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NOTICE OF FILING
cED
DorothyM. Guim, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randcilph 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,
July 14,
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 of
~
Its Attom s
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
iN
THE MATTER OF:
Petition ofNoveon, Inc.
AS 02-5
for an Adjusted Standard from
35 Ill. Adm. Code 304.122
it)f~-1
4
2O~4
STATE OF ILLI~Jo:9
Pojjutjc~Control6oarcl
THIS FILING IS SUBMITTED ON RECYCLED PAPER
RECERVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
JUN 142004
STATE OF ILLINOIS
IN THE
MATTER OF:
)
Pollution Control Board
)
Petition ofNoveon, Inc.
)
AS 02-5
for an Adjusted Standard from
)
35 Ill. Adm. Code 304.122
)
POST-HEARING REPLY MEMORANDUM OF NOVEON, INC.
Noveon, Inc., f/k/aThe BFGoodrich Company (“Noveon”), through its undersigned
attorneys, respectfully submits this Post-Hearing Reply Memorandum in support ofits Petition
for an Adjusted Standard from the ammonia effluent standard set forth at 35 Ill. Adm. Code
304.122(b).
I.
Summary of the Issues
In the Petition for Adjusted Standard and Noveon’s opening Post-Hearing Memorandum,
Noveon requested the Board to determine that Section 304.122(a) applies but does not require an
effluent limitation forNoveon, because a population equivalent comparable to that used for
municipal wastewater treatment plants can be calculated for Noveon’s untreated waste load and
that calculation yields a population equivalent less than 50,000 for all relevant parameters. Ifthe
Board concludes that Section 304.122(b) applies, as contended by Illinois EPA and strongly
disputed by Noveon, Noveon seeks relief from its effluent limitation and requests as part ofthe
relief that the Board also grant Noveon a mixing zone and zone ofinitial dilution (“ZID”)
properly calculated in accordance with federal and state regulations.
Should an adjusted standard be necessary, Noveonhas met its burden ofproof. Noveon
provided evidence at the hearing that it does provide source control measures to reduce
ammonia, but Noveon has conducted extensive assessment ofnumerous treatment technologies
and has concluded that no technology is available to Noveon for treatment of ammonia in its
effluent that is both economically reasonable and technically feasible to allow it to achieve
compliance with 35 Ii. Adm. Code 304.122(b). Finally, Noveonhas provided all information
necessary for calculation ofa mixing zone and ZID. The Board has all the information necessary
to decide the questions before it and issue a complete decision.
II.
Statement of Facts
Noveon and Illinois EPA each provided complete statements offacts in theirrespective
briefs, and the parties agree on most facts before the Board. It is therefore unnecessary for
Noveon to repeat the facts, but it is necessary to correct or respond to specific areas where
Illinois EPA has misstated a fact or argued in error.
In Noveon’s opening memorandum, Noveon explained the crux of its conclusion and the
case presented to the Board, which is that there are no options available for treatment of
ammonia at Noveon’s facility that are both affordable and technically feasible. Illinois EPA
cannot refute this conclusion. Illinois EPA claims in its statement of facts, however, that “after
10 years ofstudy, Noveon concluded that no affordable compliance options were available.”
Illinois EPA’s Response Memorandum (“Resp. Mem.”) 2. This statement is troubling because in
the attempt to simp1if~rNoveon’s extensive, lengthy and costly investigation, Illinois EPA
entirely misconstrues the point of Noveon’s conclusion. This proceeding is not simply about
affordability, although economics are indeed an issue. It is also about the state ofthe current
technology and its ability to treat Noveon’s unique wastewater to achieve consistent compliance
with the effluent limit of 35 Il. Adm. Code 304.122(b). This will be discussed in more detail in
Noveon’s response to Illinois EPA’s claims concerning the treatment alternatives.
2
Noveon provided a thorough explanation ofits treatment facility accompanied by a
flowchart. In Illinois EPA’ s description of the treatment facility, it misstated ormisunderstands
certain aspects ofNoveon’s state-of-the-art treatment facility, for which a good understanding is
necessary for purposes of evaluatingthe treatment Noveon provides and Noveon’s request for
relief. Illinois EPA states that Noveon upgraded its wastewater treatment facility in 1998 in
order to expand production. Resp. Mem. 6. The other reason for the upgrade, omitted by Illinois
EPA, was to provide greater operational flexibility.
See
Tr. 107-08. The upgrade was not a
tankage increase only. It was also designed to provide greater treatment process redundancy.
Noveonhas explained that the holding ponds are used for stormwater, non-contact cooling water,
and utility waters. Illinois EPA stated that these waters are pumped from the holding ponds to
the wastewater treatment process to add flow.
See
Resp. Mem. 4. The pond water is pumped
into the wastewatertreatment process to enhance treatment, and not simply to add additional
flow. Pet. Ex. 7 at 7, 8. The reason for diverting the water to the activated sludge system is to
enhance both the treatment performance of the activated sludge system and the sand filter which
treats the remaining water in the holding ponds. The addition ofthis flow enhances biological
treatment by providing reduced concentrations ofbio-inhibitors. This same addition reduces the
loading on the sand filters so that they performbetter in providing treatment.
Noveon also pointed out in its written testimony and opening memorandum that its plant
meets the Ten-State Standards as well as the conditions in Illinois regulations at
35
Il. Adm.
Code 307.1210 and 370.920 for the design and operation ofnitrifying facilities. Pet. Ex. 7 at 9.
Nitrification is the conventional treatment for ammonia, and these standards are used by
regulators to critique wastewater treatment facility designs to ensure they are adequate to support
complete nitrification. Notwithstanding this high degree oftreatment, Noveon’s wastewater
3
treatment facility does not achieve nitrification. Illinois EPA states that this is because of “a
variety ofreasons, including: inhibition ofgrowth ofnitrifying bacteriaby specific inhibitory
compounds in Noveon’s wastestream, insufficient oxygen due to poor oxygen transfer rates and
the need for additional alkalinity to be chemically added.” Resp. Mem.
5.
Illinois EPA
statement is only half correct. As compared to the requirements for nitrifying facilities,
Noveon’s wastewater treatment plant maintains ample oxygen and alkalinity to initiate and
sustain a degree ofnitrification. Tr. 108-114; 165. The specific inhibitory compounds in
Noveon’s waste stream, however, do not allow nitrification to occur even with ample oxygen and
alkalinity.
Noveon stated that its wastewater contains degradable organic nitrogen compounds such
as tertiary butyl amine and morpholine. When these compounds are degraded, they release
ammonia nitrogen. Pet. Ex. 7, at 7, 9. Illinois EPA has repeatedly and inaccurately stated that
these compounds are destructed.
See, e.g.,
Resp. Mem.
5.
The ammonia is generated from bio-
hydrolosis, not destruction ofamines. Consequently, effluent ammonia-nitrogen concentrations
increase as the presence ofthese compounds increase in the influent wastewater and as these
compounds are more thoroughly biodegraded. This means that the majority ofthe effluent
ammonia nitrogen at the Noveon Plant is due to thorough biological treatment oforganic
compounds. Pet. Ex. 7 at 16.
III.
Argument
A.
Illinois EPA’s Response Memorandum Is Insufficiently Substantiated
As an initial matter, Noveon objects to the manner in which Illinois EPA has made its
arguments, which has made reply to Illinois EPA’s memorandum difficult. Illinois EPA spends
large parts ofits memorandum making arguments that do not derive from hearing testimony or
4
evidence. For example, Illinois EPA spends several pages proposing cost evaluations using
municipal information that it presented in its recommendation. Resp. Mem. 19, 20. First and
foremost, municipal plants do not treat wastewater anywhere near as complex as that ofNoveon.
More importantly, an agency recommendation is not evidence, and Noveon made this point at
the hearing. Tr. 176-77. A recommendation is akin to an answer in a court proceeding, and its
claims must be substantiated at a hearing by testimony from witnesses or admissible evidence.
Illinois EPA did not substantiate these claims.
Illinois EPA also makes comparisons to other industrial facilities, the toxicity ofother
effluents and the treatments purportedly provided. Resp. Mem. 32. But all parties at the hearing
agreed that it was inappropriate to bring in other industrial facilities, which cannot be evaluated
without an assessment ofthe facts ofeachparticular facility. Illinois EPA’ s claims are not
admissible, and are not supported with citation and witness testimony. They are merely
conjecture.
Finally, with respect to manyofthe questions now raised by Illinois EPA, Noveon has
used as its guide for this proceeding existing regulations and written interpretations, both federal
and state. It has had experts available for years, some over ten years. Noveon brought three
experts to the hearing to respond to questions in all areas that are relevant, and these experts have
been available and have met with Illinois EPA several times through the many years ofthis
proceeding. While legitimate disagreement between the parties based on existing rules is one
thing, the Illinois EPA should not be permitted to throw questions at the wall at the eleventh hour
in an attempt to disparage the work ofNoveon’s experts or the evidence.
5
B.
The Board Should Decide That Section 304.122 Does Not Require an
Ammonia Limit
Noveon urged the Board to issue a complete decision, including deciding the threshold
•issue ofwhether an adjusted standard is necessary from Section 304.122(b) at all. While
conceding that the Board has the authority to rule in this proceeding on the applicability of
Section 304.122(a) or (b), Illinois EPA has implied, though not directly stated, that the Board
should not so rule, relying instead on the permit appeal in PCB 90-7 to decide that issue. Given
the posture ofthe case, the lapse oftime, and the positions taken by Illinois EPA in PCB 90-7,
Noveon is disturbed by Illinois EPA’s suggestion to the Board to limit its decisionin this
proceeding. In the pending permit proceeding, Illinois EPA has been very clear that it does not
believe any information subsequent to issuance of the 1990 permit should be considered by the
Board, and has even claimed that the calculation ofNoveon’s population equivalents should not
be addressed at all since Illinois EPA apparently did not perform a reliable calculation. But these
issues have been considered and discussed in detail for over ten years between Illinois EPA and
Noveon in an attempt to reach an agreement,’ to no avail.
In its opening memorandum, Noveonprovided calculations of the population equivalents
based on Noveon’s untreated wasteload, which showed that for all relevant parameters,
Noveon’s P.E. was less than 50,000. Noveon also explained that Illinois EPA’s calculations of
P.E. were inflated in that they were based on figures in a report prepared for Noveon by Baxter
and Woodman, which did not represent Noveon’s combined untreated wasteload. Instead, the
Baxter and Woodman report provided the wasteload fed from the equalization tanks to the
‘Illinois EPA states without supporting testimony that the dispute concerning the calculation of
population equivalents was a relatively recent realization by the parties. This is not correct, as Noveon’s
comments to Illinois EPA as far back as the draft permit made clear that Noveon believed the P.E. to be
less than 50,000.
6
primary clarifier, which contajns wastestreams that are internal to the wastewater treatment
facility, including primary clarifier sludge when sludge dewatering is not occurring, filtrate from
sludge dewatering and backwash water from the tertiary(secondary clarifier effluent) filter. Pet.
Ex. 7, at 12. These wastestreams add flow, biological oxygen demand (BOD) and total
suspended solids (TSS), so that they are not representative ofthe untreated wasteload and their
use amounts to multiple-counting ofwastestreams which stay within the wastewater treatment
facility. Illinois EPA acknowledged that it incorrectlyperformed this calculation and withdrew it
at the hearing. Illinois EPA has not, however, provided a new calculation. Illinois EPA states
that it “did not deem a P.E. calculation equivalent necessary or appropriate,” and Noveon cannot
fathom why not given the clear disagreement between the parties. Nevertheless, without any
basis, Illinois EPA’s Response Memorandum now challenges the calculations ofNoveon’s
expert.
Notwithstanding that Illinois EPA’s calculations are incorrect and inflated, its flow and
BOD calculations were still substantially below 50,000.2 Noveon disputed Illinois EPA’s
calculation for TSS, however, which shows this P.E. based on Noveon’s untreated wasteload is
24,955.
With respect to Illinois EPA’s withdrawn calculation forTSS, which was above 50,000,
Illinois EPA now implies that Noveon improperly withheld this calculation from the Board.
Resp. Mem. 14. But Illinois EPA’s witness responsible for making the P.E. calculations
admitted that he incorrectly calculated the population equivalents.
See
Tr. 426-28, 442. Because
2
Illinois EPA points out that it made a typographical error, disclosed at the hearing, which showed its
calculation ofthe P.E. based on flow should have been 9,160, and not 916. This is far below the 50,000
P.E. required for application ofan effluent limitation. Illinois EPA states that Noveon’s use ofIllinois
EPA’s typographical error “calls into question what flow P.E. Noveon thinks is the proper value as it
relied entirely on the Agency’s calculations.” This is a peculiar argument for the Agency to make, as
Noveon was clear that it was not going to dispute a calculation by Illinois EPA that has no consequence in
that it is below 50,000.
7
Illinois EPA’s calculation was withdrawn, the point ofIllinois EPA’s argument is unclear. It
appears that Illinois EPA once again believes that its withdrawn calculations have some validity,
and that the discrepancy between Noveon’s calculation and that ofIllinois EPA is ofsome
importance. The only calculations concerning the P.E. for TSS in the record are those of
Noveon. The Illinois EPA’s statements on this subject are not based on evidence in the record.
The TSS figure used for Illinois EPA’s calculation was 53,000 lbs/day, while the TSS
figure used by Mr. Flippin was 4,991 lbs/day. Pet. Ex. 7, at 13. As noted, Illinois EPA based its
calculation ofP.E. on a wasteload with wastestreams that are internal to the wastewater treatment
facility. Illinois EPA now states that the discrepancy in the numbers used by it and by Mr.
Flippin cannot be accounted for with these internal streams. With an understanding ofthe
wastestreams, however, an explanation ofthe discrepancy can easilybe given. The diversion of
primary sludge to the PVC tank, the primary internal stream affecting Illinois EPA’s calculation,
is a daily occurrence. This diversion is required anytime the filter press used for sludge
dewatering is not being operated and when the filter press is not capable ofreceiving the entire
discharge ofthe primary clarifier (at end of filter press cycle). The primary clarifier sludge is
withdrawn continuously to prevent over-torqueing ofthe clarifier rake mechanism.
Mr. Flippin testified that he did not include the pond water in the calculation ofTSS.
Nevertheless, because all wastestreams expected to have any significant levels ofTSS were
included, Mr. Flippin testifiedthat his calculation ofpopulation equivalents was accurate to
within 25 percent. Tr. 486-88. Illinois EPA states in its response brief that “Petitioner expects
the Board to accept that this calculation might be offby no more than 25 percent ofthe total
influent wasteload,” so that the P.E. would still be substantially below 50,000. Why shouldn’t
the Board accept the testimony of Noveon’s witness, when it is reliable and unrefuted?
8
Illinois EPA claims the Parkson sand filter backwash wastestream should also have been
included in the TSS untreated waste load. Resp. Mem. 16. The Parkson filter backwash water is
an external wastestream for the purpose of calculating population equivalents. The quantity of
stormwater and utility waters entering the holding ponds, which were accounted for by Mr.
Flippin, must be equal to the summation ofwaters exiting the ponds. The water exiting the ponds
is equal to the backwash water discharging to the activated sludge treatment system, the pond
waterbeing pumped back to the activated sludge treatment system and the waterthat is treated
by the Parkson sand filter and discharged directly to the permitted outfall (the 800,000 gpd
referenced).
Illinois EPA claims without citation that Noveon has used flows that are inconsistent with
past information. Resp. Mem. 17. The flows discussedrepresent different averaging periods.
As is obvious, there is no one flowrate since the Noveon production is a batch process that varies
daily. Production and the associated wastewater flowrates vary based on market demand.
Finally, in an attempt to circumvent the calculation ofMr. Flippin, Illinois EPA states
that “there can be no dispute that when calculated the P.E. value does not correspond to the
enormous ammonia loading Petitioner’s facility is discharging to the Illinois River as would be
represented by a P.E. value for a POTW.” Resp. Mem. at 17. This statement is again
unsupported by citation to the record and is therefore not credible. In addition, the claim is
incorrect. The Noveon-Henry Plant discharges an effluent ammonia-nitrogen load less than
exempted by the Board in 304.122(a). A Population Equivalent of50,000 people would generate
1,450 lbs/day ofTKN and 950 lbs/day ammonia-nitrogen based on factors of0.029 lbs/day per
capita TKN and 0.019 lbs/day per capita ammonia-nitrogen according to Metcalf and Eddy, mc,
Wastewater Engineering: Treatment and Reuse, Fourth Edition. Pet. Ex. 7, at 13. The Board
9
would not have excluded “enormous” discharges from the regulation. The Noveon Henry
Plant’s untreated wasteload would yield a population equivalent of20,263 for ammonia nitrogen
and 35,793 for TKN, which are well below 50,000 if those parameters were used to calculate
P.E. Pet. Ex. 7 at 13.
C.
Noveon Has Met the Factors for Issuance of an Adjusted Standard
Noveon meets each element of35 II. Adm. Code 104.427 for the Board to grant the
requested adjusted standard. Ammonia from Noveon’s plant is not removed by the conventional
treatment, nitrification, consideredby the Board in adopting Section 304.122(b), and there is no
economically reasonable and technologically feasible alternative available to Noveon for
ammonia treatment. Nevertheless, Noveon’s wastewater will not result in environmental or
health effects substantially and significantly more adverse thanthe effects consideredby the
Board in adopting Section 304.122(b), and specifically will not adversely impact dissolved
oxygen in the Illinois River. Finally, the adjusted standard is consistent with federal law in that
Section 304.122(b) is purely a state effluent standard and there will be no violation ofwater
quality standards if the relief requested is granted.
D.
No
Treatment Technology Is Technically Feasible and Economically
Reasonable
Noveonpointed out in its opening memorandum that, in adopting Sections 304.122(a)
and (b), the Board explicitly found that “present technology is capable of meeting this limit and
should result in the removal ofmuch ammonia nitrification oxygen demand (NOD) from the
stressed waterways,” and explicitly cited nitrification as the treatment method it considered.
See
Order ofthe Board,
R 72-4 (Nov. 8, 1973);
See Order ofthe Board,
R
70-8, 71-14, 71-20 (Jan.
6, 1972). The factors that govern ammonia-nitrogen removal at the Noveon-Henry Plant are
10
substantially and significantly different from those relied upon by the Board in adopting the
general regulation. As presented at the hearing, these factors are that the Noveon-Henry Plant:
• has a unique wastewater. There are only three other plants in the nation that make the
same product line. Only one of these facilities has a direct discharge oftreated
wastewater to a receiving stream and this at a much lower contribution ofthis
wastewater. The other two plants discharge to a Publicly Owned Treatment Works
(POTW) at a low flow contribution.
• uses a compound as a building block in the Noveonplant’s production (MBT) that is
known for preventing nitrification (biological conversion of ammonia-nitrogen to nitrate-
nitrogen). This quality has led to the use of this compound in fertilizers to prompt greater
use ofnitrogen by plant life and not bacteria in the soil. There is no substitute for this
compound in the production process.
• requires pretreatment upstream ofthe activated sludge process to remove bio-inhibiting
compounds so that adequate BUD removal can be accomplished and to remove solids
that would pass-throughthe activated sludge process. This requirement renders the
activated sludge process subject to upset and noncompliance with effluent BOD and TSS
limits. This characteristic ofthe Noveonwastewater renders a wastewater treatment
facility less reliable in its performance than anticipated by the Board when adopting
304.122.
• exhibits a net increase of ammonia-nitrogen through the wastewater treatment process by
conversion oforganic nitrogen compounds to ammonia-nitrogen. Consequently, as the
degradation oforganic nitrogen compounds increase through the wastewater treatment
process (a desired outcome), the effluent ammonia-nitrogen increases (an undesirable
outcome).
• contains compounds in its wastewater that reduce its oxygen transfer capacity to
approximately halfthat experienced in a POTW. Consequently, the Noveon-Henry Plant
provides about twice the amount ofaeration equipment required by a POTW to satisfy
the same oxygen demand ofthe wastewater.
• would be required to add the bulk ofalkalinity consumed if nitrification were provided at
the facility. This is in contrast to a POTW where essentially all the alkalinity required for
nitrification is found in the wastewater.
• has an effluent whose primary toxicant, in addition to ammonia-nitrogen, is salt. All
treatment processes that provide significant ammonia-nitrogen removal require either salt
addition or salt release. Thus, an attempt to reduce one effluent toxicant, the
concentration ofthe other effluent toxicant is increased.
11
• has used practically all power available to the wastewater treatment facility. Any
additional power requirements will need to be supplied by a new line from a substation
located approximately 0.5-mile away.
Pet. Ex. 7, at
15-17.
Combined, the above factors make ammonia-nitrogen removal at the
Noveon-Henry Plant much more complex and expensive than the Board envisioned when
adopting Section 304.122, and more complex and expensive than suggested by the Illinois EPA.
With respect to source control, Noveon pointed out in its opening memorandum that it
has implemented source control measures that have reduced ammonia-nitrogen in its final
effluent, although the exact amount ofammonia removed cannot be quantified, and Noveon has
received numerous Annual Governor’s Awards for Pollution Prevention and a Governor’s
Citation Award forPollution Prevention. Pet. Ex. 6, at 6-10; Pet. Ex. 7, at 28. Combined this
work led to removal ofapproximately 377,000 lbs/year oforganic nitrogen-containing material
from the sewer. Illinois EPA claims that because a correlation between these removal efforts and
ammonia reduction cannot be made, it is misleading to connect these efforts with an effort to
reduce ammonia levels. This accusation is not supported by fact. The fact is, without these
source control efforts, a portion of this material would have been removed through primary
treatment as a solid or lost to the atmosphere as a volatile in the treatment system. A portion (if
not all) ofthe material entering the activated sludge system would have been bio-hydrolyzed to
ammonia-nitrogen and discharged as ammonia-nitrogen in the final effluent. One ofthese
projects involved reducing the tertiary butyl amine (a soluble compound) loss to the sewer by
185,000 lbs/year. Assuming all ofthis material remained in solution (not lost to the atmosphere),
the ammonia-nitrogen that would be generated in the activated sludge treatment system was
reduced by approximately 35,500 lbs/year or 97 lbs/day or 15 mg/L at a flow rate of800,000
gpd. The other 192,000 lbs/year ofproduct recovery would have also reduced the ammonia-
12
nitrogen generated in the activated sludge treatment system and subsequently discharged in the
final effluent. The extent ofthis effluent ammonia-nitrogen reduction is related to the nitrogen
content ofthe material, volatility ofthe organic nitrogenpresent, phase that the material is
present (soluble or solid), solubility ofthe material in water, and ease ofbio-hydrolysis ofthe
material. With these factors influencing the fate oforganic nitrogen, Noveon has not attempted to
develop correlations in productrecovery and effluent ammonia-nitrogen. Further, Illinois EPA
completely writes offNoveon’s efforts, again without supporting testimony, by claiming that
Noveon’s efforts were more likely intended to assure compliance with BOD and TSS limits than
reduce ammonia-nitrogen. The fact that Noveon has undertaken these measures and that these
measures have reduced effluent ammonia-nitrogen seems to have no importance to Illinois EPA.
The Board should take no notice of Illinois EPA’s argument, which does not challenge the
relevance ofNoveon’s efforts to the relief requested.
Illinois EPA states that “Noveon has reviewed approximately eight potential post
treatment compliance options.” Resp. Mem. 19. This is incorrect. Noveon has actually
reviewed, treatability tested (where needed), and developed conceptual level designs and cost
estimates for eleven potential treatment alternatives, not eight, and not all were post-treatment
alternatives. Pet. Exs. 7, 11, 13. Illinois EPA further claims that the evidence presented at the
hearing shows that some ofthese alternatives are technically feasible alternatives available for
the treatment ofammonia. Resp. Mem. 21. Noveon believes Illinois EPA is defining technical
feasibility as simply whether a technology can be built. Resp. Mem. 21, citing Tr. 118. But
technical feasibility as considered and testified to by Mr. Flippin involves more than the question
ofwhether a technology can be installed. It also involves reliability, difficulty in operations and
maintenance, costs, and benefits. Using these criteria, all processes considered had reliability
13
concerns, all were costly, none would achieve consistent compliance with the effluent standard
of35 Ii. AUm. Code 304.122(b), and most importantly, would not impact the water quality ofthe
Illinois River. Further, all treatment processes that provide significant ammonia-nitrogen
removal require either salt addition or salt release. The attempt to reduce one effluent toxicant,
ammonia, would increase the concentration ofthe other effluent toxicant, salt, for many ofthe
treatment alternatives. See Pet. Ex. 13, Comparison ofRemoval and Reliability ofEffluent NH3..
N Removal Processes.
Noveon’s expert witness, Houston Flippin, also provided cost information for each
treatment alternative evaluated, using both a ten-year and twenty-year lifespan. Pet. Ex. 13.
Illinois EPA claims that “there are treatments available that could achieve at leastpartial
compliance with 304.122(b) for an economically reasonable cost,” although Illinois EPA
declines to identify the treatments to which it refers. Resp. Mem. 22. Noveon does not agree,
and Noveon submitted ample information to show that treatment alternatives were technically
infeasible, economically unreasonable, orboth, and the costs oftreatment would have an adverse
financial impact on Noveon’s Henry facility and threaten its viability. See Pet. Ex. 11-13, 33,
35.
Illinois EPA tries to criticize Mr. Flippin’s credibility and expertise on the issue ofcost
estimates. Resp. Mem. 22. Such criticisms are baseless and unsupported by any evidence
presented by Illinois EPA. In fact, none ofIllinois EPA’ s witnesses has ever designed
wastewater treatment technology, let alone developed capital and operating and maintenance
costs for such systems.
Mr. Flippin has developed cost estimates throughout his entire 20-year career for
wastewater treatment processes. He has worked with other Brown and Caldwell staff, vendors,
and contractors (as needed) to develop these costs. He has run cost models and done “hands on”
14
cost estimating. For Noveon, Mr. Flippin was responsible for making sure that reasonable cost
estimates were developed for the treatment alternatives. Heused other Brown and Caidwell staff
to gather information and literally run the cost models. Mr. Flippinprovided the information on
which the cost estimates were based, and understood and reviewed the work ofhis staff. As
such, Mr. Flippin was more than competent to testify as the wastewater treatment expert witness
in this case, and his testimony and supporting exhibits went virtually unchallenged at hearing.
Tr. 120-21.
The figures Noveon used to arrive at the cost ofeach treatment alternative were based on
specific, verifiable information that has been provided to the Board. Illinois EPA argues that
Noveon’s figures “serveJ to inflate the capital costs of these alternatives,” yet Illinois EPA
supplied no testimony on this issue. The cost figures used by Noveon were neither intended to
nor resulted in an inappropriate or improperrepresentation ofthe costs that would be incurred by
Noveon for each treatment alternative. Illinois EPA implies that Mr. Flippin should have used a
cost oflabor figure of$22/hour, instead of$40/hour, because Noveon’s hourly workers typically
earn the lower figure. GuyDavids, who provided this figure to Mr. Flippin, explained how the
$40/hour figure was arrived at. Wastewater operators are the most senior staff so their salary is
more than $22/hour. Noveon also contributes to insurance, retirement, and other benefits. Tr.
287-88. To ignore these additional costs per employee would result in an inaccurate picture of
the costs Noveon would incur.
Illinois EPA is also “disturbed” that Noveon has not taken into account that PolyOne
typically contributes approximately 55 percent ofthe cost of operation ofthe wastewater
treatment facility, and states that “it is unreasonable to ask the Board to assume that the former
portion ofthe BF Goodrich plant now owned by a different corporate entity would not contribute
15
significantly to these costs and thereby reduce the economic burden on Noveon.” Resp. Mem.
24. In fact, any assumption to the contrarywould be unreasonable. The cost that PolyOne
currently pays forthe wastewater treatment facility has already been taken into account in the
information supplied by Noveon concerning the financial impact on the Henry Plant ofthe cost
ofvarious treatment alternatives considered by Houston Flippin, because Ms. Shaw used net
figures in her analysis. Tr. 278-79. Illinois EPA entirely ignores the testimony on this point,
which is that PolyOne is not obligated to pay the capital cost of any improvements to the
wastewatertreatment facility or any costs of additional ammonia removal. Tr. 299. Illinois EPA
states without citation that “PolyOne also contributes to the high levels ofammonia in the final
discharge.” Illinois EPA is wrong on this point. This claim ignores the testimony that the
primary source ofthe levels of ammonia found in the effluent is the bio-hydrolysis ofamines
from Noveon’s processes, not from PolyOne, and it is primarily this amine-derived ammonia that
is present in the final discharge, not the small amount ofamount ofammonia discharged from
PolyOne.
Illinois EPA’s Response Memorandum contains an economic analysis originally reported
by Illinois EPA in its Recommendation. As stated above, Noveon believes this argument should
be stricken because an unsupported agency recommendation is not evidence. Even if the Board
considers this argument, and it should not, the Recommendation’s economic analysis was
severely flawed. The Recommendation argued that Noveon’s costs were not economically
unreasonable when considered on a per pound basis, based on the large amounts ofammonia
being removed from the final discharge. Resp. Mem. 20. But the Illinois EPA analysis did not
consider operating and maintenance costs, which represented between 49 percent and 94 percent
ofthe present worth cost (using a 20-year life) depending upon the alternative selected. Pet. Ex.
16
13. The normalized cost for these treatment alternatives range from $1.08/lb NH3-N removed
to $18.90 per pound ofammonia removed (using a 20-year design life) as compared to a POTW
surcharge of $0.12 per pound ofammonia. This is a 9-fold to 157-fold difference. Illinois EPA
did not conduct a proper cost analysis in concluding that the ammonia-nitrogen control options
for the Noveon-Henry Plant are not economically unreasonable.
On the topic of POTWs, Mr. Flippin provided testimony to show that the cost for single
stage nitrification per pound ofammonia removed for Noveon was vastly in excess ofthat for
POTWs. This comparisonwas intended to put the costs Noveon would incur in context,
providing further evidence ofthe economic unreasonableness ofthe various treatment options.
Mr. Flippin cited from his experience the surcharge imposed by the Knoxville Utility District
and that surcharges are intended to recover the cost of treatment. The surcharge rate of$0.12/lb
is 19-fold lower than the present worth cost (20-year design life) required by the Noveon-Henry
Plant to achieve the same treatment (single stage nitrification). Illinois EPA claims, without
citation to any support, that this comparison was “suspect” because a municipality surcharge
takes into account a variety of factors including instituting a disincentive above the usual cost of
treatment to discourage compounds that might overload the plant or a desire to encourage local
industry through provision ofinfrastructure services. Mr. Flippin, however, testified that the
purpose for a surcharge is to recoup costs. Tr. 115-116. Further, even in Illinois, the Illinois
Sanitary District Acts allow a tax “for the purpose ofpaying the costs of operation ofthe
chlorination of sewage, or other means ofdisinfection or additional treatment as maybe required
by water quality standards approved or adopted by the Pollution Control Board or by the court,”
and not as a disincentive. 70 ILCS 2205/17; 70 ILCS 2805/16.
Illinois EPA’ s neglect ofoperating and maintenance costs in its cost comparisons was a
17
gross oversight and produced a biased analysis. Illinois EPA argues that including operating
costs for a 10-year and 20-year life span would have been offset by an attendant decrease in
capital costs. This claim is not supported by testimony but in any case is not accurate. Mr.
Flippin presentedpresent worth cost estimates based on both 10-year and 20-year design basis in
his testimony. Capital costs were presentedthroughout Mr. Flippin’ s testimony as present worth
costs and, as such, did not change as a function of design life.
Illinois EPA also suggests that because nitrification ofPVC tank wastewater would not
generate a negative return on revenue and on net plant, property and equipment, it should be
implemented, even if it would not result in compliance. However, this alternative provided only
an estimated 27 percent reduction in effluent ammonia-nitrogen load, with a reliability rating of
8, so that 20 of the time it would not achieve this ammonia reduction. See Pet. Ex. 13,
Comparison of Removals and Reliability, at Page 1 of 4. Noveon believes the Board has no
reason to require such an inconsistent or substantially incomplete compliance alternative.
Illinois EPA states explicitly that granular activated carbon was dismissed too quickly by
Noveon. Resp. Mem. 20-21. Noveon explained the reason for dismissing this alternative at the
hearing. Tr.
165-67.
IfNoveon dismissed granular activated carbon too quickly, it was because
this treatment method would have required removal oftotal suspended solids from Noveon’s
waste stream prior to placing it through a granular activated carbon column, and would have
required a tremendous amount ofcarbon in the multiple tons per day. Compounding these
problems, because ofthe nature ofthe wastewater, placing it in a carbon colunm would have
caused sliming over ofthe column, as well as scaling from the salt. Tr. 167.
Noveon does not need to provide further reduction in effluent ammonia-nitrogen since it
will meet all water quality criteria with the multiport diffuser it has agreed to install. And the
18
unrefuted testimony from Guy Davids is that, from a business standpoint, the cost oftreatment
would impact the long-term viability ofthis facility, and this facilitywould have a difficult time
attracting new product lines. There is no need to provide treatment for “treatment’s sake” alone.
This is technically unjustifiable.
E.
No Adverse Water Quality Effects Will Result from the Adjusted Standard
As part ofthe relief, Noveon provided expert evidence and verifiable information that the
proposed relief will not have an adverse impact on water quality. Noveon also asked the Board
to provide for a mixing zone. Noveon’s evidence showed that ammonia water quality standards
are met in the Illinois Riverwith the existing diffuser and would be met in a similar downstream
distance with the multiport diffuser, and Illinois EPA’s testimony supports this. The Illinois
EPA’s witness on water quality, Mr. Robert Mosher, concluded that based on water quality data
showing ammonia concentrations at a station down stream from Noveon at levels lower than the
upstream station, it is possible that “the relatively small increase in ammonia concentration
caused by BF Goodrich is naturally nitrified by the time the river flow reaches the next
downstream station.” Illinois EPA Ex. 1 at 3. Similarly, dissolved oxygen in the Illinois River is
currently at ornear saturation and the water quality standard for dissolved oxygen is being met.
Noveon’s expert evidence therefore provided conclusive evidence that the adjusted standard will
not result in environmental or health effects substantially or significantly more adverse than the
effects considered by the Board in adopting the rule ofgeneral applicability. Pet. Ex. 16, at 3.
Illinois EPA’s response on the issue ofwater quality is confusing and contradictory. On
the one hand, Illinois EPA argues that it would not support relief from compliance with Section
304.122(c), which in turn requires compliance with the requirement in Section 304.105 that
Noveon’s effluent may not be permitted to cause a violation of water quality standards. Resp.
19
Mem. at 8, 9. Yet, Illinois EPA later states that “Petitioner nevertheless is asking the Board to go
beyond granting adjusted standard relief from a technology based effluent limit of304.122, to
request a declaratoryjudgnient that the Illinois EPA must accept the mixing zone and ZID
calculated by Noveon and find that the water quality standards will be met.” Noveon believes it
is entirely appropriate for the Board to grant a mixing zone, and indeed, based on the only
credible evidence in the record, the Board must make the finding that water quality standards
will be met. Noveon has presented a substantial and uncontroverted case that no water quality
violation will occur if the requested relief is granted.
Noveon also provided detailed information at the hearing and in its opening brief using
established scientific procedures to show how the mixing zone actually works in the Illinois
River. Given the rapid mixing that physically occurs in the Illinois River, Noveon’s discharge is
effectively dispersed into the Illinois River, and there is no impact to aquatic life from Noveon’ s
discharge. Pet. Ex. 16 at 4, 6. Noveon believes that the standard for an adjusted standard
requires just that: an examination of
actual
environmental and health effects. An understanding
ofthe actual mixing zone is also important because the “regulatory” mixing zone can be
presumed to be intended to get at exactly how mixing zones work in fact. Illinois EPA responds
with concern that a discussion ofthe actual mixing zone might “confuse the reader” with
respect to “regulatory mixing zones.” Resp. Mem. 27. Noveon believes the opposite is true. An
understanding of the actual mixing zone can only serve to assist the Board in understanding why
this regulatory provision is necessary and appropriate, and how it should be applied.
In addition to modeling work, Noveon performed an in-stream study in 1989 to determine
effluent dispersion into the Illinois River using conductivity, or salt, as a surrogate to project
effluent effects on the river. Tr. 218, 219. Illinois EPA claims that Noveon completed no in-
20
stream studies. The claim completely ignores the 1989 work. Resp. Mem. 26. This study
provides additional evidence that Noveon’s discharge has no adverse impact on the river within a
short distance downstream from the existing effluent diffuser.
The purpose ofNoveon’s request for a mixing zone is to provide the condition for the
Board to make the finding that no adverse effects on the environment will result from the
Board’s grant ofan adjusted standard. With respect to the “regulatory mixing zone,” Noveon
meets the requirements at 35 Ii. Adm. Code 302.102 for the Board to grant a mixing zone, and
also meets the requirements of U.S. EPA’s and Illinois EPA’s regulatory guidance documents.
See Technical Support Documentfor Water Quality-Based Toxics Control
(U.S. EPA March
1991) (“TSD”), Hearing Officer Ex. 1;
Illinois Permitting GuidanceforMixing Zones
(April 23,
1999), Ex. to Resp. Mem.
Noveon argued that, with respect to the initial requirement for a mixing zone, Noveon
provides “best degree oftreatment” (BDT) ofwastewater. The prior sections ofthis
memorandum address Noveon’s efforts to address ammonia. The Illinois EPA seems to be
arguing that the Board may not grant a mixing zone because Noveon has done nothing to address
ammonia and therefore does not provide BDT. This is not the case. Noveon has completed
substantial source reduction by reducing amines, and has constructed a fully equipped nitrifying
facility, meeting the technology requirements ofthe Ten State Standards and Illinois regulations
at 35 Il. Adm. Code 307.1210 and 370.920. See Tr. 420. Through no absence of equipment or
flaw in design, the wastewater treatment facility simply does not perform the treatment that it
would absent influent bio-inhibiting compounds. Furthermore, Noveon does provide treatment
at the source to recover product and materials from the production wastewaters. This treatment
does reduce the ammonia in the final effluent. Nitrification is the objective standard for
21
ammonia treatment, and by this fact alone, the Board can find that Noveon is providing BDT.
But Illinois EPA’s claims with respect to how BDT is determined, that a facility must provide
treatment, are incorrect as a matter ofpractice (Noveon does provide treatment) and law.
The determination ofthe Zone ofInitial Dilution (ZID) continues to be a matter of
dispute between the parties. The Board’s regulations require “rapid and immediate mixing.”
See 35 Il. Adm. Code 302.102. The Board’s regulations also state that mixing zones can only
take up to
25
ofthe width ofthe river. Noveon’s proposed ZID meets these requirements.
Illinois EPA has added an additional requirement to the Board’s regulations, claiming that the
ZID is limited to 10 of the
25
allowable width ofthe ZID, by adding a TSD limitation for
ZIDs to 10 ofthe mixing zone on top ofthe Board regulations for ZDs, so that Mr. Mosher
calculates that the ZID is limited to
2.5
percent of the width ofthe river. This results in a ZID of
22.5 feet. Tr. 341-42; 384-87.
Noveon disagrees with Illinois EPA’ s peculiar application ofthe Board’s regulations to
U.S. EPA’s TSD to derive this width limit. Noveon pointed out that its method to calculate
mixing zones is based on Board regulations and has precedent in several past Illinois EPA grants
ofmixing zones in which Noveon’s expert was involved. Illinois EPA claims in its
memorandum that the regulatory mixing zones cited by Noveon were for high-rate multiport
diffusers which meet the 3 mlsec port exit velocity. Resp. Mem. 28, 29. The regulatory
language for both a high-rate multiport diffuser and a diffuser that does not meet the 3 rn/sec port
exit velocity are the same, and they do not allow Illinois EPA to apply a different methodology
or unique interpretation for a single port diffuser. Illinois EPA also claims that it has been very
consistent in its interpretation ofmixing zones over the last 12 years. Resp. Mem. 30. To
evaluate this statement would require extensive investigation, but it does not appear to be the
22
case based on other mixing zones Illinois EPA has granted, as described in Mr. Corn’s testimony
and not refuted by the Illinois EPA. Tr. 221.
Illinois EPA’s most grossly misleading statement is that “if adopted by the Board, the
interpretation ofthe federal TSD used by Noveon would allow for a larger ZID in a smaller river,
while the Agency’s method allows larger ZIDs in larger rivers and the smaller the river the
smaller the ZID.” This is simply false. For small streams, the TSD has a limit ofthe mixing that
can be used for mixing zones with multiport diffusers, and there are other more limiting
requirements for diffusers that meet less than 3 mlsec port exit velocity. TSD, Hearing Officer
Ex. 1 at 70, 71. There are limits on the size in Illinois EPA’s mixing zone guidance document
depending on the size ofthe stream. Resp. Mem. Ex. 1. Noveon’s interpretation is both legally
and factually correct and consistent with protecting small streams.
From a technical stance as well, the protective (conservative) basis ofdevelopment of
water quality criteria and resulting standards use “safety factors,” ensuring that correctly
assigned mixing zones and ZIDs are adequately protective of aquatic life. Illinois EPA, in its
Response Memorandum, repeats Mr. Mosher’s testimony that “when a mixing zone and ZID are
granted, that means the standards won’t be met. The standards are based on toxic effect to
aquatic life.
. .
And when you allow those areas in the river to not meet the standards.
. .
there is
an impact to aquatic life.” Resp. Mem. 29. These statements on mixing zones and ZIDs are not
based on sound science and regulatory practice. The protectiveness to aquatic life is the entire
premise of the U.S. EPA’s TSD. The water quality criteria and resulting standards are developed
in a very prescriptivemanner, using a sufficient database ofmany different aquatic life orders,
families and genera, and are intended to be protective offish, aquatic invertebrates (including
clams and mussels) and even plants. The water quality standards that are developed are also
23
based on fully mixed situations, because toxicityis concentration and exposure time in concert.
To evaluate toxicity you need to look at both together, which the Illinois EPA’s approach fails to
do.
F.
The Toxicity of Noveon’s Discharge Has Been Adequately Assessed by Noveon
At the hearing and in its Response Memorandum, the Illinois EPA also made the
inflammatory and unsupported claim that Noveon’s discharge is “the single most toxic
discharge” to the waters ofthe State. Resp. Mem.
25.
This statement was based only on the
LC5O value. Besides being inflammatory and extremely objectionable, the claim is incorrect.
Toxicity rankings can only be performed if you determinethe toxicity at the edge ofZID and
mixing zones to give the level ofmagnitude oftoxicity on a normalized basis. Since Noveon’s
effluent is going to a large receiving stream, and is subject to considerable mixing, it cannot be
“the most toxic.” Ifso, the Illinois River would have routine fish kills, which no evidence
supports has occurred. Illinois EPA’ s claim is a subjective statement that is not supported by the
data.
Noveon provided information showing that it has performed complete testing to
determine any toxic parameters in its effluent. Testing ofthe toxicity ofNoveon’s discharge was
performed following established U.S. EPA protocol by Mr. William Goodfellow, Noveon’s
expert on toxicity. See Pet. Ex. 29,
Results ofan Acute Toxicity Evaluation,
EA Engineering
(March 1999), and Pet. Ex. 31, Written Expert Testimony ofWilliam L. Goodfellow. The
testing included acute and chronic toxicitytests in two rounds oftesting on Noveon’s effluent, as
well as a Toxicity Identification Evaluation (TIE) on the most toxic ofthe samples taken in order
to characterize and potentially identify the specific toxicant in the effluent. The TIE provides
24
information on organic toxicity, ammonia toxicity, metal toxicity, oxidant toxicity, and reducible
compounds. Tr. 248.
As Noveon reported to Illinois EPA, toxicity in the wastewater as determined by the TIE
was associated not only with ammonia in Noveon’s wastewater, but also with salinity, or total
dissolved solids (“TDS”). Pet. Ex. 31 at 6-8; Tr. 247-48,
253-55.
Illinois EPA has not
addressed the fact that toxicity will remain for salinity even if ammonia could be removed, and
there is no dispute that Illinois regulations do not require treatment for TDS in Illinois, since
technically feasible methods are in general not economically reasonable, and the Illinois EPA
agrees with this. Tr. 398. Pet. Ex. 36.
Mr. Goodfellow concluded that no other toxicants were determined from these standard
test procedures to be “hiding in the weeds.” Tr. 470-71. Illinois EPA’s Response Memorandum
implies that Noveon still does not understand the overall toxicity ofthe effluent and should have
done more testing, citing Mr. Mosher’s testimony that “when you do that kind oftesting
performed by Mr. Goodfellow, you always take the trouble to do a definitive test; you always
bring the dilutions down to the level ofdisappearance oftoxicity.” Resp. Mem.
25.
Mr.
Goodfellow performed the toxicity testing requested by Illinois EPA in the NPDES permit it
issued to Noveon and testing approved and recommended by U.S. EPA. This testing was acute
toxicitytesting. To be even more protective than was required under the NPDES permit, longer
exposure periods and more sensitive endpoints than only survival (growth and reproductive
potential) were used to give better information as to the cause ofthe toxicity. Mr. Goodfellow
testified that his testimony and professional judgment remains that the toxicity is ammonia and
total dissolved solids. No additional toxicitywas observed from heavy metals or organic
compounds as determined in the TIE.
25
The fact that Mr. Goodfellow did not perform the testing sought by Mr. Mosher is moot,
because Mr. Goodfellow was trying to determine the toxicants in the effluent by the process of
parameter elimination or rendering the toxicant biologically unavailable. Mr. Mosher’s claim
that dilutions should be brought down to the level of disappearance oftoxicity is true for
compliance testing, where a test is run at the specific compliance point. The work that was done
by Mr. Goodfellow was not compliance testing. Tr. 251. Mr. Goodfellow did perform the tests
described by Mr. Mosher for the acute testing that was requestedby the Illinois EPA. The
chronic testing was only performed to get an even more sensitive signal oftoxicity for the TIE
and to make sure that the conclusions were very confident in the characteristics ofthe specific
toxicants. Tr. 244-51.
IV.
Conclusion
Noveon asked for the following relief to be granted by the Board:
Noveon, Inc. (“Noveon”) is hereby granted an adjusted standard
from 35 Ill. Adm. Code 304.122. Pursuant to this adjusted
standard, 35 Ill. Adm. Code 304.122 shall not apply to the
discharge ofeffluent into the Illinois River from the Noveon plant
located at 1550 County Road,
850
N., in Henry, Illinois as regards
ammonia nitrogen. The granting ofthis adjusted standard is
contingent upon the following conditions:
A.
Noveon shall not discharge total ammonia nitrogen at
concentrations greater than 225 mg/l from its Henry, Illinois
plant into the Illinois River.
B.
Discharge into the Illinois River shall occur through a
diffuser that is at least 15 ft. in length, with 9 two-inch ports,
angled at 60 degrees from horizontal, co-flowing with the
river, designed to achieve an effluent dispersion of43:1.
Based on a plain reading ofthe regulation and the Board’s opinions adopting Section
304.122(a) and (b), Illinois EPA’s application of Section 304.122(b) to require an effluent limit
was erroneous. The only credible and admissible evidence in the record establishes that Section
26
