ENVIRONMENTAL QUALITY BOARD CHARLESTON, WEST VIRGINIA. Appellant, Appeal No EQB FINAL ORDER. I. Procedural Background

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1 ENVIRONMENTAL QUALITY BOARD CHARLESTON, WEST VIRGINIA ICL-IP AMERICA INC., v. Appellant, Appeal No EQB SCOTT MANDIROLA, DIRECTOR, DIVISION OF WATER AND WASTE MANAGEMENT, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee. FINAL ORDER I. Procedural Background The West Virginia Department of Environmental Protection (hereinafter "WVDEP" and/or "Appellee") issued WV /NPDES Permit No. WV and Compliance Order No on November 30, 2009, to ICL-IP Supresta Inc. l (hereinafter "Appellant" or "ICL"). Appellant filed a timely appeal with the Environmental Quality Board (hereinafter "Board") on December 29,2009. An evidentiary hearing on this matter was held before a quorum of the Board and a court reporter on March 22,2010. The certified record (hereinafter "CR") developed by WVDEP was received as evidence in this appeal. The transcript was prepared by a certified court reporter and submitted to the Board on May 17,2010. Briefs were filed by the parties and presented to the Board for decision in August Appellant was represented at hearing by David Yaussy, Esquire and Marsha Kauffman, Esquire of Robinson & McElwee. Appellee was represented by Jennifer Hughes, Esquire. Board members Dr. Edward Snyder, Chairman; Dr. Scott Simonton, Dr. James VanGundy, lwhile the permit is issued to "ICL Supresta Inc.," Appellant filed this appeal under the name "ICL-IP America Inc."

2 Mr. Ted Armbrecht, and Mr. William Gillespie participated in the hearing and decision of this matter. The Board heard from the following witnesses during the hearing: Renee Clevenger, Mindy Yeager Armstead, Ph.D., Matthew Sweeney and Richard Snyder. The Board admitted and reviewed four exhibits from Appellant and six exhibits from the Appellee. II. Standard of Review The Board hears appeals of Orders issued by Appellee de novo and in accordance with West Virginia Code 22B-I-7. The Board does not afford deference to the Director's decision. W Va. Division of Envtl. Protection v. Kingwood Coal Co., 200 W. Va. 734, 745, 490 S.E.2d 823, 834 (1997). Under West Virginia Code 22B-I-7(g), the Board "shall make and enter a written order affirming, modifying or vacating the order, permit or official action of the chief or secretary, or shall make and enter such order as the chief or secretary should have entered." To prevail in the appeal, the Appellants must raise an issue with sufficient evidence to support a finding that the Appellee's decision was incorrect. If sufficient evidence supported such a finding, then the Appellee would have to produce the evidence demonstrating why its decision was sound, regardless of the Appellants' evidence. The Appellants have an opportunity to show that the evidence produced by the Appellee is pre-textual or otherwise deficient. This shifting burden of proof standard was set out in a case before the Circuit Court of Kanawha County, Wetzel County Solid Waste Authority v. Chief, Office of Waste Management, Division of Environmental Protection, Civil Action Number 95-AA-3 (Circuit Court of Kanawha County, 1999). The Kanawha County Circuit Court once again approved the use of the Wetzel County burden-shifting rule in environmental appeals in Sierra Club v. Benedict, Civil Action Number 07-AA-42, Slip Op. at 6 (Kanawha County Circuit Ct. June 29, 2007). While Wetzel County is merely persuasive authority, the Board agrees with the analysis and has used that test here. 2

3 III. Statement of Issues A total of ten issues were raised in the Notice of Appeal but at the beginning of the evidentiary hearing, counsel for ICL indicated that Appellant was withdrawing two objections described in its Notice of Appeal, namely, objections number 9 and 10. Tr. at 6-7. The remaining issues presented for decision by the Appellant were the following: 1. Ceriodaphnia dubia should be eliminated as a WET test species, or the acute toxicity limits and WET test procedure should be changed to reflect the full mixing capacity of the diffuser. 2. The chloride limit should not have been changed from the limit imposed in the previous permit. 3. The compliance order is unlawful and unnecessary and should be withdrawn or invalidated. 4. Total phenolics should not be a parameter for which monitoring or limits are imposed, and any limit for total phenolics and 1,2 dichloroethane at Outlet 001 should be calculated after taking into the account the effect of a mixing zone, and the limit for 1,2 dichloropropane should be redetermined after recalculating and increasing the L T A effluent flow. 5. Eliminate limits for Bis (2-ethylhexyl) phthalate, 2,6 dinitrotoluene, di-n-butyl phthalates and methylene chloride or, in the alternative, require monthly sampling and set limits for each parameter using a mixing zone or revised long term average flow, as appropriate. 6. The monitoring requirement for Total Dissolved Solids (hereinafter "TDS") should be eliminated. 7. Sulfate should be removed as a monitored parameter. 8. Iron should be deleted as a substance for which monitoring is required. 3

4 IV. Discussion WVDEP reissued Permit No. WV to ICL-Supresta, Inc. on November 30,2009. CR at 345. The permit authorizes ICL to operate and maintain a disposal system and best management practices for the direct discharge of treated industrial wastes (process wastewater, sanitary wastes, cooling water and non-process area storm water) into the Ohio River via Outlet 001 and operate and maintain disposal systems and best management practices for the direct discharge of un treated storm water into an unnamed tributary of the Ohio River via Outlets 002, 003 and 004 approximately 0.67 miles from the mouth of the Ohio River. Id Also on November 30, 2009, WVDEP issued Order No to ICL regarding the exceedance of certain benchmark values for storm water discharges from Outlets 003 and 004 and ICL's subsequent failure to revise and implement changes to its Storm Water Pollution Prevention Plan (hereinafter "SWPPP") as required by ICL's permit. CR at After careful consideration of the certified record, briefs of the parties, argument and evidence offered at hearing, by unanimous decision the Board does hereby AFFIRM in part and MODIFY in part the permit and REMANDS the permit for action consistent with the Board's order. All proposed findings submitted by the parties have been considered and reviewed in relation to the adjudicatory record developed in this matter. All argument of counsel, proposed findings of fact and conclusions of law have been considered and reviewed in relation to the aforementioned record, as well as to applicable law. To the extent that the proposed findings of fact, conclusions of law and arguments advanced by the parties are in accordance with these findings of fact, conclusions and legal analysis of the Board and are supported by evidence, they have been adopted in their entirety. To the extent that the proposed findings, conclusions, and arguments are inconsistent 4

5 therewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or necessary to a proper decision. To the extent that the testimony of the various witnesses is not in accord with the findings stated herein, it is not credited. V. Findings of Fact 1. On November 30, 2009, WVDEP issued WV INPDES Permit No. WV and Compliance Order No to ICL-Supresta, Inc. CR at 345. Use of Ceriodaphnia as a Test Species 2. The Permit imposes Ceriodaphnia dubia as a whole effluent toxicity (WET) test species with permit limits of 10 TUa average monthly 20 TUa daily maximum, beginning November 30, 201 I. 3. In September 1991, Appellant submitted a toxicity identification evaluation ("TIE") study, which showed that the chlorides at its discharge are generally toxic to daphnid test species at levels found in the plant's effluent. ICL Ex. I. 4. Dr. Mindy Yeager Armstead testified that C. dubia, a daphnid species, is not a reasonable test species for determining toxicity in the ICL effluent as it has a demonstrated intolerance for chlorides, which are not present in ICL's fully mixed discharge at levels that exceed water quality standards. 5. ICL's Technical Services Manager, Richard Snyder, testified that he was not aware of any correspondence or other documentation from WVDEP or EPA in response to the TIE that would indicate whether WVDEP or EPA agreed or disagreed with its contents and conclusions. Transcript of May 17,2010, evidentiary hearing (hereinafter "Tr.") at For the first two years of the Permit, ICL is required to monitor and report the results of acute toxicity testing using Ceriodaphnia dubia. CR at 348. After the initial two year compliance 5

6 period, ICL is required to meet acute toxicity limits of 10 TUa average monthly and 20 TUa maximum daily. CR at 35l. 7. The use of C. dubia as a test species is not appropriate as it relates to this discharge and was not justified by WVD EP for this Permit and discharge. WVD EP relied upon letters between representatives of WVDEP and EPA in which WVDEP agreed to use of C. dubia as a WET test species. WVDEP Ex. 1, Tr. at WVDEP insists upon C. dubia as a test organism for all WET testing. Tr. at While WET testing is valuable and can be beneficial the use of C. dubia is not prescribed by law, and the letters relied upon by WVDEP may not be relied upon by WVDEP as a basis for imposing C. dubia as a test species. 9. Other species are available for testing WET. Dr. Armstead testified that the EPA approves of acute testing using species other than C. dubia. 40 CFR Part 136, Appendix A; Tr. at When conducting tests for whole effluent toxicity (hereinafter"wet"), the Technical Support Document for Water Quality-Based Toxics Control (hereinafter "TSD") recommends the use of three different organisms: a vertebrate, an invertebrate and a plant, but indicates that in certain cases the optimum number of species may be fewer. TSD at 16. When conducting WET testing, it is common practice to use only two organisms: a vertebrate and an invertebrate. Tr. at 36, WVDEP requires the use of two organisms for WET testing: Ceriodaphnia dubia, an invertebrate, and Pimephales, a vertebrate. Tr. at 21-22, On May 28, 2004, the u.s. Environmental Protection Agency (hereinafter "EPA") by letter informed WVDEP that "future NPDES permits will require the use of the test organism 6

7 Ceriodaphnia dubia in place of the Daphnia magna" and described four reasons for requiring this change. Tr. at 51, 179; DEP Ex WET testing is a legitimate means of establishing compliance with prohibitions against toxic effluents. See 47 CSR In determining the WET oficl's discharge, ICL is entitled to the full number of dilutions calculated for the Zone of Initial Dilution (hereinafter "ZID"). The ZID was properly calculated as allowing 66.9 dilutions. Tr As the 66.9 dilutions already assumed a 0.3 TUa multiplier, as shown by the CORMIX modeling results accompanying the October 22,2009 draft permit (CR at 324), there was no need to reduce the dilutions (and the resulting acute criterion permit limit) further by that figure. 15. In calculating the acute toxicity limits, the agency granted a zone of initial dilution ("ZID") of 66.9 dilutions. Tr. at The purpose of a ZID is to establish boundaries for an acute mixing zone. Tr. at 28. Chloride Limitations 17. The Permit imposes a chloride limit of 5,990 mg/l average monthly and 10,369 mg/l maximum daily. The previous permit had limits of9,600 mg/l average monthly and 19,300 mg/l maximum daily. Tr. at WVDEP set Best Professional Judgment (hereinafter "BP J") limits for chloride based on past chlorides discharges at the plant. Tr. at The Board finds that WVDEP should have included alternate limits for times of increased production. Said limits should be calculated based on the prior permit flow numbers. 20. In setting case-by-case effluent limits to meet the BPJ standard, the permit writer is required to consider all of the following factors: (a) the total cost of application of technology in 7

8 relation to the effluent reduction benefits to be achieved from such application; (b) the age of equipment and facilities involved; (c) the process employed; (d) the engineering aspects of the application of various types of control techniques; (e) process changes; and (f) non-water quality environmental impact (including energy requirements). See 40 C.F.R (d)(1). 21. Discharges from lcl's facility are subject to the federal Effluent Guidelines for the Organic Chemicals, Plastics, and Synthetic Fibers (hereinafter "OCPSF") point source category. 40 C.F.R , et seq. 22. For the purposes of calculating certain technology-based limits, WVDEP calculated the long term average flow (hereinafter "L T A") based on a review of the previous five years of data contained in lcl's discharge monitoring reports (hereinafter "DMRs"). Tr. at The Supplement to the Development Document for the OCPSF effluent guidelines recommends that when calculating the LTA flow, the permit writer should use the past three to five years of data provided by the facility to obtain an accurate representation. Tr. at 177; DEP Ex. 6 at p.l-b U sing flow data from the previous five years, WVD EP determined that the L T A flow fromlcl's Outlet 001 was million gallons per day (hereinafter "MGD"). Tr. at 90; CRat The NPDES Permit Writers' Manual (hereinafter"manual") indicates thatthe permit writer should determine the facility's actual production or flow, based on information provided by the facility. Manual at 63. The Manual advises that tiered limits should be used only when there is likely to be a significant increase in production. Tr. at 148; Manual at 65. The Manual states that as a general rule of thumb, up to a twenty percent fluctuation in production is within the range of normal variability, while changes in production over twenty percent could warrant the use oftiered limits. Tr. at 146; Manual at 65. 8

9 26. An analysis of the flow data provided to WVDEP by ICL in its DMRs reveals that the average flow from Outlet 001 has not varied significantly during the past ten years. Tr. at The average flow from Outlet 001 from the years was 0.39 MGD; from was 0.49 MGD; from was 0.43 MGD; from October 2008-March 2010 was 0.37 MGD; and from March ctober 2008 was 0.39 MGD. Id. 27. However, the Board finds that the testimony of the environmental engineer and plant manager for ICL revealed that L T A flow was different enough and the potential for production increase would warrant the use of tiered limits. Said tiered limits should be based upon prior permit flow and should require thirty days notice by ICL to the WVDEP that the increased flow is required because of an increase in production. If there is not a significant increase in production, the tier one existing permit limits should remain in effect. Compliance Order 28. ICL' s previous permit required ICL to have a Storm Water Pollution Prevention Plan (hereinafter "SWPPP") that sets out the best management practices (hereinafter "BMP") that will be employed to reduce the amount of pollutants in ICL's storm water discharges. Tr. at ICL's previous permit also contained benchmark values for certain pollutants expected to be found in ICL's storm water discharges. Tr. at ICL' s previous permit contained a requirementthat ifbenchmark values are exceeded, the facility must review its SWPPP and make revisions to its best management practices to avoid exceeding benchmark values in the future. Tr. at If a permittee violates any term or condition of its NPDES permit, WVDEP is authorized to issue an order directing the permittee to take corrective or remedial action. Tr. at 166; W. Va. Code

10 32. Order No was issued to ICL due to frequent excursions from benchmark values for total suspended solids and phosphorus at Outlets 003 and 004. Tr. at 72; CR at The Order requires ICL to revise its SWPPP. Tr. at 77; CR at The benchmark values for pollutants contained in ICL's storm water discharges correspond with those found in the Multi-Sector General Permit for storm water associated with industrial activity, WVINPDES Permit No. WV Tr. at , The Board finds that the benchmark values contained in the Multi-Sector General Permit are consistent with those recommended by EP A an~ contained in its own Multi-Sector General Permit for storm water discharges associated with industrial activity. Tr. at The Board agrees with WVDEP that ICL may obtain a waiver from monitoring requirements for pollutants contained in its storm water discharges if ICL can demonstrate four consecutive samples that are below benchmark values. Tr. at 169; CR at 358. ICL must then submit an annual certification that it is continuing to implement the same practices in order to continue to receive a waiver. Tr. at 170; CR at 358. Limitations on Phthalates and Other Parameters 37. (Bis 2-ethylhexyl) phthalate, 2,6 dinitrotoluene, di-nbutyl, phthalates and methylene chloride have each shown limited times in past sampling. 38. (Bis 2-ethylhexyl) phthalate is a common plasticizer found through the world. Tr. at According to the testimony phthalates chemistry is not practiced at ICL. Tr. at 251. There is no phthalate or hydride as a raw material, intermediate or by-product. Id. 40. The Board finds that because the discharge has had limited showing of (Bis 2- ethylhexyl) phthalate, 2,6 dinitrotoluene, di-nbutyl, phthalates and methylene chloride in the past that 10

11 permit limits are warranted. However, the Board finds that monitoring should be required monthly for twenty-four months and if no compliance problem is found then monitoring should be done quarterly. 41. The WQBELs for 1,2 dichloroethane are based on West Virginia's water quality standards. 47 C.S.R. 2, Appendix E, Table 1. The WQBELs for total phenolics and Bis (2- ethylhexyl) phthalate are based on water quality standards promulgated by the Ohio River Valley Water Sanitation Commission (hereinafter"orsanco"). ORSANCO Pollution Control Standards at 11, 55; Tr. at The Board finds that the Long Term Average was correctly calculated for setting technology based-limits for 2,6 dinitrotoluene, di-n-butyl phthalates and methylene chloride. However, based on the testimony of Richard Snyder, the plant representative, the Board finds that tiered limits should have been inserted into the permit and calculated assuming higher waste water flows, and permit limits changed accordingly. The tiered limits should not go into effect until WVDEP has been provided thirty days notice of a major increase in production that should cause the increase in flow. 43. No mixing zone was granted for total phenolics; 1,2 dichloroethane; and Bis (2- ethylhexyl) phthalate because there is no background data for these pollutants in the Ohio River. Tr. at 84-85,107, During the two year compliance period, ICL can collect background data on these pollutants and request a permit modification that would allow for a mixing zone. Tr. at 85, 98, 108, Two years is sufficient time for a permittee to collect background data. Tr. at

12 45. ICL's permit contains technology-based effluent limits based upon federal effluent guidelines for 2,6 dinitrotoluene; di-n-butyl phthalates; methylene chloride; and Bis (2-ethylhexyl) phthalate. Tr. at 95; CR at Any discharger that is subject to the OCPSF Effluent Guidelines is required to have effluent limitations imposed for all of the pollutants listed in 40 C.F.R. 414, et seq. unless the discharger can obtain a waiver. Tr. at In order to obtain a waiver for a particular pollutant, ICL must certify that the pollutant is neither produced by nor a by-product of the processes in its facility; in addition, ICL must present data that shows that the pollutant is not present in its effluent. Tr. at 109, ICL has obtained such a waiver for forty-nine different pollutants, which are listed in the Permit. Tr. at 165; CR at In its permit application, ICL submitted data that showed the presence of 2,6 dinitrotoluene; di-n-butyl phthalates; methylene chloride; and Bis (2-ethylhexyl) phthalate in its effluent. Tr. at 96, 165. As a result, ICL could not obtain a waiver at that time. 50. The Permit requires ICL to monitor its effluent for sulfate because sulfate was detected in sampling results submitted by ICL as part of its permit application. Tr. at 103. Total Dissolved Solids 51. The Permit contains a monitor only limit on TDS for the purpose of characterizing the pollutant loadings in ICL's discharge in the Ohio River. Tr. at 100, Federal regulations require WVDEP to impose certain requirements in all NPDES permits, including technology-based effluent limits and BMPs to control or abate the discharge of pollutants. 40 C.F.R

13 Sulfates 53. The sulfate limits are based on 0 RSAN CO's water quality standards. Tr. at 103, 266; ORSANCO Pollution Control Standards at 11. VI. Conclusions of Law 1. ICL's Permit must contain limits for acute toxicity based on state water quality standards prohibiting the discharge of pollutants that are toxic to aquatic life. 2. WET testing does not require the use of Ceriodaphnia dubia and WVDEP should have shown greater flexibility when the chloride toxicity to Ceriodaphnia dubia was demonstrated and allowed for a different invertebrate to be used. 3. WVDEP has authority to impose effluent limits on pollutants for which there is no effluent guideline. 40 C.F.R (a)(2)(I). 4. In establishing the chlorides limit based upon best professional judgment, the permit writer should have demonstrated the analysis and the Board finds the permit writer should have included tiered limits and the capacity of the facility to enable future growth and development. 5. Where production-based limitations, standards or prohibitions apply, the Director may include a condition establishing alternate permit limitations, standards or prohibitions based upon anticipated increased or decreased production levels, not to exceed maximum production capability. W Va. Code St. R (a)(1). 6. A mixing zone cannot be granted when no background data exists for a particular pollutant. 7. WVDEP properly denied ICL a mixing zone for total phenolics; 1,2 dichloroethane; and Bis (2-ethylhexyl) phthalate due to the lack of existing background data. 13

14 8. WVDEP was required to impose technology-based effluent limits based upon federal effluent guidelines for 2,6 dinitrotoluene; di-n-butyl phthalates; methylene chloride; and Bis (2- ethylhexyl) phthalate. 9. WVDEP could not grant a waiver for 2,6 dinitrotoluene; di-n-butyl phthalates; methylene chloride; and Bis (2-ethylhexyl) phthalate because data submitted by ICL in its permit application indicated that these pollutants were present in its effluent. 10. Due to the presence of sulfate in ICL's effluent, WVDEP is required to impose WQBELs in order to protect ORSANCO's water quality standard for sulfate. 11. WVDEP has authority to require monitoring of a pollutant for the purposes of characterizing the loading ofthat pollutant in the state's waterways. 12. WVDEP is required to impose BMPs in NPDES permits in order to control or abate the discharge of pollutants. 40 C.F.R WVDEP has the authority to require ICL to maintain a SWPPP that sets out the BMPs it will use to reduce pollutants in its storm water discharges and, by extension, WVDEP has the authority to require ICL to revise its SWPPP if benchmark exceedances indicate that the BMPs are not adequate for reducing pollutants in storm water discharges. 14. WVD EP was authorized by W. Va. Code to issue an order to I CL due to violations of its previous NPDES permit. VII. Conclusion The Board finds that requiring the use of Ceriodaphnia dubia was inappropriate because of its sensitivity to chlorides. However, the Board finds that exclusive use of the fathead minnow is also inappropriate. The Board remands the permit for the WVDEP to MODIFY the permit to use a different invertebrate than the Ceriodaphnia dubia. 14

15 The Board finds the use of WET testing is appropriate in this permit. The Board also agrees with the WVDEP as to the limits for iron, sulfates, and chlorides and those parameters are AFFIRMED and shall remain in the permit. However the Board finds that tiered limits should be included in the permit for periods of significant increases in production and demand at the facility. The permit is REMANDED to the WVDEP to MODIFY the permit to allow for tiered limits associated with a significant increase in production demand. The modification should provide for 30-days notice from lel of the increased flow and associated parameters. The flow limits should not exceed the permit flow calculations contained in the prior permit. The Board also agrees with WVDEP that monitoring for Total Phenolics is appropriate. Also the Board finds that to increase the validity of the sampling of (Bis 2-ethylhexyl) phthalate, 2,6 dinitrotoluene, di-nbutyl, phthalates and methylene chloride that monitoring should be MODIFIED to require monthly for twenty-four months (24) months and ifthere is not a compliance problem then the sampling should be changed to quarterly. The Board finds the monitoring and parameters for Stormwater Outlets 003 and 004 are appropriate and are AFFIRMED. 15

16 The Board finds that the WVDEP should have considered the use of tiered limits in this permit. The Board REMANDS the permit to be MODIFIED to allow for tiered limits in the pennit to be calculated by WVDEP and which would not go into effect until after ICL-IP provides thirty days notice to WVDEP of a significant increase in production and allowing for a return to tighter limits when and if production decreases again. It is so ORDERED and ENTERED this.s rd.. day of February, 20J 1. 16

17 ENVIRONMENTAL QUALITY BOARD CHARLESTON, WEST VIRGINIA NOTICE OF RIGHT TO APPEAL FINAL ORDER In accordance with 22B-1-7G) of the West Virginia Code, you are hereby notified of your right to judicial review of this FINAL ORDER in accordance with 22B-1-9(a) and 22B-3-3 of the West Virginia Code. If appropriate, an appeal of this final order may be made by filing a petition in the appropriate circuit court within thirty (30) days from your receipt of this final order in the manner provided by 29A-5-4 of the West Virginia Code.

18 ENVIRONMENTAL QUALITY BOARD CHARLESTON, WEST VIRGINIA ICL-IP AMERICA INC., v. Appellant, Appeal No EQB DIRECTOR OF WATER AND WASTE MANAGEMENT, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee. CERTIFICATE OF SERVICE This is to certify that I, Jackie D. Shultz, Clerk for the Environmental Quality Board, have this day, the~day of February, 2011, served a true copy of the foregoing "Final Order" to all parties in Appeal No EQB, by mailing the same via United States Mail, with sufficient postage, to the following address: via certified first-class mail: David L. Yaussy, Esquire Certified Mail # Robinson & McElwee PLLC P.O. Box 1791 Charleston, West Virginia via personal service: Scott Ma.{ldirola, Director Division of Water and Waste Management WV Department of Environmental Protection th Street, S.E. Charleston WV Jennifer Hughes, Esquire Office of Legal Services WV Department of Environmental Protection th Street, S.E. Charleston WV /' [5) ~ ~ DJI'l--1 ~ ~~~~I~ WV DEPARTMENT Of ENVIRONM[lIl"L PRO i,cellor, DINWM DIRECTORS OFFICE FEB