testimony?

14

A.  Yes.

15

0.  Because when I asked her, if 

--

that’s not

16

what she testified to, I don’t believe, is it?

17

A.  That’s what I 

--

18

Q.  Do you believe that’s what you heard her to

19

say?

20

A.  That’s what I understood her to say, and she

21

clarified that, yes. That’s what I understood her to say,

22

and that’s what I clarified with her before I came here.

23

Q.  Can we look real quick again at Exhibit 11?

24

Do you still have it up there?

Page 301

1

A.  I don’t have it up here, no.

2

HEARING OFFICER HALLORAN: Here you go. I got

3

it.

4

BY MS. WILLIAMS:

5

0.  I’m looking at Exhibit 8 

--

or alternative

6

number eight, and I just wanted to ask you more

7

specifically, is there a reason that the impact of the

8

cost of alternative number eight was not considered?

9

A.  Can someone tell me 

--

oh, let’s see. What is

10

number eight?

11

Q.  It goes back to ion exchange.

12

A.  Right. Can you repeat your question, please?

13

0.  Why you didn’t plug that alternative into one

14

of the alternatives you analyzed impact on the plant for?

15

A.  Again, I think I testified earlier that I

16

wasn’t a part of the decision. I wasn’t part of the

17

conversation to decide which alternatives would be.

18

MS. WILLIAMS: Okay. Well, that’s fine.

19

Thank you.

20

HEARING OFFICER HALLORAN: Anything else?

21

MS. WILLIAMS: That’s all I have. I’m sorry.

22

HEARING OFFICER HALLORAN: Mr. Latham, any

23

redirect?

24

Mr. Rao?

Page 302

1

MR. RAO: Yeah, I have a clarification

2

question.

3

I was looking at the table prepared by

4

Miss Shaw 

--

5

THE WITNESS: Yes.

6

MR. RAO: 

--

Exhibit 35, and for the 2003

7

Historical Restated for Treatment Alternatives, I was just

8

looking at alternative three. And there is one of the

9

items that’s listed as incremental costs; and for

10

alternative three, it’s 1049; I guess it’s followed by

11

three zeros. That’s the dollar amount?

12

THE WITNESS: That’s correct.

13

MR. RAO: Does this incremental cost represent

14

the annual, you know, operating and maintenance costs?

15

THE WITNESS: Would it be possible to look at

16

the

--

17

MR. RAO: Yeah, if you look 

--

18

THE WITNESS: 

--

previous exhibit so I can see

19

what number three is?

20

HEARING OFFICER HALLORAN: Which, which

21

exhibit?

22

THE WITNESS: The other one I just handed back

23

to you, I think.

24

MR. RAO: If you look at Exhibit 11 on page

Page 303

1

three, table 4 

--

2

THE WITNESS: It looks like alternative three

3

is alkaline air stripping of secondary clarifier effluent.

4

It’s the incremental costs Miss Shaw identifies as annual

5

operating and maintenance cost estimates for treatment

6

alternatives, a million dollars a year to operate the

7

system would, would not be outside of, of what I 

--

8

MR. RAO: Yeah, it seems like it’s the same

9

number that’s in this table number 4 for alternative three

10

in Exhibit 11?

11

THE WITNESS: That’s correct. That’s correct.

12

MR. RAO: And you testified earlier that

13

PolyOne would not be contractually obligated to share any

14

costs for the 

--

any capital costs involved in upgrading

15

your plant?

16

THE WITNESS: That’s correct.

17

MR. RAO: Would they still contribute to the

18

annual operation and maintenance costs, incremental annual

19

operation and maintenance costs?

20

THE WITNESS: I don’t 

--

that I don’t know.

21

It’s not provided for in the current contract. I couldn’t

22

say whether they would or not. I, I feel that they would

23

contest it.

24

MR. RAO: So, if you 

--

for whatever reason if

Page 304

1

you upgraded the plant and your costs go up, there’s still

2

- -

you know, under the contract, they can continue to pay

3

what was your operating costs in ‘94? Is that how it is?

4

THE WITNESS: They can actually 

--

they can do

S

that as a mechanism in the contract. If they dispute some

6

cost, they can pay what they think is fair.

7

MR. RAO: Okay. And if they do agree to share

8

the cost, will the numbers in the table prepared by

9

Miss Shaw change?

10

THE WITNESS: I 

--

11

MR. RAO: If they contribute 55 percent of

12

this operating and maintenance cost?

13

THE WITNESS: I, I would 

--

I would have to

14

defer that question to either Miss Shaw or Mr. Flippin as

15

to whether that would change or not. I’m really not sure

16

for the purposes of this analysis. I’m not sure if I can

17

answer the question.

18

MR. RAC: Okay.

19

THE WITNESS: I can say that they’re not

20

contractually obligated.

21

MR. RAO: So, there are no conditions in the

22

contract that in case your treatment cost increases for

23

whatever reasons that you cannot renegotiate with them, or

24

is that 

--

Page 305

1

THE WITNESS: We can renegotiate, but it’s a

2

negotiation. They can 

--

they can choose to pay or not

3

pay based on the outcome of the negotiation. Ultimately,

4

Noveon is responsible for the cost.

S

MR. RAO: Are you aware of whether PolyOne has

6

other alternatives to treat their waste stream?

7

THE WITNESS: I would expect any alternative

8

would be open to them.

9

MR. RAO: Okay. Thank you.

10

HEARING OFFICER HALLORAN: Thank you. Any 

--

11

I’m sorry, Miss Liu?

12

MS. LIU: Hi.

13

THE WITNESS: Hello.

14

MS. LItJ: Are you familiar with Noveon’s

15

competitors?

16

THE WITNESS: Yes, I am.

17

MS. LIT.):  Miss Shaw identified some of them by

18

name. Are those domestic?

19

THE WITNESS: Some are domestic, some have

20

capacity in and outside of the U.S.

21

MS. LIU: For the ones that have plants that

22

produce products similar to Noveon-Henry plant, do you

23

know what states they’re located in?

24

THE WITNESS: I know that there is 

--

one of

Page 306

1

the competitors currently has a facility located in West

2

Virginia. The other I’m not absolutely sure of.

3

MS. LIU: Thank you.

4

THE WITNESS: You’re welcome.

5

HEARING OFFICER HALLORAN: Mr. Latham,

6

anything in follow-up?

7

MR. LATHAM: No, sir.

8

HEARING OFFICER HALLORAN: You may step down,

9

Mr. Davids. Thank you very much.

10

Does the petitioner have anything else to

11

present in its case in chief? Mr. Kissel?

12

MR. KISSEL: Yes, I talked to Miss Williams

13

about it. We would like to include in our case

14

Petitioner’s Exhibit 36 which is a memo dated

15

October 30th, 1990, from Tim Clugge (phonetic) to the

16

Industrial Unit Staff, and the subject of that is

17

Permitting Guidance for Best Degree of Treatment

18

Determinations. It’s an Agency document which we received

19

through discovery, FYA.

20

And secondly, Petitioner’s Exhibit Number 37,

21

which is a memo dated February 5, 2001, from Scott Twait

22

of the Agency to Rick Pinneo with the subject Ammonia

23

WQBEL5, BF Goodrich, NPDES Number IL000l292 (Marshall

24

County) 

.

Those are both Agency documents. I don’t know

Page 307

1

as they need verification.

2

HEARING OFFICER HALLORAN: Okay.

3

Ms. Williams, 36 and 37?

4

MS. WILLIAMS: You know, do you have an extra

5

one actually?

6

MR. KISSEL: Well, what happened is 

--

we can

7

hold this off till 

--

8

MS. WILLIAMS: Did you take them back?

9

MR. KISSEL: They’re locked.

10

MS. WILLIAMS: Oh. Because I, I thought you

11

gave me one.

12

HEARING OFFICER HALLORAN: You know what? I

13

don’t want to push it. We can hold it off till tomorrow

14

morning and revisit it, and we can pick up your case in

15

chief if you want to.

16

MR. KISSEL: We are looking at a couple of

17

minor, relatively minor 

--

18

HEARING OFFICER HALLORAN: Why don’t you hold

19

this until tomorrow.

20

MR. KISSEL: Okay. We have a couple of things

21

we are looking at that came up in examination from the

22

Board member or members of the Board staff and Agency, and

23

we would like to 

--

going to take us overnight to just

24

look at them. Not going to do as much homework as

Page 308

1

Ms. Williams did last night.

2

MS. WILLIAMS: I take no credit for, by the

3

way.

4

MR. KISSEL: We still have that issue of the

5

transcript to go.

6

HEARING OFFICER HALLORAN: We still have the

7

issue of the data to back up 

--

I forget which table it

8

was in the Exhibit 11. We will visit that tomorrow. My

9

inclination is to have Noveon file the data. Do you

10

recall that?

11

MR. KISSEL: I remember the discussion.

12

HEARING OFFICER HALLORAN: I’m not sure what

13

table, but we can address that first thing.

14

MR. KISSEL: Okay.

15

HEARING OFFICER HALLORAN: So, I guess we

16

really don’t rest, but we’ll pick it up tomorrow

17

morning 

--

18

MR. KISSEL: Right.

19

HEARING OFFICER HALLORAN: 

--

at 9.

20

And before I forget, based on my legal

21

experience, judgment and observations, I find there are no

22

credibility issues with the witnesses that testified here

23

today.

24

Before I go on, do any members of the public

Page 309

1

want to have their piece before we close up shop for

2

tonight and start tomorrow morning at 9 a.m.?

3

Okay. 

And

for the record, too, this was

4

noticed up in the board room, but I have put a notice

5

outside of the board room downstairs stating that the

6

hearing is up here. And from my information, it looks

7

like we’re here tomorrow. I don’t think the judge is

S

going to be in, so that’s good news.

9

And while I’m on the judge, I do want to thank

10

the judge, Judge Shore, and the Clerk of the Circuit Court

11

for their gracious hospitality; it’s been beyond reproach,

12

and we’ve been lucky to get the courtroom.

13

So, with that said, if there are no more

14

issues, have a great evening, and I’ll see you tomorrow

15

morning at nine.

16

(Whereupon, the hearing was adjourned at

17

5:02 p.m. on February 18, 2004.)

18

(Proceedings continued in Volume III.)

19

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