5

by the Agency. On August 27, 2008, the Agency filed documents supplementing those it had

submitted during the August 20, 2008, hearing. On September 4, 2008, the parties filed a joint

stipulation for the purpose of admitting into the record of this proceeding 11 Agency exhibits

without objection by petitioners:

1)

Printout of ExxonMobil data (Agency Exh. 1);

2)

Printout of Marathon data (Agency Exh. 2);

3)

Printout of Citgo data (Agency Exh. 3);

4)

Monthly average and daily maximum ammonia concentrations sampled

from Outfall 001 at Citgo Petroleum Company (Agency Exh. 4);

5)

Monthly average and daily maximum ammonia concentrations sampled

from Outfall 001 at ExxonMobil Oil Corporation, Joliet (Agency Exh. 5);

6)

Monthly maximum ammonia concentrations sampled from Outfall 001 at

Marathon Petroleum Company (Agency Exh. 6);

7)

One-page summary and explanation of printouts (Agency Exh. 7);

8)

Printouts regarding ExonMobil (Agency Exh. 8);

9)

Printouts regarding Conoco Phillips (Agency Exh. 9);

10)

Printouts regarding Citgo (Agency Exh. 10); and

11)

Printouts regarding Marathon (Agency Exh. 11).

On September 22, 2008, petitioners filed their post-hearing brief (Pet. Brief). On October

10, 2008, the Agency filed its post-hearing brief (Agency Brief). On October 24, 2008,

petitioners filed their reply brief (Reply).

FACTUAL BACKGROUND

Location and General Operations

PDV owns a petroleum refinery located on an 860-acre tract at 135th Street and New

Avenue in Lemont, Will County. Pet. at 1 (¶1); Pet. Exh. 2, App. A (Refinery permit);

see

Pet.

Exh. 2 at 4 (Figure 2-1 Site Location Map). The zoning classification of the Refinery is

industrial. Tr. at 194 (Postel testimony). The Refinery was constructed between 1967 and 1970

and began operations in the late fall of 1969. Pet. at 5 (¶13). Union Oil Company of California

had previously owned and operated the Refinery, which UNO-VEN Company subsequently

operated. Pet. at 1-2 (¶1). PDV became the owner of the Refinery on May 1, 1997, and

---

6

contracted with Citgo to operate it.

Id

. at 2 (¶1)

.

Approximately 530 persons work at the

Refinery. Pet. at 5 (¶13).

The Refinery refines domestic and foreign crude oil to produce approximately 25

different products, “including gasolines, turbine fuels, diesel fuels, furnace oils, petroleum coke

and various specialty naphthas which can be manufactured into many intermediate products,

including antifreeze, Dacron, detergent, industrial alcohols, plastics and synthetic rubber.” Pet.

at 5-6 (¶14); Pet. Exh. 2 at 3. However, gasolines, diesel fuels, home heating oils, and turbine

fuels for use in Illinois and the Midwest account for ninety percent of the Refinery’s output. Pet.

at 6 (¶14). The Refinery currently produces approximately 168,000 barrels per day. Pet. at 5

(¶13);

see

Pet. Exh. 9 at 8 (Table 3-1 Observed Maximum Monthly Production Rates).

The Refinery draws approximately 5.0 million gallons of water daily from the Chicago

Sanitary and Ship Canal (Canal), which is a tributary of the Illinois River. Pet. at 2, 6 (¶¶3, 15).

The Refinery also discharges approximately 4.5 million gallons of water daily to the Canal, with

cooling tower evaporation and steam losses accounting for the difference.

Id

. at 6 (¶15); Pet.

Exh. 13 at 4 (¶10). The Refinery discharges into the Canal at a point 5.5 miles upstream from

the lock and dam at Lockport. Pet. at 7 (¶18), Pet. Exh. 2 at 3, 16;

see

Pet. Exh. 2 at 5 (Figure 2-

2 The Chicago Waterway and Upper Illinois River System). Downstream from the dam, the

Canal merges with the Des Plaines River, which then passes beneath Interstate Highway 55. Pet.

at 7 (¶18). For 18.5 miles to Intestate Highway 55, the receiving waters are designated as

Secondary Contact waters.

Id

. “Secondary Contact waterways are intended to protect the

indigenous aquatic life and secondary contact uses.” Pet. Exh. 2 at 16. Beyond Interstate

Highway 55, “the Des Plaines River is designated as General Use Water.” Pet. at 7 (¶18).

Wastewater effluent from the Refinery contains ammonia nitrogen, which is present in

compounds removed from crude oil by various Refinery operations, and ammonia present in

intake water from the Canal. Pet. at 6 (¶15); Pet. Exh. 13 at 4 (¶10). The Refinery operates

under the terms of a National Pollutant Discharge Elimination System (NPDES) permit issued as

modified by the Agency on June 22, 2007, which expires July 31, 2011.

Id

. at 6 (¶16);

see

Pet.

Exh. 2, App. A (NPDES Permit No. IL0001589). “The NPDES permit includes outfall 001 at

the Refinery at river mile 296.5 on the Canal (Latitude 41° 38'58", Longitude 88°03'31").” Pet.

at 6 (¶16). The Refinery’s NPDES permit reflects ammonia nitrogen limits in effect under the

site-specific rule now applicable to the Refinery. Pet. at 6 (¶16);

see

35 Ill. Adm. Code 304.213;

Pet. Exh. 2, App. A at 2 (effluent limitations).

Canal Description and Water Quality

In approximately 1900, the Canal was constructed “to transport human waste and

industrial pollutants away from Lake Michigan.” Huff Test. at 4 (citing Chicago Area Waterway

System Use Attainability Analysis, August 2007). The Canal’s width varies from 200 to 300

feet, and its depth varies from 27 to 50 feet. Huff Test. at 4. Its construction “includes vertical

walls and steep embankments.”

Id

. The Canal receives treated wastewater from three major

water reclamation plants and is also the site of three coal-fired power plants. Pet. Exh. 2 at 16,

Huff Test. at 5. The Canal “is effluent dominated with over 70 percent of its flow on an annual

basis from municipal effluents.” Huff Test. at 5 (citing Agency).

---

7

The Agency characterizes stream quality in terms of both physical attributes and stream

use. Pet. Exh. 2 at 30. The Agency assesses water bodies on the degree to which they support

both overall and individual uses.

Id

. “[I]ndividual uses include fish consumption and aquatic

life, which apply to all water bodies within the State. Other uses include swimming, secondary

contact, drinking, and industrial water supplies whose uses apply to defined water body

segments.”

Id

. The Agency describes the degree to which a body of water supports a designated

use in terms of the full support of that use: “full/threatened support, partial support, and non-

support.”

Id

. “Overall stream use is designated as

non-support

for fish consumption and aquatic

life.” Huff Test. at 4 (emphasis in original); Pet. Exh. 2 at 30.

The identified causes of impairment were polychlorinated biphenyls (PCBs), iron,

oil and grease, D.O. [dissolved oxygen], total nitrogen, and total phosphorus.

Sources included sewer overflows, urban runoff/storm sewers, impacts from

hydrostructure flow regulations/modification, municipal point source discharges,

and other unknown sources. Pet. Exh. 2 at 30.

1

“Ammonia concentrations were not identified as a source of impairment.” Huff. Test at 4

(emphasis in original). The Refinery is situated on a segment of the Canal for which the aquatic

habitat “was rated as ‘poor to very poor.’”

Id

. (citing Agency). Factors limiting the Canal’s

aquatic potential include silty substrates, poor substrate material, little instream cover,

channelization, and no sinuosity. Huff Test. at 5 (citing Chicago Area Waterway System Use

Attainability Analysis, August 2007).

The United States Geological Survey (USGS) once maintained a water quality station 5.3

miles downstream from the Refinery’s outfall. Pet. Exh. 2 at 17 (Station No. 05537000). Water

quality data compiled from 1978 to 1996 showed that the water quality at the station failed to

achieve the current unionized ammonia standards three times during that period, with the last

exceedance occurring on May 4, 1994.

Id

. at 17-18. More recent data from this monitoring

station is not available, as the USGS discontinued its operation.

Id

. at 18.

The USGS also maintains a water quality station three-tenths of a mile downstream from

the Refinery’s outfall. Pet. Exh. 2 at 18 (Station No. 05536995). Water quality data compiled

from 1987 to 1991 showed that the water quality at the station failed to achieve the unionized

ammonia standard once during that period, with the exceedance occurring in August 1987.

Id.

The USGS also obtained ammonia water quality data at this station between 1999 and 2001.

See

Pet. Exh. 2, Appendix C. The station also produced water quality data on dissolved oxygen

1

Petitioners report that the Agency recently completed Use Attainability Analyses [UAA] for

the Lower Des Plaines River and the Chicago Area Waterways and made those analyses the

basis of a proposed change in the Board’s water regulations. Pet. Exh. 2 at 30, citing Water

Quality Standards and Effluent Limitations for the Chicago Area Waterway System and the

Lower Des Plaines River: Proposed Amendments to 35 Ill. Adm. Code Parts 301, 302, 303, and

304, R08-9 (Oct. 26, 2007) (proposed regulations and statement of reasons). Petitioners state

that “[t]he refinery’s request for a site-specific ammonia limit is not impacted by the UAA, nor

will it have any impact on the Agency’s proposal in R08-09.” Pet. Exh. 2 at 30.

---

8

concentrations from March 1999 to February 2001. “In 24 sampling events during this time

period, three events produced D.O. concentrations below 4.0 mg/L, with the minimum reported

as 3.2 mg/L.” Pet. Exh. 2 at 18;

see

Pet. Exh. 2, Appendix C.

In his testimony on behalf of petitioners, Mr. Huff states that “the total ammonia

concentrations in the Ship Canal are generally low, below 1 mg/L.” Huff Test. at 5, citing Pet.

Exh. 5, Figure 1 (influent concentrations);

see

Tr. at 187. In addition, the Metropolitan Water

Reclamation District of Greater Chicago (MWRDGC) sampled the Chicago Waterway System

for ammonia from January 2000 to July 2002 from four locations: “Lockport Forebay on the

Ship Canal, Jefferson Street on the Des Plaines River, Empress Casino on the Des Plaines River,

and the I-55 Bridge on the Des Plaines River.” Pet. Exh. 2 at 18. “Average total ammonia

concentration declines from 0.65 mg/L on the Ship Canal to 0.34 mg/L at the I-55 Bridge on the

Des Plaines River.”

Id

.;

see id

. at 19-22 (Table 4-1). “Unionized ammonia concentrations at all

four locations consistently achieved the existing 0.1 mg/L standard throughout the data period.”

Id

. at 18;

see id.

at 23-26 (Table 4-2);

see also

Huff Test. at 5-6; Tr. at 188.

The MWRDGC during 2000 monitored dissolved oxygen on the Des Plaines River at the

I-55 Bridge. Pet. Exh. 2 at 27. The minimum dissolved oxygen concentration during that period

was 5.8 mg/L, recorded on August 10, 2000.

Id

. at 28 (Table 4-3). Between 2002 and 2006, the

MWRDGC also collected hourly dissolved oxygen readings on the Canal at Route 83 upstream

of the Refinery and at Jefferson Street on the Des Plaines River downstream from its

convergence with the Canal.

Id

. at 27;

see id

. at Appendix C.

In addition, Midwest Generation EME, LLC between May and September monitors

dissolved oxygen concentrations in the Des Plaines River at the I-55 Bridge. Pet. Exh. 2 at 27.

Data from 2004, 2005, and 2006 reveal that only the month of June 2005 showed a monthly

minimum concentration lower than 4.0 mg/L.

Id

.;

see id.

at 29 (Table 4-4).

Influent Quality

As its primary source of water, the Refinery withdraws from the Canal, with annual

average intake varying between 4.5 million gallons per day (MGD) and 5.6 MGD from 1997 to

2006. Pet. Exh. 2 at 13. The intake is situated approximately 175 feet upstream from the

wastewater treatment plant outfall. Huff Test. at 3;

see

Pet. Exh. 2 at 13. The influent flow rate

exceeds the effluent flow rate as a result of evaporation from cooling towers.

Id

. From 1986 to

2008, the annual average influent ammonia concentration has declined from 3.68 mg/L to 0.55

mg/L. Pet. Exh. 5 (Figure 1).

Wastewater Treatment System

The Refinery has developed a system for the collection and treatment of wastewater at

the Refinery. Pet. Exh. 9 at 19;

see id

. at 20 (Figure 3-1 Process Flow Diagram of Existing

Wastewater Treatment Facilities);

see also id

. at 21 (Table 3-5 Process Design Summary

Existing Wastewater Treatment Plan). That system collects process wastewaters separately from

the north plant and south plant areas and can pretreat them “in separate corrugated plate

interceptors (CPI) for removal of free oils and settleable solids.” Pet. Exh. 9 at 19;

see id

. at 20

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9

(Figure 3-1). “Cyanide and non-cyanide sour waters are stripped separately and then combined

with the south plant area process wastewaters upstream of the south plant CPI separators.”

Id

. at

19, 20.

The Refinery system pumps process wastewater from the north plant and south plant

areas to two process wastewater storage tanks, TK485 and TK486, each of which has a capacity

of 4.6 million gallons. Pet. Exh. 9 at 19, 21. The Refinery operates the tanks in parallel,

allowing either of them to be shut down or serviced without disrupting the treatment process.

Id

.

at 19. “The tanks are equipped with floating roofs with oil skimmers and provide removal of

free oils and settleable solids.”

Id

.

The Refinery has installed an induced gas flotation (IGF) system to treat discharge from

tanks 485 and 486. Pet. Exh. 9 at 19, 21 (Figure 3-1). That system induces gas bubbles into the

process stream to provide for the flotation and removal of insoluble oil and organics and

suspended solids.

Id.

Addition of this system in 2000 reduced wasteload to the Refinery’s

sedimentation tank and its 250,000-gallon equalization tank, which nonetheless “still receives the

cooling tower blow down, sanitary sewer discharge, supernatant from sludge thickeners and the

Zeolite softener backwash.”

Id

. at 20, 22. During winter, the Refinery injects steam into the

equalization tank in order to maintain “optimum conditions for ammonia nitrogen removal”

during those months.

Id

. at 22.

In 1992, the Refinery segregated its stormwater basin from process wastewater. Pet. Exh.

2 at 6. The stormwater basin has a capacity of 52 million gallons and receives stormwater,

hydrostatic test water, fire water, utility water, and boiler blowdown.

Id

., Pet. Exh. 9 at 19, 21.

The Refinery can pump stormwater from the stormwater basin to the equalization tank, where it

is mixed with streams received there.

Id

. at 22. Stormwater can also bypass the equalization

tank to be added directly to the aeration basins.

Id.

The IGF system allows the wastewater stream to proceed from the two storage tanks to

the activated sludge system, which provides secondary treatment. Pet. Exh. 9 at 19; Pet. Exh. 13

at 3-4 (¶8). The sludge treatment system includes three aeration basins operated in parallel to one

another with a total volume of 1.92 million gallons. Pet. Exh. 9 at 20-22. The Refinery adds

phosphorus to provide a nutrient for biological organisms in the aeration basins.

Id

. at 22. The

Refinery also provides aeration through a fine-bubble diffused aeration system.

Id

. at 20, 22.

Activated sludge then settles into one of two secondary clarifiers, each of which has a diameter

of 100 feet.

Id

. at 20-22.

In October 2007, because of air pollution regulations, the Refinery began operating a

scrubber on the boiler associated with the Fluid Catalytic Cracker (FCC) unit. Pet. Exh. 9 at 22;

see

Tr. at 130. A purge treatment unit (PTU) system handles the purge stream from this unit,

and the Refinery installed a breakpoint chlorination-dechlorination system to treat ammonia

nitrogen in the discharge. Pet. Exh. 9 at 22-24;

see

Tr. at 130. “The purge stream is inorganic

and high in total dissolved solids and is not compatible with a biological treatment system.” Pet.

Exh. 9 at 24. The stream from the PTU system “discharges to the treated water basin where it is

combined with the discharge from the activated sludge system.”

Id

. at 20, 24;

see

Tr. at 130-35.

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10

The Refinery’s polishing lagoon or treated water basin (TWB) constitutes its tertiary

treatment system. Pet. Exh. 9 at 24; Pet. Exh. 13 at 4 (¶9). The TWB has a capacity of 16

million gallons and is intended “to provide additional settling of any carryover solids from the

secondary clarifier and provide further BOD

5

reduction.” Pet. Exh. 9 at 21, 24. While water

from the TWB can be recycled for fire protection at the Refinery, “[t]he treated effluent from the

TWB is discharged to the Chicago Sanitary and Ship Canal.”

Id

. at 24.

Wastewater Treatment Plant Improvements

When it adopted a site-specific rule applicable to the Refinery in 1987, the Board

required the Refinery to continue efforts to reduce the concentration of ammonia nitrogen in its

wastewaters. In the Matter of: Proposal of Union Oil Company of California to Amend the

Water Pollution Regulations, R84-13, slip op. at 14 (Mar. 19, 1987) (adopting 35 Ill. Adm. Code

304.213(d));

see

Pet. at 13 (¶37). After filing that petition for the site-specific rule, the Refinery

performed the following improvements to increase ammonia oxidation, increase available

dissolved oxygen, and increase hydraulic throughput at its wastewater treatment plant:

Added a third aeration basin, increasing the total aeration volume from 1.38

million gallons to 1.92 million gallons;

Upgraded the aeration system by replacing the existing mechanical surface

aerators with a fine-bubble diffused aeration system; and

Added the second 100-ft. diameter secondary clarifier, doubling the secondary

clarifier capacity. Pet. at 13 (¶37), Postel Test. at 7 (¶20);

see

Tr. at 199-200

(Huff testimony on secondary clarifier), 205-07 (Stein testimony on clarifiers).

After the Board adopted site-specific relief in 1993, “the Refinery continued its efforts to

reduce the concentration of ammonia nitrogen in its wastewaters.” Pet. at 13 (¶38);

see

In the

Matter of: Petition of Uno-Ven to Amend Regulations, Pertaining to Water Pollution, R93-8,

slip op. at 6 (Dec. 16, 1993) (adopting 35 Ill. Adm. Code 304.213(d)). Between 1992 and 1998,

the Refinery performed the following improvements:

Installed a new chemical feed facility at the WWTP [wastewater treatment plant];

Eliminated discharge of process wastewater to the stormwater basin and provided

tankage for equalization/oil separation of process wastewater;

Converted the WWTP control system to new DCS control;

Modified the sour water stripper charge tanks inlet line for better oil/water

separation;

Performed a clean closure of the stormwater basin; and

---

11

Utilized Naclo dried bacteria and conducted nitrifier inhibition testing. Pet. at 13

(¶38), Postel Test. at 8 (¶21).

Since 1998, the Refinery has continued to improve its wastewater treatment system. Pet.

at 13-14 (¶39), Postel Test. at 8 (¶22);

see

In the Matter of: Petition of PDV Midwest Refining,

L.L.C. for a Site-Specific Rulemaking Amendment to 35 Ill. Adm. Code 304.213, R98-14, slip

op. at 7 (Dec. 17, 1998) (adopting 35 Ill. Adm. Code 304.213(d)). Specifically, the Refinery has

undertaken the following measures:

In 2000, installed induced gas flotation system with polymer addition;

In 2003, added additional strippers in the sour water system for ammonia

removal;

Also in 2003, upgraded diffused aerators to improve oxygen transfer;

In 2006, upgraded phosphoric acid feed system and the aerators to improve

oxygen transfer;

In 2007, installed purge treatment unit to treat the discharge from the FCC

scrubber; and

Also in 2007, upgraded diffused aerators to improve oxygen transfer. Pet. at 13-

14 (¶39), Postel Test. at 8 (¶22).

BAT

Federal regulations include effluent limitation guidelines applicable to the petroleum

refining industry. Pet. Exh. 9 at 3, citing 40 C.F.R. 419. Those USEPA guidelines provide

effluent load-based limitations for conventional pollutants including BOD

5

, TSS, oil and grease,

and pH based upon Best Practicable Control Technology Currently Achievable (BPT). Pet. Exh.

9 at 3, citing 40 C.F.R. 419.22, Development Document for Effluent Limitations Guidelines,

New Source Performance Standards and Pretreatment Standards for the Petroleum Refining

Industry (EPA 440/1-82/014) (1982). The guidelines also provide limitations for non-

conventional pollutants including COD, ammonia nitrogen, sulfide, phenolic compounds, total

chromium, and hexavalent chromium based on Best Available Technology Economically

Achievable (BAT). Pet. Exh. 9 at 3, citing 40 C.F.R. 419.23, Development Document for

Effluent Limitations Guidelines, New Source Performance Standards and Pretreatment Standards

for the Petroleum Refining Industry (EPA 440/1-82/014) (1982).

The guidelines calculate effluent limitations for each refining facility “based on the

refining subcategory, the maximum feedstock processing rate and the process configuration.”

Pet. Exh. 9 at 3. Those guidelines place the Refinery in the “Cracking Refinery” subcategory.

Id

. at 3-4, citing Development Document for Effluent Limitations Guidelines and Standards for

the Petroleum Refining Point Source Category (EPA 440/1-82-014) (1982) at 64-65. “The

effluent limitations are based on actual effluent flows and pollutant concentrations obtained by

---

12

refineries employing BAT and BPT treatment technologies.” Pet. Exh. 9 at 3. For the Refinery,

“[t]he BAT limits for ammonia are 1,005.75 lbs/day monthly average and 2,212.65 lbs/day daily

maximum, as contained in the facility’s NPDES permit.” Pet. Exh. 2 at 8;

see id

., Appendix A at

3 (NPDES General Permit No. IL0001589). Between January 2006 and October 2007, the

monthly average effluent ammonia from the Refinery ranged from a high of 403 lbs/day in

February 2006 to a low of 15 lbs/day in August 2006 with an average discharge over this period

of 122 lbs/day. Pet. Exh. 9 at 32 (Table 3-10), Pet. Exh. 10 at 11.

The “BAT guidelines are based on the implementation of in-plant water

reuse/conservation measures to minimize the volume of wastewater discharge, and the use of

sour water strippers to reduce ammonia and sulfide loads in the process wastewater.” Pet. Exh. 9

at 5;

see

Pet. Exh. 10 at 11. USEPA’s 1982 development document provides a model for

wastewater treatment that includes the processes of flow equalization, initial removal of solids

and oil through an API separator or baffle plate separator, additional removal of solids and oil

through clarifiers or dissolved air flotation, biological treatment, and filtration or other final

polishing steps. Pet. Exh. 9 at 5, 25 (Table 3-6);

see

Pet. Exh. 10 at 12.

Nitrification

Although there a number of treatment technologies that can remove ammonia, “[t]he

most commonly used approach for ammonia nitrogen removal is biological nitrification.” Pet.

Exh. 10 at 3. “[B]iological nitrification is a very sensitive process” affected by a number of

parameters: food-to-mass (F/M) ratio, sludge age, aeration basin pH, aeration basin temperature,

and aeration basin dissolved oxygen concentration.

Id

. at 4, 11, Pet. Exh. 9 at 35;

see

Pet. Exh.

10 at 13 (Table 2 Typical Operating Ranges for Nitrification), Pet. Exh. 9 at 36 (Table 3-11).

The F/M ratio is expressed in terms of pounds of BOD applied per day per pound of

mixed liquor volatile suspended solids (lb BOD

5

/lb MLVSS-day). Pet. Exh. 9 at 37. “The lower

F/M ratios normally provide an improved environment for nitrification to occur,” and the

optimum ratio is less than 0.3.

Id

. at 36-37 (Table 3-11), Tr. at 162. Based on monthly average

data, “[t]he F/M [ratio] has been maintained at less than 0.16 lb BOD

5

/lb MLVSS-day over the

last ten years.” Pet Exh. 9 at 36-37 (Table 3-11).

“Sludge age represents the average length of time the biomass remains in the treatment

system.” Pet. Exh. 9 at 37. Increasing sludge age improves opportunities for nitrifying

organisms to grow and for biological nitrification to occur.

Id

. “Sludge ages of 10 days or more

are generally adequate for nitrification.”

Id

. at 36-37 (Table 3-11), Tr. at 162-63. The Refinery

has “consistently” maintained a sludge age greater than 10 days and has maintained sludge age

of up to 100 days. Pet. Exh. 9 at 36-37 (Table 3-11), Tr. at 163.

“Optimal nitrification performance occurs in the pH range between 7.2 and 9.0.” Pet.

Exh. 9 at 38. The nitrification reaction consumes alkalinity in the form of calcium carbonate in

the course of ammonia nitrogen removal.

Id

. “Inadequate alkalinity can result in sharp

decreases in pH which can upset the treatment system.”

Id

. The Refinery adds supplementary

alkalinity when needed, although it is available on a consistent basis in the influent.

Id

. Based

---

13

on monthly average data, the aeration basin pH has been maintained in a range from 7.1 to 8.0.

Id

. at 36 (Table 3-11).

Optimal nitrification performance occurs at temperatures between 68 and 100°F. Pet.

Exh. 9 at 38;

see

Tr. at 192-93. The Refinery can add steam to the aeration basin in order to

maintain a temperature above 70°F. Pet. Exh. 9 at 38;

see id.

at 20 (Figure 3-1 Process Flow

Diagram). Based on monthly average data, the Refinery has maintained the aeration basin

temperature between 73 and 98°F.

Id.

at 36 (Table 3-11). Specifically, “[t]he lowest monthly

average temperature over the period evaluated was 73°F in November 2002 and over the last two

(2) winters the average aeration basin temperatures has been 80°F or above.”

Id

. at 38.

“Nitrifying bacteria are extremely sensitive to D.O. concentrations,” and the optimum

dissolved oxygen concentration for nitrification is an average of 2.0 mg/L with a minimum of 1.5

mg/L. Pet. Exh. 9 at 36, 37 (Table 3-11). The Refinery’s aeration system “includes ceramic fine

bubble diffusers which are distributed uniformly over the entire aeration basin floor.”

Id

. at 37;

see

Tr. at 174-75. During the last three years, the average aeration basin dissolved oxygen

concentration has exceeded 4.5 mg/L, with one exception attributed by the Refinery to a

measurement problem. Pet. Exh. 9 at 36 n.3, 37.

Zone of Initial Dilution and Mixing Zone

From the Refinery, the Outfall 001 discharges through a pipe 15 inches in diameter in a

downward direction from a point “15 feet below the low flow Ship Canal elevation.” Pet. Exh. 2

at 33, Huff Test. at 6. A 1992 study found the Zone of Initial Dilution (ZID) to occupy

approximately 100 square feet and to provide 10:1 dilution. Pet. Exh. 3 at 55. “There are only

300 gallons of effluent within the ZID at any one time, with a mean retention time under 7

seconds.” Huff Test. at 6.

The same 1992 study revealed that the mixing zone achieved 40:1 dilution within 60 feet

downstream. Pet. Exh. 3 at 55, Huff Test. at 6;

see

35 Ill. Adm. Code 302.100 (defining “mixing

zone”). The mixing zone occupied 2,200 square feet, or 0.05 acres. Pet. Exh. 3 at 55;

see

35 Ill.

Adm. Code 302.102. With a reduction in discretionary diversion from Lake Michigan, the 7-

day, 10-year low flow in the Canal has decreased from 1,100 MGD in 1992 to 850 MGD. Pet.

Exh. 2 at 32-33, Huff Test. at 6. With the Refinery’s design average flow of 5.79 MGD, “the

mixing zone today achieves a 36.7:1 dilution within the same 0.05 acres.” Huff Test. at 6;

see

Pet. Exh. 2 at 33.

Effluent Quality and Net Ammonia Loading

A number of factors influence the concentration of ammonia nitrogen in the Refinery’s

effluent: “nitrogen content in the crude oil; crude oil throughput; influent BOD

5

, TSS, and oil

loadings; and degree of nitrification being achieved in the wastewater treatment plant.” Pet. Exh.

2 at 10. From 1997 to 2006, the average annual flow rate for the Refinery’s wastewater

treatment system has ranged from 3.5 MGD to 4.7 MGD. Pet Exh. 2 at 10. Between 2003 and

2006, effluent flow ranged from 4.3 MGD to 4.7 MGD.

Id

. From 1995 until 2005, the

Refinery’s annual average effluent ammonia concentration fell below 3.0 mg/L. Huff. Test. at 3;

---

14

see

Pet. Exh. 5 (Figure 2), Pet. Exh. 2 at 11 (Figure 3-1). Although the concentration in 2005

increased to 3.63 mg/L, it has since fallen to 3.50 mg/L in 2006, 2.45 mg/L in 2007, and 0.39

mg/L in the first six months of 2008. Huff. Test. at 3;

see

Pet. Exh. 5 (Figure 2), Pet. Exh. 2 at

11 (Figure 3-1).

Ammonia loading from the Refinery’s discharge is a function of ammonia concentration

and effluent flow rate. Huff. Test. at 10. On an annual basis the Refinery has since 1997

discharged less than 140 pounds per day.

Id

. at 10, 12 (Figure 3-2). In “over 70 percent of the

months the Lemont Refinery has discharged less than 100 pounds per day of ammonia, so the 3

mg/L effluent limit would not apply during these months, if the site specific standard were not in

place.”

Id

. at 10.

Petitioners also evaluated the annual average mass of ammonia removed from the Canal

compared with the mass discharged. Huff Test. at 3. “The net discharge (effluent less influent)

over the past decade has averaged less than 43 pounds per day.”

Id

. at 3-4, Pet. Exh. 5 (Figure

3), Pet. Exh. 2 at 15 (Figure 3-4). Specifically, “[s]ince 1997 Lemont Refinery has withdrawn an

average of 32.8 lbs/day ammonia from the Ship Canal compared to an average of 72.5 lbs/day

discharged.” Pet. Exh. 2 at 13, 15 (Figure 3-4). To date in 2008, the Refinery has removed 29

pounds per day from the Canal while discharging an average of 17 pounds per day. Huff Test. at

4, Pet. Exh. 5 (Figure 3).

Impact of Proposed Relief on Canal

As noted above under “Influent Quality,” the annual average influent ammonia

concentration at the Refinery has declined from 3.68 mg/L to 0.55 mg/L from 1986 to 2008. Pet.

Exh. 5 (Figure 1). From January 2000 to July 2002, the concentration of total ammonia in the

Canal at the Lockport Forebay averaged 0.65 mg/L. Pet. Exh. 2 at 19-22 (Table 4-1). During

the same period at the same location, the concentration of unionized ammonia averaged 0.005

mg/L. Pet. Exh. 2 at 23-26 (Table 4-2);

see

Huff Test. at 7.

A 2008 report determined that, at the proposed ammonia monthly limit of 6.9 mg/L,

ammonia levels in the Canal at the edge of the mixing zone would be 0.805 mg/L. Pet. Exh. 2 at

33;

see

Pet. at 9 (¶24). The same report also determined that ammonia levels in the Canal after

complete mixing would be 0.676 mg/L. Pet. Exh. 2 at 33. Noting that the Refinery’s influent

has had a recent average ammonia concentration of 0.634 mg/L, the report found that the

Refinery would cause a 6.6 percent change in total ammonia at the monthly average limit of 6.9

mg/L and the 7-day, 10-year low flow.

Id

. The report also predicts a similar percentage change

in the unionized ammonia concentration immediately downstream.

Id

. The report stated that the

Canal does not now experience ammonia water quality violations and the Petitioners’ proposed

limits will reduce ammonia loading.

Id

. The report concluded that “no water quality violations

will be associated with this request.”

Id

.

Also, a 1992 report sought to model the Refinery’s contribution to dissolved oxygen

changes in the Canal. Pet. Exh. 3 at 108-19;

see

Huff Test. at 8. At a daily maximum loading of

744 lbs/day, “the maximum D.O. decline was 0.03 mg/L.” Huff Test. at 8; Pet. Exh. 3 at 112,

114 (Figure 6-4 Dissolved Oxygen Concentrations Downstream)

---

15

Previous Regulatory Relief for the Refinery

Petitioners claim that, in spite of various improvements, the Refinery’s wastewater

treatment system is not able consistently to meet the Board ammonia nitrogen effluent standards.

Pet. at 2 (¶2);

see

35 Ill Adm. Code 304.122 (b). “From 1977 through 1984, Union operated the

refinery under several variances from the Board for the ammonia nitrogen discharge.” Pet. Exh.

13 at 5 (¶15). Petitioners further state that “[t]he general ammonia nitrogen discharge rule would

apply to the Refinery, but for site specific rule changes granted in 1987, 1993, and 1998.” Pet. at

2 (¶2). The Board below briefly summarizes the regulatory relief from the ammonia nitrogen

standards that it has granted to the refinery.

Union Oil Company of California v. Environmental Protection Agency, PCB 77-163

On June 17, 1977, Union Oil Company of California (Union), the former owner and

operator of the Refinery, filed a petition for a variance. Union Oil Company of California v.

Environmental Protection Agency, PCB 77-163, slip op. at 1-2 (Sept. 29, 1977). Union sought

relief from the requirements of Rule 406 of the Board’s water regulations, which provided an

effluent standard for ammonia nitrogen.

Id

.;

see

In the Matter of: Effluent Criteria, In the Matter

of: Water Quality Standards Revisions, In the Matter of Water Quality Standards Revisions for

Intrastate Waters (SWB-14), R70-8, 71-14, 71-20, slip op. at 6, 25 (Jan. 6, 1972) (adopting Rule

406). The Agency recommended that the Board grant the requested variance subject to specified

conditions. Union Oil Company of California v. Environmental Protection Agency, PCB 77-

163, slip op. at 1 (Sept. 29, 1977).

In its opinion and order, the Board noted that, “[e]ver since Petitioner’s wastewater

treatment system began operation, it has failed to produce an effluent of 3.0 mg/L ammonia

nitrogen as required by Rule 406 even though the system was designed to meet a limit of 2.5

mg/L. The concentration of ammonia nitrogen in Petitioner’s effluent has ranged from 3.2 to

37.6 mg/L on the basis of monthly averages from June, 1976 through May 1977.” Union Oil

Company of California v. Environmental Protection Agency, PCB 77-163, slip op. at 1 (Sept. 29,

1977).

The Board granted Union a one-year variance and required Union to limit its ammonia

nitrogen discharge to a daily average of 575 pounds and a daily maximum of 1,260 pounds,

based upon federal standards for best practicable technology. Union Oil Company of California

v. Environmental Protection Agency, PCB 77-163, slip op. at 2-3 (Sept. 29, 1977). The Board

noted that, with the Refinery discharging approximately 3.5 million gallons of process

wastewater per day, these pound limitations would result in an ammonia concentration of

approximately 19.7 mg/L.

Id.

at 2. As a condition of granting the variance, the Board also

required that Union “shall make a good faith effort to develop a program which will enable it to

comply with Rule 406. In developing this program Petitioner shall conduct research on

alternative treatment techniques. This research shall include an analysis of biological

nitrification in various formats.”

Id

. at 3. In addition, the Board provided that Union “will

submit bi-monthly reports on its research efforts, detailing with particularity what methods or

systems are being tried or considered, to the Agency.”

Id

.

---

16

In its opinion, the Board stated that a one-year variance “will not have a significant

adverse environmental impact on the Chicago Sanitary and Ship Canal since Petitioner will be

contributing only 0.057 mg/L over the ammonia levels reported upstream.”

Id

. at 2. The Board

noted Union’s claim that no demonstrated technology would bring the Refinery into compliance

but emphasized that the claim “cannot cloud the fact that Petitioner must eventually comply with

Rule 406.”

Id

. at 1 (emphasis in original).

Union Oil Company of California v. Environmental Protection Agency, PCB 78-168

In 1978, Union sought an extension of the one-year variance from the requirements of

Rule 406 granted by the Board in 1977. Union Oil Company of California v. Environmental

Protection Agency, PCB 78-168, slip op. at 1 (Sept. 21, 1978);

see

Union Oil Company of

California v. Environmental Protection Agency, PCB 77-163 (Sept. 29, 1977). Specifically,

Union sought a variance of three years, during which it would continue to limit its ammonia

discharges to a daily average of 575 pounds and a daily maximum of 1,260 pounds and would

develop a program for compliance with Rule 406. Union Oil Company of California v.

Environmental Protection Agency, PCB 78-168, slip op. at 1 (Sept. 21, 1978). Again, the

Agency recommended that the Board grant a one-year variance subject to specified conditions.

Id

. at 1, 2.

In its opinion and order, the Board noted that approximately two-thirds of the crude oil

processed at the Refinery by Union was characterized as “sour” and high in nitrogen. Union Oil

Company of California v. Environmental Protection Agency, PCB 78-168, slip op. at 1 (Sept. 21,

1978). The Board also noted that Union had undertaken a number of ammonia control measures:

installing sour water strippers; eliminating once-through barometric condenser water;

segregating sewers; eliminating once-through cooling water; and installing “a waste water

treatment system consisting of equalization and storm water diversion, API separators, primary

and final clarifiers with a bottom settling tank, activated sludge and oxidation ponds, and a

polishing pond.”

Id

. During 1977, the monthly average ammonia concentration of Union’s

effluent was 16.0 mg/L, and Union attributed its noncompliance to “emergency operational

problems, severe cold weather and a major fire caused by lightning.”

Id

. Union proposed a

program of ammonia reduction including identifying and controlling its sources, improving

removal, and independent research.

Id

. The Board stated, however, that this program did not

include reducing the Refinery’s dependence on sour crude oil.

Id

.

Stating that a three-year extension was not warranted in the absence of a firm compliance

plan, the Board extended the variance for two years, subject to conditions. Union Oil Company

of California v. Environmental Protection Agency, PCB 78-168, slip op. at 2-3 (Sept. 21, 1978).

First, the Board maintained ammonia nitrogen discharge limits of a daily average of 575 pounds

and a daily maximum of 1,260 pounds.

Id

. at 2. The Board also required Union to continue

good faith efforts to develop a program for compliance with Rule 406 and to submit bi-monthly

progress reports to the Agency.

Id

. at 2-3. The Board also provided that Union “shall, no later

than September 29, 1980, provide the Agency with a written technical proposal and time

schedule for compliance with Rule 406.”

Id

. at 3.

---

17

Union Oil Company of California v. Illinois Environmental Protection Agency, PCB 80-124

In 1980, Union sought a second extension of its variance from the requirements of Rule

406. Union Oil Company of California v. Illinois Environmental Protection Agency

, PCB 80-

124, slip op. at 1 (Sept. 4, 1980);

see

Union Oil Company of California v. Environmental

Protection Agency, PCB 78-168, slip op. at 2-3 (Sept. 21, 1978). Specifically, Union sought a

two-year extension of its variance with ammonia discharge limits of a daily average of 688

pounds and a daily maximum of 1,261 pounds. Union Oil Company of California v. Illinois

Environmental Protection Agency, PCB 80-124, slip op. at 1 (Sept. 4, 1980). The Agency

recommended that the Board grant the variance, subject to specified conditions.

Id

.

The Board noted that Union “had progressed toward compliance with the state standard

and has demonstrated an ability to maintain effluent limits at or below 567 lbs/day average and

1002 lbs/day maximum.”

Id

. at 2. The Board therefore found that ammonia effluent limits of

570 lbs/day average and 1010 lbs/day maximum were appropriate.

Id

. The Board concluded

that a variance with these effluent limits would increase the ammonia concentration in the Canal

by no more than 0.024 mg/L, characterizing that environmental impact as “small.”

Id

.

The Board expressed reluctance to extend the variance “without receipt of even a

tentative compliance plan and schedule.” Union Oil Company of California v. Environmental

Protection Agency, PCB 78-168, slip op. at 2 (Sept. 4, 1980). However, the Board noted that

Union, in spite of its “apparent good faith efforts to develop such a plan and to come into

compliance,” had experienced technical difficulties and needed additional research.

Id

. The

Board also noted that, during the term of the expiring variance, Union “spent $728,000

attempting to sustain nitrification through source control, upgrading and optimizing existing

facilities, and applied research on treatment techniques.”

Id

. The Board identified other action

on the part of Union.

Sources of high ammonia bearing sour water have been identified and equipment

installed to divert them to the sour water strippers for ammonia removal.

Steam/charge ratio controllers were installed for optimum stripping rates. A

cross-connection has been installed to decant oil from sour water to improve

stripping performance. Nitrification has been achieved periodically with good

results, but Union Oil has been unable as yet to develop a consistently functioning

system.

Id

.

The Board granted an extension of Union’s variance from Rule 406 for two years or to

full implementation of a compliance plan, whichever occurred first. Union Oil Company of

California v. Environmental Protection Agency

, PCB 78-168, slip op. at 3 (Sept. 4, 1980). The

Board required Union to continue efforts to develop a program for compliance with Rule 406

and to submit quarterly progress reports to the Agency.

Id

. at 3. The Board further provided that

Union “shall, no later than July 1, 1981, submit in writing to the Agency a preliminary technical

proposal and time schedule for compliance with Rule 406.”

Id

. The Board also required a final

proposal and compliance schedule no later than January 1, 1982.

Id

. The Board also included

the condition that, “[u]pon Agency approval of a proposed compliance plan and schedule, and

---

18

upon timely application for and receipt of all necessary permits, the Petitioner shall promptly

implement its compliance plan.”

Id

.

Union Oil Company of California v. Illinois Environmental Protection Agency, PCB 82-87

On June 28, 1982, Union filed a petition for a two-year extension of its current variance

from the requirements of Rule 406. Union Oil Company of California v. Illinois Environmental

Protection Agency, PCB 82-87, slip op. at 1 (Oct. 5, 1982) (noting recodification of Rule 406 as

35 Ill. Adm. Code 304.122(b)). The Agency recommended that the Board grant the variance,

subject to certain conditions.

Id

.

The Board noted that, during the current variance period, Union’s daily average discharge

of ammonia nitrogen ranged from 146 pounds in October 1981 to 547 pounds in February 1982,

with a minimum of 24 pounds and a maximum of 1,001 pounds.

Id

. at 2. Although Union

achieved a reduction of 4.6 mg/L from influent levels, the lowest average monthly discharge

concentration was 6.0 mg/L, which exceeded the applicable standard.

Id

.

The Board stated that Union had dedicated considerable time and effort in good faith

toward compliance with the ammonia nitrogen standard. Union Oil Company of California v.

Illinois Environmental Protection Agency, PCB 82-87, slip op. at 2 (Oct. 5, 1982). “Its

wastewater plant is currently valued at over 32 million dollars and the present operating cost is

1.8 million dollars per year. It has achieved a 72% reduction in the ammonia nitrogen

concentration of its treated effluent water since 1973 through source control, upgrading facilities

and applied research on treatment techniques.”

Id

. Although Union intended to continue various

ammonia control projects, the Board noted Union’s claim that existing technology did not allow

it to set a schedule for compliance.

Id

.

The Board noted that the parties did not disagree that the impact of extending the

variance would be a “minimal” increase of less than two percent of the ammonia nitrogen

concentration in the Canal. Union Oil Company of California v. Illinois Environmental

Protection Agency, PCB 82-87, slip op. at 2 (Oct. 5, 1982). Relying upon discharge data from

the Refinery, the Board extended the variance to September 29, 1984, and set ammonia

discharge limits of 550 pounds per day as a monthly average and 1,010 pounds per day

maximum.

Id

. at 3. The Board again required Union to continue efforts to develop a program

for compliance with the ammonia nitrogen standard and to submit quarterly progress reports to

the Agency.

Id

.

The Board noted in its opinion and order that, over a five-year period, Union had

operated under four variances without presenting a compliance plan. Union Oil Company of

California v. Illinois Environmental Protection Agency, PCB 82-87, slip op. at 3 (Oct. 5, 1982).

Although the Board stated that existing technology did not reasonably attain compliance, the

Board stated that “

seriatim

variances are not intended to act as substitutes for a site-specific

regulation.” Accordingly, the Board provided that Union “shall, by May 1, 1984, provide the

Agency with a written technical proposal and time schedule for compliance with Section

304.122(b).”

Id

. (Condition 4). The Board stated that, “[i]f no such plan is feasible by then,

---

19

Union should consider the proposal of a site-specific regulatory change.”

Id

.;

see

Pet. Exh. 13. at

5 (¶15).

Union Oil Company of California v. Illinois Environmental Protection Agency, PCB 84-66

On May 31, 1984, Union filed a petition for an extension of its variance from the

requirements of 35 Ill. Adm. Code 304.122(b) for two years or until final action on its then-

pending proposal for a site-specific rule, whichever occurred sooner. Union Oil Company of

California v. Illinois Environmental Protection Agency, PCB 84-66, slip op. at 1 (Feb. 20, 1985);

see

In the Matter of: Proposal of Union Oil Company of California to Amend the Water

Pollution Regulations, R84-13 (Mar. 19, 1987) (adopting Section 304.213).

The Board noted Union’s compliance efforts during the period of the last variance: “use

of a sulfide removing chemical to enhance nitrification, full scale trial addition of

Sybron/biochemical mutant bacteria to establish a nitrifier population, and the installation of

permanent dissolved oxygen analyzers in the aeration basin.” Union Oil Company of California

v. Illinois Environmental Protection Agency, PCB 84-66, slip op. at 4 (Feb. 20, 1985). The

Board further noted that Union’s design projects included both the addition of hydrogen peroxide

to the wastewater treatment plant and modifications to the final clarifier.

Id

. The Board referred

to a report by Union’s technical consultant on alternative systems for meeting the ammonia

nitrogen standard.

Id

. The consultant concluded that those alternatives were either technically

infeasible, unable consistently to meet the standard, or would result in formation of potentially

toxic chlorinated hydrocarbons.

Id

.

The Board extended Union’s variance to April 25, 1987, or until a final decision on

Union’s proposal for a site-specific rule, whichever occurred first. Union Oil Company of

California v. Illinois Environmental Protection Agency, PCB 84-66, slip op. at 5 (Feb. 20, 1985).

To allow for increased discharges expected from new and expanded facilities at the Refinery, the

Board increased the ammonia nitrogen effluent limits to a monthly average of 625 pounds per

day and a daily maximum of 1,160 pounds per day. The Board found that the extended variance

would have a “minimal” environmental impact.

Id

. at 4, 5.

Among the conditions it imposed, the Board required Union to monitor and report

discharges as provided in its NPDES permit. Union Oil Company of California v. Illinois

Environmental Protection Agency, PCB 84-66, slip op. at 5 (Feb. 20, 1985) (Condition 3). The

Board also required Union to sample and monitor flows from new and expanded facilities to

determine their effects on ammonia loading and effluent quantity and quality.

Id

. (Condition 4).

Based on a technical report incorporated into the record of the variance proceeding, the Board

concluded that it was not necessary for Union to study additional ammonia nitrogen removal

systems.

Id

. The Board did require that Union “shall continue its research to identify means of

further reducing its discharge of ammonia nitrogen.”

Id

.

In the Matter of: Proposal of Union Oil Company of California to Amend the Water

Pollution Regulations, R84-13

---

20

On April 25, 1984, Union filed a proposal seeking relief from the 3.0 mg/L ammonia

nitrogen effluent standard. In the Matter of: Proposal of Union Oil Company of California to

Amend the Water Pollution Regulations, R84-13, slip op. at 1 (Mar. 19, 1987), citing 35 Ill.

Adm. Code 304.122(b). Union requested that it be required instead to satisfy the federal BAT

limitations. In the Matter of: Proposal of Union Oil Company of California to Amend the Water

Pollution Regulations, R84-13, slip op. at 1 (Mar. 19, 1987), citing 40 C.F.R. 419.23 (1985).

Union calculated that BAT ammonia nitrogen limits would be 775 pounds per day as a monthly

average and 1,705 pounds per day daily maximum. In the Matter of: Proposal of Union Oil

Company of California to Amend the Water Pollution Regulations, R84-13, slip op. at 1 (Mar.

19, 1987). Discharge of 775 pounds per day represents a concentration of approximately 29

mg/L.

Id.

The Agency recommended that the Board deny Union’s requested relief. In the Matter

of: Proposal of Union Oil Company of California to Amend the Water Pollution Regulations,

R84-13, slip op. at 1 (Mar. 19, 1987). The Agency argued that BAT limitation were less

stringent than state standards, that Union “should have spent more effort” in attempting to reduce

its ammonia nitrogen discharges, and that lower discharges from a nearby refinery demonstrated

“that Union could do a much better job of removing ammonia.”

Id

. at 4-5.

The Board found that the record included no technically feasible and economically

reasonable alternative allowing Union consistently to meet the 3 mg/L ammonia nitrogen

effluent standard. In the Matter of: Proposal of Union Oil Company of California to Amend the

Water Pollution Regulations, R84-13, slip op. at 9 (Mar. 19, 1987). The Board also

characterized the impact of Union’s discharge on the Canal as “minimal.”

Id

. The Board

granted relief from the ammonia nitrogen effluent standard and required Union to meet the

federal BAT limitations.

Id

., citing 40 C.F.R. 419.23, 35 Ill. Adm. Code 304.122(b);

see

Pet.

Exh. 13 at 5 (¶15). The Board also required that “Union shall continue its efforts to reduce the

concentration of ammonia nitrogen in its wastewaters.” In the Matter of: Proposal of Union Oil

Company of California to Amend the Water Pollution Regulations, R84-13, slip op. at 14 (Mar.

19, 1987). The Board provided that Union’s site-specific rule would terminate on December 31,

1993.

Id

. at 11-12, 14 (Mar. 19, 1987). The Board expressed the belief that setting this

termination date instead of granting permanent relief would maintain incentives for Union to

improve the quality of its effluent.

Id.

at 11-12.

In the Matter of: Petition of Uno-Ven to Amend Regulations, Pertaining to Water

Pollution, R93-8

On January 28, 1993, Uno-Ven, which succeeded Union as owner of the Refinery, filed a

petition requesting amendments to the site-specific rule granted by the Board on March 19, 1987.

In the Matter of: Petition of Uno-Ven to Amend Regulations, Pertaining to Water Pollution,

R93-8, slip op. at 1 (Dec. 16, 1993);

see

35 Ill. Adm. Code 304.213, In the Matter of: Proposal

of Union Oil Company of California to Amend the Water Pollution Regulations, R84-13, slip op.

at 13-14 (Mar. 19, 1987).

The Board noted that the original site-specific rule “required the refinery to continue its

effort to reduce the concentration of ammonia nitrogen in its wastewaters.” In the Matter of:

---

21

Petition of Uno-Ven to Amend Regulations, Pertaining to Water Pollution, R93-8, slip op. at 2

(Dec. 16, 1993). The Board stated that the Refinery had complied with this requirement by

spending more than $4.2 million since 1987 to improve its wastewater treatment plant.

Id

.;

see

Pet. Exh. 13. at 7 (¶20) (listing improvements). In spite of factors including greater crude oil

throughput, higher nitrogen content in the crude oil, and decreased wastewater volume, the

Board stated that, from 1986 to 1991, the Refinery had reduced its annual average ammonia

concentration from 22.2 mg/L to 2.4 mg/L, an 89% reduction. In the Matter of: Petition of Uno-

Ven to Amend Regulations, Pertaining to Water Pollution, R93-8, slip op. at 2 (Dec. 16, 1993).

The Board noted that Uno-Ven and the Agency had concurred in recommending changes

to the proposal originally filed by Uno-Ven. In the Matter of: Petition of Uno-Ven to Amend

Regulations, Pertaining to Water Pollution, R93-8, slip op. at 2 (Dec. 16, 1993). Ultimately, the

Board adopted the amendments proposed in Uno-Ven’s petition as modified by the agreement

between the Agency and Uno-Ven.

Id

. at 3. The Board established an ammonia nitrogen daily

maximum limit of 26.0 mg/L and 30-day monthly average limit of 9.4 mg/L.

Id

. at 2-6. The

Board also provided that “Uno-Ven shall continue its efforts to reduce the concentration of

ammonia nitrogen in its wastewaters.”

Id.

at 6;

see

Pet. Exh. 13. at 8 (¶21) (listing

improvements from 1992 to 1998). The Board also terminated the site-specific rule on

December 31, 1999. In the Matter of: Petition of Uno-Ven to Amend Regulations, Pertaining to

Water Pollution, R93-8, slip op. at 3, 7 (Dec. 16, 1993).

In the Matter of: Petition of PDV Midwest Refining, L.L.C. for a Site-Specific Rulemaking

Amendment to 35 Ill. Adm. Code 304.213, R98-14

On October 17, 1997, PDV, which succeeded Uno-Ven as owner of the Refinery, filed a

petition requesting amendments to and renewal of the site-specific rule addressing the Refinery’s

ammonia nitrogen discharges. In the Matter of: Petition of PDV Midwest Refining, L.L.C. for a

Site-Specific Rulemkaing Amendment to 35 Ill. Adm. Code 304.213, R98-14, slip op. at 1 (Dec.

17, 1998);

see

35 Ill. Adm. Code 304.213. While the Agency did not object to PDV’s petition, it

recommended that an amended rule include a termination date.

Id

. at 3. Ultimately, the Board

maintained an ammonia nitrogen daily maximum limit of 26.0 mg/L and 30-day monthly

average limit of 9.4 mg/L, maintained language requiring PDV to continue efforts to reduce the

ammonia nitrogen concentration in its wastewaters, and set a termination date of December 31,

2008.

Id

. at 6-7;

see

35 Ill. Adm. Code 304.213; Pet. Exh. 13 at 5-6 (¶15);

see also

Pet. Exh. 13

at 8 (¶22) (listing wastewater treatment improvements since 1998).

PVD (sic) Midwest Refinery, L.L.C. [and] Citgo Petroleum Corp. v. Environmental

Protection Agency, PV-2005-1 (Dec. 21, 2004)

Through faxes dated December 8, 2004, and December 10, 2004, petitioners sought a

provisional variance from their monthly average ammonia concentration limit of 9.4 mg/L. Pet.

Exh. 11 at 1. “On November 2, 2004, there was a malfunction in the treatment system at the

Lemont Refinery. One of the effects of the malfunction was that the microorganisms in the

treatment plant that biodegrade the ammonia were killed.”

Id

., Tr. at 117 (Postel testimony).

Consequently, the Refinery was unable to meet the ammonia concentration limit, and petitioners

---

22

sought a provisional variance until they reestablished the nitrification process in the wastewater

treatment plant. Pet. Exh. 11 at 1, Tr. at 117.

After reviewing petitioners’ request, the Agency concluded that

1.

The environmental impact from the proposed activity should be

minimal;

2.

No other reasonable alternative appears available;

3.

No public water supplies should be affected;

4.

No federal regulations will preclude the granting of this request;

and

5.

The Petitioners will face an arbitrary and unreasonable hardship if

the request is not granted. Pet. Exh. 11 at 1-2.

The Agency granted the requested provisional variance for a 45-day period beginning December

8, 2004, subject to conditions.

Id

. at 2, Tr. at 117. Among those conditions, the Agency required

that “[t]he monthly average ammonia limitation shall not exceed 15 mg/L.” Pet. Exh. 11 at 2.

CURRENT GENERALLY APPLICABLE STANDARD AND SITE-SPECIFIC RULE

Section 304.122 of the Board’s water pollution regulations provides in its entirety that

a)

No effluent from any source 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

of total ammonia nitrogen as N during the months of April through

October, or 4 mg/L at other times.

b)

Sources discharging to any of the above waters and whose untreated waste

load cannot 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 of more 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) of

this Section, all sources are subject to Section 304.105. 35 Ill. Adm. Code

304.122.

Section 304.213, petitioners’ current site-specific rule, provides in its entirety that

a)

This Section applies to discharges from the PDV Midwest Refining,

L.L.C. (PDVMR) Refinery, located in Lemont into the Chicago Sanitary

and Ship Canal.

---

23

b)

The requirements of Section 304.122(b) shall not apply to the discharge.

Instead PDVMR must meet applicable Best Available Technology

Economically Achievable (BAT) limitations pursuant to 40 CFR 419.23

(1992) incorporated by reference in subsection (c). PDVMR shall also

meet a monthly average limitation for ammonia nitrogen of 9.4 mg/1 and a

daily maximum limitation of 26.0 mg/1.

c)

The Board incorporates by reference 40 CFR 419.23 (1992) only as it

relates to ammonia nitrogen as N. This incorporation includes no

subsequent amendments or editions.

d)

PDVMR shall continue its efforts to reduce the concentration of ammonia

nitrogen in its wastewaters.

e)

PDVMR shall monitor the nitrogen concentration of its oil feedstocks and

report on an annual basis such concentrations to the Agency.

f)

PDVMR shall submit the reports described in subsection (e) no later than

60 days after the end of a calendar year.

g)

The provisions of this Section shall terminate on December 31, 2008. 35

Ill. Adm. Code 304.213.

PETITIONERS’ PROPOSED ADJUSTED STANDARD

In their petition, petitioners originally proposed that the Board adopt the following

adjusted standard:

a)

This standard applies to discharges from PDV Midwest Refining, L.L.C.

Refinery (“The Refinery”), located in Lemont into the Chicago Sanitary

and Ship Canal;

b)

The requirements of Section 304.122(b) shall not apply to the discharge.

The Refinery shall meet applicable Best Available Technology

Economically Achievable (BAT) limitations pursuant to 40 CFR 419.23

(2003), incorporated by reference in subsection (d);

c)

The Refinery shall also meet a monthly average limitation for ammonia

nitrogen of 6.93 mg/L whenever the monthly average discharge exceeds

100 lbs per day and 10.61 mg/L whenever the daily discharge exceeds 200

pounds of ammonia;

d)

The Board incorporates by reference 40 CFR 419.23 (2003) only as it

relates to ammonia nitrogen as N. This incorporation includes no

subsequent amendments of editions;

---

24

e)

The Refinery shall continue its efforts to reduce the concentration of

ammonia nitrogen in its wastewaters;

f)

The Refinery shall monitor the nitrogen concentration of its oil feedstocks

and report on an annual basis such concentrations to the Agency;

g)

The refinery shall continue its efforts to control and manage solids from its

crude oil supply with respect to its wastewater treatment system;

h)

The Refinery shall submit the reports described in subsection “f” no later

than 60 days after the end of the calendar year; and

i)

The provisions of this Section with respect to Ammonia Nitrogen shall

terminate on December 31, 2013. Pet. at 2-3 (¶4).

In their post-hearing brief, petitioners requested that the Board grant a revised adjusted

standard. Pet. Brief at 16, citing Pet. Brief, Att. C (Proposed Adjusted Standard Provisions).

Specifically, petitioners requested that the Board adopt the following language:

a)

This standard applies to discharges from PDV Midwest Refining, L.LC.

Refinery ("The Refinery"), located in Lemont into the Chicago Sanitary

and Ship Canal;

b)

The requirements of Section 304.122(b) shall not apply to the discharge.

The Refinery shall meet applicable Best Available Technology

Economically Achievable (BAT) limitations pursuant to 40 CFR 419.23

(2003), incorporated by reference in subsection (d);

c)

The Refinery shall also meet a monthly average limitation for ammonia

nitrogen of 6.93 mg/1 whenever the monthly average discharge exceeds

100 lbs per day and 10.61 mg/1 whenever the daily discharge exceeds 200

pounds of ammonia;

d)

The Board incorporates by reference 40 CFR 419.23 (2003) only as it

relates to ammonia nitrogen as N. This incorporation includes no

subsequent amendments or editions;

e)

The Refinery shall continue its efforts to reduce the concentration of

ammonia nitrogen in its wastewaters;

f)

The Refinery shall monitor the nitrogen concentration of its oil feedstocks

and report on an annual basis such concentrations to the Agency;

g)

The Refinery shall continue its efforts to control and manage solids from

its crude oil supply with respect to its wastewater treatment system;

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25

h)

The Refinery shall submit the reports described in subsection "f'” no later

than 60 days after the end of a calendar year;

i)

The Lemont Refinery will provide an additional 2MM gallons of

wastewater storage capacity. This additional storage tank capacity shall

be included in a construction permit application within three months of the

adoption of this adjusted standard;

j)

The Lemont Refinery will continue to participate with the Petroleum

Environmental Research forum on "Reducing Desalter Environmental

Impacts", and shall provide an annual progress update on the technologies

researched, potential for feasibility at the Refinery, and a time line for

bench scale application, if appropriate;

k)

CITGO and the Agency shall develop an appropriate malfunction/upset

definition condition for inclusion in the NPDES permit. The upset

condition shall address mechanical malfunctions in the production process

or in the wastewater treatment plant ("WWTP"), and situations in which

the organic loading to the WWTP exceeds the aeration capabilities or a

wastewater stream is inhibitory to nitrification; and

1)

The provisions of subsections (c) to (j) shall terminate on December 31,

2013, provided that the malfunction/upset condition required by

subsection (k) is in full force and effect by that time. Pet Brief, Att. C.

Derivation of Proposed Effluent Limits

Petitioners derived proposed ammonia effluent limits using ammonia effluent data

obtained from June 2002 through May 2007 and USEPA’s Technical Support Document for

Water Quality Based Toxics Control. Pet. Exh. 2 at 31; Huff Test. at 13, 15; Tr. at 126-27

(citing USEPA document No. 440/4-85-032 (Sept. 1985)). Under the USEPA document, ‘[t]he

limits for monthly and daily effluent concentrations are based on a statistical analysis using the

95th percentile values of the ammonia distribution. The methodology uses a multiplying factor

based upon the coefficient of variation and number of data points.” Pet. Exh. 2 at 31;

see id.

,

Appendix D (95th Percentile Effluent Calculations), Tr. at 126-27.

Applying the 95th percentile, the USEPA document calculates an average monthly

ammonia effluent limit of 6.9 mg/L. Pet. Exh. 2 at 32;

id

., Appendix D; Huff Test. at 13. It also

calculates a daily maximum ammonia effluent limit of 10.6 mg/L. Pet. Exh. 2 at 32;

id

.,

Appendix D; Huff Test. at 13.

STANDARD OF REVIEW

The regulations of general applicability at issue here do not specify a level of justification

required to qualify for an adjusted standard.

See

415 ILCS 5/28.1(c) (2006); 35 Ill. Adm. Code

---

26

104.406(c);

see also

Pet. at 20, Rec. at 6 (¶14). Accordingly, under Section 28.1(c) of the Act, a

petitioner must demonstrate that:

1)

factors relating to that petitioner are substantially and significantly

different from the factors relied upon by the Board in adopting the general

regulation applicable to that petitioner;

2)

the existence of those factors justifies an adjusted standard;

3)

the requested standard will not result in environmental or health effects

substantially and significantly more adverse than the effects considered by

the Board in adopting the rule of general applicability; and

4)

the adjusted standard is consistent with any applicable federal law. 415

ILCS 5/28.1(c) (2006);

see

35 Ill. Adm. Code 104.426(a);

see also

Pet. at

20, Rec. at 6.

Further, Section 28.1(a) of the Act provides that the Board may grant an adjusted

standard “for persons who can justify such an adjustment consistent with subsection (a) of

Section 27 of this Act.” 415 ILCS 5/28.1(a) (2006). Section 27(a) is a rulemaking provision that

requires the Board to “take into account,” among other things, “the technical feasibility and

economic reasonableness of measuring or reducing the particular type of pollution.” 415 ILCS

5/27(a) (2006).

SUBSTANTIALLY DIFFERENT FACTORS

Petitioners

Petitioners argue that several factors relating to them “are substantially and significantly

different from the factors relied on by the Board in adopting the water quality standards cited

here.” Pet. at 19 (¶52);

see

415 ILCS 5/28.1(c)(1) (2006). First, petitioners claim that “[t]he

Board has already found the situation for ammonia nitrogen treatment at the Refinery to be

unique and site-specific relief justified.” Pet. at 19 (¶52(a)), citing Petition of PDV Midwest

Refining, L.L.C. for a Site-Specific Rulemaking Amendment to 35 Ill. Adm. Code 304.213,

R98-14 (Dec. 17, 1998); In the Matter of: Petition of Uno-Ven to Amend Regulations,

Pertaining to Water Pollution, R93-8 (Dec. 16, 1993).

Second, petitioners claim that, when the Board adopted the generally applicable

regulation, the Refinery had just been constructed was not known as a source of ammonia

discharge into the Des Plaines River. Pet. at 19 (¶52(b));

see

In the Matter of: Effluent Criteria,

In the Matter of: Water Quality Standards Revisions, In the Matter of Water Quality Standards

Revisions for Intrastate Waters (SWB-14), R70-8, 71-14, 71-20, slip op. at 6, 25 (Jan. 6, 1972)

(adopting Rule 406). Specifically, petitioners argue that “[t]he Board did not then consider the

costs of treatment for ammonia in a refinery wastewater discharge and certainly did not

anticipate that treatment would require the kind of massive investment that would be required to

meet the ammonia nitrogen rule.” Pet. at 19 (¶52(b)).

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27

Third, petitioners claim that “[t]he discharge from the Refinery that will occur does not

pose any threat to human health or the environment and is not significantly greater than the

environmental impact that the Board was trying to control when it adopted the ammonia nitrogen

rule.” Pet. at 19 (¶52(c));

see

In the Matter of: Effluent Criteria, In the Matter of: Water Quality

Standards Revisions, In the Matter of Water Quality Standards Revisions for Intrastate Waters

(SWB-14), R70-8, 71-14, 71-20, slip op. at 6, 25 (Jan. 6, 1972) (adopting Rule 406). Petitioners

further claim that recent discharges have, in terms of mass, been “less than the ‘allowable’

discharge were the Refinery discharging at its design flow.” Pet. at 19 (¶52(c)).

In his testimony on behalf of petitioners, Mr. Huff claims that the Board adopted

ammonia effluent limits more than 36 years ago “solely because of the elevated ammonia/low

dissolved oxygen in the Illinois River.” Huff Test. at 11. Stating that these standards do not

apply to any other large water body, he claims that “[t]he conditions that lead to these unique

Illinois River Basin effluent standards no longer exist today.”

Id

. Mr. Huff argues that

petitioners require site-specific relief from “the unique Illinois River Basin regulations that were

based on river conditions that existed in the early 1970s, but no longer exist today.”

Id

. at 14.

Specifically, he claims that an overall decline in ammonia loading to the river and the occurrence

of nitrification with higher dissolved oxygen levels in the Canal “have virtually eliminated

unionized ammonia exceedances downstream of the Lemont refinery.”

Id

. at 15.

Fourth, petitioners argue that the Refinery does not differ from other Illinois refineries in

their wastewater treatment technologies, although “there are differences in specific design

details.” Pet. at 19 (¶52(d));

see

Pet. Exh. 10 at 14-15 (Table 3). Petitioners claim that, although

the Refinery can achieve biological nitrification, “it cannot do so on a consistent basis.” Pet. at

19 (¶52(d)). Petitioners also claim that “the Refinery continues to undertake investigations and

studies to determine how to be able to consistently provide nitrification.”

Id

.

Agency Recommendation

In its recommendation, the Agency addressed petitioners’ claim that factors relating to

the Refinery are “substantially and significantly different from the factors relied upon by the

Board in adopting the general regulation. . . .” Rec. at 6-11;

see

415 ILCS 5/28.1(c)(1) (2006).

Generally, the Agency argues that, in adopting ammonia regulations in 1972, the Board had

before it “extensive testimony as to the availability of methods for reducing ammonia in

effluent.” Rec. at 7 (¶15), citing In the Matter of: Effluent Criteria

, In the Matter of: Water

Quality Standards Revisions, In the Matter of Water Quality Standards Revisions for Intrastate

Waters (SWB-14), R70-8, 71-14, 71-20, slip op. at 6, 25 (Jan. 6, 1972) (adopting Rule 406). The

Agency further argues that, in adopting the regulation, the Board determined that “nitrification

can be satisfactorily accomplished for a reasonable price by a second stage of biological

treatment.” Rec. at 7 (¶15), citing In the Matter of: Effluent Criteria

, In the Matter of: Water

Quality Standards Revisions, In the Matter of Water Quality Standards Revisions for Intrastate

Waters (SWB-14), R70-8, 71-14, 71-20, slip op. at 6 (Jan. 6, 1972). The Agency also argues that

the Board reached the following conclusion:

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28

[t]he evidence is clear that for too long the oxygen demand exerted by ammonia

in domestic wastes has been overlooked in the emphasis on reduction of five-day

BOD. 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. Rec. at 7 (¶15), citing In the Matter of: Effluent Criteria, In the Matter of:

Water Quality Standards Revisions, In the Matter of Water Quality Standards

Revisions for Intrastate Waters (SWB-14), R70-8, 71-14, 71-20, slip op. at 6 (Jan.

6, 1972).

The Agency claims that, by adopting this effluent requirement, the Board intended “to provide a

uniform baseline of treatment technology to be employed by all facilities discharging into waters

of the State.” Rec. at 7 (¶15). The Agency further claims that petitioners are the only refinery

discharging to the Canal that fails to meet the generally applicable ammonia nitrogen standard.

Id

,

see

35 Ill. Adm. Code 304.122(b).

Next, the Agency addressed petitioners’ claim that “[t]he Board has already found the

situation for ammonia nitrogen treatment at the Refinery to be unique and site-specific relief

justified.” Rec. at 7-8 (¶16),

see

Pet. at 19 (¶52(a)). The Agency claims that, although the Board

has granted relief, its opinions did not reach these specific findings. The Agency also claims that

the Board emphasized ongoing efforts to reduce ammonia nitrogen concentrations in the

Refinery’s wastewater. Rec. at 8 (¶16), citing Petition of PDV Midwest Refining, L.L.C. for a

Site-Specific Rulemaking Amendment to 35 Ill. Adm. Code 304.213, R98-14, slip op. at 4 (Dec.

17, 1998).

The Agency also addressed petitioners’ claim that the Board did not consider the costs of

treatment for ammonia in a refinery’s wastewater discharge. Rec. at 8 (¶17);

see

Pet. at 19

(¶52(b)). The Agency claims that the Board considered the cost of that treatment to be

reasonable. Rec. at 8 (¶17). The Agency further claims that the Board was specifically

“convinced that nitrification can be satisfactorily accomplished at a reasonable price. . . . “

Id

.,

citing In the Matter of: Effluent Criteria

, In the Matter of: Water Quality Standards Revisions,

In the Matter of Water Quality Standards Revisions for Intrastate Waters (SWB-14), R70-8, 71-

14, 71-20, slip op. at 6 (Jan. 6, 1972).

The Agency then responds to petitioners’ claim that “[t]he discharge from the Refinery

that will occur does not pose any threat to human health or the environment and is not

significantly greater than the environmental impact that the Board was trying to control when it

adopted the ammonia nitrogen rule.” Rec. at 8 (¶18);

see

Pet. at 19 (¶52(c)). Specifically, the

Agency claims that, because the generally applicable regulation is technology-based and not a

water quality standard, petitioner’s “assertion is irrelevant to the issue at hand as there exist

removal technologies that are economically reasonable and technically feasible.” Rec. at 8 (¶18).

Finally, the Agency responds to petitioners’ claim that the Refinery does not differ from

other Illinois refineries in their wastewater treatment technologies, although “there are

differences in specific design details.” Rec. at 8-9 (¶19);

see

Pet. at 19 (¶52(d)). The Agency

notes that Petitioner’s Exhibit 9 describes wastewater treatment at the Refinery and at three other

---

29

sites in the state: Conoco Phillips in Roxana, Exxon Mobil in Joliet, and Marathon in Robinson.

Rec. at 8 (¶19);

see

Pet. Exh. 9 at 57-58 (Table 4-6). The Agency argues that these other three

refineries are capable of meeting the Board’s ammonia nitrogen limits. Rec. at 9 (¶19), citing 35

Ill. Adm. Code 304.122(b). The Agency expresses the view that the refinery may need “to

investigate whether its equipment if properly sized and operated for the current needs of the

facility” and whether it maintains adequate residence time in its aeration basins to ensure

consistent nitrification. Rec. at 9-10 (¶20). The Agency also expresses doubt that the Refinery’s

difficulty with maintaining sufficient nitrification stems from use of heavy crude oil. Rec. at 10-

11 (¶22), citing Pet. at 3, Pet. Exh. 9 at 30, 33. The Agency argues that other Illinois refineries

rely on the same crude oil supply while having “no difficulty meeting the applicable ammonia

limitations.” Rec. at 11 (¶22).

Petitioner’s Response

Petitioners’ testimony addresses arguments raised in the Agency’s recommendation.

First, Mr. Stein counters the Agency’s claim that the Board had “extensive testimony” on

reducing effluent ammonia concentrations and that a second stage of biological treatment would

achieve satisfactory nitrification at a reasonable cost. Pet. Exh. 10 at 7-8, citing Rec. at 7 (¶15).

Mr. Stein emphasizes that the Board’s opinion adopting the ammonia nitrogen regulation

referred to the role of ammonia in domestic waste. Pet. Exh. 10 at 8;

see

In the Matter of:

Effluent Criteria, In the Matter of: Water Quality Standards Revisions, In the Matter of Water

Quality Standards Revisions for Intrastate Waters (SWB-14), R70-8, 71-14, 71-20, slip op. at 6

(Jan. 6, 1972). Mr. Stein cites two USEPA documents from 1974 and 1982 in support of his

argument that treatment of domestic wastewater differs fundamentally from treating refinery

effluents. Rec. at 8 (citations omitted).

Petitioners also address the Agency’s claim that the Refinery can achieve nitrification at a

reasonable price. In his testimony, Mr. Stein states that, between January 2006 and October

2007, the average ammonia concentration in the effluent was 122 lbs/day. Pet. Exh. 10 at 8,

citing Pet. Exh. 9 at 32 (Table 3-10). Mr. Stein further states that, with average daily flow of

7.13 million gallons and an ammonia nitrogen concentration limit of 3.0 mg/L, the Refinery

could daily discharge 178 pounds of ammonia. Pet. Exh. 10 at 8-9. Mr. Stein argues that there is

only “questionable” technical and economic justification to require the expenditure of more than

$3 million to achieve little additional removal and without the expectation of consistently

meeting the 3.0 mg/L standard.

Id

.

Petitioners also address the Agency’s claim regarding the environmental effect of the

requested relief. In his testimony, Mr. Huff notes that the Agency since the late 1980s has

supported relief from the Board’s ammonia nitrogen regulation “in part based on the absence of

environmental impact.” Huff Test. at 9. Mr. Huff also states that the Refinery “continues to

make progress in reducing its ammonia discharge.”

Id

. at 10. He argues that “[t]he requested

relief will

reduce

the permitted daily maximum by 59 percent.”

Id

. (emphasis in original).

Finally, petitioners confront the Agency’s arguments regarding other Illinois refineries.

Mr. Stein disputes the Agency’s claim that those other refineries meet the ammonia limit. He

states that, “[b]ased on a review of the available NPDES data, the Conoco Phillips Refinery is

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30

only in compliance with the 3 mg/L limit approximately 90% of the time and the Exxon Mobil

Refinery has been in compliance only since 2005.” Pet. Exh. 10 at 9. Mr. Stein also challenges

the Agency’s emphasis on retention time as a factor in nitrification. He indicates that, even in a

properly designed and operated wastewater treatment plant, a number of factors influences the

performance and the ability to achieve nitrification.

Id

.

EFFORTS TO ACHIEVE COMPLIANCE AND ALTERNATIVES

Petitioners

Petitioners argue that, as noted above, the Refinery has since 1984 undertaken a number

of efforts to reduce the concentration of ammonia nitrogen in its wastewaters. Pet. at 13-14

(¶¶37-39);

see supra

at 10 - 11 (Wastewater Treatment Plant Improvements). In addition, Ms.

Postel testified that the Refinery in the 12 to 18 months preceding the hearing took a number of

steps to improve its nitrification. Specifically, she testified that the Refinery had begun to

segregate the desalter water from other process wastewaters; continuously remove solids from

the process water tanks; use operational checks to conduct management of monoethylene amine

(MEA), which is used to scrub refinery gases and waters; and add an antifoam to the MEA

system. Tr. at 119.

In her testimony, Ms. Postel claimed that petitioners and their predecessors had spent

nearly $75 million to improve the Refinery’s wastewater treatment facilities, with nearly $45

million of those expenditures in the last ten years. Postel Test. at 7 (¶19). While Ms. Postel

acknowledges that “some of that was not done for the specific purpose of improving nitrification,

approximately one quarter of that investment had, as a substantial component, improving the

ability of the wastewater treatment process to provide nitrification.”

Id

. She further claims that

some improvements that were not intended chiefly to improve nitrification nonetheless improved

that process.

Id

. She cites as one example the Purge Treatment Unit (PTU), which the Refinery

installed as a component of a consent decree “in large part to ensure consistent ammonia

nitrogen removal.”

Id

., citing Pet. Exh. 10 at 7.

Petitioners claim that the Refinery processes an increasing proportion of heavy crude oils

and expects that trend to continue. Pet. at 3 (¶6), Postel Test. at 6 (¶18). Petitioners further

claim that, despite reliance on heavier crude oils, higher crude oil throughput, and decreased

volumes of wastewater, the Refinery has improved the performance of its ammonia removal.

Pet. at 15 (¶42), Postel Test. at 6 (¶16). Nonetheless, petitioners conclude that “the Refinery

cannot continuously meet the 3 mg/L limitation.” Pet. at 15 (¶44). Petitioners examined

alternatives to the Refinery’s current wastewater treatment process.

See

Pet. at 15-17 (¶¶45-47);

Pet. Exh. 9 at 40-60 (Section 4.0 Analysis of Alternatives).

On behalf of petitioners, AEI analyzed a number of technologies to determine whether

one or more might remove ammonia to an extent that would consistently comply with the 3 mg/L

standard. Pet. at 14 (¶40), Pet. Exh. 9 at 40. “AEI conducted an analysis of these treatment

technologies for application at the refinery based on technical and economic feasibility.”

Id

. Of

the technologies reported to be applicable to ammonia removal, AEI deemed the following to be

appropriate for evaluation for the Refinery:

---

31

1.

Biological Treatment Technologies/Adaptations

a.

Single-stage activated sludge.

b.

Single-stage activated sludge with the supplement of specialized

bacteria.

c.

Single-stage activated sludge with a powdered activated carbon

supplement.

d.

Single-stage activated sludge membrane bioreactor.

e.

Two-stage activated sludge.

f.

Two-stage biological treatment using activated sludge for the first

stage and a fixed media system for the first stage and a fixed media

system for the second stage.

2.

Land Treatment

3.

Wetlands Polishing

4.

Physical – Chemical Technologies

a.

Ion exchange.

b.

Air stripping.

c.

Steam Stripping.

d.

Breakpoint Chlorination. Pet. Exh. 9 at 40-41, Pet. Exh. 10 at 16.

After reviewing available literature, previous studies on the Refinery’s wastewater, and its own

experience with similar wastewaters, AEI specifically considered four technologies having “the

greatest potential for achieving the Illinois 3.0 mg/L ammonia nitrogen standard on a consistent

basis.”

Id

. at 41;

see

Pet. Exh. 10 at 5-6. These four are:

1.

Activated sludge with powdered activated carbon addition (PACT);

2.

Activated sludge with a fixed media system;

3.

Activated sludge with membrane bioreactor; and

4.

Activated sludge with breakpoint chlorination and dechlorination. Pet. Exh. 9 at

41;

see

Pet. Exh. 10 at 6, 16-17.

AEI analyzed each of these technologies as additions designed to improve the capability for

nitrification at the existing wastewater treatment system. Pet. Exh. 9 at 41. Specifically, AEI

developed process designs including “the actual design parameters, the required modifications to

the treatment system to implement these technologies, and a comparative cost estimate for each

design alternative.”

Id.

First, AEI examined activated sludge with powdered activated carbon addition. Pet. Exh.

9 at 43-46. This technology adds powdered activated carbon to the aeration basin mixed liquor

and “includes a wet air oxidation process which allows for recovery of the powdered activated

carbon (PAC).”

Id

. at 43. This alternative also requires “construction of a third secondary

clarifier to handle both the additional solids loading from the powdered carbon and the slower

settling nitrifying bacteria.”

Id

.;

see id

. at 44 (Table 4-2 design summary), 45 (Figure 4-1

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32

process flow diagram). This technology enhances the existing treatment system by “providing

removal of biologically resistant organics.”

Id

. at 43. “The mechanism for powdered activated

carbon to enhance biological nitrification appears to be through removal of inhibitory

compounds rather than enhanced nitrifier growth on the surface of suspended solids.”

Id

.;

see

Pet. Exh. 10 at 5.

In estimating the costs of implementing this option, AEI included facilities for carbon

regeneration and the disposal of sludge containing PAC. Pet. Exh. 9 at 43, 46. “Construction of

the new facilities will cost approximately $14,800,000, with an annual operating cost of

$1,424,000.”

Id

. at 46. With a capital recovery factor for 10 years at an interest rate of eight

percent, “[t]he annualized cost for this alternative is $3,630,000 per year.”

Id

.

AEI cautions that, while it anticipates that this technology can improve biological

nitrification, “[t]he powdered activated carbon may not be able to adsorb the compounds which

limit nitrification at the Lemont Refinery, and there is the possibility that compounds adsorbed

onto the activated carbon can deadsorb, under certain conditions.” Pet. Exh. 9 at 46. AEI also

cautions that addition of carbon may also result in increased production of sludge, higher

operating costs, and abrasion of mechanical equipment.

Id

. AEI concludes that “[o]verall, there

is no proven process reliability that the technology will achieve continuous compliance with the

3.0 mg/L ammonia nitrogen effluent criteria.”

Id

.

Second, AEI examined activated sludge with a fixed media system as a means of

improving biological nitrification. Pet. Exh. 9 at 46-49;

see

Pet. Exh. 10 at 6. “In this process,

the activated sludge system provides a suspended growth biological system for removal of the

organic components in the wastewater. This is then followed by a fixed media rotating

biological contactor (RBC),” closely-spaced discs mounted on a horizontal shaft and submerged

and rotating in the wastewater. Pet. Exh. 9 at 46,

see id

at 48 (Table 4-3 design summary), 49

(Figure 4-2 process flow diagram). “The surface of the discs provides an ideal mechanism for

nitrifying organisms to grow.” Pet. Exh. 9 at 46.;

see

Pet. Exh. 10 at 6, Tr. at 211-12 (Stein

testimony). AEI states that this alternative would require a tertiary clarifier, “since there will be

some sludge sloughing and additional solids discharging into the RBC system.” Pet. Exh. 9 at

47.

AEI estimates that the total cost of installing an RBC system at the Refinery would be

approximately $13,500,000. Pet. Exh. 9 at 47. With estimated annual operation and

maintenance expenses of approximately $1,220,000, AEI provides a total annual cost for this

alternative of $3,220,000.

Id

.;

see

Pet. at 17 (¶48), Pet. Exh. 10 at 17.

AEI cautions that this alternative may have drawbacks. Pet. Exh. 9 at 47. “RBC units

have been plagued with shaft failure problems caused by structural design problems, metal

fatigue and excessive biomass accumulation.”

Id

. Also, failure of the RBC media can result

from chemical incompatibility with the Refinery’s wastewater.

Id

. AEI concludes that,

“[b]ecause of these problems there is no assurance that this technology can consistently comply

with the 3.0 mg/L ammonia nitrogen criteria.”

Id

.

---

33

Third, AEI examined activated sludge with membrane bioreactor, a relatively new

technology. Pet. Exh. 9 at 47, 50-53, Pet. Exh. 10 at 5-6. This system “couples the activated

sludge process with membrane separation of the treated effluent from the mixed liquor.” Pet.

Exh. 9 at 47. With the membrane added directly to the aeration basins, the basins can maintain

high MLVSS levels and sludge ages.

Id

. at 50;

see id

. at 51 (Table 4-4 process design), 52

(Figure 4-3 process flow diagram). “[E]xisting secondary clarifiers would be converted to

sludge thickeners.”

Id

. at 50.

AEI estimates the total capital cost of this alternative to be $54,700,000. Pet. Exh. 9 at

50. With an annual operating cost of $3,280,000, “[t]he total annualized cost for the membrane

bioreactor alternative is $11,400,000.

Id

.

AEI cautions that, while this system allows good control of sludge age, “there is limited

experience in applying this technology to the petroleum refining industry for nitrogen removal.”

Pet. Exh. 9 at 50;

see

Pet. Exh. 10 at 5-6. AEI states that the system may accumulate a

concentration of compounds that inhibit nitrification.

Id

. In addition, existing systems have

experienced foaming and fouling of membranes, which requires costly cleaning and replacement.

Id

. at 50-51. AEI also notes this alternative requires high capital costs.

Id.

at 51. Finally, AEI

concludes by stating that “the process may not be able to provide consistent compliance with the

3.0 mg/L ammonia nitrogen criteria.”

Id

.

Fourth, AEI examined activated sludge with breakpoint chlorination/dechlorination. Pet.

Exh. 9 at 53-57. “Breakpoint chlorination provides chemical destruction of the ammonia

nitrogen.”

Id

. at 53. Specifically, wastewater is chlorinated following the activated sludge

system to generate a free chlorine residual.

Id

. “Decholorination is accomplished by adding

sulfur dioxide after the chlorine reaction is completed.”

Id

.;

see id

. at 54 (Table 4-5 design

summary), 55 (Figure 4-4 flow diagram).

AEI estimates the capital costs of this alternative to be $1,400.000. Pet. Exh. 9 at 56.

With an annual operating cost of $3,332,000, “[t]he estimated total annualized cost is $3,640,000

for the chlorination/dechlorination system.”

Id

.

Although AEI characterizes this technology as “the simplest of the proposed alternatives

in terms of operation and equipment requirements,” it also emphasizes its disadvantages. Pet.

Exh. 9 at 53. AEI states that, while dechlorination removes residual chlorine, it does not remove

chlorinated organic by-products.

Id

. at 56. AEI claims that regulatory authorities have sought to

prohibit the treatment of organic wastewaters with chlorine and chlorine-containing compounds

“because of the toxicity of the chlorinated organic by-products.”

Id

. Based on these issues, AEI

argues that this alternative “is not a justifiable treatment technology on organic containing

wastestreams for Lemont Refinery.”

Id

. at 56-57.

In his testimony on behalf of petitioners, Mr. Huff addressed the cost effectiveness of

these alternatives. Huff Test. at 12. He claims that, over the last decade, the Refinery has made

a net contribution of 43 pounds per day of ammonia to the Canal.

Id

., citing Pet. Exh. 5 at Figure

3 (Annual Average Ammonia Influent and Effluent Loading). Assuming that the lowest cost of

the four alternatives discussed in the preceding paragraphs would remove that 43 pounds per day

---

34

contribution, the annualized cost of $3,220,000 would translate to a cost of $205 per additional

pound removed. Huff Test. at 12. Petitioners also examined this by using effluent data from

June 2002 through July 2007. Pet. at 17 (¶48). “[A]ssuming the fixed media system would yield

an effluent of 0.5 mg/L, an additional 28,250 pounds of ammonia would be removed from the

Canal per year.”

Id

. With a $3,220,000 annualized cost of that system, petitioners argue that

removal costs would be $113.30 per pound.

Id.

Petitioners also look to other entities to review the cost effectiveness of their ammonia

removal. Petitioners argue that, after adjusting its figures for inflation, a 1983 analysis shows

that the Calumet Water Reclamation Plant removes ammonia at a cost of approximately $3.00

per pound. Pet. at 17 (¶48) (citation omitted), Huff Test. at 13. Petitioners also claim that the

Metropolitan Water Reclamation District of Great Chicago (MWRDGC) has spent $39 million

installing five side-stream aeration facilities along the Chicago Waterway. Pet. at 17-18 (¶49).

They argue that, by increasing dissolved oxygen concentrations, these facilities “address the

same problem as limits on ammonia concentration in effluent.”

Id

. By adding enough dissolved

oxygen to compensate for 720,000 pounds of ammonia per year, the MWRDGC’s installation

costs translate to a cost of approximately $7-10 per pound of ammonia oxidized.

Compare id

.

and

Pet. Exh. 10 at 13 (citing 1983 Huff & Huff assessment of Refinery discharge).

Petitioners further argue that, if the Board denies this request for an adjusted standard, the

Refinery would increase its carbon emissions. Huff Test. at 12. Assuming that the additional

wastewater treatment equipment would require 144 operating horsepower derived from coal,

“the additional pounds per year of carbon dioxide emitted will be 1,976,000.”

Id

., Tr. at 128-19.

Petitioners claim that this translates into 126 pounds of carbon dioxide emissions for every

additional pound of ammonia oxidized. Huff Test. at 13. Petitioners further claim “that

ammonia oxidation occurs naturally within the receiving stream, without carbon dioxide

generation.”

Id.

In addition to reviewing alternative wastewater treatment technologies that might

improve ammonia removal at the Refinery, petitioners also reviewed the performance of

technologies employed by the following other refineries in Illinois: Conoco Phillips in Roxana,

Exxon Mobil in Joliet, and Marathon in Robinson. Pet. Exh. 9 at 57;

see

Pet. at 18 (¶50), Postel

Test at 9 (¶25). That review concluded that “[t]he treatment process at the Lemont Refinery is

similar to that at the other Illinois refineries. All of the refineries employ the activated sludge

process for nitrogen removal.” Pet. Exh. 9 at 57. AEI found the activated sludge retention time

to be the only difference among the four treatment systems.

Id

. “The Conoco Phillips and

Marathon refineries have a longer retention time than the Lemont Refinery. The Exxon Mobil

and Lemont Refinery have similar activated sludge retention times.”

Id

. Petitioners argue that

none of the other three Illinois refineries “were using the technologies investigated by Aware

[AEI] as possible additions to the Lemont Refinery.” Pet. at 18 (¶50).

In testimony on behalf of petitioners, witnesses elaborated on these comparisons of the

Refinery with the other three Illinois refineries. With regard to Exxon Mobil, Mr. Huff

expressed the understanding that its refinery is constructing a PTU and intends to send the stream

from that unit into its biological wastewater treatment plant instead of bypassing that plant. Tr.

at 135. Mr. Huff characterizes this as “a higher risk approach,” as it requires an increased air

---

35

supply in the activated sludge unit, decreases separations of solids, and can produce filamentous

growth in the clarifiers.

Id.

at 130-31,

see also id

. at 133, 135-36 (Stein testimony). Mr. Huff

expresses the belief that this approach could have short-term negative effects on the system’s

ability to nitrify.

Id

. at 132-33. Mr. Stein agreed that, if an existing wastewater treatment plant

achieving nitrification begins to receive PTU discharge from an air pollution control device such

as an FCC, it may not be able to continue achieving nitrification.

Id.

at 134. Mr. Stein opined

that, under these circumstances, Exxon Mobil “very well could experience problems” and may

not “be able to handle and achieve nitrification with that PTU discharge going into the regular

plant.”

Id

. at 136. While the Exxon Mobil refinery is discharging under the terms of a site-

specific rule, the Agency understands that Exxon Mobil does not seek to extend that site-specific

rule to apply during the operation of the PTU. Tr. at 242-43; see Tr. at 150-51.

Mr. Huff also compared the Refinery with the Conoco Phillips refinery. Specifically, he

responded to the Agency’s claim that “Conoco Phillips does not have water quality based limits

due to its location on the Mississippi River, however nitrification is known to occur on a regular

basis given the ammonia levels measured in the effluent and the results on whole effluent

toxicity testing.”

See

Rec. at 9 (¶19), Tr. at 225-26 (Le Crone testimony). Examining Conoco

Phillips’ 2002-07 ammonia effluent levels, Mr. Huff argues that “[i]t is clear that Conoco

Phillips does not meet a 3.0 mg/L monthly average or a 6.0 mg/L daily maximum all the time.”

Huff. Test. at 10;

see

Tr. at 137-38, Pet. Exh. 10 at 9 (finding approximately 90% compliance).

He further argues that, because Conoco Phillips’ intake is groundwater, its average ammonia

discharge of 67 pounds per day can be considered a net discharge exceeding the Refinery’s net

discharge of 43 pounds per day.

Id

.;

see

Tr. at 138-39. Mr. Huff claims that, because of

differing water conservation practices, newer refineries such as the petitioners’ may “discharge

less water per barrel of crude processed than older refineries,” making it misleading simply to

compare the concentrations discharged. Huff Test. at 10. Mr. Huff concludes by stating that

“[t]he Lemont Refinery nitrifies a high percentage of the time and its effluent also passes the

whole effluent toxicity testing.”

Id

. He argues that Conoco Phillips’ discharge is “very similar

to” and “totally consistent with the Lemont Refinery’s performance.”

Id.

;

see

Tr. at 138.

Petitioners also sought to distinguish the Refinery from Marathon. At hearing, Mr. Stein

acknowledged that, while using an activated sludge system similar to the Refinery’s, Marathon

achieved low ammonia nitrogen concentrations in its effluent. Tr. at 152-53. The Agency

acknowledged, however, that Marathon was not subject to the ammonia nitrogen concentration

limit of 3.0 mg/L. Tr. at 235 (Le Crone testimony). Under the terms of a current permit dated

1989, Marathon was subject to mass-based limits with a daily average of 763 pound of ammonia

and a daily maximum of 1,679 pounds. Tr. at 235-36. In addition, the Agency expressed the

belief that Marathon relied on off-site treatment of the waste stream from its PTU. Tr. at 233-34.

AEI states that, while an addition such as a fixed media biological treatment unit at the

Refinery may remove more ammonia, it does so at significant expense. Pet. Exh. 9 at 59. AEI

also concludes that “”it is uncertain that the upgraded system would achieve consistent

compliance with the 3.0 mg/L ammonia nitrogen standard.”

Id

. AEI concludes that “upgrading

the treatment system with additional treatment technologies for ammonia removal is not

justified.”

Id

.;

see

Pet. at 16 (¶46), Postel Test. at 8-9 (¶23), Pet. Exh. 10 at 6, 17.

---

36

AEI notes that the Refinery has participated in various studies and programs to address

wastewater treatment and that it expects “to improve treatment plant performance based on

research through the Petroleum Environmental Research Forum.” Pet. Exh. 9 at 59. Although

stressing that nitrification may be affected by “the inherent variability in refinery wastes,” AEI

expects optimization of the existing system to yield improved performance of the treatment

system.

Id

. AEI’s analysis includes the recommendation:

that Lemont Refinery continue its ongoing research studies and projects designed

to optimize the existing wastewater treatment improvement system. These efforts

should be directed toward obtaining the maximum possible ammonia removal on

a consistent basis. Continued development of operational data under the varying

conditions inherent with refinery wastes will help to improve the performance of

the system, and will allow the maximum ammonia removal capability of the

system to be achieved.

Id

. at iii (Executive Summary).

Based in part on AEI’s report and conclusions, petitioners commit to “continue to investigate

improvements to its existing wastewater treatment system.” Pet. at 18 (¶51), Postel Test. at 10

(¶26). Specifically, petitioners state that

[i]t is believed that focusing on better solids handling from the desalter holds the

greatest promise for achieving improved wastewater treatment performance on a

consistent basis. The options that will be investigated include: an

in situ

solid

removal system, increased tankage to allow brine segregation, amine

management, and adjusting chemical usage to reduce emulsification in the

primary treatment units. Pet. at 18 (¶51), Postel Test. at 10 (¶26);

see

Tr. at 212-

14 (timing of investigations).

Agency Recommendation

In its recommendation, the Agency first addresses petitioners’ list of improvements made

since 1987 at the Refinery.

See

Pet. at 13-14 (¶¶37-39). Although the Agency acknowledges

that some of those listed improvements were installed to remove ammonia, it states that others

appear not to be directly related to ammonia removal and that some other provide multiple

benefits. Rec. at 5 (¶13). The Agency specifically cites the Refinery’s installation of a PTU,

stating that it “is unrelated to historic ammonia removal issues as it was installed specifically to

treat wastewater from the new FCC scrubber.”

Id

. The Agency argues that the $75 million of

wastewater treatment improvements claimed by petitioners are not itemized and explained and

are not entirely relevant to the issue of ammonia removal.

Id

. at 5-6, citing Pet. at 4 (¶8).

Mr. Stein addressed these claims in his testimony. He argues that many of the treatment

improvements listed by petitioners “were implemented to improve the overall treatment plant

performance and the overall treatment plant performance allowed the treatment plant to provide

increased biological nitrification.” Pet. Exh. 10 at 7. Specifically, he claims that gas flotation

removes oils and solids before they enter the activated sludge system, where they can inhibit

nitrification.

Id.

He further argues that cost of the PTU stemmed largely from the need to

provide consistent ammonia removal.

Id

.

---

37

The Agency’s recommendation also addresses the issue of detention times in the

Refinery’s aeration basins. The Agency notes that, while petitioners claim the operating

parameters for biological treatment are within proper ranges for providing nitrification, the

Refinery cannot consistently meet the ammonia nitrogen standard. Rec. at 9 (¶20). In this

regard, the Agency states that the Refinery’s “aeration basins have the lowest detention time of

the four refineries in Illinois.”

Id

., citing Pet. Exh. 9 at 58. The Agency claims that “[t]hese

longer detention times may be at least partially responsible for the more effective and more

consistent nitrification achieved at these facilities.” Rec. at 9-10 (¶20). The Agency argues that

petitioners need “to investigate whether its equipment is properly sized and operated for the

current needs of the facility, “ as they have not addressed “the adequacy of residence time in the

aeration basins to ensure that consistent nitrification is occurring.”

Id

. at 9 (¶20). The Agency

further argues that, while petitioners evaluated various treatment improvements, they “did not

consider the construction of an additional aeration basin and/or an associated additional clarifier

to provide a longer detention time, more in line with other refineries.”

Id

. at 9-10 (¶20);

see

Tr.

at 249-51 (Le Crone testimony).

After reviewing petitioners’ consideration of four specific treatment technologies, the

Agency notes that AEI has concluded that it is uncertain whether an upgraded system can

consistently achieve the 3.0 mg/L ammonia nitrogen standard. Rec. at 15-16 (¶¶31-36), citing

Pet. Exh. 9 at 59. The Agency disputes petitioners’ claim that “there are no alternatives that are

both technologically feasible and economically reasonable to achieve the ammonia reduction

necessary to comply with 35 Ill. Adm. Code 304.122(b).” Rec. at 16 (¶37), citing Pet. at 16.

The Agency argues that other Illinois refineries have successfully used these technologies to

achieve consistent compliance with the ammonia nitrogen standard. Rec. at 16 (¶37). The

Agency cites Exxon Mobil, which will construct additional clarifiers to increase detention time

and intends to meet the ammonia nitrogen concentration limits at 35 Ill. Adm. Code 304.122 (b).

Rec. at 10 (¶21). The Agency suggests that “this upgrade may be at least partially responsible

for meeting the applicable ammonia limits.”

Id

.

The Agency suggest that petitioners have been vague in proposing to monitor the

nitrogen content of its feedstock, to continue efforts to reduce ammonia, and to control and

manage solids from its crude oil supply. Rec. at 17 (¶39), citing Pet. at 11. The Agency argues

that petitioners “should perhaps duplicate technology designs of one of the other refineries, such

as Exxon Mobil, so that it can also comply with the applicable standard.” Rec. at 17 (¶39).

Specifically, the Agency claims that petitioners should “focus on the performance efficiencies of

its biological treatment process, and improvements to the solids handling process and the

desalter.”

Id

.

Petitioners’ Brief

In their post-hearing brief, petitioners argue that, in spite of the Canal’s poor habitat and

lack of support for fish consumption, aquatic life, and human recreational activities, “ammonia

concentrations in the Canal are quite low, below 1 mg/L.” Pet. Brief at 7, citing Tr. at 55-57

(Huff Test. at 4-6). Petitioners further argue that “the unionized concentrations have been

consistently below 0.010 mg/L.” Pet. Brief at 7, citing Tr. at 58 (Huff Test. at 5-6). Petitioners

---

38

emphasize that they have derived proposed ammonia nitrogen limits based on a statistical

analysis using the 95th percentile of the standard deviation and relying on last five years of

effluent data. Pet. Brief at 7. Petitioners claim that the proposed daily limits represent a

reduction of 59 percent compared with the current limits and that the proposed monthly limit

represents a reduction of 27 percent.

Id

., citing Tr. at 38 (Postel Test. at 6).

Petitioners claim that they and their predecessors have spent a significant amount of

money improving the Refinery’s wastewater treatment system: a total of nearly $75 million and

approximately $45 million in the last ten years. Pet. Brief at 11, citing Tr. at 39-40 (Postel Test.

at 7). Petitioners itemize 15 improvements, most of which they characterize as a direct

improvement to nitrification. Pet. Brief at 11-12, citing Tr. at 40-43 (Postel Test. at 7-8).

Petitioners claim that they will continue those efforts with compliance measures they propose.

Pet. Brief at 12. Claiming that the Refinery’s wastewater treatment system already exceeds BAT

requirements, petitioners claim that “[n]o technology can assure that the Refinery will meet the

ammonia nitrogen limits of 3 mg/L/day monthly average and 6 mg/L/day maximum.” Pet. Brief

at 9. Petitioners note AEI’s conclusion that upgrading the Refinery’s treatment technology is not

justified.

Id

., citing Tr. at 91, 111 (Stein testimony);

see

Pet. Exh. 9 at 59.

Petitioners strenuously dispute the Agency’s claim that other Illinois refineries “are able

to guarantee compliance” with a monthly average ammonia concentration limit of 3.0 mg/L and

a daily maximum limit of 6.0 mg/L.” Pet. Brief at 14. Petitioners stress that the Marathon

refinery “does not send its scrubber effluent to its wastewater stream.”

Id.

at 5, 14

,

citing Tr. at

233-34 (LeCrone testimony). Petitioners argue that, “[d]espite the fact that Southern Illinois has

warmer weather, and the avoidance of scrubber effluents, Marathon still has effluent of similar

qualities to CITGO.” Pet. Brief at 14. With regard to Conoco Phillips, petitioners argue that the

Agency has not provided persuasive evidence about its effluent and cannot support the argument

that it complies with the generally applicable standard.

Id

. at 5, 14. With regard to Exxon

Mobil, petitioners argue that it has not begun operating its FCC unit or adding effluent from that

unit to its wastewater treatment system. Under these circumstances, petitioners claim that Exxon

Mobil’s apparent decision to delay a request for regulatory relief constitutes “a risk.”

Id

.

Petitioners state that the Refinery is poised to take steps to improve nitrification. Pet.

Brief at 15. Specifically petitioners state that the Refinery plans to do the following:

1) maintain an additional 2MM gallons of wastewater storage capacity; 2)

participate with the Petroleum Environmental Research Forum on “Reducing

Desalter Environmental Impacts,” including an annual progress report to the

Board regarding the technologies researched, potential for feasibility at the

Refinery, and a time line for bench scale application; and 3) work with the

Agency to develop a malfunction/upset definition for inclusion in the next

NPDES permit to address disruptions in nitrification. Pet. Brief at 15.

Petitioners stress that they have incorporated these plans into their proposed adjusted standard.

Pet. Brief at 5-6;

see id

., Attachment C (proposed conditions i, j, and k). Petitioners emphasize

that the nature of petroleum refining may upset the nitrification process. Pet. Brief at 5.

Petitioners argue that additional treatment technologies will not eliminate the risk of these upsets,

---

39

although specific steps can make the nitrification process more reliable and reduce the impact of

any upsets on wastewater treatment.

Id

. at 5-6. Petitioners conclude that “[t]he steps being

pursued by the Refinery are, without question, the appropriate measures to pursue.”

Id

. at 16.

Agency Brief

The Agency argues that, in granting the Refinery’s previous petitions for site-specific

rules, the Board has required continuing effort to meet the generally-applicable rule and has set a

date on which the regulatory relief expires. Agency Brief at 5 (¶14), citing In the Matter of:

Petition of PDV Midwest Refining, L.L.C. for a Site-Specific Rulemaking Amendment to 35 Ill.

Adm. Code 304.213, R98-14, In the Matter of: Petition of Uno-Ven to Amend Regulations,

Pertaining to Water Pollution, R93-8, In the Matter of: Proposal of Union Oil Company of

California to Amend the Water Pollution Regulations, R84-13. The Agency suggests that

technical limitations prevented the Refinery from complying with the generally-applicable rule

and that it was therefore appropriate for the Board to extend the expiration date from one site-

specific rule to another.

See

Agency Brief at 5-6 (¶¶15-17). The Agency further suggests that,

because those technical limitations no longer apply, the Refinery must now comply with the 3.0

mg/L ammonia nitrogen concentration limit on or before December 31, 2008, the expiration of

the current site-specific rule.

See id

.;

see also

In the Matter of: Petition of PDV Midwest

Refining, L.L.C. for a Site-Specific Rulemaking Amendment to 35 Ill. Adm. Code 304.213,

R98-14.

The Agency argues that petitioners acknowledge all four refineries in Illinois use

wastewater treatment technologies that are very similar to one another. Pet. Brief at 6 (¶18).,

citing Postel Test. at 9 (¶25), Pet. Exh. 10 at 14. The Agency further argues that the three

refineries other than petitioners’ “have demonstrated that the goals and expectations of Section

304.122(b) can be met and

are technically feasible

.” Pet. Brief at 6 (¶19) (emphasis in original);

see

35 Ill. Adm. Code 304.122(b). The Agency claims that, since 2005, Exxon Mobil has

complied with that standard. Agency Brief at 6-7 (¶19(a)), citing Agency Exh. 5. The Agency

also claims that, since at least April of 2004, Marathon has also complied with that standard.

Agency Brief at 7 (¶19(b)), citing Agency Exh. 6. The Agency states that Conoco Phillips is not

required to comply with Section 304.122(b). Agency Brief at 7 (¶21). The Agency argues that

“CITGO is the

only

oil refinery in the State of Illinois that would otherwise be required to

comply with Section 304.122(b) that has

yet to agree

to meet this general rule of applicability.”

Pet. Brief at 7 (¶20) (emphasis in original).

The Agency emphasizes its observation that longer detention times for the activated

sludge at the other refineries in Illinois “may contribute” to their compliance with the rule of

general applicability. Agency Brief at 8 (¶22), citing Rec. at 9 (¶20), Pet. Exh. 10 at 15 (Table

3), Pet. Exh. 9 at 58 (Table 4-6). The Agency notes Mr. Stein’s agreement that, among the

treatment systems at the four refineries, retention time appears to be the only difference. Agency

Brief at 8 (¶23), citing Pet. Exh. 10 at 14. The Agency also notes that, while Mr. Stein referred

to a comparison of food to micro-organism ratios as a “more realistic evaluation,” he had not

performed such a study. Agency Brief at 8 (¶24). The Agency argues that petitioners have

failed to demonstrate that compliance with the Board’s ammonia nitrogen standards is not

---

40

technically feasible at the Refinery.

See

Agency Brief at 10 (¶29). The Agency concludes by

requesting that the Board deny petitioners’ request for relief.

Id

. (¶31).

Petitioners’ Reply

In response to the Agency’s arguments about the expiration of regulatory relief (

see

Agency Brief at 5-6), petitioners state that “[t]he sunset provision in R84-13 did not preclude the

Board’s order in R93-8. The sunset provision in R93-8 did not preclude an even longer-lasting

Order in R98-14.” Reply at 3; citing In the Matter of: Petition of PDV Midwest Refining,

L.L.C. for a Site-Specific Rulemaking Amendment to 35 Ill. Adm. Code 304.213, R98-14, In the

Matter of: Petition of Uno-Ven to Amend Regulations, Pertaining to Water Pollution, R93-8, In

the Matter of: Proposal of Union Oil Company of California to Amend the Water Pollution

Regulations, R84-13. Petitioners argue that they have proposed an adjusted standard with only

half of the duration of the relief granted by the Board in R98-14. Reply at 3, citing In the Matter

of: Petition of PDV Midwest Refining, L.L.C. for a Site-Specific Rulemaking Amendment to 35

Ill. Adm. Code 304.213, R98-14. Petitioner further argue that no previous order granting

regulatory relief to the Refinery has the Board ever indicated that it was the final relief the Board

would grant. Reply at 5. Petitioners also argue that “[n]owhere in the record of the 1998

rulemaking did the Agency argue ‘this is it.’”

Id

.

Petitioners also dispute the Agency’s claim regarding the technical feasibility of

complying with the generally applicable rule. Petitioners first emphasize that, while the four

Illinois refineries use similar wastewater treatment technologies, “they do not all utilize similar

air control methods, complete

on-site wastewater treatment, or identical configuration of

wastewater treatment technologies.” Reply at 5 (emphasis on original). Petitioners argue that

Exxon Mobil has not yet added its PTU discharge to its general wastewater treatment, an

addition which may jeopardize its ability to achieve nitrification.

Id

., citing Tr. at 137, 210-11,

244 (Stein and Huff testimony). Petitioners further argue that “Marathon does not discharge all

of its ammonia-nitrogen bearing waste stream through its wastewater treatment facilities” and

that warmer weather at its location is more conducive to nitrification. Reply at 5. Petitioners

also note that Conoco Phillips is not subject to the requirements of 35 Ill. Adm. Code 304.122(b).

Id

. Petitioners conclude by arguing that, in spite of its own efforts to reduce its ammonia

discharge, neither it nor any other Illinois refinery has yet demonstrated a consistent ability to

comply with that standard.

Id

. at 6.

Petitioners express astonishment that the Agency’s response brief emphasizes detention

time as a means of reducing ammonia discharges from the Refinery. Reply at 8;

see

Agency

Brief at 8. Petitioners argue that the Agency failed to claim persuasively in its recommendation

or its testimony at hearing that increased detention time would improve nitrification. Reply at 8.

Petitioners also claim that the Agency has overlooked testimony by Mr. Stein and Mr. Huff that

increased detention time would not solve the Refinery’s discharge issues.

Id

., citing Tr. at 138.

Specifically, petitioners argue that Mr. Stein testified that “increased detention time may actually

harm nitrification because it also leads to greater cooling.” Reply at 8, citing Tr. at 253-54.

Petitioners also note that the Agency has criticized Mr. Stein for failing compare the four

refineries’ food-to-microorganism ratios when those data are not publicly available and may

constitute trade secrets.

Id.

at 8-9.

---

41

Finally, petitioners argue that they have addressed all of the issues set forth in the Board’s

procedural rules and have met their burden of proof as set forth in the Act. Reply at 9, citing 415

ILCS 5/27(a) (2006), 35 Ill. Adm. Code 104.406. Suggesting that the Agency has not

successfully disputed their evidence, petitioners state that the Agency does not “present a

cognizable reason to deny the regulatory relief that Petitioner has so thoroughly demonstrated it

deserves.” Reply at 10.

IMPACT ON THE ENVIRONMENT

Petitioners

Petitioners argue that their requested relief “will not result in environmental or health

effects substantially and significantly more adverse than the effects considered by the Board in

adopting the rules of general applicability for ammonia nitrogen.” Pet. at 6 (¶17);

see

415 ILCS

5/28.1(c)(3) (2006). Petitioners claim that, over the last five years, the annual average discharge

to the Canal has been 102.4 pounds per day. Pet. at 6-7 (¶17). Petitioners further claim that,

with an estimated average of 26.2 pounds per day in the influent, the Refinery’s net average

discharge is 76.2 pounds per day.

Id

. Accordingly, “about 25 percent of the ammonia nitrogen

currently discharged is due to background conditions in the Canal.”

Id.

at 7, Postel Test. at 10

(¶27). Petitioners also argue that at a concentration of 3 mg/L, “the allowable discharge of

ammonia nitrogen from the Refinery is 145 pounds at the design average flow.” Pet. at 6 (¶17).

Petitioners claim on these bases that “[n]o adverse environmental impact, including harm to

aquatic life, will result from the granting of the requested adjusted standard.”

Id.

at 6.

Agency Recommendation

In its recommendation, the Agency “disagrees that the relief from the ammonia nitrogen

standard would not have any adverse environmental impacts.” Rec. at 11 (¶24). The Agency

argues that the requested relief would result in “much higher ammonia concentrations” in the

Canal.

Id

. The Agency further argues that this will render an area of the Canal “effectively

unavailable as habitat for sensitive forms of aquatic life.”

Id.

The Agency claims that requiring

the Refinery to meet the generally applicable standard would reduce the size of that area and

“help to improve the dissolved oxygen conditions in the Ship Canal.”

Id

.

Petitioners’ Brief

In their brief, petitioners emphasize that they have proposed ammonia nitrogen

concentration limits that reduce the current daily limit by 59 percent and the monthly average by

27 percent. Pet. Brief at 7, citing Tr. at 38 (Postel testimony). Petitioners further emphasize that

ammonia concentrations in the Canal generally fall below 1.0 mg/L. Pet. Brief at 7. Although

petitioners note that ammonia levels at the edge of the mixing zone are projected to be 0.805

mg/L, they claim that the Refinery is generally able to nitrify and achieve lower concentrations

after mixing.

Id

. at 8. Petitioner further stress that unionized ammonia concentrations

consistently fall below 0.010 mg/L with a recent maximum of 0.079 mg/L.

Id

. at 7, 8. Finally,

---

42

petitioners claim that “the Refinery’s impact on dissolved oxygen is so minimal that it is within

the margin of error of the sampling method.” Pet. Brief at 9, citing Tr. at 189 (Huff testimony).

Petitioners’ Reply

In their reply, petitioners look to regulatory relief previously granted by the Board and

argue that “the current environmental conditions are even more supportive of there being an

adjusted standard for the Refinery.” Reply at 3. Petitioners note the level of ammonia nitrogen

in the Refinery’s influent to claim that the Canal is a body of water dominated by effluent.

Id

. at

4. Petitioners claim, however, that the Canal now meets that ammonia nitrogen water quality

standard proposed in the Agency’s use attainability analysis.

Id

. Petitioners thus argue that

“there appears to be no environmental justification for any further reductions in ammonia

nitrogen discharges from the Refinery.

Id

., citing Tr. at 188 (Huff testimony). Petitioners further

argue that improved nitrification by municipal wastewater treatment plants “has achieved the

environmental result the Board sought in adopting 35 Ill. Adm. Code § 304.122(b).” Reply at 4.

Petitioners conclude by arguing that “[t]here is then no environmental basis for denying the

adjusted standard as requested by the Refinery.”

Id

.

CONSISTENCY WITH FEDERAL LAW

Petitioners

Petitioners state that the Clean Water Act (CWA) “requires states to identify impaired

waterways and the causes of impairment and then develop what is essentially a waste load

allocation for addressing the impairment.” Pet. at 9 (¶25) (citing Section 303(d) of the CWA).

Petitioners further states that Illinois in 1998 identifed 738 segments as impaired waterways and

developed a priority list for addressing them. Pet. at 9 (¶25). Petitioners claim that the Agency’s

2006 water quality report lists the Canal as impaired for a variety of reasons, none of which is

ammonia nitrogen.

Id.

at 9-10.

Petitioners argue that USEPA has adopted categorical limits applicable to industries

including petroleum refining. Pet. at 10 (¶28). Petitioners further argue that these regulations

“are less stringent than the limits in the existing site-specific rule.”

Id

., citing 40 C.F.R 419;

see

35 Ill. Adm. Code 304.213, Postel Test. at 5 (¶13). Petitioners also claim that the Board has

found that the Refinery’s wastewater treatment system exceeds BAT requirements. Pet. at 10

(¶28).

Petitioners state that USEPA has also “established effluent guidelines for wastewater

discharges by industry category. Pet. at 10 (¶29). On the basis of its processes and production,

the Refinery is classified as a cracking refinery with effluent limits based on production and

calculated on the basis of pounds per day.

Id

.;

see also

Postel Test. at 4-5 (¶12).

Petitioners also note that Illinois regulations limit the size of an allowable mixing zone to

25 percent of stream flow and require meeting water quality standards a the edge of that mixing

zone. Pet. at 10 (¶27);

see

35 Ill. Adm. Code 302.102. Petitioners argue that the requested

monthly average concentration of 6.9 mg/L as the projected discharge and 25 percent of the

---

43

Canal’s low flow yield “an incremental change of 0.17 mg/L at the edge of the mixing zone.”

Pet. at 10 (¶27);

see

Pet. Exh. 2 at 33. After noting that the Refinery has operated under a

number of variances and site-specific rules granted by the Board, petitioners argue that “the

relief here requested is not inconsistent with the effluent standards and area-wide planning

criteria under the Clean Water Act.” Pet. at 11 (¶32).

Agency Recommendation

In its recommendation, the Agency also notes that the CWA requires the state to identify

impaired waters, the pollutants causing impairment, and a priority ranking for developing a Total

Maximum Daily Load (TMDL). Rec. at 12 (¶25), citing 33 U.S.C. §1313(d). The Agency’s

2006 water quality report lists the Canal as impaired for indigenous aquatic life, with causes

including dissolved oxygen, polychlorinated biphenyls (PCBs), iron, oil, grease, total nitrogen,

and total phosphorus. Rec. at 12 (¶25). While the Agency acknowledges that ammonia nitrogen

is not one of the listed causes, it characterizes ammonia as an oxygen demanding substance.

Id

.

The Agency argues that requiring petitioners “to reduce the ammonia to levels required by

Section 304.122 would ensure that a source of oxygen demanding waste to the Ship Canal has

been eliminated.”

Id

. The Agency further argues that higher ammonia discharge levels would

delay attainment of the dissolved oxygen standard, a direct conflict with the requirements of the

CWA.

Id

.

Petitioners’ Response

Petitioner’s testimony addresses the Agency’s arguments on consistency with federal

law. Mr. Stein notes that “the long term ammonia discharge from the refinery in 2006-2007 was

122 lbs/day.” Pet. Exh. 10 at 10. He claims that this discharge “is actually significantly less on a

long term basis than the proposed permitting levels.”

Id.

Mr. Stein also expresses doubt that the

Refinery’s ammonia discharge would affect dissolved oxygen concentrations in the Canal.

Id

.

He states that, “on a long term average the ammonia discharge is less than would be permitted

under the 3 mg/L regulation.”

Id

.

BOARD DISCUSSION AND DETERMINATION

In the following subsections, the Board discusses each of the statutory factors that

petitioners must demonstrate in order to justify their requested adjusted standard and reaches its

findings on them.

Substantially Different Factors

Petitioners’ Position

Petitioners argue that several factors relating to them “are substantially and significantly

different from the factors relied on by the Board in adopting the water quality standards cited

here.” Pet. at 19. First, petitioners assert that “[t]he Board has already found the situation for

ammonia nitrogen treatment at the Refinery to be unique and site-specific relief justified.”

Id.

Second, petitioners claim that, when the Board adopted the generally applicable regulation, the

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44

Refinery had just been constructed and was not known as a source of ammonia discharge into the

Des Plaines River.

Id

. In this regard, petitioners argue that the Board did not consider the costs

of treatment for ammonia in a refinery wastewater discharge nor did it anticipate that treatment

to meet the ammonia nitrogen rule would require massive investment by the refineries.

Id.

Third, petitioners claim that “[t]he discharge from the Refinery that will occur does not

pose any threat to human health or the environment and is not significantly greater than the

environmental impact that the Board was trying to control when it adopted the ammonia nitrogen

rule.” Pet. at. 19. Petitioners further claim that recent discharges have, in terms of mass, been

“less than the ‘allowable’ discharge were the Refinery discharging at its design flow.”

Id

.

In his testimony on behalf of petitioners, Mr. Huff claims that the Board adopted

ammonia effluent limits more than 36 years ago “solely because of the elevated ammonia/low

dissolved oxygen in the Illinois River.” Huff Test. at 11. Stating that these standards do not

apply to any other large water body, he claims that “[t]he conditions that lead to these unique

Illinois River Basin effluent standards no longer exist today.”

Id

. Mr. Huff argues that

petitioners require site-specific relief from “the unique Illinois River Basin regulations that were

based on river conditions that existed in the early 1970s, but no longer exist today.”

Id

. at 14.

Specifically, he claims that an overall decline in ammonia loading to the river and the occurrence

of nitrification with higher dissolved oxygen levels in the Canal “have virtually eliminated

unionized ammonia exceedances downstream of the Lemont refinery.”

Id

. at 15.

Fourth, petitioners argue that the Refinery does not differ from other Illinois refineries in

their wastewater treatment technologies, although “there are differences in specific design

details.” Pet. at 19 (¶52(d));

see

Pet. Exh. 10 at 14-15 (Table 3). Petitioners claim that, although

the Refinery can achieve biological nitrification, “it cannot do so on a consistent basis.” Pet. at

19 (¶52(d)). Petitioners also claim “the Refinery continues to undertake investigations and

studies to determine how to be able to consistently provide nitrification.”

Id

.

Agency’s Position

The Agency asserts that petitioners have not provided adequate proof to demonstrate that

the factors relating to its Lemont Refinery are substantially and significantly different from the

factors relied upon by the Board in adopting the general regulations, as required by Section

28.1(c) of the Act. Rec. at 6, 18. The Agency notes that the Board adopted the generally

applicable ammonia nitrogen effluent standard at Section 304.122(b), from which petitioners

seek relief, in 1973. Rec. at 7. The Agency maintains that the Board intended this ammonia

nitrogen effluent standard to provide a uniform baseline of treatment technology for all facilities

having a waste load that could not be computed on a population equivalent basis.

Id.

The

Agency claims “Citgo is the only refinery discharging to the Ship Canal that has yet to meet the

ammonia nitrogen standard at 35 Ill. Adm. Code 304.122(b).”

Id.

According to the Agency, all refineries in the state with the exception of petitioners’ are

capable of meeting the ammonia nitrogen effluent standard specified at Section 304.122(b). Rec

.

at 9. The Agency notes that: Marathon Oil refinery regularly meets its permit limits, which are

based on the lower water quality based limits; Conoco Phillips Refinery achieves nitrification on

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45

a regular basis, even though it is not subject to effluent limits because it discharges to the

Mississippi River; and ExxonMobil will not be seeking an extension of its current site-specific

ammonia nitrogen effluent standard and will be subject to permit limits based on Section

304.122(b) in its next renewed permit.

Id.

at 9-10.

The Agency states that the wastewater treatment systems for the four refineries are

similar. They have preliminary oil separation, which is followed by an additional oil-water

separator using a gas floatation process, and the secondary treatment is provided by an activated

sludge system. Rec

.

at 9. Further, the Agency notes that, according to petitioners, the operating

parameters of their activated sludge system, including sludge age, food to microorganism ratio,

aeration levels, pH and temperature, are all within the appropriate ranges for providing

nitrification.

Id.

However, the Agency questions petitioners’ assertions regarding the operating

parameters of the activated sludge system. Specifically, the Agency notes that petitioners’

activated sludge treatment process has the lowest detention time when compared to the treatment

systems at the other refineries in the state. The Agency notes that detention time of petitioners’

aeration basin is 7.7 hours as compared to the detention times of 19.4 hours at ExxonMobil with

the upgraded aeration basin, 1.31 days at Conoco-Phillips and 1.54 days at Marathon.

Id.

, citing

Pet. Exh. 9 at 58.

The Agency contends that the petition does not address the issue of adequacy of

detention. Rec

.

at 9. The Agency states the “longer detention may be at least partially

responsible for the more effective and more consistent nitrification achieved at these facilities.”

Id.

at 9-10. The Agency asserts that, while petitioners considered a number of options for

increasing the biological treatment capacity, petitioners did not consider the option of increasing

detention time by constructing an additional aeration basin and/or an associated additional

clarifier.

Id

. at 10. The Agency illustrates its concerns regarding petitioners’ request by

providing a detailed comparison of petitioners’ situation with that of ExxonMobil.

The Agency notes that ExxonMobil is subject to the same ammonia nitrogen standard set

forth at Section 304.122(b) and has previously received relief from that standard. Rec. at 10.

However, the Agency states that “ExxonMobil is now forgoing further Board relief and will have

Section 304.122(b) permit limits in their next renewed permit.”

Id.

According to the Agency,

ExxonMobil’s process water treatment system consist of two API separators, air floatation units,

activated sludge system, and polishing pond for tertiary treatment. Further, the Agency states

that it has issued a construction permit that allows ExxonMobil to add additional clarifiers to the

existing treatment plant. The new clarifiers will increase the detention time of the activated

sludge system to 19.4 hours

2

.

Id.

at 9. The Agency maintains that petitioners did not adequately

address the issue of longer detention time at hearing. Agency Brief at 8.

Finally, regarding petitioners’ contention that maintaining adequate nitrification is

difficult because of a higher percentage of heavy crude in the recent years, the Agency notes that

petitioners receive crude oil from the same pipeline system that feeds the other refineries. Rec.

at 10-11. Based on the information from the other refineries in the state, the Agency concludes

that refineries other than petitioners’ “have or are making changes to process higher amounts of

2

According to AEI’s Report, the detention prior to upgrade is 10.9 hours. Pet. Exh. 9 at 58.

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46

heavy crude. Further, these refineries have no difficulty meeting the applicable ammonia

limitations.”

Id.

at 11.

Petitioners’ Response

Petitioners address arguments raised in the Agency’s recommendation in their hearing

testimony, posthearing brief, and posthearing reply brief. First, regarding the Agency’s position

that Board intended the ammonia nitrogen effluent standard to provide a uniform baseline of

treatment technology for all facilities, Mr. Stein testifying on behalf of petitioners emphasizes

that the Board’s opinion adopting the effluent standard referred to the role of ammonia in

domestic waste. Pet. Exh. 10 at 8;

see

In the Matter of: Effluent Criteria

, In the Matter of:

Water Quality Standards Revisions, In the Matter of Water Quality Standards Revisions for

Intrastate Waters (SWB-14), R70-8, 71-14, 71-20, slip op. at 6 (Jan. 6, 1972). Mr. Stein cites

two USEPA documents from 1974 and 1982 in support of his argument that treatment of

domestic wastewater differs fundamentally from treating refinery effluents. Rec. at 8.

Regarding the Agency’s contention that other refineries in the state are capable of

meeting the ammonia nitrogen effluent standard, petitioners argue that the Agency has not

provided reliable evidence to support its contention. Petitioners note that, according to the

Agency’s testimony, Marathon and Conoco-Phillips do not have concentration limits for

ammonia nitrogen. Pet. Br. at 13, citing Tr. at 222-224 (LeCrone testimony). Further,

petitioners note that the data provided by the Agency for ExxonMobil reflect ammonia nitrogen

concentration limits of “nine and twenty-three, for average and maximum concentration limits.”

Id.

Mr. Stein testified on behalf of petitioners that, “[b]ased on a review of the available NPDES

data, the Conoco Phillips Refinery is only in compliance with the 3 mg/L limit approximately

90% of the time and the Exxon Mobil Refinery has been in compliance only since 2005.” Pet.

Exh. 10 at 9.

Additionally, petitioners argue that compliance issues facing the Lemont refinery are

unique when compared to other refineries in the state. Petitioners note that the Lemont Refinery

is the only refinery in the state that “has actually implemented the compliance measures under

the Clean Air Act to reduce nitrogen and sulfur oxide emissions and is now discharging those

waste streams to a water of the state.” Pet. Br. at 5. Petitioners note that the Marathon refinery

does not treat its air pollution control wastewater in its treatment plant. Instead, Marathon hauls

its scrubber effluent offsite for treatment and disposal.

Id.

at 5, 14. Further, petitioners state that

the ExxonMobil refinery has not begun discharging its air pollution control waste stream to its

treatment plant. Petitioners maintain that, while ExxonMobil is not seeking an extension of its

site-specific rule, it is taking the risk of not meeting the ammonia nitrogen effluent limit on a

consistent basis when the air pollution control system becomes operational.

Id.

at 14-15. Thus,

petitioners maintain that no other refinery is discharging an increased level of ammonia nitrogen

resulting from Clean Air Act (CAA) compliance measures and consistently meeting the effluent

standard at Section 304.122(b).

Id.

Regarding the Agency’s concerns about the adequacy of the hydraulic detention time of

petitioners’ activated sludge system, petitioners maintain that detention time in the aeration basin

is not a solution in assuring compliance. Reply at 8. Petitioners cite to testimony of Mr. Stein

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47

and Mr. Huff to support their contention regarding the adequacy of detention time. Mr. Stein

testified that, since the overflow rate in the clarification system is lower than in the Exxon Mobil

and Conoco Philips refineries, additional clarification would not necessarily make any significant

improvement. Tr. at 99. He maintains that, in a properly designed and operated wastewater

treatment plant, the performance and the ability to achieve nitrification are influenced by a

number of factors. Tr. at 98. Mr. Huff testified that detention time does not equate to better

performance. Tr. at 138. He argued that the food to microorganism ratio was a better factor to

assess the performance of a biological wastewater treatment plant.

Id.

Regarding the Agency’s

assertions in its posthearing brief that petitioners did not evaluate the food to microorganism

(F/M) ratio, petitioners state that F/M ratio data for refinery treatment plants are not publicly

available. Petitioners claim that the Agency “may be the only body with access to private cross-

refinery data on food-to-microorganism ratio.” Reply at 8-9.

Discussion

The Board adopted the ammonia effluent standard at Section 304.122(a) on January 6,

1972, as Rule 406 to address the impact of ammonia nitrogen in municipal wastewater on

dissolved oxygen demand in the receiving stream.

See

In the Matter of: Effluent Criteria

, In the

Matter of: Water Quality Standards Revisions, In the Matter of Water Quality Standards

Revisions for Intrastate Waters (SWB-14), R70-8, 71-14, 71-20, (Jan. 6, 1972). Section

304.122(b) was adopted as an amendment to Rule 406 on June 28, 1973 in Docket R72-4.

See

In

the Matter of: Water Quality Standards Revisions, R72-4, slip op. at 1 (Nov. 8, 1973). This

amendment extended the ammonia nitrogen effluent limit of 3 mg/L to non-municipal

wastewater dischargers, mainly industrial dischargers. The Board did not address the issue of

available treatment technologies for various industrial dischargers, other than to state, “present

technology is capable of meeting this limit and should result in the removal of much ammonia

nitrification oxygen demand (NOD) from these stressed waterways. Ammonia removal from

such industrial wastes, when compared with removal from domestic wastes is rather easily

applied.”

See id

.

The Board agrees with petitioners that the long history of variances and site-specific

regulations granted to petitioners and their predecessors over the past 30 years establishes the

unique nature of ammonia nitrogen treatment in the refinery’s wastewater. However, it is also

clear from the record in the previous site-specific rulemaking proceedings that the Board

expected the Refinery to investigate alternatives to improve its effluent quality in order to

achieve compliance with the generally applicable effluent standard. To this end, the Board

specifically included a sunset provision in the site-specific rules applicable to the Lemont

Refinery. The most recent site-specific rule adopted in Docket R98-3 expires on December 31,

2008.

The Board notes that the sunset provision in the site-specific rules intended to provide a

means of periodic evaluation of the Refinery’s progress in improving its effluent quality and to

determine whether compliance with the generally applicable effluent standard is technically

feasible and economically reasonable. As summarized above under the factual background,

petitioners have submitted extensive information regarding their efforts to achieve compliance.

This information indicates that petitioners have made significant improvements to their

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48

wastewater treatment plant during the last 10 years. While some of the upgrades are indirectly

related to ammonia nitrogen treatment, the Board notes that upgrades to petitioners’ activated

sludge system improve the nitrification capability of the system. These upgrades include the

addition of a third aeration basin, the replacement of the existing mechanical surface aerators

with fine-bubble diffused air system, and the addition of a second secondary clarifier. The Board

believes that petitioners’ efforts to control ammonia nitrogen discharge have resulted in

improvement in effluent quality. Although petitioners are unable consistently to meet the

generally applicable ammonia nitrogen effluent limits, petitioners have proposed site-specific

ammonia nitrogen effluent limits that represent a reduction in the daily limit of 59 percent and in

the monthly limit of 27 percent when compared to the current site-specific limits.

While petitioners have taken significant strides in improving their effluent quality,

petitioners maintain that they continue to face unique challenges in their efforts to achieve

compliance. Petitioners note that the additional ammonia nitrogen loading from their air

pollution control system and processing a higher percentage of heavy crude in recent years affect

consistent compliance with the generally applicable effluent limits. The additional ammonia

nitrogen loading results from petitioners’ compliance with the CAA requirements to control

sulfur and nitrogen oxide emissions. The Board notes that at present the Lemont Refinery is the

only refinery in the state with ammonia nitrogen effluent concentration based limits that treats

and discharges air pollution control wastewater. Marathon hauls its air pollution control

discharge offsite, Conoco-Phillips does not have compliance issues since it is subject BAT mass

limits instead of concentration-based limits, and ExxonMobil’s air pollution control system is

still not operational. While ExxonMobil is not seeking an extension of its site-specific rule and

may become subject to the generally applicable effluent limits, petitioners predict that

ExxonMobil may face compliance issues once the air pollution control system becomes

operational.

Petitioners assert that the Board should account for uncertainty associated with

processing heavy crude and its impact on wastewater treatment. However, the Agency argues

that uncertainty associated with heavy crude is not significant since the other refineries receiving

crude from the same pipeline have no difficulty meeting the applicable ammonia limitation.

Again, the Board notes that the record indicates that all refineries in the state are not subject to

ammonia nitrogen concentration limits. Further, the Agency has not provided sufficient data to

determine whether the other refineries are capable of meeting the generally applicable ammonia

nitrogen effluent standards.

As noted above, the Board has previously found that the Lemont Refinery wastewater has

unique characteristics that affect its treatability to comply with the 3 mg/L ammonia nitrogen

effluent standard. The Board discussed the issues concerning the high ammonia nitrogen content

and inhibitory effects on the nitrifying bacteria of refinery wastewater in the initial site-specific

rulemaking.

See

In the Matter of: Union Oil Company of California to Amend Water Quality

Standards Regulations, R84-13 (Mar. 19, 1987). In the subsequent site-specific rulemakings

pertaining to the Lemont Refinery, the Board noted that, while the Refinery substantially reduced

the ammonia nitrogen discharges, the refinery was still unable to achieve compliance on a

consistent basis.

See

In the Matter of: Petition of PDV Midwest Refining, L.L.C. for a Site-

specific Rulemaking Amendment to 35 Ill. Adm. Code 304.213, R98-14 (Dec. 17, 1998); In the

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49

Matter of: Petition of UNO-VEN to amend Regulations Pertaining to Water Pollution, R93-8

(Dec. 16, 1993). Further, the record in the instant rulemaking indicates that petitioners continue

to face unique issues when it comes to achieving compliance with the ammonia nitrogen effluent

limits. Finally, petitioners’ evaluation of compliance alternatives, which are discussed below,

indicate that none of the alternatives are technically feasible or able to provide better control of

ammonia nitrogen than currently achieved by the Refinery.

Board Finding

As noted earlier, the Board adopted ammonia nitrogen effluent standards under Section

304.122(b) without addressing the availability of treatment technologies for various types of

industrial dischargers, particularly refinery wastewater. The Board did not anticipate the issues

concerning the treatability of the Lemont Refinery wastewater when it promulgated the ammonia

effluent limit at Section 304.122(b). In light of this, the Board finds that factors relating to

petitioners are substantially and significantly different from the factors relied upon by the Board

in adopting the general regulation applicable to petitioners.

Impact on the Environment

Petitioners’ Position

Petitioners assert that the requested relief “will not result in environmental or health

effects substantially and significantly more adverse than the effects considered by the Board in

adopting the rules of general applicability for ammonia nitrogen.” Pet. at 6. Petitioners claim

that, during the last five years, the annual average discharge to the Canal has been 102.4 pounds

per day. Pet. at 6-7. Petitioners further claim that, with an estimated average of 26.2 pounds per

day in the influent, the Refinery’s net average discharge is 76.2 pounds per day.

Id

.

Accordingly, “about 25 percent of the ammonia nitrogen currently discharged is due to

background conditions in the Canal.

Id.

at 7, Postel Test. at 10 . Petitioners also argue that, at a

concentration of 3 mg/L, “the allowable discharge of ammonia nitrogen from the Refinery is 145

pounds at the design average flow.” Pet. at 6.

Based on a 1992 study, petitioners claim that the refinery effluent is dispersed to a 10:1

dilution plume in an area 15 feet long by 8 feet wide in approximately 7 seconds, which is

considered as rapid and immediate under the Board regulations at 35 Ill. Adm. Code 302.102.

Pet. Brief at 8. According to that study, the overall mixing zone was determined to provide a

dilution ratio of 40:1.

Id.

Under current conditions with a lower 7-day 10-year flow in the

Canal, petitioners state that the mixing zone dilution ratio is 36.1:1. The ammonia level in the

Canal at the edge of the mixing zone was calculated to be 0.805 mg/L. Petitioners claim the

actual level will be much lower since the Refinery will be able to nitrify.

Id.

Further, petitioners note that the ammonia concentrations in the Canal are below 1 mg/L

and that unionized ammonia concentrations have been consistently below 0.010 mg/L. This

concentration is below the proposed change reflected in the ongoing Chicago Area Waterway

System rulemaking in Docket R08-9. Pet. Brief at 7. Finally, petitioners state that “the

refinery’s impact on dissolved oxygen [concentrations in the Canal] is so minimal that it is

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50

within the margin of error of the sampling method.”

Id

. at 9. In sum, petitioners claim that “[n]o

adverse environmental impact, including harm to aquatic life, will result from the granting of the

requested adjusted standard.” Pet. at 6.

Agency’s Position

In its recommendation, the Agency “disagrees that the relief from the ammonia nitrogen

standard would not have any adverse environmental impacts.” Rec. at 11. The Agency argues

that the requested relief would result in “much higher ammonia concentrations” in the Canal.

Id

.

The Agency further argues that this will render an area of the Canal “effectively unavailable as

habitat for sensitive forms of aquatic life.”

Id.

The Agency claims that requiring the Refinery to

meet the generally applicable standard would reduce the size of that area and “help to improve

the dissolved oxygen conditions in the Ship Canal.”

Id

. The Agency maintains that requiring

petitioners to meet the generally applicable ammonia nitrogen effluent limit would also help in

improving the dissolved oxygen conditions in the Canal. Agency Brief at 11.

Petitioners’ Response

In their reply, petitioners look to regulatory relief previously granted by the Board and

argue that “the current environmental conditions are even more supportive of there being an

adjusted standard for the Refinery.” Reply at 3. Petitioners note the level of ammonia nitrogen

in the Refinery’s influent to claim that the Canal is a body of water dominated by effluent.

Id

. at

4. Petitioners claim, however, that the Canal now meets the ammonia nitrogen water quality

standard proposed in the Agency’s use attainability analysis.

Id

. Petitioners thus argue that

“there appears to be no environmental justification for any further reductions in ammonia

nitrogen discharges from the Refinery.”

Id

., citing Tr. at 188 (Huff testimony). Petitioners

maintain that improved nitrification by municipal wastewater treatment plants “has achieved the

environmental result the Board sought in adopting 35 Ill. Adm. Code § 304.122(b).” Reply at 4.

Petitioners conclude that “[t]here is then no environmental basis for denying the adjusted

standard as requested by the Refinery.”

Id

.

Petitioners also address the Agency’s claim regarding the environmental effect of the

requested relief. In his testimony, Mr. Huff notes that the Agency since the late 1980s has

supported relief from the Board’s ammonia nitrogen regulation “in part based on the absence of

environmental impact.” Huff Test. at 9. Mr. Huff also states that the Refinery “continues to

make progress in reducing its ammonia discharge.”

Id

. at 10. He argues that “[t]he requested

relief will

reduce

the permitted daily maximum by 59 percent.”

Id

. (emphasis in original).

Discussion

The environmental impact of the refinery’s wastewater on the receiving stream has been

evaluated since the refinery was first granted relief in the form of a site-specific rule in 1987. At

that time, the Canal was violating both ammonia nitrogen and dissolved oxygen water quality

standards. These violations were expected to decline once the Metropolitan Water Reclamation

Districts’s (MWRD) Calumet plant achieved compliance with its ammonia nitrogen and BOD

effluent standards.

See

In the Matter of: Union Oil Company of California to Amend Water

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51

Quality Standards Regulations, R84-13 (Mar. 19, 1987). In 1993, the Board noted that studies

performed for UNO-VEN, petitioners’ predecessor, show that the Refinery’s discharge has no

substantial impact on dissolved oxygen levels. Further, the Refinery maintained that compliance

with the generally applicable effluent limit would not result in a measurable improvement of the

Illinois River System.

See

In the Matter of: Petition of UNO-VEN to amend Regulations

Pertaining to Water Pollution, R93-8 (Dec. 16, 1993). The Board notes that issues pertaining to

environmental impact were not raised during the adoption of a recent site-specific rule.

See id

.

The Board notes that the water quality of the Canal in terms of ammonia nitrogen has

improved significantly since the adoption of the initial site-specific rule for the Lemont Refinery.

As indicated by the water quality information provided by petitioners, the Canal meets the

ammonia nitrogen standard at the edge of the mixing zone. While a small portion of the Canal

within the mixing zone would be subject to higher ammonia levels, the Board notes that the

concept of mixing as a means of compliance is an integral part of the Board’s water quality

regulations. As long as mixing zone is established in accordance with the Board regulations,

mixing would have minimal impact on aquatic life. The Board also notes that the data on

ammonia nitrogen loading on the receiving stream indicate that the average mass loading during

the last five years is significantly lower than the maximum loading that would be allowed under

the generally applicable effluent limit of 3 mg/L.

Board Finding

The Board finds that the Lemont Refinery’s discharge does not have an adverse

environmental impact on the receiving stream. The water quality information submitted by

petitioners provides assurance that, even under the existing site-specific ammonia nitrogen

effluent limits, the Lemont Refinery does not adversely impact the Canal. In addition, the

improvement in the refinery’s effluent quality and the proposed reduction of the existing

ammonia nitrogen limits will have a positive impact on the receiving stream. However, the

Board expects petitioners to continue their efforts to further reduce their ammonia nitrogen

discharge and achieve full compliance with the generally applicable ammonia nitrogen effluent

standard. Accordingly, as proposed by petitioners, the Board will require petitioners to continue

its efforts to reduce ammonia discharge from the Lemont Refinery.

Consistency with Federal Law

Petitioners’ Position

Petitioners state that Section 303(d) of the Clean Water Act (CWA) “requires states to

identify impaired waterways and the causes of impairment and then develop what is essentially a

waste load allocation for addressing the impairment.” Pet. at 9. According to the Agency’s 2006

water quality report, the Canal is listed as impaired for a variety of reasons, none of which is

ammonia nitrogen.

Id.

at 9-10.

Petitioners note that USEPA has adopted categorical limits applicable to industries

including petroleum refining. Pet. at 10. Petitioners assert that these regulations “are less

stringent than the limits in the existing site-specific rule.”

Id

. citing 40 C.F.R 419;

see

35 Ill.

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52

Adm. Code 304.213, Postel Test. at 5. Petitioners claim that the Board has found that the

Refinery’s wastewater treatment system exceeds USEPA’s BAT requirements. Pet. at 10.

Petitioners state that USEPA has also “established effluent guidelines for wastewater discharges

by industry category.”

Id

. On the basis of its processes and production, the Refinery is classified

as a cracking refinery with effluent limits based on production and calculated on the basis of

pounds per day.

Id

.

Petitioners also note that Illinois regulations limit the size of an allowable mixing zone to

25 percent of stream flow and require meeting water quality standards at the edge of that mixing

zone. Pet. at 10;

see

35 Ill. Adm. Code 302.102. Petitioners maintain that the requested monthly

average concentration of 6.9 mg/L as the projected discharge and 25 percent of the Canal’s low

flow yield “an incremental change of 0.17 mg/L at the edge of the mixing zone.” Pet. at 10;

see

Pet. Exh. 2 at 33. After noting that the Refinery has operated under a number of variances and

site-specific rules granted by the Board, petitioners argue that the requested relief is not

inconsistent with the effluent standards and area-wide planning criteria under the Clean Water

Act. Pet. at 11.

Agency Position

The Agency states that allowing higher ammonia discharge levels to the Canal would be

in a direct conflict with the mandates of the Clean Water Act (CWA). Rec. at 12. Specifically,

the Agency notes that, pursuant to Section 303(d) of the CWA, the Canal is designated as

impaired for indigenous aquatic life use with dissolved oxygen as one of the causes. The

Agency asserts that federal regulations require states to conduct a total maximum daily load

(TMDL)

3

for pollutants causing impairment, and also for all pollutants that prevent or are

expected to prevent the attainment of water quality standards.

Id.

Since ammonia is an oxygen

demanding substance, the Agency argues that “adding higher ammonia discharge levels would

only further prevent attainment of dissolved oxygen standard.”

Id.

Discussion

The Board notes that when the first site-specific rule was adopted for the Refinery in

1987, USEPA stated that, “because the technology-based standard is clearly more stringent than

BAT and appears more stringent than dictated by water quality concerns, applicability is

appropriately a state decision.” See In the Matter of: Union Oil Company of California to

Amend Water Quality Standards Regulations, R84-13 (Mar. 19, 1987). USEPA thus indicated

that site-specific relief was consistent with the federal law at that time. Other than the issue of

consistency with Section 303(d) of the CWA, the record indicates that issues concerning federal

categorical requirements and BAT limitations have not changed since the adoption of the initial

site-specific rule.

3

TMDL (total maximum daily load) is a calculation of the maximum amount of a pollutant from

all contributing sources that a water body can receive and still meet the water quality standard.

Rec. at 12.

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53

Regarding the Agency’s argument that higher effluent ammonia nitrogen concentrations

prevents the attainment of dissolved oxygen standard, the Board notes that the studies performed

for UNO-VEN, Citgo’s predecessor, in support of its 1993 site-specific rule “show that the

refinery’s discharge has no substantial impact on dissolved oxygen levels.”

See

In the Matter of:

Petition of UNO-VEN to amend Regulations Pertaining to Water Pollution, R93-8 (Dec. 16,

1993). In this regard, Mr. Huff testified that, in the earlier rulemaking, petitioners used the

QUAL2E model to predict dissolved oxygen levels in the Canal and the Des Plaines River to the

Illinois River. He noted that, based on the level of the maximum daily load at low flow, the

impact on DO was a maximum of 0.06 mg/L, below what is capable of measurement with a

dissolved oxygen meter. Tr. at 189.

Board Finding

The Board finds that granting petitioners the requested relief from the ammonia nitrogen

effluent standard at Section 304.122(b) is not inconsistent with federal law. The record clearly

indicates that the proposed effluent limits are more stringent than the federal categorical and

BAT requirements. Further, granting of the requested relief does not have a significant impact

on the attainment of the dissolved oxygen standard in the Canal.

Efforts to Achieve Compliance and Alternatives

Petitioners’ Position

Petitioners argue that the Refinery has since 1984 undertaken a number of efforts to

reduce the concentration of ammonia nitrogen in its wastewaters. Pet. at 13-14. In addition, Ms.

Postel testified that the Refinery in the 12 to 18 months preceding the hearing took a number of

steps to improve its nitrification. Specifically, she testified that the Refinery had begun to

segregate the desalter water from other process wastewaters; continuously remove solids from

the process water tanks; use operational checks to conduct management of monoethylene amine

(MEA), which is used to scrub refinery gases and waters; and add an antifoam to the MEA

system. Tr. at 119.

In her testimony, Ms. Postel claimed that petitioners and their predecessors had spent

nearly $75 million to improve the Refinery’s wastewater treatment facilities, with nearly $45

million of those expenditures in the last ten years. Postel Test. at 7 (¶19). While Ms. Postel

acknowledges that “some of that was not done for the specific purpose of improving nitrification,

approximately one quarter of that investment had, as a substantial component, improving the

ability of the wastewater treatment process to provide nitrification.”

Id

. She further claims that

some improvements that were not intended chiefly to improve nitrification nonetheless improved

that process.

Id

. She cites as one example the Purge Treatment Unit (PTU), which the Refinery

installed as a component of a consent decree “in large part to ensure consistent ammonia

nitrogen removal.”

Id

., citing Pet. Exh. 10 at 7.

Petitioners claim that the Refinery processes an increasing proportion of heavy crude oils

and expects that trend to continue. Pet. at 3, Postel Test. at 6. Petitioners assert that, despite

reliance on heavier crude oils, higher crude oil throughput, and decreased volumes of

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54

wastewater, the Refinery has improved the performance of its ammonia removal. Pet. at 15,

Postel Test. at 6. Nonetheless, petitioners conclude that “the Refinery cannot continuously meet

the 3 mg/L limitation.” Pet. at 15 (¶44). As a part of its justification for requested relief,

petitioners examined alternatives to the Refinery’s current wastewater treatment process.

See

Pet. at 15-17; Pet. Exh. 9 at 40-60 (Section 4.0 Analysis of Alternatives).

This evaluation was performed by AEI on behalf of petitioners. AEI analyzed a number

of technologies to determine whether one or more might remove ammonia to an extent that

would consistently comply with the 3 mg/L standard. Pet. at 14 (¶40), Pet. Exh. 9 at 40. “AEI

conducted an analysis of these treatment technologies for application at the refinery based on

technical and economic feasibility.”

Id

. AEI evaluated activated sludge treatment (AST) and

various AST modifications, land treatment, wetland polishing, and physical-chemical treatment

technologies. Pet. Exh. 9 at 40-41. Based on an initial evaluation, which involved a review of

available literature, previous studies on the Refinery’s wastewater, and its own experience with

similar wastewaters, AEI specifically identified four activated sludge based technologies as

having “the greatest potential for achieving the Illinois 3.0 mg/L ammonia nitrogen standard on a

consistent basis.”

Id

. at 41;

see

Pet. Exh. 10 at 5-6. These four are:

Activated sludge with powdered activated carbon addition. (Pet. Exh. 9 at 43-46.)

This technology adds powdered activated carbon to the aeration basin mixed liquor and

“includes a wet air oxidation process which allows for recovery of the powdered activated

carbon (PAC).” Pet. Exh.9 at 43. This alternative also requires “construction of a third

secondary clarifier to handle both the additional solids loading from the powdered carbon

and the slower settling nitrifying bacteria.”

Id

.;

see id

. at 44 (Table 4-2 design summary), 45

(Figure 4-1 process flow diagram). This technology enhances the existing treatment system

by “providing removal of biologically resistant organics.”

Id

. at 43. “The mechanism for

powdered activated carbon to enhance biological nitrification appears to be through removal

of inhibitory compounds rather than enhanced nitrifier growth on the surface of suspended

solids.”

Id

.;

see

Pet. Exh. 10 at 5.

Activated sludge with a fixed media system.

(Pet. Exh. 9 at 46-49;

see

Pet. Exh. 10 at 6.)

In this process, the activated sludge system provides a suspended growth biological system

for removal of the organic components in the wastewater. This is then followed by a fixed

media rotating biological contactor (RBC), closely-spaced discs mounted on a horizontal

shaft and submerged and rotating in the wastewater. Pet. Exh. 9 at 46,

see id

at 48 (Table 4-3

design summary), 49 (Figure 4-2 process flow diagram). “The surface of the discs provides

an ideal mechanism for nitrifying organisms to grow.” Pet. Exh. 9 at 46;

see

Pet. Exh. 10 at

6, Tr. at 211-12 (Stein testimony). AEI states that this alternative would require a tertiary

clarifier, “since there will be some sludge sloughing and additional solids discharging into

the RBC system.” Pet. Exh. 9 at 47.

Activated sludge with membrane bioreactor

. Pet. Exh. 9 at 47, 50-53, Pet. Exh. 10 at 5-6.

This system “couples the activated sludge process with membrane separation of the treated

effluent from the mixed liquor.” Pet. Exh. 9 at 47. With the membrane added directly to the

aeration basins, the basins can maintain high MLVSS levels and sludge ages.

Id

. at 50;

see

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55

id

. at 51 (Table 4-4 process design), 52 (Figure 4-3 process flow diagram). “[E]xisting

secondary clarifiers would be converted to sludge thickeners.”

Id

. at 50.

Activated sludge with breakpoint chlorination/dechlorination.

Pet. Exh. 9 at 53-57.

“Breakpoint chlorination provides chemical destruction of the ammonia nitrogen.”

Id

. at 53.

Specifically, wastewater is chlorinated following the activated sludge system to generate a

free chlorine residual.

Id

. “Decholorination is accomplished by adding sulfur dioxide after

the chlorine reaction is completed.”

Id

.;

see id

. at 54 (Table 4-5 design summary), 55 (Figure

4-4 flow diagram).

AEI analyzed each of these technologies as additions designed to improve the capability for

nitrification at the existing wastewater treatment system. Pet. Exh. 9 at 41. Specifically, AEI

developed process designs including “the actual design parameters, the required modifications to

the treatment system to implement these technologies, and a comparative cost estimate for each

design alternative.”

Id.

The costs associated with each technology along with AEI’s findings on

technical feasibility of treating the Lemont refinery wastewater are summarized in the table

below.

Summary of AEI’s Evaluation of Compliance Alternatives

Treatment

Alternative

Capital Cost

($ Million)

Annual

Operating

Cost

($ Million)

Total

Annualized

Cost

($ Million)

Issues of Technical

Feasibility

AS with Powdered

activated Carbon

14.8

1.42

3.63

•

Lacks proven

reliability to

consistently achieve

3 mg/L

•

Results in increased

sludge production

AS with Rotating

Biological Contactor

(RBC)

13.5

1.2

3.2

•

History of shaft

failure

•

Chemical

incompatibility may

cause RBC media

failure

•

No assurance of

consistent

compliance with 3

mg/L limit

AS with Membrane

Bioreactor

54.7

3.3

11.4

•

New technology,

limited experience in

petroleum industry

•

Membrane

cleaning/replacement

very costly

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56

•

May not provide

consistent

compliance with 3

mg/L limit

AS with Breakpoint

chlorination/

dechlorination

14

3.3

3.6

•

Simplest in terms of

equipment/operation

•

Chlorinated by-

products in effluent

•

Not an appropriate

technology for

organics containing

waste streams

AEI states that, while an addition such as a fixed media biological treatment unit at the

Refinery may remove more ammonia, it does so at significant expense. Pet. Exh. 9 at 59. AEI

also concludes that “it is uncertain that the upgraded system would achieve consistent

compliance with the 3.0 mg/L ammonia nitrogen standard.”

Id

. AEI concludes that “upgrading

the treatment system with additional treatment technologies for ammonia removal is not

justified.”

Id

.;

see

Pet. at 16, Postel Test. at 8-9, Pet. Exh. 10 at 6, 17.

AEI notes that the Refinery has participated in various studies and programs to address

wastewater treatment and that it expects “to improve treatment plant performance based on

research through the Petroleum Environmental Research Forum. Pet. Exh. 9 at 59. Although

stressing that nitrification may be affected by “the inherent variability in refinery wastes,” AEI

expects optimization of the existing system to yield improved performance of the treatment

system.

Id

. AEI recommends that the Lemont Refinery continue its ongoing research studies

and projects designed to optimize the existing wastewater treatment system to obtain the

maximum possible ammonia removal on a consistent basis.

Id

. at iii (Executive Summary).

Based in part on AEI’s report and conclusions, petitioners have proposed to “continue to

investigate improvements to its existing wastewater treatment system.” Pet. at 18, Postel Test. at

10.

Cost Effectiveness of Compliance Alternatives

Petitioners relied on cost effectiveness of the compliance alternatives to illustrate the high

cost of implementing the lowest cost alternative at the Lemont refinery. In his testimony on

behalf of petitioners, Mr. Huff addressed the cost effectiveness of these alternatives. Huff Test.

at 12. He noted that, over the last decade, the Refinery has made a net contribution of 43 pounds

per day of ammonia to the Canal.

Id

., citing Pet. Exh. 5 at Figure 3 (Annual Average Ammonia

Influent and Effluent Loading). Assuming that the lowest cost of the four alternatives discussed

in the preceding paragraphs would remove that 43 pounds per day contribution, the annualized

cost of $3,220,000 would translate to a cost of $205 per additional pound removed. Huff Test. at

12. Mr. Huff determined the cost of removal on the basis of effluent data from June 2002

through July 2007 to be $113.30 per pound. Pet. at 17.

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57

Petitioners compared the cost effectiveness of the lowest cost compliance alternative to

the cost of ammonia removal at MWRD’s Calumet plant. Petitioners note that, after adjusting its

figures for inflation, a 1983 analysis shows that the Calumet Water Reclamation Plant removes

ammonia at a cost of approximately $3.00 per pound. Pet. at 17, Huff Test. at 13. Petitioners

also claim that the MWRD has spent $39 million installing five side-stream aeration facilities

along the Chicago Waterway to add oxygen to compensate for 720,000 pounds of ammonia

discharged by MWRD’s plants.

Id

. Including the cost of aeration, the cost per pound of

ammonia oxidized translated to approximately $7-10.

Id

. at 17-18

and

at 13 (citing 1983 Huff

& Huff assessment of Refinery discharge).

Wastewater Treatment at Other Refineries in Illinois

In addition to reviewing alternative wastewater treatment technologies that might

improve ammonia removal at the Refinery, petitioners also reviewed the performance of

technologies employed by the following other refineries in Illinois: Conoco Phillips in Roxana,

Exxon Mobil in Joliet, and Marathon in Robinson. Pet. Exh. 9 at 57;

see

Pet. at 18, Postel Test at

9. That review concluded that “[t]he treatment process at the Lemont Refinery is similar to that

at the other Illinois refineries. All of the refineries employ the activated sludge process for

nitrogen removal.” Pet. Exh. 9 at 57. AEI found only the activated sludge retention time to be

the only difference among the four treatment systems.

Id

. “The Conoco Phillips and Marathon

refineries have a longer retention time than the Lemont Refinery. The Exxon Mobil and Lemont

Refineries have similar activated sludge retention times.”

Id

.

Petitioners argue that none of the other three Illinois refineries “were using the

technologies investigated by Aware [AEI] as possible additions to the Lemont Refinery.” Pet. at

18. Further, petitioners strenuously dispute the Agency’s claim that other Illinois refineries “are

able to guarantee compliance” with a monthly average ammonia concentration limit of 3.0 mg/L

and a daily maximum limit of 6.0 mg/L.” Pet. Brief at 14. In testimony on behalf of petitioners,

witnesses elaborated on these comparisons of the Refinery with the other three Illinois refineries.

ExxonMobil.

With regard to Exxon Mobil, Mr. Huff expressed the understanding that its

refinery is constructing a PTU to manage its air pollution control discharge and intends to

send the stream from that unit into its biological wastewater treatment plant instead of

bypassing that plant. Tr. at 135. At present, the Exxon Mobil refinery is discharging

under the terms of a site-specific rule. However, according to the Agency, Exxon Mobil

does not seek to extend that site-specific rule to apply during the operation of the PTU.

Tr. at 242-43; see Tr. at 150-51. Mr. Huff characterizes this as “a higher risk approach,”

as the additional loading requires an increased air supply in the activated sludge unit,

decreases separations of solids, and can produce filamentous growth in the clarifiers.

Id.

at 130-31,

see also id

. at 133, 135-36 (Stein testimony). Mr. Huff expresses the belief

that this approach could have short-term negative effects on the system’s ability to nitrify.

Id

. at 132-33. Mr. Stein agreed that, if an existing wastewater treatment plant achieving

nitrification begins to receive PTU discharge from an air pollution control device such as

an FCC, it may not be able to continue achieving nitrification.

Id.

at 134. Mr. Stein

opined that, under these circumstances, Exxon Mobil “very well could experience

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58

problems” and may not “be able to handle and achieve nitrification with that PTU

discharge going into the regular plant.”

Id

. at 136.

Conoco Phillip Refinery

. Based on a review of Conoco Phillips’ 2002-07 ammonia

effluent levels, Mr. Huff states that Conoco Phillips does not meet a 3.0 mg/L monthly

average or a 6.0 mg/L daily maximum all of the time. Huff. Test. at 10;

see

Tr. at 137-

38, Pet. Exh. 10 at 9 (finding approximately 90% compliance). He further argues that,

because Conoco Philips’ intake is groundwater, its average ammonia discharge of 67

pounds per day can be considered a net discharge exceeding the Refinery’s net discharge

of 43 pounds per day.

Id

.;

see

Tr. at 138-39. Mr. Huff claims that, because of differing

water conservation practices, newer refineries such as petitioners’ may “discharge less

water per barrel of crude processed than older refineries,” making it misleading simply to

compare the concentrations discharged. Huff Test. at 10. Mr. Huff maintains that “[t]he

Lemont Refinery nitrifies a high percentage of the time and its effluent also passes the

whole effluent toxicity testing.”

Id

. He argues that Conoco Phillips’ discharge is “very

similar to” and “totally consistent with the Lemont Refinery’s performance.”

Id.

;

see

Tr.

at 138.

Marathon Refinery

. At hearing, Mr. Stein acknowledged that, while using an activated

sludge system similar to the Refinery’s, Marathon achieved low ammonia nitrogen

concentrations in its effluent. Tr. at 152-53. The Agency acknowledged, however, that

Marathon was not subject to the ammonia nitrogen concentration limit of 3.0 mg/L. Tr.

at 235 (Le Crone testimony). Under the terms of a current permit dated 1989, Marathon

was subject to mass-based limits with a daily average of 763 pound of ammonia and a

daily maximum of 1,679 pounds. Tr. at 235-36. Petitioners note that the Marathon

refinery does not treat its air pollution control wastewater in its treatment plant. Instead,

Marathon hauls its scrubber effluent offsite for treatment and disposal. Pet. Br

.

at 5, 14.

Agency Position

The Agency first addresses petitioners’ list of improvements made since 1987 at the

Refinery. While the Agency acknowledges that some the improvements were related to

ammonia removal, it states that others appear not to be directly related to ammonia removal and

that some other provide multiple benefits. Rec. at 5. The Agency argues that the $75 million of

wastewater treatment improvements claimed by petitioners are not itemized and explained and

are not entirely relevant to the issue of ammonia removal.

Id

. at 5-6, citing Pet. at 4 (¶8).

The Agency also addresses the issue of detention times in the Refinery’s aeration basins.

Regarding petitioners’ claims that the operating parameters for biological treatment at the

Refinery are within proper ranges for providing nitrification, the Agency states that the

Refinery’s “aeration basins have the lowest detention time of the four refineries in Illinois.”

Id

.,

citing Pet. Exh. 9 at 58. The Agency notes that the detention time in petitioners’ aeration basin is

7.7 hours as compared with ExxonMobil at 10.9 hours currently and an upgrade to 19.4 hours,

Conoco-Phillips at 31.4 hours, and Marathon at 37 hours.

Id.

The Agency claims that the

“[t]hese longer detention times may be at least partially responsible for the more effective and

more consistent nitrification achieved at these facilities.” Rec. at 9-10.

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59

The Agency argues that petitioners need “to investigate whether their equipment is

properly sized and operated for the current needs of the facility,” as it has not addressed “the

adequacy of residence time in the aeration basins to ensure that consistent nitrification is

occurring.” Rec. at 9. Regarding the evaluation of compliance alternatives, the Agency states

that petitioners “did not consider the construction of an additional aeration basin and/or an

associated additional clarifier to provide a longer detention time, more in line with other

refineries.”

Id

. at 9-10;

see

Tr. at 249-51 (Le Crone testimony). Further, the Agency disputes

petitioners’ claims that “there are no alternatives that are both technologically feasible and

economically reasonable to achieve the ammonia reduction necessary to comply with 35 Ill.

Adm. Code 304.122(b).” Rec. at 16, citing Pet. at 16. The Agency maintains that other Illinois

refineries have successfully used these technologies to achieve consistent compliance with the

ammonia nitrogen standard. Rec. at 16 (¶37). The Agency notes that ExxonMobil, which

intends to construct additional clarifiers to increase detention time, intends to meet the ammonia

nitrogen concentration limits at 35 Ill. Adm. Code 304.122 (b). Rec. at 10 (¶21). The Agency

suggests that “this upgrade may be at least partially responsible for meeting the applicable

ammonia limits.”

Id

.

In its post hearing brief, the Agency states that, in previous petitions, the Board has

required continuing efforts to meet the generally applicable rule and has set a date on which the

regulatory relief expires. Agency Brief at 5. The Agency claims that it was appropriate for the

Board to extend the expiration date from one site-specific rule to another because of technical

limitations in achieving compliance.

See

Agency Brief at 5-6. The Agency asserts that, because

those technical limitations no longer apply, the Refinery must now comply with the 3.0 mg/L

ammonia nitrogen concentration limit on or before December 31, 2008, the expiration of the

current site-specific rule.

See id.

The Agency argues that petitioners acknowledge all four

refineries in Illinois use wastewater treatment technologies that are very similar to one another.

Pet. Brief at 6, citing Postel Test. at 9, Pet. Exh. 10 at 14. Further, the Agency contends that the

three refineries other than petitioners’ “have demonstrated that the goals and expectations of

Section 304.122(b) can be met and

are technically feasible

.” Pet. Brief at 6 (emphasis in

original).

The Agency emphasizes its observation that longer detention times for the activated

sludge at the other refineries in Illinois “may contribute” to their compliance with the rule of

general applicability. Ag. Br. at 8. The Agency notes Mr. Stein’s agreement that, among the

treatment systems at the four refineries, retention time appears to be the only difference.

Id.

,

citing Pet. Exh. 10 at 14. The Agency also notes that, while Mr. Stein referred to a comparison

of food to micro-organism ratios as a “more realistic evaluation,” he had not performed such a

study. Agency Brief at 8. The Agency argues that petitioners have failed to demonstrate that

compliance with the Board’s ammonia nitrogen standards is not technically feasible at the

Refinery. Agency Brief at 10. The Agency concludes by requesting that the Board deny

petitioners’ request for relief.

Id

.

Petitioners’ Response

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60

In response to the Agency’s arguments about the expiration of regulatory relief (

see

Agency Brief at 5-6), petitioners state that “[t]he sunset provision in R84-13 did not preclude the

Board’s order in R93-8. Further, the sunset provision in R93-8 did not preclude an even longer-

lasting Order in R98-14.” Reply at 3; citing In the Matter of: Petition of PDV Midwest

Refining, L.L.C. for a Site-Specific Rulemaking Amendment to 35 Ill. Adm. Code 304.213,

R98-14, In the Matter of: Petition of Uno-Ven to Amend Regulations, Pertaining to Water

Pollution, R93-8, In the Matter of: Proposal of Union Oil Company of California to Amend the

Water Pollution Regulations, R84-13. Petitioners argue that they have proposed an adjusted

standard with only half of the duration of the relief granted by the Board in R98-14. Reply at 3,

citing In the Matter of: Petition of PDV Midwest Refining, L.L.C. for a Site-Specific

Rulemaking Amendment to 35 Ill. Adm. Code 304.213, R98-14. Additionally, petitioners argue

that in no previous order granting regulatory relief to the Refinery has the Board ever indicated

that it was the final relief the Board would grant. Reply at 5.

Petitioners also dispute the Agency’s claim regarding the technical feasibility of

complying with the generally applicable rule. Petitioners assert that, while the four Illinois

refineries use similar wastewater treatment technologies, “they do not all utilize similar

air

control methods, complete

on-site wastewater treatment, or identical configuration of wastewater

treatment technologies.” Reply at 5 (emphasis on original). Petitioners maintain that Exxon

Mobil has not yet added its PTU discharge to its general wastewater treatment, an addition which

may jeopardize its ability to achieve nitrification.

Id

., citing Tr. at 137, 210-11, 244 (Stein and

Huff testimony). Petitioners argue that “Marathon does not discharge all of its ammonia-

nitrogen bearing waste stream through its wastewater treatment facilities” and that warmer

weather at its southern Illinois location is more conducive to nitrification. Reply at 5. Finally,

petitioners note that Conoco Phillips is not subject to the requirements of 35 Ill. Adm. Code

304.122(b).

Petitioners express astonishment that the Agency continues to emphasize detention time

as a means of reducing ammonia discharges from the Refinery. Reply at 8. Petitioners maintain

that the Agency failed to support its claim with any evidence or testimony that increased

detention time would improve nitrification. Reply at 8. Petitioners claim that the Agency has

overlooked testimony by Mr. Stein and Mr. Huff that increased detention time would not solve

the Refinery’s discharge issues.

Id

., citing Tr. at 138. Specifically, petitioners argue that Mr.

Stein testified that “increased detention time may actually harm nitrification because it also leads

to greater cooling.” Reply at 8, citing Tr. at 253-54. Petitioners also note that the Agency has

criticized Mr. Stein for failing to compare the four refineries’ food-to-microorganism ratios when

those data are not publicly available and may constitute trade secrets.

Id.

at 8-9.

Finally, petitioners state that they have addressed all of the issues set forth in the Board’s

procedural rules and have met their burden of proof as set forth in the Act. Reply at 9, citing 415

ILCS 5/27(a) (2006), 35 Ill. Adm. Code 104.406. Claiming that the Agency has not successfully

disputed their evidence, petitioners assert that the Agency does not “present a cognizable reason

to deny the regulatory relief that Petitioner has so thoroughly demonstrated it deserves.” Reply

at 10.

Discussion

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61

Petitioners assert that their requested relief is justified due to lack of a technically feasible

and economically reasonable alternative for removing ammonia nitrogen and achieving

consistent compliance with the generally applicable ammonia nitrogen effluent standard at

Section 304.122(b). Petitioners support their assertions by relying on AEI’s evaluation of

petitioners’ present wastewater treatment plant and alternative ammonia removal technologies.

Pet. at 14. AEI evaluated the technical feasibility and economic reasonableness of several

compliance alternatives described above. The Board notes that AEI also evaluated petitioners’

present wastewater treatment plant and its operation to determine if the system is consistent with

USEPA BAT criteria, and whether the system conditions are conducive to biological

nitrification. Pet. Exh. 9 at 2. The Board will below discuss petitioners’ efforts to achieve

compliance, the technical feasibility and economic reasonableness of the compliance

alternatives, the Refinery’s present wastewater treatment plant, and issues raised by the Agency.

Petitioners’ Efforts to Achieve Compliance

The Board notes that petitioners have since 1984 undertaken a number of efforts to

reduce the concentration of ammonia nitrogen in its wastewaters. Pet. at 13-14. Specifically,

petitioners assert that they have spent nearly $45 million on various improvements to its

treatment plant since the granting of the current site-specific rule in 1998. While the Board

agrees with the Agency that not all improvements are directly related to reduction of ammonia

nitrogen, several upgrades such as addition of aeration basin, upgraded aeration system, and

addition of second secondary clarifier are directly related to the plant’s ability to nitrify.

Although a breakdown of the cost of various improvements related to nitrification would have

been helpful, the record clearly indicates that petitioners made significant efforts to improve the

Refinery’s effluent quality. The improvement in nitrification is reflected in the proposed

ammonia nitrogen effluent limits of 6.93 mg/L whenever the monthly average discharge exceeds

100 pounds of ammonia per day and 10.61 mg/L whenever the daily discharge exceeds 200

pounds. These proposed limits represent a 59 percent reduction of the daily limit and a 27

percent reduction of the monthly limit.

Additionally, the Board notes that petitioners have proposed to take additional steps to

further reduce the ammonia levels in its effluent during the course of the adjusted standard.

These measures include an additional 2 million gallons of storage capacity, participation in

investigation of reducing desalter environmental impacts, and work with the Agency to develop a

permit condition to address definition of malfunction/upset.

Compliance Alternatives - Technical Feasibility and Economic Reasonableness

The Board notes that AEI specifically identified four modifications of activated sludge

(AS) process system as having the greatest potential for achieving the ammonia nitrogen effluent

standard of 3.0 mg/L on a consistent basis. Pet. Exh. 9. at 41;

see

Pet. Exh. 10 at 5-6. These

technologies include AS with powdered activated carbon (PAC), AS with rotating biological

contactor (RBC), AS with membrane bioreactor, and AS with breakpoint

chlorination/dechlorination (BCD). The Board notes that, with the exception of AS with BCD,

AEI found that none of the other technologies assure consistent compliance with an effluent

---

62

standard of 3 mg/L. Regarding AS with BCD, AEI noted that, while the technology is capable of

removing ammonia, there is risk because of the formation of chlorinated organic compounds.

Since these compounds have toxic effect on aquatic life, AEI states that AS with BCD is not a

justifiable treatment technology for the Refinery’s organic containing waste stream.

The Board notes that, while all the four technologies evaluated by AEI are reported to be

applicable for providing ammonia removal, AEI evaluated to determine whether these

technologies are suitable for treating the Lemont Refinery wastewater to comply with the

effluent standard of 3 mg/L on a consistent basis. In this regard, the Board notes that AEI has

identified specific problems associated with each technology and that may result in the effluent

not meeting the effluent limit on consistent basis. AEI states that AS with PAC may not be able

to adsorb compounds which limit nitrification at the Refinery. This system also results in

increased sludge production, adding to the operating costs. Regarding AS with RBC, AEI notes

that there is a potential for chemical incompatibility with the refinery wastewater and that the

RBC system is prone to mechanical failure. AEI notes that membrane bioreactor is a new

technology with limited data on utilization in the petroleum industry. As noted above, AEI

maintains that AS with BCD is not a justifiable treatment technology for the Refinery’s

wastewater.

As summarized in a table above, AEI estimated the capital cost, annual operating cost,

and total annualized cost for the four compliance alternatives. The capital cost range from $54.7

million for AS with membrane bioreactor to $13.5 million for AS with RBC. The total

annualized cost range from $11.4 million for AS with membrane bioreactor to $3.2 million for

AS with RBC. Further, the Board notes that petitioners’ comparison of cost effectiveness shows

that the cost of removal of ammonia for the Refinery using AS with RBC, the lowest cost

compliance alternative, would be $205 per additional pound removed as compared to a cost of

$7-10 for the MWRD plant. The Board also notes that none of the other three refineries in the

state employ any alternative treatment technologies other than single stage activated sludge

treatment to achieve nitrification.

Aeration Basin Detention Time and F/M Ratio

The Agency raised the issue of aeration basin detention time as potential factor affecting

the degree of nitrification in the Refinery’s wastewater treatment plant. The Agency argues that,

while petitioners considered various options for increasing the biological treatment capacity, it

did not consider the construction of an additional aeration basin and/or an associated additional

clarifier. Rec. at 10. The Board notes that, according to AEI, the detention time in petitioners’

aeration basin is 7.7 hours as compared with ExxonMobil at 10.9 current hours and an upgrade to

19.4 hours, Conoco-Phillips at 31.4 hours, and Marathon at 37 hours. Pet. Exh. 9 at 58. The

Board recognizes the Agency’s concern regarding the issue of detention, since AEI noted that the

only difference between treatment systems of petitioners’ and other Illinois refineries is the

detention time.

However, Mr. Stein testifying on behalf of petitioners addressed the issue of detention

time. He stated that increased detention time would not solve the Refinery’s discharge issues.

Tr. at 138. Specifically, Mr. Stein explained nitrification was dependent a number of factors

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63

such as the F/M ratio, type of aeration system, and configuration of the aeration basin. Tr. at

174. Mr. Stein noted that detention time was one of the factors he considered in his evaluation of

the Refinery’s treatment plant. He found that the plant had adequate detention time since the

system was equipped with fine bubble diffusers, which are a better approach to get good oxygen

transfer. Tr. at 175. Mr. Stein also testified that increased detention time might actually harm

nitrification because it also leads to greater cooling. Tr. at 253-54. In this regard, he noted that

the threshold temperature between having good nitrification and experiencing problems is

around 68

o

F and that petitioners’ treatment plant operates at 72

o

F.

Regarding the Agency’s contention that petitioners should have evaluated the F/M of

other refinery treatment plants, petitioners state that AEI was not able to compare the F/M ratios

because such information is not publicly available. Petitioners note that the Agency may be the

only body with access to cross-refinery data on F/M ratio. The Board finds that, while

petitioners have generally addressed the issue of detention time, this factor must be further

evaluated as a part of petitioners’ ongoing investigation. Particularly, since the Agency claims

that a potential reason for ExxonMobil not seeking an extension of its site-specific relief is its

proposed expansion, which will increase its detention time. See Rec. at 10. The Board also

finds that petitioners should further evaluate the issue of F/M ratio, if the Agency is willing

provide the necessary F/M data.

Board Finding

The Board finds that petitioners have made significant efforts to achieve compliance

during the last 10 years. Further, the Board believes that petitioners’ commitment to continue its

efforts to reduce ammonia nitrogen discharge during the course of the adjusted standard, along

with any new data that may become available from other refineries, will help petitioners resolve

its compliance issues.

The Board also finds that, while ammonia removal beyond the current levels from the

Refinery’s wastewater may be technically feasible, the compliance alternatives do not assure

compliance with the effluent standard of 3 mg/L on a consistent basis. In light of this, the Board

finds that the high cost of associated with the implementation of the compliance alternatives is

not economically reasonable.

Other Issues

Chicago Area Waterway System (CAWS) Rulemaking (R08-9)

In October 2007, the Agency filed a proposal to amend the water quality standards of

Secondary Contact waterways under 35 Ill. Adm. Code 302, Subpart D as CAWS water quality

standards.

See

In the Matter of: Water Quality Standards and Effluent Limitations for the

Chicago Area Waterway System and the Lower Des Plaines River: Proposed Amendments to 35

Ill. Adm. Code Parts 301, 302, 303, and 304, R08-9 (Oct. 26, 2007) (proposed regulations). The

proposed amendments include ammonia nitrogen water quality standards similar to the General

Use ammonia water quality standard found at 35 Ill. Adm. Code 302.212(e). If adopted by the

Board, the proposed standards would apply to the Canal.

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Petitioners state that “the unionized ammonia nitrogen concentrations [in the Canal] have

been consistently below 0.010 mg/L, below even the proposed change reflected in R08-9.” Pet.

Br. at 7 citing Tr. at 58. Further, petitioners note that the Agency recently completed Use

Attainability Analyses [UAA] for the Lower Des Plaines River and the Chicago Area Waterways

and made those analyses the basis of a proposed change in the Board’s water regulations. Pet.

Exh. 2 at 30, citing Water Quality Standards and Effluent Limitations for the Chicago Area

Waterway System and the Lower Des Plaines River: Proposed Amendments to 35 Ill. Adm.

Code Parts 301, 302, 303, and 304, R08-9 (Oct. 26, 2007) (proposed regulations and statement of

reasons). Petitioners state that “[t]he refinery’s request for a site-specific ammonia limit is not

impacted by the UAA, nor will it have any impact on the Agency’s proposal in R08-09. The

available water quality data on the Ship Canal indicate that the proposed more restrictive

unionized ammonia water quality standard is currently being achieved.” Pet. Exh. 2 at 30.

Other than noting the assertions made by the petitioners, the Board will not make any

findings concerning the implications of the proposed CAWS water quality standards for

ammonia nitrogen. The Board believes that any implications of the CAWS proposal should be

addressed only upon the final adoption of that proposal.

Mixing Zone and Best Degree of Treatment (BDT)

The Board notes that petitioners intend to comply with the applicable ammonia nitrogen

water quality standard by utilizing a mixing zone established in accordance with 35 Ill. Adm.

Code 302, Subpart A. Pet. Exh. 2 at 9. One of the threshold requirements for the provision of a

mixing zone under the Board regulations is whether the discharger is providing best degree of

treatment (BDT) as it relates to the parameter of concern. See 35 Ill. Adm. Code 301.102(a).

Since the issue of technical feasibility of achieving compliance with the generally applicable

effluent limit was an issue of contention between the petitioners and the Agency, as discussed

below, the Board further finds that petitioners provide BDT at the Lemont Refinery to remove

ammonia nitrogen from its wastewater effluent. As such, petitioners qualify for a mixing zone

and a zone of initial dilution (ZID) pursuant to Section 302.102 of the Board’s regulations.

A mixing zone is “an area for allowed mixing which is formally defined by the Agency in

the NPDES permitting process and, if granted, is included as a condition in the permittee’s

NPDES permit.” Granite City Division of National Steel Co.,

et al

. v. PCB

, 155 Ill. 2d 149, 613

N.E.2d 719 (1993);

see also

35 Ill. Adm. Code 302.102(d). “A ZID is likewise formally defined

and granted by the Agency during the permitting process and, if granted, is included in the

discharger’s mixing-zone permit condition.”

Id

.

Under the “allowed mixing concept,” a discharger that is unable to comply with the

requirement of not causing or contributing to water quality violations, “after making every effort

to fulfill the obligations of the discharger . . . and given the limits imposed by the nature of the

receiving water body and the character of the outfall(s), is entitled to use a limited portion of the

receiving body of water to effect mixing of the effluent with the receiving water. Within this

limited portion of the receiving body of water, the discharger is excused from compliance with

304.105.” Marathon Oil Co. v. IEPA, PCB 92-166 (Mar. 31, 1994).

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Depending on the Agency’s permit decisions about the mixing zone, the permittee may

use mixing as a means of compliance with the Board’s water quality standards.

See

35 Ill. Adm.

Code 302.102(g), (h). Board regulations state that a mixing zone is available where the

discharger has made every effort to comply with Section 304.102, which requires all dischargers

to provide BDT. 35 Ill. Adm. Code 302.102(a). The regulations further provide that BDT must

be consistent with technological feasibility, economic reasonableness and sound engineering

judgment. 35 Ill. Adm. Code 304.102(a). As noted above, the Board found that none of the

compliance alternatives evaluated by AEI are technologically feasible and economically

reasonable for treating ammonia nitrogen discharge from the Lemont Refinery to achieve

consistent compliance with an effluent limit of 3 mg/L.

Further, AEI’s evaluation of Lemont’s wastewater treatment plant indicates that the plant

performance is consistent with USEPA BAT criteria. Pet. Exh. 9 at 24, 30. Also, the treatment

plant’s activated sludge system has consistently operated at F/M, sludge age, DO, alkalinity, pH,

and temperature levels normally found to be satisfactory for single-stage biological nitrification.

Id.

at 38. In light of this, the Board finds that petitioners are providing the BDT at the Lemont

Refinery to remove ammonia nitrogen. Thus, Board finds that the Lemont Refinery’s ammonia

nitrogen discharge qualifies for a mixing zone and ZID. However, the Board will not specify a

mixing zone in this adjusted standard. The Board leaves that designation for the Agency to make

in petitioners’ NPDES permit.

While the Board has the authority to designate a mixing zone in an adjusted standard

4

,

here the Board leaves that designation for the Agency to make in petitioners’ NPDES permit.

The Illinois Supreme Court has stated that the mixing zone is formally defined by the Agency in

the NPDES permitting process and, if granted, is included as a condition in the permittee’s

NPDES permit. Granite City Steel, Co. v. PCB, 155 Ill. 2d 149, 160, 613 N.E.2d 719 (1993).

The Board acknowledges that the Agency is typically charged with reviewing an NPDES permit

application requesting recognition of a mixing zone pursuant to its responsibilities as permitter.

See

Amendments to Title 35, Subtitle C (Toxics Control), R88-21(A) (Jan. 25, 1990). It is then

the Board’s position to resolve disputes between permit applicants and the Agency.

Accordingly, the Board expects the Agency to apply a mixing zone and ZID to the

Refinery’s discharge in accordance with Board mixing zone regulations, through the NPDES

permitting process. While the record suggests that the Agency has applied a mixing zone to

petitioners’ discharge under the current sit-specific rules, the Board expects the Agency to define

a new mixing zone and ZID for the Refinery’s effluent based on an updated flow data.

Adjusted Standard Conditions

The Board notes that petitioners proposed a number of conditions to their proposed

adjusted standard that are based on the requirements specified in the current site-specific rule at

35 Ill. Adm. Code 304.213. A significant change with respect to requirements of Section

4

“In adopting adjusted standards the Board may impose such conditions as may be necessary to

accomplish the purposes of the Act.” 35 Ill. Adm. Code 104.428(a). 21

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66

304.213 is the inclusion of the new ammonia nitrogen effluent limits: a monthly average limit of

6.93 mg/L, whenever the monthly average discharge exceeds 100 lbs per day; and a daily

maximum limit of 10.61 mg/L, whenever the daily discharge exceeds 200 lbs per day. These

limits, which are significantly lower than the current site-specific limits, are derived using 95

th

percentile values of a statistical analysis of the Refinery’s ammonia effluent data from June 2002

to May 2007. Pet. Exh. 2 at 31 and Appendix D. The Board finds the proposed ammonia

nitrogen effluent limits to be appropriate for the Refinery’s discharge based on the current

operating conditions. As noted below, the sunset provision in today’s order will provide an

opportunity to consider new information and revisit the issue of Refinery’s ammonia nitrogen

effluent limits within five years of the effective date of the Board’s order in this proceeding.

In addition to requiring compliance with the new ammonia nitrogen effluents limits, the

proposed adjusted standard conditions require the Refinery to: meet the BAT limitations set forth

at 40 CFR 419.23; continue its efforts to reduce the concentration of ammonia nitrogen in its

wastewater; monitor the nitrogen concentration of its oil feedstocks; continue its efforts to

control and manage solids from its crude oil supply; and submit annual reports to the Agency.

Finally, petitioners propose a five-year sunset provision, which sets forth that the adjusted

standard will expire on December 31, 2013. The Board finds the conditions based on the current

rules to be appropriate for petitioners’ adjusted standard. While the proposed five-year sunset

provision is half the duration of the current rule, the shorter duration is adequate for evaluation of

treatment plant improvements and operational and water quality data.

In response to hearing questions, petitioners identified certain specific measures that they

are willing undertake to further reduce the ammonia concentration in their effluent. Pet. Br. at 5.

These measures, which are intended to assure reliability of the Refinery’s nitrification process

include: provision of an additional 2 million gallons of wastewater storage capacity;

participation in the Petroleum Environmental Research forum on reducing desalter

environmental impacts; and development of an appropriate malfunction/upset definition

condition in consultation with the Agency for inclusion in the NPDES permit. The Board will

include the measures proposed by petitioners to assure the reliability of nitrification process as

additional conditions in today’s order.

Finally, as discussed above under compliance alternatives, the Board will require

petitioners to evaluate the effects of F/M ratio and aeration basin detention time on achieving

nitrification on a consistent basis and report on that evaluation to the Agency on or before

December 31, 2012. Specifically, the Board will require petitioners to evaluate the effect of

increased detention time on nitrification, including the performance of ExxonMobil’s upgraded

aeration basis in achieving compliance with the generally applicable effluent standard. As noted

by Mr. Huff, petitioners must perform the evaluation using ExxonMobil’s effluent quality data

that becomes available after the completion of its aeration basin upgrade and the wastewater

treatment plant is receiving discharge from the wet gas scrubber. Tr. at 210. Regarding, F/M

ratio, the Board requires petitioners to evaluate the effect of F/M ratio on nitrification of refinery

wastewater using data from other refineries in the state, as long as such data is made available by

the Agency.

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CONCLUSION

The Board finds that petitioners have provided sufficient justification for an adjusted

standard from Section 304.122(b) of the Board’s water pollution regulations (35 Ill. Adm. Code

304.122(b)) for the discharges from the Refinery and therefore grants petitioners an adjusted

standard from the regulation, subject to conditions.

The Board grants relief from Section 304.122(b) as described in the order below.

This opinion constitutes the Board’s findings of fact and conclusions of law.

ORDER

Effective January 1, 2009, the Board grants Citgo Petroleum Corporation (Citgo) and

PDV Midwest Refining, L.L.C. (PDV) (collectively, petitioners) an adjusted standard from 35

Ill. Adm. Code 304.122(b) for its refinery located at 135th Street and New Avenue in Lemont,

Will County, subject to the following conditions:

a)

This adjusted standard applies to discharges from PDV Midwest Refining,

L.LC. Refinery ("The Refinery"), located in Lemont, into the Chicago

Sanitary and Ship Canal;

b)

The requirements of Section 304.122(b) shall not apply to the discharge.

The Refinery must meet applicable Best Available Technology

Economically Achievable (BAT) limitations pursuant to 40 CFR 419.23

(2003), incorporated by reference in subsection (d);

c)

The Refinery must also meet a monthly average limitation for ammonia

nitrogen of 6.93 mg/L whenever the monthly average discharge exceeds

100 lbs per day and a daily maximum limit of 10.61 mg/L whenever the

daily discharge exceeds 200 pounds of ammonia;

d)

The Board incorporates by reference 40 CFR 419.23 (2003) only as it

relates to ammonia nitrogen as N. This incorporation includes no

subsequent amendments or editions;

e)

The Refinery must continue its efforts to reduce the concentration of

ammonia nitrogen in its wastewaters;

f)

The Refinery must monitor the nitrogen concentration of its oil feedstocks

and report on an annual basis such concentrations to the Agency;

g)

The Refinery must continue its efforts to control and manage solids from

its crude oil supply with respect to its wastewater treatment system;

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h)

The Refinery must submit the reports described in subsection "f'” and “k”

no later than 60 days after the end of a calendar year;

i)

The Refinery must evaluate and report to the Agency on or before

December 31, 2012, the effect of:

1)

Increased detention time on nitrification of refinery wastewater to

achieve consistent compliance with the generally applicable

effluent standards set forth at 35 Ill. Adm. Code 304.122. This

evaluation must consider effluent quality data of Exxon-Mobil’s

Joliet refinery that may become available after the completion of

that refinery’s aeration basin upgrade, and the wastewater

treatment plant starts receiving discharge from the wet gas

scrubber;

2)

Food to microorganisms (F/M) ratio on nitrification of refinery

wastewater to achieve consistent compliance with the generally

applicable effluent standards set forth at 35 Ill. Adm. Code

304.122. This evaluation must be done by giving consideration to

F/M ratio data of other refineries in the state to the extent such data

are made available by IEPA;

j)

The Refinery will provide an additional 2 million gallons of wastewater

storage capacity. This additional storage tank capacity must be included

in a construction permit application within three months of the granting of

this adjusted standard;

k)

The Refinery will continue to participate with the Petroleum

Environmental Research forum on "Reducing Desalter Environmental

Impacts", and must provide an annual progress update on the technologies

researched, potential for feasibility at the Refinery, and a time line for

bench scale application, if appropriate;

l)

The Refinery must, in consultation with the Illinois Environmental

Protection Agency, develop an appropriate malfunction/upset definition

condition for inclusion in the NPDES permit. The upset condition shall

address mechanical malfunctions in the production process or in the

wastewater treatment plant ("WWTP"), and situations in which the

organic loading to the WWTP exceeds the aeration capabilities or a

wastewater stream is inhibitory to nitrification; and

m)

This adjusted standard will expire on December 31, 2013, unless the

Refinery requests the Board to terminate the adjusted standard at an earlier

date.

IT IS SO ORDERED.

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Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2006);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above opinion and order on December 18, 2008, by a vote of 5-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board