RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
APR 29 2004
IN THE MATTER OF:
Petition ofNoveon, Inc.
for an Adjusted Standard from
35
Iii. Adm. Code 304.122
STATE OF ILLINOIS
Pollution Control Board
NOTICE OF FILING
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Deborah Williams
Assistant Counsel
Division ofLegal Counsel
Illinois Environmental Protection
Agency
1021 N. Grand Avenue East
Springfield, IL 62794-9276
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
PLEASE TAKE NOTICE
that on
Thursday, April 29, 2004,
we filed the attached
Post-Hearing Memorandum of Noveon, Inc.
with the Illinois Pollution Control Board, a copy
ofwhich is herewith served upon you.
Respectfully submitted,
NOVEON, INC.
Richard J. Kissel
Mark Latham
Sheila H. Deely
GARDNER CARTON & DOUGLAS LLP
191 N. Wacker Drive
—
Suite 3700
Chicago, IL 60606
312-569-1000
By:
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AS 02-5
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THIS FILING IS SUBMITTED ON RECYCLED PAPER
~ECE~VEDCLERK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~fR
292004
STATE OF ILLINOIS
iN THE MATTER OF:
)
Pollution
Control
Board
)
Petition ofNoveon, Inc.
)
AS 02-5
for an Adjusted Standard from
)
35 Iii. Adm. Code 304.122
)
POST-HEARING MEMORANDUM
OF NOVEON, INC.
Noveon, Inc., f/k/a The BFGoodrich Company (“Noveon”), through its undersigned
attorneys, respectfully submits this Post-Hearing Memorandum in support ofits Petition for an
Adjusted Standard from the ammonia effluent standard set forth at 35 Ill. Adm. Code 304.122(b).
I.
Background and
Issues
Before the Board
This Petition is related to Noveon’s NPDES Permit Appeal also pendingbefore the
Board. In the Permit Appeal, filed on January 24, 1991, Noveon appealed the condition imposed
by Illinois EPA requiring Noveon to meet an ammonia limit based on the provisions ofSection
304.122(b) ofthe Board’s rules, 35 Il. Adm. Code 304.122(b).
See
PCB 90-1. Noveon believes
the Illinois EPA’ s application ofthis regulation was unwarranted, arbitrary and capricious, and
based on a misinterpretation ofSection 304.122(b). After two days ofhearing, the Permit
Appeal was stayed in 1991, and Illinois EPA and Noveon engaged in settlement discussions.
During this time, Noveon’s experts, Houston Flippin of Brown & Caldwell, Michael Corn of
AquaTer, Inc., and William Goodfellow ofEA Engineering, assisted Noveon in conducting
studies and pilot tests to assess methods oftreating ammonia at Noveon, the effect ofthe
discharge on water quality and calculation ofa mixing zone and Zone ofInitial Dilution (ZID),
and the toxicity of Noveon’s discharge. Noveon and Illinois EPA have met regularly to confer
on Noveon’s progress and Noveonhas allowed Illinois EPA to have ample input into the work
that was proceeding.
This Petition is submitted in the alternative to the NPDES Permit Appeal, forwhich
Noveon submitted a Post-Hearing Memorandum on April
15,
2004. Noveon requests that,
should the Board determine the Illinois EPA properly applied Section 304.122(b), the Board
grant Noveon an adjusted standard from its provisions. Noveon has conducted extensive
assessment oftreatment technologies and has concluded that no technology is available to
Noveon for treatment ofammonia that is both economically reasonable and technically feasible
to allow it to achieve compliance with 35 Ii. Adm. Code 304.122(b). Noveon therefore seeks
relief from Section 304.122(b) and requests as part ofthe relief that the Board also grant Noveon
a mixing zone calculated in accordance with federal and state regulations.
II.
Statement of Facts
A.
The Noveon and PolyOnc Manufacturing Facilities
The Noveon Henry Plant is located on the West Branch ofthe Illinois River in Marshall
County, to the north ofthe City ofHenry. When the NPDES Permit was issued, the Henry Plant
was owned by BFGoodrich. It had two manufacturing units: a specialty chemicals
manufacturing unit, which started operations in 1958 producing chemicals forthe rubber
industry, and a polyvinyl chloride (PVC) resins unit that began operating in
1965.
The Henry
site was selected by BFGoodrich forthis facility because ofits unique proximity to the Illinois
River, Rock Island railroad system, state highway system, electrical power resources, natural gas
resources and water resources, as well as the positive work ethic of the local rural population.
Since 1958, the plant has expanded and changed ownership so that two separate companies,
Noveon, Inc. and PolyOne, now co-exist at the same site. Pet. Ex. 6 at 2. PolyOne manufactures
PVC products and was created as a separate entity in 1993, when BFGoodrich spun offthe Geon
Vinyl division and created a publicly traded company, the Geon Company. In 2001, Noveon,
2
Inc. was created when BFGoodrich sold the remainder ofits chemical operations at the Henry
Plant to a private investment group. Pet. Ex. 6 at 2.
The facility has a utility operation that serves both companies on site. The utility
operation consists ofa boiler operation, a water treatment process and a complex wastewater
treatment system. The boiler operation is owned and operated by PolyOne while the water
treatment and waste treatment systems are owned and operated by Noveon. In 1985, with the
assistance ofthe State ofIllinois, BFGoodrich constructed a state ofthe art circulating fluid bed
coal-fired boiler for $21 millionthat is capable ofburning Illinois high sulfur coal in an
environmentally clean manner. This boiler has been in operation for the past 17 years,
consuming high sulfur Illinois coal and supporting many jobs in the Illinois coal industry. Pet:
Ex. 6at2,3.
The current Noveon Henry Plant is a chemical manufacturing facility. Noveon
manufactures two general groups ofproducts, antioxidants and accelerators, which are the “salt-
and-pepper” chemicals used in the production ofrubber and plastics. The first general group of
products consists ofrubber accelerators used in the vulcanizing process by tire manufacturers to
cure tires. The accelerators allow tire vulcanizing to proceed much quicker than without these
products, resulting in greater efficiency for tire-making so that tires cost less. The second group
ofproducts is antioxidants for plastic and rubber, which are key ingredients for the rubber and
plastic industries and allow products to last longer. Without antioxidants present in articles like
rubber bands, the rubber band will develop holes and break quickly as it expands and contracts.
This concept applies to tires as they support a vehicle and roll down the road; tires could not
function safely without antioxidants. Pet. Ex. 6 at 3. Recently, the facility has added Personal
3
Care and Carboset products to its mix ofproducts. One product called Geltrol is even approved
for food grade applications such as baby bottle nipples. Pet. Ex. 6 at 3, 4.
The PolyOne facility produces specialty polyvinyl chloride resins for niche, specialty
markets and the flooring industry. The resins produced by PolyOne have myriad applications,
including the wear layer (top layer) ofresilient floors, the support base (bottom layer) ofresilient
floors, and protective coating ofcans used for food processing and vinyl wallpaper. Pet. Ex. 6
at 4.
B.
Impact of Noveon and PolyOne on the Local Economy
Both Noveon and PolyOne play a major role in supporting the local economythrough
payment of wages, purchase ofmaterials locally and the payment of real estate taxes. On an
annual basis, wages and benefits of approximately $6.2 million are paidby Noveon to its 75
employees. PolyOne pays approximately $8.2 million to its 100 employees. PolyOne pays
approximately $128,000 per year and Noveon pays approximately $142,000 in real estate taxes.
Pet.Ex. 6 at 3, 4.
The City of Henryhas a population of approximately 2,700, and these payrolls provide
the economic energy that supports the City as well as local businesses within Marshall County
and elsewhere. Typical economic models indicate that for every job created by a company such
as Noveon, six jobs are created as a result to support its overall production activities. Pet. Ex. 6
at4.
C.
The Wastewater Treatment
Facility
The state ofthe art wastewater treatment system is owned and operated by Noveon,
providing wastewater treatment for both companies’ wastewater processes. A visual depiction of
4
the wastewater source and treatment facility is available in a flowchart at Pet. Ex. 1.1
Throughout the life ofthe facility, Noveon has invested in the wastewater treatment system by
installing a number ofimprovements, including installation ofprimary and secondary systems
with an 800,000 gallon in-ground aeration basin in 1972; improvement ofthe secondary system
to above ground aeration tanks (1,000,000 gallons), and addition ofa sludge removal system in
1987 and 1988; installation ofa tertiary sand filter system in 1989, with expansion ofthe tertiary
filtering system to a second sand filter in 1992; and addition ofaeration (1,000,000 gallons) to
the system in 1997 to provide more complete treatment ofthe wastewater organic load to the
system.
All wastewater from the Noveon facility’s manufacturing areas is discharged for
equalization to the Polymer Chemical (PC) Tank, with wastewater from Noveon’s Cure-Rite 18
manufacturing area also receiving pretreatment prior to discharge to a separate
equalization tank. Following equalization, the wastewater receives additional primary treatment
consisting ofpH adjustment, addition of.coagulant and polymer to assist in removing solids, and
primary clarification; secondary treatment consisting ofaeration and secondary clarification
with returned sludge to maintain an appropriate population ofbacteria; and tertiarytreatment
consisting of filtering wastewaterprior to discharge. Pet. Ex. 7 at
5,
6. The PólyOne facility’s
wastewater is discharged for equalization to the Polyvinyl Chloride (PVC) Tank, with the
exception ofcertain manufacturing wastewater which receives pretreatment unrelated to
ammonia prior to discharge to the PVC Tank. The PVC Tank also receives return streams such
as backwash water from the sand filter, filtrate from sludge dewatering, and, routinely, primary
more extensive narrative description of the wastewater treatment process is also available at Pet. Ex.
7.
5
sludge from the primary clarifier. 2004 Tr. 36, 37. This wastewater is thenpumped with the
Noveon wastewaters for primary, secondary and tertiary treatment. Pet. Ex. 7 at 7.
The Noveon and PolyOne facilities also discharge wastewaterconsisting ofstormwater
runoffand discharges from cooling towers, boilers and well water treatment to a storm/utility
pond. A portion ofthe pond water discharges to the PVC Tank to assist with removal of
Biological Oxygen Demand (BOD) removal in the treatment process or when the stormwater
pond’s filter reaches capacity. The remaining pond water goes through a filter for treatment and
combines with the other wastestreams prior to discharge.
Noveon’s wastewater is discharged to the Illinois River through Outfall 001 by a single-
port diffuser. The outfall is a pipe that travels approximately 1,000 yards downstream before
turning and going into the Illinois River. See Pet. Ex. 8, showing discharge location. Wastewate
from the City ofHenry’s treatment plant shares the pipe with Noveon’s discharge. The total
flow of the two discharges is around 1.1 mgd or 1.7 cfs. Pet. Ex. 7 at 2.
The Noveon processes do not discharge any significant ammonia nitrogen directly to the
wastewater treatment system. They do, however, discharge the organic nitrogen compounds
tertiary butyl amine (tBA), mercaptobenzothiazole (MBT) and morpholine. These materials are
discharged directly to the wastewater system due to the un-reacted portion ofeach production
reaction or indirectly due to loss offinished solid product to the wastewater system. The solid
product can break down in the wastewater to a liquid, organic nitrogen compound-bearing
byproduct. The PolyOne processes discharge a small amount ofammonia nitrogen directly to
the wastewater system in the form of ammonium laurate, a dispersing agent.
Nitrification is the conventional treatment for ammonia. Noveon’s wastewater treatment
facility is constructed similarly to municipal wastewater treatment plants to nitrify ammonia, and
6
in fact the design and operation ofNoveon’s plant meet the conditions defined in 35 Il. Adm.
Code 370.920, 35 II. Adm. Code 370.1210, and Ten State Standards to grow ammonia-degrading
bacteria in order to nitrify ammonia. Pet. Ex. 7 at 9. These standards are used by regulators to
critique wastewater treatment facility designs to ensure theyare adequate to support complete
nitrification. The Henry Plant wastewater does not, however, achieve nitrification. The lack of
nitrification is due not to a lack ofequipment orinadequate design, but to a variety oftechnical
challenges, the foremost ofwhich is that the bacteria necessary for nitrification will not grow
because theyare inhibited by certain compounds (principallyMBT). Pet. Ex. 7 at 9. But there
are also other technical challenges to removing ammonia inherent to the Noveon Henry Plant’s
wastewater that highlight the unique issues Noveon would face in any efforts to comply with 35
Ii. Adm. Code 304.122(b):
First, Illinois EPA has reported that only three other plants in the country generate a
similar wastewater. Two ofthese three plants discharge to a Publicly Owned Treatment Works.
Only one ofthe three plants discharges directly to a receiving water. Pet. Ex. 7 at
15.
Thus,
Noveon’s wastewater is not commonly encountered.
Second, the essential building block ofrubber accelerators, Noveon’s main product line
at the facility, is mercaptobenzothiazole, or MBT. As a building block, it is present in numerous
wastestreams throughout the facility. Consequently, there is not one small isolated wastestream
that could be treated for MBT removal. MBT is a well-recognized inhibitor ofbiological
nitrification, even at trace levels of 3 ppm. Those characteristics that make it useful as a rubber
accelerator are exactly what impair its treatability: MBT is poorly degradable. This makes MBT
ideal for rubber making, but it cannot be reduced within the wastewater treatment system to the
levels required for biological nitrification to occur. Pet. Ex. 7 at 15-16.
7
Third, Noveon’s wastestreams require pretreatment ahead ofthe on-site biological
treatment plant to prevent process upsets and noncompliance with effluent BOD and TSS limits.
Consequently, there is an inherent unreliability with any biological treatment process used on site
whether it is used for BOD removal ornitrification. Pet. Ex. 7 at 16.
Fourth, the Noveon wastewater contains several degradable organic nitrogen compounds
such as tertiary butyl amine and morpholine. When these compounds are degraded, theyrelease
ammonia nitrogen. Consequently, effluent ammonia-nitrogen concentrations increase as the
presence ofthese compounds increase in the influent wastewater and as these compounds are
more thoroughly biodegraded. This means that the majority ofthe effluent ammonia nitrogen at
the Noveon Plant is due to thorough biological treatment of organic compounds. Pet. Ex. 7 at
16.
Fifth, the compounds present in Noveon’s wastewatermake oxygen transfer about half as
efficient as municipal wastewaters. Consequently, the Noveon Plant has to use blowerswith
about twice the horsepower to transfer the same amount ofoxygen used at municipal wastewater
treatment plants. The increased power must also be accompanied by increased aeration tankage
to keep operating power levels within a reasonable range. Pet. Ex. 7 at 16.
Sixth, Noveon’s wastewater is lightly buffered, so that even if biological nitrification
could be implemented with the elimination ofnitrification inhibitors, the majority ofalkalinity
would have to be chemically added, whereas alkalinity is typically present at required levels in
municipal wastewaters. This increases technical challenges and cost oftreatment. Pet. Ex. 7 at
16.
Seventh, the Noveon Plant does not have any additional appreciable electrical power
available to the wastewater treatment facility. Significant additional power for any wastewater
8
treatment upgrade would require installation ofa newmotor control center and a new power line
to a substation located approximately 0.5-mile away. Pet. Ex. 7 at 16-17.
In summary, the predominance ofall ammonia in the effluent is a result ofthe wastewater
treatment process and the unique wastewater flows at the Noveon Henry Plant. Noveon’s unique
influent contains organic compounds that have two effects: first, they degrade to form anmionia
nitrogen during the wastewater treatment process; second, MBT and other organic compounds
inhibit nitrification so that ammonia nitrogen is not reduced during wastewater treatment. Pet.
Ex. 7 at 8, 9. These and other factors make Noveon’s wastewater difficult to treat.
D.
The Illinois
River
A USGS topographic map showing the location ofthe Henry Plant and the Illinois River
was introducted at the hearing as Pet. Ex. 18. The Henry Plant sits on a bluff, about 80 to 90 feet
above the Illinois River. Tr. 189. The Illinois River flow varies based on the season, with the
lowest flows occurring during the summer and early fall months. The average yearly flow is
around 15,300 cfs, with monthly average flows ranging from a low monthly average ofaround
8,800 cfs in August to a high of around 26,400 cfs in March (based on the water years from
October to September of 1982 to 1992). Dissolved oxygen (DO) in the River upstream from the
Henry facility is at saturation during the September critical period, and DO downstream from the
Noveon facility is around 94 to 96 ofsaturation. Background ammonia concentration in the
River is 0.297 mg/L during the summer months and background organic nitrogen is around 0.8
mg/L. Tr. 206.
9
Argument
I.
The Transcript of the Proceedings in Noveon’s Permit Appeal, .PCB 91-17, Should
Be Incorporated into this Proceeding
Prior to the hearing, Noveon moved for entry ofthe entire transcript ofthe hearing in
PCB 91-17 into the record of the adjusted standard, including the transcript ofthe hearing
continuation for which a transcript was then unavailable.2 This request was based on Noveon’s
desire for the Board to consider all the evidence submitted with respect to the ammonia
limitation in the NPDES Permit, as well as avoiding prolonging the hearing by requiring
testimony ofwitnesses in the 1991 hearings who were not necessarily required to be called for
any new testimony at the hearings in 2004. At the hearing in 1991, testimony was taken from the
following witnesses called by Noveon: Ken Willings, then Senior Manager ofHealth, Safety
and Environmental for the specialty polymers and chemicals division of BF Goodrich; Richard
Pinneo, ofIllinois EPA’s Bureau ofWater, and Tim Kiuge, also ofIllinois EPA’s Bureau of
Water. A great deal of testimony was takenrelevant to the application of Section 304.122 ofthe
Board’s rules, its background and purpose, the NPDES permit history, Noveon’s HenryPlant
and its products, Noveon’s decision-making, and other areas of inquiry that are clearly also
relevant to the adjusted standard proceeding.
The Illinois EPA objected to incorporation of the transcript, and the Hearing Officer
refused to incorporate the transcript ofthe hearing in PCB 91-17 into this record. At the hearing,
Noveon again moved for incorporation of the transcript, and submitted a copy ofthe transcript
from 1991 that had been reviewed to remove material unrelated to Section 304.122’s application
2
This request for incorporation ofthe entire record includes the transcript ofhearings on November 19,
1991, December 16, 1991, February 17, 2004, and all the exhibits entered at these hearings.
10
to Noveon so as to lessen any purported burden on the Board. The Hearing Officer accepted the
copy of the transcript as an offer ofproofas Pet. Ex. 38. Tr. 326.
Incorporation ofa transcript from another Board proceeding is governed by Section
101.306 ofthe Board’s rules, which states:
(a)
Upon the separate written request ofany person or on its own
initiative, the Board orhearing officer may incorporate materials
from the record ofanother Board docket into any proceeding. The
person seeking incorporation must file with the Board 4 copies of
the material to be incorporated. The Board orhearing officer may
approve a reduced number ofcopies for documents incorporated in
other Board dockets. The person seeking incorporation must
demonstrate to the Board or the hearing officer that the material to
be incorporated is authentic, credible, and relevant to the
proceeding. Notice ofthe request must be given to all identified
participants or parties by the person seeking incorporation.
This is a lenient standard, as it should be since an adjusted standard proceeding is quasi-
regulatory. Noveon unquestionably met all three requirements ofauthenticity ofthe transcript,
credibility (which is determinedby the Board in both proceedings) and relevancy.
Illinois EPA claimed that it would be prejudiced by incorporation ofthe transcript
because incorporation was akin to consolidation of the proceedings. Illinois EPA cited Section
35 Il. Adm. Code 101.406 ofthe Board’s rules concerning consolidation. Illinois EPA’s
objection was apparently based on the differing burdens ofproof in each proceeding.
This argument distorts Noveon’s request. Noveon does not seek a consolidation but only
incorporation of authenticated, credible and relevant testimony into the adjusted standard
proceeding. The Board is perfectly capable of assessing the evidence in light ofthe proper
burden of proofapplicable to each proceeding, and the separate briefs ofthe parties will certainly
allow eachparty to ensure that the proper burden ofproofis applied. Section 101.306(b) allows
the Board to evaluate incorporated testimony with consideration ofthe burden ofproof. In
11
addition, Noveon believes that the burden is more stringent in an NPDES Permit Appeal than the
adjusted standard proceeding in which Noveon wants testimony-incorporated, so no prejudice
can be claimed by incorporation oftestimony from a proceeding subject to a more rigorous
burden ofproofinto one with a less rigorous burden ofproof. The rules ofevidence governing
these proceedings are in any case the same, so a differing ruling to an objection to evidence
would be highly unlikely to result in this case and rather questionable if it did.
Mr. Ken Willings is the only prior witness who was not employed by Illinois EPA, and
he was cross-examined at the original hearing in 1991 and agreed to be and was present and
available for cross-examination at the Adjusted Standard hearing. As for the other witnesses,
they continue to be employed by Illinois EPA, and Mr. Pinneo, who was called by Noveon in
1990, testified on behalfofIllinois EPA in both proceedings.
Illinois EPA has had the prior transcript from the permit appeal for over ten years in a
proceeding clearly inextricably intertwined with the adjusted standard proceeding, and it had the
opportunity to cross-examine all witnesses who testified in 1991 and 2004. There is no prejudice
to Illinois EPA in allowing incorporation ofthe entire transcript. The transcript is authentic,
credible, and relevant, and Noveon’s motion therefore meets the requirements ofthe Board’s
rule. The Board should therefore overturn the hearing officer and incorporate the entire
transcript of the hearing on Noveon’s NPDES permit appeal.
II.
Based on Information Developed
Subsequent
to the Illinois EPA’s Issuance of the
NPDES
Permit in 1990,
Section 304.122 Does Not
Require an Ammonia Limit
In the 1990 permit, for the first time, the Agency determined that Section 304.122(b) of
the Board’s rules required an ammonia effluent limitation for the Noveon Henry Plant’s
discharge. Illinois EPA’s application ofthe rule ignores its plain meaning and relies on a
12
misinterpretation that has no basis in the language of the rule, the Board’s opinion promulgating
it, or any Illinois guidance document. Section 304.122 reads as follows:
(a)
No effluent from any source which discharges to the Illinois River,
the Des Plaines River downstream of its confluencewith the
Chicago River System or the Calumet River System, and whose
untreated waste load is 50,000 ormore population equivalents shall
contain more than 2.5 mg/L oftotal ammonia nitrogen as N during
the months ofApril through October, or 4 mg/L at other times.
(b)
Sources discharging to any ofthe above waters and whose
untreated waste load cannot be computed on a population
equivalent basis comparable to that used for municipal waste
treatment plants and whose total ammonia nitrogen as N discharge
exceeds 45.4 kg/day (100 pounds per day) shall not discharge an
effluent ofmore than 3.0 mg/L oftotal ammonia nitrogen as N.
(c)
In addition to the effluent standards set forth in subsections (a) and
(b) ofthis Section, all sources are subject to Section 304.105
requiring compliance with water quality standards, including
those for ammonia.
By its unambiguous terms, Section 304.122(a) applies to sources that discharge to specified
waterways, including the Illinois River, and “whose untreated waste load is 50,000 or more
population equivalents.” A population equivalent is defined in Board regulations as follows:
Population Equivalent is a term used to evaluatethe impact ofindustrial or other
waste on a treatment works or stream. One population equivalent is 100 gallons
(380 1) of sewage per day, containing 0.17 pounds (77 g) ofBOD5 (five day
biochemical oxygen demand), and 0.20 pounds (91 g) ofsuspended solids. The
impact on a treatment works is evaluated as the highest ofthe three parameters.
Impact on a stream is the higher ofthe BOD5 and suspended solids parameters.
See 35
Il. Adm. Code 301.345.
That Noveon’s P.E’. was less than 50,000 when the NPDES Permit was issued is part of
the NPDES Permit Appeal and included in the Post-Hearing Memorandum filed in that
proceeding. That argument will not be repeated here but is incorporated by reference. But
correct calculations using information developed subsequent to the 1990 NPDES Permit
13
continue to establish that the Noveon plant has less than 50,000 population equivalents.
Consequently, by its plain language, 35 Ii. Adm. Code 304.122(a) cannot be the basis for any
ammonia effluent limit on the HenryPlant’s wastewater discharge.
Illinois EPA provided a calculation ofNoveon’s Population Equivalents subsequent to its
decision on the NPDES Permit in responses to Noveon’s interrogatories in this case. These
calculations were inflated in that they are not based on Noveon’s combined untreated wasteload.
Pet. Ex. 7, at 12. Rather, they were based on the wasteload fed from the equalization tanks to the
primary clarifier. This wasteload contains wastestreams that are internal to the wastewater
treatment facility, including primary clarifier sludge when sludge dewatering is not occurring,
filtrate from sludge dewatering and backwash water from the tertiary (secondary clarifier
effluent) filter. These wastestreams add flow, BOD and TSS, so that they are not representative
ofthe untreated wasteload and their use amounts to multiple-counting ofwastestreams which
stay within the wastewater treatment facility. Illinois EPA has recognized as much; at the
hearing in this matter, the Illinois EPA’s witness responsible for making the erroneous
calculation admitted that he incorrectly calculated the population equivalent.
See
Tr. 426-28,
442. It has not provided any new calculations, however, instead electing to challenge the
calculations of Noveon’s expert, Mr. Flippin by claiming Mr. Flippin omitted wastestreams.
Even using Illinois EPA’s initial inflated calculation, the population equivalents for flow
and BOD were 916 and 19,412, respectively. For TSS, Mr. Flippin calculated the population
equivalent using the untreated wasteload based on information supplied by Noveon, which has
been filed with the Board. This calculation yielded a population equivalent of 24,955. Pet. Ex. 7
at 13. Because all wastestreams expected to have any significant levels ofTSS were included,
14
Mr. Flippin testified that his calculation ofpopulation equivalents was accurate to within 25
percent. Tr. 486-88.
In addition, though not a part ofthe definition ofpopulation equivalents in the Board
regulations, a population equivalent can also be calculated based on ammonia nitrogen and Total
Kjedahl Nitrogen (TKN), which is really the thrust ofSection 304.122. These population
equivalents are also below 50,000. The Noveon Henry Plant’s untreated wasteload would yield a
population equivalent of20,263 for ammonia nitrogen and 35,793 for TKN. Pet. Ex. 7 at 13.
Therefore, using all relevant calculations, Noveon’s untreated wasteload yields a population
equivalent of less than 50,000 and therefore Section 304.122(b) should not apply to Noveon’s
discharge.
Mr. Pinneo testified that Section 304.122(b)‘s applicability to “sources discharging to any
ofthe above waters and whose untreated waste load cannot be computed on a population
equivalent basis comparable to that used for municipal waste treatment plants” requires the
untreated wasteload to be comparable to the untreated wasteload for municipal plants. This is
not reflected in the language of the regulation or the Board’s order adopting the regulation. The
Board is directed to a more extensive discussion of Illinois EPA’ s interpretation ofthis provision
on the Post Hearing Memorandum filed in PCB 91-17, which is based on evidence also admitted
in this proceeding. Further, Mr. Pinneo clearly stated that this interpretation was not reflected in
any regulation or guidance by the Illinois EPA. Tr. 449. It does not comport with the plain
language ofSection 304.122(b), and therefore cannot be applied.
III.
Factors Governing Issuance of an Adjusted Standard
The Board’s regulations require it to review a request for an adjusted standard by making
the following assessment:
15
1.
Factors related to the petitioner are substantially or significantly different from the
factor relied upon by the Board in adopting the general regulation applicable to that petitioner;
2.
The existence of those factors justifies an adjusted standard;
3.
The requested standard will not result in environmental or health effects
substantially or significantly more adverse than the effects considered by the Board in adopting
the rule of general applicability; and
4.
The adjusted standard is consistent with any applicable federal law. 35 Il. Adm.
Code 104.427.
Noveon meets each element ofthis standard. Ammonia from Noveon’s plant is not
removed by the conventional treatment considered by the Board, nitrification, in adopting
Section 304.122(b). In fact, there is no economically reasonable and technologically feasible
alternative available to Noveon for ammonia treatment. Nevertheless, Noveon’s wastewater will
not result in environmental orhealth effects substantially and significantly more adverse -than -the
effects considered by the Board in adopting Section 304.122(b), and specifically will not
adversely impact dissolved oxygen in the Illinois River. Finally, the adjusted standard is
consistent with federal law in that Section 304.122(b) is purely a state effluent standard and there
will be no violation ofwater quality standards ifthe relief requested is granted.
IV.
Factors Related to Noveon Are Substantially and Significantly Different from the
Factors Relied Upon By the Board in Adopting the Regulation of General
Applicability
The Board promulgated what is now Section 304.122(a) in 1972, after hearing and
testimony on the effects of ammonia on dissolved oxygen levels in the Illinois River.
See Board
Order, In the Matter ofEffluent Criteria, In the Matter of Water Quality Standards, and In the
Matter of Water Quality Standards Revisionsfor Intrastate Waters,
R 70-8, 71-14, and 7 1-20
16
(Jan. 6, 1972). This rule applied to sources “whose untreated wasteload is 50,000 or more
population equivalents.” In 1973, the Board followed up with what is now Section 304.122(b),
specifically directed at “industrial dischargers ofmore than 100 lbs. of ammonia as N, whose
wasteload cannot be computed on a population equivalent (PE) basis.”
See Board Order, In the
Matter of Water Quality Standards Revisions,
R 72-4 (Nov. 8, 1973).
In adopting Sections 304.122(a) and (b), the Board explicitly found that “present
technology is capable ofmeeting this limit and should result in the removal ofmuch ammonia
nitrification oxygen demand (NOD) from the stressed waterways.”
See Order ofthe B~ard,
R 72-4 (Nov. 8, 1973). The Board found that “nitrification can be satisfactorily accomplished
for a reasonable price by a second stage of biological treatment.”
See Order of the Board,
R 70-
8, 71-14, 71-20 (Jan. 6, 1972).
The Board’s conclusion is not the case for Noveon. Noveon’s facility is designed to meet
the standards applicable to nitrifying facilities, but it does not nitrify because ofinhibitors in its
wastewater. Even further, however, Noveon has spent incalculable time and incurred significant
expense trying to find a method oftreatment for ammonia. Noveon has conducted literature
reviews, consultation with numerous experts including those testifying in this proceeding,
laboratory-scale treatment investigations, full-scale operations and capital enhancements, and
full-scale plant trial investigations to assess the feasibility ofsource reduction, removal and
recycling oforganic nitrogen compounds, pre-treatment technologies, and post-treatment
technologies for ammonia. None ofthese assessments resulted in discovery of any treatment
alternative that was both technologically feasible and economically reasonable as-a- method to
achieve compliance with 35 Il. Adm. Code 204.122(b).
17
A.
Noveon Cannot Eliminate Organic Nitrogen Compounds from Its Wastewater
Noveon has evaluated all of its processes for contribution ofammonia precursors to the
wastewatertreatment system. These have included Noveon’s research scientists’ evaluation of
numerous methods of morpholine, MBT, and t-butyl amine removal from various processes.
Noveon eliminated many ofthese alternatives based on safety and quality control issues for plant
workers andcustomers, as well as environmental concerns not presented by the current effluent
discharge. The process for removal oforganic nitrogen compounds formany ofthese
alternatives presented risks ofexplosion, quality control issues related to recycled morpholine,
and hazardous waste generation. Pet. Ex. 6 at 7,8. Flowcharts ofthe systems that were
evaluated are at Pet. Exs. 2, 3, 4, and
5.
Noveon did have some success with its source reduction efforts. In 1996, Noveon spent
more than $742,000 to install a new filter system, which significantly improved the dewatering
ofthe wastestreams with organic nitrogen compounds and reduced the loss of solids to the
wastewater treatment system. Tr. 36. As a result of this improvement, the annual amount of
solids lost to the wastewater treatment system was decreased by 100,000 pounds per year. In
2000 and 2001, Noveon performed an improvement to better capture accelerator product. This
improvement reduced 66,000 pounds per year ofproduct to the wastewater treatment system.
Tr. 37. Noveon made improvements to its fines (small particles) scrubber to reduce the loss of
fines to the wastewater treatment system by 123,000 pounds per year. This effort was
recognized with the Governor’s Award for Pollution Prevention. Tr. 37. In 2003, Noveon made
improvements to the tertiary butyl amine recovery, reducing losses to the wastewater treatment
system by 185,000 pounds per year. Noveon was again recognized for this effort with the
Governor’s Award for Pollution Prevention. Tr. 38.
18
Noveon’s wastewater treatment process does achieve some ammonia removal as a result
of BOD removal. Without the BOD removal, the discharge of ammonia would be about 20
mg/L higher than it currently is. Tr. 494.
B.
Noveon
Cannot Achieve Nitrification
ma Cost-Effective
or
TechnicallyFeasible Manner
Noveon’s wastestreams require pretreatment ahead ofthe on-site biological treatment
system to prevent process upsets and noncompliance with effluent BOD and TSS limits.
Consequently, there is an inherent unreliability with any biological treatment process used on site
whether it is used for BOD removal or nitrification. Pet. Ex. 7 at 16.
The Noveon plant has investigated and experimented extensively with potential treatment
methods. These evaluations have included literature reviews, consultation with additional
experts, laboratory-scale treatment investigations, full-scale operations and capital enhancements
and full-scale plant trial investigations. Pet. Ex. 7 at 18.
Houston Flippin, Noveon’s expert, performed over the course of 14 years a thorough
evaluation ofthe costs, feasibility, and effectiveness of all proven technologies for treatment of
ammonia. Tr. 75-77. These treatment technologies include the following:
1.
Alkaline air stripping ofthe PC tank, the PVC tank, and the secondary clarifier
effluent, which involves converting the ammonia to a gas and stripping it off.
2.
Struvite precipitation from the combined wastestream influent, which involves
precipitation of ammonia as struvite, which is essentially arnmonium magnesium
phosphate.
3.
Effluent breakpoint chlorination, which involves oxidation ofammonia to
nitrogen gas.
4.
Single-stage biological nitrification ofthe PVC tank (non-Noveon) wasteflow
combined with separate biological treatment ofthe PC tank discharge.
5.
Biological nitrification of the combined influent wastestream in a single stage.
19
6.
Ion exchange treatment offinal effluent, which involves the use ofhydrogen resin
in a colunms system to takehold ofthe ammonia ion in solution.
7.
Ozonation of final effluent, which involves oxidizing ammonia to nitrogen
gas,which then leaves as a gas.
8.
Nitrification of secondary clarifier effluent (tertiary nitrification).
Tr. 76-77.
Mr. Flippin testified that these “are the proven technologies for effluent ammonia
reduction.” Tr. 77. Pet. Ex. 11 was prepared by Mr. Flippin, and provides information on the
cost ofthese treatment alternatives. Tr.
75.
This exhibit is the product oftreatability testing,
full-scale plant testing, and data from the Noveon Henry Plant. The costs included in this exhibit
are capital costs, annual operating costs, and present worth costs. Mr. Flippin included the
present worth costs in order to take into account both installation costs and costs to keep -a
process running. Tr.
85-86.
The present worth cost is the value that is truly representative ofthe
funds that Noveon would have to have “in the bank today, to not only build it, but to keep each
alternative running”. Tr.
85-86.
Mr. Flippin used a ten-year period for present worth cost,
which is considered to be a minimum term in project life and in line with the conventional
practice ofusing no more than thirty years for project life; had Mr. Flippin used a longer life, it
Tr.would87-88.havePet.increasedEx. 11
thealsooperationcontainsandblockmaintenanceflow
diagramscostsforandeachhencetreatmentthe
presentalternativeworth
thatcosts.3
shows the existing equipment in bold and equipment that Noveonwould be required to purchase
in a non-bolded line.
~The Agency has suggested a twenty-year life for equipment. As a result, Mr. Flippin performed his
analysis using a twenty-year lifespan, which would have made the present worth cost of annual O&M
much higher. See Pet. Ex. 13 and Tr. 96.
20
Pet. Ex. 12 contains the breakdown ofcosts for each treatment alternative, which includes
the required costs (as applicable to each alternative) for labor at $40/hour including benefits,
electrical usage at $0.06 per kilowatt hour, natural gas costs based on $0.06 per therm,
maintenance materials cost using a conventional value offive percent ofthe equipment costs
annually, and chemical costs, which were calculated using the actual cost that Noveon paid for
chemicals at the time the exhibit was prepared. Tr. 83-85. This exhibit also shows the average
ammonia removal in pounds per day and percentage, so that an incremental present worth cost of
ammonia removal can be evaluated.
Finally, Pet. Ex. 13 shows the capital, annual operating and present worth costs for each
alternative. Mr. Flippin included in the first chart a 10-year project life and in the second chart a
20-year project life. Tr. 95-96. The next two pages include the average percentage ofammonia
removal provided by each alternative along with a reliability rating. The reliability rating is on a
scale of 0 (lowest reliability) to 10 (highest reliability) and was based on the relative assessment
ofmechanical and processed performance reliability to achieve the average percent ammonia
removal stated. The next colunm describes what each technology would involve and what
obstacles, if any, they would face. Tr. 97.
With that background, below is a summary for each alternative, the present worth costs,
the percentage of ammonia removal, and the reliability rating, along with a brief discussion of
the technical obstacles ofeach alternative. For a more detailed discussion, Pet. Exs. 11 through
13 should be reviewed.
21
1.
Alkaline Air Stripping
Ammonia exists in two forms, aqueous and gaseous, and as pH increases the aqueous
form becomes a gas. Tr. 76 and Pet. Ex. 13 at p. 1 of4. Thus, by increasing the
pH
ofa
wastewater stream it is possible to strip or remove the ammonia gas.
Id.
This alternative as
investigated involved the use ofair stripping at three separate portions ofthe treatment system as
a means of ammonia removal: (1) within the PC tank; (2) within the PVC tank and (3) the
secondary clarifier effluent. Pet. Ex. 7 at
25;
Pet. Ex. 11 at 2 and Fig. 2; Pet. Ex. 13 at 1.
Because samples ofthe PC tank and PVC tank discharges contained greater than 500
mg/L TSS, a packed tower air stripper or horizontal tray stripper would require frequent
maintenance due to fouling. Thus, diffused air stripping and surface aeration processes were
both selected for evaluation in both the PC tank and PVC tank. Pet. Ex. 13 at 1. Due to the slow
rate of these stripping processes, the small amount ofammonia available in these tanks, and the
large flow rates ofthe wastewater into the PC tank and PVC tank, only stripping within existing
tankage was considered. Building additional tankage would have only made these processes
look less economically favorable. With respect to stripping ammonia from the PC tank and PVC
tank, since the bulk of the ammonia discharged from the Henry Plant is generated as a byproduct
in the downstream wastewater treatment facility, ammonia reductions ofonly 14-27 were
achieved. Pet Ex. 13 at 1. Conventional packed tower air stripping was selected for evaluation
ofthe wastewater treatment facility effluent downstream ofthe secondary clarifierwastewater
since this is a well-established stripping technology.
See
Pet. Ex. 7 at 22-23 and Pet. Ex. 13 at 1.
This low level ofammonia reduction means air stripping from the PC tank and PVC tank
would not achieve sufficient ammonia reduction that would allow the Henry Plant to meet the
effluent limitation of
35
Il. Adm. Code 304.122(b). Pet. Ex. 13 at 1. Further, given the present
22
worth costs (capital, operation and maintenance costs) of$2.21 million for PC tank treatment and
$14.1 million for PVC tank treatment, this alternative was also deemed economically
unreasonable in light of the high costs and low ammonia reduction obtained ofonly 27 and
14, respectively. Pet. Ex. 13 at 1.
The ammonia removal achieved from air stripping ofthe secondary clarifier was greater
than
95
using packed tower air stripping technology. Pet. Ex. 13 at 1. One difficulty with this
alternative is that it would increase Total Dissolved Solids (TDS) by more than 20, which
would likely increase the aquatic toxicity ofthe effluent.4
Id.
The most important difficulty with
this treatment alternative is its complexity to operate, high operation, maintenance and
installation costs, together making it economically unreasonable with present worth costs ofover
$14 million. Pet. Ex. 13 at 1. The costs associated with this alternative would be even higher if
additional equipment were required to remove the ammonia from the off-gas.5 Other technical
difficulties with this alternative, namely fouling of tower media with precipitants, make this an
unreliable technology. Pet. Ex. 13 at 1.
2.
Struvite Precipitation
This alternative involved an analysis ofthe ammonia reduction achieved by the
precipitation ofstruvite from the combined Noveon Henry Plant and PolyOne wastestream. Pet.
Ex. 11 at 2 and Fig. 3. This treatment process, however, provides only a 24 reduction in the
average final effluent ammonia level at a present worth cost of $5.1 million. Pet. Ex. 11 at 2.
This alternative also would increase TDS in the Henry Plant effluent and the precipitant is prone
4The toxicity ofNoveon’s discharge for TDS and the implications ofthis are discussed later in this brief.
~Even without off-gas treatment this alternative has a present worth cost of
$10.5
million. Pet. Ex. 13 at
23
to foul pumps and piping making it operationally unreliable as a compliance alternative. Pet. Ex.
13 at2.
Tn sum, struvite precipitation would not result in compliance with the ammonia effluent
limit in Section 3 04.122(b). Because only a small portion ofthe wastewater nitrogen load would
be removed from the Henry Plant treatment system by struvite precipitation, the technology
would increase effluent TDS, Noveonwould encounter operating difficulties due to anticipated
fouling, and high costs, make this an infeasible compliance alternative. Pet. Ex. 13 at 2.
3.
Effluent Breakpoint Chlorination
Brown and Caldwell also evaluated the use of chlorine to achieve ammonia reduction.
Pet. Ex. 7 at 25 and Pet. Ex. 11 at 2 and Fig. 4. This alternative involved routing ofthe
secondary clarifier wastewater to a reaction tank where chlorine gas would be sparged into the
tank and caustic soda added to maintain a pH ofapproximately 6.9. Pet. Ex. 11 at Fig. 4 and Pet.
Ex. 13 at 2. Following the addition of chlorine, the wastewater would be discharged to the
existing sand filters.
This alternative could reduce ammonia by 98 and meet the standard set forth in 35 Ii.
Adm. Code 304.122(b). Pet. Ex. 13 at p. 2 of4. The problem it presents, however, is that
breakpoint chlorination is prohibitively expensive, at a present worth cost of$9.7 million, which
makes it economically unreasonable. Pet. Ex. 11 at Table
5.
Thus, this alternative admittedly
reduces ammonia but is economically unreasonable. This alternative is also problematic because
it would dramatically increase effluent TDS and would likely result in the formation of
chlorinated organics in the effluent. Pet. Ex. 13 at p. 2 of4.
24
4.
Single-stage Biological Nitrification ofNon-PC Wastewater
Noveon’s expert Houston Flippin also examined what level ofammonia reduction would
occur by first-stage nitrification ofthe non-PC wastewater followed by second-stage biological
treatment of the PC tank wastewater after combination with effluent from the first-stage reactor.
Pet. Ex. 11 at Fig.
5
and Pet. Ex. 13 at 2. This alternative involved the existing sludge system to
remove BOD and nitrify the PVC wastewater, and the treated effluent would then be combined
with PC wastewater and treated in a new activated sludge system. Pet. Ex. 13 at 2. It was
determined after the batch treatability study that this was not a feasible compliance alternative
because ofthe low level ofammonia reduction that was achieved and complexity ofoperation.
This alternative had a reliability rating of 7, meaning it would not produce a reliable reduction 30
ofthe time. Pet. Ex. 13. The percentage ofammonia reduction was oniy 47, which is too
low to achieve compliance with the effluent ammonia standard, and yet had a present worth cost
of$4.9 million. Pet. Ex. 11 at Table
5
and Pet. Ex. 13 at 2, 4.
5.
Biological Nitrification ofCombined Wastewater
Brown and Caldwell conducted a series ofbatch and continuous flow treatability studies
that Noveon’s expert witness Houston Flippin designed and supervised to remove bio-
inhibitions. One such treatability study required pH reduction to 2 ofthe PC tank discharge,
followed by river water addition and combined single-stage nitrification with non-PC
wastestreams. Pet. Ex. 11 at Fig. 6; Pet. Ex. 13 at 3. The results ofthe analysis by Noveon’s
expert showed that biological nitrification ofthe combined wastewater stream was technically
feasible with pretreatment. Pet. Ex. 7 at 20. This alternative suffers from a lack ofreliability,
though, which is necessary for consistent compliance, since it is sensitive to the variable
characteristics inherent in the wastewaterproduced by the different batchprocesses at the Henry
25
Plant and the system’s performance would vary with the success ofbio-inhibitorremoval. Pet.
Ex. 7 at 27 and Pet. Ex. 13 at 3. This alternative had a reliability rating ofonly 7, meaning it
would not produce a reliable reduction 30
ofthe time. Pet. Ex. 13.
Further, biological nitrification is a very costly alternative. Brown and Caldwell
estimated the present worth costs ofthis alternative at $11.7 million. Pet. Ex. 11 at Table
5
and
Pet. Ex. 13 at 2. Those costs make this an economically unreasonable alternative, particularly in
light ofthe reliability concerns associated with it. Thus, biological nitrification ofthe combined
wastewater after pretreatment to remove bio-inhibitors is not only an extremely expensive
alternative but is also too unreliable to achieve consistent compliance. Pet. Ex. 7 at 27.
6.
Ion Exchange
One other compliance alternative analyzed by Brown and Caldwell was ion exchange
treatment of the secondary clarifier effluent using clinoptilolite, an ammonia selective ion
exchange resin. Pet. Ex. 11 at Fig. 7 and Pet. 13 at 2. A standard hydrogen ion exchange resin
was also considered. This alternative could reduce ammonia nitrogen by 98 and meet the
ammonia effluent standard of35 Il. Adm. Code 304.122(b). The batch treatability test results
demonstrated that approximately 100 lbs. ofclinoptilolite would be required to remove each
pound ofammonia. Pet. Ex. 7 at 19. This poor removal efficiency was presumed to be due to
the large concentration ofcompeting ions in the effluent. Further, the ion exchange system is
complex to operate and its reliability questionable because offouling ofthe resin columns with
precipitarits and biomass. Pet. Ex. 13 at 3. This alternative had a reliability rating of6, meaning
it would not produce a reliable reduction 40
ofthe time. Pet. Ex. 13. The poor removal
efficiency and reliability concerns precluded further consideration ofion exchange as a
26
compliance alternative. This alternative had a present worth cost of
$5.1
million. Pet. Ex. 11 at
Table
5.
7.
Ozonation
This ammonia treatment alternative was one ofthe last technologies evaluated by
Noveon’s expert as a compliance alternative. Pet. Ex. 7 at 24, Pet. Ex. 11 at Table 9; Pet. Ex. 13
at 4. This alternative could reduce ammonia by 98 and meet the ammonia standard set forth in
35 Il. Adm. Code 304.122(b). It was rejected as an alternative due to its high presentworth costs
of$20.3 million, which were almost twice the cost ofany other alternative. Pet. Ex. 11 at Table
5.
Further, it would significantly increase the effluent TDS concentrations. Pet. Ex. 7 at 24.
This alternative would likely also convert some ofthe effluent non-degradable COD into BOD,
which could cause BOD effluent limit violations.
Id.
8.
TertiaryNitrification
This alternative would involve pumping the secondary clarifier effluent through a
separate aeration basin containing fixed film media that nitrifying bacteriawould grow on. Pet.
Ex. 7 at 19, Pet. Ex. 11 at 2; Pet. Ex. 13 at 4 of 4. Alkalinity and DO would be controlled in this
basin to meet the demands associated with nitrification. Pet. Ex. 13 at p. 4 of 4. Effluent from
this tank would be directed to the existing tertiary filtration process that would be expanded to
accommodate the additional solids loading. Results ofanalyses dating back to the late 1 980s and
confirmed during the 1 990s indicate this process is a technically feasible compliance alternative.
The difficulty with this alternative is that it lacks reliability, which is necessary to achieve and
maintain compliance, due to its great sensitivity to variations in wastewater characteristics that
occur with the Henry Plant’s batch processes. Pet. Ex. 7 at 19. This alternative had a reliability
rating of7, meaning it would not produce a reliable reduction 30
ofthe time. Pet. Ex. 13.
27
Further, tertiary nitrification is a very costly alternative. Brown and Caidwell estimated
that the present worth costs oftertiary nitrification are $11.4 million. Pet. Ex. 11 at Table
5.
Those costs make this an economically unreasonable alternative, particularly in light ofthe
reliability concerns associated with it.
9.
Other Ammonia Reduction Efforts
One ofthe early efforts to reduce ammonia at the HenryPlant involved the use of
powdered activated carbon (PAC) to remove the bio-inhibiting compounds. Pet. Ex. 7 at 18.
The results ofbatch testing to evaluate this alternative established that an untenable, large dose
ofPAC was required: 5000 mg/L or 17 tons/day.
Id.
In addition, treatment ofthe PC Tank
discharge and the primary clarifier effluent with Granular Activated Carbon (GAC) was
considered but quickly abandoned due to the large PAC dosing required and the certain fouling
problems. Pet. Ex. 7 at 19.
A German process to recover MBT was also evaluated as a potential ammonia reduction
method. Pet. Ex. 7 at 20. This process involved solvent extractionbut posed significant safety
concerns due to the potential for explosions.
Id.
Noveon also evaluated the use of specialty bacteria as a treatment alternative. Pet. Ex. 7
at 2 1-22. Nitrifying bacteria from the Peoria Sanitary District and U.S. Steel’s biological
nitrification plant were added but to no avail; nitrification would not occur. Pet. Ex. 7 at 22.
One ofthe steps taken by Noveon’s expert did not involve the evaluation of treatment
technology but examined whether there was an error in the method used to measure ammonia.
Pet. Ex. 7 at 27. This required an analysis ofthree U.S. EPA approved methods of ammonia
measurement. All methods accurately measured ammonia in the NoveonHenry Plant
28
wastewater and the different test methods did not account for any appreciable differences in
ammonia levels. Pet. Ex. 7 at 27.
C.
The Costs of Treatment Alternatives Impact the Long-Tçrm
Viability ofthe Plant
Noveon asked an accountant from its corporate headquarters, Linda Shaw, to analyze the
projected cost of four ofthe alternatives evaluated by Mr. Flippin on the profitability of
Noveon’s Henry Plant, as reported in its Plant Sales and Income (S&I) report. Pet. Exs. 33 and
34. The alternatives considered were reported in Mr. Flippin’s memorandum at Pet. Ex. 11 as
treatment alternative 3 (alkaline air stripping ofsecondary clarifier effluent), 6 (nitrification of
PVC tank wastewater), 7 (nitrification ofcombined wastewater) and 10 (nitrification of
secondary clarifier effluent). These alternatives were selected for evaluation based both on what
were perceived to be the technologies Illinois EPA considered economically reasonable and
technologically feasible in its recommendation in thismatter, as well as that the costs evaluated
were representative of costs for the range ofthe treatment technologies considered by Mr.
Flippin.
Ms. Shaw calculated two financial ratios
—
return on revenue and return on net property,
plant and equipment
—
as indicators for how the plant is performing. The return on revenue was
calculated by dividing operating income by revenue. The return on net plant, property and
equipment was calculated by dividing operating income by net plant, property and equipment.
As the chart shows, both ofthese financial ratios have declined over the last 3 years. The return
on revenue declined from 7 in 2001, to 5 in 2002 to 2 in 2003. Likewise the return on net
plant, property and equipment declined from 6 in 2002 to 3 in 2003.
29
If the Henry plant were to implement any ofthe ammonia-nitrogen treatment alternatives
detailed in the Houston Flippin memorandum dated May 17, 2002, operating income would be
further eroded resulting in a lower return on revenue and a lower return on net plant, property
and equipment. For alternative 3 (alkaline air stripping of secondary clarifier effluent), the
Henryplant would incur an incremental cost of$1,049,000.00. This alternative would result in a
negative return on revenue of-2 and a return on net plan, property and equipment of -2.
For
alternative 6 (nitrification ofPVC tank wastewater), the Henry plant would incur an incremental
cost of $329,000.00. This alternative is the only one of those considered that would not generate
a negative return on revenue and on net plant, property and equipment. This alternative would
result in a drop to 1 on revenue and 2 on net plant, property and equipment. For alternative 7
(nitrification of combined wastewater), the Henry Plant would incur an incremental cost of
$1,089,000.00. Alternative 7 would result in a negative return on revenue of-2 and a return on
net plan, property and equipment of -2.
For alternative 10 (nitrification of secondary clarifier
effluent), the Henry Plant would incur an incremental cost of $692,000.00. Alternative 10 would
result in a negative return on revenue of-1 and a return on net plan, property and equipment of
-1.
Pet. Ex. 33 and 34.
Based on the analysis by Ms. Shaw, the return on investment for Noveon’s Henry Plant
would be very small or negative for the treatment technologies she considered. The Noveon
Henry Plant’s major product line would lose money. Tr. 285. Mr. Guy Davids, the former
production superintendent and former site manager of the Henry Plant during a portion ofthe
period ofNoveon’s investigation of treatment technologies for ammonia, testified that the
consequences ofthe low to negative return would be that the plant’s management would have a
very difficult time justifying essentially any capital to the plant. It would also be very difficult to
30
attract new products. Tr. 286. Mr. Davids testified that if the Henry Plant were required to
implement the treatment technologies at a cost considered by Ms. Shaw, he would be concerned
about the long-term viability ofthe plant. Tr. 286.
In sum, Noveon, its consultants and expert have evaluated all the available proven
ammonia treatment alternatives. As Houston Flippin testified to at great length during the
hearing, no treatment technology could provide significant (greater than
50)
reduction in
effluent ammonia for a present worth cost ofless than $5.0 million, and the present worth cost of
installing single stage nitrification is $11.7 million. The costs ofimplementing these alternatives
would be a low to negative return, which would impact the long-term viability ofthe plant. In
addition, the absence ofan impact on the water quality ofthe Illinois River and upon aquatic life
adds to the economic unreasonableness ofthese alternatives.
V.
The Adjusted Standard Will
Not
Result in Environmental or Health Effects
Substantially or Significantly More Adverse than the Effects Considered by the
Board in Adopting the Rule of General Applicability
A.
Dissolved Oxygen, Which Was the Basis for the Board’s Ammonia Effluent
Limitation, Is Not Adversely Affected by Noveon’s Discharge
The purpose of Section 304.122 was to protect against dissolved oxygen sags in the
Illinois River, which the Board in its order stated was “conclusively established” in a study by
T.A. Butts, R.L. Evans and others. The Board’s own opinion in another case shows that Mr.
Butts and Mr. Evans abandoned the conclusions ofthese earlier studies. Later work showed that
based on the relative influence ofthe three primary oxygen demand sinks—carbonaceous BOD,
nitrogenous BOD, and sediment oxygen demand—effluent limitations in the ammonia rule were
unjustified and severely restrictive.
In the Matter ofSite Spec~fkException to Effluent
31
Standardsfor the Greater Peoria San itaiy District and Sewage Disposal District,
R 87-21 (Oct.
6, 1988).
Work performedby Noveon’s expert witness, Michael Corn, also shows that the adjusted
standard will not result in environmental or health effects substantially or significantly more
adverse than the effects considered by the board in adopting the rule ofgeneral applicability.
Mr. Corn developed a wasteload allocation model to assess the effect of Noveon’s discharge on
the Illinois River, using the U.S. EPA’s QUAL2E model, data from the Illinois River, and
reaeration rates and deoxygenation rates measured in similar size rivers. The model was run
with Noveon’s permitted 5-day carbonaceous biochemical oxygen demands (CBOD5) or organic
loadings and high ammonia loadings. Both CBOD5 and ammonia are oxygen depleting
substances. Pet. Ex. 16 at 12. The results ofthis modeling showed that, during the critical 7Q10
low flow and corresponding high temperature periods,6 the DO concentration in the Illinois River
downstream from the Noveon discharge is around
7.5
mg/L. Pet. Ex. 16. The existing DO
standard is
5
mg/L during this time period. See 35 Il. Mm. Code 302.206. The Illinois River
therefore meets existing standards for DO, and Noveon’s discharge has not had an adverse
impact on DO levels downstream ofits discharge.
B.
Noveon’s Discharge Does Not
Have an Adverse Impact on Aquatic Life
Given the rapid mixing that physically occurs in the Illinois River, however, there is no
impact to aquatic life from Noveon’s discharge. Mixing ofan effluent into a river is a natural
phenomenon that allows the two waters to reach equilibrium where the two are totally mixed.
6
The summer conditions oflow flow, high temperature are the most critical from a water quality and
toxicity standpoint. Tr. 212.
32
Pet. Ex. 16 at 4. Physical mixing of a tributary or an effluent discharge (the entering stream) that
enters into a larger body ofwater (the receiving stream), such as the Illinois River, occurs
because the entering stream ofwater normally has~enough physical energy, either through the
entering velocity being greater than the river or a density gradient between the entering stream
and the river. This allows the entering stream to force its way into the river, similar to a car
entering the freeway from a merginglane. Until the mixing ofthe entering stream and the
receiving stream are in equilibrium, a definitive plume occurs where the entering stream and the
receiving stream are at different concentrations and densities.
Id.
The actual mixing that occurs between the Noveon discharge and the River has been
physically monitored and mathematically modeled. The “near field zone” is defined as the
turbulent zone at the discharge point where rapid and immediate mixing occurs due to the
immediate mixing of a high energy stream and a low energy stream. Pet. Ex. 16 at
5.
The near
field zone includes the jet momentum zone through the early phases ofa buoyant spreading
region, where the plume goes from rapid and immediate effluent-dominated mixing to mixing
totally dominated by river ambient diffusion. See Pet. Exs. 20 and 23, with a depiction ofthese
areas. When an effluent discharge flows into a receiving stream, it normally has an excess
velocity over the stream itself, which is the case with Noveon’s discharge. This excess velocity
allows the stream to push its way into the river until the river and effluent mixture reach
equilibrium. Additionally, the Noveon discharge is heavier than the river water, which causes
the effluent plume to have momentum. This near field zone is about 100 feet long. The
dispersion at the end of the near-field mixing zone is about 20:1 or more. This shows that
Noveon’s discharge is effectively dispersed into the Illinois River. Pet. Ex. 16 at 6.
33
Aquatic life is not able to live in the area ofrapid and immediate mixing because of the
velocity ofthe discharge. This would be the case with or without the ammonia in the discharge,
and the velocity is effective to move aquatic life away from the area ofmaximum concentrations.
Tr. 228. Past this zone, however, aquatic life would potentially be ableto live.
Illinois EPA has agreed with the conclusion that Noveon’s discharge does not have an
adverse impact on water quality.7 The Illinois EPA’s witness on water quality, Mr. Robert
Mosher, concluded that based on water quality data showing ammonia concentrations at a station
down stream from Noveon at levels lower than the upstream station, it is possible that “the
relatively small increase in ammonia concentration caused by BF Goodrich is naturally nitrified
by the rime the river flow reaches the next downstream station.” Illinois EPA Ex. 1 at 3.
C.
Noveon Meets the Regulatory Requirements to Receive a Mixing Zone as
Part of this Relief
As part ofthe adjusted standard, Noveon seeks a mixing zone designation in the Illinois
River. The mixing zone requested by Noveon is based on work performed by Michael Corn,
Noveon’s expert on water quality modeling and diffuser design.8 Mr. Corn performed extensive
modeling using verifiable characteristics ofNoveon’s discharge and the Illinois River. A
complete description ofthe work performed by Mr. Corn and a more extensive description ofhis
calculation ofthe mixing zone requested by Noveon may be found at Pet. Ex. 16, Expert Written
Report of Michael R. Corn, P.E. (certain statements in this Exhibit were clarified at the hearing;
see Tr. 204-12). Mr. Corn also measured the conductivity9 (salinity) in the Illinois River, to
~In fact, if the Board incorporates the transcript of the permit appeal, it may consider Mr. Mosher’s
testimony in that proceeding that the water quality in the entire upper Illinois River has improved
notwithstanding Noveon’s discharge. Tr. 117, 118.
8
A summary ofMr. Corn’s qualifications and experience in the area ofwater quality is at Pet. Ex. 17.
~Conductivity is a conservative tracking chemical, because other constituents would undergo the same
dispersive forces as salt. Tr. 230-31.
34
.
determine the dispersion achieved and confirm that Noveon would meet the acute and chronic
water quality standards in the Illinois River. Tr. 219..
Regulatory mixing zones have been allowed in the U.S. since the late 1 960s to provide
protection to the receiving stream when treatment technology or costs prevent achievement of
the numeric or aesthetic limits and since the late 1 980s forwhole effluent toxicity standards in
the discharge itself, and they are permissible under almost all state waterquality regulations.
They are defined by a combination ofmathematical descriptions and prescriptive definitions.
1.
Noveon’s
Calculation of a Mixing Zone Is Consistent
with Regulatory Requirements
Illinois regulations governing mixing zones are found at 35 Il. Adm. Code 302.102. The
opening paragraph ofthis regulation states that an opportunity for mixing shall be allowed
provided that the regulatory requirement in Section 304.102 to provide “best degree of
treatment” (BDT) to wastewater is met. Noveon meets the initial regulatory requirement for a
mixing zone. Illinois EPA has conceded that Noveon provides BDT for all existing parameters
with the exception ofammonia. Noveon also provides BDT for ammonia because its wastewater
treatment facility is constructed in compliance with the same standards governing facilities that
nitrify; the wastewater itselfprevents that from occurring: The Board can determine that
Noveon meets BDT for ammonia and no further treatment is required. See Tr. 420.
Both U.S. EPA and the Illinois EPA have issued guidance on designating mixing zones.
See Technical Support Documentfor Water Quality-based Toxics Control
(U.S. EPA March
1991) (“TSD”)’°;Illinois Permitting Guidance forMixing Zones, (April 23, 1999). Pet. Ex. 16,
10
A depiction ofthe mixing zone concept developed by the National Academy ofSciences in 1972, and
which is included in the TSD, is at Pet. Ex. 21.
35
at 4.. The TSD has been entered as Hearing Officer Ex. 1. Illinois EPA’s guidance on mixing
zones mirrors the U.S. EPA’s guidance.
Illinois EPA defines the following areas in a mixing zone:
1)
Zone ofFree Passage, which establishes the maximum volume ofriver flow that
can be used for mixing in the Near-Field Zone, called the Zone ofInitial Dilution
(ZID) and/or the Far-Field Zone, called the Total Mixing Zone (TMZ);
2)
Zone ofInitial Dilution or ZID, establishes a regulatory zone where acute numeric
and whole effluent toxicity are allowed until this initial rapid and immediate
mixing is completed; and
3)
Total Mixing Zone or TMZ, establishes a regulatory zone where chronic numeric
and whole effluent toxicity are allowed for some distance downstream, limited by
26 acres and 25 ofthe volume of flow or cross-sectional area.
The mixing zone requested by Noveon is based on the low flow, high temperature period, which
is the most critical period from a water quality and toxicity perspective. Tr. 212-214. Noveon
seeks a mixing zone offive acres, which is far less than the maximum allowable mixing zone
under Illinois law of26 acres. Noveon has defined the Total Mixing Zone (TMZ) as having a
length of 1,000 feet, and Noveon will meet the chronic water quality standard at the end ofthe
TMZ. Pet. Ex. 16 at 8; Tr. 232. Noveonhas defined the Zone ofInitial Dilution (ZID) of66
feet, at the edge of which Noveonwill meet the acute water quality standard. Pet. Ex. 16 at 7, 8;
Tr. 232. The TMZ and the ZID are depicted on Pet. Ex. 20.
Ifrelief is granted by the Board, however, Noveon will install a multi-port diffuser.”
The multi-port diffuser is an engineered structure that enhances the mixing of an effluent into a
receiving stream. Pet. Ex. 16 at 9, 10. The multi-port diffuser could be expected to achieve
dispersion of43:1, compared to dispersion of 13.2:1 for the single-port diffuser. Pet. Ex. 16 at
10. With the mixing zone downstream from the existing single-port diffuser, and the projected
36
mixing zone downstream from the multi-port diffuser, the identified toxicity discussed at Pet. Ex.
29 and Pet. Ex. 31 would not impair water quality in the River.
The distance ofthe ZID was determined using U.S. EPA’s and Illinois EPA’s criteria for
discharges that do not achieve 10 feet per second port exit velocity but still achieve rapid and
immediate mixing. The three methods to determine the ZID are:
a.
50 times the square root ofthe cross-sectional area ofthe port (known as
the zone offlow establishment).’2 Here the port diameter is 1.5 feet,
allowing
66.5
ft ZID length for the Noveon single-port diffuser;
b.
5
times the local water depth (depth
=
13.5
ft)
=
67.5
ft; and/or
c.
10 ofthe total mixing zone (allowable mixing zone length defined by 26
acres divided by width of25
ofthe cross-sectional area or about 250 ft
for the Illinois River at Noveon) or approximately 4,530 ft; Noveon
requested 1,000 ft total mixing zone. Under this total mixing zone TMZ
length, the ZID would be 10 ofthe.1,000 ft or 100 ft in length.
It is important to note that, in each ofthese ZID length determinations, the U.S. EPA specifies
that these lengths are to be met in “any spatial direction.” U.S. EPA defines spatial as a
discharge length scale
distance is defined in each of the three methods ofcalculating the ZID as
a length along the centerline ofthe plume. Tr. 477-79; Hearing Officer Ex. 1 at 71. In free-
flowing streams, such as the Illinois River (versus tidal two-dimensional flow situations), this
length is defined in the downstream flow direction or along the length where maximum plume
concentrations occur. Pet. Ex. 16 at 8; Tr. 477-79.
The ZID calculated in (a) is the smallest distance ofthese criteria and therefore the
calculation that Noveon has requested, for a ZID of66 feet. A depiction ofthe ZID for a stable
plume including the zone offlow establishment and the zone of establish flow is at Pet. Bx. 22,
“A depiction of an actual profile ofa plume from a multi-port diffuser is attached as Pet. Ex. 24. Pet.
Exhibit 27 shows a planning profile view ofwhat the diffuser would look like. The port would be at an
angle to ensure complete mixing occurs. Tr. 200.
12
Exhibit 26 depicts the cross-sectional area ofthe Illinois River at the discharge point. Tr. 198-99.
37
and a depiction ofa Hypothetical Exposure Scenario for Fish Passing Through a ZIID is at Pet.
Ex. 21. With the single-port diffuser, Noveon’s discharge will travel the distance ofthe ZID in
less than three minutes; with the multi-port diffuser, the time it takes to reach the edge ofthe
ZID would be seconds. Tr. 226-27; 233. Aquatic life do not live in the ZID, because the
velocity of the discharge basically sweeps aquatic life away from the maximum concentrations.
Tr. 228.
2.
Illinois EPA’s Calculation of the ZID Is Inconsistent with the TSD,
Board Regulations and Illinois EPA Guidance
Illinois EPA agrees that a mixing zone is permissible in this case, and it also concedes
that a multi-port diffuser would make a mixing zone generally acceptable. See Pet. Ex. 37. and
Tr. 390. Further, with the multi-port diffuser, the mixing zone is approximately the size that
Illinois EPA has indicated it would accept. See Pet. Ex. 37; Illinois EPA Exs. 1 and 2; Tr. 484.
What is in dispute is the ZID determination. As stated earlier, U.S. EPA’s TSD requires the ZID
length calculation to be met in “any spatial direction.” The Board’s regulations require “rapid
and immediate mixing.” See 35 Ii. Adm. Code 302.102. The Board’s regulations also state that
mixing zones can only take up to 25 of the width ofthe river. Mr. Mosher makes a hash ofthe
Board’s regulations and the TSD by melding all of these regulatory limitations to require the ZID
to meet the TSD limitations for the width ofthe stream as well the length. Mr. Mosher gets there
by applying the U.S. EPA’s limitation that a ZID cannot be more than 10 ofthe total mixing
zone to the Board’s regulation limiting the mixing zone to 25 ofthe river, so that Mr. Mosher
calculates that the ZID is limited to
2.5
percent of the width ofthe river. This results in a ZID of
22.5 feet. Tr. 341-42; 384-87.
38
Mr. Mosher’s interpretation is not reflected in the Board’s rule and is patently
inconsistent with U.S. EPA’s expressed intent. It is not reflected in Illinois EPA’s mixing zone
guidance nor any guidance issued by Illinois EPA. Mr. Mosher’s interpretation is inconsistent
with the NSD itself for determination ofZIDs and mixing zones, since application ofIllinois
EPA’s interpretation of Z1Ds would render moot any other guidance on the TMZ or methods of
calculating the ZID where a mixing zone is sought in
a
free-flowing stream. There would be no
point in calculating a hydraulically-defined jet momentum zone (or any other zone for that
matter). The hydraulically-defined jet momentum zone is intended to ensure that a minimum
dispersion of 10:1 is achieved in the ZID. Mr. Mosher’s ZID size calculation forNoveon’s
existing discharge would limit the dispersion in the ZID to 6:1 and would not allow an adequate
dispersion in the jet momentum zone to allow the river to meet either ammonia or salt acute
toxicity. The ZID limit under Board regulations at Section 302.102(b) to 25 percent ofthe cross-
sectional area or volume offlow has always been a maximum volume ofwater that can be used
for mixing in either the ZID and/or the TMZ. The intent is to maximize the dispersion as rapidly
as possible, and not to limit this dispersion in the ZID. Illinois EPA’s guidance specifically lists
two dimensions: the total volume of flow
(25
limitation) and the total area (width times
length) of26 acres (with one of these dimensions being defined by the
25
cross-sectional area
or volume offlow, i.e., from which a maximum width can be calculated, and then a maximum
length can be calculated). In fact, several ofthe mixing zones granted in Illinois are wider and
longer than Mr. Mosher’s 2.5 maximum length. See Tr. 477
A careful reading ofthe TSD shows that dispersion is intended to be maximized in the
ZID, and the Illinois EPA’s guidance reflects this by giving a maximum volume offlow that can
be used and a total areathat canbe used. Using Mr. Mosher’s interpretation, the area is de facto
39
limited in width by the 25 percent ofcross-sectional area requirement. The memorandum
Mrritten by Mr. Mosher concedes as much in his conclusion:
While the effluent is achieving relatively good mixing given its
present location ofdischarge, the very high ammonia levels in the
effluent are responsible for the largemixing area. Ifthe effluent
was in compliance with Illinois EPA’ s interpretation of the acute
standards/ZID, the area ofthe mixing zone proper would be much
smaller, so again, this situation points back to the acute
standard/daily maximum effluent limit as the driving factor.
Illinois EPA Ex. 2 at 2.
It is clear that Mr. Mosher simply does not like mixing zones, notwithstanding their
permissibility in the regulations ofU.S. EPA and in most states, including Illinois. Mr. Mosher
referred to the ZID as “a condition that we don’t want to occur in our waters,” Tr. 343, and
referred to mixing zones as “a regrettable thing. We wish there were no ZIDs or mixing zones.”
Tr. 344-45. While Noveon agrees that mixing zones should be established only under very
limited circumstances, those standards have been established by the Board in its regulations and
by U.S. EPA in its TSD. Illinois EPA’s Guidance has not changed the Board’s regulations. Mr.
Mosher’ s wishes cannot change what is established under properly promulgated rules as the
correct method ofallowance and calculation of ZIDs. Noveon’s proposed mixing zone and ZID
meet those standards.
D.
Even If Noveon’s Discharge Were Treatable for Ammonia, It Would Still Be
Toxic and Untreatable Because ofTDS
Even if there was a treatment for Noveon’s discharge that is both economically
reasonable and technologically feasible, Noveon’s discharge is also toxic for salts. Testing ofthe
toxicity ofNoveon’s discharge was performed by Mr. William Goodfellow, Noveon’s expert on
toxicity. See Pet. Ex. 29, Results ofAn Acute Toxicity Evaluation, EA Engineering (March
40
1999), and Pet. Ex. 31, Written Expert Testimony of William L. Goodfellow.
‘~
Following
established U.S. EPA protocol, Mr. Goodfellow performed acute and chronic toxicitytests in
two rounds oftesting on Noveon’s effluent. In addition and also following established U.S. EPA
protocol, a Toxicity Identification Evaluation (TIE) was performed on the most toxic ofthe
samples taken in order to characterize and potentially identify the specific toxicant in the
effluent. The TIE is a series ofphysical and chemical procedures that is meant to evaluate
various fractions ofthe effluent to track and determine characteristics ofthe wastewater. Tr.
247. It provides information on organic toxicity, ammonia toxicity, metal toxicity, oxidant
toxicity, and reducible compounds. Tr. 248.
The results ofthe TIE showed that the toxicant was associated not only with ammonia
and the organic compounds in Noveon’s wastewater, but also with salinity, which is an
expression ofthe total dissolved solids or TDS in the effluent. Pet. Ex. 31 at 6-8; Tr. 247-48,
253-55.
There is no dispute that Illinois regulations do not require treatment for TDS in Illinois,
since technically feasible methods are in general not economically reasonable. Tr. 398. Pet. Ex.
36. Mr. Goodfellow also concluded that if ammonia were removed, Noveon’s effluent would
still be toxic for TDS, and toxicitywould likely be exacerbated because several treatments for
ammonia, such as alkaline air stripping, struvite precipitation, effluent breakpoint chlorination,
and ozonation, would increase effluent TDS. Tr. 472-74. Further, TDS is a more rapid toxicant
than ammonia so its effect on aquatic life would be more rapid than that ofammonia. Tr. 472.
Mr. Goodfellow’s testing also addressed whether another toxicantwas underneath the toxicity
curve by removing ammonia from the test sample using zeolite, although there was no treatment
for TDS. Tr. 471.
13
Mr. Goodfellow’s curriculum vitae is included at Pet. Ex. 32.
41
Mr. Goodfellow concluded that no other toxicants were determined from these standard
test procedures to be “hiding in the weeds.” Tr. 470. One purpose ofhis investigation was to
establish what is in fact toxic in the effluent. Mr. Goodfellow has abundant experience, and
followed U.S. EPA protocols. He found two toxic parameters: salt and ammonia. As much as
the Agency may believe there may be another toxicant, the conclusion from Mr. Goodfellow’s
testimony is that there is simply not another toxicant in Noveon’s effluent.
Requested Relief
At the time Noveon filed its Petition for Adjusted Standard, the ammonia water quality
regulation at 35 Il. Adm. Code 302.2 12 had not yet been amended to change the.date for the
summer period from March through October. In addition, Noveon obtained a memorandum
written by Illinois EPA that concedes that, with the multi-port diffuser, Noveon’s daily
maximum limits could theoretically be 232.7 mg/L for summer and 398 mg/L for winter.
See
Pet. Ex. 37. Noveon is therefore withdrawing proposed adjusted standard alternatives 1 and 2 in
its Petition
(see
Petition for Adjusted Standard at 24,
25),
and instead seeks a daily maximum
limit. In addition, because one Noveon effluent sample did exceed 200 mg/L, though Noveon
previously had divided its relief into the winter and summer periods, Noveon is amending.
proposed adjusted standard alternative 3 to simply request a year-round effluent limit for
ammonia of225 mg/L. Illinois EPA’ s conclusion on theoretical limits makes delineation of the
winter and summer period limits unnecessary.
Noveon’s proposed language for an adjusted standard therefore is as follows:
Noveon,from
35 Ill.Inc.Adm.(“Noveon”)Code 304.122.is
herebyPursuantgrantedtoanthisadjustedadjustedstandard
standard, 35 Ill. Adm. Code 304.122 shall not apply to the
discharge ofeffluent into the Illinois River from the Noveon plant
located at 1550 County Road, 850 N., in Henry, Illinois as regards
42
ammonia nitrogen. The granting ofthis adjusted standard is
contingent upon the following conditions:
A.
Noveon shall not discharge total ammonia nitrogen at
concentrations greater than 225 mg/i from its Henry, Illinois
plant into the Illinois River.
B.
Discharge into the Illinois River shall occur through a~
diffuser that is at least 15 ft. in length, with 9 two-inch ports,
angled at 60 degrees from horizontal, co-flowing with the
river, designed to achieve an effluent dispersion of 43:1.
Conclusion
Based on a plain reading ofthe regulation and the Board’s opinions adopting Section
304.122(a) and (b), Illinois EPA’s interpretation is arbitrary and capricious and must be
rescinded. If the Board does not rescind the permit, however, Noveon meets the standard for an
adjusted standard. Ammonia from Noveon’s plant is not removed by the conventional treatment
considered by the Board, nitrification, in adopting Section 304.122(b), and there is no
economically reasonable and technologically feasible alternative available to Noveon for
ammonia treatment. Noveon’s wastewater will not result in environmental or health effects
substantially and significantly more adverse than the effects consideredby the Board in adopting
Section 304.122(b), and specifically will not adversely impact dissolved oxygen in the Illinois
River. Water quality standards for dissolved oxygen are currently being met in the Illinois River
with Noveon’s existing discharge.
As part of the relief, Noveon seeks a mixing zone. The Board has the authority to
designate a mixing zone and, given the clear dispute concerning Illinois EPA’s method of
calculating the mixing zone and the Z1D, the Board should decide this issue as part ofthis
proceeding. Noveon’s proposed mixing zone and ZID meet the standards in the TSD issued by
U.S. EPA and the Illinois EPA’s guidance concerning calculation ofmixing zones and ZIDs.
43
Respectfully submitted,
NOVEON, INC.
By:
~
One ofIts Attorneys
Richard J. Kissel
Mark Latham
Sheila H. Deely
GARDNER CARTON & DOUGLAS LLP
191 N. Wacker Dr.
-
Suite 3700
Chicago, IL 60606
312-569-1000
CHO2/ 22306569.2
.
44
CERTIFICATE OF SERVICE
The undersigned certifies that a copy ofthe
foregoing Notice of Filing and Post-Hearing
Memorandum of Noveon, Inc.
was filed by hand delivery with the Clerk of the Illinois
Pollution Control Board and served upon the parties to whom said Notice is directed by first
class mail, postage prepaid, by depositing in the U.S. Mail at 191 N. Wacker Drive, Chicago,
Illinois on Thursday,
April 29, 2004.
CHO2/ 22308412.1
