BEFORE
THE
VILLAGE OF
LAKE BARRIN~
CUBA TOWNSHIP,
PRAIRIE
RIVERS
NETWORK, SIERRA CLUB,
BETH
WENTZEL and CYNTHIA SKRUKRUD,)
)
)
)
)
)
)
)
)
)
)
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and
VILLAGE
OF WAUCONDA,
Respondents.
Petitioners,
~iRi1R~A
Ii
~/~JTROL
BOA~6L~KS
OFFICE
W1.~
I
~JL~
~
MAR
—
7
20115
)
STATE OF ILLINOIS
)
Pollut~oflControl Board
PCB
05-55
(Permit Appeal-NPDES)
SLOCUM LAKE DRAINAGE
DISTRICT OF LAKE COUNTY,
ILLINOIS,
Petitioner,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and
VILLAGE OF WAUCONDA,
)
)
)
)
)
)
)
)
)
)
)
)
)
PCB
05-58
(Permit Appeal-NPDES)
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-N PDES)
ILLINOIS
ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE
OF WAUCONDA,
)
)
Respondents.
)
NOTICE
OF
FILING
TO:
See Attached
Certificate of Service
Please take notice that on March 7, 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 REPLY BRIEF
IN
SUPPORT OF THE
NPDES
PERMIT DECISION
OF THE AGENCY BELOW AND WAUCONDA’S MOTION TO DISMISS AND/OR FOR
SUMMARY JUDGMENT, which
is hereby served
upon you.
Dated:
March 7,
2005
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
BEI
VILLAGE
OF
LAKE
CUBA TOWNSHIP,
NETWORK, SIERRACLUB, BETH
WENTZEL and CYNTHIA
SKRUKRUD,
Petitioners,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY and
VILLAGE OF WAUCONDA,
Respondents.
RE C E
~V E
CLERK’S OFFICE
‘TION CONTROL BOARD
MAR
-7
2005
PCB
05-55
(Permit Appeal-NPDES)
STATE OF ILLINOIS
Pollution Control Board
SLOCUM LAKE DRAINAGE
DISTRICT OF
LAKE COUNTY,
ILLINOIS,
Petitioner,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY and
VILLAGE OF WAUCONDA,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
)
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,
)
JUDYBRUMME, 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 REPLY BRIEF IN
SUPPORT
OF THE
NPDES PERMIT DECISION OF THE AGENCY BELOW
AND WAUCONDA’S
MOTION TO DISMISS AND/OR
FOR SUMMARY JUDGMENT
“In
the State of Perfect, there exists a
little village called Perfect that has the
power to solve
all of the pollution problems for the
region.
There also exists a
state
agency in the State of Perfect that has the power,
with
a single permit,
to require the
Villageof
Perfect to fix all of the pollution problems that exist.
Money is
no object for the
little village,
because
in the Village of Perfect, money grows on trees.”
Such should
be the opening
line of the
Resident Group
and
Drainage District
briefs, since only in such a fantasy-land could their petitions prevail.
This case
is
not
about landfills or flooding or drinking water wells or septic systems or past enforcement
actions against any of the
parties to this
case.
No,
not even
a Walgreen’s commercial
can save the Petitioners because this case
is about one very narrow question:
Will
Wauconda’s discharge, as proposed,
meet the applicable water quality standards?
The
Agency answered that question
in the affirmative when
it issued the Modified
Permit,
Printed
on Recycled Paper
and that decision
is well supported by the
record in this case.
See Wauconda’s initial
Brief.
I.
THE
NPDES
PERMIT IS NARROWLY FOCUSED
The Resident Groupand the
Drainage District would have this Board
believe that
Wauconda and the Agency havethe ability to solve all ofthe region’s pollution issues
with
a single permit.
As this Board well knows, there are separate environmental
laws,
policies,
procedures and programs to deal with
each of the issues raised by the
Resident Group and the
Drainage District.
See 415 ILCS 5/1
et seq.
(2004).
A.
Landfills Are Separately Regulated
The construction, operation and closure of all
landfills falls under Section
21
of
the
Illinois
Environmental
Protection Act (“Act”), 415 ILCS 5/21
(2004), as well as a very
comprehensive set of Board
regulations.
See 35
III. Adm. Code
Parts 807-832.
Older
landfills that were constructed
prior to the
implementation of the design
criteria set forth
in 35 III. Adm. Code
Part 811
are frequently the subject of actions by the state and
federal environmental agencies. See,
e.g.,
Wilsonville vs. SCA Services,
86
III.2d I
(1981);
East Moline v.
Pollution Control
Board,
136
III. App. 3d 687
(1985);
People
v.
Brockman,
148
III.
2d 260 (1992);
EPA v.
Pollution Control Board, 252
III. App. 3d 828
(1993); ESG
Watts
v.
Pollution Control Board, 282
III. App. 3d 43 (1996).
As
Petitioners have discussed
in their Petitions and briefs, the
issues related to
the
Wauconda Sand & Gravel and Tarkowski landfills already have
been or are being
addressed
in other proceedings.
Resident Group Brief, pp.10-13.
Drainage District
Petition, Section
F.
That the Wauconda Sand & Gravel and Tarkowski landfills may
2
Printed
on Recycled Paper
have an adverse
impact
on ground water in the vicinity of those sites,
bears absolutely
NO relevance to the
issuance of an NPDES permit to discharge to surface water.
Petitioners’ attempts to
make a relevant connection to the Wauconda
WWTP fail
since
both Wauconda and the Agency tested Wauconda’s influent and effluent for
industrial
contaminants.
R.
829-1022,
1522-1579,
1597-1598, 1608-1676,
1774-1776,
1950-1953, 2015-2027, 2045-2048, 2054-2099, 2168-2171.
The only industrial
contaminant that was found
in any quanity was copper.
The Agency dealt with this
finding by including a
limit for copper in the
Modified Permit.
R.
2252-2254.
Since the procedures and mechanisms already in
place for dealing with issues
relating to the Wauconda Sand & Gravel and Tarkowski Superfund sites are being
utilized,
Petitioners’ attempts to raise those issues in the context of an unrelated
wastewater discharge permit are duplicative and frivolous and should
be dismissed as
such.
B.
The
NPDES Permit
Is Not an Enforcement Tool
As this
Board and the
Illinois
Courts
have made very clear,
an Agency permit
decision
may
be used as a substitute for an enforcement action for violations of the
Act.
As the Appellate Court stated
in
EPA
v.
Pollution Control Board, 252
III. App. 3d
828, 830 (1993),
The Board heard evidence
and
reasonably determined
that the Agency had denied the requested
permits solely
on the basis of alleged violations of the Act.
Additionally,
the Board was correct in
noting
in
its written order that the procedures for permit denial
and enforcement of the Act are
separate and
distinct. (Ill.
Rev. Stat. 1991, ch.
111
1/2, par. 1039(a) (permit denial);
Ill.
Rev. Stat.
1991, ch.
1111/2,
par.
1031
(enforcement).)
Therefore, we conclude the Board properly drew
the
inference that the Agency improperly used the permit denial process as a substitute for the
enforcement procedure.
(Emphasis added.)
Much
is made in
Petitioners’ briefs about past violations of the Act
and
regulations by Wauconda.
Resident
Group Brief,
pp.
17-24; Drainage Ditch Brief,
3
Printed
on Recycled Paper
Section V.
As the Petitioners point out, however, those issues have been dealt with
through appropriate enforcement actions by the Agency and the Illinois Attorney
General’s Office.
Petitioners rely
heavily upon new language
in Section 39(a) of the Act, which
states:
In making
its determinations
on permit applications under this Section the Agency
in~
consider
prior adiudications
of noncompliance with this Act by the applicant that involved a release of a
contaminant into the environment.
In granting permits, the Agency may impose reasonable
conditions specifically related
to the applicant’s past compliance history with this
Act as
necessary to correct, detect, or prevent noncompliance.
(415
ILCS 5/39(a) (2004),
emphasis added.)
Importantly, this new language
is
permissive and not mandatory.
Secondly,
it only allows the Agency to consider
adiudicated violations of the Act,
i.e.,
ones which
have been resolved through Court or
Board Order.
When viewed
in the context of cases like
ESG Watts
v.
Pollution Control
Board, 286
III. App. 3d 325, 335 (1997), the reason for this qualifier becomes clear.
(Citing Martell v.
Mauzy, 511
F.
Supp. 729 (N.D.
III.
1981), for the proposition that an
Agency permit reviewer’s reliance upon violations that are only alleged and not
adjudicated, violates applicant’s due process rights.)
Finally, to the extent the Agency
~
consider past adjudicated violations,
its authority is limited to imposing
reasonable
conditions specifically related to the violations.
Importantly, this language does
not authorize the Agency to deny
the permit
entirely, but rather to simply impose reasonable conditions.
Since Wauconda’s past
violations
had already been resolved through the construction of certain improvements
at the WWTP
(see
R. 2271 -2285), the Agency saw no need to impose additional
conditions
in the
permit.
Further, Petitioners’ suggestion to the contrary
notwithstanding, it would have been inappropriate for the Agency to consider allegations
4
Printed on Recycled
Paper
regarding
the
plant “foam out” that were
pending, but not
yet adjudicated.
Nevertheless,
the Agency did add
Special Condition 8
to the permit, requiring Wauconda to update its
industrial
user survey annually.
R.
2257.
Well after the permit was issued, the Agency
and the Attorney General’s Office resolved the pending allegations with Wauconda
in
the form of a Consent Order.
See
Petitioners’ Group Exhibit G.
Among other things,
the Order requires Wauconda to “implement and
enforce a pretreatment program.”
Accordingly, to the extent Petitioners
have
raised
legitimate concerns regarding
industrial
discharges to Wauconda’s WWTP, they have all
now been resolved through
appropriate means.
Petitioners’ attempts to re-raise issues here that already have
been dealt with
in
other proceedings are therefore duplicative and frivolous and should
be dismissed as
such.
C.
The
NPDES Permit
is Not a Watershed Management Tool
Petitioners
have argued that the
NPDES Permit should
be used as a mechanism
for dealing with
all ofthe flooding
problems in the
Fiddle Creek watershed.
Resident
Group Brief,
p. 31;
Drainage District Brief, Section
C.
As the Agency correctly notes
in
its Responsiveness Summary, however,
it is the
Lake County Stormwater Management
Commission (“SMC”) and not the Agency that has the authority to deal with watershed
management issues.
R.
2226-2228.
See
Lake County Watershed Development
Ordinance, Article
I, Section A.
Prior to submitting its application
to the Agency,
Wauconda sought
the approval of the SMC to increase
its
discharge from
1.4
MGD to
2.4
MGD.
R.
3.
SMC noted that, “At the appropriate time,
the Village will
apply to SMC
for a Watershed
Development Permit, due to the proposed additional effluent discharge
5
Printed on Recycled Paper
and floodplain construction within Fiddle Creek, a
flood
prone area.”
R.
3.
Further,
SMC noted that, “The Village
would work with
SMC’s Wetland Specialist,
Joe Hmieleski,
on the design ofthe outfall so that the
additional effluent discharge could
potentially
improve the functionality of the
receiving
(and presently degraded) wetlands.”
Waconda
also submitted technical reports to the Agency in response to the flooding concern that
demonstrated that the
increase flow from the WWTP would have
no adverse
impact on
the receiving
stream.
R.
829-1022.
Neither the NPDES Permit nor this appeal
is the appropriate mechanism for
challenging SMC’s
review of Wauconda’s
Modified Permit.
See
Lake County
Watershed
Development Ordinance, Article
V, Section B.
Accordingly, Petitioners’
attempts to collaterally attack the SMC’s
determination here are duplicative and
frivolous and should
be dismissed as such.
D.
This
Is
Not A Permit Revocation Proceeding
Petitioners would have
us believe that they are allowed to use this proceeding as
a
means of revoking Wauconda’s existing
NPDES Permit.
As the
Board
is well
aware,
however, there is only one procedure set out
in the Act for that purpose,
and this is
not
it.
See 415 ILCS
5/33(b) (2004).
As Section 33(b) of the Act makes clear, the
Board
has the authority to revoke a permit as a form of relief
in an enforcement action for
violations of the Act.
(415
ILCS 5/33(b) (2004))
That same authority does not exist,
however,
in
permit appeal
proceedings.
See 415 ILCS 5/40 (2004).
If and when
Petitioners are able to develop an enforcement case that
is not duplicative
and frivolous
nor merely based
upon scare tactics and innuendo, then and only then may Petitioners
seek to have Wauconda’s NPDES
Permit revoked.
6
Printed on Recycled
Paper
E.
This
is Not a
303(d)
Proceeding
Both the
Resident Group
and Drainage District seek to have the
receiving
stream
in this case,
Fiddle Creek, declared an impaired water.
Resident Group
Petition, pp. 28-
32;
Drainage
District Petition,
Sections III and
IV.
By making such
a request in this
proceeding, however,
Petitioners ignore the fact that there
is
a well settled process for
identifying and listing impaired waters,
and this is not
it.
As the Agency notes on
its
webpage:
Section 303(d) of the federal Clean Water Act requires states
to
identify waters that do
not meet applicable water quality standards or do not fuuy-supporttheirdesignated uses.
States
are required to submit a prioritized list of impaired waters,
known as the 303(d) List, to the
U.S.
Environmental Protection Agency for review and approval.
The
CWA also requires that a TMDL
be developed foreach pollutant of
an impaired water body.
Illinois EPA
is responsible for
carrying out the mandates
of the Clean Water Act for the state of Illinois.
The establishment of a Total Maximum Daily Load sets the pollutant reduction goal
necessary to improve impaired waters.
It determines the load, or quantity,
of any given pollutant
that can be allowed
in
a particular water body.
A TMDL must consider all potential
sources of
pollutants, whether point or nonpoint.
It also takes into account a margin of safety, which reflects
scientific uncertainty,
as well as the effects of seasonal
variation.
Developing TMDLs in a watershed begins with the collection of vast amounts of data on
factors including water quality,
point source discharge, precipitation,
soils, geology,
topography,
and land use (construction, agriculture,
mining, etc.)
within that specific watershed.
All impaired
water-body segments within the watershed are identified, along with the potential pollutants
causing the impairments.
Next, Illinois EPA determines the tools necessary to develop the TMDL.
In
most cases,
computer models are used
to calculate pollutant loads.
The appropriate model or models are
selected based on the pollutants of concern, the amount of data available, and the type of water
body.
Once the model
is selected, the data collected for the watershed are entered, and
the
model is calibrated andverified
so that the computed values match those of known field data.
The model can then
be used to develop different scenarios, by first determining the amount of
specific pollutants
each source contributes, then
calculating the amount each pollutant needs to
be reduced,
and finally specifying how the reduced pollutant load would be allocated among the
different sources.
After the reduced pollutant loads have been determined,
an implementation plan is
developed forthe watershed spelling out the actions necessary to achieve the goals.
The
plan
specifies limits for point source discharges and recommends
best management practices (BMPs)
for nonpoint sources.
ft also estimates associated costs and
lays out a schedule for
implementation.
Commitment to the implementation
plan by the citizens who live and work
in the
watershed is essential to success
in reducing
the pollutant loads
and improving water quality.
See Agency website at:
http://www.epa
.
state. iI. us/water/tmd l/tmd I-process, html.
7
Printed on Recycled Paper
The procedure for seeking to have
a water body declared
“impaired”
is clearly set
forth in Section 303(d) of the Clean Water Act and
regulations thereunder.
33 USC
1251
etseq.
and 40 CFR Part 130.
As explained above,
through
an elaborate process
of collecting and analyzing data on various surface water segments, the Agency
determines whether the segments are “impaired” and therefore
require the
establishment of Total Maximum
Daily Loads (“TMDLs”).
After the initial submittal
to
USEPA, the Agency is required to update the list every two years.
See 40 CFR
130.7(b).
The Agency has established
a
process for accepting surface water data from
the
general public and will review and analyze the data
if it meets the requirements set
forth
in 40 CFR Part 130.
See Agency web page at:
http://www.epa.state. il
.
us/water/tmdl/tmd I-process. html.
If Petitioners feel the Agency should
be listing Fiddle Creek as an
impaired water,
they should
Petition the Agency directly and
provide sufficient technical
data to support
their claim.
Further, if Petitioners feel that the Agency is not responding appropriately to
their request, the appropriate forum
in which to
pursue their appeal is the
Regional
Administrator for USEPA
Region
5.
See 40 CFR 130.7(d).
Similarly, the
Board regulations set forth
a very specific process for designating a
surface water as an “Outstanding Water Resource”.
See
35
III. Adm. Code
102.800,
et
seq.
Notably, that process begins with
a petition before the
Board.
See 35
III. Adm.
Code
102.810.
The Board rules are also specific as to the contents of the
Petition
and
the
required supporting
documentation.
See 35
III. Adm. Code
102.820.
The instant
proceeding is clearly not an OWR Petition, and even
if it were, Petitioners’ petitions fail
to meet the
bare
minimum requirements set forth
in
35
III. Adm. Code
102.820.
8
Printed on Recycled
Paper
II.
PROCEDURAL DUE PROCESS
HAS
BEEN
SATISFIED
As Wauconda’s and the Agency’s initial briefs make clear, to the extent that
procedural due process applies to this type of proceeding,
it has been satisfied
by the
opportunity to test the sufficiency of Wauconda’s application
and of the Agency’s
conclusions during
a hearing
before the
Board.
See
Illinois
Environmental
Protection
Agency v.
Pollution Control Board,
115
III.
2d 65, 70(1986):
Unlike the procedures required under sections 39.2 and 40.1,
the permit process under sections
39(a) and 40(a)(1) does not require the Agency to conduct any hearing.
Consequently, ~
procedures, such
as cross-examination,
are available for the applicant to test the validity of the
information the Agency relies upon in denying its application. As the appellate court noted, the
procedure before the Agency has none of the characteristics of an adversary proceeding. The
safeguards of a due process hearing are absent
until the hearing before the Board.
We therefore
agree with the appellate court’s holding that the Board
is not required to apply the manifest-
weight test to
its review of the Agency’s decision denying
a
permit.
(Emphasis added.)
Regrettably, Petitioners chose to waive their rights to a contested
hearing
in this
case,
so they cannot now be heard to complain
that due process was
not
afforded them.
Furthermore,
if and when
Petitioners are able to actually support their hysterical
claimswith defensible data, they will have their day in court uponthe filing ofa citizen’s
suit for violations of the Act.
See
Landfill,
Inc. v.
Pollution Control Board,
72
IlI.2d
541,
559-560 (1978).
III.
THE
DECISION OF
THE AGENCY IS AMPLY SUPPORTED BY THE RECORD
Nothing in the
Petitioners’ briefs
is any more persuasive than their unsupported
and unsubstantiated
ramblings
in the
record before the Agency.
All of the legitimate
9
Printed on Recycled Paper
substantive concerns raised below were adequately addressed with either permit limits
or special conditions in the
Modified
Permit.
See
R.
2210-2262.
Accordingly,
Wauconda stands by its and the Agency’s initial
briefs.
Wherefore, for all of the foregoing reasons, Wauconda
respectfully requests that
the
Board affirm the decision of the Agency.
IV.
ORAL
ARGUMENT
Should the
Board desire it and should there be enough time for same, Wauconda
welcomes the opportunity for oral argument in
this case pursuant to 35
III. Adm. Code
101.700.
February
28,
2005
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
10
Printed on Recycled
Paper
RE
CE ~J
V ~
LERK’S OFFICE
MAR
-
72005
STATE
OF
ILLINOIS
Pollution Control Board
It
is hereby certified that true copies
LI
1~~~~Jing
THE VILLAGE OF
WAUCONDA’S
REPLY BRIEF
IN
SUPPORT OF THE
NPDES PERMIT DECISION OF
THE AGENCY BELOW AND WAUCONDA’S MOTION TO DISMISS AND/OR FOR
SUMMARY JUDGMENT were
hand delivered or faxed and mailed by overnight mail, on
March
7, 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.
106W. 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
