vs.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
)
TO:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100
W. Randolph, Suite
11-500
Chicago, Illinois
60601
NOTICE
OF FILING
Mark Latham
Richard Kissel
Gardner, Carton, & Douglas
191 North Wacker Drive, Suite 3700
Chicago, Illinois
60606
FEB~42004
BradleyP. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson
Center
100 W. Randolph, Suite 11-500
Chicago, Illinois60601
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe
Pollution Control Board the attached Respondent’s Prehearing Memorandum of the Illinois
Environmental Protection Agency, a copy ofwhich is herewith served upon you.
ENVIRONMENTAL PROTECTION AGENCY OF THE
STATE OF ILLINOIS
~
1~~’t~
Deborah J. W(!$ams
Assistant Counsel
Division ofLegal Counsel
DATED:
February 2,
2004
Illinois Environmental Protection Agency
1021 N. Grand Ave. East
P.O. Box
19276
Springfield,
Illinois 62794-9276
THIS
FILING
IS SUBMITTED
ON RECYCLED PAPER
ION CONTROL
BOARD STATE
OF ILLINOIS
BEFORE THE ILLINOIS POLLUT
Control
Board
NOVEON,
INC. f/k/a
BF GOODRICH
)
)
PCB91-17
CORPORATION,
(Henry Facility),
)
(NPDES
Permit Appeal)
)
Petitioner,
)
)
)
F~ECE~~1ED
CLERK’S OFFICE
FEB
42004
BEFORE THE ILLINOIS POLLUTION CONTROLBO~~~9~d
)
NOVEON, INC. f/k/a BF GOODRICH
)
CORPORATION, (Henry Facility),
)
PCB
9 1-17
)
(NPDES Permit Appeal)
Petitioner,
)
)
vs.
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
RESPONDENT’S PREHEAJUNG MEMORANDUM
NOW COMES the Respondent, ILLiNOIS
ENVIRONMENTAL
PROTECTION
AGENCY (“Illinois EPA”
or
“Agency”), by
one ofits
attorneys, Deborah
J. Williams, and
pursuant to the Hearing Officer’s orders of November 6, 2003
and
January
15,
2004,
submits
its
Pre-Hearing Memorandum in the above-captioned permit appeal
and states as follows:
PROCEDURAL HISTORY
On December 28,
1990, the Illinois EPA issued a renewal ofthe National Pollutant
Discharge Elimination System (“NPDES”) permit number 1L0001392 to Petitioner’s Henry,
Illinois manufacturing facility. At that time, the facility was owned and operated by BF
Goodrich.
Currently, the permitted facility is owned and operated by Noveon, Inc.
and
hereinafier Petitionerwill be referred to as Noveon.
On January 24, 1991, Petitioner filed an appeal with the Pollution Control Board
(“Board”) pursuant to Section 40(a) ofthe Environmental Protection Act (“Act”) ofthe issuance
ofNoveon’s renewal permit.
415
ILCS
5/40(a).
An amended Petition adding one additional
basis for appeal was submitted on January28,
1991
and received by the Board on February 4,
1991.
The Agency submitted its Answer
and Record in this matter on September 19,
1991.
Discovery was conducted consisting of Petitioner deposing two Illinois
EPA witnesses (Richard
Pinneo and Tim Kluge) and propounding written interrogatories on the Illinois EPA which were
answered on October 29,
1991.
A hearing was scheduled by Hearing Officer
Richard T. Sikes
and held
on November 19,
1991 in the Marshall County Courthouse.
Due to the unavailability ofa witness for Noveon, Dr.
James Patterson, the hearing was continued to December 16,
1991.
Petitioner claimed Mr.
Patterson was to testif~i
as an expert in ammonia treatment technology.
Hearing Transcript
(“Trans.”) at p.
10.
Counsel for both parties appeared at the December 16,
1991
hearing and
indicated to the Hearing Officer Elizabeth Handzel that they believed they had reached a
tentative
settlement in this matter and requested that the hearing be suspended.
December 16,
1991 Hearing Transcript at p.
165.
The parties indicated that documents outlining the settlement
and requesting further action from the Board would be filed.
In the intervening decade, a Petition for Variance was filed by Petitioner in
1992 and a
motion to
voluntarily withdraw that Petition was granted by the Board on June 20, 2002.
See,
PCB Docket 92-167.
An adjusted standard petitionwas filed just prior to Petitioner’s motion to
withdraw its Variance Petition on May 22, 2002.
As the parties have been unable to
reach
settlement since that time, this Permit Appeal proceeding has been rescheduled for hearing to
begin on February 17, 2004 to be followed by a hearing on Noveon’s Adjusted Standard Petition
in docket AS 02-05.
At the November 19,
1991 hearing, the Petitioner gave an opening statement and
2
Respondent reserved opening.
Trans. at p.
11.
Petitioner called three witnesses:
Ken Willings
ofNoveon and two Illinois EPA employees
-
Richard Pinneo
and Tim Kluge.
The Agency began
its case by a direct examination ofTim Kiuge.
Petitioner will be calling Houston Flippin rather
than Dr.
Patterson at the February 17, 2004 hearing.
The Hearing Officer ruled that the Illinois
EPA would be given the opportunity to reopen its case in chieffollowing presentation ofthe
remainder of Petitioner’s case in chiefat the continued hearing.
Trans. at p.
149.
The Illinois
EPA expects to pick up its
case by calling Richard Pinneo and possibly Robert Mosher on direct
examination.
As in the initial hearings, Richard Piimeo will assist counsel for the Illinois EPA as
the Agency’s primary technical advisor at the permit appeal hearing.
BACKGROUND
ON
PETITIONER’S FACILITY
Noveon’s Henry, Illinois Plant is located on 1550 County Road,
850 N. in northwestern
Marshall County.
This facility was owned and operated by BFGoodrich until 1993.
At that time,
part of the facilitywas divested to
form The Geon Company and is now known as PolyOne.
The
PolyOne portion ofthe former BF Goodrich facility manufactures poly-vinyl chloride resins and
compounds.
Trans.
at p. 28.
The resins are used primarily by the medical industry for blood
bags and other medical equipment while the compounds are used in the construction industry for
house siding and vertical blinds.
Trans.
at 29.
In 2001, the remainderof the Henry facility was
sold by BFGoodrich and is now known as Noveon.
Noveon’s portion ofthe former BF Goodrich
facility produces specialty polymers and chemicals used either as rubber accelerators in the tire
curing process or production of anti-oxidant additives to prevent degradation ofpolyethelene for
the rubber, lubricant, and plastic industries.
Trans. at 30.
Noveon operates the wastewater
treatment facilities for both PolyOne’s and Noveon’s productions processes.
Recommendation
3
ofthe Illinois EPA in AS 02-05 (“Rec.”) at p. 2.
Noveon treats 360, 000 gallons per day from PolyOne and
180,000 gallons per day from
Noveon’s operations.
Process and non-process water discharged per day is approximately
800,000 gallons.
Rec. at p.
3.
Effluent monitoring is currently conducted after all wastestreams
from both plants are combined.
The wastewater treatment system treats process wastewaterfrom
both plants, as well as stormwater and non-contact cooling water.
Treatment begins with pre-
treatment (separate for Noveon and PolyOne), process water then goes to
separate equalization
tanks while stormwater and utility waters go to holding ponds.
This is followed by primary
treatment and a primary clarifier.
Solids are then sent to a collection tank and are dewatered in a
filter press and sent to
a landfill.
Primaryclarification is followed by activated sludge treatment
in fourbiotreators to degrade the organic matter.
Finally, the wastewater is sent to a secondary
clarifier followed by tei~tiary
treatment that consists of polishingby a travelingbridge sand filter.
The discharge from the City ofHenry’s publicly owned treatment works
(“POTW”) combines
with Noveon’s effluent and is discharged through Noveon’s outfall to the Illinois River.
Noveon’s Outfall 001
is located on the Illinois River between river mile
198 and
199. According
to Noveon, the 7-day,
10-year low flow for the Illinois River at Henry, Illinois is
3,400 cubic feet
per second. Rec. at pp. 3-4.
According to Petitioner, the major source of ammonia in its
wastewater is generated from the destruction of amine compounds in the secondary treatment
activated sludge portion ofthe wastewater treatment process.
Trans. at 33.
There is no dispute
in the Record that Noveon’s discharge ofammonia nitrogen to the Illinois River clearly exceeds
100 pounds per day (“lbs/day”).
Trans. at p. 68.
4
ISSUES ON APPEAL
Noveon’s initial
filings in this matters appealed several Special Conditions in the
1990
NPDES permit which will be explained in more detail below.
As
explained by Petitioners at
hearing, essentially, the Petition challenges four distinct aspects ofthe permit:
applicability of
ammonianitrogen effluent limits, biomonitoring requirements, separation of outfalls for
sampling purposes and interpretation ofthe federal Organic Chemicals, Plastics, and Synthetic
Fiber (“OCPSF”) regulations.
An issue was raised in the initial pleadings regarding
establishment of a mixing zone for copper that has thus
far not been addressed further in the
pleadings or at hearing and the Respondent assumes that matterhas been resolved.
Applicability
of 35 Iii. Adm.
Code 304.122(b)
At the core ofthis dispute for both parties is
the applicability to the Petitioner ofthe
Board’s effluent limitations for ammonia nitrogen dischargers contained in 35
Ill. Adm.
Code
304.122.
Noveon has specifically appealed Special Condition
4 of its NPDES permit which
requires monitoring and reporting ofPetitioner’s ammonia discharge.
Special Condition 4
provides that if monitoring demonstrates a 30-day average ammonia loading in Noveon’s effluent
greater than 100
lbs/day, Petitioner is required to comply with a 30-day average ammonia
concentration of3 milligrams per liter (“mg/l”).
Ifthe daily maximum loading of ammonia
exceeds 200 lbs/day, Petitioner is limited to a daily maximum concentration of6 mg/l.
This
Special Condition is based on the effluent limitations contained in 35 Ill. Adm. Code 304.122
which provides:
a)
No effluent from any source which discharges to the Illinois River, the Des
Plaines River downstream ofits confluence with the Chicago River System or the
Calumet River System, and whose untreatedwaste
load is 50,000 ormore
population equivalents shall contain more than
2.5
mg/L oftotal ammonia
5
nitrogen as N during the months ofApril through October, or 4 mg/L at other
times.
b)
Sources discharging to
any of the above waters and whose untreated waste load
carmot be computed on a population equivalent basis comparable to that used for
municipal waste treatment plants and whose total ammonia nitrogen as N
discharge exceeds 45.4 kg/day (100 pounds per day) shall not discharge an
effluent ofmore than 3.0 mg/L of total ammonia nitrogen as N.
c)
In addition to the effluent standards set forth in subsections (a)
and (b) ofthis
Section, all sources are subject to
Section 304.105.
The Illinois EPA placed the particular Special Condition in Noveon’s permit based on subsection
(b) of304.122 which applies to dischargers whose “untreated waste load cannot be computed on
a population equivalentbasis comparable to that used formunicipal waste treatment plants.”
Petitioner supported the appeal ofthis condition with two alternative arguments.
First,
the Illinois EPA had not imposed this condition on the Petitioner’s facility previously and should
somehow be estopped by law from doing so because the language ofthe regulation has remained
unchanged.
As part of this argument they also appear to assert that the rule itself is based on a
dissolved oxygen requirement or standard and that the Henry Plant discharge has no impact on
the dissolved oxygen levels in the Illinois River.
Second, Petitioner argues that this section is not
applicable because its wasteload “can be
computed on a population equivalent basis” and therefore subsection (a) should apply.
Under
subsection (a), Petitioner claims no
effluent limit would attach based on the allegation that
Noveon’s influent has a P.E. ofless than 50,000.
In
response, the Illinois
EPA has made no finding as to whetherNoveon’s P.E. value is
greater than or less than 50,000, because it argues that thePetitioner’s wasteload is clearly not
“comparable” to
that ofmunicipal waste treatment plants and a P.E. calculation forNoveon’s
6
discharge would not result in a meaningful value.
Petitioner correctlystates the Agency’s consistent position on this
issue in its
initial filing
when it states “However, the Agency contends that because BF Goodrich’s effluent is dissimilar
to domestic waste,
even though a P.E. can be calculated for the discharge, P.E. calculations are
meaningless and Section 304.122(b) should
apply.”
Petition for Permit Appeal at 3-4.
Petitioner
offers no support in fact, law or history for its contention that since a P.E. value can be calculated
for the waste, then 304.122(a) must apply.
Illinois EPA maintains that Noveon’s wastestream is
exactly the type ofdischarge the Board had in mind when it adopted a separate section for
wastestreams not comparable to municipal waste treatment plants.
Trans. at
152.
Separation of Outfalls and Best Degree ofTreatment
Petitioner has also appealed Special Conditions
5
and 7 ofits
1990 NPDES permit.
These conditions outline the separation ofOutfall 001 from Outfall OOla and require the separate
wastestreams to be monitored prior to
mixing them together and discharging them to the Illinois
River.
Under the
1990 permit, the illinois EPA required separate sampling ofthe process
wastewater from the non-contact cooling water, limesoftening and demineralization waste.
The
basis for Petitioner’s appeal ofthis condition appears to be that Noveon has always been allowed
to sample its waste after mixing
and since the regulations have not changed, this practice should
be allowed to continue.
Petition at
5-6.
In addition, Noveon seems to claim
that its Outfalls can
be combined and tested as one Outfall because the best degree oftreatment is
already being
employed.
The Illinois EPA has held that this separation ofOutfalls is necessarybased on
changes in the Petitioner’s treatment processes and the need to determine whether Petitioner is in
compliance with the best degree oftreatment requirements of35
Ill. Adm. Code 304.102.
That
7
provision prohibits the use ofdilution to achieve compliance with numerical effluent limitations
orwater quality standards
and leaves discretion to the Illinois EPA to determine whether
segregation ofwastestreams is appropriate and whether best degree of treatment is being met.
Toxicity Testing and Biomonitoring
Noveon has appealed Special Condition
6 in its NPDES permit which requires acute
toxicity tests and other biomonitoring.
The provision also contains a toxicity reduction and
evaluation (“TRE”) provision.
Petitioner claims “BF Goodrich has conducted numerous toxicity
tests at the Agency’s request in response to this and previous permits.
BF Goodrich has no
knowledge or documentation that, to
date, the Agency has established any effluent limits based
upon the results ofthese tests.
To require additional testing would be duplicative, costly and
would
impose an undue burden on BF Goodrich.”
Pet at p.
9.
The Illinois EPA has explained
that these conditions are placed in Noveon’s permit as a response to
and result ofthe
establishment of ammonia effluent limits to reduce the ammonia levels in Noveon’s discharge.
Prior biomonitoring tests were required to determine the toxicity ofammonia levels while
subsequent tests would be necessary to determine whether extremelyhigh levels of ammonia
have been masking the toxicity ofother compounds in Noveon’s discharge.
Petitioners
objection to this Special Condition and the Illinois
EPA’s basis for its
inclusion are linked closelyto the parties arguments regarding the applicability ofthe ammonia
effluent limits.
The basis for this requirement in the renewal permit pursuant to 35 Ill.
Adm.
Code 309.103(a) is essentiallythat once ammonia levels are reduced, it will be necessary to test
the resulting effluent to determine whether ammonia toxicitywas masking additional
compounds
in the discharge that were also toxic.
However, if the Board determines that Noveon is not
8
required to reduce the ammonia levels in its discharge, Petitioner is correct that requiring
additional biomonitoring would be unnecessary.
Additional biomonitoring ofNoveon’s current
discharge would only reconfirm the undisputed results ofthe testing performed under previous
permits that demonstrated the lethality ofNoveon’s discharge to aquatic life.
Applicability and Interpretation of OCPSF regulations
Finally, Noveon has appealed the limitations in its NIPDES permit derived from the
Organic Chemicals, Plastics, and Synthetic Fiber guidelines promulgated by U.S. EPA.
40 CFR
Section 414.90
et seq.
Petitioner admits these requirements apply to
its facility but alleges two
mistakes by the Illinois EPA in the application ofthese requirements.
First, they claim the
Illinois EPA is in error for using monthly average flow datarather than daily maximum flow
values to calculate the daily maximum mass limitation.
Second, Noveon alleges the Agency
improperly imposed concentration limits when the basis for the OCPSF guidelines is a mass
limitation. The Illinois EPA has argued that its implementation ofOCPSF regulations is based on
guidelines published by U.S. EPA found in “Development Document for Effluent Limitations
Guidelines and
Standards for the Organic
Chemicals, Plastics and
Synthetic Fibers Point Source
Category,” U.S. Environmental Protection Agency Industrial Technology Division, Officç of
Water Regulations and Standards,
EPA 440/1-87/009
(October
1987).
With regard to using monthly average flow data, the Illinois EPA argues that page IX-lO
ofthat guidance document instructs the permit writer to utilize the
“annual average process water
flow to
convert the concentration-based limitations into mass-based limitations.”
The Illinois
EPA determined that monthly values were muchmore representative of the long-term values
recommended by U.S.
EPA than daily values.
9
With regard to the imposition ofconcentration limits, the Illinois EPA will
argue that the
Development Document for the OCPSF regulations identifies on page IX-lO that “the Agency
promulgated concentration-based limitations for seven subcategories.”
Although U.S. EPA
furtherexplains that the concentration limits
are to be utilized
to
determine mass-based load
limits utilizing the annual average flow, the guidance does not specifically exclude the inclusion
ofthe concentration-based limits.
Additionally, the Illinois EPA will argue that concentration-
based limits can be included in the permit as a best professional judgment limit as allowed under
40 C.F.R.
125.3(a)(2)
and 35
Ill.Adm.Code 309.143.
Water Quality Based Effluent Limits for Copper
Noveon’s initial permit appeal raised the issue ofthe Agency’s alleged failure to
establish
a mixing zone and zone of initial dilution (“ZID”) for Noveon’s discharge prior to placing acute
or chronic water quality based effluent limits for copper in Noveon’s final permit.
In a
memorandum dated November 28, 1990, Bob Mosher ofthe Illinois EPA did establish a ZID and
a water quality based effluent limit for copper.
Agency Record at 22-23.
As a result ofthis
change, the final permit contained an effluent limit of0.215
mg/l rather than the 0.040 mg/i that
would have been applied without the ZID.
As Noveon has not raised this issue again or
at
the
1991
hearing, the Illinois EPA believes this initial basis for appeal has been resolved.
CONCLUSION AND STANDARD
OF
REVIEW
Based on the background and procedural history outlined above, hearings in this matter will
continue the presentation initiated in November of 1991
and complete the record for the appeal
ofNoveon’s 1990 NPDES permit.
The completion ofthe Record will allow the Board to
make a
determination whether the Petitioner has met its burden ofproofto demonstrate that based on the
10
information provided in Noveon’s permit application and available to the Illinois EPA at the time
the determination was made, the requested permit would not have resulted in a violation ofthe
Environmental Protection Act or Pollution Control Board regulations.
Browning-Ferris
Industries ofIllinois, Inc.
v. Pollution Control Board,
179 Ill.App.3d
598,
601,
128 Ill.Dec. 434,
534 N.E.2d 616, 619
(1989);
JolietSand & Gravel Company v. IEPA & IPCB,
163 Ill.App.3d
830, 516 N.E.2d
955
(3d Dist.1987);
IEPA v. IPCB,
118 Ill.App.3d 772,
455
N.E.2d 189 (1984);
Oscar Mayer & Co.
v. IEPA,
PCB 78-14 (June 8, 1978);
IEPA v. Allaert Rendering, Inc.,
PCB
76-80 (September 6,
1979); and
City
ofEast Moline v. JEPA,
PCB 86-218 (September 8,
1988).
Deborah J. Willia
Assistant Counsel
Division ofLegal Counsel
DATED:
February 2,2004
Illinois Environmental Protection Agency
1021
N. Grand Ave. East
P.O. Box
19276
Springfield, Illinois 62794-9276
THIS FILING
IS
SUBMITTED
217/782-5544
ON RECYCLED PAPER
11
)
STATE OF ILLINOIS
COUNTY OF
SANGAMON
)
)
SS
)
)
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the attached,
Respondent’s Prehearing
Memorandum, ofthe Illinois Environmental
Protection Agency upon the person to whom
it is directed,
by FACSIMILE and by placing
a copy in an envelope addressed to:
Dorothy
M.
Gunn, Clerk
Illinois
Pollution Control Board
James R.
Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois
60601
Bradley P.
Halloran, Hearing Officer
Illinois
PollutionControl Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois
60601
Mark Latham
Richard Kissel
Gardner, Carton
and Douglas
191
North Wacker Drive,
Suite 3700
Chicago, Illinois
60606
and mailing it by First Class
Mail from Springfield,
Illinois on
February 2,2004 with
sufficient postage
affixed.
SUBSCRIBED AND
SWORN TO BEFORE ME
I
‘~
/
~-i,i
this 2nd day
of February 2004
~
Notary Public
OFFICIAL
SEAL
BRENDA
BOEHNER
:~
NOTARY
PUBLIC.
STATE
OF
ILLINOIS
~:MVC9MMIS~St9~
EXPIRES
i1.14~20O5~
THIS FILING
IS SUBMITTED
ON RECYCLED PAPER
