REC~fl1ED

CLERK’S OFFICE

BEFORE

THE

ILLINOIS POLLUTION CONTROL BOAR)

DEC

22003

DES PLAINES

RIVER WATERSHED

)

ALLIANCE,

LIVABLE

COMMUNITIES

)

STATE OF ILLINOIS

ALLIANCE, PRAIRIE RIVERS

)

Pollution Control Board

NETWORK,

and

SIERRA CLUB

)

Petitioners

)

)

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY and VILLAGE OF NEW LENOX

Respondents

PCB~-

)

(APPEAL FROM IEPA

)

DECISION

GRANTING

NPDES

PERMIT)

PETITION FOR

REVIEW

OF A DECISION BY

THE

ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY

Pursuant to 415

ILCS

5/40(e)(1) and

35

Ill. Adm.

Code

Section 105, the Des Plaines

River Watershed Alliance, the Livable Communities Alliance, Prairie Rivers Network, and the

Sierra Club (collectively, “Petitioners”) hereby petition for review of the October 31, 2003

decision ofthe Illinois Environmental Protection Agency (“IEPA”) to grant a National Pollutant

Discharge Elimination System (“NPDES”) permit (Permit No. 1L0020559) to the Village ofNew

Lenox to increase its discharge of pollutants into Hickory Creek from its sewerage treatment

plant.

In support oftheir petition, Petitioners state:

Petitioners

1.

Des Plaines River Watershed Alliance is a not~for-profitorganization that is a

coalition oforganizations and individuals whose mission is to advocate for the Des Plaines River

and watershed. Members ofthe Des Plaines River Watershed Alliance live in the Des Plaines

1

V.

)

)

)

)

---

River watershed, including areas near Hickory Creek, and are concerned with pollution that

would affect their ability to enjoy recreation activities dependent on the ecological health of

Hickory Creek and the Des Plaines River including fishing, boating, canoeing, nature study and

hiking. Members ofthe Des Plaines River Watershed Alliance are adversely affected by

offensive conditions that occur as the result ofnutrients, pathogens and biological oxygen

demanding pollution discharged into Hickory Creek. Members ofthe Des Plaines River

Watershed Alliance are concerned about ongoing degradation ofHickory Creek and potential for

further degradation. (See Memo from Jim Bland. Ex. A, Transcript ofProceedings, April 24,

2002, Ex. B, Tr. 62-76)

2.

Livable Communities Alliance is a non-profit organization dedicated to educating

and empowering citizens with the knowledge necessary for the development and creation of

livable communities throughout Southern Cook and Will Counties. Members ofthe Livable

Communities Alliance live in New Lenox and other areas that will be directly affected by the

proposed discharge. (See Ex. B Tr.

58-62,

86-90 and the Statement ofthe Center for

Neighborhood Technology by William M. Eyring, P.E. April 24, 2003, Ex. C)

3.

Prairie Rivers Network is an Illinois not-for-profit corporation concerned with

river conservation and water quality issues in Illinois. It works with concerned citizens

throughout the state to address those issues that impact Illinois streams. Prairie Rivers Network

members live in the Hickory Creek and Des Plaines River watersheds and are concerned with

pollution that would affect their ability to enjoy recreation activities dependent on the ecological

health ofHickory Creek, the Des Plaines River and the Illinois River including fishing, boating,

canoeing, nature study and hiking. (See Ex. B, Tr. 19-28 and Post- Hearing Comments of Prairie

Rivers Network, May 23, 2002, Ex. D)

2

---

4.

The Sierra Club is a California not-for-profit corporation, which has among its

purposes to protect and restore the quality ofthe natural and human environment The Sierra Club

has over 20,000 members residing in the State of Illinois and has members who are adversely

affected by offensive conditions in Hickory Creek, the Des Plaines River and the Illinois River

and by any degradation ofHickory Creek, the Des Plaines River and the Illinois River that could

affect the uses ofthose waters. Sierra Club members live in the Hickory Creek and Des Plaines

River watersheds and many Sierra Club members are concerned with pollution that would affect

their ability to enjoy recreation activities dependent on the ecological health of Hickory Creek

and the Des Plaines River including fishing, boating, canoeing, nature study and hiking. Sierra

Club members are adversely affected by offensive conditions that occur as the result ofnutrients

and biological oxygen demanding pollution discharged into Hickory Creek, the Des Plaines and

other downstream waters.(See Ex. B Tr. 29-36; the May 23, 2002 letter ofCynthia Skrukrud, Ex.

E and the Statement ofCynthia Skrukrud, Ex. F)

5.

Members ofthe Petitioners, including Beth Wentzel, Kimberly Kowalski, Gaylyn

Grimm, William Eyring, James Bland, Jeff Swano, Joyce Korista, Albert Ettinger, and Cynthia

Skrukrud, appeared at the hearing held in this proceeding and submitted comments in opposition

to the permit. They and other members of Petitioners are so situated as to be affected by the

permit and by offensive conditions or other violations of water quality standards in Hickory

Creek, the Des Plaines River and the Illinois River. (Exhibits A

-

F).

Hickory Creek

6.

Hickory Creek flows through Will County and discharges into the Des Plaines

River near Joliet, Illinois. The stream has attracted attention because ofits exceptional ecology,

history and geology. According to a 1971 publication by the Illinois Natural History Survey,

3

---

Hickory Creek was at that time the outstanding stream in the Des Plaines River system. (Letter

ofJim Bland, January 19, 2003, Ex G) Hickory Creek has a low 7Q10 flow of

3.5

cubic feet per

second upstream of the New Lenox discharge and

5.3

cubic feet per second about

5

miles

downstream of the discharge.

7.

More recently, Hickory Creek was been identified as an impaired water by IEPA

in its August 2003 list of impaired waters. Potential causes of impairment listed by IEPA are

phosphorus, nitrogen, total dissolved solids, flow alterations, and suspended solids.

The

potential sources of impairment listed by IEPA are: municipal point sources, combined sewer

overflows, construction, land development, urban runoffistorm sewers, hydrologic modification,

habitat modification, and flow modification. Large offensive algal blooms have been reported in.

the creek. (Ex. B Tr. 22-6,

58,

62-3, 77,

85)

Statement of

Issues Raised

8.

On January

5,

2003, JEPA gave notice that it had made a tentative decision to

renew a NPDES permit to New Lenox to discharge into Hickory Creek. The renewed permit will

allow the New Lenox plant to increase its design average flow from 1.54 million gallons per day

to 2.516 million gallons per day. After reviewing a copy of the draft permit, Petitioners

commented through testimony given at a public hearing held on the draft permit on April 24,

2003 in the New Lenox Council Chambers. (See Ex. B). Petitioners further commented on the

permit with written comments (See Exhibits A, C, D, E, G).

9.

In those comments and that testimony, Petitioners raised legal and scientific

issues regarding flaws in the draft permit and in IEPA’s consideration of the draft permit

including that:

a.

The draft permit allowed discharges of phosphorus and nitrogen that

4

---

cause, have a reasonable potential to cause or contribute to violations ofthe water quality

standards regarding offensive condition, 35 Ill. Adm. Code 302.203, in violation of 40

CFR 122.44(d) and 35 Ill. Adm Code 309.141. Nutrients are the likely cause of algal

blooms and other unnatural plant growth that have been reported in the creek. Further,

Petitioners showed that Hickory Creek now violates state water quality standards

regarding offensive conditions because ofalgal blooms. In addition, Petitioners asked

that phosphorus discharges be monitored.

b.

The draft permit allows discharges that may cause, have a reasonable

potential to cause or contribute to violations of state water quality standards regarding

dissolved oxygen, 35 Ill. Adm 302.206, and copper, 35 Ill. Adm. Code 302.208(e) in

violation of40 CFR 122.44(d) and 35 Ill. Adm. Code 309.141.

c.

The draft permit and the studies and lack ofstudies that led to the creation

ofthe draft permit did not comply with Illinois’ antidegradation rules protecting the

existing uses ofthe receiving waters. 35 Ill. Adm Code 302.105(a). Studies were not

properly conducted to determine the potential effect ofthe draft permit on existing uses

ofthe stream. Further, IEPA took no steps to determine if existing recreational uses ofthe

stream might be impacted by the lack ofdisinfection ofwastewater from the plant in

months outside ofMay through October.

d.

Further, Petitioners urged that the IEPA take the steps necessary to comply

with 35 Ill. Adm. Code 302.105(c). The alternatives to allowing the increase in pollution

were not reasonably weighed prior to the issuance ofthe draft permit. Many ofthe costs

ofproceeding under the draft permit were ignored. In particular, the high cost of

retrofitting the plant to remove phosphorus after numeric standards are established, the

5

---

social and economic costs ofexpanding the plant in the center ofthe Village, and the

environmental effects of the kinds ofdevelopment that would be facilitated by the plant

expansion were not considered. Conversely, the estimated costs of alternatives (e.g. land

treatment and land application oftreated wastewater) to allowing the increased discharge

were unreasonably inflated and the costs ofminimizing nutrient discharges were not

considered. Petitioners requested a life cycle analysis be performed on all considered

alternatives as an appropriate economic assessment ofthe~costs to provide a better cost-

benefit analysis and to provide the public with a costs-per-treated-volume figure.

10.

Petitioners asked that all technically and economically reasonable measures to

avoid or minimize the extent of the proposed increase in pollutant loadings be incorporated into

the permit and that the permit be improved in a number ofrespects including that;

a) It provide for economically feasible controls on the discharge of nutrients

including phosphorus and nitrogen;

b) The limits in the permit be improved to prevent discharges that could cause or

contribute to violations of water quality standards regarding offensive conditions and

dissolved oxygen;

c) That proper biological studies be conducted to assure that the discharge would

not adversely affect existing uses ofthe stream;

d) That IEPA seriously consider whether the increased discharge was actually

necessary in light ofpotential alternatives; and

e) That IEPA seriously consider alternatives to allowing the levels ofpollutants

in the streams that would be allowed by the draft permit.

11.

On October 31, 2003, Illinois EPA issued the permit that is subject to the current

6

---

appeal.

(Ex. H) The final

permit, while

containing

some

changes from the draft

permit

that

addressed

a portion of the dissolved

oxygen problem

and the existing

violations

of

the total

dissolved

solid

standards, did

not remedy

the flaws discussed

above that were

raised

by

Petitioners

in oral comments

at the hearing and

written comments

made after the hearing.

To the

extent

the permit allows

a mixing zone, such

zone

has

not

properly

been designed

under

35 Ill.

Adm. Code 302.102.

The permit

does not comply with

35 Iii. Adm. Code

302.105 or

35

Ill.

Adm.

Code

309.141. In violation

of 35 Ill. Adm.

Code 309.142, IEPA

has not properly verified

that the

discharges

allowed by

the permit

will

not cause or contribute

to violations

of the

offensive conditions,

dissolved oxygen

or copper

standards.

12.

Nutrients, particularly

phosphorus,

are

a problem

in many Illinois

waters.

IEPA

did not

put phosphorus limits

in the permit.

Illinois EPA has

the authority

and the obligation

to

regulate

all pollutants

as necessary

to

prevent violation

of Illinois

water quality

standards

regarding

dissolved

oxygen (35 Ill. Adm.

Code 302.206)

and

offensive

conditions (35

Ill.

Adm.

Code

302.203).

Applicable federal regulations

explicitly

require

that NPDES permits

include

restrictions “necessary

to achieve

water quality

standards ... including

State narrative

criteria.”

40

CFR

122.44(d)(1).

These

federal

regulations

are applicable

under Illinois

law. 35 Ill.

Adm.

Code 309.141.

13.

IEPA resource

and policy protocols

(with respect

to in-stream

biology) have

been

deficient

in identifying and

protecting the

biological and

cultural value

of Hickory Creek;

historically the most

important

stream in the Chicago

Area and a resource

of national

significance.

IEPA Facilities Planning

procedures have

not been

sufficient to protect

Illinois

streams. Secondary

growth impacts

of sewage treatment

plant location,

design and expansion

are

routinely ignored

despite regional

and national evidence

which shows

significant

degradation

7

---

associated with impervious cover of land and expanding urban land use (i.e. 10 impervious

cover

=

impacted; 10

=

degraded; 20 impaired).

14.

Members of Petitioners will be affected adversely when pollution discharged

under the permit causes or contributes to the creation of low oxygen and offensive conditions in

Hickory Creek, the Des Plaines River and the Illinois River and otherwise injures the ecology of

Hickory Creek and downstream waters as a result of IEPA’s failure to require protective effluent

limits, monitoring, and a proper antidegradation analysis.

WHEREFORE, the Des Plaines River Watershed Alliance, Livable Communities

Alliance, Sierra Club, and Prairie Rivers Network ask that the Pollution Control Board set aside

the NPDES permit (No IL0020559) issued to the Village ofNew Lenox on October 31, 2003 as

not sufficiently protective of the environment and not in accord with law, and direct that the

Agency reconsider the permit in order to establish conditions and limits necessary to protect

Illinois waters, assure protection ofIllinois water quality standards, and comply with the Federal

Water Pollution Control Act, 33 U.S.C.

§

1251 et seq., and Illinois law.

Albert Ettinger (Reg. N~.3125045)

Ann Alexander (Reg. No. 06278919)

Counsel for Des Plaines River Watershed Alliance, Livable

Communities Alliance, Prairie Rivers Network and Sierra Club

Environmental Law and Policy Center

35 E. Wacker Dr. Suite 1300

Chicago, Illinois 60601

312

795

3707

December 2, 2003

8

---

please contact the Clerk’s Office

312/814—3629