BF GOODRICH COMPANY,
)
(HENRY FACILITY),
)
Petitioner,
)
)
V.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
FE!V~
CLERK’S OFF~CE
FE~
-
2
2QO~I
STATE OF
ILLINOIS
Pollution Control Board
NOTICE
OF FILING
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL
60601
Deborah Williams
Assistant Counsel
Division ofLegal
Counsel
Illinois Environmental Protection
Agency
1021 N. Grand Avenue East
Springfield, IL
62794-9276
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL
60601
PLEASE TAKE NOTICE
that on Monday, February 2,2004, we filed the attached
Pre-
Hearing Memorandum
with the Illinois Pollution Control Board,
a copy of which 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
By:
v~5&?
/LLQJ~
One ofIts Attois
BEFORE THE POLLUTION CONTROL
BOARD
PCB 91-17
)
(NPDES Permit Appeal)
)
)
)
THIS FILING IS SUBMITTED ON RECYCLED PAPER
R E C
IV E. D
CLERK’S
OFFICE
BEFORE
TIlE
ILLINOIS POLLUTION CONTROL BOARD
FEB
-
2
21304
Noveon, Inc.
)
STATE
OF ILUNOIS
Pollution Control Board
v.
)
PCB91-17
)
(Permit Appeal)
Illinois Environmental
)
Protection Agency
)
PRE-HEARING MEMORANDUM
Noveon, Inc., 17k/aThe BFGoodrich Company (“Noveon”), through its
undersigned
attorneys and as requested by the Hearing Officer’s Order dated November 6, 2003, respectfully
submits this Pre-Hearing Memorandum in support ofits appeal ofNPDES Permit No.
IL0001 392.
Noveon requests that the Board remand the permit to
rescind the effluent limit for
ammoniawhich the Illinois EPA erroneously included based on the provisions of35 Il. Adm.
Code 304.122.
Noveon also requests that the separation ofoutfalls imposed by this permit for
testing and monitoring purposes be reversed and remanded;
that the toxicity testing and
biomonitoring required by the permit be rescinded, and that the Board remand the permit for
reconsideration ofthe manner ofapplicability offederal regulations governing discharges from
the Organic Chemicals, Plastics, and Synthetic Fiber (OCPSF) facilities.
BACKGROUND
Noveon, Inc.
and PolyOne
Noveon’s Henry Plant is located in Henry, Illinois in northwestern Marshall County.
The
facility was solely owned and operated by the BFGoodrich Company from its initial construction
in 1958 until 1993.
In 1993, the BFGoodrich Company divested the Geon Vinyl Division from
the company and formed The Geon Company (“Geon”), a separate, publicly held company with
operations at a number oflocations,
including at a portion ofthe Henry Plant.
In February 2001,
the BFGoódrich Company sold all the assets ofits chemical business, including the Henry Plant,
and that former BFGoodrich division is now a separate company known as Noveon, Inc.
Today, both Geon (now known as PolyOne) and Noveon continue to operate separate
and
distinct facilities at the Henry site.
The Noveon Henry Plant produces rubber accelerators
and
antioxidants forthe rubber, lubricant and plastic industries.
The rubber accelerators are used in
tires
and other rubber goods to “accelerate” the curing process.
The antioxidants are used to
inhibit the oxidation process in materials such as rubber, jet fuel, greases, oils and polypropylene.
Noveon also produces personal care related products at the Henry Plant.
At its portion ofthe Henry Plant, PolyOne produces polyvinyl chloride (“PVC”) resins.
These resins are sold to a variety ofcustomers including those in the construction, household
frirnishings, consumer goods, electrical, packaging and transportation industries.
While PolyOne
is not a party to this proceeding, its process wastewater is combined with the Noveon wastewater
and treated in the Henry Plant’s wastewater treatment system, which is owned and operated by
Noveon.
In the production ofaccelerators there are several key raw materials:
sulfur, aniline,
carbon disulfide and amines.
The manufacture ofaccelerators is
a multi-step process including
the manufacture of an intermediate (sodium mercaptobenzothiazole).
This intermediate is then
reacted with an amine and otherraw materials to form an accelerator product.
The productis
then isolated through filtration and drying.
There are various types of antioxidants manufactured
by Noveon at the Henry Plant.
In general, the antioxidant processes utilize either diphenylamine
or one ofseveral phenols as a starting material.
The processes in which theseproducts are
manufactured consist ofboth batch and continuous reactors, filtration operations and
solidification.
Ammonia is not a primary ingredient in any ofthe processes carried out by either
2
Noveon orPolyOne nor in the products either company produces.
Ammonia
is not used in any
significant amount in the processes conducted by either Noveon or PolyOne that are the source
ofdischarges to the wastewater treatment plant.
The
Wastewater Treatment Facility
The wastewater treatment system at the Henry Plant is a complex multi-process system
that treats both process wastewater and non-process discharges including stormwater and non-
contact cooling water.
Pretreatment ofcertain process wastewaters is the initial step
in the
treatment process.
The Cure-Rite
1 8® wastewater is pretreated with hydrogen peroxide.
Some
of the PVC wastewater from PolyOne is pretreated by a wastewater stripping system that
removes residual vinyl chloride.
PolyOne also pretreats certain centrate waste streams prior to
discharge to the Henry Plant’s wastewater treatment
system.
Following pretreatment, all process wastewater is collected in equalization tanks prior to
transfer to the primary treatment system followedby the primary clarifier.
After primary
clarification, thewastewater is sent to
activated sludge treatment, to
the secondary clarifier, and
then to
tertiarytreatment.
The non-process wastewater, including non-contact cooling water,
stormwater, water from the boilerhouse demineralizer and water treatment works,
is discharged
to a holding pond.
The non-processwastewater is then either pumped into the primary treatment
system or pumped directly to the sand filter to remove solids prior to
discharge through the
outfall.
Discharge of Treated Effluent
The treated wastewater is discharged through Outfall 001
to the Illinois River through an
18-inch, single-port submerged diffuser into the main channel ofthe Illinois River.
The Illinois
River is
formed at the junction ofthe Kankakee and Des Plaines Rivers near Joliet, Illinois and
3
runs 273 miles west, southeast and south to the Mississippi River, near Grafton, Illinois, which is
a few miles upstream from St. Louis.
The Henry Plant is located between river mile
198 and
199.
The Illinois River at Henry is approximately 875 feet wide, with an approximate
18 foot
maximum depth.
The average depth ofthe river is
11
feet, and ithas a drainage area of
approximately 13,543
square miles at Henry, IL.
The USGS has operated a gauging station at
Henry, Illinois since October 1981.
The available USGS data for this gauge indicate that the
Illinois River at this locationhas an annual mean flow of 15,340 cfs.
The Illinois
State Water
Surveyreports an annual 7-day,
10-year low flow for the river at Henry of3,400 cfs.
Since the
Henry Plant sits 40 to 50 feet above the Illinois River, the effluent enters the river with a great
deal ofvelocity.
This velocitycauses rapid and immediate mixing, resulting in maximum
effluent concentration reductions.
The discharge is of sufficient turbulence to discourage
habitation by aquatic organisms in the area ofthe diffuser.
The effluent from the Henry Plant historically has had an ammonia nitrogen
concentration ranging from 23 to
150 mg/L.1
As a result ofthe various studies conducted by and
on behalfofNoveon, it has been determined that ammonia is generated as a degradation product
ofthe Henry Plant’s wastewater treatment system.
In particular, the degradation ofamines in the
wastewater treatment process produces the ammonia found in Noveon’s effluent.
Renewal ofthe Noveon NPDES Permit at Issue in this Proceeding
On August 30,
1989, Noveon submitted a renewal application forNPDES Permit No.
IL0001392, governing the wastewater discharge from the Henry Henry Plant.
By letter dated
December 28,
1990, the Illinois
Environmental Protection Agency (“Agency”) re-issued a final
In sampling by EA Engineering, one sample did exceed this range, but that sample appears to have been
an anomaly.
4
NPDES permit for the Henry Plant.
Inresponse to
the re-issued NPDES permit, on January 24,
1991, Noveon initiated this timelypermit appeal (PCB 91-17).
Two days ofhearing were conducted on the permit appeal, but the hearing was stayed
prior to Noveon’s completing its case in chiefbecauseNoveon’s expert witnesses was
unexpectedly ill and unable to participate at that time.
Subsequently, Noveon and the Agency
entered into negotiations to resolve the appealed issues.
Noveonhad lengthy discussions with
the Agency, and the parties agreed that the appropriate course ofaction would be forNoveon to
file a variance petition with the Board as to one issue, the permit’s effluent limitation applicable
to ammonia nitrogen, to allow the Henry Plant to
reduce the levels of ammonia in its wastewater
discharge.
The variancepetition was filed but it was subsequently withdrawn due to Noveon’s
conclusion that a variance would not be the appropriate vehicle for Noveon to obtain relief.
Noveon’s studies have concluded that compliance with the standard is not economically
reasonable or technically feasible.
Accordingly, Noveon concluded that itwas appropriate to
also
seek an adjusted standard from the Board for the ammonia issue raised in the permit appeal
in the event the permit appeal is unsuccessful.
Issues Presented by Appeal
There are four issues presentedby Noveon’s permit appeal.
The first issue concerns the
inclusion ofammonia nitrogen effluent limitations that had not been included before in any of
the previouslyissued HenryPlant NPDES permits.
(This question is related to the issue in the
contemporaneous Adjusted Standard proceeding should the Board rule that
35
Ill. Adm.
Code 304.122 was properly applied to Noveon’s NPDES Permit).
At issue in this proceeding is also the question of whether Noveon’s discharge should
properly be characterized as two outfalls.
In the Permit, the Agency characterized the outfalls as
5
Outfall 001
and Outfall OO1A.
Noveon contends that there is only one outfall.
This is true both
ofthe physical nature ofthe outfall and ofthe treatment system.
The discharge is from one
treatment
system, and that treatment system is receiving the best degree oftreatment, as that term
is defined in Illinois regulations, which means one outfall is appropriate.
The third issue on appeal is
the requirement encompassed in Special Condition Six that
Noveon undertake biomonitoring and toxicity studies.
Noveon has undertaken several toxicity
studies that will be presented at the hearing.
Based on these studies Noveon believes that further
toxicity testing and ongoing biomonitoring have not beenjustified by the record.
The final issue on appeal concerns application offederal rules governing discharges from
OCPSF
facilities.
Noveon contends that the Agency has misinterpreted these rules.
First, it
improperly relied upon a monthly average flow to calculate the daily maximum mass limitation.
This is an incorrect interpretation ofhow OCPSF limits are derived.
Second, the Agency erred
in imposing concentration limits for various parameters, because the OCPSF regulations call for
mass limitations.
DISCUSSION
A.
Ammonia Effluent Limitations
Special Condition 4 in the NPDES Permit states as follows:
The permittee shall monitor ammonia as N and report the
lbs/day discharged.
Ifthe 30 day average exceeds 100
lbs/day thenthe effluent concentration shall not exceed 3
mg/L on a 30 day average basis.
Ifthe daily maximum
exceeds 200
lbs/day then the effluent concentration shall
not exceed 6 mg/L on a daily basis.
Illinois EPA based this condition on 35
Il. Adm. Code.
§
304.122(b), which provides as follows:
Sources discharging to the
Illinois River, the Des Plaines
River downstream ofits confluence with the Chicago River
6
System or Calumet River System
and whose untreated
waste load cannot be computed on a population equivalent
basis comparable to that used for municipal waste treatment
plants and whose ammonia nitrogen 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.
Id.
i.
Background of 35 Ii. Adm.
Code 304.122
On January 6,
1972, the Board adopted Rule 406 ofits waterpollution rules, which
limited the ammonia nitrogen level ofcertain dischargers to the Illinois River.
That rule has
since been amended and is now codified at 35
Ill. Adm. Code 304.122.
The rule as promulgated
was specifically intended to reduce the discharge of ammonia nitrogen to the Illinois River from
largedischargers because at the time ofadoption it was believed that those dischargers were
impacting dissolved oxygen at some locations in the river:
The State Water Survey has conclusively
shown that reduction of
ammonia from the larger sources feeding the Illinois River is
necessary if existing standards for dissolved oxygen, essential to
an
adequate fish population, are to be met.
This is exactly the sort of
testimony that is required.
.
.
in order to assure that the water
quality standards are complied with.
In the Matter ofEffluent Criteria, R70-8, p.
12 (Jan. 6,
1972).
The record in R70-8
shows that
the basis ofthe Board’s statement regarding the Water Survey’s “conclusive showing” was a
study entitled Dissolved Oxygen Resources
and Waste Assimilative Capacity ofthe LaGrange
Pool, by Butts, Schnepper and Evans of the Illinois Water Survey.
Subsequent to
the promulgation ofthe effluent standard for certain discharges into the
Illinois River, additional studies demonstrated that a key assumption ofthe original study was
incorrect.
The earlier study assumed that the total oxygen demand upon the LaGrange Pool was
the sum ofthe nitrogenous and carbonaceous oxygen demands.
Later studies demonstrated that
7
there is a third oxygen demand upon the pool, that being the sediment
oxygen demand and that
this demand is the significant one.
See,
e.g., Butts, Evans and Lin Water Quality Features ofthe
Upper Illinois Waterway (1975); Butts Water Quality Assessment and Waste Assimilative
Analysis ofthe LaGrange Pool, Illinois River (1981) and Butts The Impact ofthe Greater Peoria
Sanitary District Ammonia Discharges on Illinois River Water Quality (Nov. 1985).
Because of
that,
the relative impact ofthe ammonia nitrogen discharges upstream ofthe Pool on the
dissolved oxygen levels in the Pool had been greatly overestimated in the original study.
Notwithstanding the change in the underlying scientific basis for the ammonia nitrogen effluent
limit,
35 Ill.
Adm.
Code 304.122 remained in the Board’s regulations as ammonia nitrogen
effluent limitatiOns.
ii.
HistoricalApplication ofRule 304.122:
Estoppel
Notwithstanding these studies and the absence of a prior ammonia nitrogen limitation in
Noveon’s permit, the Agency included an ammonia nitrogen effluent limit in the permit at issue
in this proceeding.
During the mid-1970’s the Agency did raise the applicability of 35 Ill. Adm.
Code 304.122(b) in a draft NPDES Permit for the Henry Plant, only to remove the proposed
ammonia effluent limit and issue a permit without this condition.
Nothing has changed with
respect to the discharge from the Henry Plant that would warrant a change in that Agency
decision regarding the applicability ofthis section.
Subsequent to the Agency’s removal ofthe
ammonia limit, Noveon made decisions with respect to
the plant and its operations based on the
inapplicability ofRule 304.122.
When the Agency attempted to
apply the Rule again in the
permit at issue, no reason was given forthe change in the Agency’s position.
8
Noveon believes that the Agency’s action and Noveon’s reasonable reliance on it meets
the elements ofestoppel under the law.
The absence ofany adverse impact to health or safety if
the rule is not applied further supports estoppel in this case.
iii.
Applicability ofthe Rule
The Agency claimed that the inclusion of an ammonia nitrogen effluent limitation was
based on the regulatory requirements of35
Ill. Adm. Code 304.122(b).
But by the specific terms
ofthis provision, an effluent limit applies only to
sources “whose untreated waste load cannot be
computed on a population equivalent basis comparable to
that used formunicipal waste
treatment plants.”
Id.
It is the Agency’s position that Noveon’s untreated waste load cannot be computed on a
population equivalentbasis comparable to that used for municipal waste treatment plants.
The
Agency’s position is based on its assertion that, while a population equivalent basis can be
computed for Noveon’s untreated waste load,
that waste load is not comparable to the waste load
ofmunicipal waste treatment plants.
Noveon respectfully disagrees with the Agency’s reading
ofthe rule, which is not consistent with the explicit terms ofthe rule.
The Agency has imposed
on the rule a requirement, that the waste loads
be comparable, which is not present in the plain
language ofthe rule itself.
Noveon believes the term “comparable” in the rule modifies the term
“population equivalent basis.”
The purpose ofpopulation equivalents is to describe the relative
size of a wasteload in terms that one can easily relate to and not to describe the treatment
characteristics ofthe wasteload.
Noveon believes that Section 304.122(b) is not applicable because Noveon’s untreated
waste
load can be computed on a population equivalent basis comparable to that used for
municipal waste treatment plants. Ifone based this calculation on flow, BOD, and TSS, as the
9
Agency contends is proper, the correct calculation is, respectively, 916,
19,412, and
24,955
population equivalents.
Further, although not a part ofthe definition ofpopulation equivalents, a
population equivalents basis can also be calculated based on ammonia nitrogen and
Total
Kjeldahl Nitrogen (TKN), which results in values of20,263 and 35,793, respectively.
Since
Noveon’s untreated waste
load can be computed on a population equivalentbasis comparable to
that used for municipal waste treatment plants, and the calculation results in a population
equivalent less than 50,000, the Agency was therefore without basis to include the ammonia
nitrogen limitation in this provision in Noveon’s NPDES Permit.
Further, because Noveon’s untreated waste load can be computed on a population
equivalentbasis comparable to that used formunicipal waste treatment plants, and because that
waste load is less than 50,000 population equivalents, Noveon believes that
35 Ill. Adm.
Code
304.122(a) also does not apply, and does not provide a basis for including an effluent limitation
for ammonia in the NPDES Permit.
This provision reads as follows:
No effluent 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 or more
population equivalents shall contain more than 2.5 mg/L oftotal ammonia
nitrogen as N
during the months ofApril through
October, or 4
mg/L
at
other times.
Consequenly, 35
Ill. Adm. Code 304.122 provides no justification for the inclusion ofan
ammonia nitrogen effluent limit in the permit issue.
iv.
Compliance with Water Quality Standard
With an appropriately calculated zone ofinitial dilution (“ZID”) and mixing zone,
consistent with both Agency and U.S. EPA guidance on mixing zones, the discharge from the
Hemy Plant will meet the summer/winter acute and chronic limitations set forth in the amended
10
ammonia water quality standards.
In Illinois water quality standards must be met at the 7Q10
low flow condition.
Historical river datahas been analyzed by Noveon from various monitoring
stations, including the Agency’s Hennepin, IL and United States Geological Survey (“USGS”)
Fenry, IL monitoring stations to
determine appropriate ambient river parameters to
determine an
appropriate mixing zone.
Field studies have been conducted on the Henry Plant’s discharge to
analyze the in-river mixing taking place.
According to the analysis arising from those field
studies, based on a computed total cross-sectional area, and a maximum plume width of 160 feet
in the river, the effluent plume will require less than
18
ofthe cross-sectional area ofthe total
875 foot width of the Illinois River in the vicinity ofthe Henry Plant fora mixing zone.
In
addition, the 26-acre limitation on mixing zones is easily met by the discharge from the Henry
Plant.
The size of the ZID calculated by Noveon’s consultant is 66.5
feet, with a mixing zone of
a 1,000 feet.
This ZID and mixing
zone will allow the effluent from the Henry Plant to meet
both the summer (April through October) and winter (November through March) acute and
chronic water quality standards at total ammonia nitrogen effluent discharge limits ofno greater
than 189 mg/L for winter and for summer.
B.
Separation ofOutfalls
The second issue on appeal is the proposed separation ofoutfalls prior to sampling.
The
Agency has designated two sample points in the NPDES permit:
Outfall 001
and Outfall OOlA,
instead ofthe single sampling point currently used.
Special Conditions
5
and 7 read as follows:
Special Condition
5:
For the purpose ofthis
permit, outfall 001
is
limited
to
process
wastewater
and
will
serve
as
an
alternate
route
for
waters
discharged normally to outfall OOla.
The discharge will be free from other
wastewater discharges.
Sampling
for the monitoring requirements for the
discharge
shall be taken prior
to
mixing
with
the
discharge from
outfall
OOla.
11
Special Condition 7:
For
the
purpose
of
this
permit,
outfall
OOla
is
limited
to
stormwater,
non-contact
cooling
water,
lime
softening
and
demineralization
waste,
free
from
process
and
other
waste
water
discharges.
Sampling forthe monitoring requirements for this outfall shall
be performed at a point representative ofthe discharge but prior to mixing
with the discharge from outfall 001.
Noveon contends that this separation is inconsistent with the Board’s regulations and not
consistent with the nature ofthe discharge.
There is physically one outfall and only one
discharge to the Illinois River.
All ofthe wastewater streams in the plant are combined and
sampling occurs at a point immediately before the discharge to the Illinois River.
The current sampling point is entirely consistent with Board regulations.
Section 304.102
allows such a sampling point if the permittee is providing the best degree oftreatment.
Putting
aside ammonia, which will be resolved in some
fashion by the Board in this proceeding or the
pending Adjusted Standard proceeding, there is no dispute that Noveon is providing the best
degree oftreatment.
This therefore means that under Section 304.102, waste streams
from the
facility can be combined.
The sampling point has beenpreviously approvedby Illinois EPA in
permits issued before the one subject to this proceeding.
C.
Toxicity
Testing
Noveon has also appealed the condition in the permit that requires Noveon to perform
certain acute toxicity testing and other biomonitoring.
Special
Condition 6 states as follows:
SPECIAL CONDITION 6:
The permittee shall prepare a preliminary plan
for biomonitoring
and
submit the plan to
IEPA for review
and
approval
within
90
days of the effective
date of this
permit.
The
permittee
shall
begin
biomonitoring
of
the
effluent
discharge
within
90
days
after
approval of the biomonitoring plan or other such date as contained in
the
Agency’s notification letter.
Biomonitoring
12
1.
Acute Toxicity
—
Standard definitive acute toxicity tests shall be run on at least two
trophic
levels of aquatic
species
(fish,
invertebrate,)
representative
of the
aquatic
community ofthe receiving stream.
Except as notedhere
and in the IEPA document.
“Effluent Biomonitoring
and Toxicity Assessment” testing
must be
consistent with
Methods
for Measuring the Acute Toxicity ofEffluents to Aquatic Organisms EPA-
600/4-85-013.
Unless
substitute
tests
are
pre-approved;
the
following
tests
are
required:
a.
Fish
-
96
hour
static
LC50
Bioassay
using
one
to
four
week
old
fathead
minows
(Pimephales promelas).
b.
Invertebrate 48-hour static LC50 Bioassay using Ceriodaphnia.
2.
Testing Frequency
—
The above tests
shall be conducted
on a monthly basis
for six
months
within 90
days following approval of the biomonitoring plan or other such
date as
contained
in
the Agency’s
notification
(approval)
letter.
Results
shall be
reported according to
EPA/600/4-85/014,
Section
10,
Report Preparation,
and
shall
be submitted to IEPA within
1
week ofbecoming available to the permittee.
Concurrent with
at least one of the
above tests,
the permittee
shall monitor
for the
priority pollutants identified in Appendix B of40 CFR 403.
Should
the results
of two
months of sampling
indicate toxicity for each month, the
permittee should re-evaluate whether additional
sampling is warranted.
The Agency
should be contacted at that time.
Toxicity
Assessment
—
Should
the
review
of
the
results
of
the
biomonitoring
program identify toxicity, the Agency may require that the permittee prepare a plan
for
toxicity
reduction
evaluation
and
identification.
This
plan
shall
include
an
evaluation to determine which chemicals have a potential for being discharged in the
plant wastewater, a monitoring program to
determine their presence or absence and
to
identify
other compounds
which
are not
being removed by
treatment,
and
other
measures
as
appropriate.
The
permittee
shall
submit to
the Agency
its
plan
for
toxicity reduction
evaluation within
90
days following notification by
the Agency.
The
permittee
shall
implement
the
plan
within
90
days
or
other
such
date
as
contained in a notification letter received from the Agency.
This condition would essentially require that Noveon conduct extensive investigation to
determine what is
“toxic” in its effluent and if any of those parameters exist, conduct an
investigation to reduce or treat those parameters.
Noveon has already performed extensive
13
investigation, and further testing is unwarranted and duplicative.
Noveon believes that this
requirement for additional testing is not necessary in light of the fact that Noveon has sought a
mixing zone and ZID, and there will be adequate mixing
so that Noveon’s discharge will not
cause any violation ofwater quality standards downstream ofthe plant.
Therefore, Noveon
believes this condition should be deleted and the Agency should be directed to consider the need
for it in light ofthe mixing zone and the ZID.
D.
Mass Limits for OCPSF Chemicals
The permit also included load (or mass) limits and concentration limits for each ofthe
chemical parameters in the OCPSF regulations promulgated by U.S. EPA and found at 40 CFR
Part 414.
Noveonbelieves that Agency’s calculation ofthese limits was erroroneous based on
the facility’s average monthly flow rather than maximum flow, resulting in a limit that does not
account forthose fluctuations in flow that fall above the average and is therefore likely to result
in exceedances.
The OCPSF regulations provide a calculation for “quantity (mass) determined by
multiplying the process wastewater flow subject to this subpart times the concentration” listed in
the applicable table, and eachtable provides maximum daily and monthly averages.
See, e.g., 40
CFR
§~
414.81, 414.91.
So the regulations provide direction to
look at a concentration list for a
given parameter, determine the process flow for the specific process, and use a factor to
determine the mass limitation for that process.
Although Noveon providedmaximum flow to the
Agency, it used the average flow to calculate the monthly average.
The Agency used a
concentration limit for a 30 day average
for each chemical parameter and multiplied that by the
30 day average flow, resulting in a number not representative ofthe Henry Plant’s
actual
discharge.
14
Effluent limits in permits are intended to set a ceiling on discharges of a certain regulated
parameter.
But effluent limits based on average flow in essence assure an excursion over the
limit, because an average flow calculation is not intended to and does not account for normal
fluctuations in flow.
Noveon’s production involves batch processes thus wastewater flow is not
even and it fluctuates;
Ifa higher flow occurs where concentration is nearthat allowed by
regulations, an excursion over the load limit could occur.
CONCLUSION
Noveon requests that the Board remand the permit to Agency to reissue a permit
consistent with the plain meaning of35
Il. Adm. Code
§
304.122, which does not authorize
imposition ofan effluent limit for ammonia.
Noveon also requests that the separation ofoutfalls
imposed by this permit for testing and monitoring purposes be reversed and remanded with
instructions
to
issue a permit that requires one testing point consistent with the physical nature of
the discharge.
Noveon requests that the condition imposing toxicity testing and biomonitoring
be deemed duplicative and unnecessary, with directions to rescind it.
Finally, Noveonrequests
reconsideration ofthe Agency’s calculation ofmass limits and imposition ofconcentration limits
under the OCPSF regulations.
Respectfully submitted,
NOVEON,
INC.
By:
~¼
£L14
One ofIts Attomey~7
Richard J. Kissel
Mark Latham
Sheila H. Deely
GARDNER CARTON & DOUGLAS LLP
191 N. Wacker
-
Suite 3700
Chicago, IL 60606
CI-102/22282328.I
15
CERTIFICATE OF SERVICE
The undersigned certifies that a copy ofthe foregoing Notice
of Filing and Pre-Hearing
Memorandum
was filed by hand
delivery with the Clerk of the Illinois Pollution Control Board
and served upon the parties to whom said Notice is directed by first class mail,
postage prepaid,
by depositing in the U.S.
Mail at
191
N. Wacker Drive,
Chicago, Illinois on Monday, February
2, 2004.
CHOI/12236407.1
