1 ILLINOIS POLLUTION CONTROL BOARD
2 IN THE MATTER OF: )
)
3 VILLAGE OF FOX RIVER GROVE, )
)
4 Petitioner, )
)
5
vs ) PCB 97-156
)
6 THE ILLINOIS ENVIRONMENTAL )
PROTECTION AGENCY, )
7 )
Respondent. )
8
9
10
11 The following is the transcript of a hearing
12 held in the above-entitled matter, taken
13 stenographically by
Geanna M. Iaquinta, CSR, a
14 notary public within and for the County of Cook and
15 State of Illinois, before Michael Wallace, Hearing
16 Officer, at 408 Northwest Highway, Fox River Grove,
17 Illinois, on the 17th day of September 1997,
A.D.,
18 commencing at 9:30 a.m.
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
2
1 A P
P E A R A N C E S:
2 HEARING TAKEN BEFORE:
ILLINOIS POLLUTION CONTROL BOARD
3 100 West Randolph Street
Suite 11-500
4 Chicago, Illinois 60601
(312) 814-4925
5 BY: MR. MICHAEL WALLACE
6
7
8 ILLINOIS POLLUTION CONTROL BOARD MEMBERS PRESENT:
9 Mr. Michael Wallace, Hearing Officer
10
11
12 ILLINOIS ENVIRONMENTAL PROTECTION AGENCY MEMBERS
PRESENT:
13
Ms. Margaret Howard
14
15
16
17
18
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
3
1 I N D E X
2 PAGES
3 Greeting by Hearing Officer.................. 6-7
4 Opening Statement by Mr.
Rosenthal........... 7-9
5 Opening Statement by Ms. Howard............. 9-11
6
WITNESS: Daniel Hughes
7
Direct Examination
8 by Mr.
Rosenthal........................... 12-23
9 Cross-Examination
by Ms. Howard.............................. 23-28
10
Redirect Examination
11 by Mr.
Rosenthal........................... 28-30
12 Recross-Examination
by Ms. Howard.............................. 30-30
13
14 WITNESS: S. Alan
Keller (called adversely)
15 Direct Examination
by Mr.
Rosenthal........................... 31-69
16
17 WITNESS: Lawrence E. Thomas
18 Direct Examination
by Mr.
Rosenthal.......................... 71-100
19
Cross-Examination
20 by Ms. Howard............................ 100-105
21
WITNESS: S. Alan
Keller
22
Direct Examination
23 by Ms. Howard............................ 114-131
24 Cross-Examination
by Mr.
Rosenthal......................... 132-139
L.A. REPORTING (312) 419-9292
4
1 I N D E X (
cont'd)
2 PAGES
3
Redirect Examination
4 by Ms. Howard............................ 139-141
5 Recross-Examination
by Mr.
Rosenthal......................... 141-142
6
Closing by Hearing Officer............... 144-145
7
8 E X H I B I T S
9 Marked for
Identification
10
Petitioner's Exhibit No. 1......... 14
11
Petitioner's Group Exhibit No. 2... 20
12
Petitioner's Exhibit No. 3......... 21
13
Petitioner's Exhibit No. 4......... 33
14
Petitioner's Exhibit No. 5......... 35
15
Petitioner's Exhibit No. 6......... 36
16
Petitioner's Exhibit No. 7......... 37
17
Petitioner's Exhibit No. 8......... 38
18
Petitioner's Exhibit No. 9......... 39
19
Petitioner's Exhibit No. 10........ 41
20
Petitioner's Exhibit No. 11........ 42
21
Petitioner's Exhibit No. 12........ 43
22
Petitioner's Exhibit No. 13........ 44
23
Petitioner's Exhibit No. 14........ 46
24
L.A. REPORTING (312) 419-9292
5
1 I N D E X (
cont'd)
2
3
E X H I B I T S
4
Marked for
5 Identification
6 Petitioner's Exhibit No. 15........ 49
7 Petitioner's Exhibit No. 16........ 51
8 Petitioner's Exhibit No. 17........ 53
9 Petitioner's Exhibit No. 18........ 54
10 Petitioner's Exhibit No. 19........ 59
11 Petitioner's Exhibit No. 20........ 71
12 Petitioner's Exhibit No. 21........ 77
13 Petitioner's Exhibit No. 22........ 82
14 Petitioner's Exhibit No. 23........ 83
15 Petitioner's Exhibit No. 24........ 90
16
17
18
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
6
1 THE HEARING OFFICER: Pursuant to the
2 direction of the Illinois Pollution Control Board, I
3 now call docket PCB 97-156. This is the permit
4 appeal of the Village of Fox River Grove versus the
5 Illinois Environmental Protection Agency.
6 May I have appearances for the record,
7 please?
8 MR. ROSENTHAL: My name is Peter
9 Rosenthal. I'm with the firm of
Rosenthal, Murphey,
10 Coblentz and Janega of Chicago, Illinois. I'm
11 appearing on behalf of the village of Fox River
12 Grove.
13 THE HEARING OFFICER: For the Environmental
14 Protection Agency.
15 MS. HOWARD: Margaret Howard. I'm the
16 attorney for the Illinois Environmental Protection
17 Agency.
18 THE HEARING OFFICER: Thank you.
19 Let the record reflect there are no
20 other appearances at today's hearing.
21 The notice was given of this hearing in
22 the Northwest Herald on or about August 8th of
23 1997. I also noticed that the notice was posted
24 downstairs on the village hall board, and so I guess
L.A. REPORTING (312) 419-9292
7
1 we're ready to go.
2 Do you wish to make an opening
3 statement?
4 MR. ROSENTHAL: Yes.
5 This matter is an appeal from
6 conditions that were contained in the NPDES permit,
7 which was issued to the village of Fox River Grove
8 in December of 19 -- I believe it's -- sorry.
9 February of 1997 is the actual date that the permit
10 was issued.
11 The conditions that the village is
12 appealing have to do with the effluent levels for
13 CBOD5 and suspended solids, and the reason that the
14 village is appealing is that the permit, the '97
15 permit, reduces the permissible effluent level for
16 CBOD5 from what had previously been 25 milligrams
17 per liter to 20 milligrams per liter.
18 It reduced the permissible effluent
19 level for suspended solids from what had been 30
20 milligrams per liter to 25 milligrams per liter.
21 When I am referring to what had been
22 before, I am referring to all of the NPDES permits
23 that had been issued prior to December '97 for the
24 Fox River Grove waste water treatment facility.
L.A. REPORTING (312) 419-9292
8
1 The facility has been in operation
2 since approximately 1977, and during that time, the
3 effluent levels have been 25 milligrams per liter
4 for CBOD5. At some points that was expressed as 30
5 milligrams per liter of BOD5. They are equivalent
6 measurements in terms of measuring impact of organic
7 effluent on a stream, and they've been set at 30
8 milligrams per liter for suspended solids until the
9 1997 permit.
10 There has not been any change in the
11 regulations that were existing when the prior --
12 between the time the prior permits were issued and
13 the '97 permit was issued that would be the reason
14 for this change -- for this imposition of the lower
15 effluent levels.
16 There has not been any change in the
17 manner in which the Fox River Grove plant processes
18 waste water treatment or waste water or the
19 equipment that is used, and that's the reason --
20 there's simply nothing that occurred that would
21 prompt or require the lowering of the effluent
22 levels.
23 We will also show -- present testimony
24 indicating that the lowering of the effluent levels
L.A. REPORTING (312) 419-9292
9
1 will have a serious impact on the Fox River Grove
2 facility in terms of the amount of waste water that
3 it actually can treat, and that is because of where
4 the plant is located and the difficulty and cost
5 that would be involved in expanding that plant if
6 the effluent levels -- effluent limitations rather
7 were approached so as to avoid a violation.
8 That's the concern that the village
9 has, and that's what we intend to show.
10 THE HEARING OFFICER: Thank you. Ms.
11 Howard?
12 MS. HOWARD: Yes. Good morning. Pursuant
13 to Section 39 of the Illinois Environmental
14 Protection Act, the Illinois EPA has the duty to
15 issue national pollution discharge elimination
16 system permits upon proof by the applicant, in this
17 case, the village of Fox River Grove, that such
18 issuance would not cause a violation of the act or
19 the applicable environmental regulations.
20 The Illinois EPA may include conditions
21 such as effluent limitations in the NPDES permit
22 which are required by the act. The Federal Water
23 Pollution Control Act or better known as the Clean
24 Water Act or the Pollution Control Board Regulations
L.A. REPORTING (312) 419-9292
10
1 also require or allow us to put effluent limitations
2 in the NPDES permit.
3 On February 6th of 1997, the Illinois
4 EPA issued NPDES permit number IL0020583 to the
5 village of Fox River Grove. This permit provided an
6 effluent limit for carbonaceous biochemical oxygen
7 demand or CBOD of 20 milligrams per liter as a
8 monthly average and an effluent limit for suspended
9 solids of 25 milligrams per liter as a monthly
10 average.
11 The effluent limits were established
12 pursuant to the requirements found in the Board's
13 regulations at 35
Il. Administrative Code 304.120
14 which sets effluent limits for deoxygenating wastes
15 and 35
Il. Administrative Code 301.345 which defines
16 the term pollution -- population equivalent.
17 The Illinois EPA will present two
18 witnesses. First, Mr. Don
Netemeyer, the permit
19 reviewer, and Mr. Alan
Keller, the manager of the
20 northern municipal unit of the permit division.
21 These witnesses will explain how, based
22 on the Board's regulations, they drafted and
23 approved the village's NPDES permit with effluent
24 limits of 20 milligrams per liter for BOD and 25
L.A. REPORTING (312) 419-9292
11
1 milligrams per liter for suspended solids.
2 In providing testimony, these two
3 witnesses will demonstrate how these limits are
4 consistent with the Board's regulations and any
5 limits other than these would cause the Illinois EPA
6 to issue an NPDES permit that would allow violations
7 of the Board's regulation, which would put the
8 Illinois EPA in a position of not complying with its
9 duties under the act.
10 THE HEARING OFFICER: Thank you. All
11 right.
12 Are you ready to call your first
13 witness, Mr.
Rosenthal?
14 MR. ROSENTHAL: The village of Fox River
15 Grove will call Dan Hughes.
16 (Witness sworn.)
17 THE HEARING OFFICER: Please speak up so
18 the court reporter can hear you and take down your
19 testimony.
20 You may proceed.
21
22
23
24
L.A. REPORTING (312) 419-9292
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1 WHEREUPON:
2 D A N I E L H U G H E S,
3 called as a witness herein, having been first duly
4 sworn,
deposeth and saith as follows:
5 D I R E C T E X A M I N A T I O N
6 by Mr.
Rosenthal
7 Q. Mr. Hughes, could you please state your
8 name for the record?
9 A. Daniel Hughes.
10 Q. And who are you employed by?
11 A. The village of Fox River Grove.
12 Q. And what is your position with the
13 village?
14 A. I am superintendent of water and sewer.
15 Q. And how long have you been
16 superintendent of water and sewer?
17 A. For the past eight years.
18 Q. And could you briefly describe your
19 duties as superintendent of water and sewer?
20 A. I'm responsible for the operation and
21 maintenance of the waste water treatment facility,
22 the stations, and two water treatment plants, and
23 also the collection of distribution systems.
24 Q. Do you reside in the village of Fox
L.A. REPORTING (312) 419-9292
13
1 River Grove?
2 A. Yes, I do.
3 Q. For how long have you resided in the
4 village?
5 A. For the past 17 years.
6 Q. And prior to being employed -- prior to
7 your position as superintendent of water and sewer,
8 were you employed by the village?
9 A. Yes, I was.
10 Q. And what position did you have with the
11 village?
12 A. I kind of progressed from summer
13 maintenance crew to equipment operator, water
14 treatment plant operator, and currently water and
15 sewer superintendent.
16 MR. ROSENTHAL: How do you want us to
17 handle exhibits?
18 THE HEARING OFFICER: Have you marked them
19 already?
20 MR. ROSENTHAL: I have tags and I'm --
21 THE HEARING OFFICER: I have some
22 petitioner's tags.
23 MR. ROSENTHAL: Okay.
24 THE HEARING OFFICER: If you've already
L.A. REPORTING (312) 419-9292
14
1 tagged them, that's okay.
2 MR. ROSENTHAL: Well, I just had one.
3 THE HEARING OFFICER: Okay. You can hand
4 them here, and I'll --
5 MR. ROSENTHAL: If I could have that marked
6 as Petitioner's Exhibit No. 1.
7 (Petitioner's Exhibit No. 1
8 marked for identification,
9 9-17-97.)
10 BY MR. ROSENTHAL:
11 Q. Mr. Hughes, let me show what's been
12 marked as Petitioner's Exhibit No. 1 and ask if you
13 can identify that document?
14 A. Yes. That is a resume I put together.
15 Q. And you prepared that yourself?
16 A. Yes, I did.
17 Q. Does that accurately reflect your
18 experience and your education and certifications?
19 A. Yes, it does.
20 Q. As superintendent of water and sewer,
21 are you familiar with the way that the village of
22 Fox River Grove's waste water treatment plant
23 operates?
24 A. Yes.
L.A. REPORTING (312) 419-9292
15
1 Q. Could you describe the way that it
2 operates?
3 A. Yes. Our waste water treatment plant
4 is a 1.25 million gallon per day facility.
5 Treatment consists of pretreatment with a bar
6 screen, and then it goes in an aerated grid tank.
7 The flow goes to primary
clarifiers. We have
8 sedimentation there. Then it flows into a
9 biological treatment process with rotating
10 biological
contactors.
11 Then from there, it goes to the
12 secondary
clarifiers, and then the flow continues to
13 our final chlorine contact chamber. The sludge is
14 handled by aerobic digestion through a mechanical
15 dewatering press, and from there the final solids
16 are land applied in farm fields.
17 Q. You indicated that the plant uses
18 biological
contactors. Could you explain what those
19 are?
20 A. Yeah. The
RBCs or biological treatment
21 process where the waste water stream flows through
22 the
bio-disc. The bio-disc create a media for
23 microorganisms to grow on there. As the sewage
24 comes through the
bio-disc, the microorganisms use
L.A. REPORTING (312) 419-9292
16
1 the sewage as a food supply.
2 The media will coagulate the suspended
3 solids and they will
sluff off and settle off in
4 secondary
clarifiers.
5 Q. Does weather have any affect on
6 biological
contactors?
7 A. Yes, it does. During colder weather
8 where the water is cold and the air temperature is
9 cold, the metabolism of the microorganisms are
10 slower, and the process is less effective during
11 colder winter months.
12 Q. What is the -- after the waste water is
13 treated in the Fox River Grove plant, where does the
14 water go?
15 A. It discharges to the Fox River.
16 Q. Is that the only point of discharge in
17 the Fox River?
18 A. Yes, it is.
19 Q. And how many points of discharge are
20 there into the Fox River Grove -- into the Fox River
21 from the plant?
22 A. Just one.
23 Q. Are you familiar with the village's
24 sewer system?
L.A. REPORTING (312) 419-9292
17
1 A. Yes, I am.
2 Q. When was the sewer system initially
3 constructed?
4 A. It was initially constructed in 1926,
5 '27.
6 Q. And when was the current treatment
7 facility -- the current treatment -- the existing
8 treatment plant constructed?
9 A. In 1977.
10 Q. What did -- was that plant constructed
11 on a new site or on an existing site?
12 A. No, that -- the 1977 plant was
13 constructed in the same location as the previous
14 plant. The previous plant was like an anaerobic
15 digestion plant.
16 Q. Was that plant demolished?
17 A. Yes, it was.
18 Q. You indicated that the plant had a
19 capacity of 1.25 MGD?
20 A. Right. That's the average design flow.
21 Q. And what does that refer to in terms of
22 the flow of what?
23 A. That's the hydraulic capacity of the
24 flow into the plant.
L.A. REPORTING (312) 419-9292
18
1 Q. When you say the hydraulic capacity,
2 what do you mean by that?
3 A. The gallons. It's designed for an
4 average flow of 1.25 million gallons per day.
5 Q. Are you referring to gallons of water?
6 A. Gallons of waste water.
7 Q. Okay. Now, does the plant have any
8 other ratings?
9 A. Yeah. It does have a PE rating of
10 9900.
11 Q. And what does that rating refer to?
12 A. It's the population effluent.
13 Q. Okay. But the 9900 PE, what is that
14 rating applicable to?
15 A. That's to the organic
loadings of the
16 plant.
17 Q. Has -- with regard to the -- when
18 referring to the organic rating of the plant, are
19 you referring to the materials, are you referring to
20 BOD?
21 A. Right. I'm referring to the
22 COB -- CBOD
loadings and also total suspended
23 solids.
24 Q. Has the plant ever come close to having
L.A. REPORTING (312) 419-9292
19
1 an average daily or average monthly capacity or come
2 close to its limit of 9900 PE with regard to the
3 amount of organic material CBOD5 or suspended solids
4 that have been filling into the plant?
5 A. No, it hasn't.
6 Q. What is the typical range of the
7 average daily amount of CBOD5 coming into the plant?
8 A. Our typical BOD
loadings coming into
9 the plant would be approximately 100. As it leaves
10 the plant, we are looking at a CBOD of nine and
11 total suspended solids of ten milligrams per liter.
12 Q. And what is the actual
13 population -- let me -- what is the range of the
14 average daily flow in regard to the amount of waste
15 water coming into the plant?
16 A. We treat approximately 730,000 gallons
17 on an average day. Our population is approximately
18 4,000.
19 Q. That's the actual population served by
20 the plant?
21 A. Yeah, approximately.
22 Q. In addition to residents, does the
23 plant serve any other facilities?
24 A. Yeah. We also serve Good Shepherd
L.A. REPORTING (312) 419-9292
20
1 Hospital, and that's it other than in town.
2 Q. Have you ever received any notice from
3 the IEPA or from any agency for that matter that the
4 plant's rating with regard to CBOD5 and suspended
5 solids was being changed from 9900 PE?
6 A. From that existing 9900, no.
7 Q. Has the village entered into any
8 agreements with any other entities pursuant to which
9 it has agreed to provide waste water treatment in
10 the future?
11 A. Yes. We entered into an agreement with
12 the Lake
Barrington Industrial Park.
13 Q. And what does that agreement provide,
14 just in general?
15 A. It provides waste water treatment for
16 an industrial park that's located outside of town.
17 Approximately 98 new units would come out of that
18 line.
19 MR. ROSENTHAL: If I could have this marked
20 as Petitioner's Exhibit No. 2.
21 (Petitioner's Group Exhibit
22 No. 2 marked for identification,
23 9-17-97.)
24
L.A. REPORTING (312) 419-9292
21
1 BY MR. ROSENTHAL:
2 Q. Mr. Hughes, let me show you what has
3 been marked as Petitioner's Group Exhibit No. 2.
4 Can you identify that agreement --
5 A. Yes.
6 Q. -- or that document?
7 A. Yeah. This is the governmental
8 agreement with Lake
Barrington Industrial Park.
9 Q. And that consists of the agreement
10 itself and five amendments?
11 A. Yes, it does.
12 Q. To your knowledge, is that the complete
13 agreement as it now exists?
14 A. Yes, it is.
15 MR. ROSENTHAL: Could I have this marked as
16 Petitioner's Exhibit No. 3.
17 (Petitioner's Exhibit No. 3
18 marked for identification,
19 9-17-97.)
20 BY MR. ROSENTHAL:
21 Q. Mr. Hughes, I'm showing you what's been
22 marked as Petitioner's Exhibit No. 3.
23 Can you identify that document?
24 A. Yes, I can. This is a document for an
L.A. REPORTING (312) 419-9292
22
1 NPDES permit for the waste water treatment plant.
2 Q. Okay. The document consists of a
3 letter dated February 6th, 1997, correct?
4 A. Yes, it does.
5 Q. And also enclosed is a copy of the --
6 it also consists of the village's current or 1997
7 final NPDES permit?
8 A. Yes.
9 Q. And was this -- there's also a fax
10 cover sheet; is that correct?
11 A. Yes.
12 Q. And that -- it indicates that it's from
13 Don
Netemeyer --
14 A. Correct.
15 Q. -- to yourself?
16 Was this -- did you receive this fax on
17 or about February 6th, 1997?
18 A. Yes, I did.
19 MR. ROSENTHAL: I'd ask that Petitioner's
20 Exhibits 1, 2, and 3 be admitted into evidence.
21 THE HEARING OFFICER: Any objections?
22 MS. HOWARD: No objections.
23 THE HEARING OFFICER: Petitioner's Exhibits
24 1, 2, and 3 are admitted.
L.A. REPORTING (312) 419-9292
23
1 MR. ROSENTHAL: That's all that I have for
2 this witness.
3 THE HEARING OFFICER: Ms. Howard?
4 C R O S
S - E X A M I N A T I O N
5 by Ms. Howard
6 Q. Mr. Hughes, could you tell me, are you
7 familiar with the -- you mentioned that the plant is
8 not having right now any trouble meeting its permit
9 limits in the wintertime; is that correct?
10 A. That's correct.
11 Q. Are you familiar with the actual
12 discharge limits that they are putting on the
DMRs?
13 For example, December of 1996, do you know what was
14 reported on the DMR for Fox River Grove to the
15 agency?
16 A. I do prepare the monthly
DMRs. I'd
17 have to refer to them.
18 Q. Let's see. Let's start with December
19 of '96.
20 MS. HOWARD: We can do this just by
21 recollection, and if we want, we can make copies and
22 enter them in as exhibits.
23 Do you have any -- we didn't bring
24 extra copies of these actually. I'm referring to
L.A. REPORTING (312) 419-9292
24
1 exhibits. I'm sure we can make some copies.
2 MR. ROSENTHAL: If I could just see them?
3 MS. HOWARD: Sure.
4 MR. ROSENTHAL: Okay.
5 BY MS. HOWARD:
6 Q. Mr. Hughes, you mentioned that winter
7 is a difficult time for the plant to meet its
8 limits, correct?
9 A. Yeah. The --
10 MR. ROSENTHAL: I'm going to object. I
11 don't believe that's what his characterization -- I
12 think you're
mischaracterizing his testimony.
13 BY THE WITNESS:
14 A. The
bio-discs are less effective when
15 it's colder.
16 BY MS. HOWARD:
17 Q. That's what I was -- I'm sorry. That
18 based on the biological treatment plant, it is more
19 difficult because of the bugs and so forth when the
20 weather gets colder, sometimes the bugs have a hard
21 time treating the waste and they do a lot better in
22 --
23 A. Yeah. They do better in --
24 Q. -- warmer weather?
L.A. REPORTING (312) 419-9292
25
1 A. -- warmer conditions. Their metabolism
2 is faster.
3 Q. Okay. I'd like to show you a discharge
4 monitoring report that was submitted from the Fox
5 River Grove -- village of Fox River Grove to the
6 Illinois Environmental Protection Agency, and it's
7 dated from December 1st, 1996, to December 31st,
8 1996, and I'd like you to take a look at the monthly
9 average that was reported for BOD and for suspended
10 solids.
11 A. Okay.
12 Q. Does that help you recall what the
13 numbers were that you reported that month to the
14 Illinois EPA?
15 A. Yes, it does.
16 Q. And what was the limit that you
17 reported for BOD that month?
18 MR. ROSENTHAL: Which month are you
19 referring to?
20 MS. HOWARD: This is December of
21 1996.
22 BY THE WITNESS:
23 A. For the CBOD or BOD?
24
L.A. REPORTING (312) 419-9292
26
1 BY MS. HOWARD:
2 Q. CBOD.
3 A. CBOD, seven milligrams per liter, and
4 total suspended solids are nine.
5 Q. Okay. And the month of January of
6 1997, did you also submit and sign a discharge
7 monitoring report and submit it to the agency?
8 A. Yes, I did.
9 Q. Okay. Take a look at that and tell me
10 what the limit for BOD and total suspended solids
11 was?
12 A. CBOD is reported as ten, and total
13 suspended solids is also ten.
14 Q. Okay. In the month of February 1997,
15 do you remember sending a discharge monitoring
16 report for the village to the agency?
17 A. Yes.
18 Q. Would you take a look at that and tell
19 us what the CBOD and the solids ratings were for
20 that month?
21 A. A CBOD of ten and total suspended
22 solids of 12.
23 Q. And the last one was for March of
24 1997. Do you remember submitting that DMR?
L.A. REPORTING (312) 419-9292
27
1 A. Yes.
2 Q. And could you tell us what the BOD or
3 CBOD and TSS limits are for that?
4 A. CBOD is ten and total suspended solids
5 is 11.
6 Q. Now, you would agree that those limits
7 that you reported are well below the 20, 25 limits
8 that we're discussing here today, correct?
9 A. Yes, they are.
10 Q. And that is during the colder months of
11 the year, December say through March on average,
12 here in the northern part of Illinois, correct?
13 A. Yes, it is.
14 Q. You testified that the loading of the
15 plant was 9,900. That is really only the organic
16 loading?
17 A. Correct. That's not the hydraulic.
18 Q. And hydraulic is 12,500; is that
19 correct?
20 A. Yes, it is. The hydraulic capacity of
21 the plant?
22 Q. Right, the hydraulic loading of the
23 plant?
24 A. Twelve thousand five hundred, right.
L.A. REPORTING (312) 419-9292
28
1 MS. HOWARD: That's all I have.
2 THE HEARING OFFICER: Redirect?
3 MR. ROSENTHAL: Do you have the reports for
4 April and May of '97.
5 MR. KELLER: Yes.
6 MS. HOWARD: Do you think it would be best
7 maybe to make copies, if we can here, during a break
8 or something of those and actually enter them into
9 the exhibits? Would that help the board?
10 THE HEARING OFFICER: If either of you wish
11 to introduce them, but --
12 MS. HOWARD: I think having the testimony
13 of the actual limits is fine, but I just didn't know
14 if that would be more helpful for the members.
15 R E D I R E C T E X A M I N A T I O N
16 by Mr.
Rosenthal
17 Q. Let me show you the report for
18 April 1997. Does that indicate what the average
19 BOD5 is for that month?
20 A. Yes, it does.
21 Q. And what was it for April '97?
22 A. The CBOD for April is ten, and total
23 suspended solids is 12.
24 Q. Okay. So the suspended solids went up
L.A. REPORTING (312) 419-9292
29
1 between April and May; is that correct?
2 A. That's correct.
3 Q. Let me -- I mean, between March and
4 April.
5 A. I'm sorry, that's correct.
6 Q. Let me show you the permit for May.
7 Can you indicate what the average was for CBOD5 for
8 May?
9 A. CBOD is 11, and the total suspended
10 solids is 17.
11 Q. And those were increases between
12 April and May?
13 A. Yes, they are.
14 Q. Is there an explanation for the
15 increases?
16 A. The treatment plant does tend to trend
17 during colder weather to be less effective and less
18 efficient in the long-term. That's really what I
19 would...
20 Q. Does it take time for the organisms to
21 warm up in the summer?
22 A. Yes, it does.
23 Q. So they wouldn't meet their peak
24 operating efficiency until it's been warmed for some
L.A. REPORTING (312) 419-9292
30
1 months?
2 A. Yes. It does take a while for
3 microorganisms to become more active.
4 MR. ROSENTHAL: That's all that I have.
5 THE HEARING OFFICER:
Recross?
6 R E C R O S
S - E X A M I N A T I O N
7 by Ms. Howard
8 Q. Just that for April and May, the BOD
9 limits of ten and 11 milligrams per liter are below
10 the limit in the permit of 20 milligrams per liter;
11 is that correct?
12 A. Yes, it is.
13 Q. And the 12 milligrams per liter and the
14 17 milligrams per liter for total suspended solids
15 for April and May, that's below the 25 milligrams
16 per liter permit limit, correct?
17 A. Yes.
18 MS. HOWARD: That's all I have.
19 MR. ROSENTHAL: That's all that I have of
20 this witness.
21 THE HEARING OFFICER: Okay. The numbers
22 you were talking about there, the numbers you
23 reported in the DMR correlate to the numbers in the
24 permit conditions?
L.A. REPORTING (312) 419-9292
31
1 THE WITNESS: Yes, they do.
2 THE HEARING OFFICER: All right. Thank
3 you. You may step down.
4 MR. ROSENTHAL: At this time, we would ask
5 to call Mr. Al
Keller pursuant to the rule -- I
6 don't recall the exact citation there that allows
7 the examination of adverse witnesses.
8 (Witness sworn.)
9 WHEREUPON:
10 S. A L A N K E L
L E R, P. E.,
11 called as an adverse witness herein, having been
12 first duly sworn,
deposeth and saith as follows:
13 D I R E C T E X A M I N A T I O N
14 by Mr.
Rosenthal
15 Q. Mr.
Keller, could you please state your
16 name for the record?
17 THE HEARING OFFICER: Before you get
18 started, I will say that's Section 103.209,
19 examination of an adverse party or agent, and you
20 may proceed under that rule.
21 MR. ROSENTHAL: Thank you.
22 BY MR. ROSENTHAL:
23 Q. Would you please state your name for
24 the record?
L.A. REPORTING (312) 419-9292
32
1 A. Alan
Keller.
2 Q. And where are you currently employed?
3 A. The Illinois Environmental Protection
4 Agency.
5 Q. And what is your position with the
6 Illinois Environmental Protection Agency?
7 A. I'm the manager of the northern
8 municipal unit in the permit section for the
9 division of water pollution control.
10 Q. And how long have you been employed in
11 that position?
12 A. In that position, approximately three
13 years.
14 Q. And how long have you been employed by
15 the IEPA?
16 A. Over 25 years. I started in June of
17 '72.
18 Q. And in your current position, you are
19 responsible for the issuance of NPDES permits in the
20 northern sector of the state?
21 A. Yes.
22 Q. And that includes the NPDES permit that
23 would be applicable to the village of Fox River
24 Grove facility; is that correct?
L.A. REPORTING (312) 419-9292
33
1 A. Yes.
2 Q. And the permit that was issued in 1997,
3 February of 1997, was that the first permit that you
4 were involved -- NPDES permit that you were involved
5 in for the Fox River Grove facility?
6 A. Yes.
7 Q. You were not involved in the issuance
8 of any prior NPDES permit; is that correct?
9 A. No.
10 Q. Who was your predecessor in your
11 current position?
12 A. Rick Lucas.
13 MR. ROSENTHAL: If I could have this
14 marked.
15 BY THE WITNESS:
16 A. May I correct that? There was one
17 other person in between Mr. Lucas and myself, and
18 that was Dean
Studer, however, he had no permit
19 issuance with Fox River Grove. Mr. Lucas was the
20 previous permit manager that dealt with Fox River
21 Grove.
22 (Petitioner's Exhibit No. 4
23 marked for identification,
24 9-17-97.)
L.A. REPORTING (312) 419-9292
34
1 BY MR. ROSENTHAL:
2 Q. Mr.
Keller, let me show you what has
3 been marked as Petitioner's Exhibit No. 4. That
4 document is a copy of the NPDES permit that was
5 issued to the village of Fox River Grove in
6 approximately July 1977 or June 1977?
7 A. Is that a question?
8 Q. Yes.
9 A. Yes, June 22nd, 1977.
10 Q. And then referring to Attachment A,
11 that document sets effluent limitations; is that
12 correct?
13 A. Yes, it does.
14 Q. And the effluent limitation for BOD5 on
15 a monthly daily average is 30 milligrams per liter,
16 is that correct, under that permit?
17 A. Yes, it is.
18 Q. And then the suspended solids -- the
19 effluent limitation for suspended solids under the
20 permit is 30 milligrams per liter; is that correct?
21 A. Yes, it is.
22 Q. You did not have any involvement in the
23 issuance of this 1977 permit, did you?
24 A. I do not recall any involvement in it.
L.A. REPORTING (312) 419-9292
35
1 Q. But this is a copy of the permit?
2 MS. HOWARD: Go ahead. I'm sorry.
3 BY THE WITNESS:
4 A. It appears to be a copy of the permit,
5 yes.
6 MR. ROSENTHAL: If I could have this marked
7 as Petitioner's Exhibit No. 5.
8 (Petitioner's Exhibit No. 5
9 marked for identification,
10 9-17-97.)
11 BY MR. ROSENTHAL:
12 Q. Mr.
Keller, I'm handing you what's been
13 marked as Petitioner's Exhibit No. 5. That's a copy
14 of a proposed draft NPDES permit for the Fox River
15 Grove facility dated August 26th, 1986; is that
16 correct?
17 A. Yes, it is.
18 Q. And referring to what would be the
19 third page of this document, that indicates the
20 proposed effluent limitations for BOD5; is that
21 correct?
22 A. Yes.
23 Q. And the proposed effluent limitation is
24 30 milligrams per liter; is that correct?
L.A. REPORTING (312) 419-9292
36
1 A. Yes.
2 Q. And it also indicates the proposed
3 suspended solid limitation for effluent limitation
4 of 30 milligrams per liter; is that correct?
5 A. Yes.
6 Q. Again, you did not have any involvement
7 in the issuance or the preparation of this draft
8 permit; is that correct?
9 A. No.
10 MR. ROSENTHAL: Could I have this marked as
11 Petitioner's Exhibit No. 6?
12 (Petitioner's Exhibit No. 6
13 marked for identification,
14 9-17-97.)
15 BY MR. ROSENTHAL:
16 Q. Mr.
Keller, I've handed you a copy of
17 what's been marked as Petitioner's Exhibit No. 6.
18 That's a copy of a proposed -- of a draft NPDES
19 permit for the Fox River Grove facility dated
20 September 19th, 1986; is that correct?
21 A. Yes.
22 Q. And referring to page two of this
23 document, that insert states a proposed effluent
24 limitation for BOD5 of 20 milligrams per liter; is
L.A. REPORTING (312) 419-9292
37
1 that correct?
2 A. Yes.
3 Q. And it shows a proposed effluent
4 limitation for suspended solids of 25 milligrams per
5 liter; is that correct?
6 A. Yes.
7 Q. So there was a reduction of those
8 numbers between the 19 -- between the August draft
9 term and the September draft term of 1986, correct?
10 A. Correct.
11 Q. And, again, you were not involved in
12 the preparation of that draft permit?
13 A. No.
14 MR. ROSENTHAL: If I could get this marked
15 as Petitioner's Exhibit No. 7.
16 (Petitioner's Exhibit No. 7
17 marked for identification,
18 9-17-97.)
19 BY MR. ROSENTHAL:
20 Q. Let me show you what's been marked as
21 Petitioner's Exhibit No. 7. This is a cover letter
22 -- Petitioner's Exhibit No. 7 consists of a cover
23 letter and a copy of the final permit or a final
24 NPDES permit dated December 5, 1986, correct?
L.A. REPORTING (312) 419-9292
38
1 A. Yes.
2 Q. And this was sent out by the Illinois
3 Environmental Protection Agency?
4 A. Yes.
5 Q. And this showed -- the NPDES permit
6 shows a limitation for CBOD5 of 20 milligrams per
7 liter; is that correct?
8 A. Correct.
9 Q. And it shows a suspended solids
10 limitation of 25 milligrams per liter; is that
11 correct?
12 A. Yes, it is.
13 Q. The letter that is attached, that was
14 written on behalf of the IEPA; is that correct?
15 A. Yes.
16 MR. ROSENTHAL: If I could have this marked
17 as Petitioner's Exhibit No. 8.
18 (Petitioner's Exhibit No. 8
19 marked for identification,
20 9-17-97.)
21 BY MR. ROSENTHAL:
22 Q. Petitioner's Exhibit No. 8 is a copy of
23 a petition for review of the December 5, 1986,
24 permit; is that correct?
L.A. REPORTING (312) 419-9292
39
1 A. Yes.
2 Q. And what's -- the -- what is being
3 appealed there with the effluent limitations that
4 were placed on CBOD5 and suspended solids; is that
5 correct?
6 A. Under 1.5 on page two?
7 Q. Yeah, 1.5, 1.7.
8 A. Yes, that's true.
9 Q. Now, you are aware that there was an
10 appeal in 1986 of the initial permit limitations
11 that were placed on the effluent levels for CBOD5
12 and suspended solids in the December 1986 NPDES
13 permit, correct?
14 A. Yes.
15 Q. Are you familiar with an individual by
16 the name of Wayne
Wiemerslage?
17 A. Yes.
18 Q. He was an attorney employed by the --
19 worked for the Illinois Environmental Protection
20 Agency; is that correct?
21 A. Yes.
22 MR. ROSENTHAL: If I could have this marked
23 as nine.
24 (Petitioner's Exhibit No. 9
L.A. REPORTING (312) 419-9292
40
1 marked for identification,
2 9-17-97.)
3 BY MR. ROSENTHAL:
4 Q. Let me show you what's been marked as
5 Petitioner's Exhibit No. 9. That is a letter
6 written on Environmental Protection Agency
7 stationery, correct?
8 A. Yes, it is.
9 Q. And that is a letter from
10 Mr.
Wiemerslage to myself; is that correct?
11 A. Yes.
12 Q. And that is -- the letter confirms the
13 settlement of the appeal in the 1996 permit; is that
14 correct?
15 A. Yes.
16 Q. And that settlement indicates that
17 there is a rating change for the village of Fox
18 River Grove treatment plant from 10,000 PE down to
19 9900 PE?
20 A. Yes.
21 Q. And the letter in the next paragraph
22 indicates that with the settlement there's no need
23 for a hearing on the appeal; is that correct?
24 A. Correct.
L.A. REPORTING (312) 419-9292
41
1 Q. And that indicates that the IEPA will
2 issue a new NPDES permit?
3 A. Yes, it does.
4 MR. ROSENTHAL: Could I have this marked as
5 Petitioner's Exhibit No. 10?
6 (Petitioner's Exhibit No. 10
7 marked for identification,
8 9-17-97.)
9 MR. ROSENTHAL: I haven't been doing this,
10 but would you want copies of the exhibits?
11 THE HEARING OFFICER: No.
12 BY MR. ROSENTHAL:
13 Q. Mr.
Keller, I'm showing you what you
14 have in your hand what's been marked as Petitioner's
15 Exhibit No. 10. That is a letter written on
16 Environmental -- Illinois Environmental Protection
17 Agency stationery, correct?
18 A. Yes.
19 Q. And it was written by
20 Mr.
Wiemerslage?
21 A. Yes.
22 Q. And in that letter, he's asking the
23 village of Fox River Grove to officially request
24 that its plant be
rerated to 9900 PE?
L.A. REPORTING (312) 419-9292
42
1 A. Correct.
2 MR. ROSENTHAL: If I could have this marked
3 as Petitioner's Exhibit No. 11?
4 (Petitioner's Exhibit No. 11
5 marked for identification,
6 9-17-97.)
7 BY MR. ROSENTHAL:
8 Q. Mr.
Keller, let me show you what's been
9 marked as Petitioner's Exhibit No. 11. That is a
10 cover letter -- Petitioner's Exhibit No. 11 consists
11 of a cover letter signed by Mr. Lucas along with a
12 draft NPDES permit dated June 18th, 1987, for the
13 Fox River Grove facility; is that correct?
14 A. Yes.
15 Q. And Mr. Lucas was your predecessor in
16 your current position?
17 A. Correct.
18 Q. And that proposed permit, I'm referring
19 to the second page, indicates an effluent limitation
20 for BOD5 25 milligrams per liter; is that correct?
21 A. Yes.
22 Q. And an effluent limitation for
23 suspended solids of 30 milligrams per liter; is that
24 correct?
L.A. REPORTING (312) 419-9292
43
1 A. Yes.
2 Q. So these are increases in the effluent
3 levels from the December 1986 permit; is that
4 correct?
5 A. Yes.
6 Q. And this was issued by the Illinois
7 Environmental Protection Agency, correct?
8 A. Yes.
9 MR. ROSENTHAL: Could I have this marked as
10 Petitioner's Exhibit No. 12?
11 (Petitioner's Exhibit No. 12
12 marked for identification,
13 9-17-97.)
14 BY MR. ROSENTHAL:
15 Q. I'll show you what's been marked as
16 Petitioner's Exhibit No. 12.
17 Petitioner's Exhibit No. 12 is a permit
18 issued by the Illinois Environmental Protection
19 Agency; is that correct?
20 A. Yes.
21 Q. And the permit changes the rated
22 capacity of the Fox River Grove waste water
23 treatment plant to a design organic equivalent of
24 9900 PE; is that correct?
L.A. REPORTING (312) 419-9292
44
1 A. Yes.
2 Q. And this is dated July 27th, 1987?
3 A. Yes.
4 Q. To your knowledge, the plant's rated
5 capacity has not changed since July 27th, 1987, has
6 it?
7 A. No.
8 Q. The plant's capacity is still 9900 PE;
9 is that correct?
10 A. Organically, yes.
11 Q. And the permit itself, this permit has
12 never been revoked; is that correct?
13 A. Correct.
14 Q. Do you have any reason to believe that
15 the village has ever exceeded the 9900 PE capacity
16 for
organics?
17 A. No.
18 MR. ROSENTHAL: Could I have this marked as
19 Petitioner's Exhibit No. 13?
20 (Petitioner's Exhibit No. 13
21 marked for identification,
22 9-17-97.)
23 BY MR. ROSENTHAL:
24 Q. Mr.
Keller, I've handed you
L.A. REPORTING (312) 419-9292
45
1 Petitioner's Exhibit No. 13. That is a -- the
2 document consists of a cover letter signed by Mr.
3 Lucas and a proposed NPDES permit for the Fox River
4 Grove facility; is that correct?
5 A. This is a draft permit.
6 Q. It's a draft permit?
7 A. Yes.
8 Q. Not a proposed draft permit.
9 And that shows a -- referring to the
10 first page or the second page rather, it shows a
11 flow rate of 1.25 MGD; is that correct?
12 A. Which page? I'm sorry.
13 Q. The second page. Here (indicating).
14 A. A flow rate of 1.25?
15 Q. Yes.
16 A. Yes.
17 Q. And then it shows an effluent
18 limitation for BOD5 of 30 milligrams per liter?
19 A. Yes.
20 Q. And it shows an effluent limitation for
21 suspended solids of 30 milligrams per liter?
22 A. Yes.
23 Q. And this document was issued by the
24 Illinois Environmental Protection Agency?
L.A. REPORTING (312) 419-9292
46
1 A. Yes.
2 THE HEARING OFFICER: What's the date on
3 that?
4 THE WITNESS: July 30, 1987.
5 BY MR. ROSENTHAL:
6 Q. Now, you did not work on this
7 particular permit?
8 A. No.
9 Q. Now, there's -- so the July 30th, 1987,
10 permit increases the effluent limitation for BOD5 to
11 30 milligrams per liter from the limitation of 25
12 milligrams per liter that was stated in the June
13 18th draft permit; is that correct? If you want to
14 take a look at it there.
15 A. Correct.
16 Q. I'll show you what's been marked as --
17 if I could have that marked, sorry, as Petitioner's
18 Exhibit No. 14.
19 (Petitioner's Exhibit No. 14
20 marked for identification,
21 9-17-97.)
22 BY MR. ROSENTHAL:
23 Q. Petitioner's Exhibit No. 14 consists of
24 a cover letter and a modified NPDES permit for the
L.A. REPORTING (312) 419-9292
47
1 Fox River Grove facility with an issue date of
2 December 5, 1986, and an effective date of January
3 5, 1987, and a modification date of September 15,
4 1987; is that correct?
5 A. Correct.
6 Q. And this document, the cover letter was
7 signed by Mr.
McSwiggin; is that correct?
8 A. Correct.
9 Q. Who is Mr.
McSwiggin?
10 A. He is the manager of the permit
11 section.
12 Q. He's your boss?
13 A. Yes.
14 Q. Referring to the effluent limitation
15 from the second page, I think it's on the back, that
16 shows an effluent limitation of 30 milligrams per
17 liter for BOD5; is that correct?
18 A. Part of it's cut off.
19 Q. Let me see that.
20 A. I don't know if it's CBOD or BOD.
21 Q. Okay. Let me show you another one.
22 September 15th, 1987?
23 MR. THOMAS:
It'S cut off too.
24 MR. ROSENTHAL: It's cut off on the one
L.A. REPORTING (312) 419-9292
48
1 that you have?
2 MR. THOMAS: Yes, yes. But it's lined
3 up -- the B is lined up with the first letter in
4 flow.
5 MR. ROSENTHAL: Okay. I'm not sure how you
6 want to handle this. Here is the original. I think
7 we can, perhaps, show him the original and ask him
8 to compare it, and then I think he can then testify
9 to that, but you can see it's cut off along the
10 original.
11 MS. HOWARD: You've got on the second page
12 of your influent monitoring reporting it's BOD and
13 flow on there.
14 MR. ROSENTHAL: Yeah. It's BOD.
15 BY MR. ROSENTHAL:
16 Q. Let me show you what the original of
17 that document is, and then let me ask you based on
18 Exhibit No. 14 what the effluent level for BOD5 was
19 on that modified permit?
20 A. Thirty.
21 Q. Thirty milligrams per liter?
22 A. Yes.
23 Q. And then the effluent limit for
24 suspended solids on that modified permit was also 30
L.A. REPORTING (312) 419-9292
49
1 milligrams per liter; is that correct?
2 A. Yes.
3 Q. Again, you didn't have any involvement
4 in the issuance of this modified permit; is that
5 correct?
6 A. No.
7 Q. Now, this modified permit was issued
8 following the
rerating of the Fox River Grove
9 treatment plant for organic levels to 9900 PE; is
10 that correct?
11 A. The organic population was 9900. It
12 was modified.
13 Q. Okay. To reflect that?
14 A. Correct.
15 MR. ROSENTHAL: Could I have this marked as
16 Petitioner's Exhibit No. 15?
17 (Petitioner's Exhibit No. 15
18 marked for identification,
19 9-17-97.)
20 BY MR. ROSENTHAL:
21 Q. Let me just ask one other question that
22 I forgot to about Exhibit
23 No. 4. That was issued by the Illinois
24 Environmental Protection Agency; is that correct?
L.A. REPORTING (312) 419-9292
50
1 A. Yes.
2 Q. Okay. Let me show you what was marked
3 as Petitioner's Exhibit No. 15. Petitioner's
4 Exhibit No. 15 consists of a cover letter dated
5 August 27th, 1991, signed by Rick Lucas typed on
6 Illinois Environmental Protection Agency stationery
7 and a proposed NPDES permit for the Fox River Grove
8 facility, correct?
9 A. Yes. This is a draft permit, not a
10 proposed permit.
11 Q. Okay. Referring to the proposed
12 permit, the second page, that shows a flow rate of
13 1.25 MGD?
14 A. Yes.
15 Q. And it shows a proposed BOD5 effluent
16 limitation of 30 milligrams per liter; is that
17 correct?
18 A. Yes.
19 Q. And it shows a proposed effluent limit
20 for suspended solids of 30 milligrams per liter; is
21 that correct?
22 A. Yes.
23 Q. You did not work on this 1991 draft
24 permit, did you?
L.A. REPORTING (312) 419-9292
51
1 A. No.
2 MR. ROSENTHAL: If I could have this marked
3 as Petitioner's Exhibit No. 16.
4 (Petitioner's Exhibit No. 16
5 marked for identification,
6 9-17-97.)
7 BY MR. ROSENTHAL:
8 Q. Let me show you what's been marked as
9 Petitioner's Exhibit No. 16. Petitioner's Exhibit
10 No. 16 consists of a cover letter dated January 14,
11 1992, on Illinois Environmental Protection Agency
12 stationery signed by Thomas
McSwiggin, and a
13 reissued NPDES permit dated January 14th, 1992, for
14 the Fox River Grove facility; is that correct?
15 A. Correct.
16 Q. And it shows a CB -- and effluent
17 limitation for CBOD5 25 milligrams per liter; is
18 that correct?
19 A. Correct.
20 Q. And an effluent limitation of 30
21 milligrams per liter for suspended solids; is that
22 correct?
23 A. Correct.
24 Q. Now, the draft or the permit dated
L.A. REPORTING (312) 419-9292
52
1 August 27th, 1991, showed a BOD5 limitation of 30
2 milligrams per liter and this shows a CBOD5
3 limitation of 25 milligrams per liter; is that
4 correct?
5 A. Yes.
6 Q. Those are the functional equivalents in
7 terms of measuring impact on a stream; is that
8 correct?
9 A. Measuring an effluent.
10 Q. Pardon?
11 A. Measuring an effluent, correct.
12 THE HEARING OFFICER: I'm sorry, Mr.
13 Keller, I --
14 THE WITNESS: Measuring an effluent
15 standard.
16 BY MR. ROSENTHAL:
17 Q. It's the same standard -- it's the
18 same -- they're the same standard?
19 A. Same equivalent numbers, yes, they are.
20 THE HEARING OFFICER: Your voice trails off
21 a little bit, and it's hard for her to pick it
22 up.
23 THE WITNESS: Sorry.
24 THE HEARING OFFICER: I should correct
L.A. REPORTING (312) 419-9292
53
1 that. It's hard for me to pick it up. She may pick
2 it up fine.
3 BY MR. ROSENTHAL:
4 Q. Now, you did not work on the 1992
5 reissue NPDES permit, did you?
6 A. No.
7 MR. ROSENTHAL: If I could have this marked
8 as Petitioner's Exhibit No. 17.
9 (Petitioner's Exhibit No. 17
10 marked for identification,
11 9-17-97.)
12 BY MR. ROSENTHAL:
13 Q. Mr.
Keller, let me show you what's been
14 marked as Petitioner's Exhibit No. 17. That
15 consists of a cover letter dated November 8, 1996,
16 written on Illinois Environmental Protection Agency
17 stationery signed by yourself along with what's
18 entitled proposed reissued NPDES permit for the Fox
19 River Grove facility; is that correct?
20 A. Correct.
21 Q. And this shows a CBOD5 limitation of 20
22 milligrams per liter; is that correct?
23 A. Yes.
24 Q. And it shows a 25 milligrams per liter
L.A. REPORTING (312) 419-9292
54
1 limitation for suspended solids; is that correct?
2 A. Correct.
3 Q. And you did work on this permit?
4 A. Yes.
5 Q. And this was the first Fox River Grove
6 permit that you worked on, is that correct, NPDES
7 permit?
8 A. Correct.
9 MR. ROSENTHAL: If I could have this marked
10 I believe it's Exhibit No. 18.
11 I'm sorry. That's the wrong one. I
12 apologize.
13 THE HEARING OFFICER: That's all right.
14 Eighteen is the next number.
15 MR. ROSENTHAL: Eighteen is the next
16 number. That one wasn't it. This is it.
17 THE HEARING OFFICER: This will be 18.
18 MR. ROSENTHAL: Eighteen, yes
19 (Petitioner's Exhibit No. 18
20 marked for identification,
21 9-17-97.)
22 BY MR. ROSENTHAL:
23 Q. Let me show you what's been marked as
24 Petitioner's Exhibit No. 18. That is a cover letter
L.A. REPORTING (312) 419-9292
55
1 dated December 2nd, 1996, along with a proposed
2 reissued NPDES permit dated December 6th, 1996, for
3 the Fox River Grove facility; is that correct?
4 A. Yes.
5 Q. And this shows an effluent limitation
6 of 20 milligrams per liter for CBOD5 and 25
7 milligrams per liter for suspended solids; is that
8 correct?
9 A. Correct.
10 Q. And, again, you worked on this
11 particular permit; is that correct?
12 A. Yes.
13 Q. Let me show you what has been marked as
14 -- previously marked and admitted into evidence as
15 Petitioner's Exhibit No. 3.
16 Petitioner's Exhibit No. 3 consists of
17 a cover letter signed by Mr.
Netemeyer and a
18 reissued NPDES permit for the Fox River Grove
19 facility; is that correct?
20 A. You said it's signed by
21 Mr.
Netemeyer?
22 Q. Yes.
23 I believe it's signed by
24 Mr.
McSwiggin. I'm sorry.
L.A. REPORTING (312) 419-9292
56
1 A. Prepared by Don
Netemeyer.
2 Q. Don
Netemeyer did prepare that letter
3 though?
4 A. Correct.
5 Q. And Mr.
Netemeyer -- your Mr.
6 Netemeyer's supervisor; is that correct?
7 A. Yes.
8 Q. Were you aware that Mr.
Netemeyer was
9 preparing this letter?
10 A. Yes.
11 Q. Did you review it before it was sent
12 out?
13 A. Yes.
14 Q. And you concur with the statements in
15 the letter?
16 A. Yes.
17 Q. Now, that permit imposes an effluent
18 limitation for CBOD5 of 20 milligrams per liter; is
19 that correct?
20 A. Correct.
21 Q. And that imposes an effluent limitation
22 of 30 milligrams -- I'm sorry, 25 milligrams per
23 liter for suspended solids; is that correct?
24 A. Correct.
L.A. REPORTING (312) 419-9292
57
1 Q. And that's the permit that is being
2 appealed from in this proceeding, correct?
3 A. Yes.
4 Q. Now, there's a flow rate, I believe,
5 there of -- it's based on an average daily flow of
6 1.25 MGD; is that correct?
7 A. Design average flow of 1.25.
8 Q. That was the same design average flow
9 that was applicable when the 19 -- the modified 1987
10 permit was issued, the 1977 permit was issued, and
11 the 1992 permit was issued, correct?
12 A. Correct.
13 Q. And the organic limitation rating
14 applicable at the time in February 1997 when that
15 permit was issued was 9900 PE; is that correct?
16 A. That's correct.
17 Q. Now, Mr.
Netemeyer's letter explains
18 the agency's position as to why the 20 milligrams
19 per liter limitation for CBOD5 and the 25 milligrams
20 per liter limitation for suspended solids is
21 applicable; is that correct?
22 A. Correct.
23 Q. And the agency's position is based on
24 two regulations, 304.120 and 301.345; is that
L.A. REPORTING (312) 419-9292
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1 correct?
2 A. Correct.
3 Q. Okay. The IEPA administers the NPDES
4 permit program on behalf of the U.S. EPA; is that
5 correct?
6 A. Yes.
7 Q. And the NPDES permit that the village
8 -- permits that the village has been receiving
9 since 1977 are permits that allow the village to
10 discharge water into the Fox River; is that correct?
11 A. Yes.
12 Q. And the water that's being discharged
13 is water that has been treated at the village's
14 waste water treatment plant, correct?
15 A. Correct.
16 Q. Now, prior to this year or at least the
17 1997 permit, the U.S. EPA reviewed permit
18 applications, is that correct, for NPDES permits?
19 A. Actually, it's been the last two years
20 they have not reviewed permits --
21 Q. But they did review --
22 A. -- as far as reviewing all of the major
23 permits. They never reviewed all permits, but all
24 major permits.
L.A. REPORTING (312) 419-9292
59
1 MR. ROSENTHAL: If I can have this marked.
2 I think we're up to 19.
3 (Petitioner's Exhibit No. 19
4 marked for identification,
5 9-17-97.)
6 BY MR. ROSENTHAL:
7 Q. Let me show you what has been marked as
8 Petitioner's Exhibit No. 19. That is a letter
9 written to Mr. Thomas
McSwiggin at the Illinois
10 Environmental Protection Agency by Kenneth
Fenner,
11 chief water quality branch of Region V of the U.S.
12 Environmental Protection Agency, correct?
13 A. Correct.
14 Q. And this is regarding the -- this is
15 dated December 16, 1991; is that correct?
16 A. Correct.
17 Q. And this was done in connection with
18 the 1991, '92
reissuance of the Fox River Grove
19 NPDES permit, correct?
20 A. Yes.
21 Q. And this indicates that the -- this
22 indicates comments that the U.S. EPA had with regard
23 to the draft permit for -- NPDES permit for the Fox
24 River Grove facility?
L.A. REPORTING (312) 419-9292
60
1 MS. HOWARD: I object to the question. At
2 this point, I would be willing to accept this letter
3 as being -- the contents of the letter at a face
4 value being taken, but as to whether or not Mr.
5 Keller can attest as to whether or not, you know,
6 what U.S. EPA's comments actually were other than
7 reading the letter like the rest of us, I would say
8 he's in a difficult position to be testifying to
9 this.
10 MR. ROSENTHAL: That's fine. I'll withdraw
11 the question.
12 THE HEARING OFFICER: All right.
13 MR. ROSENTHAL: Let me just ask if I can
14 ask one question based on this.
15 BY MR. ROSENTHAL:
16 Q. Does this letter anywhere based on your
17 reading of it, Mr.
Keller, anywhere indicate that
18 the U.S. EPA had a problem with the effluent limits
19 that were proposed for BOD5 or CBOD5 or for
20 suspended solids with regard to the 1991, 1992
21 reissue permit?
22 A. No, it does not.
23 THE HEARING OFFICER: Mr.
Keller, would you
24 spell the name of that letter writer for the record,
L.A. REPORTING (312) 419-9292
61
1 please?
2 THE WITNESS: The writer?
3 THE HEARING OFFICER: Yes.
4 THE WITNESS: Kenneth A.
Fenner,
5 F-e-n-n-e-r.
6 THE HEARING OFFICER: Thank you.
7 BY MR. ROSENTHAL:
8 Q. Now, let me see if I understand this.
9 You indicated that the U.S. EPA now only reviews
10 major permits?
11 A. No. They've only reviewed the major
12 permits for a number of years, and in the last two
13 years, they've not reviewed all major permits.
14 Q. Okay.
15 A. That was done by an agreement between
16 the Illinois EPA and the U.S. EPA.
17 Q. Okay. I don't think -- this is just a
18 regulation I'm handing to you since -- this is a
19 copy of the regulation.
20 Mr.
Keller, I've handed you a copy of
21 304.120 -- regulation 304.120. This is one of the
22 regulations in which the effluent limitations in the
23 1997 permit was based, correct?
24 A. Correct.
L.A. REPORTING (312) 419-9292
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1 Q. Now, this regulation is entitled
2 deoxygenating waste, correct?
3 A. Correct.
4 Q. And that refers to waste that removes
5 oxygen from water; is that correct?
6 A. Yes.
7 Q. And specifically you or the IEPA based
8 its effluent limitation on 304.120(b), is that
9 correct, paragraph B -- subparagraph B. I'm sorry.
10 MS. HOWARD: Objection to the question.
11 Which permit are you talking about, the most
12 recent --
13 MR. ROSENTHAL: I'm talking about the 1997
14 permit.
15 BY MR. ROSENTHAL:
16 Q. Is that correct?
17 A. Along with 301.345.
18 Q. Right. But in terms of this
19 regulation, 304.120, the provision that the IEPA is
20 relying on is subparagraph B; is that correct?
21 A. Yes.
22 Q. Now, this document says -- subparagraph
23 B says no effluent from any sources untreated waste
24 load is 10,000 population equivalents or more from
L.A. REPORTING (312) 419-9292
63
1 any source discharging into the Chicago River system
2 or into the Calumet River system shall exceed 20
3 milligrams per liter of BOD5 or 20 milligrams per
4 liter of suspended solids; is that correct?
5 A. I believe you said 20 milligrams per
6 liter of suspended solids. It should be 25.
7 Q. Twenty-five.
8 A. Yes.
9 Q. It doesn't say what the design flow of
10 a plant is, does it?
11 A. Well, let's see. Untreated waste load
12 of 10,000 population equivalents.
13 Q. But it doesn't say in which from any
14 source whose untreated waste load capacity is
15 10,000; is that correct?
16 A. Untreated waste load capacity?
17 Q. Right.
18 A. No.
19 Q. Okay. You're not looking at -- it
20 doesn't talk --
21 A. It does not --
22 THE HEARING OFFICER: Wait, wait.
23 MR. ROSENTHAL: I'm sorry.
24 THE HEARING OFFICER: One at a time.
L.A. REPORTING (312) 419-9292
64
1 BY THE WITNESS:
2 A. It doesn't say that.
3 THE HEARING OFFICER: Well, let him -- you
4 were rephrasing your question.
5 BY MR. ROSENTHAL:
6 Q. This regulation does not refer to the
7 capacity of the plant; is that correct? There's
8 nothing --
9 A. It does not use that specific word
10 capacity of the treatment plant, correct.
11 Q. In fact, it doesn't use the word
12 treatment plant at all, does it?
13 A. No.
14 Q. It doesn't use the word capacity at
15 all, does it?
16 A. No.
17 Q. Is Fox River Grove in the Chicago River
18 system?
19 A. I don't believe so.
20 Q. Is the Fox River in the Calumet River
21 system?
22 A. No.
23 Q. Read literally, Mr.
Keller, this
24 regulation refers to what the waste load is at any
L.A. REPORTING (312) 419-9292
65
1 given time; is that correct?
2 A. You could read that literally, yes.
3 Q. And the IEPA chooses not to read it
4 literally; is that correct?
5 A. Correct. We utilize the actual design
6 permitting capacities is what we use.
7 Q. Now, when you say you utilize the
8 actual design permitting capacities, this
9 regulation, again, doesn't refer to the actual
10 design rating capacities, does it?
11 A. It doesn't use that wording, correct.
12 Q. Nowhere in this regulation does it use
13 that wording, does it?
14 A. No.
15 Q. Mr.
Keller, I've handed you a copy of
16 regulation 301.345. That is the other regulation on
17 which the IEPA based its decision to impose the
18 effluent limitations of 20 milligrams per liter for
19 CBOD5 and 25 milligrams per liter for suspended
20 solids in the 1997 permit, correct?
21 A. Correct.
22 Q. Now, this regulation indicates that the
23 population equivalent is a term used to evaluate the
24 impact of industrial or other waste on a treatment
L.A. REPORTING (312) 419-9292
66
1 works or on a stream, correct?
2 A. Correct.
3 Q. And it refers to three different
4 factors; is that correct? The first factor -- is
5 that --
6 A. Yes.
7 Q. The first factor being the amount of
8 flow, 100 gallons of sewage per day; is that
9 correct?
10 A. Right.
11 Q. The second factor being the amount of
12 BOD5 being .17 pounds or 77 grams; is that correct?
13 A. Correct.
14 Q. And the third factor being .20 pounds
15 of suspended solids; is that correct?
16 A. Correct.
17 Q. And then it goes on to say that the
18 impact on a treatment works is evaluated as the
19 equivalent of the highest of all three parameters,
20 correct?
21 A. Correct.
22 Q. But then it draws a distinction with
23 regard to measuring the impact on a stream; is that
24 correct?
L.A. REPORTING (312) 419-9292
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1 A. Yes.
2 Q. And when you're dealing with the impact
3 on a stream, you deal with only two of the
4 parameters; is that correct?
5 A. Correct.
6 Q. And those two parameters are the BOD5
7 and the suspended solids; is that correct?
8 A. Correct.
9 Q. And Fox River Grove's rating for BOD5
10 and suspended solids in terms of population
11 equivalent is 9900; is that correct?
12 A. Correct.
13 Q. And the NPDES permit is a permit I
14 believe as you stated is to -- it allows the
15 discharge of water into the Fox River; is that
16 correct?
17 A. Yes.
18 Q. So what you were talking about is a
19 permit that allows discharge of water into a stream;
20 is that correct?
21 A. Yes.
22 MR. ROSENTHAL: That's all that I have.
23 I'm sorry. I just want to clarify a
24 couple of things.
L.A. REPORTING (312) 419-9292
68
1 BY MR. ROSENTHAL:
2 Q. One, there's been no changes that you
3 were aware of in the provisions of Section 301.345
4 since 1977; is that correct?
5 A. Correct.
6 Q. And there have been no changes in any
7 of the provisions of 304.120 since 1977, is that
8 correct, that you're aware of?
9 A. Not Section B. There are other
10 changes, but not Section B.
11 Q. Okay. Now, the IEPA does not have a
12 practice of issuing permits when the provisions of
13 the permits would violate these regulations; is that
14 correct?
15 A. That's correct.
16 Q. Yet, in 1977, 1987, and 1992, the IEPA
17 issued permits that had effluent limitations of
18 either 25 milligrams per liter of CBOD5 or 30
19 milligrams per liter of BOD5 and 30 milligrams per
20 liter of suspended solids; is that correct?
21 A. No. I think the 1977 permit was issued
22 by the U.S. EPA, not Illinois EPA.
23 Q. But the U.S. EPA would not be violating
24 these regulations either; is that correct?
L.A. REPORTING (312) 419-9292
69
1 A. No.
2 Q. Okay. So, therefore, the people
3 employed by the IEPA who issued the permits in 1987
4 and 1991 either issued permits that were in
5 violation of these regulations or they did not
6 believe that the permits violated the regulation; is
7 that correct?
8 A. Correct.
9 Q. Is it your testimony here today that
10 the permits that were issued in 1987 and 1991
11 violated these two regulations with regard to the
12 effluent limitations for suspended solids and BOD5
13 or CBOD5?
14 A. I believe there was an error made.
15 MR. ROSENTHAL: That's all that I have.
16 THE HEARING OFFICER: Cross?
17 MS. HOWARD: I don't have any cross, but I
18 will be calling Mr.
Keller in our case in chief.
19 THE HEARING OFFICER: All right.
20 MR. ROSENTHAL: Before we release this
21 witness, I'd ask that Exhibits 4 through 19 be
22 admitted into evidence.
23 MS. HOWARD: I don't have any objection to
24 five through 19. I do have an objection with
L.A. REPORTING (312) 419-9292
70
1 Petitioner's Exhibit No. 4 only because of the lack
2 of foundation.
3 Mr.
Keller was not a party in receiving
4 that permit or issuing that permit. It was from the
5 United States Environmental Protection Agency to
6 Mr.
Lambert, who is the president of the village of
7 Fox River Grove, and I just think there should have
8 been better foundation laid for that.
9 MR. ROSENTHAL: I'll lay it with another
10 witness.
11 THE HEARING OFFICER: Exhibits 5 through 19
12 are admitted into evidence, and we will hold up
13 on -- it was No. 4?
14 MS. HOWARD: Right.
15 THE HEARING OFFICER: Thank you,
16 Mr.
Keller. You may step down for the time being.
17 Let's take a short break.
18 (Break taken.)
19 THE HEARING OFFICER: Back on the record.
20 You may proceed.
21 MR. ROSENTHAL: Petitioner will call our
22 next witness, Lawrence Thomas.
23 (Witness sworn.)
24 MR. ROSENTHAL: Can I get
L.A. REPORTING (312) 419-9292
71
1 this marked as 20?
2 THE HEARING OFFICER: Twenty.
3 (Petitioner's Exhibit No. 20
4 marked for identification,
5 9-17-97.)
6 WHEREUPON:
7 L A W R E N C E
E. T H O M A S, P. E.,
8 called as a witness herein, having been first duly
9 sworn,
deposeth and saith as follows:
10 D I R E C T E X A M I N A T I O N
11 by Mr.
Rosenthal
12 Q. Would you please state your name for
13 the record?
14 A. Lawrence Edward Thomas.
15 Q. And by whom are you employed?
16 A. Baxter &
Woodman.
17 Q. And what is your profession?
18 A. I'm a civil engineer.
19 Q. And what is Baxter &
Woodman?
20 A. Baxter &
Woodman is a consulting
21 engineering firm specializing in water and waste
22 water designs.
23 Q. How long have you been employed by
24 Baxter &
Woodman?
L.A. REPORTING (312) 419-9292
72
1 A. I've been with Baxter &
Woodman for
2 over 20 years.
3 Q. And what is your current position with
4 Baxter &
Woodman?
5 A. I'm a vice-president with the firm.
6 Q. And does Baxter &
Woodman hold any
7 position with regard to the village of Fox River
8 Grove?
9 A. We serve as Fox River Grove's village
10 engineer providing them with the engineering
11 services for water, waste water, streets.
12 Q. And let me show you what's been marked
13 as Petitioner's Exhibit No 20. Can you identify
14 that, please?
15 A. This is my resume.
16 Q. And does it set forth your educational
17 background?
18 A. Yes.
19 Q. And does it set forth your professional
20 association and registrations?
21 A. Yes.
22 Q. And your honors and experience?
23 A. Yes.
24 Q. And is it accurate?
L.A. REPORTING (312) 419-9292
73
1 A. Yes.
2 Q. Now, how long have you personally been
3 involved in performing engineering services for the
4 village of Fox River Grove?
5 A. Since 1977.
6 Q. Did you have any involvement with the
7 village's waste water treatment plant?
8 A. I was the design engineer for the
9 treatment plant that is currently out there now.
10 Q. And when you say you were the design
11 engineer, what does that mean you did?
12 A. I did the layouts, the basic design of
13 the treatment plant under the supervision of George
14 Heck, who was the client manager at that time for
15 Fox River Grove.
16 Q. Have you been involved in the NPDES
17 permit process for the Fox River Grove plant?
18 A. Yes.
19 Q. Have you been involved with
20 every -- the issuance of every NPDES permit?
21 A. With the exception of the first one, I
22 have been involved with all of the subsequent ones,
23 the '87 and the '92, and this last one.
24 Q. Can you identify the first one?
L.A. REPORTING (312) 419-9292
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1 A. The first one was the U.S. EPA permit,
2 which was issued in 1977. That was put together as
3 I was working on the treatment plant, but I was not
4 the one who actually took care of getting that taken
5 care of.
6 Q. Would you recognize that permit if you
7 saw it?
8 A. Yes. Oh, yes.
9 Q. You could identify the permit as the
10 permit under which the village of Fox River Grove
11 operated between 19 -- after 1977?
12 A. Yes.
13 Q. Let me show you what's been marked as
14 Exhibit No. 4. Can you identify that document?
15 A. Exhibit No. 4 is the 1977 NPDES permit
16 for Fox River Grove as issued by the United States
17 Environmental Protection Agency.
18 MR. ROSENTHAL: I'd now ask that Exhibit
19 No. 4 be admitted into evidence.
20 MS. HOWARD: No objection.
21 THE HEARING OFFICER: Exhibit No. 4 is
22 admitted into evidence.
23 BY MR. ROSENTHAL:
24 Q. Mr. Thomas, are you familiar with the
L.A. REPORTING (312) 419-9292
75
1 term CBOD5, BOD5, and suspended solids?
2 A. Yes.
3 Q. Can you explain what CBOD5 is?
4 A. Waste water contains materials in it
5 that have an oxygen demand when they're placed into
6 a stream or into a body of water. That oxygen
7 demand is created by microorganisms feeding upon
8 that organic waste and converting that oxygen to
9 carbon dioxide into more massive microbes.
10 Carbonaceous biological oxygen --
11 excuse me, biochemical oxygen demand refers to the
12 portion that's tied to the carbon-based organic
13 compounds. There is also nitrogen-based organic
14 compounds that also have a biochemical oxygen
15 demand.
16 So BOD refers to the combination of
17 both the nitrogen and the carbonaceous oxygen
18 demands. CBOD only refers to the carbonaceous.
19 Q. Is it possible to measure an equivalent
20 number of BOD5 with CBOD5?
21 A. Yes. Basically, the CBOD5 is roughly
22 about 80 percent of your total BOD5.
23 Q. Is there any number that -- would 30
24 milligrams per liter of BOD5 be the equivalent of
L.A. REPORTING (312) 419-9292
76
1 any particular number of CBOD5?
2 A. Yes. In a normal waste water, those
3 two numbers would be equivalent, yes. The 30 BOD is
4 equivalent to the 25 CBOD.
5 Q. Going back to the Fox River Grove waste
6 water treatment facility, where is that located?
7 A. The treatment facility is located on
8 the western end of the community adjacent to Shannon
9 Creek.
10 Q. And is it located -- what type of
11 neighborhood is it located in?
12 A. It's located in a residential
13 neighborhood. The site itself is approximately one
14 and a half acres. One side of it is bound by
15 homes. The other side is a Commonwealth
Edison
16 right-of-way. The third side is Shannon Creek, and
17 then the fourth side is a wetlands area.
18 Q. Is there anything that would -- any
19 other factor that would limit construction on that
20 site?
21 A. Construction on that site now would not
22 be possible with the current regulations regarding
23 wetlands and flood plans. The entire site now is in
24 a flood plain, and it also is in an area that was
L.A. REPORTING (312) 419-9292
77
1 formerly considered to be a wetland area.
2 Q. Can you explain why the current plant
3 is allowed to be located there?
4 A. The treatment plant was built in 1926,
5 the original treatment, and it's subsequently been
6 upgraded in the '30s. It was again upgraded in
7 1967, and then it was -- the last upgrade was in
8 1978.
9 So the treatment plant expansions all
10 predated the regulations that affect construction
11 and wetlands and flood plains.
12 Q. Would it be possible to construct a new
13 plant on that location?
14 A. No.
15 Q. I believe you --
16 MR. ROSENTHAL: If I could have this marked
17 as Exhibit No. 21. Sorry. I didn't mean to hand
18 that to you.
19 (Petitioner's Exhibit No. 21
20 marked for identification,
21 9-17-97.)
22 BY MR. ROSENTHAL:
23 Q. Mr. Thomas, I'm handing you what's been
24 marked as Petitioner's Exhibit No. 21. Can you
L.A. REPORTING (312) 419-9292
78
1 identify that, please?
2 A. This is the permit that Fox River Grove
3 received for the construction of the waste water
4 treatment plant in 1977.
5 Q. And if you look at the first page, it
6 just says design. Could you indicate what was meant
7 down there by those?
8 A. The design number has an abbreviation
9 DAF. That stands for daily average flow equals 1.25
10 MGD, which is a million gallons per day. DMF is
11 daily maximum flow equaling 3.5 million gallons per
12 day. Influent pounds of BOD and total suspended
13 solids, which is abbreviated BOD, slash, TSS per day
14 of 1700, slash, 2200.
15 Q. Can you explain -- if you would please
16 explain the reason for the 1.25 MGD?
17 A. The waste water treatment plant was
18 designed in 1977 to handle 10,000 PE, population.
19 When the facility planning report was
20 done in 1976, a distinction was drawn between the
21 sewage loading on the waste water treatment plant
22 and the infiltration between the treatment plant.
23 In that report, they clearly call out
24 that the -- and I should back up. The facility
L.A. REPORTING (312) 419-9292
79
1 planning report was the basis of design for the
2 waste water treatment plant. It served as the
3 planning document, and it was accepted by the IEPA
4 as the design basis.
5 The population equivalent was shown to
6 be a residential population of 8,500 population
7 equivalents, and then Good Shepherd Hospital at
8 1,500 for a total of 10,000 PE.
9 The waste water flow rates were based
10 on a combination of sewage and infiltration. In the
11 -- you know, I'd remark that in the regulation that
12 we're dealing with, the population is based on the
13 population equivalent is 100 gallons of sewage per
14 day.
15 The facility planning report calls out
16 the sewage as being 10,000 PE at 100 gallons per
17 capita per day equaling one million gallons per day
18 infiltration into the system 0.25 MGD, and the
19 infiltration is clear water.
20 We had to make provisions for this so
21 that the plant would not be hydraulically overloaded
22 so that the water could get through the channels and
23 so forth without backing up.
24 There was a sewer evaluation done as a
L.A. REPORTING (312) 419-9292
80
1 part of this facility planning effort. It was
2 recognized that there was more than the normal
3 amount of infiltration into the sewer system, but it
4 was agreed by the IEPA that that infiltration was
5 not excessive and that it was more cost-effective to
6 treat that infiltration than it was to try and
7 remove it. Hence, we came up with a total flow of
8 1.25, but, clearly, only 10,000 PE of that is
9 sewage.
10 THE HEARING OFFICER: Ten thousand PE?
11 THE WITNESS: Yes.
12 BY THE WITNESS:
13 A. The peak daily dry weather flow was
14 also based on a base infiltration rate plus a
15 multiplication of the sewage for taking into account
16 that you have flow variations.
17 BY MR. ROSENTHAL:
18 Q. Was there a reason for the
19 high -- relatively high inflow infiltration?
20 A. The Fox River Grove sewer system was
21 put in the ground in the mid-1920s. It's made up
22 primarily of clay pipes using oakum as the joining
23 materials, the gaskets between those pipes, which is
24 not a very effective way of sealing the pipes.
L.A. REPORTING (312) 419-9292
81
1 Portions of the sewer system are below
2 the river, and we have sewers that run along the
3 streets that are parallel to the river and below the
4 river level.
5 In order to hold those pipes down so
6 they wouldn't float, they have a concrete cap poured
7 over the top of them, but those pipes are very
8 susceptible to infiltration inflow coming into them
9 just during the normal course of -- even in dryer
10 weather, we have infiltration coming into the system
11 because the river maintains a high water level in
12 these areas.
13 Q. You indicated that this was designed
14 with a 10,000 PE. Has the rating -- has that 10,000
15 PE rating been changed?
16 A. Yes.
17 Q. In 1987 when we went for the NPDES
18 renewal, the first drafts of that were calling the
19 plant out to be a greater than -- were calling it a
20 major facility, and, hence, the EPA was asking for
21 lower limitations on our BOD and suspended solids in
22 the effluent.
23 The village objected to those levels.
24 The EPA reviewed the situation, agreed that a way to
L.A. REPORTING (312) 419-9292
82
1 resolve the issue was to
rerate the plant for 9,900
2 so that we would be in compliance with the
3 regulation, and that agreement was accepted by both
4 the village and by the IEPA.
5 Q. What is the current rating of the
6 plant?
7 A. The current rating of the plant is
8 9,900 PE with a flow capability of 1.2 million
9 gallons per day.
10 Q. Is the 1.2 million gallon per day
11 rating intended to take into consideration the
12 inflow infiltration?
13 A. That is correct.
14 MR. ROSENTHAL: I'd like to have this
15 marked. I believe this is Exhibit 21, 21 or 22.
16 THE HEARING OFFICER: Twenty-two.
17 (Petitioner's Exhibit No. 22
18 marked for identification,
19 9-17-97.)
20 BY MR. ROSENTHAL:
21 Q. Mr. Thomas, I'm showing you what's been
22 marked as Exhibit No. 22.
23 Could you identify that document?
24 A. This is the renewal of an NPDES
L.A. REPORTING (312) 419-9292
83
1 application that was submitted to the IEPA by Fox
2 River Grove, and it was received by the IEPA
3 February 26th, 1981.
4 Q. Okay. Was the NPDES permit -- was this
5 application ever acted on?
6 A. No, it was not.
7 MR. ROSENTHAL: Could I have this marked as
8 Exhibit No. 23?
9 (Petitioner's Exhibit No. 23
10 marked for identification,
11 9-17-97.)
12 BY MR. ROSENTHAL:
13 Q. Mr. Thomas, I'm handing you what's been
14 marked as Exhibit No. 23.
15 Can you identify that document?
16 A. This is a letter to Mr. Rick Lucas of
17 the IEPA dated November 3rd, 1986, from the village
18 of Fox River Grove.
19 Q. Okay. And it's signed by the village
20 president; is that correct?
21 A. That is correct.
22 Q. Do you recognize that signature as
23 being the signature of Dan
Shea?
24 A. Yes.
L.A. REPORTING (312) 419-9292
84
1 Q. Was Dan
Shea the village president at
2 the time?
3 A. Yes, he was.
4 Q. Who drafted that -- was that letter
5 drafted -- who drafted that letter?
6 A. This letter was drafted by Baxter &
7 Woodman.
8 Q. Okay. What prompted Baxter &
Woodman
9 to draft that letter?
10 A. We had received a proposed NPDES permit
11 in 1986, in September of 1986, which was lowering
12 the effluent concentrations of the BOD and suspended
13 solids from their what was then current levels or
14 current level of 30 milligrams per liter BOD and 30
15 suspended solids down to 20 milligrams per liter of
16 BOD and 25 of suspended solids.
17 We were concerned that if that was done
18 that this would have a big impact on the ability of
19 the waste water treatment plant to fully serve the
20 facility planning area that it was intended to serve
21 when it was built.
22 Q. Were the effluent levels that you were
23 protesting -- limitation levels that you were
24 protesting -- that that letter protests, did they
L.A. REPORTING (312) 419-9292
85
1 subsequently increase?
2 A. Yes. That was the results of -- the
3 village's objection was that an agreement was
4 reached with the IEPA prior to going to the
5 Pollution Control Board that the rating of the
6 treatment plant would be reduced from 10,000 PE to
7 9,900 so that we would conform with the regulations.
8 Q. Was an appeal filed with the Pollution
9 Control Board?
10 A. An appeal was filed, but it was
11 withdrawn after the agreement was reached with the
12 IEPA.
13 Q. With regard to the village's waste
14 water treatment plant, does the plant operate in the
15 same way now as it did in 1977?
16 A. Yes. The plant's operation is still
17 the same as it was in '77 when it was first -- well,
18 it was first put on line in 1978.
19 Q. Have there been any changes in the way
20 that the plant processes waste water since 1978?
21 A. No, no significant changes.
22 Q. Have there been any change in the type
23 of equipment that is used to treat waste water at
24 the plant?
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1 A. No.
2 Q. Mr. Hughes testified that the plant
3 uses biological
contactors. Could you explain how
4 those work?
5 A. After primary sedimentation, the sewage
6 is fed into four tanks which operate as two parallel
7 streams. In each of those tanks, there is what is
8 referred to as a rotating biological
contactor which
9 is a steel shaft with plastic media attached to it,
10 and the shafts are set parallel to the direction of
11 flow.
12 So as the sewage moves through the
13 tanks, it has to pass along the length of those
14 contactors. Now, those
contactors are turning as
15 slow -- at a slow rate, a slow revolution rate, so
16 that as the sewage goes by them, the discs are
17 dipped into the sewage and then they're brought out
18 into the air, and then it keeps doing this process
19 over and over again, and by doing this, we create an
20 environment that the microbes can attach themselves
21 to the
bio-discs and grow and eat the soluble
22 organics in the waste water, create more microbes,
23 and so you get more and more of a population growth
24 on this media, and as the weight of the microbes
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1 gets so high that they can't hang on any more,
2 portions of them fall off and re-enter the waste
3 stream, and those microbes are carried on to the
4 secondary
clarifiers where they then settle down to
5 the bottom of the tank.
6 So we are basically in these tanks
7 converting soluble
organics into a microbial mass
8 that then can be removed by settling.
9 Q. What is the reason for doing that?
10 A. If we put raw sewage into the river, it
11 puts an oxygen demand on the stream. In other
12 words, it will use up -- microbes in the stream
13 itself will use that soluble
organics and create
14 more microbes. In doing that, they will deplete the
15 oxygen supply in the river, and when the O2 drops
16 too low in the river, then you have problems with
17 maintaining fish because there's nothing for them to
18 breathe.
19 What we do in the waste water treatment
20 plant is we accelerate that natural process, and we
21 take care of removing those soluble
organics within
22 the treatment plant before it has the opportunity to
23 go out into the river. So we get rid of that demand
24 so that it doesn't put that demand on the river
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1 itself.
2 Q. When you're talking about the organic
3 material, is that what's referred to as the BOD5 or
4 CBOD5?
5 A. We quantify the organic load on a river
6 or on a treatment plant in terms of we call it the
7 carbonaceous biochemical oxygen demand. That's how
8 we quantify how much there is of it, yes.
9 Q. Let me show you what's been admitted
10 into evidence as Petitioner's Exhibit No. 17. That
11 is the November 8, 1996, draft permit. Did you
12 review that when it was received?
13 A. Yes, I did.
14 Q. And what did you do after you reviewed
15 it?
16 A. I advised the village that the IEPA was
17 proposing to reduce the effluent concentration
18 limits in the permits from the 25 milligrams per
19 liter for CBOD down to 20 and for suspended solids
20 from 30 down to 25.
21 Q. And did you advise the village to take
22 any action in regard to that?
23 A. I advised the village that they should
24 object to that change because of the impacts it
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1 would have on the waste water treatment plant and
2 its ability to provide service for the facility
3 planning area.
4 Q. With regard to -- and do you know if
5 the village did take any action with regard to that?
6 A. Yes. They did file an objection, which
7 has led to this hearing. I should back up. We did
8 meet with the IEPA to discuss the permit before we
9 filed the objection.
10 Q. And prior to -- okay.
11 Was there any -- did you have any
12 telephone conversations or correspondence with
13 representatives of the IEPA?
14 A. Yes. During the initial stages of the
15 review when the first draft had been issued, I did
16 talk to Don about the limitations on the permit and
17 the fact that they had been changed. I was looking
18 for the background for why the EPA was changing
19 those limitations when in 1987 we had come to an
20 agreement.
21 Q. When you refer to Don, who are you
22 referring to?
23 A. Don
Netemeyer.
24 Q. And who is he?
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1 A. He is a
staffer with the IEPA.
2 MR. ROSENTHAL: I'd like to have this
3 marked as Exhibit No. 24.
4 (Petitioner's Exhibit No. 24
5 marked for identification,
6 9-17-97.)
7 BY MR. ROSENTHAL:
8 Q. Let me show you what's been marked as
9 Petitioner's Exhibit No. 24. Can you identify that
10 document?
11 A. This is a fax that I sent to Don
12 containing several letters of correspondence
13 regarding the 1987 permit renewal. This information
14 he did not have it readily available, and he asked
15 that I supply it to him.
16 Q. Can you explain what prompted you to
17 send this fax?
18 A. Don asked me to. He asked that I
19 provide him with some background information on the
20 1987 permit renewal. They did not have that easily
21 available to them.
22 Q. Okay. Was this sent after the village
23 received the initial draft permit
24 in -- for the '96, '97 permit?
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1 A. Oh, yes, yes.
2 Q. Let me show you what's been marked and
3 admitted into evidence as Petitioner's Exhibit No.
4 3, and that is a -- referring to the second -- to
5 the first -- well, to the second page of the
6 document, the first page of the letter there's a
7 statement that's made obligations in plants made to
8 include additional
unsewered areas and new
9 developments will obviously increase suspended
10 solids and organic loads on the plant. However, the
11 agency believes that the plant as designed will meet
12 the limitations in the permit until the
13 above-designed capacities are reached.
14 Under the present operating conditions
15 and effluent quality, the agency will be able to
16 issue permits for additional waste loads tributary
17 to the plant. Upgrades to the facility may be
18 required if the facility approaches its design
19 capacity.
20 Do you agree with that statement, the
21 last statement?
22 A. The last sentence?
23 Q. Yes.
24 A. I agree that upgrades to the facility
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1 may be required as the facility approaches its
2 design capacity.
3 Q. To your knowledge, has there been any,
4 I suppose, hazardous conditions created because the
5 25, 30 effluent limitations were in effect rather
6 than the 20, 25 effluent limitations in the 1997
7 permit?
8 A. There has been no hazardous conditions
9 caused by the operation of the treatment plant.
10 Q. Are you familiar with the village of
11 Fox -- the Fox River Grove facility planning area,
12 the waste water treatment facility?
13 A. Yes.
14 Q. What areas are serviced by the Fox
15 River Grove treatment plant?
16 A. The Fox River Grove -- the facility
17 planning area encompasses all of the incorporated
18 portion of the village plus the Lake
Barrington
19 Industrial Park, Good Shepherd Hospital, and a
20 couple of
unincorporated subdivisions immediately to
21 the west of the community.
22 Q. What are those
unincorporated
23 subdivisions referred to as?
24 A. Venetian Gardens is the main one.
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1 Immediately to the west is an
unsewered area, well
2 and septic, many small lots, an area that was
3 formerly cottages, which now people are living in
4 those homes full-time instead of part-time.
5 Q. Had there been problems with the septic
6 fields in that area?
7 A. Yes. There have been several cases of
8 septic systems in that Venetian Gardens area
9 failing. They're down close to the river. They
10 have very high groundwater conditions. They're on
11 very small lots, and there are a number of homes in
12 there where the system simply does not work anymore,
13 and those homeowners are having their septic systems
14 pumped out on a regular basis.
15 The situation won't remain that way
16 that long. The
McHenry County Public Health
17 Department will be eventually red tagging some of
18 those homes in that area as uninhabitable because of
19 the waste water situation.
20 Fox River Grove also has some areas in
21 it which are not
sewered which are alongside the
22 river that we would like to be able to extend
23 service to them in order to be able to take care of
24 their septic problems.
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1 Again, we have a situation in this area
2 where we've got a lot of homes that were built along
3 the river on very small lots, generally 40 to 45
4 feet wide lots, that were intended for use on a
5 part-time basis coming out there in the summer, on
6 the weekends, and people live in those homes
7 full-time now, and what little septic system there
8 are on those lots simply cannot handle the load.
9 Q. Would these be lots that if they are
10 provided with sewer the Fox River Grove plant will
11 be expected to provide treatment?
12 A. That is the intention, yes.
13 Q. Now, in your testimony, you've referred
14 to a concern regarding the impact of the lower
15 effluent limitations on the treatment plant and the
16 ability of the treatment plant to provide service to
17 the area. Can you explain what you mean by that?
18 A. The treat plant was designed to handle
19 up to 10,000 population equivalents.
20 Q. Let me ask you --
21 A. Yeah. Repeat the question, please.
22 Q. Let me ask you why is the village
23 concerned about the lower effluent limitations?
24 A. All right. The treatment plant is a
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1 biological process designed to handle 10,000
2 population equivalents. What is being proposed is
3 lowering the effluent quality having to go from 25
4 milligrams per liter down to 20 milligrams per
5 liter, which is a 20 percent reduction in your
6 allowable discharge of pounds per day of organic
7 waste.
8 Because it is a biological process, it
9 can only be so efficient in removing the influent --
10 reducing influent waste stream. As a result, we
11 can't just arbitrarily say that I can meet that new
12 limit because -- just because the treatment plant
13 right now is operating below the 25, 30 standard
14 that it has set for it right now doesn't mean that
15 it will stay down there.
16 As the loading increases, the
17 efficiency of the plant is going to decrease because
18 of higher flow rates and because of the greater
19 amount of soluble
organics coming into the treatment
20 plant, and we are going to reach a situation where
21 we can't always guarantee that we're going to be
22 able to hit that new effluent standard.
23 So to simply say that we're doing a
24 great job now and we are expected to be able to
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1 continue doing a great job, doesn't hold true in
2 that as those flow rates increase as the loading
3 increases, the treatment plant is going to be
4 putting out a higher level of
organics.
5 We've had some months that are very
6 seldom, but it has gotten up, for instance, up to 17
7 milligrams per liter on effluent. What we have to
8 protect the village from is from -- by changing
9 these standards from what they are now, it would go
10 to the tougher standard, which aren't warranted.
11 It puts the village at greater risk as
12 the flows increase of going in violation of their
13 NPDES permit; whereas, if the standards were held at
14 where they belong, they would not be in violation.
15 That five milligrams per liter is a
16 very important range that the treatment plant needs
17 to have to be able to handle the waste loads that
18 come into it because the waste loads are not
19 constant. We have fluctuations. We have to be able
20 to handle those fluctuations.
21 Q. In regard to the violations, what would
22 be the problems if there were any violations aside
23 from the fine in terms of correcting it?
24 A. Well, if we get into a situation where
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1 we start having violations, then if we haven't fully
2 served the area, we would have to stop extending
3 service anymore in the facility planning area.
4 Fox River Grove would then have to
5 enter into a compliance program to fix the problem
6 so that they are not going out of compliance
7 anymore, and so you get into a situation where
8 you're looking at a very expensive proposition.
9 Q. Why is it an expensive proposition?
10 A. This is not just a simple case where we
11 can add to the waste water treatment plant where we
12 just add another unit next to the existing units
13 that are out there.
14 Our cost for this upgrade would be
15 exceptionally high in that we would be looking at
16 potentially having to build a second treatment plant
17 or replace the entire treatment plant that we have
18 out there.
19 The site that we're on is very small.
20 It's less than an acre and a half. It's down in a
21 flood plain. It's in an area that --
22 MS. HOWARD: I object to the witness
23 answering this question. The issue of economics is
24 not an issue that is covered in the permit appeal.
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1 I think that is something that is left to an
2 adjusted standard or a variance type of proceeding,
3 not a permit appeal case.
4 MR. ROSENTHAL: Well, I think that it has
5 to do with the issue of whether or not these
6 effluent standards are justified and the lower
7 effluent should be applied, and what we're -- one of
8 the reasons for not applying those lower effluent
9 standards is the inhibiting factor that it would
10 have on the willingness or ability of the Fox River
11 plant to provide treatment service within its
12 service area, and one of the -- and part of our
13 whole point here is that because of the cost that
14 would be incurred if we violate those limitations
15 that we can't even run the risk of doing that
16 because the penalties are so high so that we all
17 automatically have to keep ourselves below in a
18 self-policing manner, if you will.
19 THE HEARING OFFICER: The objection is
20 overruled. The witness may continue.
21 BY THE WITNESS:
22 A. As I said, we can't just simply add
23 another unit to the process. We are in a
24 residential area in an area that's fully built up as
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1 much as it can be. So there's no place for me to go
2 other than to condemn property, knock down houses,
3 and build on higher ground. That would be what I'd
4 have to do to add additional capacity to this
5 treatment plant.
6 If I wanted to look at using a chemical
7 means of trying to deal with the problem and trying
8 to improve my efficiencies by adding additional
9 chemicals to the water, then I have to go from using
10 a process that is basically all natural to one that
11 I'm adding artificial chemicals to the water that
12 then would lead to other environmental concerns such
13 as increased volumes of
sludges that have to be
14 disposed of.
Sludges that may not be able to be
15 land applied, but rather would have to be
landfilled
16 at that point. Other chemicals, other metals that
17 may end up in the stream.
18 If I use alum, then I have aluminum I
19 added to the water. So I have other considerations
20 here. I end up by trying to meet that what
21 shouldn't be a problem, I'm creating other
22 environmental problems.
23 So looking at this, our advice to the
24 village has to be you can't go up to the 9900. If
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1 the standard is changed, we cannot advise going to
2 that level. That we're going to have to cut back
3 and only serve those areas that we have solid
4 commitments for, and other areas we're just going to
5 have to let go, and that means that as a result, you
6 have areas within our facility planning area that
7 need waste water treatment. That certainly
8 providing them with waste water treatment would do a
9 whole lot more to help the river than changing our
10 standard because we've got septic systems that
11 aren't working out there that feed directly to the
12 river.
13 So the biggest detriment of this
14 changing of the standard is the fact that we can't
15 solve -- we put ourselves in a box that we can't
16 solve the real environmental problems that are out
17 there.
18 MR. ROSENTHAL: I have no further
19 questions.
20 THE HEARING OFFICER: Cross?
21 C R O S
S - E X A M I N A T I O N
22 by Ms. Howard
23 Q. So right now the plant is not violating
24 the limits of 30 BOD or 30 milligrams per liter of
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1 solids, correct?
2 A. That's correct.
3 Q. And they're not violating the limits of
4 25 milligrams per liter of solids or 25 milligrams
5 per liter BOD or 30 milligrams per liter of solids,
6 correct?
7 A. Correct.
8 Q. And the plant is not violating at this
9 time 20 milligrams per liter BOD or 25 milligrams
10 liter per solids, correct?
11 A. Correct.
12 Q. You stated that if the plant starts
13 getting close to violating these limits, you're
14 going to be put in a very precarious position.
15 Isn't it true that that change is going
16 to come not from the regulations, but that change is
17 going to be due to something happening in the plant,
18 for example, an increased loading, correct?
19 A. Could you repeat your question?
20 Q. You stated that if you start getting
21 close to violating any of these standards, the
22 regulations, the limits, any of these limits that
23 I've already stated that that puts the village in a
24 precarious situation.
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1 What I'm asking you is that precarious
2 situation is not going to be due to any of these
3 limits, but it's going to be due to the fact that
4 there's going to be a change in the plant, for
5 example, an increase in loading, correct?
6 A. The treatment plant will be at greater
7 risk of violating the lower standard, whereas it
8 will not be at risk of violating the higher
9 standard, the current standard.
10 Q. Right. But it is something that will
11 happen because something is happening at the plant.
12 It's not something that the Illinois EPA is doing.
13 It's something that, for example, you have more
14 residential -- residences being built so you're
15 going to have an increased load to the plant,
16 correct?
17 A. Yes.
18 Q. It could be due to increased business
19 coming into the village, and, therefore, you're
20 going to have an increase in load at the plant,
21 correct?
22 A. Yes. Well, and that we monitor the
23 loadings that come -- that are being planned to be
24 added to the treatment plant, and we take a look at
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1 what we believe that impact would be on our
2 operations, and we self-police ourselves so that we
3 don't violate those standards.
4 Q. Correct. Okay. And that's something
5 that can continue in the future, the self-policing
6 concept, correct?
7 A. Right. But the lower standards will
8 reduce our ability to serve the entire facility
9 planning area.
10 Q. Are you saying right now that the plant
11 is designed in such a way that if you increase the
12 load to the plant you are going to start approaching
13 that design capacity, correct?
14 A. We will eventually approach the design
15 capacity of the treatment plant, yes.
16 Q. Okay.
17 A. We will not exceed it though.
18 Q. All right. And if you don't exceed
19 that design capacity, you will not violate even the
20 lower limits because isn't it true that the design
21 of a treatment plant -- a treatment plant is
22 according to the regulations supposed to be designed
23 in order to at its maximum capacity supposed to
24 still meet the regulations? Isn't that your job as
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1 a consultant is to make sure --
2 A. We will meet --
3 Q. Let me finish my question.
4 Isn't it correct that your job as a
5 consultant is to design a plant that in such a way
6 that it will meet the regulations as required by the
7 agency?
8 A. That treatment plant will meet the 25
9 CBOD, 30 milligrams per liter suspended solids for
10 9,900.
11 I cannot assure them that it could
12 treat that same population load with the lower
13 effluent standards because that's not what it was
14 designed for.
15 Q. But that design standard is an organic
16 design. That PE is based on organic loading. It's
17 not based on hydraulic, correct?
18 A. The PE loading that you're referring to
19 there was -- in the original design, there was both
20 a hydraulic component of that and there was also a
21 suspended solids BOD component to it, and the
22 hydraulic component was also identified as 10,000.
23 The additional flow that goes through
24 that treatment plant is clear water. It's
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1 infiltration.
2 MS. HOWARD: That's all.
3 MR. ROSENTHAL: No questions.
4 THE HEARING OFFICER: Before you take off
5 there --
6 MR. ROSENTHAL: Before we go any further, I
7 just want to make sure that I offer the last
8 Exhibits 20 through 24.
9 THE HEARING OFFICER: Any objections?
10 MS. HOWARD: No objection.
11 THE HEARING OFFICER: Okay. Exhibits 20 --
12 MR. ROSENTHAL: Plaintiff's 20 to 23?
13 MS. HOWARD: Twenty-four.
14 THE HEARING OFFICER: Okay. Twenty is his
15 resume.
16 MR. ROSENTHAL: Twenty through 24, yes.
17 THE HEARING OFFICER: Petitioner's Exhibits
18 20, 21, 22, 23, and 24 are admitted.
19 Mr. Thomas, would you either explain or
20 define what you mean when you say the facility
21 planning area.
22 THE WITNESS: The IEPA and the Northeastern
23 Illinois Planning Commission established planning
24 areas for each of the waste water treatment plants.
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1 They designated a zone that when you
2 design a treatment facility, you should take that
3 area into consideration so that your facilities are
4 large enough so that you've planned out how you're
5 going to handle those areas in the future.
6 Maybe you don't build for all that area
7 right at once, but you should know how you're going
8 to deal with them in the future. Then if an area
9 within that facility planning area wants to develop,
10 they're required to come to you first for treatment,
11 and if you are unable to serve them, then they have
12 the right to change facility planning areas and go
13 to another community if that other community is
14 willing to serve them, but it's basically a system
15 that was put in place to help try and
regionalize as
16 best as possible the provision of waste water
17 treatment plant so we don't end up with a lot of
18 little treatment plants scattered all over the place
19 and there's no real good planning to it.
20 THE HEARING OFFICER: Has the area -- has
21 the facility planning area changed since you
22 designed the plant in 1977?
23 THE WITNESS: Yes, it has.
24 THE HEARING OFFICER: How did that -- how
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1 does that affect the waste water treatment plant?
2 THE WITNESS: The treatment -- the facility
3 planning area of the treatment plant has been
4 increased in the subsequent years.
5 When we designed the treatment plant,
6 it was anticipated that the facility planning area,
7 as it existed at that time, would have a total
8 loading -- would have 8500 population equivalents in
9 it, plus 1500 population equivalents of the Good
10 Shepherd Hospital.
11 Subsequent to that, with the actual
12 development of the community, the densities came in
13 considerably lower than what had been planned for,
14 and so there was going to be excess capacity in the
15 treatment plant, and then at that same time, it was
16 found that there were septic systems failing in Lake
17 Barrington Industrial Park. That's an existing
18 industrial park that's on well and septic and it
19 also happens to be down in a wetland area, which we
20 have a lot of around here, and the
septics for that
21 area were failing.
22 So they needed a way to solve that
23 problem, and so because we have excess capacity in
24 the treatment plant because of the lower densities
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1 within the existing facility planning area, we were
2 able to offer service to Lake
Barrington and put a
3 limit on it though because we do have limitations on
4 how much area that we can serve and then we've
5 limited them to 1,500 population equivalents. They
6 can't go over that. We can't provide them more
7 treatment than that.
8 All right. Now, there has also been
9 some small changes to the facility planning area
10 along Route 22 where there was a subdivision that
11 went beyond the
McHenry county line. It
12 incorporated a parcel of property that straddled the
13 line, and so we did expand the facility planning
14 area to pick up that entire parcel so that entire
15 parcel would come into the village as a unit.
16 So, again, because of the lower
17 densities that we had experienced in other locations
18 in the community, we had that ability to do that.
19 THE HEARING OFFICER: All right. Thank
20 you.
21 What is the effect if the plant was
22 originally designed or designated at 10,000 PE --
23 THE WITNESS: Yes.
24 THE HEARING OFFICER: -- and through mutual
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1 agreement, it was agreed to change it to 9900 PE?
2 THE WITNESS: Right.
3 THE HEARING OFFICER: What's the effect of
4 that change.
5 THE HEARING OFFICER: There was no affect
6 physically because of that change as far as plant
7 operations or how well the waste water was treated
8 or anything else.
9 The impact of that change was to deal
10 with the problem that we're straddling a number in
11 the regulations. The number was set at 10,000, and
12 so the issue that came up in 1987 was well, you're
13 rated for 10,000 and the
regs say that if you're
14 more than 10,000, we have to have a lower effluent
15 standard, and so what it came down to is well, then
16 if you design a plant for 9,900 in '99, I would be
17 okay, and they said right, but we won't use that
18 number. We'll go with 9,900, and, therefore, we
19 take care of the regulation issue, and so there are
20 other -- this problem of the flow rate being
21 different than 100 gallons per capita today is not
22 unusual.
23 Cary, for example, right across the
24 river has an average daily flow design of one
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1 point -- excuse me, of 2.0 million gallons per day,
2 but has a PE rating of 18,000, again, because of the
3 infiltration that comes in the system.
4 The only reason why we're running into
5 a problem in this situation is because we're
6 straddling the regulation. We're at that breaking
7 point in the regulation where the smaller plants can
8 be 25, 30, the larger plants have to be 20, 25, and
9 what our point is
is that we are staying. We're
10 never going over that 10,000 number. We will always
11 be less than that. So we should be rated as a
12 smaller treatment plant.
13 MS. HOWARD: Can I ask one question just
14 based on what he just said?
15 THE HEARING OFFICER: Yeah. Just a minute.
16 On the -- when you design a plant, do
17 you design it with a certain PE in mind?
18 THE WITNESS: Yes. As part of the planning
19 process when you do the facility planning report and
20 so forth, you take a look at population
21 projections. You look at the community's plans, its
22 comprehensive plan, how they want to do it. What
23 does everything look like 20 years from now type
24 situation? So that's how you basically lay out what
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1 the size of your treatment plant should be.
2 THE HEARING OFFICER: Now, if you say that
3 the village is constrained in its current plant and
4 neither expanding, you're also saying that it cannot
5 rebuild on the same spot?
6 THE WITNESS: That's correct.
7 THE HEARING OFFICER: Because of the new
8 wetlands and --
9 THE WITNESS: Wetlands and flood plain
10 considerations.
11 THE HEARING OFFICER: But the '77 plant was
12 rebuilt on the same --
13 THE WITNESS: That's correct. We used a
14 lot of the existing
tankage that was out there. We
15 reused it. We changed it purposely. It was an
16 activated sludge plant. We took those activated
17 sludge tanks and made them into aerobic
digesters.
18 We reused the primary
clarifiers. We
19 knocked the building off the foundations for the
20 control building and built a new building on top of
21 the existing foundations.
22 So it was a lot of -- we reused what we
23 could and shoehorned in everything else because it's
24 an extremely tight setup.
L.A. REPORTING (312) 419-9292
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1 THE HEARING OFFICER: In your planning for
2 the next 20 years, will the village either have to
3 remain at the current 9900 PE or it will have to
4 build a new plant at a new location?
5 THE WITNESS: We do not anticipate that Fox
6 River Grove will ever exceed the 9900 PE because of
7 the fact that it is completely hemmed in by its
8 neighbors.
9 Their facility planning areas and their
10 municipal boundaries completely surround the village
11 at this point. So there is very little land that's
12 unincorporated around the community.
13 So at this point, we don't have a lot
14 of room for further growth. So I don't believe that
15 we are looking at -- we don't need to worry about
16 the situation in this case of going beyond the 9,900
17 because of the fact that we're tied down to where we
18 can expand.
19 THE HEARING OFFICER: And on the septic
20 systems that are failing, does that -- is that
21 included in the infiltration?
22 THE WITNESS: No.
23 THE HEARING OFFICER: No?
24 THE WITNESS: No, that's not a component.
L.A. REPORTING (312) 419-9292
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1 The infiltration is just clear water that enters
2 into the pipes, the existing sanitary sewer pipes,
3 because of the high ground water level.
4 THE HEARING OFFICER: But if the septic
5 systems are failing in the subdivisions, that would
6 not enter into the sewer system?
7 THE WITNESS: No, because we don't have any
8 sewers in those areas.
9 THE HEARING OFFICER: I see.
10 THE WITNESS: That would just flow towards
11 the river.
12 THE HEARING OFFICER: Directly to the
13 river?
14 THE WITNESS: Yeah.
15 THE HEARING OFFICER: All right. Thank
16 you.
17 Did you have any further questions?
18 MR. ROSENTHAL: I have no questions?
19 THE HEARING OFFICER: Ms. Howard?
20 MS. HOWARD: I'm fine.
21 THE HEARING OFFICER: All right. Thank
22 you, Mr. Thomas.
23 Let's go off the record.
24
L.A. REPORTING (312) 419-9292
114
1 (Discussion had
2 off the record.)
3 THE HEARING OFFICER: Does the village have
4 anything further at this time?
5 MR. ROSENTHAL: No, we do not.
6 THE HEARING OFFICER: All right. Thank
7 you. We will take a lunch break at this time. We
8 will be back, say, in 30 minutes.
9 (Whereupon, further proceedings
10 were adjourned pursuant to the
11 lunch break and reconvened
12 as follows.)
13 THE HEARING OFFICER: Let's resume in the
14 afternoon. Ms. Howard?
15 MS. HOWARD: The agency would like to call
16 Mr. Alan
Keller back to the stand.
17 THE HEARING OFFICER: Mr.
Keller, would you
18 please take the chair again. You are still under
19 oath from earlier.
20 THE WITNESS: Okay.
21 THE HEARING OFFICER: You may proceed.
22 D I R E C T E X A M I N A T I O N
23 by Ms. Howard
24 Q. Mr.
Keller, could you tell the board
L.A. REPORTING (312) 419-9292
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1 how the issue of the Fox River Grove permit came to
2 your attention with respect to the BOD or the CBOD
3 and TSS limits?
4 A. It first came to my attention when one
5 of my employees, Don
Netemeyer, was reviewing the
6 project and he came to me and pointed out the
7 discrepancy between the BOD standards and suspended
8 solid standards.
9 Q. A discrepancy -- where was the
10 discrepancy?
11 A. Between what the existing
12 permit -- then existing permit read as far as the
13 BOD -- the CBOD being 25 and suspended solids being
14 30 versus the usual 20, 25 effluent standard.
15 Q. When you say the usual 20, 25, why did
16 you use the word usual in your description?
17 A. That is the effluent of standard that
18 was placed on all facilities that have a design
19 capacity of 10,000 population equivalents.
20 Q. When the discrepancy was brought to
21 your attention, how did you try to address that
22 discrepancy? What did you do first?
23 A. First, we reread the regulations with
24 respect to 301.345, the definition of population
L.A. REPORTING (312) 419-9292
116
1 equivalents. We also read the regulation of 304.120
2 on deoxygenating waste.
3 Q. Well, let's start with 304.120. Which
4 subsection of 304.120 does the Fox River Grove
5 treatment plant fall under?
6 A. Section B.
7 Q. And why do you say it falls under
8 Section B?
9 A. I like to first state, and then I'll
10 answer the question if I could, Section B states no
11 effluent from any source whose untreated waste load
12 is 10,000 population equivalents or more or from any
13 source discharging into the Chicago River system or
14 into the Calumet River system shall exceed 20
15 milligrams per liter of BOD5 or 25 milligrams per
16 liter of suspended solids.
17 Upon reviewing this project, we
18 determined that the untreated waste load was 25 or
19 10,000 population equivalents or more based on a
20 hydraulic basis.
21 Q. Okay. So with that subsection B,
22 there's basically three -- well, there's -- it's
23 actually the first part of B that applies to Fox
24 River Grove, the no effluent from any source whose
L.A. REPORTING (312) 419-9292
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1 untreated waste load is 10,000 population
2 equivalents or more, correct?
3 A. Correct.
4 Q. So it's not a source discharging in the
5 Chicago River system or into the Calumet River
6 system?
7 A. Correct.
8 Q. What's the significance, first of all,
9 of hydraulic loading versus the organic loading?
10 What's the difference between hydraulic and organic
11 loading of a plant?
12 A. Well, the plant is designed based on
13 various design parameters. Two of those parameters
14 are the hydraulic loading and the organic loading,
15 and the consulting engineer will evaluate the system
16 hydraulically and organically and choose his design
17 accordingly.
18 Q. And what did the design consultant for
19 the Fox River Grove plant represent to the agency
20 was the design average flow of the plant?
21 A. 1.25 million gallons per day.
22 Q. And what is that used to determine?
23 A. That is the design average flow of the
24 treatment plant.
L.A. REPORTING (312) 419-9292
118
1 Q. So that determines the basis for your
2 flow?
3 A. Yes.
4 Q. Okay. And what was represented as
5 being the hydraulic load of the plant? How do you
6 determine what is the hydraulic load of the plant?
7 A. The hydraulic population equivalents or
8 the hydraulic -- actual hydraulic load?
9 Q. The hydraulic population equivalent.
10 A. That is based upon the definition of
11 population equivalent in subtitle C, which is 100
12 gallons per capita per day.
13 Q. Okay. And before we jump over to that
14 then, what is the significance of the state of the
15 word untreated in subsection B where it talks about
16 the untreated waste load?
17 A. That is what the actual design
18 parameters are for the treatment plant being the
19 design average flow or the design organic loading or
20 design solids loading -- suspended solids loading.
21 Q. Okay. If you're looking at untreated
22 waste load, would you look at the flow?
23 A. The design flow?
24 Q.
Uh-huh.
L.A. REPORTING (312) 419-9292
119
1 A. Yes.
2 Q. All right. If we -- so in your
3 valuation, you found that Fox River Grove fell under
4 subsection B.
5 Now, I assume you have to determine
6 whether or not it's a 10,000 population equivalent
7 or more, correct?
8 A. Correct.
9 Q. And to do that, what did you say you
10 looked at?
11 A. We looked at the definition of
12 population equivalent.
13 Q. Which is found at --
14 A. Which is found in 301.345 of subtitle
15 C.
16 Q. Okay. Now, remind me again, what is
17 the population equivalent used to determine?
18 A. It's the term used to evaluate the
19 impact on a treatment plant or a stream.
20 Q. Okay. And how do you determine which
21 impact you want to evaluate in any given case?
22 A. Well, we evaluate all three, those
23 being flow, BOD, and suspended solids, and for the
24 impact on a treatment plant, it is the highest of
L.A. REPORTING (312) 419-9292
120
1 the three.
2 Q. How did you know you wanted to
3 determine the impact on the treatment plant in this
4 case, the flow's impact on the treatment plant
5 rather than the impact on the stream itself? What
6 made you look at the impact on the treatment works
7 rather than the stream?
8 A. Basically, that was looking at the
9 untreated waste load.
10 Q. Back in Section 304.120(b) where it
11 talks about no effluent from any source whose
12 untreated waste load is 10,000 population
13 equivalents or more?
14 A. Correct.
15 Q. All right. So you determined you have
16 to look at the impact of the waste on a treatment
17 works. So explain to us again, you look at three
18 factors?
19 A. Yes. We look at three factors, those
20 being flow, pounds of BOD, and pounds of suspended
21 solids for what the plant was designed for.
22 Q. And what do you do with those three
23 factors?
24 A. We divide each one by the corresponding
L.A. REPORTING (312) 419-9292
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1 value to determine a population equivalent to
2 determine whether or not 304.120(b) applies.
3 Q. Okay. And according to 301.345, the
4 impact on a treatment works is evaluated as the
5 equivalent of the highest of those three parameters,
6 meaning between flow, the BOD, or TSS, you take the
7 highest of those to determine its impact on the
8 treatment works; is that correct?
9 A. Yes.
10 Q. And what did you determine to be the
11 highest of those three factors?
12 A. We determined the flow to be the
13 highest.
14 Q. And what was the flow? You're looking
15 at it from a hydraulic perspective or an organic
16 perspective?
17 A. I looked at the flow from a hydraulic
18 perspective, and the design average flow was 1.25
19 million gallons per day, which equates to 12,500
20 organic -- hydraulic PE. I'm sorry.
21 Q. What was that again, 12,000 --
22 A. Twelve thousand five hundred.
23 Q. Organic or hydraulic?
24 A. Hydraulic PE.
L.A. REPORTING (312) 419-9292
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1 Q. I think that's one of the places where
2 we're having our confusion is between hydraulic and
3 organic. I'll try to keep those two straight.
4 Okay. So you have 12,500 PE of
5 hydraulic flow. Is that more than 10,000?
6 A. Yes.
7 Q. So what do you do with that information
8 then?
9 A. We utilize Section B of 304.120 in
10 subtitle C and apply an effluent standard of 20
11 milligrams per liter of BOD and 25 milligrams per
12 liter of suspended solids.
13 Q. What if you wanted to do this from an
14 organic perspective, what would be the organic --
15 the PE based on an organic load?
16 A. We would go back to the original permit
17 or the most recent permit, state construction
18 permit, that the plant had received, and then we
19 would -- that's
20 usually -- add the number in there which states the
21 organic loading in terms of pounds of BOD per day.
22 We would divide that by 0.17 pounds of BOD per day
23 per PE.
24 Q. So if the plant's PE was at 9,900
L.A. REPORTING (312) 419-9292
123
1 according to organic flow, would the limits 30
2 milligrams per liter for BOD or 30 milligrams per
3 liter TSS or even 25 milligrams per liter BOD or 30
4 milligrams per liter TSS be correct?
5 A. That was -- could you repeat that? I'm
6 sorry.
7 Q. If the plant's PE was 9,900 according
8 to an organic flow, would the correct effluent
9 limits for BOD be 30 milligrams per liter or 25
10 milligrams per liter?
11 A. It would be 30 milligrams per liter BOD
12 or 25 CBOD.
13 Q. Okay. But we do this --
14 A. If you looked at just the organic.
15 Q. If you look at just the organic flow?
16 A. Correct.
17 Q. And what was the reason, again, that we
18 looked at the hydraulic flow?
19 A. We looked at the impact on the
20 treatment plant for the three parameters that the
21 plant is designed on; flow, BOD, solids.
22 Q. But that had to -- that went back to
23 the Section 304.120(b), which required looking at
24 the untreated waste load, correct?
L.A. REPORTING (312) 419-9292
124
1 A. Correct.
2 Q. Now, you worked on this permit that's
3 actually under -- that is actually the basis of this
4 appeal that was issued in 1996.
5 From the very first draft permit, which
6 was entered as Petitioner's Exhibit 17 on November
7 8th of 1996, what did you authorize to be the limits
8 that were established for BOD and total suspended
9 solids?
10 A. We established the limits for CBOD to
11 be 20 milligrams per liter and suspended solids to
12 be 25 milligrams per liter.
13 Q. And that was following the Section
14 301.345 and Section 304.120(b), correct?
15 A. Yes.
16 Q. Did that evaluation change when you
17 actually issued the permit on -- let's see. This is
18 Petitioner's Exhibit No. 18.
19 When it went on public notice on
20 December 2nd, 1996, did we change the limits that we
21 had originally drafted in that permit?
22 A. No.
23 Q. And when we eventually issued the
24 permit, did we change those BOD or TSS limits?
L.A. REPORTING (312) 419-9292
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1 A. No.
2 Q. When we issued the permit, this is
3 referring to Petitioner's Exhibit No. 3, there was a
4 cover letter that was dated February 6th, 1997, and
5 in the second -- well, third paragraph, there seems
6 to be an explanation, and I was wondering if you
7 could -- this is starting with although -- this is
8 the third sentence in that third paragraph, although
9 the facility has been
rerated for a 9,900 PE organic
10 rating, it is hydraulically rated at 12,500 PE. For
11 this reason, the agency must rate the plant at 1.25
12 million gallons per day and the associated 20
13 milligrams per liter CBOD5 limit, the 25 milligrams
14 per liter suspended solids limits must be
15 incorporated pursuant to Section 304.120(b) of
16 subtitle C.
17 The facility was designed for 10,000 PE
18 organic
loadings and 20, 25 BOD TSS effluent limits
19 and should be capable of meeting these limitations.
20 Would you like to comment on the next
21 several sentences, and you can go ahead and read
22 which ones you would like to...
23 A. Comment on the sentence starting with
24 obligations in bold, correct?
L.A. REPORTING (312) 419-9292
126
1 Q. Whatever you feel that you wanted to
2 make sure that it was clear on the record for the
3 board. I think they had referred to that sentence
4 earlier in their testimony.
5 A. Okay. We had received a letter from
6 the applicant December 19th of 1996, which led to
7 this paragraph being placed in here. We do have to
8 respond to all letters during the public notice
9 period, and the letter -- this paragraph responds to
10 approximately six issues, I think, in that letter,
11 and some of the issues were that the
permittee
12 stated that there were
unsewered areas and some new
13 developments that they wanted to connect to the
14 system and that they didn't feel they could meet
15 their effluent limits that were placed in the permit
16 of 20 and 25 versus the previous limits of 25, 30.
17 We looked at a lot of the past
18 operating data submitted through the
DMRs. We
19 looked at some of the flow data also and didn't feel
20 that they could still serve these areas like they
21 wanted to and had planned to and still meet the
22 effluent limits pursuant to 304.120(b).
23 Q. So I think there's been some evidence
24 entered here, and would you agree with that evidence
L.A. REPORTING (312) 419-9292
127
1 that they are presently meeting the permit limit
2 that is being appealed at this time of 20 milligrams
3 per liter BOD and 25 milligrams per liter TSS?
4 A. Yes. I would also like to point out
5 that we did state that we would be able to issue
6 permits for those additional waste loads. We did
7 have to issue construction permits for sewers and
8 additional waste load treatment plants, and we were
9 going -- we were basically obligated to do that
10 under the present conditions the way they were.
11 Q. So are you saying that the way the
12 plant is right now, they can go ahead and have some
13 increase in their load or they would be able to add
14 additional flow to their plant as it is designed
15 right now?
16 A. Yes. They're presently under the
17 design flows and design organic
loadings that would
18 be required.
19 Q. Is it possible that as the loads
20 increase eventually the plant may have a problem
21 meeting the 20, 25 limit of BOD and solids in your
22 opinion?
23 A. It's possible. Supposing you do
24 approach your design capacities, the closer you are
L.A. REPORTING (312) 419-9292
128
1 going to be to the actual design effluent
2 limitation.
3 Q. In general, when somebody designs a
4 treatment plant, what is the design life of that
5 treatment plant? How long do you expect that that
6 design would last?
7 A. Normal designs are usually with a 20
8 year design life. There are also a lot of phase
9 expansions in fast-growing communities where they
10 may only expand for a five or ten year design life.
11 Q. And the design of this particular
12 treatment plant was put together in 1977?
13 A. Yes.
14 Q. So we're coming close to what would
15 normally be expected to be the end of its -- of what
16 it was originally designed to be able to handle?
17 A. Based on the projections from 1977,
18 yes. However, the flows are not approaching the
19 1.25 figure, and the design organic
loadings are not
20 approaching the actual design of the plant.
21 Q. So, in your opinion, this plant, as it
22 is right now, does have room to grow, so to speak?
23 A. It has room to receive additional waste
24 load, yes.
L.A. REPORTING (312) 419-9292
129
1 Q. If the Fox River Grove -- village of
2 Fox River Grove were to eventually have problems
3 meeting, say, a permit limit of 20 milligrams per
4 liter BOD and 25 milligrams per liter of TSS, what
5 type of recourse does the village have?
6 A. Well, they would have to evaluate the
7 situation. They would -- one recourse would be to
8 expand the plant, upgrade the plant. They could
9 possibly go for an additional standard before the
10 Pollution Control Board, but they would have to
11 basically evaluate what the actual problems are and
12 go from there really with the design.
13 Q. In general, does the Illinois EPA issue
14 permits according to a plant's performance in terms
15 of an effluent limit? Do we look at how well the
16 plant is doing, or do we actually look at what the
17 regulations provide as to what should be the
18 effluent of limit, for example, for BOD or suspended
19 solids?
20 A. We look first at what the actual
21 standards are with respect to BOD and suspended
22 solids. There is some provision for existing
23 effluent quality standards for some of the water
24 quality standards.
L.A. REPORTING (312) 419-9292
130
1 Q. Okay. But in this particular case, are
2 we under an obligation to issue the permit according
3 to the regulations or according to the plant's
4 performance?
5 A. According to the regulations.
6 Q. So how does the Illinois EPA explain
7 the fact that we've had permits that have been
8 issued in the past to the village of Fox River Grove
9 with a limit that was based on an organic load
10 rather than a hydraulic load?
11 A. I believe it was just an oversight or
12 an error in the past, and they did not read --
13 whoever did not read the definitions close enough
14 with respect to the hydraulic PE.
15 Q. And since you have taken over the unit
16 and you've been involved in this Fox River Grove
17 permit, do you feel that you have accurately
18 interpreted the regulations in 304.120(b) and
19 301.345?
20 MR. ROSENTHAL: Objection. I don't think
21 that his feeling as to whether he's interpreted the
22 regulations correctly is relevant or material.
23 THE HEARING OFFICER: I would sustain
24 that.
L.A. REPORTING (312) 419-9292
131
1 BY MS. HOWARD:
2 Q. Do you believe you issued a permit that
3 follows the regulations?
4 MR. ROSENTHAL: Again, objection. His
5 belief as to whether the permit follows the
6 regulations is irrelevant and immaterial.
7 MS. HOWARD: I think if he's making the
8 decision as to what was in old permits versus what's
9 in a new permit and that he had to make a decision
10 as to what was the correct permit limit to put in
11 there.
12 THE HEARING OFFICER: Overruled. You may
13 answer the question.
14 BY THE WITNESS:
15 A. Would you repeat it, please?
16 MS. HOWARD: Could you read that back,
17 please?
18 (Record read.)
19 BY THE WITNESS:
20 A. Yes.
21 MS. HOWARD: That's all I have.
22 THE HEARING OFFICER: Cross-examination?
23
24
L.A. REPORTING (312) 419-9292
132
1 C R O S
S - E X A M I N A T I O N
2 by Mr.
Rosenthal
3 Q. Mr.
Keller, you indicated that you
4 believe that your predecessors misinterpreted the
5 regulations; is that correct?
6 A. Yes.
7 Q. And so it's your belief that your
8 predecessors misinterpreted the regulations both in
9 1987 and in 1992; is that correct?
10 A. Yes.
11 Q. And it's your belief that when the IEPA
12 agreed that the rating was reduced to 9900 PE, the
13 higher effluent standards would apply that that was
14 a misinterpretation of the regulations at the time?
15 A. To strictly look at the organic PE,
16 yes.
17 Q. The people who held your position at
18 that time had the authority to interpret the
19 regulation; is that correct?
20 A. Yes.
21 Q. Have you ever visited the Fox River
22 Grove waste water treatment plant?
23 MS. HOWARD: Objection. I think this is
24 beyond the direct examination.
L.A. REPORTING (312) 419-9292
133
1 MR. ROSENTHAL: Your Honor, he testified as
2 to what the potential future capacity would be of
3 the Fox River Grove plant. I believe I have the
4 right to examine what the basis of his knowledge
5 would be for that.
6 THE HEARING OFFICER: Overruled.
7 BY THE WITNESS:
8 A. I believe I visited the plant in the
9 '80s. We were looking at the efficiency and life
10 cycles of the RBC system.
11 BY MR. ROSENTHAL:
12 Q. You have not visited the plant in
13 connection with the issuance of the 1997 permit, did
14 you?
15 A. No.
16 Q. No one at your staff visited the plant,
17 did they?
18 A. No.
19 Q. And when the February 6th, 1997, letter
20 was written, that was not based on a visit to the
21 plant, correct?
22 A. No.
23 Q. And it was not based on any data that
24 was provided to you by the village, was it?
L.A. REPORTING (312) 419-9292
134
1 A. Yes.
2 Q. Was it -- it was just based on -- that
3 data then was simply the monthly reports that were
4 filed, correct?
5 A. Yes.
6 Q. It was not based on any subsequent
7 conversations with any village official; is that
8 correct?
9 A. There were conversations concerning the
10 point of appeal, but the information that we placed
11 in the letter was based more on the discharge
12 monitoring reports that were submitted by the
13 village.
14 Q. Let me ask you this. Isn't it true
15 that Mr. Thomas is more familiar with the operations
16 and capacity and potential future capacity of the
17 Fox River Grove plant than either you or Mr.
18 Netemeyer?
19 A. He should be as the design engineer.
20 Q. And when you -- prior to issuing the
21 November 18th, 1996, proposed permit, did you or, to
22 your knowledge, did Mr.
Netemeyer review the
23 facility's planning report that was prepared in
24 connection with this facility?
L.A. REPORTING (312) 419-9292
135
1 A. No.
2 Q. So you did not look at how the 1.25 MGD
3 was arrived at, did you?
4 A. No. However, it was placed in the
5 application that the village submitted.
6 Q. You did not determine how much of that
7 1.25 was based on infiltration and inflow, did you?
8 A. No.
9 Q. And you made no attempt to do that, did
10 you?
11 A. We reviewed information afterwards,
12 which delineated what Mr. Thomas said concerning the
13 125 gallons per capita.
14 Q. And what Mr. Thomas said was correct?
15 A. Yes.
16 Q. But that was after you issued the
17 permit, correct?
18 A. That was --
19 Q. After.
20 A. -- after the public notice was issued.
21 Q. And after you had made your
22 determination that the proper effluent limitations
23 should be 20, 25; is that correct?
24 A. Correct.
L.A. REPORTING (312) 419-9292
136
1 Q. The heading on Section 304.120 is
2 entitled the deoxygenating waste; is that correct?
3 A. Correct.
4 Q. And CBOD5, what you're doing there is
5 you're measuring the amount of organic waste; is
6 that correct?
7 A. The carbonaceous amount, correct.
8 Q. And with suspended solids, that is
9 considered to be waste; is that correct?
10 A. Correct.
11 Q. Okay. And 304.120, paragraph B, states
12 no effluent from any source whose untreated waste
13 load is 10,000 population equivalent; is that
14 correct?
15 A. Yes.
16 Q. It uses the word waste, correct?
17 A. Waste load, yes.
18 Q. And it doesn't use the word hydraulic
19 load, does it?
20 A. No.
21 Q. And if you read waste as being -- and
22 it sets limits for CBOD5 and for suspended solids,
23 correct?
24 A. Could you repeat that, again, please?
L.A. REPORTING (312) 419-9292
137
1 Q. 304.120(b) sets effluent limits for
2 BOD5 or CBOD5 and suspended solids, correct?
3 A. Correct.
4 Q. And if you read waste and the term
5 waste load as being BOD5 and suspended solids, what
6 you would have is no effluent from any source whose
7 untreated BOD or suspended solid load is 10,000
8 population equivalents, correct?
9 MS. HOWARD: I'm going to object to the
10 question. I think we should take the regulation as
11 it's actually written rather than somebody's
12 interpretation as to what the word waste means,
13 whether we should replace that word with BOD and
14 TSS. That's not what the regulation says. It's
15 untreated waste load.
16 MR. ROSENTHAL: Well, I think that we can
17 examine what waste means. They seem to consider it
18 to mean hydraulic load, and I believe that if waste
19 is shown as Mr.
Keller just testified and is
20 entitled -- this section refers to BOD and suspended
21 solids, then the waste load that you're talking
22 about is the organic waste load, which is 9900 PE,
23 which is what this case is about.
24 THE HEARING OFFICER: Objection overruled.
L.A. REPORTING (312) 419-9292
138
1 Mr.
Keller?
2 BY THE WITNESS:
3 A. Can you ask that again, please?
4 BY MR. ROSENTHAL:
5 Q. If you replace the word waste with the
6 word BOD5 and suspended solids, this regulation
7 would read no effluent from any source whose
8 untreated BOD5 or suspended solid load is 10,000
9 population equivalents or more; is that correct?
10 A. That's true.
11 Q. And the population equivalents with
12 regard to BOD5 and suspended solids for the Fox
13 River Grove plant is 9900 PE; is that correct?
14 A. Correct.
15 Q. Now, the NPDES permit I believe you
16 testified is a permit that allows the village to
17 discharge into the Fox River; is that correct?
18 A. Correct.
19 Q. So what that permit does is the limits
20 in that permit places a limit on the impact that
21 that discharge can have on the Fox River; is that
22 correct?
23 A. Correct.
24 Q. So that what you're looking at there is
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1 the impact on the stream, in other words, the Fox
2 River; is that correct?
3 A. Or the effluent, correct.
4 THE HEARING OFFICER: I'm sorry. You're
5 looking at the impact on the Fox River, and you said
6 the --
7 THE WITNESS: The impact of the effluent on
8 the Fox River.
9 THE HEARING OFFICER: All right.
10 BY MR. ROSENTHAL:
11 Q. The effluent from the plant on the Fox
12 River?
13 A. Correct.
14 MR. ROSENTHAL: That's all that I have.
15 THE HEARING OFFICER: Redirect?
16 R E D I R E C T E X A M I N A T I O N
17 by Ms. Howard
18 Q. Can you give me some idea of how many
19 permits your unit issues where we don't -- you don't
20 have anybody go out and see the facility either on a
21 monthly basis, maybe, some idea?
22 A. I would say the majority of the plants
23 are not visited before the permit is issued. We
24 only visit the major facilities, those designed, for
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1 example, with greater than 20 million gallons per
2 day after or during our additions, one of the two.
3 Q. And --
4 A. We're not obligated to visit. We do
5 have field staff in Maywood, which we do review the
6 files from their field visits.
7 Q. That's what I was going to ask you next
8 is without going to these plants, these facilities,
9 when they send you an application to receive a
10 permit or to modify or to renew their permit, what
11 information are you given to work with?
12 A. We're given a permit application
13 package usually with a letter explaining the
14 modification order for renewal.
15 Q. And where does that permit package come
16 -- that permit application package come from?
17 A. We supply those to the applicants, and
18 they fill them out, and they send them back in.
19 Q. Okay. So the information contained in
20 that package is actual information that's given by
21 the facility itself?
22 A. Correct.
23 Q. You were asked about whether or not you
24 looked at how the 1.25 million gallons per day was
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1 arrived at, whether it was based on inflow or
2 infiltration. How is that applicable in this case,
3 if at all?
4 A. In the permit, we do place load limits
5 on the treatment plant, and we use the design
6 average flow for calculation of the load levels.
7 Q. How does that impact the determination
8 of what the BOD of its suspended solids limits
9 should be?
10 A. That is one of the factors that impacts
11 the design of that treatment plant and, again, the
12 flow rate and
organics and they determine whether or
13 not it's over 10,000 population equivalents based on
14 that figure and BOD and suspended solids.
15 Q. So it's used to determine the flow,
16 which is one of those three factors you have to look
17 at to the impact on the treatment works?
18 A. Correct.
19 Q. And the treatment works you're looking
20 at the impact on the treatment works due to the fact
21 that 304.120(b) specifically says that you have to
22 look at the untreated waste load; is that correct?
23 A. Correct.
24 MS. HOWARD: That's all I have.
L.A. REPORTING (312) 419-9292
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1 THE HEARING OFFICER:
Recross?
2 MR. ROSENTHAL: Yes.
3 R E C R O S
S - E X A M I N A T I O N
4 by Mr.
Rosenthal
5 Q. Mr.
Keller, inflow and infiltration is
6 not waste, is it?
7 A. No, but it affects the design of the
8 treatment plant.
9 Q. But it's not waste?
10 THE HEARING OFFICER: I'm sorry. I can't
11 hear you. It's not what?
12 MR. ROSENTHAL: Waste.
13 THE HEARING OFFICER: All right. And your
14 answer was?
15 THE WITNESS: It's not waste by itself, no.
16 MR. ROSENTHAL: That's all that I have.
17 THE HEARING OFFICER: Mr.
Keller, would you
18 go back, and is there a definition of hydraulic
19 loading in the regulations?
20 THE WITNESS: Hydraulic loading is --
21 THE HEARING OFFICER: Well, is there --
22 THE WITNESS: -- only associated with the
23 design and population equivalents.
24 THE HEARING OFFICER: Then what is
L.A. REPORTING (312) 419-9292
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1 hydraulic loading?
2 THE WITNESS: Hydraulic loading? Hydraulic
3 loading is a design basis of what the consultant has
4 designed.
5 THE HEARING OFFICER: No. What is
6 hydraulic loading?
7 THE WITNESS: Hydraulic loading it's the
8 amount of flow that is received at the treatment
9 plant and treated.
10 THE HEARING OFFICER: Okay. It's the
11 amount of --
12 THE WITNESS: Waste water that's received
13 at the treatment plant and must be treated.
14 THE HEARING OFFICER: All right. And
15 what's the definition of organic loading?
16 THE WITNESS: It is also the amount of, in
17 this case, biochemical oxygen demand material or BOD
18 influent to the treatment plant.
19 THE HEARING OFFICER: Okay. I can't hear
20 you. Into -- you said something --
21 THE WITNESS: Influent to the treatment
22 plant.
23 THE HEARING OFFICER: Influent?
24 THE WITNESS: Right. That they, again,
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1 have to treat.
2 THE HEARING OFFICER: Thank you, Mr.
3 Keller. You may step down.
4 MS. HOWARD: That's all that we have.
5 THE HEARING OFFICER: No further
6 witnesses?
7 MS. HOWARD: No further witnesses.
8 THE HEARING OFFICER: All right. Let's go
9 off the record.
10 (Discussion had
11 off the record.)
12 THE HEARING OFFICER: The agency has
13 rested. Does the village have any rebuttal that
14 they wish to provide?
15 MR. ROSENTHAL: No.
16 THE HEARING OFFICER: We've had an
17 off-the-record discussion on a briefing schedule.
18 The village has agreed to waive the decision
19 deadline to December 18th, '97. Therefore, the
20 briefs will be due -- the village's brief will be
21 due October 21st, 1997, and the agency's brief will
22 be due November 12th of '97, and that the board
23 decision date will be the second meeting in
24 December, which would be December the 18th also.
L.A. REPORTING (312) 419-9292
145
1 All right. Does anybody have anything
2 further? Mr.
Rosenthal?
3 MR. ROSENTHAL: I have nothing further on
4 the record.
5 THE HEARING OFFICER: All right. Ms.
6 Howard?
7 MS. HOWARD: No.
8 THE HEARING OFFICER: All right. Thank
9 you. The exhibits have all been admitted, and I
10 will tender those to the board.
11 Let the record reflect that there were
12 no members of the public in attendance at today's
13 hearing, and pursuant to the rules of procedure, the
14 hearing officer does not find any credibility issues
15 with any of the witnesses that appeared today or
16 that testified today.
17 All right. There being nothing
18 further, this hearing is closed.
19 Thank you.
20 (Which were all the
21 proceedings had in the
22 above-entitled cause.)
23
24
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146
1 STATE OF ILLINOIS )
) SS.
2 COUNTY OF C O
O K )
3
4 I, GEANNA M. PIGNONE-IAQUINTA, do
5 hereby state that I am a court reporter doing
6 business in the City of Chicago, County of
7 Cook, and State of Illinois; that I reported
8 by means of machine shorthand the proceedings
9 held in the foregoing cause, and that the
10 foregoing is a true and correct transcript of
11 my shorthand notes so taken as aforesaid.
12
13
14 __________________________
Geanna M. Pignone-Iaquinta
15 Notary Public, Cook County, IL
Illinois License No. 084-004096
16
17
18 SUBSCRIBED AND SWORN TO
before me
this_____day
19 of__________, A.D., 1997.
20
___________________________
21 Notary Public
22
23
24
L.A. REPORTING (312) 419-9292