1. NOTICE OF FILING
    2. 847-623-5277
    3. BEFORE
    4. OF THE NPDES PERMIT DECISION OF THE AGENCY BELOW
    5. I. BACKGROUND
    6.  
    7. Ill. MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT ON RESIDENT
    8. GROUP’S DUE PROCESS CLAIMS
    9. IV. THE DECISION OF THE AGENCY IS AMPLY SUPPORTED BY THE RECORD
    10. V. SETTLEMENT EFFORTS
RECEIVED
CLERK’S OFFICE
BEFORE
THE ~
OLBOARD
FEB
282005
STATE OF
IWNOIS
VILLAGE OF
LAKE BARRINGTO~
U
LI
Pollution Control ~oavd
CUBA TOWNSHIP,
PRAIRIE
RIVERS
)
NETWORK, SIERRA CLUB,
BETH
)
WENTZEL and CYNTHIA SKRUKRUD,)
)
Petitioners,
)
)
v.
)
PCB
05-55
)
(Permit Appeal-N PDES)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY and
)
VILLAGE
OF WAUCONDA,
)
)
Respondents.
)
SLOCUM LAKE DRAINAGE
)
DISTRICT OF LAKE COUNTY,
)
ILLINOIS,
)
)
Petitioner,
)
)
v.
)
FOB
05-58
)
(Permit Appeal-NPDES)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY and
)
VILLAGE
OF WAUCONDA,
)
)
Respondents.
)
AL PHILLIPS, VERN
MEYER, GAYLE DEMARCO,
)
GABRIELLE
MEYER, LISA O’DELL, JOAN LESLIE,
)
MICHAEL DAVEY,
NANCY DOBNER, MIKE POLITO,)
WILLIAMS
PARK IMPROVEMENT ASSOCIATION,
)
MAT SCHLUETER,
MYLITH PARK LOT OWNERS
)
ASSOC., DONALD KREBS,
DON BERKSHIRE,
)
JUDY BRUMME, TWIN
POND FARMS
)
HOMEOWNERS ASSOC., JULIA TUDOR,
)
CHRISTINE
DEVINEY,
)
)
Petitioners,
)
)
v.
)
PCB
05-59
)
(Permit Appeal-NPDES)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
NOTICE OF
FILING
TO:
See Attached Certificate of Service
Please take notice that on February
28, 2005,
I filed with the
Illinois Pollution
Control Board an original and nine copies of this Notice of Filing
and
attached THE
VILLAGE OF WAUCONDA’S
MOTION TO
DISMISS AND/OR FOR SUMMARY
JUDGMENT AND BRIEF
IN SUPPORT OF THE
NPDES
PERMIT DECISION OF
THE
AGENCY BELOW, which
is hereby served
upon you.
Dated:
February 28,
2005
J~L/~e#
William
D.
Seith
Total Environmental
Solutions, P.C.
631
E. Butterfield Rd., Suite 315
Lombard,
IL
60148
630-969-3300
Rudolph
Magna
Magna & Johnson
495
N.
Riverside
Dr., Suite 201
Gurnee, IL
60031
847-623-5277
BEFORE
VILLAGE
OF
LAKE BA~
CUBA TOWNSHIP, PRAIRIE
RIVERS
NETWORK, SIERRA CLUB,
BETH
WENTZEL and CYNTHIA SKRUKRUD,
Petitioners,
V.
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY and
VILLAGE OF WAUCONDA,
Respondents.
SLOCUM LAKE DRAINAGE
DISTRICT OF LAKE COUNTY,
ILLINOIS,
Petitioner
V.
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY and
VILLAGE OF WAUCONDA,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
RECEIVED
CLERK’S OFFICE
CONTROL BOARD
FEB 282005
STATE OF ILLINOIS
Pollution Control Board
FOB
05-55
(Permit Appeal-N PDES)
PCB
05-58
(Permit Appeal-NPDES)
Printed on
Recycled Paper
AL PHILLIPS, VERN
MEYER, GAYLE DEMARCO,
)
GABRIELLE
MEYER, LISA O’DELL,
JOAN LESLIE,
)
MICHAEL DAVEY,
NANCY DOBNER, MIKE POLITO,)
WILLIAMS
PARK
IMPROVEMENT ASSOCIATION,
)
MAT SCHLUETER,
MYLITH
PARK LOT OWNERS
)
ASSOC.,
DONALD KREBS, DON BERKSHIRE,
)
JUDY BRUMME, TWIN
POND FARMS
)
HOMEOWNERS ASSOC., JULIA TUDOR,
)
CHRISTINE
DEVINEY,
)
)
Petitioners,
)
)
v.
)
PCB
05-59
)
(Permit Appeal-NPDES)
ILLINOIS
ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
THE VILLAGE OF WAUCONDA’S MOTION
TO DISMISS
AND/OR
FOR SUMMARY JUDGMENT AND
BRIEF IN
SUPPORT
OF
THE
NPDES PERMIT DECISION OF THE AGENCY BELOW
This matter comes before the
Illinois Pollution Control
Board (“Board”) on three
separate third-party petitions challenging the
issuance of a
modified
NPDES
Permit
(“Modified Permit”) to the Village of Wauconda (“Wauconda”) by the
Illinois
Environmental Protection Agency (“Agency”) on August 23, 2004.
The Modified Permit
allows the
expansion of Wauconda’s waste water treatment plant (“WWTP”)
in two
stages:
In Stage
I
from
1.4
million gallons
per day (“MGD”) to
1.9
MGD; and
in Stage
II
from
1.9
MGD to 2.4 MGD.
The first third-party petition was filed
by Lake Barrington,
Cuba Township,
Sierra Club,
Prairie Rivers Network,
Cynthia Skrukrud
and
Beth
Wentzel (“Governmental and Environmental Group Petitioners”) and
is
POB 05-55.
The
second was filed by Slocum Lake Drainage District (“Drainage District”) and
is FOB 05-
58.
The third was filed by a group of area
residents represented by Attorney Jay Glenn
(“Resident Group”) and
is
POB 05-59.
All three matters were consolidated
by the
Board
Printed on Recycled Paper
by an order dated October 7, 2004.
The Modified Permit has been the subject of a
public notice proceeding by the Agency.
I.
BACKGROUND
Wauconda owns and operates a WWTP pursuant to NPDES Permit
IL 0020109.
Wauconda’s WWTP discharges to
Fiddle Creek, tributary to the
Fox River.
Pursuant to
an
application by Wauconda, on August 23,
2004, the Agency modified Wauconda’s
NPDES Permit to allow upgrades, improvements and expansion of Wauconda’s WWTP
in order to accommodate growth
in
the
community.
The Modified Permit was issued
after an exhaustive
review process by the Agency.
Tr.
1-214 and
R. 2186~2262.1
Wauconda’s application
generated significant public interest from
surrounding
communities, environmental groups and local residents.
As
a result,
the Agency held a
public hearing on September 9 and
10,
2003, to provide information to interested
parties
about Wauconda’s application
and to receive comments.
Tr. 1-214 and
R.
194-230.
The Agency also maintained
an open public comment period
until at least October 31,
1
Citations to the transcript of the IEPA proceeding, filed as an Amended
Record on
December 10, 2004,
are designated “Tr..”
Citations to the IEPA record are designated “R._”.
As
the Agency notes in its
final fact sheet:
This permit modification decision
follows one of the most extensive technical
reviews and
community relations outreach and response efforts in
the history of the
Illinois Environmental
Protection Agency.
Because of the great degree of public interest
in the permit application,
Illinois
EPA went skrnificantly beyond
lec~al
notice and
review requirements
and extended the
hearing record until October
31,
2003.
When several citizens
at the September 9, 2003 public
hearing expressed concern about a year-round disinfection
exemption in the MPDES
permit for
treated
wastewater discharges,
Illinois EPA and Wauconda reached an agreement, announced
on November 13, 2003, for Waucondato request termination of the exemption and
be required to
comply with a fecal coliform standard.
In addition, director Cipriano personally hosted
a meeting
in December 2003 attended by 33 representatives of local governments and agencies with a role
in protecting natural resources and
public health.
Agency staff did an exhaustive evaluation of
issues raised
by the citizens and agencies
and conducted further studies.
The
results of that
work are detailed
in the Responsiveness Summary.
R. 2188,
Emphasis added.
2
Printed on
Recycled Paper
2003 and even held a special meeting
with various governmental entities to gather
additional
information.
Tr.
6 and
R.
1080-1102, 2212.
During this timeframe, the only
Petitioners that presented technical data to the Agency were the Governmental and
Environmental Group Petitioners
in
FOB 05-55.
R.
249-299, 311-345,
388-421, 2000-
2001, 2100-2139; Compare to
R.
579-828.
Wauconda also presented technical
data
in
support of its
application
as well as in response to
issues raised by the various parties
below.
R.
829-1022,
1522-1579, 1597-1598, 1608-1676,
1774-1776,
1950-1953, 2015-
2027, 2045-2048, 2054-2099.
After carefully and exhaustively considering
all of the issues raised by the various
parties
below, the Agency issued the
Modified Permit along with a Responsiveness
Summary.
R.
2186-2262.
The Agency’s Responsiveness Summary adequately
addresses all of the substantive issues raised below as well as those raised herein.
R.
2186-2262.
II.
MOTION
TO DISMISS RESIDENT GROUP’S PETITION
A motion to dismiss challenges the legal sufficiency of the
Petition by alleging
defects on
its
face.
In challenging the
Petition, Respondent must
accept as true
all well-
pleaded facts and all
reasonable inferences that may be drawn from
those facts.
Jarvis
v.
South Oak DodQe,
Inc.,
201
III. 2d
81, 86(2002).
In addition, when
considering
a
Motion to Dismiss, the
Board must construe the allegations
in the
Petition
in
the
light
most favorable to the
Petitioner.
Wakulich
v.
Mraz, 203
III.
2d 223, 228 (2003).
Section 101.302 of the Board’s General
Rules,
35
III. Adm.
Code, 101.302,
provides
in relevant part as follows:
3
Printed on Recycled
Paper
a)
This Section contains the Board’s general filing requirements.
Additional
requirements
may exist for specific proceedings elsewhere
in these rules.
The Clerk will refuse for filing any
document that does not complywith the minimum reguirenients of this
Section.
*
*
*
h)
Unless the Board or
its procedural
rules provide otherwise,
all documents must-be-filed
with a signed
original and 9 duplicate copies (10 total),
except that:
1)
Documents and motions specifically directed
to
the assigned
hearing officer must
be filed with
the Clerk with
a signed original and 4 duplicate copies (5 total), or as the
hearing officer orders;
2)
The Agency may file a signed original and 4 duplicate copies
(5 total) of the
record required
by Section 105.116,
105.302, and 105.41 0;
3)
The OSFM may file a signed original and 4 duplicate copies (5 total) of the record
required by Section 105.508; and
4)
The siting authority may file
a signed original and 4 duplicate copies (5 total) of
the record required by Sections 107.300 and 302.
(Emphasis added.)
In no fewer than five different locations within the rule, the
Board
requires that documents filed by the
parties
be signed.
This requirement is not
insignificant given
Illinois Supreme Court Rule 137, which provides
as follows:
Rule 137.
Signing of Pleadings, Motions
and Other Papers
—
Sanctions
Every pleading,
motion and other
paper of a party represented by an attorney shall be signed by
at least one attorney of record
in his individual name, whose address shall
be stated.
A
party
who is not represented by an attorney shall
sign his pleading, motion,
or other paper and
state his
address.
Except when otherwise specifically provided
by rule or statute,
pleadings
need not be
verified or accompanied by affidavit.
The signature of an attorney or
party constitutes a certificate
by him that he has read the
pleading, motion or other
paper; that to the best of
his knowledge,
information, and belief formed after reasonable
inguiry it is well grouridedlrrfactartchswarrarited
by existing law or
a good-faith argument for the extension,
modification, or reversal of existing
law,
and that
it is not interposed for any improper purpose, such
as to harass or to cause
unnecessary delay or needless increase
in the cost of litigation.
If a
pleading, motion,
or other
paper
is not signed, it shall be stricken
unless it is signed promptly after the omission
is called to
the attention of the pleader or movant.
If a pleading, motion, or other paper
is signed
in violation
of this rule, the court,
upon
motion or upon
its
own initiative,
may impose upon the person who
signed
it,
a represented
party, or both,
an appropriate sanction,
which may include an order to
pay to the other party or parties the amount of reasonable
expenses
incurred
because of the filing
of the pleading, motion
or other paper,
including a reasonable attorney fee.
All
proceedings under this rule shall
be brought within the civil action
in which the pleading,
motion or other paper referred
to has been filed, and
no violation or alleged violation of this
rule
shall give rise to a separate civil
suit, but shall
be considered a claim within the same civil action.
Motions brought pursuant to this rule must be filed within
30 days of the entry of final iudgment, or
if a timely post-iudgment motion
is filed, within
30 days of the ruling on the post-iudgment motion.
This
rule shall apply to the State of Illinois or any agency of the State
in the same manner as any
other
party.
Furthermore, where the
litigation involves review of
a determination of an
4
Printed on
Recycled Paper
administrative agency, the court may include in its award for expenses an amount to compensate
a party for costs actually
incurred by that party in contesting
on the administrative level an
allegation or denial made by the State without reasonable cause and found to
be untrue.
Where a sanction is imposed under this rule, the judge shall setforth with specificity the reasons
and basis of any sanction so imposed
either
in the judgment order itself or in
a separate written
order.
The Board’s record
in
PCB 05-59
reveals that the
Petition purportedly filed
by attorney
Jay Glenn on behalf of the
Resident Group Petitioners was
not signed.
See,
http://www.ipcb. state.il. us/Arch ive/dscqi/ds.py/Ge~ttFile-44567.
Furthermore, the time period for filing third-party petitions challenging the
Modified Permit has long since passed.
See 415 ILCS 40(e)(1) (2004),
“A
third
party,
other than the permit applicant or Agency,
may petition the Board within 35 days from
the
date of issuance of the Agency’s decIsion.
.
.
.“
(Emphasis added.)
Since the
Agency decision to issue the
Modified Permit occurred on August 23,
2004, the 35 day
deadline expired on September 27,
2004.
Accordingly,
any properly signed
petition filed
today or hereafter would be untimely.
Wauconda further submits that the
Resident Group’s failure to sign
its
Petition
was
not
unintentional or inadvertent.
Since the
record of the proceedings below is
devoid of a single shred of technical
data or evidence submitted by Resident Group to
support its claims,
the Resident Group’s attorney would undoubtedly be hard
pressed to
certify that
its
claims are “well grounded in fact” and are “not interposed for any
improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation.”
Wherefore, the
Resident Group’s Petition
in
PCB 05-59 should
be dismissed with
prejudice.
5
Printed on Recycled
Paper
Ill.
MOTION
TO DISMISS AND/OR
FOR SUMMARY JUDGMENT ON RESIDENT
GROUP’S DUE PROCESS CLAIMS
A motion to dismiss challenges the legal sufficiency of the
Petition by alleging
defects on its face.
In challenging the
Petition, Respondent
must accept as true all well-
pleaded facts and all
reasonable inferences that may be drawn from those facts.
Jarvis
v. South Oak Dodge, Inc., 201
Ill.
2d
81,
86 (2002).
In addition, when considering a
motion to dismiss, the
Board
must construe the allegations
in the Petition in the light
most favorable to the
Petitioner.
Wakulich
v.
Mraz, 203
Ill.
2d 223, 228 (2003).
Summary judgment is appropriate when “the pleadings, depositions, and admissions
on
file, together with the affidavits, if any, show that there
is no genuine issue as to any
material fact and that the
moving party is entitled to a judgment as a matter of law.”
735
ILCS 5/2-1005(c) (2004);
Gilbert v. Sycamore Municipal Hospital,
156
III. 2d 511, 517-
18 (1993).
Summary judgment should
not
be granted
unless the
right of the moving
party
is clear and free from
doubt.
Purtill
v.
Hess,
111111. 2d 229, 240 (1986).
While the
nonmoving party in
a summary judgment motion
is
not
required to prove his or her case,
the nonmovant must present a factual
basis arguably entitling that party to a judgment.
Michigan Avenue
National
Bank v.
County of Cook,
191111. 2d 493, 517-18 (2000).
In
its
unsigned petition, the
Resident Group challenges the procedural sufficiency
of the
exhaustive public comment,
review and
hearing process before the Agency.
The
Resident Group relies
upon
a
local zoning
case to argue that full due process should
have
been afforded to the
Petitioners during the proceedings before the Agency.
The
procedural sufficiency of the NPDES Permit application
process,
however,
is very well
established.
See
Peabody Coal vs. Pollution Control Board,
49
III. App. 3d 252, 254-
255, (First
District,
1977); U.S.
Steel vs.
Pollution Control Board,
52
III. App.
3d
1, 8-9,
6
Printed on
Recycled Paper
(Second
District,
1977); Landfill, Inc. vs. Pollution Control Board,
72
III.
2d
541,
559-560,
(1978); Borg-Warner vs.
Mauzy,
100
III. App. 3d 862, 869-870 (Third
District,
1981);
Sauget vs.
Pollution Control
Board, 207
III. App. 3d 974, 982-983 (Fifth
District,
1990;
Citizens Utilities vs. Pollution
Control Board, 265
Ill. App. 3d
773,
780-782 (Third
District,
1994); Prairie Rivers Network vs. Pollution Control Board, 335
III. App. 3d 391,
402-406 (Fourth District, 2002).
The Illinois Supreme Court spoke very clearly in
Landfill, Inc., when
it noted:
Finally,
the Board argues
that the allowance of a permit can impinge upon third
parties’
constitutional rights to a healthful environment (Ill.
Const.
1970, art.
XI, secs.
1,
2) and can
threaten property rights (U.S.
Const., amend. XIV;
III. Const.
1970, art.
I, sec.
2).
Therefore, the
Board argues, third
parties are entitled
by due process to
a hearing on the allowance of permits.
In the instant case the intervenors
did participate in
the permit-issuance process, although
the Act
does not guaranty such
participation.
The constitutional argument is without
merit
in light of the
statutorily established mechanism for persons not directly involved
in the permit-application
process to protect their interests without em broiling the Board in an examination of the Agency’s
permit-granting
procedure.
Section 31(b) authorizes citizen complaints against alleged violators
of the Act, any Board rule or
regulation,
or Agency permit; it requires the
Board to hold a hearing-on allstich complaints which
are not “duplicitous or frivolous” (III. Rev. Stat.
1975, ch.
111
1/2, par. 1031(b)).
At that
hearing,
the complainant bears the burden of showing actual or threatened pollution or actual or
threatened violations of any
provisions of the Act, rules,
regulations, or
permits. (III.
Rev. Stat.
1975, ch. 1111/2,
par. 1031(c).)
The grant of a permit does
not insulate violators of the Act or
give them a license to pollute; however, a citizen’s statutory remedy is a new complaint against
the polluter,
not an action before the Board challenging the Agency’s performance of its statutory
duties in issuing
a permit.
As the principal draftsman of the Act has noted, “One receiving
a
permit for an activity that allegedly violates the law can be charged with causing or
threatening
to
cause
such a violation
in
a citizen complaint
under section
31(b), and the regulations expressly
provide that the existence of a permit is no defense to such a complaint.” (Emphasis added.)
Currie,
Enforcement Under Illinois Pollution Law,
70
Nw.
U.L.
Rev. 389, 478 (1975).
Landfill,
Inc. vs.
Pollution Control Board,
72
Ill.
2d 541, 559-560,
(1978), (Emphasis
added).
The Resident Group’s reliance upon Klaeren vs. Lisle,
202
III. 2d
164 (2002),
is
misplaced because
it involves a previously untested special use zoning
proceeding and
not the well established
NPDES Permit review process before the Agency and the
Board.
Unlike the special use zoning proceeding challenged
in Klaeren, the
NPDES
7
Printed on
Recycled Paper
Permit review process provides third-parties the opportunity to present technical data
and testimony in opposition to the
proposed permit.
It also affords third-parties the
opportunity to test the Agency’s conclusions during
a
hearing
before the
Board.
In this
case,
however, the
Resident
Group Petitioners chose to waive their rights to a full
hearing before the
Board.
See Transcript of February
10, 2005 Hearing.
http://www. ipcb.state. il. us/Archive/dscgi/ds. py/Get/File-46586.
As
a consequence, they
should
not now be heard to complain
that they were
not provided an opportunity to test
the Agency’s conclusions when they fully
and freely gave
it up.
The record
in this case is replete with
evidence that the Agency followed the
public notice and opportunity requirements minimally required the
Illinois Environmental
Protection Act and the
Board regulations.
See Tr. 1-214 and
R.
2186-2262.
More
importantly, unlike the proceeding challenged
in
Klaeren, the
proceeding
here does
not
need to
provide full due process protection because Petitioners are able to file a
citizen’s suit against Wauconda for actual or threatened violations of the
Illinois
Environmental
Protection Act.
See, 415 ILCS 31(d) and (e) (2004).
As the Court has
already stated
in
Landfill,
Inc.,
“a citizen’s statutory remedy
is a
new complaint against
the
polluter, not an action before the
Board challenging the Agency’s performance of its
statutory duties
in
issuing a
permit.”
Landfill,
Inc., Id. at 559-560.
If and when the
Resident
Group Petitioners are able to demonstrate with
reliable scientific data
rather
than scare tactics and innuendo that Wauconda
is
in violation of the
provisions of the
Illinois Environmental
Protection Act the
regulations thereunder, they can have their day
in
court.
8
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Wherefore, the
Resident Group’s due process claims in
PCB 05-59 should
be
dismissed with
prejudice.
IV.
THE
DECISION OF THE AGENCY IS AMPLY SUPPORTED BY THE
RECORD
As
noted above,
the August 23, 2004 decision by the Agency to
issue the
Modified
Permit was the
result of an unusually extensive and exhaustive
public
comment and Agency review process.
Tr.
1-214 and
R.
2186-2262.
The process was
initiated by an application
filed by Wauconda
along with supporting technical
documentation.
R.
829-1022,
1522-1579,
1597-1598, 1608-1676, 1774-1776,
1950-
1953, 201 5-2027, 2045-2048,
2054-2099.
Wauconda’s application
resulted
in
a draft
NPDES
Permit being developed by the Agency and
publicized for public review and
comment.
R.
194-230.
Due to significant public interest
in the draft Permit, the Agency
decided to hold
a public hearing, to allow public comment after the
hearing, to host a
meeting of local governmental agencies and to consult with other state agencies.
Tr. 1-
214 and
R.
1080-1102.
The Agency also sought and received additional supporting
documentation from Wauconda and also conducted additional field surveys of its
own to
verify the accuracy of technical information provided by various parties.
R.
829-1022,
1522-1579,
1597-1598, 1608-1676, 1774-1776,
1950-1953, 2015-2027, 2045-2048,
2054-2099,
2168-2171.
First,
it is important to note that the Agency’s focus
and statutory authority in
this
proceeding is very specific.
Pursuant to Section 39(a) of the
Illinois Environmental
Protection Act, “it shall be the duty of the Agency to
issue such a permit
upon proof by
the applicant that the facility,
equipment, vehicle, vessel, or aircraft will
not cause
a
9
Printed on Recycled Paper
violation of this Act or of regulations hereunder.”
415 ILCS 39(a) (2004).
Simply put,
the Agency’s duty and authority is
limited to determining whether the discharge, as
proposed, will cause
a violation of the water quality standards under the Act the Board
regulations.
If the Agency determines that adequate proof has been submitted by the
applicant, it has a duty to issue the requested permit or a permit with appropriate
conditions.
415 ILCS 39(a) (2004).
On
a third-party appeal of the
permit decision by
the Agency, the burden
is
on the Petitioners to demonstrate that the Agency’s decision
was
in
error.
415 ILCS 40(e)(3)
(2004).
During the
course of this exhaustive public review process, numerous issues and
concerns were
raised by the
petitioners.
A number of these
issues fell outside of the
narrow scope of the Agency’s review of Wauconda’s permit application.
In response to
the various concerns and
issues that were
relevant, however, the Agency modified the
draft Permit
in
several significant respects.
R.
2188-2189, 2195.
Additionally,
the
Agency issued
a Responsiveness Summary concurrent with
the
issuance of the
Modified
Permit that fully addresses all ofthe issues raised by the
Petitioners below.
R.
2211-2250.
The Agency’s Responsiveness Summary is also fully
supported by the
technical documentation submitted by Wauconda
as well
as independent field studies
done by the Agency.
R.
829-1022,
1522-1579, 1597-1598, 1608-1676, 1774-1776,
1950-1953, 2015-2027, 2045-2048,
2054-2099, 2168-2171.
In sum, the
Petitioners have claimed and Wauconda and the Agency have
responded as follows:
1.
The permit allows discharges of phosphorus and
nitrogen that cause,
have reasonable potential to cause, or contribute to violations of the water quality
10
Printed on Recycled
Paper
standards regarding offensive
conditions, 35
Ill. Adm. Code 302.203,
in violation of
40 CFR 122.44(d) and 35
III.
Adm. Code
309.141.
Tr.
61-76, 151-154,
180-197.
R.
249-310, 479-480, 566-568, 1023-1025,
1054-1057,
1069-1070,
1793-1795, 2102-
2113.
In response,
the Agency revised the
Permit to include phosphorus removal as
a
requirement.
R.
2186-2262.
The Agency also added
DO limits and Special Condition
17 requires Wauconda to conduct a study of DO and nutrients in Fiddle Creek with
a
possible permit reopening to add additional treatment requirements.
R. 2186-2262.
2.
The permit allows discharges that may cause,
have a reasonable potential
to cause,
or contribute to violations of state water quality standards regarding dissolved
oxygen (“DO”), 35
III. Adm. Code 302.206,
in violation of 40 CFR 122.44(d) and
35
III.
Adm. Code
309.141.
Tr. 57-60, 61-76, 97-101.
R.
163-164, 249-310, 441-444, 470-
480,
566-573,
578-828,
1023-1025,
1054-1057, 1069-1070,
1793-1 795, 2102-2113.
In
response, the Agency added
DO limits and
Special Condition 17 to the
Modified Permit
that requires Wauconda to conduct a study of DO and
nutrients
in
Fiddle Creek with
a
possible permit reopening to add additional treatment requirements.
R. 2186-2262.
3.
The permit and the
Illinois
EPA assessments did
not
comply with
Illinois
antidegradation rules protecting the
existing uses of the receiving
waters.
35
III. Adm.
Code
302.105(a).
Tr. 57-76, 97-101,
151-154;
R.
163-164, 249-310, 441-444, 470-478,
566-573,
1023-1 025, 1054-1057,
1793-1795, 2102-2113.
In
response, the Agency
revised the
Permit to include phosphorus removal as a
requirement.
R.
2211-2262.
The Agency also added
DO
limits and Special Condition
17 requires Wauconda to
conduct a study of DO and nutrients in
Fiddle Creek with
a
possible permit
reopening to
add additional treatment requirements.
R. 2186-2262.
The Agency correctly
noted that
11
Printed on
Recycled Paper
the technical reports submitted by Wauconda adequately demonstrate that the NPDES
discharge has not had an adverse impact on the downstream wetlands.
R.
2232,
referencing Wauconda technical submittals
in R.
829-1022.
The Agency has also
correctly noted that whatershed
and wetlands management are not appropriate to
mandate
in an NPDES permit.
R.
2233.
4.
The Illinois EPA assessment fails to include the analysis of alternatives
required
by 302.105(f).
Tr. 57-76,
97-101, 151-154;
R.
163-164, 249-310, 441-444,
470-478, 566-573,
1023-1 025,
1054-1 057,
1793-1 795, 2102-2113.
The Agency
Responsiveness Summary addresses this point by reference to a technical report
submitted by Wauconda.
R.
2234-2235,
referencing Wauconda technical submittals
in
R.
829-1022,
1950-1 953.
5.
Illinois EPA’s antidegradation assessment was insufficient under
302.105(f) by failing to consider impacts to biological communities, increased
loadings,
or alternatives or by providing a showing of benefits which fully justify the
project.
Tr.
57-76, 97-101,
151-1 54;
R.
163-164,
249-31 0, 441-444, 470-478, 566-573,
1023-1 025,
1054-1057, 1793-1795,
2102-2113.
In response, the Agency revised the
Permit to
include phosphorus removal as a requirement.
R.
2186-2262.
The Agency also added
DO limits and Special Condition 17 requires Wauconda to conduct a study of DO and
nutrients in
Fiddle Creek with a possible permit
reopening to add additional treatment
requirements.
R. 2186-2262. The Agency correctly
noted that the technical reports
submitted
by Wauconda adequately demonstrate that the
NPDES discharge
has not
had
an adverse
impact on the downstream wetlands.
R.
2232, referencing Wauconda
technical submittals
in
R.
829-1022, 2054-2099.
The Agency has also correctly noted
12
Printed on Recycled Paper
that whatershed and wetlands management are not appropriate to mandate
in an
NPDES
permit.
R.
2233.
6.
Illinois
EPA’s permit analysis,
including
its 2003 antidegradation
assessment, fails to address the impact of the discharge on the
Fox River, an impaired
waterway. Tr.61 -76;
R.249-31 0, 470-478,
566-573, 1793-1795.
In response, the
Agency correctly points out
in its
Responsiveness Summary that, “Due to the size of the
facility and distance from the
Fox River, the Agency made the determination that this
discharge would not
have
a measurable
impact on the Fox River.”
R. 2240.
This
conclusion is backed
up with
a technical analysis submitted by Wauconda’s Engineer.
R.
2054-2099.
7.
Fiddle Creek should
be considered
an impaired waterway for nutrients,
phosphorus and total nitrogen, and
low DO and should
be subject to federal
requirements for such waters.
Tr. 57-76, 97-101.
R.
163-164, 249-310,
441-444,
470-
480, 566-573,
578-828,
1023-1 025,
1054-1057, 1069-1070,
1793-1 795, 2102-2113,
2186-2262.
In
response, the Agency added
DO limits and
Special Condition
17 to the
Modified Permit that requires Wauconda
to conduct a study of DO and nutrients in
Fiddle Creek with
a possible permit reopening to add
additional treatment requirements.
R.
2186-2262.
The Agency also responded with
a thorough analysis of this issue in the
Responsiveness Summary.
R. 2243.
8.
In light of the wetland
impacts already experienced, Wauconda
should
be
required to develop,
with the concurrence of its wetland neighbors,
a wetland
management plan to maintain and restore the Fiddle Creek wetlands.
Tr. 48-52,
57-60,
180-97;
R.
20,
52,
231-239, 351-421, 441-444,
470-478,
578-828, 1069-1070.
In
13
Printed on Recycled Paper
response, the Agency revised the Permit to include
phosphorus removal
as a
requirement.
R.
2186-2262.
The Agency also added
DO limits and Special Condition
17 requires Wauconda to conduct a study of DO and nutrients in
Fiddle Creek with
a
possible permit reopening to add additional treatment requirements.
R.
2186-2262.
The Agency correctly noted that the technical reports submitted by Wauconda
adequately demonstrate that the
NPDES discharge has not
had an adverse
impact on
the downstream wetlands.
R.
2232, referencing Wauconda technical
submittals in
R.
829-1022, 2054-2099.
The Agency has also correctly noted that whatershed
and
wetlands management are not
appropriate to mandate in
an
NPDES permit.
R.
2233.
9.
Plant and algal growth along Fiddle Creek,
stimulated by excessive
nutrients,
has impeded the capacity of the
creek during
high flow conditions,
causing
flooding.
Wauconda should
be required to limit discharges,
both loading and
hydraulic,
to reduce such impacts and should
be required to contribute to the maintenance of such
waterway.
Tr.73-76,
110-115;
R.
142-144,
148-149, 441-444, 470-480,
569-573,
1054-
1057,
1069-1070.
In
response, the Agency revised the
Permit to include phosphorus
removal as a requirement.
R.
2186-2262.
The Agency also added
DO
limits and
Special Condition 17
requires Wauconda to conduct a study of DO and
nutrients in
Fiddle Creek with
a possible permit reopening to add additional treatment requirements.
R.
2186-2262.
10.
The IEPA permit fails to require Wauconda to
implement a pretreatment
program for its
industrial
dischargers.
Tr. 48-56, 61-73,
180-197;
R.
163-164,
169, 351-
421, 479-480, 487-488,
569-573, 578-828,
1045,
1048-1049,
1054-1057,
1069-1070,
1742,
1744-1746.
In
response, the Agency has required Wauconda to update
its
14
Printed on Recycled
Paper
annual
industrial
user survey so that the
need for pretreatment program can be
reevaluated.
See
Permit Special Condition 8.
R.
2257.
See also
R.
1522-1 579, 2054-
2099.
11.
Wauconda filed
a false application because
it failed to note on the
application that it accepts pretreated leachate waste from the Wauconda Sand & Gravel
Superfund Site.
R.
579-828.
While true that Wauconda did
not disclose this particular
fact on
its
application,
it is clear from
the
record as a
whole, that the Agency was
not
oblivious to the facts as they were disclosed by Wauconda
in other documents.
See,
e.g., R.
1522-1579.
In fact, to the contrary, the
record
clearly indicates that Agency
issued a
pretreatment permit to the Wauconda
Sand & Gravel site.
R.
2054-2099.
It
is
also clear that when the Superfund Site’s 2000 GPD are mixed with the
1.9
MGD of
waste flow to the Wauconda
WWTP from
all other sources,
any contaminants
in the
pretreated
leachate are diluted to
below detectable limits before they reach the WWTP.
R.
2168-2171.
Accordingly, even assuming the oversight on the
application was
intentional, which
is was not, it was not material.
Furthermore,
the Agency has required
Wauconda
to update
its
annual
industrial
user survey so that the
need for pretreatment
program can
be reevaluated.
See
Permit Special Condition 8.
R. 2257.
See also
R.
1522-1579, 2054-2099.
Wherefore, for all of the foregoing
reasons, Wauconda
respecifully requests that
the Board affirmed the decision of the Agency.
15
Printed on Recycled Paper
V.
SETTLEMENT EFFORTS
As the Board
is fully aware, Wauconda has reached an agreement with the
Governmental and Environmental
Group
Petitioners.
See Stipulation previously filed
herein
by Wauconda on behalf of Wauconda and the Governmental and Environmental
Group Petitioners.
Wauconda fully understands and accepts the
Board’s decision to
decline acceptance of the Stipulation without the opportunity to conduct its own
independent review.
Once
the
Board has completed its review of the
record, Wauconda
believes that the Board will find that the Agency’s decision
in this case is fully supported
by the
record.
Nevertheless,
since Wauconda
is bound by the terms of its agreement
with the Governmental and
Environmental
Group
Petitioners, Wauconda
is prepared to
accept
a
Board order in this case that is consistent with the Stipulation previously filed
herein.
February
28, 2005
-
1IamD.~itP~
Total Environmental
Solutions,
P.O.
631
E. Butterfield
Rd., Suite 315
Lombard,
IL
60148
630-969-3300
Rudolph Magna
Magna & Johnson
495
N.
Riverside
Dr., Suite 201
Gurnee, IL
60031
847-623-5277
16
Printed on Recycled
Paper
RECEIVED
CLERK’S OFFICE
FEB 282005
STATE OF ILLINOIS
Pollution Control Board
It
is hereby certified that true copies of the foregoing THE VILLAGE OF
WAUCONDA’S MOTION
TO DISMISS AND/OR FOR SUMMARY JUDGMENT AND
BRIEF
IN SUPPORT OF THE
NPDES
PERMIT DECISION OF THE AGENCY BELOW
were
hand delivered
or faxed
and mailed
by overnight mail,
on
February 28,
2005 to
each of the following persons:
Dorothy M. Gunn
Bradley P.
Halloran
Illinois
Pollution Control Board
James R.
Thompson Center
100W.
Randolph St., Suite 11-500
Chicago,
IL
60601
Percy L. Angelo
Russell
R.
Eggert
Kevin G.
Desharnais
Mayer, Brown, Rowe & Maw,
LLP
190
S.
LaSalle
St.
Chicago,
IL
60603
Albert Ettinger
Environmental
Law and Policy Center
35
E. Wacker Dr., Suite 1300
Chicago,
IL
60601
Rudolph Magna
Magna & Johnson
495
N.
Riverside
Dr.,
Suite 201
Gurnee, IL
60031
847-623-5277
Sanjay Kumar Sofat
James Allen Day
Division of Legal
Counsel
Illinois Environmental
Protection Agency
1021
North Grand Ave.
East
P.O.
Box
19276
Springfield,
IL
62794-9276
Bonnie
L. Macfarlane
Bonnie Macfarlane,
P.C.
106 W. State
Rd.
P.O. Box 268
Island
Lake, IL
60042
JayJ. Glenn
Attorney at Law
2275
Half Day
Road
Suite 350
Bannockburn, IL
60015
William
D. Seith
Total Environmental Solutions,
P.C.
631
E.
Butterfield Rd., Suite 315
Lombard,
IL
60148

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