VILLAGE OF LAKE BARRINGTON,
CUBA TOWNSHIP, PRAIRIE RIVERS
NETWORK, SIERRA CLUB, BETH
WENTZEL and CYNTHIA SKRUKRTJID,
VS.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY AND
VILLAGE OF WAUCONDA,
NOTICE OF FILING
TO:
See Attached Certificate of Service
Please take notice that
on September 17, 2004, I filed with the Illinois
Pollution Control
Board an original and nine copies of this Notice ofFiling, Appearances and Petition for Review
of a Decision by the Illinois Environmental Protection Agency, copies of which are attached and
hereby served upon you.
Dated:
September 17, 2004
Percy L. Angelo
Russell
R. Eggert
Kevin G. Desharnais
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, Illinois 60603
312-782-0600
Albert Ettinger
Environmental Law and Policy Center
35 East Wacker Drive,
Suite 1300
Chicago, Illinois
60601
312-795-3707
Percy. L.it~elo
One ofthe attorneys for the Village of
Lake Barrington and Cuba Township
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLEJRK’S OFFICE
Petitioners,
)
)
SEP172004
STATE
OF ILLiNOIS
POIlut~~~
Control Board
~
)
(APPEAL FROM JEPA DECISiON
)
GRANTING NPDES PERMIT)
)
)
)
)
)
)
Respondents.
This DOCUMENT HAS BEEN
PRINTED
ON RECYCLED PAPER
CERTIFICATE OF SERVICE
Kevin G. Deshamais, an attorney, hereby certifies
that a copy ofthe foregoing Notice of
Filing, Appearances and Petition for Review ofa Decision by the Illinois Environmental
Protection Agency was served on the persons listed below by First Class U.
S. Mail, proper
postage prepaid, on September 17, 2004.
Village ofWauconda
101
North Main
Street
Post Office Box 785
Wauconda, IL
60084
Division ofLegal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box
19276
Springfield, Illinois
62794-9276
/evin
G. D
h
ais
Percy L. Angelo
Russell R. Eggert
Kevin G. Deshamais
Mayer,
Brown, Rowe &
Maw LLP
190 South LaSalle Street
Chicago, Illinois 60603
312-782-0600
THis
DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Petitioners,
VILLAGE OF LAKE BARRINGTON,
CUBA TOWNSHW, PRAIRIE RIVERS
NETWORK, SIERRA CLUB, BETH
WENTZEL and CYNTHIA SKRUKRUD,
VS.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY AND
VILLAGE OF WAUCONDA,
Respondents.
CLERK’S OFFICE
SEP
17
2OO~
)
STATE OF
ILLINOIS
)
PCB.Q4~O~~tI0fl
Control Board
)
(APPEAL FROM JEPA DECISION
)
GRANTING NPDES PERMIT)
)
)
)
)
)
)
APPEARANCES
We, the undersigned attorneys, hereby enter our appearances as counsel on behalf
ofPetitioners Village of Lake Barrington and Cuba Township in this matter.
Respectfully submitted,
Dated:
September 17, 2004
Percy L.
Angelo
Russell R. Eggert
Kevin G. Desharnais
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, Illinois 60603
312-782-0600
~i4d
Percy L. Ajigelo
This DOCUMENT HAS BEEN
PRINTED
ON RECYCLED PAPER
BEFORE THE ILLINOIS
VILLAGE OF LAKE BARRINGTON,
CUBA TOWNSHIP, PRARIE
RIVERS
NETWORK, SIERRA CLUB, BETH
WENTZEL and CYNTHIA SKRUKRUD,
Petitioners,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY AND
VILLAGE OF WAUCONDA,
Respondents.
POLLUTION CONTROL
BOARIRECE~VED
CLERK’S OFFICE
SEP
17
200’i
STATE OF ILLINOIS
)
PoUution Control Board
PCBJ~4~’2~
ç
)
(APPEAL FROM IEPA DECISION
)
GRANTING NPDES PERMIT)
)
)
)
)
)
)
APPEARANCE
I, the undersigned attorney, hereby enter my appearance as counsel in this matter
on behalfof Petitioners Prairie Rivers Network, Sierra Club, Beth Wentzel and Cynthia
Skrukrud.
Dated:
September
17, 2004
Albert Ettinger
Environmental
Law and Policy Center
35 East Wacker Drive, Suite
1300
Chicago, Illinois 60601
312-795-3707
Respectfully submitted,
THIS DOCUMENT
HAS BEEN
PRINTED ON
RECYCLED PAPER
BEFORE
THE ILLINOIS POLLUTION
CONTROL BOARD
E
C E ~V E
CLERK’S OFFICE
VILLAGE OF LAKE BARRINGTON,
)
SEP
17
200
CUBA TOWNSHTP, PRAIRIE RIVERS
)
NETWORK, SIERRA CLUB, BETH
)
STATE
OF ILLINOIS
WENTZEL AND CYNTHIA SKRUKRUD)
Pollution Control
Board
)
Petitioners
)
PCBJ~34~2~
~‘
~
)
(APPEAL FROM JEPA DECISION
VS.
)
GRANTING NPDES PERMIT)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY AND
)
VILLAGE OF WAUCONDA,
)
)
Respondents.
)
PETITION FOR
REVIEW
OF A DECISION BY THE
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
Pursuant to 415
ILCS
5/40(e)(1)
and 35
Ill. Admin.
Code Section
105, the Village of
Lake Barrington (“Lake Barrington”), Cuba Township, Prairie Rivers
Network (“Prairie
Rivers”), the Sierra Club, Beth Wentzel and Cynthia
Skrukrud
(collectively “Petitioners”)
hereby petition for review ofthe August 23, 2004 decision of the Illinois Environmental
Protection
Agency (“IEPA”) to issue a modified
National Pollutant Discharge Elimination
System (“NPDES”) permit (Permit IL 0020109) to the Village ofWauconda (“Wauconda”) to
increase its discharge ofpollutants
into Fiddle Creek tributary to the Fox River from its
Wastewater Treatment Plant (“WWTP”).
Ex. A.
In support of their petition, Petitioners state as
follows:
1.
The Village ofLake Barrington
is a municipal corporation existing under the laws
of the State ofIllinois
and located in Lake County.
It borders Fiddle Creek on the north
and is
immediately downstream of the Wauconda discharge.
Lake Barrington and its residents are
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directly impacted by the Wauconda WWTP discharge and its residents use and enjoy Fiddle
Creek and its wetlands, the Fox River and the Illinois River for recreational and other activities.
2.
Cuba Township
is a township existing under the laws of the State ofIllinois and
located in
Lake County.
Fiddle Creek runs through Cuba Township downstream of the
Wauconda discharge.
Cuba Township and its
residents are directly impacted by the Wauconda
WWTP discharge and its residents use and enjoy Fiddle Creek and its
wetlands, the Fox River
and the Illinois River for recreational and
other activities.
3.
Prairie Rivers Network is an Illinois not-for-profit corporation concerned with
riverconservation
and water quality issues in
Illinois.
It works with concerned citizens
throughout the state to address those issues that impact Illinois streams.
Prairie Rivers
members
live
in the Fiddle Creek and Fox RiverWatersheds and are concerned with pollution that would
affect their ability to enjoy recreation activities dependent on the ecolc~gicai
health ofFiddle
Creek and its associated wetlands
and on the Fox River and the Illinois River, including fishing,
boating, canoeing,
nature study and hiking.
4.
The SierraClub is a California not-for-profit corporation, which has among its
purposes to
protect and restore the quality of the 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
Fiddle Creek, the Fox River and the Illinois River
and by any degradation of Fiddle Creek, the Fox River and the Illinois River that could affect the
uses ofthose waters.
Sierra Club members live in the Fiddle Creek and Fox 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 Fiddle Creek
and the Fox River
including
fishing, boating, canoeing,
nature study and hiking.
Sierra Club members are
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2
adversely affected by offensive conditions that occur as the result of nutrients and biochemical
oxygen demanding pollution discharged into Fiddle Creek, the Fox River and other downstream
waters.
5.
Beth Wentzel is
a member of and a watershed scientist with the Prairie Rivers
Network and
submitted comments
on the proposed permit.
6.
Cynthia Skrukrud is a member ofthe Sierra Club and a clean water advocate for
that organization.
She presented testimony at the public
hearing in this matter and submitted
comments on the proposed permit.
7.
Members of the Petitioners, including Albert Ettinger, Cynthia Skrukrud, Beth
Wentzel and Evan Craig, and representatives and elected officials ofLake Barrington and Cuba
Township on behalfof Lake Barrington and Cuba Township and their residents, including Lake
Barrington Trustee Kevin
C. Richardson, and their attorneys and consultant James IE. Huff, P.E.
of Huff & Huff, Inc., participated in
the hearing held in
this proceeding on
September 9, 2003,
and submitted comments in opposition to the permit during the public comment period.
See e.g.
Exs. B, C, D and E; Tr.
57-76,
97-102, 140-146, 150~154.1They and other members of
Petitioners, and residents ofLake Barrington and Cuba Township are so situated as to be affected
by the permit and by offensive conditions or other violations of water quality standards
and of
the Environmental Protection Act in
Fiddle Creek and its associated
wetlands, the Fox River and
the Illinois River.2
References to Tr.
—,
are to the public
hearing transcript of September 9, 2003.
2
Numerous residents of Lake Barrington and Cuba
Township submitted comments
and provided testimony as
well.
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3
Fiddle Creek
8.
Fiddle Creek flows through Lake County and comprises wetlands and channeled
flow areas eventuallyjoining Slocum Lake Drain and then entering the Fox Riverjust south of
Fox River Valley Gardens.
The Wauconda WWTP discharges to Fiddle Creek at Anderson
Road, approximately 2.4 miles from the Fox River.
The Lake County Forest Preserve District
(“LCFPD”) Fox RiverPreserve is
adjacent to Fiddle Creek on the south for some 2,600 feet
downstream ofthe discharge.
Lake Barrington is located immediately
south ofFiddle Creek,
from Anderson Road west, downstream of the WWTP discharge.
There are no other permitted
dischargers to Fiddle Creek.
9.
The Wauconda WWTP originally discharged to Bangs Lake Drain Creek which
flows into Slocum Lake, exits through the Slocum Lake Drain and joins the Fox River.
Because
the WWTP discharge was causing high levels of eutrophication in
Slocum Lake, in
1983 the
Pollution Control Board required that the discharge be moved from Slocum Lake.
Wauconda
moved the discharge to its present location in Fiddle Creek.
Tr.
15-16.
See Ex.
G.
Statement of Issues Raised
10.
The IEPA issued notice that it had made a tentative decision to modify the
NPDES permit forWauconda to allow its WWTP to increase its
design average flow from
1.4
million gallons per day
(“MGD”) to 1.9 MGD in Phase
1
and to 2.4 MGD in Phase 2, with
increases in design maximum flow from 4.0 MGD to 5.963 MGD (Phase I) and to 7.93 MGD
(Phase 2).
A public hearing was held September 9, 2003 at which Petitioners
and many oftheir
members, representatives and residents testified and
si~bmitted
exhibits and comments.
Additional comments were submitted by Petitioners and their members, representatives and
residents before the close of the public comment period.
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4
11.
In their comments
and testimony, Petitioners raised legal and scientific issues
regarding flaws in
the draft permit and in IEPA’s consideration of the draft permit including the
following (See references in paragraph 7, above):
(a)
The permit allows discharges ofphosphorus and nitrogen that cause, have
reasonable potential
to cause, or contribute to violations of the water quality standards
regarding offensive conditions, 35
III. Adm. Code 302.203, in
violation of 40 CFR
122.44(d) and 35 Ill.
Adm. Code 309.141.
(b)
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 Ill. Adm.
Code 302.206, in violation of 40 CFR 122.44(d) and 35 Ill.
Adm. Code 309.141.
For example, Huff & Huff, consultants for Lake Barrington and
Cuba Township, monitored Fiddle Creek forDO at three locations:
just below the
Wauconda outfall, just before the merger with the Slocum Lake Outlet
and at Roberts
Road.
DO violations occurred at Anderson Road and downstream on four out of five
monitoring occasions.
These are thus existing measured water quality violations to
which Wauconda’s effluent is clearly contributing, in
violation of the applicable
standards.
Nitrates plus nitrites were found at levels above IEPA’s criteria for use
impairment.
(E.g.
18 mgIL vs.
7.8 mg/L).
See e.g.
Tr. 57-76; Ex. B.
See also Tr.
79
(Lake County Forest Preserve monitoring).
Any increased discharge would exacerbate
these existing violations and deleterious conditions.
(c)
The permit and the assessments, and importantly, the lack of assessments,
that led to the creation of the draft permit, did not comply with illinois antidegradation
rules protecting the existing uses ofthe receiving waters.
35 Ill. Adm. Code 302.105(a).
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5
Assessments were not properly conducted to determine the potential effect ofthe draft
permit on
existing uses, including impacts causing a deterioration to the aquatic
community as it existed on November 28,
1975.
Among other flaws, the only water
quality data referenced in
the 2003
antidegradation assessment prepared by IEPA, Ex. F,
is a September 15,
1993, facility stream survey by the Illinois EPA.
This survey found
“fair environmental conditions in Wauconda Creek with minorimpact from the
Wauconda STP (sewage treatment plant) discharge.”
This survey identified elevated
levels of conductivity, nitrate plus nitrite, phosphorus, sodium, potassium, boron,
strontium,
and oil downstream ofthe Wauconda outfall.
Despite the IEPA findings,
not
one ofthese contaminants was evaluated under the antidegradation assessment.
No
discussion was included of conditions as ofNovember 28, 1975, the relevant date for
antidegradation analysis.
See e.g. Ex. G.
In addition, surveys have shown that the Fiddle
Creek wetland has pollutant sensitive species (lake sedge, jeweiweed,
blue verain), Tr.
57-76, as well as an endangered fish, the starhead top minnow, Ex.
H, yet the impact of
increased pollutant loading on these species has not been considered.
Testimony showed
that nutrient enrichments have a detrimental effect on plant communities, including
rapidly growing, invasive and weedy species, with negative impacts on DO.
There was
no consideration ofthe impact from the increased permitted loadings on
existing uses or
water quality, or assurance that technically and economically reasonable measures have
been taken to avoid or minimize impacts, and no assurances that the activity causing the
increased loading will benefit the community at large.
302.105(c).
Alternatives, such as
additional treatment levels or discharge to alternative locations, such as locations other
than the impacted areas of Fiddle Creek were not considered.
302.105(f).
Moreover, the
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6
antidegradation assessment made the entirely unsupported assertion, on which the IEPA
evidently relied, that the proposed project “will result in
improved effluent quality.”
Ex.
F.
In fact, all of the evidence available, including the IEPA
1993 stream survey, the Huff
& Huff monitoring, the evidence ofunnatural
algal and other growth, and the evidence of
endangered and pollutant sensitive species, is to the contrary.
(d)
The IEPA assessment further fails to include the analysis of alternatives
required by 302.105(f).
Such analysis should have included consideration of increased
levels of treatment,
e.g. for phosphorus and nitrogen, capping of loading levels for TSS
and BOD, partial land application and
alternative discharge points which could have
avoided the Fiddle Creek impacts.
Those alternatives were not properly considered.
(e)
Besides being substantively insufficient, the IEPA’s three page 2003
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 fullyjustify the project.
Ex. F.
Rather than requiring data
from the applicant, as required by 302.105(f),the assessment was performed despite the
lack of any water quality samples over the previous ten
years.
The EPA’s assessment
determines ammonia and DO standards
will not be exceeded without any basis for such
statement.
With regard to phosphorus and total nitrogen, it “defers” such analysis until
state standards are adopted.
There
is no provision in 302.105
allowing deferral of
decision-making or decision-making without information.
Indeed a major point of
302.105
is to require analysis of issues which might not be fully developed through
regulation or which would lead to degradation if not addressed now.
As noted above,
despite a total lack of supporting data, the assessment concludes without support that the
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7
discharge “will result in improved effluent quality.”
Such an analysis does not meet the
requirements of302.105.
(f)
The IEPA’s permit analysis, including its 2003 antidegradation
assessment, also fails to address the impact of the discharge on the Fox River, an
impaired waterway.
DT22, the Fox River segment into which Fiddle Creek discharges is
designated impaired due to nutrients, inorganic
—
N (nitrates), siltation, pathogens and
suspended solids.
See Ex. B, Att. D.
(g)
As
demonstrated by the monitoring by Huff & Huff, Fiddle Creek should
also be considered an impaired waterway for nutrients,-phosphorus and total nitrogen,
and low DO and should be subject to federal requirements for such waters.
Ex. B.
The
permit does not properly consider its effect on
such impaired waters.
(h)
In light of the existing problems with Fiddle Creek and its
wetlands and
the Fox River, the pounds per day ofTSS, BOD5, ammonia, and
total nitrogen
discharged by the WWTP should not be
permitted to exceed the levels in the prior
Wauconda permit, e.g. no net increase.
(i)
In light of the wetland impacts already experienced, Wauconda
should be
required to develop, with the concurrence ofits wetland neighbors, a wetland
management plan to maintain and restore the Fiddle Creek wetlands.
(j)
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.
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8
(k)
The EPA permit fails to require Wauconda to implement a pretreatment
program for its
industrial dischargers despite industrial discharges which
have resulted in
WWTP upsets and
unpermitted offensive discharges to the waters of the state.
The
WWTP also accepts industrial discharges from
the Wauconda Sand and Gravel
Superfund Site.
Exs.
I and J; Tr. 21.
Wauconda should be required to implement a
formal pretreatment program under the NPDES permit program.3
12.
Petitioners asked that
all technically and economically reasonable measures to
avoid or minimize the impact ofthe proposed discharge and increase in loadings be incorporated
into the permit, (see Exs. B,
C, D and E for Petitioners’ requests for relief), including:
(a)
It provide for economically feasible controls on the discharge ofnutrients
including both
phosphorus and nitrogen.
There was no limit placed on total nitrogen.
(b)
The limits in the permit be tightened to prevent discharges which could
cause or contribute to violations of water quality standards regarding offensive conditions
and dissolved oxygen.
It was requested that pounds per day of TSS, BOD5 and
ammonia
be limited to the levels in the former Wauconda permit, e.g. no
net increase, consistent
with the antidegradation regulations.
(c)
That proper biological studies and
other work be conducted to assure that
the discharge would not adversely affect existing uses ofthe stream.
(d)
That EPA properly consider whether the increased discharge was actually
necessary in light of potential alternatives, such as additional treatment and alternative
~
IEPA has cited an August 3, 2001
USEPA letter to the effect that no
industrial pretreatment program was required
as of that date.
USEPA,
however, noted that no
program was required because there were then
no
industrial users.
Since then the existence of industrial
users, and indeed
violations caused by
those
users, have been documented by
IEPA, rendering the USEPA determination obsolete.
See e.g. Exs. I and J, Tr. 21.
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9
discharge points, e.g. via pipeline, and whether it, in fact, benefits the community at
large, including those in the Fiddle Creek watershed and the Fox River.
(e)
That EPA properly consider alternatives to allowing the loading of
pollutants to the streams and wetlands that would be allowed by the draft permit.
(f)
That Wauconda be required to implement a pretreatment program.
(g)
That regular monitoring of the Wauconda discharge be required for
organics and heavy metals.
13.
On August 23, 2004 the JEPA issued the modified permit that is the subject ofthe
instant petition.
The modified permit failed to comply
with legal and scientific requirements in
at least the following respects.
(a)
While the problem of nutrient discharges was recognized and phosphorus
limits were imposed, no limits were imposed on total nitrogen discharges.
(b)
No limitations were imposed to address the existing DO violations and
offensive condition violations
other than a minimum DO in the effluent.
Rather the EPA
proposed to simply study the DO problem.
(c)
No pretreatment program was required.
Rather the EPA simply asked for
an
annual updated industrial user survey.
(d)
No proper antidegradation assessment was prepared.
14.
Petitioners and their members and residents will be adversely affected when
pollution
discharged under the permit causes or contributes to the creation of low
oxygen and
offensive conditions in Fiddle Creek
and its associated wetlands, the Fox River and the Illinois
River, and otherwise injures the ecology ofFiddle Creek and its wetlands and downstream
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10
waters as a result ofEPA’s failure to
require appropriate effluent limits, monitoring, industrial
pretreatment programs and a proper antidegradation analysis.
WHEREFORE, Lake Barrington, Cuba Township, the Prairie Rivers
Network, Sierra
Club, Beth Wentzel and Cynthia Skrukrud ask that the Pollution Control Board set
aside NPDES
permit 1L0020 109 issued to the Village of Wauconda on August 23, 2004 as not in
accordance
with law and direct the EPA to
reconsider the permit in
order to establish conditions and limits
necessary to protectIllinois waters, comply with Illinois water quality standards and comply with
the Illinois Environmental Protection Act, 415 ILCS
5/1
et seq., Illinois regulations and the
Federal Water Pollution Control Act, 33
U.S.C.
§
1251
et seq.
September 17, 2004
Percy L. Angelo
Russell R. Eggert
Kevin Desharnais
Mayer,
Brown, Rowe & Maw LLP
190 South
LaSalle Street
Chicago, Illinois 60603
312-782-0600
Albert Ettinger
Environmental Law and Policy Center
35 East Wacker Drive, Suite
1300
Chicago, Illinois 60601
312-795-3707
Percy. L.
ngelo
One of the attorneys ror the Village of
Lake Barrington and Cuba Township
Albert Ettinger
One of the attorneys for Prairie Rivers
Network, Sierra Club, Beth Wentzel and
Cynthia Skrukrud
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11
