R~ECE~VEO
LERKS OFFICE
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
~
202004
Noveon, Inc.
V.
Illinois Environmental
Protection Agency
)
)
)
)
)
)
PCB 91-17
(Permit Appeal)
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
Wednesday, October 20,
2004, we filed the attached
Motion
for Reconsideration
and Oral
Argument with
the Illinois
Pollution Control Board,
a
copy ofwhich is herewith served upon you.
Richard J. Kissel
MarkLatham
Sheila H. Deely
GARDNERCARTON & DOUGLAS LLP
191
N. Wacker Drive
—
Suite 3700
Chicago, IL
60606
312-569-1000
Respectfully submitted,
NOVEON,
INC.
By:
~hi~’
One of
THIS FILING IS SUBMITTED ON RECYCLED PAPER
RECE~VED
CLERK’S OFFICE
OCT 202004
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
Pollution Control Board
NoVeon, Inc.
)
)
v.
)
PCB91-17
)
(Permit Appeal)
illinois Environmental
)
Protection Agency
)
MOTION FOR RECONSIDERATION AND
ORAL
ARGUMENT
Noveon, Inc.
(“Noveon”), by its attorneys Gardner Carton & Douglas LLP, respectfully
submits this Motion for Reconsideration ofthe September 16, 2004 Opinion and Order ofthe
Illinois Pollution Control Board (“Board”) regarding Noveon’s NPDES Permit Appeal.
The
Board’s decision addressed threepermit
limitations and conditions
appealed by Noveon, on all of
which the Board ruled against Noveon.
The Board’s rules governing motions for reconsideration
allow the Board to consider factors such as new evidence, a change in the law, or any other
factor if a motion is timely filed with 35 days after the date ofthe Board’s Opinion and Order.
Ii.
Adm. Code
101.520, and 101.902.
Noveon submits this motion because the Opinion rejecting
Noveon’s permit appeal did not properly interpret or apply the law in this proceeding and
accepted factual errors raised by the Illinois EPA.
To assist the Board in understanding the extensive record and Noveon’s positions in the
Permit Appeal, Noveon respectfully moves for oral argument on the merits ofthe issues raised in
this motion.
See 35
Il. Adm.
Code 700.
The wastewater produced as a result ofNoveon’s
production process is unique, and Noveon’s Permit Appeal involves complicated questions of
fact and law.
Further, the Board stated in its Opinion that it has not previously issued an
interpretation of Section 304.122(b) ofthe Board’s rules, by which Illinois EPA seeks to
impose
an ammonia limitation.
Finally, Noveonrequests that the Board issue contemporaneous rulings on this motion
and Noveon’s pending Petition for an Adjusted Standard, PCB AS
02-5,
so that Noveon
understands the outcome ofthe adjusted standard proceeding before deciding what steps it needs
to take to ensure compliance with all
laws and requirements.
I.
Burden of Proof and Standard ofReview.
As an initial matter, the burden ofproof imposed upon Noveon in the Permit Appeal was
inconsistent with that set forth in the Illinois Environmental Protection Act
(“Act”).
The Board’s
decision cites the Act to conclude that Noveon had to prove that a permit condition would
violate
either the Act orBoard regulations.
This is inaccurate, imposes a heavier burden on Noveon,
and is different from the statutory requirement, which under the Act requires Noveon to
show
that Illinois EPA’s decision is against the manifest weight ofthe evidence.
See
415
ILCS
5/40(a)
and 41(a).
Section
3 9(b) ofthe Act requires Illinois EPA to show that the permit’s “terms and
conditions are required to accomplish the purposes and provisions ofthe Act.”
415 ILCS
5/39(b).
Noveonhas met its burden ofproving that, where Illinois
EPA made the required
determination, Illinois EPA’s determination was against the manifest weight ofthe evidence.
Noveon has shown that,
as a matter of law, Illinois EPA’s decisions with respect to
imposition ofan ammonia limitation, the need for toxicity testing, and separation ofthe outfalls
are not necessary to accomplishthe purposes
and provisions of the Act.
With respect to
ammonia, Illinois EPA’s imposition ofeffluent limitations that are not derived from water
quality criteria must be authorized by and consistent with properly promulgated regulations.
Illinois EPA’s contorted reading ofthe Illinois regulation governing ammonia in effluent
discharges to certain waterways is manifestly contrary to that regulation.
The ammonia
limitation is not necessary to accomplish the purposes ofthe Act orBoard regulations and must
2
be overturned.
In addition, because an ammonia limitation is not necessary or authorized,
neither is toxicitytesting necessary to accomplish the purposes ofthe Act, and Illinois EPA is on
record in concurrence with this position.
Finally, as discussed in more detail later in Section III,
with respect to separation ofthe outfalls, Noveon has also met the burden ofproofto show that
Illinois EPA’s conclusionthat separation was necessary to accomplish the purpose ofthe Act is
against the manifest weight ofthe evidence.
II.
An Ammonia
Limit Is Not Necessary
to Accomplish the Purposes of the Act.
A.
Estoppelin Application ofAmmonia Limitation.
Throughoutthis proceeding, Noveon arguedthat it was a long-standing interpretation of
Illinois EPA that no ammonia limitation was required forNoveon’s discharge, and this
interpretationwas reflected in the Illinois EPA’s issuance ofNPDES permits for a long span of
years without an ammonia effluent limitation.
These prior permits
are in the record, and they
constitute affirmative acts that,
to the extent Illinois EPA now claims a consistent position on the
application ofSection 304.122(b), are misrepresentations.
The Opinion states that the Agency has consistently interpreted Section 304.122(b) to
apply to facilities such as Noveon, and concludes that Noveon has not proven the affirmative act
constituting a misrepresentation to the contrary, which is required for estoppel.
This position
entirely ignores the Agency’s affirmative action in 1977,
when it issued a draft permit with an
ammonia limitation and subsequently removed that limitation from the permit, as well as the
Agency’s action in issuing numerous prior permits that contained no ammonia limitation.
The
Board’s conclusion would mean that the permit issued in
1978 was issued in violation ofthe
Illinois Environmental Protection Act, because, then, as now, the Illinois EPA cannot issue a
permit unless the permit requires the permittee to comply with all applicable regulations.
The
3
Opinion and Order does not address that, though Noveon’s discharge has always exceeded the
ammonia limitation of Section 304.122(b),
the Agency did not ever include
a limit for ammonia
based on Section 304.122(b) in these prior permits.
See
Petitioner’s Exhibit 2 (1978 Permit),
Exhibit 4
(1985 Permit), and Exhibit
5
(1986 Permit).
1991
Tr. 70-72.
The Opinion also asserts that it is not the interpretation ofSection 304.122(a) and (b) by
the Agency that is important for purposes ofestoppel, but rather that ofthe Board.
The Board
states that it has not previously issued an interpretation.
The Board does not address that its
interpretation is quite clearly derived directly from the interpretation ofRick Pinneo ofIllinois
EPA, who testified that it was he who came up with factors such as COD/BOD ratios
and other
“things” to support his interpretation.
These factors are not reflected anywhere in a Board
regulation or opinion, nor are they derived from any Illinois EPA guidance.
They are made up to
fit the circumstances ofthis case and are therefore arbitrary,
capricious and unreasonable.
They
are not necessary to accomplish the purposes and provisions ofthe Act.
To the extent the Board
is
deferring to the Agency and citing Mr. Pinneo’s interpretation, it is the Agency’s consistency
that
is still at issue with respect to estoppel.
Further, the Board’s original opinions adopting
Section 304.122(a) and (b) were interpretive, and are contrary to Illinois EPA’s new
interpretation ofthese provisions as applicable to Noveon.
The Opinion states that Illinois EPAwasjustified in changing its position because
ammonia levels from Noveon increased.
But this increase is a consequence ofthe decisions
Noveon made in reliance on Illinois EPA’s position;
that is, Noveon added to its facilities
because Noveon relied on the Illinois EPA’s documented position that Section 304.122 did not
apply to
its discharge.
In addition, ammonia effluent levels are simply not relevant to the
determination ofwhether Section 304.122(a)
or (b) applies.
It is the untreated waste load that is
4
relevant forpurposes ofdetermining calculation ofpopulation equivalents, not the effluent, and
the calculation is based on flow, BOD
and TSS, not ammonia.
See
35 Il. Adm.
Code 301.345.
Noveon presented unrefuted evidence that itinvested substantial capital and located new
product lines at the Henry, Illinois facility after a thorough review ofregulatory requirements
and in reliance on the absence ofan
ammonia limit.
The Opinion states that Noveon did not
present any evidence regarding reliance on the Illinois EPA’s actions.
Noveon in factpresented
extensive testimony from KenWillings that Noveon relied on the absence ofan ammonia
limitation in any ofits prior NPDES permits
and based on that reliance expanded the Henry Plant
by bringing newproduct lines to
the facility and designing and upgrading the wastewater
treatment plant to
ensure continued compliance with he terms and conditions historically
imposedby the Illinois EPA in prior NPDES permits, none ofwhich required compliance with
Section 304.122(b).
1991 Tr. 71-72, 76-80, 105-06,
118-19.
The Opinion failed to consider this
unrefuted evidence.
B.
Applicability ofSection 304.122(a)
and
(b), AmmoniaEffluent Limitations.
r
In the Opinion’s discussion ofthe factual background ofthis matter, the Board stated that
Bob Mosher and Toby Frevert ofIllinois EPA and Kenneth Fenner ofU.S. EPA concluded that
L
the ammonia limitations in Section 304.122(b) must be incorporated into the permit.
This
statement appeared to bolsterthe conclusionthat Section 304.122(b) was applicable to Noveon’s
discharge, notwithstanding that it was contrary to the clear language ofthe regulation.
The record shows that only Toby Frevert reached this unexplained conclusion.
Mr.
Frevert’s conclusion was reached in a cursory memorandum without any apparent examination
ofthe regulation and
contraryto
its plain meaning.
Toby Frevert’s
memorandum stated that
Section 304.122(b) applies to Noveon because it is “industrial.”
In fact, the factors considered
5
by theIllinois
EPA and the intended application ofSection 304.122(b) to “industrial” sources, to
the exclusion ofSection 304.122(a), were nowhere mentioned in the Board’s regulation or its
opinionwhen the regulations were passed.
Bob Mosher relied on Mr. Frevert’s conclusion and
did not make his own independent assessment.
Mr. Fenner’s letter, cited in the Opinion, was part ofthe record, though itwas not entered
as evidence in the hearing below or even addressed by Illinois EPA and Mr. Fenner did not
testify.
Further, Mr. Fenner’s statement was also not a conclusion that the ammonia limit indeed
applied.
It was made in the context ofpointing out that Illinois EPA could not issue a schedule
for Noveon to comply with the ammonia effluent limitation that Illinois EPA had already
included in the permit.
He did not say, as noted in the Opinion, that the Illinois EPA must
include in the permit the ammonia limitations set
forth in
Section 304.122(b).
It is misleading to
state that a conclusion was reached by these three parties when the record manifestly shows it
was not.
The Opinion also
ignores a contradictorymemorandum by James Kammueler, an
Illinois EPA field inspector at the time, who reached the opposite conclusion.
In that
memorandum, Mr. Kammueler clearly applied Section 304.122(a) ofthe Board’s regulations
because a population equivalent can be calculated.
Because that population equivalent is below
50,000, the NPDES Permit should not contain an ammonia effluent limitation.
The Opinion states that the “line ofrulemakings” establishing the Board’s current
ammonia effluent limits show that Section 304.122(b) and not (a) applies, and includes its
statement in a prior opinion that the applicability of 304.122(b) is triggered by “discharge of
more than 100 pounds per day ofammonia, however calculated.”
This
Opinion’s conclusion is
based on a false foundation, as the Board’s purported conclusions in the “line ofrulemakings”
must encompass an implicit presumption that a population equivalent cannotbe calculated,
6
which is what the regulation requires.
Further, the discussion in the Opinion ofthe estoppel
issue notes that the Board did not issue an interpretation ofSection 304.122(b), so how can any
“line ofrulemakings” be interpretive?
In any case, the interpretation of a government agencyis
only important to the extent the regulation is ambiguous.
See Chevron
U.S.A. Inc. v. Natural
Resources Defense Council,
Inc.,
467 U.S.
837 (1984);
Village ofFox River Grove v. Pollution
Control Board,
299 ill.
App.3d 869, 702 N.E.2d
656
(2d Dist.
1998).
Here there is no such
ambiguity.
A population equivalentcan be calculated.
It is below 50,000 and consequently,
pursuant to Section 304.122(a),
an ammonia limit is not required in the NPDES Permit.
The Opinion also referredto the phrase “comparable to municipal plants” in Section
304.122(a) to conclude that the regulation requires comparability ofan industrial facility to a
municipal plant not with reference to the calculation ofpopulation equivalents, as Noveon
argued, but with reference to the characteristics of the wastewater.
The quoted portion if the
regulation in the Opinion is
inaccurate.
The regulation reads “whose untreated waste
load cannot
be computed on a population equivalent basis comparable to
that used for municipal waste
treatment plants.”
The Opinion also ignores the definition of“population equivalents,” which
provides that “Population Equivalent is
a term used to evaluate the impact ofindustrial or other
waste on a treatment works or stream,” and references only flow, BOD5 (five day biochemical
oxygen demand), and suspended solids.
See 35
Il. Adm.
Code 301.345.
The Opinion’s analysis ofcomparabilityofmunicipal and industrial wastewaters, using
factors such as COD/BOD loadings, ratios and degradability to determine the application of
Section 304.122, uses the unique nature ofNoveon’s wastewater and the consequent difficulty in
treating it as if such a situation was widely anticipated by the Board when the Board wrote and
adopted the rules.
The approach used in the Opinion reads
factors into the regulation that are
7
simply not there.
The Opinion also does not address why Section 304.122(a) is not limited to
domestic wastewaters.
What the illinois EPA should do if it wants these factors to be
appropriately considered is commence a rulemaking to reconcile its wish list about the
applicability of an ammonia limit to the regulation.
The Opinion concludes that “Noveon has not shown that without this condition, it can
comply with the Act.”
It is not clear what this statement means.
The Opinion cannot cite any
statutory provision with which Noveon cannot comply.
Noveon has proven by unrefuted
testimony and evidence that its discharge does not violate water quality standards governing the
Illinois River, which meets standards for both dissolved oxygen, the rationale forthe Board’s
adoption of Section 304.122(a) and (b), and ammonia.
See
Testimony ofBob Mosher, 2004 Tr.
117-18.
These provisions are the only ones that are relevant forpurposes ofthe illinois
Environmental Protection Act.
Finally, the Opinion ignores the abandonment ofthe scientific study that was the basis for
the adoption of the ammonia effluent limitation by the study’s authors. An opinion in another
case shows that Mr. Butts and Mr. Evans abandoned the conclusions ofthese earlier studies and
L
claimed that, based on the relative influence of the three primary oxygen demand sinks—
carbonaceous BOD, nitrogenous BOD, and sediment oxygen demand—effluent limitations in the
ammonia rule were unjustified and severely restrictive.
In the Matter ofSite Spec~flc
Exception
to Effluent Standardsfor the GreaterPeoria Sanitary District and SewageDisposal District,
R87-21
(Oct. 6,
1988).
On the Permit condition requiring toxicity testing, Illinois EPA conceded that toxicity
testing is unnecessary unless the animonia limitation imposed by Illinois EPA is upheld and no
8
adjusted standard relief is granted.
1991
Tr.
132-33, 141-43.
In addition, Noveonhas already
performed extensive investigation, and further testing is unwarranted and duplicative.
III.
Noveon’s Permit
Should
Not Separate Wastestreams into Different Outfalls
Illinois EPA has also not shown that separation ofNoveon’s wastestream is
authorized by
Board regulations, and the Opinion in this regard is contrary to
the manifest weight ofthe
evidence.
Noveon submitted unrefuted evidence that, forthose wastewaters in the stormwater
retentionpond that are not discharged to the PVC tank for operational purposes, the wastewaters
receive treatment by sedimentation and sand filtration before being discharged.
This constitutes
Best ManagementPractices (BMPs) and therefore is the best degree oftreatment (BDT).
In
EPA’s guidance on this issue,
Considerations in the Design of Treatment BestManagement
Practices to Improve Water Quality,
EPA 600/R-03/103, September 2002, retention ponds and
filtration are both listed as BMPs by themselves in Table 3-2 for stormwater treatment.
Noveon
has two BMP processes in series.
Though the Opinion does not explicitly recognize it, these
BMPs constitute BDT under the objective regulatory guidance for stormwater discharges.
Dilution is not being used as a treatment method in this case, because all waste streams
are being treated to BDT.
The Opinion states that the Board regulation governing dilution gives
Illinois EPA discretion to determine whether separation ofwaste streams is appropriate and
whether BDT
is being met.
Opinion at 16.
It is the obligation ofany person dischargingto
waters ofthe state to treat to BDT, and if the party is doing so, any dilution occurring is not
improper.
The regulation does not provide discretion to Illinois EPAto make a determination on
BDT contrary to the law and the evidence.
Illinois EPA cannot point to any numerical limitation
for which dilution may provide artificially low test results, and the Agency has conceded that all
water quality standards are being met.
9
Noveon made its case, and Illinois EPA did not disprove it.
In fact, Illinois EPA
originally argued that dilution ofthe
process
water is taking place, but during the pendency of
this case, Illinois EPA changed its theory to claim that improper dilution ofthe stormwater
occurs.
See, e.g.,
Illinois EPA’s cross-examination ofMr. Flippin, 2004 Tr.
96 (“the pond water
that has gone through the sand filter, when that waste stream is combined with the remaining
process waters, wouldn’t you call that dilution ofthe process wastewater stream?”).
The
Opinion states that Noveon has not demonstrated that all ofNoveon’s wastestreams receive BDT
and therefore any dilution occurring is
incidental.
Noveon has made this demonstration, and it is
unrefuted in the record.
Further, Illinois EPA never made a determination that improper dilution
ofthe
stormwater
waste stream is occurring in the first place, because Illinois EPA has always
been focused on the dilution ofthe process wastestream up until briefing in this matter.
The Board should reconsider its decision and make its finding according to the facts in
the record and the law.
And the remedy forthe Board’s ultimate decision, that the Illinois EPA
did not have sufficient information to determine BDT forthe stormwater wastestream, is to
remand that question to the Illinois EPA forreconsideration in light ofthe BMPs in place, and
not to affirm the drastic remedy to separate the wastestreams as a condition ofthe NPDES
permit.
Conclusion
Noveon respectfully requests the Board to reconsider its decisions in the Opinion and
Order.
The Illinois EPA’s reading ofSections 304.122(a) and (b), affirmed by the Board, are
contrary to the plain meaning of those provisions and cannot withstand scrutiny.
No ammonia
effluent limitation is necessary, and there is no dispute that the Illinois River is meeting all water
quality standards
for ammonia and dissolved oxygen and indeed its
quality has improved
10
throughout the period ofNoveon’s operation since the
1970s.
There is no dispute that in the
absence ofan ammonia effluent limitation, further costly toxicity testing will also not yield any
useful information and should not be required.
Finally,
although all the facts are before Illinois
EPA to
allow it to determineBDT on all wastestreams, Noveon is willing to provide any
information requested by Illinois EPA with respect to the stormwaterwastestream,
and
separation ofthe outfalls is not the proper remedy.
Respectfully submitted,
NOVEON, INC.
By:
__________________
One ofIts Attorneys
Richard J. Kissel
Mark Latham
Sheila H. Deely
GARDNER CARTON &
DOUGLAS LLP
191 N. Wacker Drive
—
Suite 3700
Chicago, IL
60606
CHO2/ 22344842.1
11
CERTIFICATE OF SERVICE
The undersigned certifies that a copy ofthe foregoing Notice
of Filing and Motion for
Reconsideration
and Oral Argument
was filed by hand delivery with the Clerk ofthe Illinois
Pollution Control Board and served upon the parties to whom said Notice is directed by
DorothyM. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL
60601
(personal delivery)
Deborah Williams
Assistant Counsel
Division ofLegal Counsel
Illinois Environmental Protection
Agency
1021 N. Grand Avenue East
Springfield,
IL
62794-9276
(first class mail and electronic
delivery)
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL
60601
(personal
delivery)
on Wednesday, October 20, 2004.
CHOI/ 12391953.1
