Emerald Performance Materials, LLC v. Ill. Pollution Control Bd.

• Decision Date: 02 September 2016
• Docket Number: No. 3–15–0526.,3–15–0526.
• Parties: EMERALD PERFORMANCE MATERIALS, LLC, Petitioner–Appellant, v. The ILLINOIS POLLUTION CONTROL BOARD and The Illinois Environmental Protection Agency, Respondents–Appellees.
• Court: United States Appellate Court of Illinois

64 N.E.3d 672
407 Ill.Dec. 873

EMERALD PERFORMANCE MATERIALS, LLC, Petitioner–Appellant,
v.
The ILLINOIS POLLUTION CONTROL BOARD and The Illinois Environmental Protection Agency, Respondents–Appellees.

No. 3–15–0526.

Appellate Court of Illinois, Third District.

Sept. 2, 2016.

64 N.E.3d 673

Thomas W. Dimond (argued) and Sarah M. Weaver, both of Ice Miller LLP, of Chicago, for appellant.

64 N.E.3d 674

Lisa Madigan, Attorney General, of Chicago (John P. Schmidt (argued), Assistant Attorney General, of counsel), for appellees.

OPINION

Presiding Justice O'BRIEN delivered the judgment of the court, with opinion.

407 Ill.Dec. 875

¶ 1 Petitioner Emerald Performance Materials (Emerald) filed a petition seeking an adjustment from standards imposed by respondent Pollution Control Board (the Board) regarding emissions from Emerald's manufacturing plant and water treatment facility located in Henry, in Marshall County. The Board granted the adjusted standard with various conditions. Emerald appealed the conditions. Respondent Illinois Environmental Protection Agency (IEPA) joins the Board in defending the conditions. We affirm in part, reverse in part, and remand.

¶ 2 FACTS

¶ 3 Petitioner Emerald Performance Materials filed a petition for an adjusted standard with respondent Pollution Control Board seeking an adjustment from respondent Illinois Environmental Protection Agency's ammonia effluent limitations set forth in section 304.122(b) of the Illinois Administrative Code (Code) (35 Ill. Adm. Code 304.122(b) (2002) ). Emerald owns and operates a specialty chemical facility in Henry. The Emerald plant and a neighboring polyvinyl chloride (PVC) resin manufacturing plant were opened and operated by B.F. Goodrich from 1958 to 1993. Goodrich sold the PVC resin plant in 1993, and it was eventually bought by Mexichem Specialty Resins, Inc. Goodrich sold the specialty chemical facility to Noveon, Inc., in 2001, and Emerald bought it in 2006. The plant produces accelerators and antioxidants.

¶ 4 Emerald operates a wastewater treatment plant to process the wastewater from its operations. It also processes Mexichem's wastewater. After treatment, the wastewater is eventually discharged into the Illinois River. The discharge exceeds the allowable total ammonia nitrogen effluent level of 3 mg/L, as set forth in section 304.122(b) of the Code (35 Ill. Adm. Code 304.122(b) (2002) ). Neither Emerald nor Mexichem uses ammonia as a raw material in their processes, but they do use amines, which serve as precursors to the formation of ammonia nitrogen. In addition, Emerald uses mercaptobenzothiasole (MBT) as a key intermediate in the production of accelerators. The MBT that is present in the wastewater when it enters the treatment plant inhibits the nitrification process through which ammonia would otherwise be oxidized to nitrates. Emerald is the only remaining manufacturer of MBT in the United States.

¶ 5 The ammonia nitrogen that is discharged into the Illinois River is formed in the wastewater treatment process. The wastewater is discharged into the river through a high-rate multi-port diffuser. The plant is situated on a bluff 80 to 90 feet above the river, and the velocity with which the wastewater discharge enters the river through the diffuser causes rapid and immediate mixing. The treatment plant provides greater than 95% biological oxygen demand reduction. The ammonia nitrogen levels discharged into the river are generally in the range of 23 to 150 mg/L.

¶ 6 In 1991, when Goodrich renewed its National Pollutant Discharge Elimination System (NPDES) permit, the permit included a new ammonia effluent limitation (35 Ill. Adm. Code 304.122(b), amended at 14 Ill. Reg. 6777 (eff. Apr. 24, 1990)). Goodrich appealed the ammonia standard, and the parties agreed the best avenue would be for Goodrich to seek a variance.

407 Ill.Dec. 876

64 N.E.3d 675

In 1992, Goodrich applied for a variance, and the request was stayed while Goodrich researched various technologies to reduce ammonia in its discharge. The research conducted by Goodrich, and then Noveon, concluded in 1998 that the available treatment technologies were neither economically reasonable nor technically feasible to significantly reduce the ammonia in the discharge so as to comply with section 304.122(b) requirements.

¶ 7 Because a variance requires eventual compliance with the standard, Noveon filed a petition for an adjusted standard in 2002. Following hearings, the Board determined that Noveon qualified for an adjusted standard under the statutory factors, and in November 2004, it granted Noveon's petition, with conditions. In granting the petition, the Board found that the wastewater discharge from the treatment plant was fundamentally different from other industrial dischargers required to meet the standards in section 304.122(b) ; the reason the wastewater differed was because the MBT used in the processes inhibited nitrification of the ammonia in the wastewater treatment system; eleven alternative technologies reviewed by Noveon revealed none of them was both economically reasonable and technically feasible to control and/or reduce ammonia in the discharge; and there was no adverse environmental impact on the Illinois River from the ammonia effluent discharge.

¶ 8 The conditions imposed by the Board in the 2004 adjusted standard included a discharge limit of not more than a total ammonia nitrogen concentration of 155 mg/L and a seven-year sunset provision; and the requirements that Noveon install a multi-port diffuser; continue to investigate alternative production methods and technologies to lessen the ammonia discharge and submit an annual report to the IEPA setting forth the results of the investigations; research and propose ways to provide environmental improvements to the Illinois River in Marshall County, a factor the Board stated it might use in considering a future request to renew the adjusted standard; provide quarterly monitoring of ammonia nitrogen to demonstrate compliance with ammonia water quality standards; and comply with the Clean Air Act (42 U.S.C. § 7401 et seq. (2000) ), NPDES permit program, and the Board water pollution regulations.

¶ 9 After it purchased the facility in 2006, Emerald engaged in a number of projects and investigations to facilitate the reduction of the ammonia effluent, including the installation of the multi-port diffuser. Emerald also conducted studies and samplings to demonstrate its discharge did not negatively impact the environment. Testing done quarterly from 2007 to 2012 established the ammonia levels complied with the acute and chronic water quality standards for ammonia nitrogen, with the exceptions of three exceedances. In 2011 and 2012, Emerald collected effluent samples to test its toxicity to aquatic organisms. The results indicated that Emerald's effluent met the toxicity limits and its dilution rates were in compliance with water quality regulations.

¶ 10 Emerald filed the instant petition for an adjusted standard in September 2012, seeking to renew the adjusted standard of 155 mg/L for ammonia granted to Noveon. Emerald proposed it maintain the same standard and continue to use the multi-port diffuser. Although IEPA urged the Board to deny the petition for an adjusted standard, in June 2014, Emerald and IEPA jointly submitted agreed recommended conditions, including the following: (1) limiting ammonia nitrogen effluent to a daily maximum of 140 mg/L, (2) requiring Emerald to investigate new treatment technologies and evaluate implementation

407 Ill.Dec. 877

64 N.E.3d 676

of new and existing technologies, and (3) terminating the adjusted standard in ten years.

¶ 11 On Emerald's motion, the Board incorporated the record from the proceedings on Noveon's petition for an adjusted standard. The Board acknowledged the treatment alternatives submitted with the 2002 Noveon petition and the findings of Brown and Caldwell, an environmental consulting firm, that there were no economically feasible treatment alternatives that would reliably reduce the concentration of effluent ammonia nitrogen. Emerald hired Brown and Caldwell to assist in its 2012 petition by revisiting its previous work, investigating what, if any, changes and new technologies had occurred since then, and determining whether its prior conclusions remained valid. Brown and Caldwell reviewed the previously considered alternatives and investigated five new ones. Brown and Caldwell concluded the new technologies to reduce ammonia would not be as effective or economically viable as the previously considered options, which were found neither technologically feasible nor economically reasonable.

¶ 12 IEPA recommended to the Board that it reject Emerald's petition for an adjusted standard. IEPA asserted that Emerald did not meet its burden to establish that the adjusted standard would not cause environmental or health harm substantially and significantly more adverse than those under the general regulations, citing studies noting the possible toxicity of...