I~ECE~VED
LEAK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAY
272004
NOVEON, INC.
f7k/a
BF GOODRICH
CORPORATION, (Henry Facility),
)
Petitioner,
)
)
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
TO:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100
W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
Sheila Deely
MarkLatham
RichardKissel
GARDNER, CARTON
& DOUGLAS
191 North Wacker Drive, Suite 3700
Chicago, Illinois
60606
PCB 91-17
(NPDES Permit Appeal)
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100
W. Randolph, Suite
11-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Pollution Control Board
the RESPONDENT’S POST-HEARiNG MEMORANDUM on behalf ofthe Illinois
Environmental Protection Agency, a copy ofwhich is herewith served upon you.
Date:
May26, 2004
1021
North Grand Avenue East
P.O. Box
19276
Spring field, IL 62794-9276
217/782-5544
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
By:
Deborah J. Williams
V
Assistant Counsel
Division ofLegal Counsel
THIS FILiNG IS SUBMITTED ON
RECYCLED PAPER
)
)
V.
STATE OF ILLINOIS
Poltutio,-~
Control Board
NOTICE
RECEIVED
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
MAY 272004
)
STATE OF ILLINOIS
NOVEON, INC. f/k/a BF GOODRICH
)
Pollution Control
Board
CORPORATION, (Hemy Facility),
)
PCB 91-17
)
(NPDES Permit Appeal)
Petitioner,
)
)
vs.
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
RESPONDENT’S
POST-HEARING MEMORANDUM
NOW COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY (“Illinois EPA” or “Agency”), by one ofits attorneys, Deborah J. Williams, and
pursuant to the Hearing Officer’s order ofMarch 18, 2004, submits its Post-Hearing
Memorandum in the above-captioned permit appeal and states as follows:
I.
PROCEDURAL HISTORY
On December 28, 1990, the Illinois EPA issued a renewal ofthe National Pollutant
Discharge Elimination System (“NPDES”) permit number IL000 1392 to Petitioner’s Henry,
Illinois manufacturing facility. At that time, the facility was owned and operated by BF
Goodrich.
Currently, the permitted treatment works is owned and operated by Noveon, Inc. and
hereinafter Petitioner will be referred to as Noveon.
On January 24,
1991,
Petitioner filed an appeal with the Pollution Control Board
(“Board”) pursuant to Section 40(a) ofthe Environmental Protection Act (“Act”) ofthe issuance
ofNoveon’s renewal permit.
415 ILCS
5/40(a).
An Amended Petition adding one additional
basis for appeal was submitted on January 28,
1991
and received by the Board on February 4,
1991.
The Agency submitted its Answer and Record in this matter on September
19,
1991.
Discovery was conducted consisting ofPetitioner deposing two Illinois EPA witnesses (Richard
Pinneo and Tim Kluge) and propounding written interrogatories on the Illinois EPA which were
answered on October29,
1991.
A hearing was scheduled by Hearing OfficerRichard T.
Sikes and held on November 19,
1991 in the Marshall County Courthouse.
Due to the unavailability of a witness for Noveon, Dr.
James Patterson, the hearingwas continued to
December 16,
1991.
1991 Hearing Transcript at
10.1
Counsel forboth parties appeared at the December 16,
1991 hearing and requested that the
hearing be suspended.
1991 Tr. at
165.
The parties indicated that documents outlining a
proposed settlement and requesting further action from the Board would be filed.
Inthe intervening decade, Petitioner filed a Petition forVariance in 1992 and a motion to
voluntarilywithdraw that Petition was granted by the Board on June 20, 2002.
See,
PCB Docket
92-167.
An Adjusted Standard Petition was filed just prior to Petitioner’s motion to withdraw its
Variance Petition
on May 22, 2002.
As the parties were unable to reach settlement,
the Hearing
Officer in both matters
scheduled and held the remainder ofthe Permit Appeal hearing on
February 17, 2004.
The Permit Appeal hearing was followed by approximately two days of
hearings on Noveon’s Adjusted Standard Petition in docket AS 02-05.
At the November 19,
1991
hearing, the Petitioner called three witnesses: Ken Willings of
Noveon and Illinois EPA employees Richard Pinneo and
Tim Kiuge.
The Agency began its case
by a direct examination ofTim Kiuge.
At the February 17,2004 hearing, Petitioner called
Houston Flippin in lieu ofDr. Patterson and the Agency called Richard Pinneo and Bob Mosher.
1References to the Hearing Transcripts from the
1991 and 2004 hearings in this matter will be abbreviated as either
“1991 Tr. at _“or
“2004 Tr. at_.”
2
With regard to the testimony ofHouston Flippin, Petitioner submitted pre-filed testimony
from Mr. Flippin on Friday, February 6,2004 to the Board (and via email to the Agency) in
dockets PCB 9 1-17 and AS 02-05 titled “Petition ofNoveon, Inc. ASO2-05 for an Adjusted
Standard NPDES Adjusted from
35 ILL. ADM. Code Standard 304.122.”
On Monday, February
9,2004,
with three business days remaining before the hearing, Petitioner submitted a Motion to
Withdraw and Substitute Expert Written Testimony ofT.
Houston Flippin.
The Notice ofFiling
and Motion to Withdraw and Substitute this revised testimony only referred to AS
02-05 (and not
PCB 9 1-17) but on its first page the substituted testimony was titled “Petition ofNoveon, Inc.
For An Adjusted Standard NPDES Adjusted From 35 ILL. ADM. Code Standard 304.122, B
02-
05
sic
and Noveon, Inc. v. Illinois Environmental Protection Agency, PCB 91~17.~~2
At the
February 17,2004 hearing, the HearingOfficer sustained an objection by the Agency to submittal
ofidentical testimony in both proceedings and allowed Mr. Flippin to read a redacted version of
the pre-filed testimony into the permit appeal record in addition to being subject to direct
examination,
cross-examination, and redirect examination.
2004 Tr. at
18.
The Hearing Record
in this matter closed on March 26, 2004.
Public comments were received from approximately
six members ofthe public during the comment period.
II.
BACKGROUND ON PETITIONER’S FACILITY AND STATEMENT OF FACTS
Noveon’s Henry, Illinois Plant is located on 1550
County
Road, 850 N. in northwestern
Marshall County.
This
facility
was
owned
and
operated by BF Goodrich until 1993.
Atthat
time,
part
ofthe facility
was
divested to form The Geon Company
and
is
now
known as
PolyOne.
The PolyOne portion ofthe former BF Goodrich facility manufactures poly-vinyl chloride resins
2According to the Board’s website, the Motion to Withdraw and Substitute was notactually filed
in
PCB 91-17, but
it was filed in AS
02-05.
3
and compounds.
1991 Tr.
at 28.
The resins are used primarily by the medical industry for blood
bags and other medical equipment while the compounds are used in the construction industry for
house siding and vertical blinds.
1991
Tr.
at 29.
In 2001, the remainder ofthe Henryfacility was
sold by BF Goodrich and is now known as Noveon.
Noveon’s portion of the formerBF
Goodrich facility produces specialtypolymers and chemicals used either as rubber accelerators in
the tire curing process orproduction ofanti-oxidant additives to prevent degradation of
polyethelene for the rubber, lubricant, and plastic industries.
1991 Tr.
at 30.
Noveon operates the wastewater treatment facilities for both PolyOne’s and Noveon’s
productions processes and stormwater, cooling tower, boiler blowdown and well water treatment
discharges.
2004 Tr.
at 39, 41.
Effluent monitoring is currently conducted after all wastestreams
from both plants are combined.
Treatment begins with pre-treatment ofNoveon’s Cure-Rite
18
wastestream.
Noveon’s process water is then sent to one oftwo tanks for equalization (the
Polymer Chemical (PC) Tank or a separate equalization tank forthe Cure-Rite 18 wastestream)
while PolyOne’s wastewater receives equalization in the Polyvinyl Chloride (PVC) Tank.
This
is
followedby primary treatment (pH adjustment and addition ofcoagulant and polymer to remove
solids)
and primary clarification.
Solids are then sent to a collection tank and are dewatered in a
filter press and sent to a landfill.
Primary clarification is followed by activated sludge treatment
in four biotreators to degrade the organic matter.
Finally,
the wastewater is sent to a secondary
clarifier followed by tertiarytreatment that consists ofpolishing by a travelingbridge sand filter.
Petitioner’s Post-Hearing Briefat 3~4~3
The discharge from the City ofHenry’s publicly owned
treatment works (“POTW”) combines with Noveon’s effluent and is discharged through
3Reference to Petitioner’s
Post-Hearing Briefin
this
matter
will
be cited at “Pet. Br. at
.“
4
Noveon’s outfall to the Illinois River.
Noveon’s Outfall 001
is located on the Illinois River
between river mile
198 and
199.
The stormwaterand utility waters are discharged to holding
ponds where they are either pumped into the wastewater treatment process or sent to a sand filter
prior
to discharge
to
the Illinois River.
Pet. Br.
at 4.
According to Petitioner, the major source of
ammonia in its wastewater is generated from the destruction ofamine compounds in the
secondarytreatment activated sludge portion ofthe wastewater treatment process.
1991 Tr.
at
33, Pet. Br. at
5.
Petitioner has also identified that “in
the periodprior to the issuance ofthe
1990 NPDES
Permit, two major expansions took place:
the start-up ofthe RecirculatingFluid
Bed Coal Fired Boiler and a Rubber Accelerator expansion (the Cure-Rite
18 process).”
Pet. Br.
at 2.
There is no dispute in theRecord that Noveon’s discharge ofammonia nitrogen to the
Illinois River clearly exceeds 100 pounds per day (“lbs/day”).
1991 Tr.
at 68.
Noveon provides some discussion in its Post-Hearing briefofevidence presented in the
Recordregarding additional topics including:
whether Noveon’s plant is designed to achieve
nitrification; whyNoveon’s plant does not achieve nitrification in practice; whetherNoveon
would triggerthe threshold applicability of 50,000 population equivalents (“P.E.”) of35
Ill.
Adm. Code 304.122(a) if that provision was found to apply to Noveon’s facility; and the results
ofevaluations of alternatives to achieve nitrification at Noveon’s facility.
Pet. Br.
at
5-7.
The
Illinois EPA disputes some ofthe characterizations ofthis evidence as presented by Noveon in its
Briefand the conclusions reached from these characterizations.
However, information related to
whether Noveon’s treatment works is able to achieve compliance with 35 Ill. Adm. Code
304.122(b); whether Noveon would meet the threshold of applicability of35
Ill. Adm. Code
304.122(a) ifthat sedtion was applicable and whether Noveon’s plant was designed to meet
5
standards applicable only to POTWs is not relevant to the Board’s determination in this Permit
Appeal proceeding.
Since these facts will be discussed extensively in the parties Post-Hearing
Briefs in the Adjusted
Standard proceeding (ASO2-05) the Agency will not burden the Board
with further discussion ofthem in this forum.
III.
STANDARD OF
REVIEW AND HEARING OFFICER RULINGS
Petitioner
spends several pages ofits Post-Hearing Briefarguing that the Board must
overturn rulings ofHearing OfficerHalloran in this matter and proceed
to
make its
determination
under a standard ofreview applicable and under Board procedural rules that were in effect at the
time the permit was issued.
Although the Illinois EPA believes the Board’s ultimate
determination in this matter will not be altered by its holding in response to
this argument, the
Respondent will address these issues briefly below.
A.
Hearing Officer Halloran’s refusal to admit Mr. Flippin’s substituted
testimony should be upheld.
At the February 17, 2004 hearing in this matter, Hearing Officer Halloranwas forced to
rule on numerous objections from both parties.
Among those rulings, he determined that rather
than allow identical pre-filed testimony to be entered from HoustonFlippin in both PCB 9 1-17
and AS 02-05, he would allow Mr. Flippin to read a redacted version ofhis ASO2-05 testimony
into the Record ofPCB 9 1-17 followed by direct examination
from counsel for Petitioner.
Noveon argues that “unquestionably” relevanttestimony was not included in the redacted version
and the Board should overrule Hearing Officer Halloran and allow the unredacted version to be
admitted.
Pet. Br. at 8-9.
The Agency objected to both the relevance ofportions ofthe testimony
and the fact portions ofit were based on data not available at the time the permit was issued.
6
2004Tr.
at
9-11, 15-16.
Hearing Officer Halloran determined that he would apply 35 Ill. Adm. Code
105.214
of
the Board’s procedural rules to
this proceeding in his determination that 2004 rather than 1991
procedural rules should govern.
That provision requires that permit appeal hearings “will be
based exclusively on the record before the Agency at the time the permit or decision was
issued.
.
.“
Noveon argues instead that Hearing Officer Halloran should have relied on former
procedural rule 35
Ill. Adm. Code
105.102(b)(8) that was in effect in
1991.
Noveon’s Post-Hearing Brieffails to discuss other equitable factors that likely played a
role in Hearing Officer Halloran’s determination not to admit Mr. Flippin’s substituted pre-filed
testimony.
These factors include prejudice to the Agency and the Hearing Officer by the late
filing ofthe substitute testimony only three business days prior to the start ofthe hearing and
confusion on the face ofthe
filing regarding into which proceeding the testimony was intended to
be entered.
2004 Tr. at 11-12.
Additionally, the Hearing Officer was aware that Mr. Flippin was
available to be questioned by both parties about all information relevant to the proceeding.
Hearing Officer Halloran also expressed concern that these issues could and should have been
addressed prior to the date ofhearing.
2004 Tr. at
17.
Officer Halloran was aware that counsel
for Illinois EPA had repeatedly expressed concern at pre-hearing
status conferences over having
sufficient time to reviewpre-filed testimony in the Permit Appeal proceeding to be sure the
Petitioner was not permitted to blur the lines and confuse the standards ofreview and relevant
evidence in the Permit Appeal and Adjusted Standard proceedings.
The Hearing Officer’s Order
was a reasonable one (under either the
1991 or 2004 procedural rules) that took into account a
variety offactors that weighed against allowing Mr. Flippin’s pre-filed testimony for AS
02-05 to
7
be entered in total in this proceeding.
Admission ofpre-filed testimony is discretionary on the
part ofthe Hearing Officer and Officer Halloran’s reasonable use ofhis discretion in this matter
should be upheld by the Board.
The Illinois EPA objection was intended to
assist the Board in only allowing in the
evidence relevant to
its determination under each proceeding’s standard ofreview.
The Agency
determined that preparing redacted testimony would assist the Board, rather than requiring it to
wade through relevant and non-relevant information.
The Hearing Officer’s ruling was
appropriate and should be sustained by the Board.
On the other hand, the Agency does not
believe that the Board’s determination would be altered in any way by the admission ofthis
irrelevant evidence.
Faced with the unpleasant choice ofalternatives, the Agency would prefer
the Board allow additional evidence to be admitted into theRecord over providing Petitioner a
manufactured basis for appeal that would only serve to delay further the effectiveness ofits
1990
NPDES permit.
B.
Standard ofReview and Burden ofProof
Noveon claims that it
had proceeded under the
assumption that the Board’s standard of
review in this matter would be
de novo
because that was the standard ofreview at the time the
permit was issued.
Pet. Br. at 8.
The Illinois EPA believes this argument misinterprets the
meanings ofprior and current Board rulings regardingthe standard ofreview in NPDES permit
appeals.
Among otherthings, Noveon seems to
argue that the Board’s procedural rules are in
conflict with the Act.
Noveon argues that under the Act there is no requirement for applicant
permit appeals that the evidence be based “exclusively on the Record before the Agency” as
is
required by Section 40(e) ofthe Act for third-party permit appeals.
On this basis Noveon argues
8
that the Board’s procedural rules are inconsistent with the Act.
The Illinois EPA believes the
Board’s procedural rules that took effect
on January
1, 2001
were duly adopted and are not an
inconsistent interpretation ofthe Act.
Additionally, Noveon tries to argue that the prior holdings ofthe Appellate Courts
regarding the standard ofreview in NPDES permit appeals
are
still good law for appeals by
applicants.
The Illinois EPA disagrees and argues that this caselaw has been overturned by
subsequent cases and amendments to the Board’s procedural rules.
There is no merit to
Noveon’s claim that the standard ofreview is different forNPDES
appeals by the applicant from
those by third parties.
As the Board has recently stated:
The Board has consistentlyheld that in permit appeals, its review is limited to the
record that was before IEPA at the time the permitting decision was made.
See
Community Landfill Companyv.
IEPA (April
5,
2001), PCB 0 1-48, PCB 0 1-49
(consolidated); Panhandle Easter Pip Line Co. v.
IEPA (January 21,
1999), PCB
98-102; and West Suburban Recycling and Energy Center, L.P. v. IEPA (October
17,
1996), PCB 95-199, PCB
95-125
(consolidated); Alton Packaging Corp.
v.
~
162 Jll.App.3d 731, 738, 516 N.E.2d 275, 280
(5th
Dist.
1987)(court
affirmed Board, holdingthat scope ofBoard’s review in permit appeal is
limited
to record beforepermitting agency).
Moreover, Section 40 ofthe Act (415 ILCS
4/40(2000)) does not d~fferentiate
between the scope ofreview in permit appeals
brought by permit holders and those brought by thirdparties.
Prairie Rivers Network v. IEPA and Black Beauty Coal Co., PCB 01-112 (August 9, 2001) slip.
op.
at 8 (emphasis added).
In addition to
finding that the standard ofreview is the same for
permit holder and third partNPDES appeals, the Board has also held that the standard for
NPDES appeals is the same for other “routine” permit appeals.
See, City ofEast Moline v.
IEPA, PCB 86-2 18 (September 8,
1988) slip. op. at 2.
The Illinois EPA agrees with Noveon that the burden ofproofis on the Petitioner in an
NPDES permit appeal under Section 40(a)(1) ofthe Act.
Pet. Br. at 9.
The Illinois EPA is
9
confident that the Board will find that Noveon has failed to meet
its burden in this case.
IV.
ISSUES ON
APPEAL
OF
NOVEON’S NPDES PERMIT
Noveon’s initial filings in this matter appealed several Special Conditions in the
1990
NPDES permit which will be explained in more detail below.
At this stage there are three
remaining issues on appeal for the Board’s determination:
applicability ofammonia nitrogen
effluent limits, toxicitytesting requirements and separation ofoutfalls for sampling purposes.
An issue was raised in the initial pleadings regarding establishment ofa mixing zone for copper
that has thus far not been addressed further in the pleadings or at hearing and the Respondent
assumes that matter has been resolved.
Petitioner also challenged the Agency’s interpretationof
the federal Organic Chemicals, Plastics, and Synthetic Fiber regulations in Noveon’s permit.
See
40 CFR
§
414.90
et seq.
That issue was addressed at the 1991 hearing, in Pre-Hearing
Memoranda in this matter and in testimony ofboth parties at the 2004 hearing.
Only in its Post-
Hearing Briefhas Noveon conceded that Illinois EPA properly interpreted those federal
requirements and agreed to withdraw its appeal ofthose permit conditions.
A.
Applicability of 35 Ill. Adm. Code
304.122(b)
to Petitioner’s
facility
At the core ofthis dispute for both parties is the applicability to the Petitioner ofthe
Board’s effluent limitations for large ammonia nitrogen dischargers to the Illinois River
contained in 35
111. Adm.
Code 304.122.
Noveon has specifically appealed Special Condition 4
of its NPDES permit which requires monitoring and reporting ofPetitioner’s ammonia discharge.
Special Condition
4 provides that if monitoring demonstrates a 30-day average ammonia loading
in Noveon’s effluent greater than 100 lbs/day, Petitioner is required to comply with a 30-day
average ammoniaconcentration of3 milligrams per liter (“mgfL”).
Ifthe daily maximum
10
loading ofammonia exceeds 200 lbs/day, Petitioner is
limited to a daily maximum concentration
of6 mg/L.
This Special Condition
is based on the effluent limitations contained in 35 Ill. Adm.
Code 304.122 which provides:
a)
No effluent from any source which discharges to the Illinois River, the Des
Plaines River downstream of its confluence with the Chicago River System or the
Calumet River System,
and whose untreated waste load is 50,000 ormore
population equivalents shall contain more than 2.5 mg/L oftotal ammonia
nitrogen as N during the months ofApril through October, or4 mg/L at other
times.
b)
Sources dischargingto 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.
The Illinois EPA placed Special Condition 4 in Noveon’s permit based on subsection (b) of
304.122 which applies to
dischargers whose “untreated waste load cannot be computed on a
population equivalent basis comparable to that used formunicipal waste treatment plants.”
Noveon claims “Illinois EPA’s application ofthe rule ignores its plain meaning and relies
on a misinterpretation that has no basis in the language ofthe rule, the Board’s opinion
promulgating therule, or any illinois guidance document.”
Pet. Br.
at 11.
Illinois EPA, on the
other hand, has consistentlymaintained that “the only logical reading ofthis provision is that
304.122(b) was adopted specifically to coverdischargers
like Noveon with industrial waste
streams forwhom calculations oftraditional P.E. values produce figures that give no meaningful
information about the magnitude or nature ofthe discharger’s final effluent to
the Illinois River.”
2004 Tr. at
101.
The Illinois EPA believes the Record demonstrates that its interpretation is
11
consistent with the Board’s regulatory history ofthis provision, has been interpreted consistently
over time by the Board and to read the language as Noveon does would render Section
304.122(b) utterly meaningless.
Petitioner supported the appeal ofthis Condition with two alternative arguments.
First,
the Illinois EPA had not imposed this
condition on the Petitioner’s facility previously and
should
somehow be estopped by law from doing so.
Second,
Petitioner argues that this sectionis not
applicable because its wasteload “can be computed on a population equivalent basis” and
therefore subsection (a) should apply.
Under subsection (a), Petitioner also claims no
effluent
limit would attach based on the allegation that Noveon’s influent has a population equivalent
(“P.E.”) ofless than 50,000.
Finally, Noveon also seems to suggest that the technical basis for 304.122 has proven
faulty and the Board should not attempt to apply the rule.
Pet.
Br. at 23.
While this argument is
beyond the scope ofthis Permit Appeal, the Agency presented expert testimony from Bob
Mosher that the Board opened 304.122 twice since the adoption ofsubsections (a~
through (c)
and the Board never sought to update or alter the effluent ammonia standard at that time.
2004
Tr. at 107.
Ifthe rulemaking is out ofdate or the basis forit had been over-turned as Noveon
implies, the Board presumablywould have addressed those concerns at that time.
1.
Response
to argument that Illinois EPA should
be estopped from applying an
ammonia effluent limit to Noveon’s discharge
Petitioner claims that
becauseNoveon’s discharge always contained ammonia and
permits issued prior to 1990
did not contain an
effluent limit for ammonia, that Illinois EPA
should be estopped.from including this limitation in Noveon’s
1990
NPDES
permit.
Not only
12
doesNoveon presentno
evidence ofa change in interpretation ofthe regulation at issue by the
Agency, but it fails to present or even attempt
to distinguish all precedent setting caselaw in this
area.
A failure to include this provision in Noveon’s prior permits is not a basis for an estoppel
allegation against the State.
Tn the seminal case ofHickey v. Illinois Central Railroad Company, 35 Ill.2d 427, 220
N.E.2d 415 (1966), the Illinois Supreme Court held that it is elementary that principles of
estoppel do not apply to
public bodies under usual circumstances.
The reluctance ofcourts to
hold governmental bodies estopped to
assert their claims is particularly apparent when the
governmental unit is
the State.
There are sound reasons forthe policy, including the possibility
that the application ofestoppel doctrine may impair the functioning ofthe
State in the discharge
ofits
government functions, and that valuable public interests may be jeopardized or lost by the
negligence, mistakes, or inattention ofpublic officials.
Hickey, 35 Ill.2d at 447-448, 220 N.E.2d
at 425-426.
See also,
Good Samaritan Hospital v. Shalala, 508 U.S.
402,
113 S.Ct. 2151
(1993).
Of course, the court also recognized that such an immunity is not absolute, but that only
in compelling circumstances estoppel be available when the State
is -acting in a governmental
capacity.
The mere inaction ofgovernmental officers is not sufficient to work an estoppel.
Hickey, 35
Ill.2d at 448, 220 N.E.2d at 426.
Further, the party claiming the estoppel must have
relied upon the acts or representations ofthe other and have had no knowledge or convenient
means ofknowing the true facts.
Hickey, 35 Ill.2d at 447,220 N.E.2d at 415.
As this Board has
noted, prior illinois EPA actions, if in error, are properly remedied by correcting the error, not
perpetuating it.
State Bank ofWhittington v.
Illinois EPA, PCB 92-152 (June
3, 1993) slip. op at
14.
13
In the
case ofPanhandle Eastern Co.
v. Illinois EPA, PCB 98-102 (January
21,
1999), the
Board engaged in a detailed discussion ofthe availability ofestoppel against the Agency.4
The
Board identified the appropriate test that “a party seeking to estop the government must
show
that the government made a misrepresentation with knowledge that the misrepresentation was
untrue.”
~
at slip
op. at 19 (citing Medical Disposal Services v. IEPA, 286 Ill. App. 3d 562,
570, 677 N.E. 2d 428,
433
(1st
Dist.
1997)(even when letter from Illinois EPA stated prior
contrary interpretation ofregulations,
Illinois EPA was not estopped from changing its
interpretation); City ofMendota v. PCB,
161
Ill. App. 3d 203, 209,
514 N.E.2d 218, 222
(3”’ Dist
1987); People v. Chemetco, PCB 96-76, slip.op. at
11; and White & Brewer Trucking, Inc. v.
Illinois EPA, PCB 96-250 (March 20,
1997), slip op. at 10.).
The Board has also
noted that a
change by the Illinois EPA in its interpretation ofa regulation does not give rise to estoppel since
it is not deliberate misrepresentation.
White & Brewer Trucking, PCB 96-250, slip. op. at 10.
Even if Noveon were able to demonstrate that Illinois EPA had previously interpreted
304.122 as being inapplicable to its facility, the elements required to prevail on a claim of
estoppel would not be met.
There has beenno evidence presented ofan affirmative
misrepresentation by any illinois EPA employee to
any representative ofthe Petitioners and
certainly no evidence that a misrepresenation was made with the knowledge that the
4The Third District AppellateCourt has articulated a six part estoppel test:
1) Words or conduct by the party against
whom the estoppel is alleged constituting either a misrepresentation or concealment of material
facts;
2) knowledge
on the part of the party against whom the estoppel is alleged that representations made were untrue; 3) the party
claiming the benefit of an estoppel must nothave known the representations to be false either at the time they were
made or at the time they were acted upon;
4)
the party estopped must either intend or expect that his conductor
representations will be acted upon by the party asserting the estoppel;
5)
the party seeking the benefitof the estoppel
must haverelied on or ~cted upon the representations; and
6)
the party claiming the
benefit
ofthe estoppel must be in
a position of prejudice if the party against whom the estoppel is alleged is permitted to deny the truth of the
representations made.
City ofMendota v. Pollution Control Board, 161
Ill. App.3d 203, 209,
514
N.E.2d 218, 222,
112 Ill. Dec. 752,
756
(1987); Stewart v. O’Bryan,
50
Ill. App.3d
108,
110, 8
Ill. Dec. 633, 634-35,
365
N.E.2d
1019,
1020-21 (1977).
14
misrepresentation was untrue.
The fact that no permit limit was previously included does not
amount
to such a misrepresentation.
Noveon cites to no evidence in the Record for the statement
“it was determined by Illinois
EPA as inapplicable when questioned by Noveon in 1974.”
Pet.
Br.
at 15-16.
Not only does the Illinois EPA find no evidence in the Record to support this
statement, in
a good faith effort to evaluate Noveon’s arguments prior to hearing, the Agency
conducted
an exhaustive review ofdocuments in Noveon’s files and elsewhere to
discover why a
permit condition was included in a draft
1977 permit and then removed from the final permit.
2004 Tr. at 138-139.
No documentation could be found to explain this occurrence, so Noveon
can not claim there was an affirmative representation from the Agency that the provision did not
apply.
Noveon also can not demonstrate reasonable reliance in this case.
As the Board stated in
Panhandle, “It is the responsibility of companies doing business in Illinois to determine whether
they are complying with Illinois environmental laws.
Panhandle’s reliance on Agency permit
renewals and inspections as the
sole
means by which Panhandle determined its
compliance was
unreasonable.”
Panhandle, slip op. at 20.
Noveon claims that it “relied on the absence ofa
permit limit for ammonia” to increase levels ofammonia in its discharge.
Pet.
Br. at 13-14. If
true, this is regrettable, but itwas not reasonable reliance as that concept has been defined by the
Board and the courts.
The Agency provided detailed testimony for its reasons forincluding the effluent limit in
Noveon’s 1990 permit and none ofthis testimony supports a claim ofa misrepresentation by the
Agency that was known to be untrue.
There is no evidence in the Record that the Agency
changed its
interpretation of304.122, only that it determined for the first time to place that
15
provision in Noveon’s permit.5
Permit writer Rick Pinneo describes in detail the process that led
to the imposition ofthis limit in Noveon’s permit.
2004
Tr. at 137-138.
In his
1984
permit
review,
Mr.
Pinneo found that the ammonia levels were relatively low (around 34 mg/L) and
similar to
the values reported on earlier applications.
Mr. Pinneo then included only those same
limitations in this permit that had been placed in earlier versions of Noveon’s permit.
2004 Tr.
at
137.
In 1989, that changed significantly when the levels went up to a daily maximum of230
mg/L.
2004 Tr.
at
138.
Q.
What did this jump in ammonia levels cause you to do differently?
A.
It made me consider restricting ammonia discharges in the permit.
Q.
And what regulation did you look to to do that?
A.
The effluent limitation contained in 35 Ill. Adm. Code Section 304.122(b).
2004 Tr. at
138.
Mr. Pinneo also testified regarding a memo from Toby Frevert ofthe Standards
Section determining that 304.122(b) should be applied in this case.
2004 Tr.
at 138,
Agency
Permit Appeal Record (“Rec.”) at 208.
The only caselaw cited by Noveonto support its estoppel argument is Central Illinois
Public Service. Co.
v. Pollution Control Board, 165 ill. App.
3d 354, 518 N.E. 2d 1354
(4th
Dist.
1988).
While not an estoppel case, it is cited for the proposition that “Administrative Agencies
are bound by their long-standing policies and customs ofwhich affected parties had prior
knowledge.”
Pet. Br. at
15.
This precedent is distinguishable because no evidence was presented
ofa long-standing interpretation ofSection 304.122(a) or (b) that is contrary to that taken today,
only that this provision had previously been omitted from Noveon’s permit.
In addition, unlike
Noveon, the Petitioner in CIPS was able to demonstratethat it had not increased its
emissions
during the time pefiod at issue.
In this case, Noveon admits that its ammonia discharges to the
51n
fact, Mr. Pinneo testified that when an ammonia limitation was placed in Noveon’s 1977 Draft NPDES permit,
16
Illinois River had increased significantly between issuance ofthe
1984 and
1990 NPDES
permits.
Pet. Br. at 13-14.
In conclusion, the courts have also held that estoppel is even more disfavored when “what
is involved is the protection ofthe environment and the people who inhabit it.
...
Progress in
controllingpollution should not be barred by methods ofthe past.”
Dean Foods Co.
v. Pollution
Control Board,
143 Ill. App.3d 322, 338, 492 N.E. 2d 1344,
1356, 97 Ill. Dec. 471, 483
(2nd
Dist.
1986).
Based on all ofthese factors, Petitioner’s argument that the Agency should be estopped
from applying the applicable effluent limits to its facility should not be entertained by the Board.
2.
Regulatory
Interpretation of35111. Adm. Code 304.122 requires placing an
ammonia effluent limit in Petitioner’s NPDES permit
This long-standing dispute between the parties requires the Board to make a
finding on the intent and meaning ofits ammonia effluent limitations contained in 35
Ill. Adm.
Code
304.122(a) and (b).
Petitioner claims that a “plain reading” ofthese provisions concludes
that Noveon’s facility is
exempt from subsection (b) and does not triggerthe threshold of
subsection (a), while the Illinois
EPAmaintains that such a reading results in a finding that
Noveon is subject to the effluent limitations in subsection (b).
a.
History and application of 304.122(a) and (b)
When first adoptedby the Board, the provisions at issue in this proceeding were codified
as Rule 406.
On
January 6,
1972,
the Board adopted the language currently contained in
subsection (a) of 304.122 in the combined dockets ofR70-8, R71-14 and R71-20.
It required
that no effluents from dischargers to specified waterbodies, including the Illinois River, “whose
untreated waste lo~d
is 50,000 ormore population equivalents shall contain more than 2.5 mg/L
that
limitwas based on subsection (b) of Section 304.122 and not subsection (a).
2004 Tr. at
139.
17
oftotal ammonia nitrogen as N during the months ofApril through October, or 4 mg/L at other
times,
after December 31,
1977.”
35 Ill.
Adm. Code 304.122(a)(adopted
as PCB Rule 406).
In
1973, the Board adopted the language (proposed upon its own motion) currently found in
304.122(b) which requires dischargers to the same specified waterways “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.”
35 Ill. Adm.
Code 304.122(b).
See
R 72-4 (June 28,
1973) and Opinion ofthe
Board dated November 8, 1973.
Even though it was adopted after the language in the current
304.122(a), this provision had an effective date ofDecember 31,
1974.
One explanation given
by the Board forincluding the additional language is found in anotherrulemaking opinion’s
discussion ofthe addition ofthe current 304.122(b) to Rule 406:
“This amendment did nothing
more than provide an additional clarification ofthe definition ofa source subject to the effluent
limitations ofRule 406; for either case, the threshold applicability ofthe rule is established by a
discharge of 100 pounds per day ofammonia nitrogen, however calculated.”
In the Matter of:
Proposed Final Amendment to
Chapter 3, Water Pollution Regulations; Rule 402.1, An
Exception to Rule 402
forCertain Ammonia Nitrogen Sources, R77-6 (March 30,
1978), slip.
op.
at5.
In looking for guidance on the Board’s interpretation ofthese provisions it is helpful to
look at Board cases where site-specific relief has been granted from 304.122(a) or (b).
It can be
concluded generally that when the Board has granted relief from 304.122
to industrial
dischargers, it has granted this relief from subsection 304.122(b) without questioning whether
-
18
subsection (a) should be applied instead.6
In 35
Ill. Adm.
Code 304.2 13, the Board granted a
site-specific effluent standard for PDV Midwest Refining,
LLC.
Relief was granted from
304.122(b) and that facility is required to meet a monthly average effluent limit of9.4 mg/L
and
a daily maximum of26.0 mg/L.
In 35 Ill. Adm. Code 304.214, similar relief from 304.122(b) is
granted to Mobil Oil Refinery with the requirement that the facility meet monthly average
effluent limits of 9.0 mg/L and daily maximum limitations of23 .0 mg/L.
On the other hand, in
R87-2l, the Board refused to grant site-specific relief from 304.122(a) for the Peoria Sanitary
District.
See, R87-21 (October 6,
1988).
While the Board hasnever directly explained these
provisions or ruled on the precise meaning of“comparable to that used for municipal waste
treatment plants,” Noveon points to no prior Board opinions that support its interpretation of
304.122.
In multiple cases, the Board has granted some type ofrelief from the provision at issue
to other industrial dischargers and never questioned that 304.122(b) was the appropriate section
to apply.
Noveon argues that subsection (a) applies because a P.E. value
can
be calculated for its
facility, while the Illinois EPA maintains that provision must be read in totality to apply when the
“untreated wasteload can not be computed on a P.E. basis comparable to that used formunicipal
waste treatment plants.”
The Illinois EPA argues that when, as with Noveon, the influent P.E.
values do not result in a meaningful value that can be used (as it is for POTWs) to estimate the
ammonia loading to the receiving stream; it is more appropriate to look to the actual loading to
the receiving stream.
Where these facilities have a loading greater than
100 lbs/day, the Board
intended an effluent limit to
applyto these large ammonia discharges to the Illinois River.
635
~
Adm. Code
304.201 provides relief from 304.122 to the Metropolitan Water Reclamation District of Greater
Chicago without specifying which subsection is applicable.
19
Noveon’s position is supported by testimony from Houston Flippin that “in his
professional opinion” 304.122(b) did not apply to Noveon.
2004 Tr. at 51.
However, Mr.
Flippin’s testimony clearly indicated that he had no prior experience with any other clients
subject to 304.122(a) or (b), nor had he attended the Board hearings orread the opinions
adopting these provisions.
2004 Tr.
at 72-73.
In fact, Mr. Flippin was unable to name or even
describe a facility that would be subject to Section 304.122(b) under Petitioner’s interpretation.
Petitioner is asking this Board to find that it adopted a provision in a separate rulemaking one
year after adoption of304.122(a) with no
facilities in mind that it would apply to.
The Agency’s
interpretation is the only logical reading ofthe plain language ofthis provision.
This section is
intended to cover facilities for whom a P.E. value does not accurately reflect the ammonia
loading to the Illinois
River.
Noveon is the archetypical example ofthe type of facility this
provision was intended to
cover.
While there is a factual dispute in theRecord regarding the
actual P.E. value ofNoveon’s facility, there can be no dispute that when calculated that value
does not correspond to the enormous ammonia loading Petitioner’s facility is discharging to
the
Illinois River.
When asked what type ofhypothetical facility this regulation would apply to, Mr. Flippin
responded that “an industry that did not contain BOD and suspended solids would be one that
could conceivably fit 304.122(b).”
Mr. Flippin also testified that the regulation could apply to
facilities where there was “no data available.”
2004 Tr. at 50.
It is inconceivable that a facility
would be discharging over
100 lbs/day of ammonia into the Illinois River, but would have no
data available to calculate a P.E. value or contain no BOD or suspended solids in its
20
wastestream.7
According to Mr. Flippin, “In my opinion the word ‘comparable’ merely
questions whetherthe data exists
to express an untreated waste load in population equivalents
like one does when either designing or evaluating a municipal wastewater treatment plant.
The
data for the Noveon-Henry plant do exist and such calculations can be made and havebeen
made.”
2004 Tr.
51.
As Mr. Pinneo testified on behalfofthe Agency, “that’s where I believe
that we differ in that I believe that you can always calculate a PB, and so whywould the Board
write a rule saying if you can’t when it always can.”
2004 Tr. at 147.
When Mr. Pinneo was asked if he agreed with Mr. Flippin’s “expert” opinion that
subsection (a) applied to Noveon’s facility, he stated that the basis for his disagreement with Mr.
Flippin’s conclusion was:
Well, I believe that in all cases you should be able to calculate a PB value ofa
waste stream and that the issue ofwhether a waste stream is comparable ornot I
think is the key factor in which the rule should apply.
The facility has a particular
type ofwaste stream that just is not comparable to a municipal waste stream and
to calculate a PE value which, like I said, I think you can calculate a PB value for
any wastestream, is just totally meaningless.
2004Tr. at 140-141.
Noveon relies on portions ofthe Permit Appeal Record that support its argument and
attempts to ignore those portions that do not.
Noveon points to a memorandum from Jim
Kanimueller ofthe Peoria Regional Office asking for an interpretation from Headquarters staff
regarding whetherNoveon’s facility should not have an ammonia effluent limit under
304.122(a).
Rec. at 207.8
In response, Toby Frevert’s memo clearly states the consistent
70f course, even ifthere were no BOD or TSS in a facility’s discharge
a P.E. could be calculated for those
parameters.
It would 1~e
zero.
In addition, even if somehow an influent had no BOD or TSS, flow could still be
measured to calculate the flow P.E. value.
8Noveon wants to rely on Mr. Kanimueller’s suggestion that 304.122(a) applies toNoveon’s facility, butnot his
conclusion that Noveon had a P.E. value greater than 50,000.
21
application of this provision to Noveon’s facility that it is subsection (b) that applies to Noveon’s
facility, not subsection (a).
Rec. at 208.
This memo is criticized by Noveon, because Mr. Frevert
relies on the term “industrial” to indicate which provision applies when that term is not present in
the regulatory provision itself.
While an oversimplification, the very brief memo correctly
identifies that this provision was adopted to applyprimarily to industrial facilities unless those
facilities can be compared to municipalities when using P.E. values to determine the impact the
facilitywill have on the receiving stream.
As Mr. Pinneo testified regarding his understanding of
the use ofthe term “industrial” in that memorandum:
“he was making a determination ofthat
and previous history with the use of304.122(b).
And that there are no municipalities that are
regulated under 304.122(b), and believed that industrial facilities are the only
—
I believe,
that
industrial facilities are the only ones that are regulated under 304.122(b).”
2004 Tr. at
155.
The
Illinois EPA presented its clear position in these proceedings that 304.122(b) “applies to
industrial facilities if they have over 100 pounds of
ammonia per day in their effluent,
and you
cannot compute a meaningful population equivalent.” 2004 Tr. at 156.
Petitioner correctly states the Agency’s consistent position on this issue in its initial filing
when it states “However, the Agency contends that because BF Goodrich’s effluent is dissimilar
to domestic waste, even though a P.E. can be calculated for the discharge, P.E.
calculations are
meaningless and Section 304.122(b) should apply.”
Petition at 3-4.
Petitioner offers no support
in fact, law or history for its contention that since a P.E. value
can be calculated for the
waste,
then 304.122(a) must apply.
Illinois
EPA maintains that Noveon’s wastestream is
exactlythe
type ofdischarge the Board had in mind when it adopted a separate section forwastestreams not
comparable to muni~ipal
waste treatment plants.
1991
Tr.
at 152.
22
The core of
Noveon’s
legal argument is a grammatical one.
Petitioner claims that
“Section 304. 122(b)’s
phrase
‘comparable
to
that used for municipal waste treatment plants’
defines ‘computed on a population
equivalent
basis.’
It cannot be read any other way.”
Pet. Br.
at p.
18.
It seems clear that Section 304.122(b) certainly
can
be read another way.
Whether or
not grammatical experts would support the manner in which this provision was drafted, conrmon
sense and logic must have some role in the plain reading ofthis language which clearly asks the
permit writer to
compare the nature ofthe wastestream ofthe facility at issue to a municipal
plant.
Noveon has not been able to
identify a single real or hypothetical facility that would be
covered by the Board’s regulation as it has interpreted it.
The Board would not have taken on its
own motion to amend former Rule 406 to add the language currently found in 304.122(b) with no
facilities in mind that this amendment would apply-to.
b.
Noveon’s wastestream is not “comparable” to a municipal wastestream
The Record in this proceeding provides a clear explanation ofthe factual bases underlying the
illinois EPA’s conclusion that Noveon’s wastestream was not comparable to a municipal
wastestream and that any P.E. value obtained for Noveon was meaningless.
Noveon admits that
its
influent does not contain appreciable
amounts ofammonia relative to its effluent, because the
ammonia is generated in the treatment process itself.
When asked about the value ofusing P.E.
calculations obtained regardingNoveon’s facility, Mr. Pinneo testified as follows:
Q.
Can you give us some examples ofwhy you feel a PE would be meaningless for this
facility?
A.
Well, the COD chemical
oxygen demand
to BOD ratio ofnormal municipal waste
ranges from one and a quarter to 2 and a half to one.
Thatwould be the
.
.
.COD and BOD
for municipal waste.
BF Goodrich’s or Noveon’s
COD to BOD
ratio is more in
tune to
around six to one.
That’s an indication that the wastewateris
certainlynot similar at all
to municipal waste and that particular indicator would mean the waste is not as
-
23
degradable as municipal waste.
2004 Tr. at 141.
The evidence in the record demonstrates that the degradability ofthe waste as
demonstrated by the BOD to COD ratio and the inhibitory compounds present in the wastestream
are two
very
important factors in this determination.
2004 Tr. at
14 1-142.
Higher COD waste
requires more oxygen to get a comparable removal rate.
2004 Tr.
at 141.
In addition,
the
inhibitory compounds actuallymake the BOD values appear lower because it “causes inhibition
to the BOD test itself.”
2004 Tr. at
142.
Therefore, when the BOD value ofNoveon’s
wastestream is calculated it may not be reflective ofthe magnitude ofthe loading when
compared to municipal wastestream because the BOD values (and resulting P.E. calculations
derived from those values) are artificially low.
2004 Tr. at
142.
Mr. Pinneo also gave some
examples in his testimony ofindustries whose P.E. values for their influents might be
comparable to municipal waste in terms ofdegradability such as meat packing or slaughtering.
Even though these industries have very high BOD and suspended solids values, the P.E. values
forthese facilities would accurately represent the high loading from those valuesbased on the
absence ofinhibitory compounds and a BOD to
COD ratio comparable to municipal waste
treatment plants.
2004 Tr. at
15 1-152.
Ifthose industries wanted to argue that 304.122(a)
applied to their facility rather than 304.122(b), that argument would have some technical merit.
The same argument can not be made for Noveon.
In determining the factors to be evaluated in
the meaning ofthe term “comparable”, the Illinois EPA has adopted a reasonable interpretation
that is consistent with the guidance provided by the Board in its prior opinions in both general
applicability and site-specific rulemakings.
24
c.
Relevance of Noveon’s Population Equivalence Calculations
Illinois EPA disagrees strongly with Petitioner’s statement that “using
all relevant
calculations, the untreated waste load ofthe Noveon Henry Plant has a population equivalent of
less than 50,000.”
Pet.
Br. at 16.
This argument will be addressed in AS
02-05, but at the time
ofthe permitting decision, the Illinois EPA made no
finding as to whetherNoveon’s P.E. value
was greater than or less than 50,000.
The reason Illinois EPA saw no need to calculate a P.E.
value for the Petitioner’s wasteload was because it was clearly not
“comparable” to that of
municipal waste treatment plants and a P.E.
calculation forNoveon’s discharge would not result
in a meaningful value.
It is not relevant to this matter whetherNoveon’s influent has a P.E. value
less than or greater than 50,000, only whether subsection (b) applies.
Since the only logical
reading is that subsection (b) applies, the dispute over actual and credible P.E. values is a
secondarymatter.
There is one aspect ofthe relevance ofthis
calculation to Petitioner’s argument that the
Illinois EPA is willing to concede.
Noveon claims subsection (a) applies where P.E.
can
be
calculated and proceeds to attempt to
calculate it to prove that it can be.
On the other hand,
the
Illinois EPA agrees that a P.E. value can be calculated for Noveon because it can be calculated
for anything with a flow.
2004 Tr.
at 140-141.
Its not disputed that P.E.
can
be calculated.
The
dispute is what the appropriate figure is and whetherthis calculation is relevant.
The illinois EPA does not agree that Noveon’s P.E.
is clearly less than 50,000, but the
Agency did not perform such a calculation
as part ofthe permitting process.
Since the Illinois
EPA concedes that a P.E.
value for Noveon’s treatment plant
can
be calculated (as it can forany
wastestream), it is not relevant to the Board’s determination in this matter what the precise P.E.
25
value was for Noveon’s HenryPlant at the time the
1990 NPDES permit was issued.
Ifthe
Board were to determine that 304.122(a) was the proper standard to applyto the Petitioner, the
NPDES permit would have to be remanded to
Illinois EPA to
make a final determination ofthe
actual P.E. value for Noveon’s facility.
B.
Separation of
Outfalls and Best Degree ofTreatment
Petitioner has also appealed Special Conditions
5
and 7 ofits
1990 NPDES permit.
These
conditions outline the separation ofOutfall 001
from Outfall OOla and require the separate
wastestreams to be monitored prior to mixing them together and discharging them to the Illinois
River.
Under the
1990 permit, the Illinois EPA required separate sampling ofthe process
wastewater from the stormwater, non-contact cooling water, boiler blowndown, limesoftening
and demineralization waste.
Noveon claims that since these wastestreams discharge through a
single pipe to the Illinois River, the past practice ofsampling afterall wastestreams have been
combined should continue.
Noveon also claims that a single sampling point is allowable under
Illinois law because the Best Degree ofTreatment (“BDT”) is being employed as requiredby 35
Ill. Adm. Code 304.102.
The Illinois EPA has held that this separation ofOutfalls is necessary
based on new information obtained regarding Petitioner’s treatment processes and the need to
determine whether Petitioneris~in
compliance with the BDT requirements of35 ill.
Adm. Code
304.102 for the stormwater/utility pond dischargethat by-passes-the wastewatertreatment
processes.
That provision prohibits the use ofdilution to achieve compliance with numerical
effluent
limitations or water quality standards and leaves discretion to the Illinois EPA to
determine whether segregation ofwastestreams is appropriate and whetherBDT
is being met.
Permit Engineer Rick Pinneo testified on direct examination at the 2004 hearing
26
regarding his determination to
include a condition creating Outfall OOla in Noveon’s 1990
permit.
He stated that the legal basis for the separation ofoutfalls was based on “the dilution rule
under 35
Ill. Adm.
Code Section
304.102, where it specifically prohibits the dilution ofa waste
stream
to meet
limitations and it also prescribes in there that the monitoring ofan effluent should
be done prior to mixture with any other waste stream to prevent an artificiallylow number and
showing compliance with an
effluent limitation because ofthat dilution.”
2004 Tr. at
132.
The
language referred to by Mr. Pinneo in his testimony provides
as follows:
Section 304.102
Dilution
a)
Dilution ofthe effluent from a treatment works or from any wastewater source is
not acceptable as a method oftreatment ofwastes in order to meet the standards
set forth
in this Part.
Rather, it shall be the obligation of any person discharging
contaminants ofany kind to the waters ofthe state to provide the best degree of
treatment ofwastewater consistent with technological feasibility, economic
reasonableness and sound engineeringjudgment.
Inmaking determinations as to
what kind oftreatment is
the “best degree oftreatment” within the meaning ofthis
paragraph, any person shall consider the following:
1)
-
What degree ofwaste reduction can be achieved by process change,
improved housekeeping and recovery ofindividual waste components for
reuse; and
2)
Whether individual process wastewater streams should be segregated or
combined.
b)
In any case, measurement ofcontaminant concentrations to determine compliance
with the effluent standards shall be made at the point immediately following the
final treatment process and before mixture with otherwaters, unless
another point
is designated by the Agency in an individual permit, after consideration ofthe
elements contained in this
section. Ifnecessary the concentrations so measured
shall be recomputedto exclude the effect ofany dilution that
is improperunder
this Section.
With regard to
the reason for addition ofthis requirement in the 1990 permit, Mr. Pinneo
testified as follows:
27
Q.
Can you explain forus, Rick, what changed in the 1990 permit and
why?
A.
Well,
I learned that there was an effluent that was being directed past
treatment and discharged into the outfall structure, and I didn’t know of
that in the past.
Q.
How did you become aware ofthat?
A.
I took a plant visit and viewed the dischargeand asked what it was and
was
told that it was boilerwater blow down and cooling waters, storm
waters,
water treatment waste... objection
and ruling strikingpart
of
answer.
.
.
As compared to the 1985 permit therewas a diagram that
was
in
that application that did not show that particularwaste stream to be
discharged around the wastewater treatment plant, thus not beingprovided
any kind oftreatment.
2004 Tr. at 133-135.
Petitioner insists in its post-hearingbrief that separation ofoutfalls
is not necessary
because “the
treatment system is one integrated treatment system.”
Pet. Br. at 24.
Noveon
correctly explains that much ofthe stormwater/utility pond water is utilized
to facilitate the
process wastewater treatment process and thereby receives full treatment.
But for the first time,
following a site visit by the Permit Engineer prior to issuance ofthe 1990 permit, the Agency
learned that (unlike the representations in earlier flow diagrams) the remaining stormwater/utility
pond waterwas discharged afterreceiving only minimal treatment by a sand filter.
Noveon
claims that the Agency’s testimony from the 1991 Hearing indicates that BDT is being provided
for all parameters otherthan ammonia and that Mr. Pinneo attempted to change that testimony at
the 2004 hearing.
Pet. Br.
at 25.
In fact, Mr. Kluge’s testimony stated: “Based on the
information we have, it represents the best degree oftreatment for parameters other than
ammonia.”
1991
Tr.
at 131.
It is clear from
the Record in this matter that the Illinois EPA has
no data on the nature ofthe pollutants contained in the stormwater/utility pond wastestream
because that wastestream has not previouslybeen sampled.
28
The Courts have held that where BDT is being provided, dilution maybe allowed
consistent with 304.102 if the permittee has demonstrated that it is providing BDT prior to
the
mixing
ofwastestreams.
The Petitioner has not met this burden and the Agency’s conclusion
that sampling from the stormwater/utility pond wastestream is necessary to
demonstrate
compliance with the dilution prohibition of35 Iii. Adm.
Code 304.102 was reasonable and
should be upheld by the Board.
Dean Foods Co.
v. Pollution Control Board,
143
III. App. 3d
322, 337, 492 N.E. 2d 1344,
1355,
97 Ill. Dec. 471,
482 (2 Dist.
1986)(”Dean must show that it
is providing BDT because that is
a condition precedent for approval ofits post-mixture sampling
point.”).
C.
Toxicity Testing and Environmental Impact of Noveon’s Discharge
Noveon has appealed Special Condition
6 in its NPDES permit which requires
acute
toxicity tests and other biomonitoring as well as a toxicity reduction and evaluation (“IRE”)
provision.
Petitioner claims the requirement for this testing is “unwarranted and duplicative.”
Pet. Br. at 26.
Prior to the February 2004 hearing, the Illinois EPA explained that in
1990 these
conditions were placed in Noveon’s permit pursuant to 35 Ill.
Adm. Code 309.103(a)
in the
hopes toxicity tests would be conducted on Noveon’s effluent following treatment to reduce the
ammonia levels.
Prior biomonitoring tests demonstrated the highlytoxic nature ofthe ammonia
levels in Noveon’s discharge while subsequent tests would be necessary to determine (once
ammonia levels are reduced) whether the extremely high levels ofammonia have been masking
the toxicityof other compounds in Noveon’s discharge.
illinois EPA even went so far in its Pre-
Hearing Memorandum to state that “if the Board determines that Noveon is not required to
reduce the ammonia levels in its
discharge, Petitioner is correct that requiring additional
29
biomonitoring would be unnecessary.”
Respondent’s Pre-Hearing Memorandum at 9.
This
conclusion was based on the assumption that if ammonia levels are not reduced, additional
biomonitoring ofNoveon’s current discharge would reconfirm the undisputed results ofthe
testing performed under previous permits that demonstrated the lethality ofNoveon’s discharge
to aquatic life.
These conclusions apparently led Noveon to requestthat the Board order the
Agency
to reconsider the need for Special Condition 6 in light of its rulings on the applicability
of 304.122(b) and its Adjusted Standard Petition inAS 02-05.
However, the IllinoisEPA also
provided
further evidence at the February
2004 hearing of
the reasonableness ofthe toxicitytesting
conditions placed in Noveon’s permit from Bob
Mosher. Mr.Mosher hasbeenresponsible for
reviewing all ofthe biomonitoring test
assessments the
Agency has ever done since such testing began
in the mid-1980s. 2004 Tr. at
112. Mr. Moshertestified thathe doesnot consider the condition
duplicative ofprior testing that
wasperformedbyNoveon “because effluents
can
change, processes at the plant canchange.
Effectiveness oftreatment can change.
All those things could lead to
different results in the
whole effluent biomonitoring.”
2004 Tr. at
112.
In addition, Mr. Mosher stressed that the six
month testing schedule and the TRE requirements contained in the appealed permit are very
typical for dischargers who have shown whole effluent toxicity in their effluent in the past.
2004
Tr. at 112-113.
The illinois EPA maintains that based on evidencepresented by Mr. Mosher
regarding biomonitoring conditions generally, Special Condition 6 is reasonable and consistent
with the Board’s regulations regardless ofthe Board’s determination regarding the applicability
of304.122(b) to Noveon’s discharge and it would be unnecessaryto further delay applicability of
Noveon’s permit in this matter to require reconsideration ofSpecial Condition
6 given this
30
evidence.
Related to the issue ofwhether Noveon should be required to conduct whole effluent
toxicity testing is the environmental impact ofNoveon’s discharge.
Noveon incorrectly states
that “it
is unquestioned that the water quality in the Illinois River has not been affected by
Noveon’s discharge.”
Pet. Br. at 22.
Noveon seems to be asking the Board to conclude that Mr.
Mosher’s testimony demonstrates the truth ofthis assertion when it quotes from his testimony at
the February 17,2004 hearing in its Post-Hearing Brief.
Pet. Br.
at 22.
In the language
quoted
by Petitioner, Mr. Mosher’s testimony clearlydemonstrates that adoption by the Board of
304.122 has resulted in a dramatic improvement in the water qualityofthe entire Illinois River
(both upstream and downstream ofNoveon’s discharge).
ApparentlyNoveon thinks the obvious
implication ofthis testimony will go unnoticed.. .that if Noveon were required to comply with
this regulation, as other large dischargers ofammonia to the Illinois River have been done, the
water quality in the Illinois River would continue to improve and have additional benefits
to
aquatic life.
Mr. Mosher also provided his expert opinion on the environmental basis and benefit of
304.122 in his testimony:
Ibelieve that regulationwas adopted, ofcourse, many years ago by the Board to
solve a problem that existed in the Illinois River and some ofits majortributaries
and that point source dischargers were contributing high quantities ofammonia to
that water
body
and that was having an adverse effect on aquatic life.
And so by
establishing a technology-based standard for effluents the Board cured the
problem.
They cut back on the amount ofammonia that entered the waterway,
and that had the good impact ofmaking it fit for aquatic life.
And now we enjoy a
much healthier fishery and habitat for other forms ofaquatic life in the upper
illinois River.
2004 Tr. at
106.
To allow a permittee to argue that its compliance with an effluent limit is
31
unnecessary since other disehargers have succeeded in accomplishing the intent of the effluent
limit could leadto a dangerous precedent if accepted by the Board in this matter.
Noveon seems to argue that since that water quality downstream of its discharge on the
Illinois River has improved, it is not necessary to impose this condition on the facility.
To the
contrary, testimony from Bob Mosher demonstrated that it was the Board’s adoption ofthis
regulation and the Agency’s implementation ofthe regulation that helped leadto drops in
ammonia discharges from the largest dischargers in the
State that improved the water quality of
the entire Illinois River.
Asking Noveon to
finally comply with this provision would only further
benefit the downstream water quality.
VI.
CONCLUSION
AND RELIEF REQUESTED
Based on the arguments outlined above, review ofthe entire record for the appeal of
Noveon’s
1990 NPDES permit demonstrates that the Petitioner has failed to meet its burden of
proofto demonstrate that based on the information provided in Noveon’s permit application and
available to the Illinois EPA at the time the determination was made, the requested permit would
not have resulted in a violation of the Environmental Protection Act orPollution Control Board
regulations.
Browning-Ferris Industries ofIllinois, Inc. v. Pollution Control Board,
179
Ill.App.3d 598, 601,
128 ill.Dec. 434, 534 N.E.2d 616,
619 (1989);
Joliet Sand & Gravel
Company v. IEPA & IPCB,
163 ill.App.3d
830, 516 N.E.2d
955
(3d Dist.1987);
IEPA
v. IPCB,
118 Il1.App.3d 772,
455
N.E.2d 189 (1984);
Oscar Mayer & Co.
v. JEPA,
PCB
78-14 (June 8,
1978);
IEPA v. Allaert Rendering, Inc.,
PCB
76-80 (September 6,
1979);
and
City ofEast Mo/me
v. JEPA,
PCB 86-218 (September 8, 1988).
The Illinois EPArespectfully requests that the Board
uphold the Special ~ionditionsappealed by Noveon in this matter which impose an ammonia
32
effluent limitation on Noveon’s discharge, require separate monitoring ofNoveon’s process
wastwaters from its stormwater/utility pond discharge and require toxicity testing and a toxicity
reduction evaluation ofNoveon’swhole
effluent.
Noveon has essentially been operating under
the same NPDES permit
conditions for nearlytwo decades and the Agency hopes the Board will
act quickly to ensure that an updated permit is
finally issued and effective for this facility.
~
~
Deborah J.
ams
Assistant Counsel
Division ofLegal Counsel
DATED:
May 26,
2004
Illinois Environmental Protection Agency
1021
N. Grand Ave. East
P.O. Box
19276
Springfield, Illinois 62794-9276
THIS FILING
IS
SUBMITTED
217/782-5544
ON RECYCLED PAPER
33
STATE OF ILLINOIS
)
COUNTY OF
SANGAMON
)SS.
)
PROOF OF SERVICE
I, the undersigned,
on oath state that I have served the attached Respondent’s Post-
Hearing Memorandum upon the person to whom it is directed, by placing it in an
envelope
addressed to:
TO:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Suite
11-500
Chicago, Illinois 60601
Sheila Deely
Mark Latham
RichardKissel
GARDNER, CARTON &
DOUGLAS
191 North Wacker Drive, Suite 3700
Chicago, Illinois 60606
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100
W. Randolph,
Suite 11-500
Chicago, illinois 60601
and mailing it by First Class Mail
from Springfield,
Illinois on May 26, 2004, with sufficient
postage affixed.
SUBSCRIBED AND SWORN TO BEFORE ME
this
26th
day ofMay, 2004
~i3~o~L
3~QkX~Qr
Notary Public
4:
BRENDA BOEHNER
:~
NOTARY
PUBLIC.
STATE
OF
ILLINOIS
~:MYCOMMISSION
EXPIRES
1 1~14-2OO5~:
THIS FILING IS SUBMITTED ON RECYCLED PAPER
