ILLINOIS POLLUTION CONTROL BOARD

July 6, 2006

WESLEY BRAZAS, JR.,

Petitioner,

MR. JEFF MAGNUSSEN, president,

VILLAGE OF HAMPSHIRE, and the

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondents.

)

PCB 06-131

(Third-Party NPDES Permit

Appeal – Water)

MR. WESLEY BRAZAS, JR. APPPEARED

PRO SE

;

MR. MARK SCHUSTER APPEARED ON BEHALF OF THE RESPONDENT, MR. JEFF

MAGNUSSEN, president, AND THE VILLAGE OF HAMPSHIRE; and

MR. JAMES ALLEN DAY APPEARED ON BEHALF OF THE ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY.

OPINION AND ORDER OF THE BOARD (by N.J. Melas):

On January 13, 2006, Mr. Wesley Brazas, Jr. filed a petition asking the Board to review a

December 9, 2005 determination of the Illinois Environmental Protection Agency (Agency).

See

415 ILCS 5/40(e)(1) (2004); 35 Ill. Adm. Code 105.206(a). On December 9, 2005, the Agency

issued a modified National Pollutant Discharge Elimination System (NPDES) permit (No. IL

0020281) to the Village of Hampshire for an expansion of its wastewater treatment plant located

in Kane County. The Agency granted the Village of Hampshire’s request for an NPDES permit

modification to allow an increase in the facility’s design average flow (DAF) and design

maximum flow as a result of a plant expansion. Mr. Brazas submitted a public comment

regarding the Village of Hampshire’s permit modification application during the Agency’s

public notice period.

The sole issue remaining on appeal is Mr. Brazas’ assertion that the issued permit

violates public notice requirements. The Board has accepted and considered the arguments on

this one issue in all briefs filed. Today the Board finds the public notice sufficient and compliant

with the Illinois Environmental Protection Act (Act) (415 ILCS 5/1

et seq

. (2004)) and Board

regulations. The Board upholds the Agency’s issuance of the Village of Hampshire’s permit

modification.

Before discussing the Board’s findings, the Board sets forth the procedural background,

factual background, and the parties’ arguments.

PROCEDURAL BACKGROUND

Mr. Brazas filed this petition for review on January 13, 2006. On February 2, 2006, the

Board found the petition deficient and requested more information before the Board could accept

the matter for hearing. On March 2, 2006 the Board dismissed the allegations of air and water

pollution and accepted the remainder of Mr. Brazas’ amended petition that concerned the

December 9, 2005 NPDES permit modification for hearing.

Mr. Brazas appealed on the grounds that: (1) the issued permit violates public notice

requirements; (2) the Agency and the Village of Hampshire failed to perform a study assuring

that the increase in discharge will not cause a violation of any other applicable water quality

standard as required by Special Condition 5; (3) the permit fails to require monitoring of radium

in the effluent in violation of Special Condition 9; and (4) the modified permit “unnecessarily

jeopardizes the water quality of Hampshire Creek.” Am. Pet. at 6.

On April 14, 2006, the Agency filed a motion to dismiss. On May 4, 2006, the Board

dismissed Mr. Brazas’ second, third, and fourth grounds for appeal. The Board found that

because Mr. Brazas had not raised the second, third, and fourth issues during the public comment

period, the Board did not have jurisdiction to consider those claims on appeal. 415 ILCS

5/40(e)(2) (2004);

see also

35 Ill. Adm. Code 105.210(d). The Board accepted for hearing the

one remaining issue of Mr. Brazas’s petition and directed the parties to hearing.

Hearing Officer Bradley Halloran held a hearing on May 17, 2006, at the Kane County

Courthouse in Geneva, Kane County. Mr. Brazas was the only witness that testified at the

hearing, and Hearing Officer Halloran found that his credibility was not at issue.

Mr. Jeff Magnussen, Village President, and the Village of Hampshire (the Village), filed

a joint post-hearing brief on June 5, 2006 (Vill. Br.). Mr. Brazas filed a post-hearing brief on

June 6, 2006. On June 6, 2006 the Agency filed a post-hearing brief (Ag. Br.). Also on June 6,

2006, Mr. Charles St. George moved for leave to file an

amicus curiae

brief (AC Br.). On June

13, 2006, respondents Mr. Magnussen and the Village of Hampshire moved to strike Mr. Brazas’

brief and responded to the motion for leave to file an

amicus curiae

brief. Mr. St. George replied

to the motion to strike the

amicus curiae

brief on June 15, 2006. The Board grants Mr. St.

George’s motion and accepts his

amicus

brief, but only as to the remaining issue of public notice.

Mr. Brazas responded to the motion to strike on July 5, 2006. The Board accepts the

untimely response. Mr. Brazas’ response raises no new issues in the response. Nonetheless, the

Board denies the motion to strike and accepts Mr. Brazas’ brief.

FACTUAL BACKGROUND

The Hampshire wastewater treatment facility has an average flow of 0.75 million gallons

of water per day. R. at 17. After the expansion, the facility expects to have an increase of

capacity to 1.5 million gallons per day (mgd).

. The facility discharges into Hampshire Creek.

R. at 215, 597. Hampshire Creek is impaired for ammonia nitrogen, dissolved oxygen, and total

phosphorus. R. at 101, 103, 120. On May 12, 2005, the Agency issued a draft permit and fact

sheet for the Village of Hampshire’s wastewater treatment facility. The draft permit contained

the same load limits and concentration limits as the final permit. The Agency computed the load

limits contained in the draft and final permits based on a DAF of both 0.75 mgd and 1.5 mgd

(after completion of the expansion). R. at 215, 216. The antidegredation assessment attached to

the draft permit and fact sheet stated that increases in loading of biological oxygen demand

(BOD),

total suspended solids (TSS), and ammonia was prohibited, and for that reason, very

low concentrations of those constituents will result. R. at 218. The cover letter to the final

issued NPDES permit states:

This Modified NPDES Permit increases the facility’s design average flow and

design maximum flow upon completion of the plant expansion but keeps the

concentration limits and load limits at their current levels. R. at 596.

The final NPDES permit issued to the Village of Hampshire on December 9, 2005,

contained a Carbonaceous Biochemical Oxygen Demand (CBOD5) concentration limit of 10

milligrams per liter (mg/L), a TSS limit of 12 mg/L, and an ammonia limit of 1.5-1.8 mg/L. R.

at 598. Mr. Brazas submitted a public comment during the public notice period identifying the

proposed concentration limits as a fatal error. R. at 320. On December 9, 2005, the Agency

specifically responded to Mr. Brazas’ concern that the permitted concentration and mass loading

limits do not correspond to the standard formula. R. at 545. The Agency stated:

The concentration of a pollutant in the treatment plant effluent will vary

constantly depending on the amount of flow being discharged and the mass of the

pollutant being discharged. Federal regulations do not require mass limits to

convert exactly to concentration limits.

40 CFR 122.45 (f)(2) states; Pollutants limited in terms of mass additionally may

be limited in terms of other units of measurement, and the permit shall require the

permittee to comply with both limitations. R. at 546.

THIRD PARTY NPDES PERMIT APPEAL

The Act and the Board’s rules allow for third-party appeals in an NPDES permit

proceeding. 415 ILCS 5/40(e)(1); 35 Ill. Adm. Code 105.102. Mr. Brazas has demonstrated that

he participated at the hearing held by the Agency on the NPDES permit application. Therefore,

pursuant to the Act and Board procedural rules, Mr. Brazas has standing to appeal the Agency’s

decision. But, Section 40(e)(2)(a) limits the issues to those Mr. Brazas raised during the public

comment period.

MR. BRAZAS’ ARGUMENTS

The Agency also refers to CBOD5 as biological oxygen demand (BOD) in the public notice fact

sheet, antidegradation analysis, and other communications.

See e.g.,

R. at 218.

In Mr. Brazas’ amended petition for review, he argues that the issued permit deviates

from the formula included in the public notice that the Village of Hampshire is supposed use to

calculate the appropriate load limits. Mr. Brazas stated in his public comment that the proposed

concentrations should be cut in half to correspond to required mass limits. Mr. Brazas states that

the public notice provides the following standard formula to calculate load limits: “8.34 x

(Design Average and/or Maximum flow in MGD) x (Applicable Concentration in mg/L).” Am.

Pet. at 6;

see also

R. at 269. Using that formula, Mr. Brazas states that for a load limit of 63

pounds per day (lbs/day) for CBOD5 at a flow of 1.5 mgd DAF, the concentration limit should be

5.0 mg/L, not 10 mg/L as stated in the permit.

Mr. Brazas argues that the Agency does require lower load limits and concentration limits

for discharges into Lake Michigan, so the higher load limits and higher concentration limits

found in this permit are inappropriate. Tr. at 14.

AND

THE VILLAGE’s ARGUMENTS

The Village urges the Board to uphold the Agency’s issuance of the NPDES permit

modification. The Village states that if Mr. Brazas means to say that the draft permit and fact

sheet provided notice to the public that pollutant load limits would be determined only pursuant

to a specific formulaic calculation, then his assertion is incorrect. The Village states that

Hampshire Creek is an impaired water of the State, and consequently, the formula for load limits

contained in the permit is a fixed mass-based standard.

The Village states that Mr. Brazas attempts to arrive at his recommended concentration

limit by going “backwards through the formula (from the absolute limit required by the Section

303(d) listing) to establish a new concentration limit.” Vill. Br. at 8. The Village states that

where a stream is impaired, however, there may be no increase in any load limit.

The Village states that under the modified permit, the permitted limits for the wastewater

treatment facility account for the future expansion. When the flow reaches 1.5 mgd, the

concentration limit will be less than 10 mg/L to reach the 63 lb/day load limit, states the Village.

When the facility is at current capacity, however, it will not be necessary to have a concentration

limit of 5 mg/L. The Village concludes, therefore, that under the formula, and depending on the

limit on loading, the concentration limit will vary depending on flow. The record makes it clear

beyond a doubt, contends the Village, that the Agency properly assigned the Village of

Hampshire’s concentration limits.

THE AGENCY’S ARGUMENTS

The Agency contends that Mr. Brazas has failed to show that the public notice for the

NPDES permit IL 0020281 was deficient due to errors relating to the calculation of

concentration and load limits. The Agency argues that pursuant to Section 40(a)(1) (2004), Mr.

Brazas has the burden of proof in this permit appeal. Ag. Br. at 1; citing 415 ILCS 5/40(a)(1)

(2004). Further, the Agency asserts that Mr. Brazas has failed to cite any support for the

proposition that permit limits must correspond to the typical mathematical equation. According

to the Agency, there is no State or Federal statute or regulation that includes such a requirement.

For this reason, argues the Agency, Mr. Brazas’ appeal must fail.

The Agency states that Hampshire sought a permit modification to double the capacity of

its wastewater treatment plant from 0.75 mgd to 1.5 mgd. In response to the application, the

Agency issued a draft permit and fact sheet. The fact sheet indicated that increases in BOD and

TSS loading were not allowed due to documented dissolved oxygen problems in Hampshire

Creek. Ammonia was also listed as a cause of impairment in Hampshire Creek. The fact sheet

indicated that for these reasons the proposed permit could allow no increase in loading for BOD,

TSS, or ammonia from previously permitted levels even though the plant expansion would

double capacity from 0.75 to 1.5 mgd. R. at 218, 271.

The Agency explained that with the increased flow, no loading increase would result in

lower effluent concentrations. Post Hearing Br. at 2. The Agency asserts the fact sheet

concluded: “[t]he result will be a high quality effluent that will bring about positive changes in

both the biological and chemical condition of Hampshire Creek.” Ag. Br. at 2; citing R. at 271.

Applying the standard formula using the permitted effluent limits for BOD, TSS and

ammonia, asserts the Agency, would result in higher mass load limits. Post Hearing Br. at 3. The

Agency states that higher loadings, would improperly contribute to the degradation of a 303(d)-

listed water (a water that does not meet water quality standards). Ag. Br. at 2; 33 U.S.C.

1313(d). The Agency states that the concentration in mass limits does not correspond to the

standard formula, but that the deviation was explained in the public notice and in various

communications found in the record. Tr. at 7; citing R. at 271, 447, 528, and 546. For these

reasons, argues the Agency, the Board must uphold the Agency’s issuance of the modified

permit number IL 0020281 to the Village of Hampshire.

AMICUS CURIAE

BRIEF

Mr. St. George filed an

amicus curiae

brief on June 6, 2006, setting forth three major

arguments. First, Mr. St. George argues that the neither the Board nor the Agency has provided

the public adequate due process and meaningful public participation. Second, Mr. St. George

argues that the Board is allowing more relaxed standards in the December 9, 2005 NPDES

permit than in the February 20, 2001 NPDES permit, without a demonstration that the increased

flow will “meet the antidegradation test.” Am. Cur. at 3. Third, Mr. St. George claims that the

Board’s approval of the modified permit would violate the Clean Water Act, the Public Trust

Doctrine, and Board rules.

DISCUSSION

The Parties’ Arguments

In light of the Board’s May 4, 2006 order limiting the scope of this appeal, the Board will

only consider those portions of Mr. Brazas’ post-hearing brief and hearing transcripts that

concern whether the issued permit violated public notice requirements. For the reasons set forth

below, the Board finds that the public notice for the NPDES permit IL0020281 was not deficient.

In his public comment, Mr. Brazas argued the public notice was deficient because it was

not accurate in its math. R. at 446. On December 9, 2005, the Agency specifically responded to

Mr. Brazas’ concern that the permitted concentration and mass loading limits do not correspond

to the standard formula. R. at 545. The Agency stated:

The concentration of a pollutant in the treatment plant effluent will vary

constantly depending on the amount of flow being discharged and the mass of the

pollutant being discharged. Federal regulations do not require mass limits to

convert exactly to concentration limits.

40 CFR 122.45 (f)(2) states; Pollutants limited in terms of mass additionally may

be limited in terms of other units of measurement, and the permit shall require the

permittee to comply with both limitations. R. at 546.

As this response explains, Mr. Brazas used the standard formula provided in the public notice to

arrive at his conclusion that to account for the increase in flow, the permit should apply a 5mg/L

concentration limit instead of the 10mg/L limit. As indicated in the record, the Agency did not

apply the standard formula because Hampshire Creek is an impaired water body and, therefore,

mass loadings cannot increase. R. at 546.

In this case, the Village of Hampshire’s modified permit IL0020281 limits CBOD5, TSS

and ammonia by either the mass loading, or the concentration limit, but the mass limit need not

convert exactly to the concentration limit. These limits apply to both the facility’s current flow

as well as the expected increase in flow. The permitted concentration limits for these substances

comply with the regulatory concentration limits for CBOD5, dissolved oxygen, TSS, and

ammonia found at 35 Ill. Adm. Code 302, 304.120, and 355. The mass loading limits allow the

actual effluent concentrations to vary within the permitted concentration limits, but not exceed

the mass loading limits.

The Board finds that the Agency provided the public, including Mr. Brazas, adequate

notice of why the permit increases the facility’s DAF and design maximum flow in anticipation

of the plant expansion, but keeps the concentration limits and load limits at their current levels.

For these reasons, the Board finds that the public notice was not deficient and affirms the

Agency’s issuance of NPDES permit IL0020281.

Amicus Curiae

Brief

As previously stated, the Board cannot consider Mr. St. George’s arguments not relating

to whether the issued permit violated public notice requirements. The Board will only address

whether the Board has provided the public due process. On May 4, 2006, the Board granted the

Agency’s motion to dismiss Mr. Brazas’ second, third, and fourth issues. The Board found that

the Board did not have jurisdiction to consider those issues on appeal because Mr. Brazas had

not raised them during the NPDES permit public comment period. 415 ILCS 5/40(e)(2) (2004);

35 Ill. Adm. Code 105.210(d). Mr. St. George asserts that even though Mr. Brazas did not raise

those issues himself, many community residents raised the same issues “in writing and in public

forums.” Further, Mr. St. George claims that the Agency’s motion was untimely and the Agency

should not be allowed to dismiss issues that are not novel, and would, therefore, not prejudice

any party at hearing.

On the issue of timeliness, the Board found on May 4, 2006 that both the parties and the

Board would be prejudiced by proceeding to hearing on issues not within the Board’s

jurisdiction. The Act simply does not allow the Board to decide any issues except as the Act

provides in Section 40(e). 415 ILCS 5/40(e) (2004). In the May 4, 2006 order, the Board stated

that a “demonstration that the petitioner raised the issues contained within the petition during the

public notice period” is all that is required to confer standing to a third party under Section

40(e)(2). 415 ILCS 5/40(c)(2) (2004). Mr. Brazas did not raise the stricken issues during the

public notice period, and no one else filed a timely appeal raising those issues. Consequently,

the Board has no jurisdiction to hear those issues. The Board finds that the issues were properly

struck on May 4, 2006.

This opinion constitutes the Board’s findings of fact and conclusions of law.

ORDER

The Board affirms the Agency’s December 9, 2005 grant of the NPDES permit

modification No. IL 0020281 to the Village of Hampshire.

IT IS SO ORDERED.

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) (2004);

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, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board adopted

the above opinion and order on July 6, 2006, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board