BEFORE THE STATE OF WEST VIRGINIA WATER RESOURCES BOARD

GE SPECIALTY CHEMICALS, INC. (formerly Borg-Warner Specialty Chemicals, Inc.),

Appellant, APPEALNO. 401 (North Plant)

VS.

ELI MCCOY, CHIEF,

Appellee.

ORDER

This day came Appellant, GE Specialty Chemicals, Inc.,

by counsel, M. Ann Bradley, and came Appellee, L. Eli McCoy, Chief,

by his counsel, Ann Spaner, and these parties represented to the

Board that they had reached agreement, without any admission as to

fact or law except as contained herein, with respect to the issues

raised in Appellant's Notice of Appeal as follows:

1. General - Appellant has agreed to resolve the iss~~es

raised in this appeal which challenged the imposition of water

quality-based effluent limitations in this permit by constructing

a pipeline which would combine the current discharges from outlets

001, 002 and 003 into a pipeline extending from the current

discharge points to the Monongahela River at a point to be

designated (new) Outlet 001. Appellee has agreed to the re~isi~p.

of this permit in all appropriate respects to allow this activity

to occur.

Subject to the correction of certain typographical errors

(see "Item 2" below), Appellant has further agreed to withdraw its

objections to the mass limitations in the permit that are based

upon the Organic Chemicals, Plastics and Synthetic Fibers effluent

guidelines promulgated by the U.S. Environmental Protection Agency.

m 40 C.F.R. Part 414. Appellee has agreed to the revision of

Order No. 2674 to allow Appellant three years from the date of

entry of this Order to achieve compliance with said mass limita-

tions.

The paragraphs that followimplementthese agreements and

also resolve the other issues raised in this appeal.

2. Item 1 - Appellant has agreed to withdraw its objection

to the issuance and effective date of Order No. 2674.

3. Item 2 - The parties have agreed that Finding of Fact No.

3 of said Order should be revised with respect to the following

effluent limitations:

Pollutant

1,2 Dichlorobenzene 1,3 Dichlorobenzene 1,4 Dichlorobenzene 1,l Dichloroethylene Bis (2-ethylhexyl) phthalate Di-n-butyl phthalate Diethyl phthalate Dimethyl phthalate

Monthly Averaae

.22 lbs/day .09 lbs/day .043 lbs/day

.046 lbs/day .296 lbs/day .078 lbs/day .233 Ibs/day

.055 ibs/day

.&;7 lhC/rlZ,i ---, --1

.127 lbs/day -98 Ibs/day

.G?2 lbs/day

.803 lbs/day

.I64 Ibs/day .58 lbs/day

.135 l&s/day

Appellant has agreed to withdraw its objections to the Findings c?

Fact 2, 4 and 5.

2

4. Item 3 - The parties have agreed that Order No. 2674

should be revised to require compliance with the final permit

limits no later than 3 years from the date of entry of this Order.

Appellant agrees to submit quarterly progress reports during this

period.

5. Item 4 - The parties have agreed that upon entry of this

Order, Appellant shall comply with the interim effluent limitations

and monitoring requirements specified in Attachment A of Order No.

2674.

6. Item 5 - During the period that this appeal has been

pending, the corporate name of Appellant has changed. In

recognition of this fact, the parties have agreed that GE Specialty

Chemicals, Inc., should be substituted as Appellant in this appeal

and that the permit which is the subject of this appeal should be

revised to reflect GE Specialty Chemicals, Inc. as the permittee.

7. Item 6 - The parties have agreed that the letter of June

19, 1986 incorporated by reference on page 1 of the permit contains

the following language:

Due to the specialty manufacturing nature of the plant, other products, raw materials, by- products and intermediates may occasionally be handled at the Plant in limited amounts or be required as a result of future manufacturing operations.

The parties further agree that the quotec! l22guage -4~;~~ y-.--

Appellant some flexibility with respect to its operations at t;"* e

Westmar North Plant and that the incorporation of this letter b;;

reference was not intended to limit the Appellant r-r! the r 3 7,,;

materials and products in the list which accompanied said letter.

3

With respect to the letter of November 12, 1986, the

parties agree that the reference to this letter on page one of the

permit is to be deleted and an addendum made to the Fact Sheet

which states as follows:

In issuing this permit, the Division relied upon the information contained in the letter from David L. Boggs to Melony VanMeter dated November 12, 1986.

Appellant agrees to withdraw its remaining objections under said

Item 6.

8. Item 7 - The parties agree that the biomonitoring

requirements referenced in Item 7 of the Notice of Appeal shall be

implemented as they appear in the permit during the period of 3

years following the date of entry of this Order, with the following

exceptions:

(a) The frequency of monitoring using the Daphnia (magna or

pulex) species shall be once per year for each of the

Outlets 001, 002 and 003;

(b) The frequency of monitoring using the Pimephales Dromelas

(fathead minnow) species shall be once per quarter at

Outlet 001 and once per six months at Outlets 002 and

003:

(c) . No toxicity reduction evaluation will be triqqered j->r ~2%

results of any biomonitorinq test durinq sluch 3 >' 3 2 _'

period.

(d) Upon the commencement of the operation of the pin-i+-- _ - - - _

described in paragraph IQ, below, the fr2qQer.q of

monitoring at Outlet 001 (as then relocated) shall be

4

once per quarter using the Pimephales Promelas (fathead

minnows) species and once per year using the Daphnia

(magna or pulex) species.

The parties have further agreed that upon expiration of such 3 year

period, Appellant is required to implement the biomonitoring

requirements of the permit only at Outlet 001 (as then relocated)

at a frequency of once per quarter for Pimephales Promelas (fathead

minnow) and once per year for the Daphnia (magna or pulex) species

and that at that time the condition appearing in Exhibit 1 to this

Order shall become effective.

9. Item 8 - The parties recognize that there have been

various stays heretofore entered in this appeal by the Board

affecting in part Appellant's obligation to comply with the

conditions on pages 7, 8, 9 and 10 and the compliance date

specified in condition B.1.e) on page 15 of the permit. With the

entry of this Order, Appellant withdraws any further objections it

may have to the effective dates of various permit conditions as set

out in Item 8.

10. Items - In recognition of the fact that

existing Outlets 001, 002 and 003 will be joined to a pipeline

through which the combined effluent from these outlets will be

discharged to the Monongahela River, the parties have agreed as

follows:

(a) Upon the installation and operation of said pipeline, the

sampling point for the combined effluents shall be prior

to the discharge to the Monongahela River and shall be

designated Outlet 001, and the sampling points in the

5

area of existing Outlets 001, 002, and 003 shall be

designated as internal outlets 101, 201, and 301,

respectively.

(b) From the commencement of the operation of the pipeline

until the expiration of this permit, Appellant shall

monitor at Outlets 201 and 301 as follows:

Freauencv Samwle Tvwe

Flow (MGD) l/month Measured

Total Suspended l/month Grab Solids (mg/l)

Total Phenols (ug/l) l/month Grab

pH (s.u.) l/month Grab

(c) From the commencement of the operation of the pipeline

until the expiration of this permit, Appellant shall

monitor at (new) outlet 001, as follows:

Freauency Samwle Tvne

pH (s.u) l/month Grab

45 hr. Bioassay [see par. 8 of this Order.]

(d) From the commencement of the operation of the pipelice

to a date 3 years after the entry of this Order, the

discharge limitations and monit0rin.g specified QT:d_pr

.Attachment A to Order Yo. 25?4 s:hail be applied at 0urler

101 (formerly 0utlet OOl).

(e) From the date 3 years after the entry sf C_>e r,r"-=r cc ~2~

expiration of this germ;+ anpe11ap.t shall ccmp;:,r :.,?1t.". --, .-r _ _

the discharge limitations 3p.d mnni +nr; 7-n -0m1i ?-nnan+c ..I-..---_-.. ~ -I=--- - .,.-.._- 2t

Outlet 101 as set out in Exhibit 2 to this order.

5

With the foregoing changes, Appellant withdraws its objections to

the discharge limitations for Outlet 001 on pages 7, 8, 9 and 10

of the permit and the parties have agreed to the deletion of the

conditions appearing on page 11 of the permit.

11. Items 12 and 14 - The parties have agreed that the permit

as issued contains typographical errors on pages 13 and 14 where

the dates December 1, 1993 (page 13) and January 2, 1989 (page 14)

should have read June 30, 1990 (page 13) and July 1, 1990 (page

14), respectively. In view of the planned relocation of Outlet 001

to the Monongahela River and the consequent elimination of any

direct discharge at existing Outlet 003 and in view of the stays.

of these effective dates heretofore granted by this Board and by

the Director of the Department of Natural Resources (DNR), the

parties have agreed that the effective dates for the conditions on

page 13 of the permit are beginning with the date of entry of this

Order and until the date upon which operation of the pipeline

discussed in paragraph 10, above, commences. The parties have

further agreed that page 14 of the permit and the conditions

appearing thereon are to be deleted in their entirety from the

permit.

12. Item 13 - Due to the planned elimination of the direct

discharge from Outlet 002, and as a result of the vari.ous stays

entered by this Board, the parties have agreed that the effecti~je

dates for the conditions relating to Outlet 002 appearing on paqe

12 are to be beginning with June 21, 1989 up to and ending with t?:e

date upon which operation of the pipeline discussed in paragreph.

7

'10, above, commences. Appellant otherwise withdraws its objections

as set out in Item 13.

13. Item 15 - Appellant agrees to withdraw its objections to

the condition entitled "Duty to Comply" appearing as paragraph C.l

a) and b) on page 16 of 28.

14. Item 16 - It is Appellant's position that condition C-10,

captioned "Inspection and Entry" does not limit any rights the

permittee otherwise has to demand a search warrant prior to entry

onto the permittee's property.

15. Item 17 - The parties have agreed that condition C.ll,

captioned "Permit Modification" shall be revised in the second

paragraph to read as follows:

An application for a modification must be submitted to the Chief at least 90 days prior to the proposed modification, except that a shorter period of advance notice may be allowed if approved by the Chief.

16. Item 18 - Appellant has agreed to withdraw its objections

to condition D.5, captioned "Removed Substances."

17. Item 19 - The parties have agreed that condition E.6,

captioned "Records Retention," authorizes the use of computers,

microfilm or other higher technology record s management systems for

the storage of sampling results, data and other records reguired

under the permit so long as this data is readily accessible to the

Chief or duly designated Divisior? of Water Resources' staff upon

proper notice to the permittee, except that all original chart

recordings for continuous monitoring operations shall be retained

until an authorized individual of the agency's compliance monitor-

-

3,

ing branch has the opportunity to review them and advise the

company that they may then be reproduced, or one year from the date

of the recordings, whichever shall first occur.

18. Item 20 - Appellant withdraws its objections relating to

deficiencies in test procedures and analytical variability as set

out in Item 20 of the Notice of Appeal.

19. Item 21 - The parties have agreed that the BMP plan to

be prepared pursuant to condition G.2 of the permit is to be

submitted to Appellee no later than eighteen months after the entry

of this Order, and that conditions G.2 and B.1.c) are revised

accordingly.

20. Item 22 - The parties have agreed that the language of

condition G.4 is to be deleted and replaced in its entirety with

the following:

G.4. The permittee shall analyze stormwater generated and discharged from the old drum storage area flowing to outlet 003 for total phenols. Samples are to be collected during a precipitation event if one occurs at a frequency of once per month during the sampling month within one hour of the beginning of a stormwater discharge for a period of one year from the date of entry of this Order. The samples shall be taken as grab and the results reported in a cover letter along with the DMR submitted for the period. Upon review of the results, the Division may modify this condition to require treatment of the wastewater or additional monitoring.

21. Item 23 - The parties recocpi 20 that _ _ &A.~~e~~=pt is

currently negotiating with EPA/Region III t3 perform ? 3C"

Facility Investigation [ f'p.pIfl ] at the North Plant -.,___- ,1nrlor the

federal Resource Conservation and Recovery Act. It is presumed

that the investigation to be performed pursuant to the RF1 will

generate the same or similar information as is required under

condition G.5 on page 22 of this permit. Appellant has agreed to

submit to Appellee copies of the final RF1 simultaneously with its

submission to EPA. Appellee reserves the right to seek modifica-

tion of this permit to require that additional information be

submitted as he deems necessary to address the concerns that were

the basis for said condition G-5.

It appearing to the Board, after mature and deliberate

consideration of the foregoing and the facts of this case as

represented by the parties, that the various agreements reached

between the parties are fair and reasonable, it is, therefore,

ORDERED, that the agreements as previously described and set out

in this Order are hereby adopted as findings and as an Order of

the Board and shall he reby constitute binding alterations of the

subject permit on all persons for all purposes. It is fnrther

ORDERED that those items of appeal which Appellant has agreed to

withdraw are hereby dismissed.

Entered this & day of \~",~.::,~~.&L\ , 1989.

APPROVED BY:

Counsel for A)$p ellee

EXHIBIT 1

The permittee shall conduct bioassays on the effluent of Outlet 001 according to the following procedure:

(a) Prepare effluent water by collecting 24-hour flow weighted composite samples or equal volume composites. If it is not feasible to collect a 24-hour composite sample, multiple grab samples shall be taken every two hours. Then, a composite sample shall be prepared by mixing equal volumes of the grab sample. If a biocide has been used, collection of effluent samples shall begin after one residence time (travel time) of any biocide has elapsed.

(b) Perform forty-eight (48) hour static bioassay tests utilizing Pimephales Promelas (fathead minnow) and Daphnia (magna or pulex) as test species.

cl The dilution water should be a representative sample of the receiving water and should be obtained from a point as close as possible to but upstream or outside of the zone influenced by the effluent. If dilution water is not obtained from the receiving stream (used as dilution water) some other uncontaminated, well-aerated surface or groundwater or commercially available media or reconstituted laboratory water can be used.

d) Bioassay test procedure shall be in accordance with the Environmental Protection Agency's (EPA) Publication NO. 600/4-85-013, revised March 1985.

e) A report of the results in accordance with EPA's Publication NO. 600/4-85-013 must be submitted with the Discharge Monitoring Report (DMR) for the month following the completion of each test. LC50 shall be converted into Acute Toxic Units (TUa) using the following formula:

TUa = lOO/LC50

For example, if LC50 is lOO%, then TTJa = lOO/loo = 1.

f) If the results of three (3) consecutive tests are higher than 2.50 toxic units, an investigation into the cause of the toxicity shall be initiated and a Toxicity Reduction Evaluation (TRE) plan shall be prepared. The TRE plan shall be submitted to this agency within sixty (60) days of the submittal of the consecutive tests results.

9) If the results of three (3) consecutive tests indicate toxicity of less than 2.50 toxic units and if the company can demonstrate no chronic toxicity, the division may consider a request to delete further toxicity testing.

EXHIBIT 2

-go Limitations E rfluent JQuantity) Ibs/day Other Units (Speclfv)

. Chamclcrlstlc .._ _., _-.--. Avg. Monthly .Max. Daily Avg. Monthly Max, Dab

lw WA N/A Monitor Witor ‘DI, 129.5 345’.3 Monitor Rmitor 3~11 ~uspe~?ed Solids 164.0 526.5 Monitor Monitor

Pl 1c!n01 Tc >1lJene

2- Chlorophenol 2 ,il-Dichlorct,honol 2 ,I-Dfmcthylphcnol 2. -Ni tro~hcIl0~

2 ,4-Dinitrophenol 4. -Nitrophcnol

A. DISCI-IAIIGE LIMITATIONS AND MONITORING REWIREMENTS

Dltrinf) the period beginning I3 y eara rrom entry of WIWI and lasting through mldnlght, Docemller 1, 1993 tbepcrnCttce bauthorizedto disc- h’om outlet numbur(s) 101 (process water, bofler ~ICX&WI, stomter, groundwater

and cdoling water) SW% discharges shall be limited and monitored by the permittee as specified below:

.043 .075 .a75 .23 .09 .28 .112 .322 .05 .I03 .118 .20 .20 ‘. 35 .207 ‘. 36

Monitor Monitor Monitor Monitor Monitor Monitor Monitor Monitor

tinitor Monitor Monitor Monitor Man itor Monitor Monitor Monitor

Monitoring Requirements Measurement Sample Frequency -type

l/week MlZ%U?d l/week 24 hr UT@ l/WA 24hrcoVp

l/W& Grab c

l/week Grab l/Week Grab l/Week Grab l/week Grab lkek Grab l/week Grab l/week Grab

The nH shall not be less than N/A standard units and not greater than N/A standards units ond shall be monltored N/A

Samples taken in cumpliance with the monitoring requirements specified above shall be taken at the followlnq locetionfs):

prior t0 discharge to pipeline carrying combined discharge to Monongahela River'.

R

R. DISCI-IRRGE LIMITATIONS AND MONITORING REQUIREMENTS I’INAL During the period beginning 13 yenrs from entry of order1 and iasring through midnight. tkGember 1 r 1993 the permittee Is authorized to discharge from outlet nurnbarfs) 101 fprocese ,,.ater, boiler blowdown, stormwater, groundwater

and cooling water) Srrch discharges shall be limited and monitored by the permittee as specified below:

~fflWl\t Chera:~tcristir .-..-z---.2

ficcne,rl;cheno

Limitations Dischargp Monitoring Requirements (Quantity) lbslday

Avq. Monthly Other Units (Spm Measurement Sample

jvlax. Daily Avg. Monthly Max. Daily Frequency VIE-

.063 -276 .106 .05 .04 .196 .043 .196 .06 .06 .063 .06 .30 ..C’6

.I7 N/A .70 N/A .39 N/A .11 N/A .08 N/A .40 N/A .08 N/A. .607 N/A .155 N/A .155 N/A .17 N/A .155 N/A .77 WA .13 N/A .47 WA .127 N/A .08 N/A .072 N/A

l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/yellr

Grab crab Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab

Acrylrmitrile hntcnc Carbon Tctrachlorlde r:hlorot.on?.ene 1,2, .I-Trichlorobenzene lIcx~ol~l~robenzene ,1 , ?-lrichlorooth:me l,l,l-Trichlorm?thane ‘llcxachloroethanc :I , l-Dichloroethrme 1,1,2-Trichlorocthene Clllor~‘l?tllrlnc ~Chloroforrn ‘I., 2:nlchlorobenzene 6 ,3-l.riclll.orobeni?ene 11,4-ulchlorobenr.ene ,L,l-nichloroothylene

,The pli shall not be less than N/A

.22

.09

.043

.046

standard units and not greater than N/A standards units and shall be monltoredN/A

:, . . Grab Grab Grab

T,. DIKHAi7GE LIMITATIONS AND MONITORING REQUIREMENTS

FINnI, Dtrritrg fhc! period beginning 13 y ears [ram entry or ord~rl and lasting through midnight, c@Wkr 1, 1933 ~hc pcrmiItee Is i~othorlred to discharge from outlet numb&(s) 10 1 ( process Water, boiler blowdown, atomater, grcmnawatet

end cooling water) Such discharges shall be limited and monitored by the pcrmittce as specified below:

Effluent Characteristic ---

Limitations Discharge Monftorlnq Requirements

(Quantity) Ibs/day Other Units (Specffyl Measurement Sample

Avg. Monthly Max. Daily Avg. Monthly Max. Daily Frequency Q!EL 1,2 trans Dichl’oroethylene 1,2-Dichloropropme 1,3-Oichloropropylene 2,4-Dinitrotoluene 2,6-Oinitratoluene Ethylbenzene Fl\rorimthcne His (2-Chloroisqwopyl)

ether I4o~thyl~nc Chloride llexachlorobutadicne Ilaphthalene Nltrobenzene

.06 .155

.44 .66

.083 ,.126

.325 .a2

.73 1.84

.092 .31

.07 .20

. Cl66

.115

.057 .063 .07?

2.18 ,256 .141 .17 .20 .I30

803 :164 .58

135 : 547

I 4,6-Dinitro-o-crosol .224 ei s (2-ethylhexyl.) phthalate .296 Di-n-butyl phthalate 078 Diethyl phthalate :233 Dinethyl phtholote 055 :.:ethyl Chloride :247

I

l/year l/year 1;year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year

The pli shall not be less than N/A standard unlts and not greater than N/A standards units and shall be monitored N/A

Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab L.

‘Grab Grab * Grab Grab

.

A. DISCHPRGE LIMITATIONS AND MONITORING REQUIREMENTS

FINAL During the period beginning fs years from entry of orderi and lasting through midnight: Decenber 1, 1993 tliowmittoe lseuthorfz~todlschargefromoutletnumbcr(s) 101 (prOC~SS water, boiler blowdown, stormwater, groundwater

and cooling water) Srfch discharges shall be limlted and monltored by the permlttee as specified below:

Efflrrent Characteristic

Limitations Discharqe Monitorlng Requirementk (Quantity) Ibs/day Other Units (Specify1 Measurement Sample

Avg. Monthly Max. Daily Avg. Monthly Max. Daily Frequency -!i!!Z-

Renzo (a) anthracene Benz0 la) pyrene 3,4-Bcnzofluoranthene Benzo(k)fluoranthene Chryscne Acenaphthylene Anthracene Fluorene Phenanthrene Pyrene Tetrachloroethylene -... .._

.063 .17 N/A .066 .175 N/A .066 .175 WA .063 .17 N/A .063 .17 N/A .063 -17 WA .063 .17 N/A .063 .17 .N/A .063 .17 WA .072 .19 N/A .063 .16 WA

N/A N/A WA N/A N/A N/A N/A N/A WA N/A N/A

TrLcl~lOrOethylene .06 .155 N/A N/A Vinyl Chloride .3 .77 WA N/A Total Chromium 3.19 7.97 VA WA Total. Coppex 4.17 9.7 N/A WA Total Cyanide 1.21 3.45 N/A N/A Total Lead .92 2.0 WA N/A Total Nickel 4.86 11.45 N/A N/A Total Zinc 3.02 7.5 N/A VA

l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year l/year

Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab Grab , Grab Grab

P

The pH shall not be less than 6 * 0 standard units and not greater than 9.0 standards units nnd shall be monitored continuously and recorded.