CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
JUN
302004
PCB
91-17
(Permit Appeal)
STATE OF
ILLINOIS
Pollution Contro’ Board
NOTICE OF FILING
Dorothy M. Gumi, 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
BradleyP. 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 Wednesday,
June 20,
2004, we filed the attached
POST-HEARING REPLY 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:
One ofIts Attome~
Noveon, Inc.
)
)
v.
)
)
Illinois Environmental
)
Protection Agency
)
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
CLERK’S OFFICE
JUN
3132004
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
P~Ijut~on
Control Board
Noveon, Inc.
)
)
v.
)
PCB91-17
)
(Permit Appeal)
Illinois Environmental
)
Protection Agency
)
POST-HEARING REPLY MEMORANDUM
OF
NOVEON, INC.
Noveon, Inc., by its attorneys Gardner Carton &
Douglas LLP, submits this Post-Hearing
Reply Memorandum in its NPDES Permit Appeal.
Noveon has met its burden ofproofthat no
ammonia limit is required by Board regulations for the NPDES permit, because Noveon’s
untreated wasteload can be calculated on a population equivalent basis comparable for that used
for municipal wastewater treatment plants, and that calculation yields a population equivalent
less than 50,000.
In addition, Illinois EPA is estopped from changing its application of Section
304.122
in a manner that requires imposition ofan effluent limit in Noveon’s permit.
Further,
Noveon has shown that Illinois EPA made a clear error when it applied the Board’s regulation
prohibiting dilution ofeffluent to mandate separation ofwhat is physically one outfall into two
outfalls.
Finally, Noveonhas demonstrated that further toxicitytesting would not yield any
useful information.
I.
Illinois EPA Has Accepted Admission
of Mr.
Flippin’s Testimony to
Avoid an
Appeal of
this Issue
In its opening memorandum, Noveon appealed the Hearing Officer’s ruling that the
written testimony ofHouston Flippin was admissible only in a form redacted by the Illinois EPA.
Noveon’s appeal was based on the rules in effect when Noveon commenced this appeal, which
provided for
de novo
review by the Board.
The Hearing Officer determined, however, that
existing Board rules promulgated after the first round ofhearings in 1991 prohibited admission
ofcertain portions of Mr. Flippin’s testimony, because the information in that testimony was not
before the Illinois EPA at the time it made its permit decision.
The Illinois EPA argues,
however, that Mr. Flippin’s testimony is admissible only in a form redacted by the Agency.
Illinois EPA does not dispute or even address the change in the Board’s rules and the
applicability ofthe rules at the time this permit appeal was filed and the first hearings proceeded.
Instead, Illinois EPA purports to make “equitable” arguments, which it claims were the basis for
the Hearing Officer’s ruling.
Illinois EPA first claims that it was confused as to which
proceeding, this permit appeal or thepending adjusted standard proceeding, Mr. Flippin’s
testimony was intended to be presented.
The claimed confusion derives from the fact that a
notice offiling and motion to substitute testimony, which were submitted to the Board afterMr.
Flippin’s
initial testimony was filed before the Board, referenced only the adjusted standard
proceeding.
Second, Illinois EPA claims that the hearing officer took into account other
equitable factors in making his ruling.
After presenting these contrived arguments, the Illinois EPA nevertheless states that it
would preferto allow additional evidence rather than allowa “manufactured” basis for appeal.
Noveon urges the Board to accept Illinois EPA’s concession and avoid having to decide what
now appears to be a non-issue in light of Illinois EPA’s position.
Should the Board wishto
decide this matter, however, Noveon believes it is Illinois EPA’s claimed confusion concerning
the proceeding in which Mr. Flippin’s testimony was to be used that is manufactured, for both
the adjusted standard and permit appeal proceedings are clearly listed on the face ofMr.
Flippin’s testimony.
In addition, counsel for Noveon and Illinois EPA conferred prior to the
hearing, so that the purpose ofMr. Flippin’s testimony and the motion to substitute was further
clarified.
See
2004 Tr.
10.
Furthermore, Mr. Flippin’s
substituted testimony was a shorter
2
version ofwhat had previously been filed as his written testimony, not a new version with
additional evidence, so no prejudice could be said to result from the later motion to substitute
testimony.
Illinois EPA’s additional claims concerning the Hearing Officer’s “equitable”
considerations for his ruling were not and could not have been a basis for the Hearing Officer’s
ruling.
2004 Tr.
17.
“Equitable” factors cannot play a role in the hearing officer’s rulings,
which must be decided by Board rules.
The Hearing Officer’s ruling was that those portions of
Mr. Flippin’s testimony that were redacted by the Agency were not relevant and not permissible
under the rules because the informationwas not before the Agency at the time it made its
permitting decision.
The Hearing Officer did not decide that the testimony would “blurthe lines
and confuse the standard ofreview,” Resp. Mem.
7, or base his rulings on equitable factors or
purported prejudice to the Agency.
Rather, the admissibility ofMr. Flippin’s testimony was
assessed based on existing rules governing Board permit appeals.
With respect to the scope ofreview, and how the Illinois Environmental Protection Act
(“Act”) and existing Board rules direct the Board to proceed, Noveon argued that the Act does
not limit the Board’s review in the case ofpermit appeals by the permittee to the record.
Though
the Board’s existing rules do purport to so limit review, Noveon argued that, because the rules as
they existed when Noveonpursued this appeal allowed
de novo
review, Mr. Flippin’s testimony
should be admissible in the unique circumstances of this case.
Illinois EPA ignores the past
Board regulations and instead argues that the Act does in fact limit review in this case to the
record, claiming that Section 40 ofthe Act does not differentiate between the
scope ofreview in
permit appeals brought by permit holders and those brought by third parties.
The Agency’s
claim here completely ignores the statute, which does in fact differentiate betweenpermit holders
3
and third parties.
The scope ofthe Board’s review is narrower in third-party appeals, limited to
information in the record.
See
Section 40(a) and 40(e) ofthe Act, differentiating between third-
partypermit appeals and NPDES permittee appeals.’
The Board’s rules concerning the
information that
is admissible in first party and thirdparty permit appeals must be construed
accordingly.
Those portions ofMr. Flippin’s testimony that are relevantto this proceeding and were
redacted from his testimony were discussed in Noveon’s opening Post-Hearing Memorandum in
the adjusted standard proceeding in Section II and IV(A) and (B) ofthe Argument.
Should the
Board overturnthe Hearing Officer, and apply the rules that governed this case when it
commenced and which established a
de novo
hearing, Noveon incorporates those pages ofthe
adjusted standard brief by reference.
Finally, Noveon must clarify the burden ofproofapplicable to it in this proceeding.
While Illinois EPA is correct that Noveon has the burden of proofin this proceeding, under the
Act questions oflaw, such as the interpretation of a regulation, are always reviewed
de novo.
Branson v. Department ofRevenue,
168 Ill.2d 247, 254,
659
N.E.2d 961
(1995).
II.
Applicability of Rule 304.122(a) and
(b)
A.
Equitable Estoppel Is Appropriate In This Case
It was a long-standing interpretation ofIllinois EPA that no ammonia limitation was
required forNoveon’s discharge, and this interpretationwas reflected in the Illinois EPA’s
issuance ofNPDES permits for a long span ofyears without an ammonia effluent limitation.
See
‘Sections (b), (c), (d) and (e) state that the Board’s review is based “exclusively on the record
compiled in the Agency proceedings,”
see,
e.g,
415 ILCS 40(b), (c), (d) and (e)
(applicable to
third-party NPDES permit appeals), but there is no such limitation in Section (a), governing
permit appeals by the applicant.
4
Petitioner’s Exhibit 2
(1978 Permit), Exhibit 4 (1985 Permit), and Exhibit
5
(1986 Permit).
In its
opening Post-Hearing Memorandum, Noveonnoted that an ammonia limit had been placed in
Noveon’s draft 1977 Permit, but it had been removed from the permit and was not an issued
limitation in the fmal NPDES Permit.
Noveoninvested substantial capital and located product
lines at the Henry, Illinois facility after a thorough review ofregulatory requirements and in
reliance on the absence ofan ammonia limit.
1991
Tr. 70-72.
Noveon argues that as a result of
Illinois EPA’s past actions and in accordance with fundamental fairness, Illinois EPA should be
estopped from changing its interpretation ofthe inapplicability ofSection 304.122(b) and
imposing an ammonia limitation.
Illinois EPA nowpurports to have had a consistent interpretation of Section 304.122(b)
all along, which it claims made the regulation applicable to Noveon.
Illinois EPA states that it
has “consistently maintained that 304.122(b) was adopted to specifically cover dischargers like
Noveon.”
Resp. Mem. at
11.
Further, Illinois EPA claims that Noveon needs documentary
evidence ofa change in agency position, and presumably that it does not exist.
The record
contains direct evidence that it was the Illinois
EPA’s position that Section 304.122 did ~
apply
to the Noveon discharge.
In 1977, the Illinois EPA issued a draft permit for theNoveon
discharge, and included the effluent limitation itbelieved was requiredunder
Section 304.122.
1991
Tr.
138.
Then, the Illinois EPA issued a permit without the ammonia limitation.
There is
only one inference from this documented agency action—the Illinois EPA concluded that
Section 304.122 was not applicable to Noveon’s discharge.
To
conclude or infer otherwise
would mean that the permit issued in
1978 was issued in violation ofthe Illinois Environmental
Protection Act, because, then, as now, the Illinois EPA cannot issue a permit unless the permit
requires the permittee to comply with all applicable regulations.
Illinois EPA does not cite any
5
evidence ofa “consistent” interpretation.
Instead, it cites its own opening statement in this case,
presented to the Board in 2004, in support ofits claim.
Resp. Mem.
at 11.
An opening
statement in an administrative hearing is not evidence of a consistent position.
It is evidence
only ofa litigation position.
Illinois EPA’s actions must be taken as evidence ofits position.
Its
consistent action in not applying an ammonia effluent limitation in any NPDES permit is all the
evidence that is necessary to conclude that Illinois EPA had a documented, definitive, and
specific position on the non-applicability of Section 304.122(b), and it is not the same position
that Illinois EPAnow urges the Board to adopt.
Illinois EPA also claims that a misrepresentation is required for estoppel to be found.
To
the extent that Illinois EPA believed Section 304.122(b) applied prior to the
1990 Permit, as
Illinois EPA evidently claims it did, this failure to include the limit in Noveon’s permit, and its
affirmative act in removing a limit from the
1978 final Permit, followed years later by placing
the limit in the permit again, constitutes that misrepresentation.
Equitable estoppel is ultimately about fundamental fairness, and under what
circumstances it is
fair to hold an agency to
a long-standing position upon which a regulated
partyhas relied.
Noveon meets the test here.
Noveon relied for a numberofyears
and through
issuance ofseveral NPDES permits on the affirmative representations ofthe Illinois EPAthat
Section 304.122(b) did not apply.
The Illinois EPA had a demonstrated long-standing
interpretation, which is
quite opposite to what it claims to have been its real position.
Noveon
reasonably relied upon that applied interpretation by-incurring substantial expense to bring a
product line to Henry and providing a benefit to the community in the form ofjobs and revenue.
Noveon constructed that process and relied on the regulatory limits in place, including the
absence ofan animonia limit, in its
regulatory review and its
decision to install the newprocess
6
at the HenryPlant.
1991
Tr. 76,
118-19.
It would be fundamentally unfair to penalize Noveon
because the agency belatedly decided that an ammonia limitwas warranted.
To the extent Illinois EPA admits that it changed its position, Illinois EPA claims this
took place because the ammonia effluent levels rose between 1984 and 1990,
and this fact
excuses its change in position.
But this change is a consequence ofthe decisions Noveonmade
in reliance on Illinois EPA’s position, that is, Noveon added to its facilities because Noveon
relied on the Illinois EPA’s documented position that Section 304.122 did not apply to its
discharge.
In addition, ammonia effluent levels are simply not relevant to the determination of
whether Section 304.122(a) or (b) applies.
It is the untreated waste load that is relevant for
purposes of determining calculation ofpopulation equivalents, not the effluent, and the
calculation is based on flow, BOD and TSS, not ammonia.
See 35
Il. Adm. Code 301.345.
Because ammonia effluent levels are not relevant to the determinationofwhether Section
304.122(a) or (b) applies, this case is therefore like
Central illinois Public Service Co.
v.
Pollution Control Board,
165
Ill. App. 3d 354,
518 N.E.2d 1354
(4th
Dist.
1988).
In
Central
Illinois Public Service Co.,
the Illinois EPA changed its interpretation ofthe regulations
governing emissions ofsulfur dioxide.
Like Noveon, the plaintiffclaimed that the rule did not
support Illinois EPA’s imposition ofan emission limit.
The court held Illinois EPAwas bound
by its prior policy reflected in past permits to issue a new permit without an added condition.
Id.
at
379-81, 518
N.E.2d at
1359-61.
Further, the
amines in Noveon’s untreated wastewater, which degrade to form ammonia
during the wastewatertreatment process, were always present in its untreated waste load.
While
there was some increase in the ammonia effluent levels, the increase was due primarily to the
construction ofa new wastewatertreatment facility.
Because Noveonwas experiencing
7
difficulty treating BOD, the new treatment facility was constructed to provide more
biodegradation than the old treatment facility.
The bacteria responsible for degradation of
amines2 are the same bacteriaresponsible for BOD removal.
With these treatment facility
upgrades, degradation ofamines occurred in the wastewater treatment system ratherthan in the
environment.
1991
Tr.
105-06,
118.
The levels ofammonia in Noveon’s untreated wasteload,
prior to the degradation that occurred in the wastewater treatment system, were comparable both
before and after the
1990 permit proceeding.
Even prior to the changes to the wastewater
treatment facility, however, all ofthose levels were above the effluent limits of Section
304.122(a) and (b), which do not apply to the Noveon-HenryPlant due to regulatory exclusion.
Finally, Illinois EPA says that estoppel is even more disfavored where protection ofthe
environment is involved.
The record is absolutely clear that there is no water quality problem at
all from Noveon’s discharge, nor has there been any documented impact in the aquatic
community around the Noveon outfall or downstream.
This simplistic argument by Illinois EPA
is unsupported by testimony from Illinois EPA’s own
witness
on water quality, Mr. Bob Mosher,
or any evidence at all.
Mr. Mosher conceded that water quality in the Illinois River has
improved during the period ofNoveon’s discharge.
See
Testimony ofBob Mosher, 2004 Tr.
117-18.
In its Post-Hearing Memorandum, Illinois EPA claims that “ifNoveon were required to
comply with this regulation, as other large dischargers ofammoniato the Illinois River have
been done
sic,
the water quality in the Illinois River would continue to improve and have
additional benefits to aquatic life.”
This is pure speculation.
By what standards Illinois EPA is
making this claim or how it would propose to measure such a claim is unknown, for the Illinois
2
IllinoisEPA refers to
the source ofammonia as the “destruction ofamine compounds,” but this is not
accurate. The
amine
compounds
are
not
destructed, they
are
transformed
by hydrolysis to ammonia.
8
River meets the water quality standardfor dissolved oxygen and in fact is very close to the
maximum oxygen level that the water can hold (dissolved oxygen at ornear saturation).
It
cannotmeet the standard evenmore, and there is simply no evidence to support the Agency’s
statement.
B.
The Board Must Make a Finding Only on the Plain Meaning ofSection
304.122
Noveon argued that where,
as here, the language ofa regulation is clear, no further
inquiry is required or allowed, and the Board must adhere to a regulation’s plain meaning.
This
is a basic precept ofstatutory construction.
Chevron US.A. Inc.
v. Natural Resources Defense
Council, Inc.,
467 U.S.
837 (1984). The Illinois
EPAwants the Board to make a finding on the
“intent and meaning” of Section 3 04.122, ignoring the regulation’s plain language, and imposing
an array offactors on the applicability ofSection 304.122(b).
These factors are intended to
compare an alleged “typical” municipal wastestream with that ofthe industrial discharger, and
include the BOD/COD ratio and the “degradability” ofthe wastestream.
Further, Illinois EPA
claims its interpretation is based on a memorandum by Toby Frevert, which states that Section
304.122(b) applies to Noveonbecause it is “industrial.”
In fact, the factors considered by Illinois
EPA and the intended application of Section 304.122(b) to “industrial” sources, to the exclusion
ofSection 304.122(a), were nowhere mentioned in the Board’s regulation or its
opinion when the
regulations were passed.
The Illinois EPA’s argument is simply to urge the Board to ignore the
plain meaning ofSection 304.122.
Illinois EPA is simply wrong on what the Board’s authority and responsibility is here.
The Board regulations were written
with specific language,
and did not limit the applicability of
Section 304.122(a) to municipal wastestreams and Section 304.122(b) to “industrial”
9
wastestreams.
The whole purpose ofa population equivalent is to provide a basis for comparison
ofindustrial wastestreams to municipal wastestreams.
Illinois EPAjust does not like the basis of
comparison, orP.E., directed by the Board.
It is wrong forIllinois EPA to claim that the Board has authority or to ask the Board to
make a finding concerning the “intent and meaning” of a regulation that
is unsupported by and
contraryto the plain language of304.122(a) and (b).
It is a fundamental requirement ofdue
process that the plain language ofa regulation must give fair warning to the regulated
community ofhow it will be applied.
See Granite
City
Division ofNational Steel Co.
v. Illinois
Pollution Control Board, 155
Ill.2d
149, 613 N.E.2d 719 (1993).
“Where the language ofa
regulation is clear and certain, an administrative agency’s interpretation ofthe regulation which
runs counter to the regulation’s plain language is entitled to little, if any, weight in determining
the effect to be accorded the regulation.”
Central illinois Public Service Co.
v. Pollution Control
Board,
165
Ill. App. 3d 354, 518 N.E.2d 1354 (4th Dist.
1988).
Section 304.122(b) requires an
ammonia limit for sources “whose untreated waste load cannot be computed on a population
equivalent basis comparableto that used for municipal waste treatment plants.”
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.
What Illinois EPA really wants is a rulemaking.
And Illinois EPA’s strained argument as
to the factors relevant to comparability ofwastestreams makes the case for Noveon, for Illinois
EPA has drafted an entirely new rule to impose an ammonia limit on Noveon.
It is wishful
thinking that there is a “typical” municipal wastestream to which Noveon’s wastestream can be
compared.
See
Resp. Mem.
at 23.
Some municipalities provide
wastewatertreatment primarily
10
to industry, and there are many municipalities with COD to BOD ratios much higher than those
given by Mr. Pinneo.
But COD is not a parameter to calculate PE in the regulations.
Illinois EPA states that “tjhe
core ofNoveon’s legal argument is a grammatical one.”
On that point, Illinois EPA is correct.
Isn’t that the case with all arguments involving the
applicationof a statute or regulation?
Illinois EPA’s argument is not derived from the grammar
used in Board regulations or based on principles of statutory or regulatory construction;
it
instead represents a wish list for a regulation that simply does not exist.
Illinois EPA’s position
is concisely stated in one sentence from its brief:
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.
Resp. Mem.
19.
Illinois has made two
mistakes, however,
that directly diverge from the plain
meaning ofthe Board’s regulations.
The point Illinois EPA has missed is that the population
equivalent ofa facility has nothing to do with animonia.
Nowhere does the regulation state that
to be comparable, a wastestream has to have ammoniacomparable to a municipal wastestream.
By definition in the Board’s regulation, “population equivalents” are based on the flow,
suspended solids,
and BOD of a facility’s untreated wasteload.
See
35
Ii. Adm. Code 301.345.
And Section 304.122(a) explicitly refers to the untreated wasteload, not the actual loading to the
receiving stream.
Illinois EPA’s attempt to rewrite the regulations is wishful thinking to suit its
position, and nothing more.
Even if Section 304.122 considered ammonia in the determination ofwhether an
ammonia effluent limitation is required, it is clear that the population equivalents
are
what is
important, and Mr. Flippin showed that a population equivalent of50,000 people discharges
11
moreTKN and NH3-N than Noveon is requesting.
Pet. Ex.
16 at 13.
Illinois
EPA cites a Board
opinionsubsequent to adoption ofthe rule that seems to state that discharge of 100 poundsper
day ofammonia nitrogen triggers the ammonia effluent limitation ofSection 304.122.
See
Resp.
Mem.
18, citing
In the Matter ofProposedFinal Amendment to Chapter
3,
Water Pollution
Regulations;
Rule 402.1, An Exception to Rule 402for CertainAmmonia Nitrogen Sources,
R77-6 (March 30, 1978).
Illinois EPA has entirely omitted the sentence previous to the quoted
sentence,
which states:
Rule
406
was
amended
on
June 28,
1973
by
adding
the
provision
that
sources
discharging to
any of the waters
listed
in
406
and having an untreated waste load
which
could not
be
computed
on
a
population
equivalent basis
and
discharging
ammonia nitrogen in
excess of 100 pounds per day,
could not discharge an effluent
containing more than 3.0 mg/L....
Id.
at
5
(emphasis added).
Illinois EPA’s failure to include this sentence in its
quotation uses this
Board opinion in a misleading manner, and the opinion notably fails to mention any factors
concerning the comparability ofindustrial wastestreams to municipal wastestreams.
Illinois EPA’s other arguments are self-contradictory.
Illinois EPA claims that “Mr.
Flippin was unable to name or even describe a facility that would be subject to Section
304.122(b)
under Petitioner’s interpretation.”
Several sentences later, however, Illinois EPA
acknowledges
Mr. Flippin’s example ofexactlythe type
offacility
to which Section 304.122(b)
could apply:
that is, one for which a population equivalent could not be calculated.
Resp. Mem.
20, 21.
Mr. Flippin3 gave an example ofsuch a facility as one where no data were available to
calculate a P.E. value or whose wastestrea~n
contained no BOD or suspended solids.
Illinois
~Illinois EPA claims that Flippin’s testimony is not credible because he did not attend the Board
hearings or read the opinions adopting them.
Ifthis is the criteria, the only credible expert on the
meaning ofthis provision is counsel for Noveon, who was on the Board at the time ofthe
hearing and
the Board’s designated
hearing officer in the Chapter 3 Water Regulations.
Illinois
EPA’s witnesses were not present either, and are therefore not credible.
12
EPA claims that it is inconceivable that a facility would discharge ammonia but would have no
data available to calculate a P.E. value or contain no BOD.
Illinois EPA also states that even
where a facility’s wastestream did not contain these parameters, a P.E.
could still be calculated,
and the P.E. would be zero.
Noveonbelieves that the three parameters specified in the Board’s
rule, flow, BOD, and suspended solids, are required to calculate a P.E. comparable to that used
for municipal wastewater treatment plants, and the Noveonwastestream specifically meets the
requirements for comparison.
Further, Noveon can conceive ofmany industries where the
facility would use ammonia, but not necessarily have a BOD,
such as mining and metals.
Illinois EPA itself cites Board cases which granted relief from Section 304.122(b) as
evidence ofits own position that Section
304.122(b) applies to Noveon.
Those cases, however,
do little to
support the Illinois EPA’s position.
The applicability of304.122(b) was not
discussed, disputed, or decided in those cases, and it is equally plausible to assume that those
cases represent the instances described by Mr. Flippin in which Section 304.122(b) applies,
where a “population equivalent comparable to that used for municipal wastewatertreatment
plants” could not be calculated.
The question ofwhetherthere is or is not a facility to which Section 304.122(b) applies is
ultimately not before the Board.
The Board must only answer whether Section 304.122(b)
applies to Noveon as the Illinois EPA contends or, whether Section 304.122(a) applies to
Noveonbut does not require an ammonia effluent limit, as Noveoncontends, because the P.E. is
less than 50,000.
To the extent Section 304.122(b) could not apply to a facility as it is written,
the remedy is not to create a set ofunstated factors and considerations that entirely change the
meaning of a regulation and constitute a rulemaking.
The remedy is instead to declare that
regulation void and unenforceable.
See Spinelli v. Immanuel Lutheran Evangelical
13
Congregation, Inc.,
118 Ill.2d 389, 402,
515
N.E.2d 1222 (1987),
citing Mayhew v. Nelson,
346
Ill. 381,
178 N.E.921 (1931).
C.
Noveon’s Population Equivalent Is Less than 50,000
Noveon’s expert, Mr. Flippin, provided careful and accurate calculations ofits P.E.,
based on informationthat was before the Illinois EPA at the time it issued its decision.
Pet.
Ex.
16 at 12,
13;
Pet. Ex.
19;
2004 Tr.
53-55.
Illinois EPA disputes the calculation, but provides no
alternate calculation, claiming instead that the Board does not have to reach the issue.
Noveonstrongly objects to Illinois EPA’s attempt to limit the question on review or
preserve for itself resolution ofany issues on the applicability ofSection 304.122.
Whether an
ammonia limit is properly applied to Noveon based on the provisions of Section 304.122(b) or is
precluded by Section
304.122(a),
as Noveon argues, is properly before the Board.
Illinois EPA wants to have its cake and eat it too, disputing careful and fully documented
calculations but providing no alternative calculations-to explain its viewpoint.
Noveon provided
calculations based on informationbefore Illinois EPA and in the record ofthis proceeding.
Noveon seeks a resolution ofthis issue, and Illinois EPA should not be permitted to avoid a
decision by inartful nonresponsiveness.
It is the Board that determines the scope ofits review,
not Illinois EPA.
D.
Separation
ofOutfalls
Noveon appealed Illinois EPA’s permit decision separating what is physically one outfall
into two apparently on the basis that there is dilution ofthe wastewater.
Illinois regulations
prohibit dilution ofwastestreams as a method oftreatment in order to meet effluent standards,
and
require BestDegree
ofTreatment (BDT) ofwastestreams before dilution can be allowed.
See
3511. Adm. Code 304.102.
Noveon argued that because Illinois EPA admitted that
14
Noveon’s wastestreams receive BDT for all parameters except ammonia, the Board’s regulation
permits combining the wastestreams prior to discharge and sampling and does not require
separation ofoutfalls for sampling and compliance purposes.
Illinois EPA’s admissionis in the
record in testimony by Mr. Tim Kiuge, who was a supervisor forthe Illinois EPA division
responsible forNoveon’s
1990 Permit.
Mr. Kiuge testified as follows:
Q.
Are you familiar, Mr. Kluge, with the wastewater—process wastewatertreatment
configuration forthe BFGoodrich plant at Henry?
A.
Yes.
Q.
Do you know what the term best degree oftreatment is?
Where itcomes from?
A.
It comes from the Board’s regulations regarding dilution, which I believe is
section 3 02.102.
Q.
Okay.
Are you called upon in yourposition to interpret that rule and to
determine what best degree oftreatment is from time to time?
A. Yes.
Q.
Is the process water treatment system at the BF Goodrich facility the best degree
oftreatment as far as you’re concerned, you being the Agency?
A.
Based on the information that we have, it represents the best degree oftreatment
for parameters other than ammonia.
1991 Tr.
130-31.
Noveon’s effluent is comprised oftwo wastestreanis:
process wastewater and
stormwater/utilities.
Noveon had understood Illinois EPA’s objection to be based on alleged
dilution ofthe treated process wastestream.
See,
e.g.,
Illinois EPA’s cross-examination ofMr.
Flippin, 2004 Tr. 96 (“the pond water that has gone through the sand filter, when that waste
stream is combined with the remaining process waters, wouldn’t you call that dilution ofthe
process wastewater stream?”).
In its Post-Hearing Memorandum, Illinois EPA now apparently
argues that it is the stormwater/utilities wastestream that
is being allegedly improperly diluted by
the process wastewater.
Further,
Illinois EPA has apparently retreated from its positionthat
separation ofthe outfalls is required and now says that “the Agency’s conclusion that sampling
from the stormwater/utility pond wastestream is necessary to demonstrate compliance with the
15
dilution
prohibition of35 Ill. Adm.
Code 304.102 was reasonable and should be upheld by the
Board.”
Resp. Mem. 29.
Illinois EPA has also attempted to retreat from its admission on the record that Noveon
provides BDT to its wastestreams.
In the 2004 hearings, for the first time, Mr. Pinneo, who
worked forMr. Kluge, claimed that Noveon does not provide BDT,
eventhough he heard that
testimony and never disagreed with ituntil 2004.
Like its position on population equivalents,
however, Illinois EPA has not come forward with evidence, but instead claims that it simply
cannot decide whetherNoveon is providing BDT for the wastestreams in the stormwater pond.
The implication seems to be that Noveon has withheld something from the Agency.
Illinois EPA
states that itrequired separation ofthe outfalls in the
1990 permit because the stormwaterpond
water is receiving what Illinois variously describes as “no treatment” or only “minimal
treatment” by a sand filter, and Illinois EPA lacks information on the “natureofthe pollutants
contained in the stormwater/utility pond wastestream because that wastestream has not
previously been sampled.”
Resp. Mem. 28.
The fact is that Mr. Pinneo, who “disagreed” with
his supervisor on the issue ofBDT did so without having made any determination ofwhether
furthertreatment was available.
When asked why he disagreed with Mr. Kluge’s conclusion that
Noveon was providing BDT for all parameters except ammonia, Mr. Pinneo said the following:
I’m not sure that there aren’t compounds present in the discharge.
I’m not sure if
there are other pieces ofmaterial or waste pollutants that have been removed to the
pointwhere I think they could be.
2004 Tr.
161.
Does this
sound like someone who has made a technical judgment requirement by
Section 304.102
as to whether BDT is being employed?
We think not—rather the testimony of
his former supervisor carries full weight here.
It was definitive, determined and conclusive.
16
The waters in the stormwater pond receive treatment by sedimentation and sand filtration
before being discharged.
Even if one were to disregard Mr. Kluge’s conclusion, Mr. Pinneo is
absolutely wrongto state that he could not determine BDT, as the treatment requirements for
non-process wastestreams and stormwaterhave been established by the U.S. EPA.
These
wastewaters are subjectto Best Management Practices (BMPs).
In EPA’s guidance on this issue,
Considerations in the Design ofTreatment BestManagement Practices to Improve Water
Quality,
EPA 600/R-03/103, September 2002, retention ponds and filtration are both listed as
BMPs by themselves in Table 3-2 for stormwater treatment.
Noveon has two BMP processes in
series.
For total nitrogen, TSS, and total phosphorus removal, which are the parameters of
concern in the pond, filtration provides the best removal for BMP processes with direct
discharges.
The Board should reverse Illinois EPA’s separation ofthe outfalls in the permit.
Illinois
EPA has not provided a consistent and candid explanation-ofits actions.
Illinois EPA has
admitted and there is ample evidence to support the conclusion that Noveon provides BDT for all
wastestreams except ammonia, which will be decided in this or the pending adjusted standard
proceeding.
B.
Toxicity Testing
On the Permit condition requiring toxicitytesting, Noveon stands by its position in its
opening brief.
Illinois EPA has not demonstrated the need for orany reasonable rationale for
toxicitytesting.
Noveon has already performed extensive investigation,
and further testing is
unwarranted and duplicative.
17
Conclusion
Noveon requests the Board to direct IllinoisEPA to rescind the effluent limit for
ammonia placed in the permit by Illinois EPA based on Section 304.122(b) ofthe Board’s rules.
Illinois EPA’s
interpretation ofSection
3 04.122(a) and (b) is unsupported by the plain language
ofthe regulation,
and Illinois EPA should be estopped from changing its
long-standing
interpretation evidenced in
prior
permits thatno ammonia effluent limitwas required. Noveon
also requeststhe Board to direct Illinois
EPA to
designate the NPDES
permitted outfall in
accordance withthe physical makeup ofNoveon’s discharge
and
the Board’s rules as Outfall
001. Finally,Noveon requests rescission ofthe condition requiringtoxicity testing
and
biomonitoring.
Respectfully submitted,
NOVEON, INC.
By:
_______
One of Its Attorneys
Richard J. Kissel
Mark Latham
Sheila H. Deely
GARDNERCARTON &DOUGLAS LLP
191 N. Wacker Dr.
-
Suite3700
Chicago, IL 60606
CHO2/
22319527.1
18
CERTIFICATE OF SERVICE
The undersigned certifies that a copy ofthe foregoing Notice ofFiling
and Post-Hearing
Reply Memorandum Of
Noveon,
Inc.
was filed by hand delivery with the Clerk ofthe Illinois
Pollution Control Board and served upon theparties 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 Wednesday,
June 30, 2004.
CHO2/ 22308412.1
