R E
C i~V ED
BEFORE
THE
ILLiNOIS POLLUTION CONTROL BOAR~~E~’S
OFF~C~
SFP
27
2004
Al Phillips, Vem Meyer, Gayle DeMarco,
)
Gabrielle Meyer, Lisa
O’Dell, Joan Leslie,,
)
STATE OF
Michael Davey, Nancy Dobner, Mike Polito,
)
pollut~Ofl
COfhIO
Williams Park Improvement Association,
)
Mat Schlueter, Mylith Park Lot Owners
)
Association, Donald Krebs, Don Berkshire,
)
Judy Brumme
Twin Pond Farms Homeowners
)
Association,
JuliaTudor, Christine Deviney,
)
PCB
_________________
)
(Third Party)
Petitioners,.
.
)
(APPEAL FROM AGENCY
)
DECISION GRANTING
Vs.
)
NPDES
PERMIT)
)
Permit No. 1L0020109
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY AND
)
VILLAGE OF WAUCONDA,
)
)
Respondents.
)
THIRD-PARTY PETITION FOR
REVIEW
OF
A DECISION BY
THE
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
Pursuant to
415
ILCS
5140(e)(l)
and
35
Ill. Admin.
Code Section
105, Al
Phillips, Jay J. Glenn, Vem Meyer, Gabrielle Meyer, Lisa
O’Dell,
JoanLeslie,
Michael
Davey, Nancy Dobner, Mike Polito, Williams Park Improvement Association, Mike
Polito, Mylith Park Lot Owners Association, Donald Krebs, Don Berkshire,
Judy
Brumme, Twin Pond Farms Homeowners Association, Judy Jackson (collectively
referred
to as the
(“Resident Group”)
hereby petitions this Honorable Illinois Pollution
Control Board for
review ofthe August 23, 2004 decision ofthe Illinois Environmental
Protection
Agency
(“Agency”)
to issue a modified
National Pollutant Discharge
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1
Elimination System
(“NPDES”)
Permit Number ILOO2O109
(“Permit”) to
the Village
of
Wauconda
and its
Wauconda Wastewater Treatment Plant
(“WSTP”)
to
increase its
current discharge of pollutants into Fiddle Creek, Fiddle Lake, Fiddle Marsh and the
ditches ofthe Slocum Lake Drainage District
(“SLDD”).
For the purpose ofthis
Petition, collectively referred to as the
“SLOCUM WETLANDS”,
which is a sub-
watershed ofthe Fox River.
A copy ofthe Permit is attached as Exhibit A.
The Agency also published its
RESPONSE TO COMMENTS, QUESTION AND CONCERNS (“Responsiveness
Summary1”) Tr.
8~92
a copy
ofwhich is
attached as Exhibit B.
In support ofits
Petition the Resident Group states as follows:
A.
JURISDICTION
RESIDENT
GROUP STANDING
PETITIONERS RAISED ISSUES
DURING
PUBLIC NOTICE, THE COMMENT PERIOD OR DURING THE
PUBLIC HEARING
1.
Pursuant to 415 ILCS
5/40(e)(2)(A),
the Resident Group is required to
demonstrate that the Resident Group raisedthe issues contained in this petition during
the public hearing or prior to the close ofthe public record.
2.
On
Tuesday September 9, 2003
at approximately 6:30 p.m. the AGENCY
convened an “informational hearing”
(“hearing”)
under the provisions of
35 Illinois
Administrative
Code 166,
Procedures for Permit and Closure Plan Hearings to hear
oral
and ‘~witten
comments on a draft modified National Pollutant Discharge
Elimination System
pursuant to the Application of Wauconda Waste Water Treatment
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‘References
to RS
,
are to Responsiveness Summary
dated
August 23, 2004
2
References to Tr.
,
are to public hearingtranscript of September 9-10,
2003
2
Plant
at the Wauconda Township Community Hall Center, 505 West Bonner Road,
Wauconda, Illinois.
Over 200 Residents, government officials and group leaders were in
attendance, the meeting room was full with standing room only, and the Wauconda
Fire
Department advised the Hearing Officer that the meeting must be moved for safety
reasons. The Hearing Officer advised the assembled that the meeting would be re-located
to the Wauconda High School located at
555
North Main Street, Wauconda, Illinois. The
hearing began on Tuesday,
September 9, 2003 at 6:30 p.m.
and
ended on Wednesday,
September
10, 2003 at approximately at
1:04 a.m., over 6 hours and
45
minutes of
continuous testimony spanning two days.
3.
The Hearing Officer set specific rules which every participant
was
expected to follow
(“Hearing
Rules”), in relevant part as follows:
(a)
The hearing stated that “A public hearing means that this is strictly an
information hearing.” Tr-5
(b)
The hearing was “not a contested hearing.”Tr-5
(c)
All speakers had the option ofdirecting question to the Agency ormake
general comments or both. Tr 6-7
(d)
Village ofWauconda is free to answer questions if they are willing
to do so, and the Hearing Officeradvised that the Village ofWauconda
as willing to answer questions. Tr-7
(e)
Hearing Officer prohibited speakers from arguing, cross-examining,
or engaging in a prolonged dialogue with the panel. Tr 7
(f)
Hearing
Officer required groups, organization, and associations,
elect a spokesperson to make comments or ask questions on behalfofthe
entire group Tr -7.
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3
(g)
The Hearing Officer advised that if any prior testimony covered the
topics ofa prospective witness, the duplicate written oral comments
should be skipped Tr. 7-8
(h)
The hearing officer then limited individuals to five minutes and
representatives of groups to ten minutes. Tr-8
(i)
The Agency provided registration cards which could be filled out if the
Resident would like to comment. Tr-8
(j)
The Hearing Officer then represented that the Agency will issue a
Responsiveness Summary which would attempt to answer all the relevant
and significant questions raised in this hearing
or submitted prior to the
close
ofthe comment period. Tr-9
4.
The Resident Group filed additional post-hearing comments prior to the
close ofthe record. The extensive participation by members ofthe Resident Group in the
hearing and post-hearing filings, fully satisfies the requirement that the Resident Group
raised the issues in this petition during the hearing and prior to close ofthe record.
5.
Prior to the hearing, the Resident
Group mailed individual notices and
comments to hundreds ofour neighbors in the Saddlewood Subdivision, Aspen
Grove Subdivision and Oak Grove Subdivision.
Those post cards were given to Agency
officials and should be a part ofthis record and those views are incorporated
in this Petition.
RESIDENT
GROUP
6.
Al Phillips is the co-founder ofthe PLUG THE PIPE group and is the
founder ofthe Save Fiddle Creek Group.
Al Phillips is a resident ofLakeland
Estates, in the Village ofLake Barrrigton, Township
of
Wauconda, County ofLake,
State of Illinois.
Al
Phillips was the organizer and webmaster for the
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4
www.savefiddlecreek.com web site which advised the Residents ofdevelopments. Al
Phillips participated in the hearing.
Tr-180.
7.
Vern Meyer is owner ofThe Herbal Garden, a regional supplier of
wholesale herbs, Vern Meyer grows herbs on his farm in un-incorporated Wauconda
Township.
Vem Meyer is a property owner in the Slocum Wetlands.
Vem Meyer was
present at the hearing and he is a member ofthe PLUG THE PIPE GROUP and Vern
Meyer resides within the Slocum Lake Drainage District. Vem Meyer owns property in
the Slocum Wetlands.
8.
Gale DeMarco is a resident ofLakeland Estates in the Village ofLake
Barrington, Township ofWauconda,
County ofLake, State of Illinois.
Gale DeMarco
owns property in the Slocum Wetlands.
9.
Gabrielle Meyer is a Resident ofun-incorporated Township ofWauconda,
County ofLake, State ofIllinois.
Gabrille Meyer is the wife of Vem Meyer, she
resides within the Slocum Lake Drainage District.
Gabrielle Meyer owns property in the
Slocum Wetlands.
10.
Lisa O’Dell is a resident of LakelandEstates in the Village ofLake
Barrington, Township ofWauconda, County ofLake, State ofIllinois.
Lisa O’Dell is
a
member ofthe PLUG THE
PIPE GROUP.
Lisa O’Dell resides
within the Slocum Lake
Drainage District and Lisa O’Dell owns property in the Slocum Wetlands.
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5
11.
Joan Leslie is a resident of Lakeland Estates in the Village ofLake
Barrington, Township ofWauconda, County ofLake, State ofIllinois.
Joan Leslie is a
member ofthe PLUG THE PIPE
GROUP.
Joan
Leslie resides withinthe Slocum Lake
Drainage District.
12.
Mike
Polito is a resident ofun-incorporated Wauconda Township, County
ofLake, State ofIllinois.
Mike Polito
is the President ofthe Williams Park Improvement
Association.
The Board ofDirectors ofthe Williams Park Improvement Associationhas
directed Mike Polito to jointhis Petition and object to the permit.
The Williams Park
Improvement Association has forwarded a Roster ofthe approximately 140 property
owners
which is attached as
Exhibit
C.
13.
Mat Schlueter
is a resident ofun-incorporated Wauconda Township,
County of Lake, State ofIllinois.
Mat Schlueter is the President ofthe Mylith Park Lot
Owners Association. The Board ofDirectors ofthe Mylith Park Lot Owners Association
has directed Mat
Schlueter to join this Petition and object to the permit.
The
Mylith
Park Lot Owners Associationhave forwarded a Roster approximately 85
property owners
of the Mylith Park Lot
Owners which is
attached as Exhibit D.
14.
Donald Krebs is a resident ofTwin Pond Farms, Village ofLake
Barrington, Township ofCuba,
State ofIllinois.
Don Krebs is an officer ofthe Twin
Pond Homeowners Association and he testified in the hearing Tr.
102-107.
15.
Don Berkshire is a resident of Twin Pond Farms, Village ofLake
Barrington, Township ofCuba,
State ofIllinois.
He is a member ofthe Twin Pond
Homeowners Association and he was present at the hearing.
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16.
Judy Brumme is a resident ofTwin Pond Farms, Village ofLake
Barrington, Township ofCuba,
State of Illinois.
Judy Brumme is an officer ofthe Twin
Pond Homeowners Association.
Judy Brunime has directed that the Twin Pond
Homeowners Association object to the permit.
Judy Brunime has forwarded a Roster of
approximately
53 property owners of Twin Pond Homeowners Association which is
attached as
Exhibit E.
17.
Nancy Dobner is a Resident ofun-incorporated Township ofWauconda,
County of Lake, State ofIllinois and she is a member ofthe PLUG THE PIPE
Group. Tr-48.
18.
Julia Tudor is a Resident ofthe Village ofWauconda,
Township of
Wauconda, County ofLake, State ofIllinois and she attended the hearing.
19.
Christine Deviney is a Resident ofthe Village ofLake Barrington,
Township ofWauconda, County ofLake, State of Illinois. Christine Deviney owns
property in the Slocum Wetlands and she resides in the Slocum Lake Drainage District.
20.
The Resident Group has been approached by many more supporters of
the
PLUG THE PIPE group and neighbors in the Village ofPort Barrington, Village of
Island Lake and
un-incorporated Nunda Township in County of McHenry.
The
Resident Group consists of individuals and three
homeowner associations:
Twin Pond
Farms Homeowner Association, Williams ParkImprovement Association and Mylith
ParkLot Owners Association, and a numberof Residents in the Lakeland Estates
Subdivision.
The Resident Group lists approximately
285 homeowners
representing in
excess
of 500 adult downstream Residents.
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B.
RESIDENT GROUP STANDING
RESIDENT
GROUP IMPACTED BY PERMITTED FACILITY
21.
Every member ofthe Resident Group is so situated to be affected by the
permit and the continuing and planned future violations ofthe Environmental Protection
Act in the Slocum Watershed including offensive conditions and violation ofwater
quality standards
22.
The expanded waste stream authorized by this Permit flows through the
Slocum Wetlands into the Fox River and other downstream waters.
23.
The Lake County Forest Preserve owns 2,600 lineal feet ofFiddle Creek
downstream ofthe current outfall of WSTP and Fiddle Creekconstitutes the
northem boundary ofthe 517-acre Fox River
preserve. Tr-76
24.
All members ofthe Resident Group are Residents ofLake County and
every Resident supports the Lake County Forest Preserve through Real Estate Taxes.
25.
All members ofthe Resident Group expect the Lake County Forest
Preserve to preserve and protect all Lake County Forest Preserve Assets.
26.
All members ofthe Resident Group have access to the Fox River Marina
and Preserve forrecreation and boating.
27.
Many members ofthe Resident Group have primary contact
with one or
more ofthe following: Fiddle Creek, Slocum Lake Drainage District Channels and Fox
River Marina and Preserve.
28.
Members ofthe Resident Group include all three homeowner associations
and Residents in the subdivision ofLakeland Estates and many areas ofun-incorporated
Wauconda Township, Cuba Township and Nunda Township own private wells for
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8
personal water supply, and this modified
NPDES permit has a direct impact on the future
usefulness of their current water supply and the health and safety oftheir families.
Slocum Weflands
29.
The Fiddle Creek, Fiddle Lake, Fiddle Marsh and Slocum Lake Drainage
District channels affects many hundreds of Residents in
McHenry County and Lake
County. The Slocum Wetlands extends approximately 2.4 miles
from Anderson Road to
the Fox River.
30.
These Slocum Wetlands have two features which the Agency has
disregarded in both its permit and Responsiveness Summary.
The Agency has failed to
recognize Fiddle Lake, and has even gone so far as to have it removed from the maps
which it has published on its web site.
Fiddle Lake was documented in the hearing with
an
1861
map Tr-193 and a current tract map from the Wauconda Assessor’s maps.
31.
The Agency has failed to mention the second superfund site which was
also discussed in the hearing.
This 2’~~’
Superfund Charkowski
(“Superfund
2”)
is
adjacent to the Slocum Lake Drainage District Channels and about one-halfmile from the
WSTP outfall, directly on the waste stream. The Agency, by their attomey
advised the Residents that this
2nd
Superfund site was a “local problem”Tr-197.
The
Resident Group has submitted post-hearing documentation on both Fiddle Lake and
Superfund 2. The Resident Group displayed aerial photographs ofSuperfund 2 and
submitted them to the Agency in its post-hearing submission. The Resident Group post-
hearing submission is made partofthis Petition.
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9
C.
PROCEDURAL DUE PROCESS
Kiaren II
32.
In the exercise ofan abundance ofcaution, the Resident Group notes that,
one
ofthe many issues raised at the hearing which is not included in the Agency
Responsiveness Summary Exhibit
B
is ajurisdictional
objection.
This deliberate
omission by the Agency indicates that the Agency either consider the objection either
relevant or significant.
The Resident Group believes the
issue of procedural due process
is a threshold issue.
33.
The Resident Group advised the Hearing Officer ofSupreme Court
decision in
THE PEOPLE
ex rel. Robert J. Klaren II et al., v. Village ofLisle et al.
202 Ill. 2’~
164,
781 N.E.2’~”223; 2002
ILL. Lexis 941, 269 Ill. Dec. 426,
Tr-l80 a copy
of which is attached as Exhibit F.
34.
The Resident Group believes Kiaren
II
mandated that the Agency
establish such reasonable rules for hearings under 35 Illinois Administrative Code 166
which guarantee procedural due process.
35.
The Resident Group believes that the September
9th
&
10th
AGENCY
hearing was controlled by Kiaren
II
and the Resident Group was denied it’s full
panoply of procedural due process rights, as follows:
a.
Notice
1.
The Agency only mailed notice to local
legislators, county and
municipal officials
and published to all others in the Wauconda
Leader;
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10
2.
No downstream owner ofthe impacted wetlands, other thanthe Lake
County Forest Preserve was mailed notice;
3.
The Resident Group believes all downstream owners of impacted and
potentially impacted wetlands in the Slocum Wetlands, should have
received, individual formal notice ofthese proceedings.
b.
Testimony under oath;
c.
Require both the Agency and the Village of Wauconda to fully support
and document their draft modified permit in an open public meeting;
d.
Permit full document reviewprior to the hearing;
e.
Permit reasonable cross-examination ofall witnesses;
f.
Unconscionable to allow any public hearing which seeks public comment
to continue past 9:00 p.m.
36.
The Resident Group believes the Agency should have a second public
hearing and require both the Agency
and the Village ofWauconda to explain and defend
their final modified permit, the basis ofAgency decision, permits full discussion of real
altematives, full discussion ofthe projected environmental impact and current threats to
the health and safety ofthe Residents and allow full, responsible cross-examination.
37.
The September
9th
and
10th
informational hearing, was a condition
precedent for any possible Review, as follows:
a.
Any Petitioner wishing to raise issues on appeal,
must raise those issues
during the public notice period, public comment period or during the
public informational hearing;
b.
Any Petitioner wishing to appeal,
must also show they will be impacted
by the permitted facility.
38.
The Resident Group will, by appropriate Motion,
ask this Honorable
Board: (a) rule that Kiaren
II
applies to all hearings conducted by the Illinois
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11
Environmental Protection Agency; (b) rule that the hearing relating to this permit did
not meet the minimum standards set forth in
Klaren
II
(c) That all further
consideration ofthis permit be stayed until the Agency provides personal notice to every
downstream owner and Resident and conducts a full contested hearing which requires
both the Agency and Village ofWauconda to testify, under oath and submit to cross-
examination.
Statement of Issues Raised
FALSE APPLICATION
-
POSSIBLE CRIMINAL VIOLATION
and
HISTORY
OF VIOLATIONS
39.
415 ILCS 5/44
is attached hereto as
Exhibit
G
and states:
Criminal
acts;
penalties
(a)
Except
as
otherwise
provided
in
this
Section,
it
shall
be
a
Class
A
misdemeanor
to
violate
this
Act
or
regulations
thereunder,
or
any
omit
or term or
condition
thereof, or
knowingly
to
submit
any
false
information
under
this
Act
or
regulations
adopted
thereunder,
or
under
any
permit
or
term
or
conditions
thereof.
A
court
may,
in
addition
to
any
other
penalty
herein imposed, ordçr a
person convicted of any violation of this Act
to
perform community
service
for
not
less
than
100
hours
and
not
more
than
300
hours
if
community
service
is
available
in
the
jurisdiction.
It shall be the duty of all State and local law-enforcement
officers to enforce such Act and regulations, and all such officers shall
have authority to issue citations for such violations.
40.
415
ILCS
5/44(h)(1)
Violations; False Statements,
states:
Any
person who
knowingly
makes
a
false
material
statement
in
an
application
for
a
permit
or
license
required
by
this
Act
to
treat,
transport, store, or dispose of hazardous waste commits
the offense of
perjury and
shall be
subject to the penalties set forth in
Section
32-2
of the Criminal Code of 1961
(720 ILCS 5/32-2
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12
41.
In its Application
for this Modified NPDES
Permit:
Special Condition
11 ofthe NPDES application requests information on
the industrial survey.
Question F-12
Remediation Waste. “Does the treatment works
currently or has it been notified that itwill receive waste from a remedial activities
?“
42.
Inresponse to Question F-12 WSTP answered N/A.
43.
In its Application forthis Modified NPDES Permit:
On page
10 ofthe NPDES application, vinyl chloride is listed with an
asterisk.
The asterisk indicates “not believed to be present.”
44.
This is contrary to Conestoga-Rovers report on the Wauconda Sand &
Gravel Superfund Site, one oftwo Superflindsites which either impact or will be
impacted by the implementation ofthis Modified NPDES Permit.
45.
The Resident Group is prejudiced because it was never advised ofand
has never reviewedthe
53 exhibits which the Agency says it recorded, and is unaware of
any recent representations which may have been made by WSTP.
46.
415 ILCS 5/39 sets forth the requirements for issuance ofpermits, a
copy
of which is attached hereto as Exhibit H.
47.
415
ILCS
5/39(a)
states, as follows:
“(a)
When
the
Board
has
by
regulation required
a
permit for
the
construction,
installation,
or
operation
of
any
type
of
facility,
equipment, vehicle, vessel, or aircraft, and the applicant shall apply to
the Agency for
such permit and 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 violation ofthis
Act
or
of
regulations
hereunder.
The
Agency
shall
adopt
such
procedures as are necessary to carry out its
duties under this Section.
In making its determinations on permit applications under this
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13
Section
the
Agency
may
consider
prior
adjudications
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.
The
Agency
may impose
such
other conditions as may be necessary to accomplish the purposes
of
this
Act,
and
as
are
not
inconsistent
with
the
regulations
promulgated by the Board hereunder.
...“
48.
At the September
9th
~~10th
informational hearing, Ms. Moreno, the
attorney forthe Agency
stated as follows: Tr -18
“...
Now, yes, it is true that through the ‘90’s it IWSTPI
had a
lot of problems.
No question about that.
But it
(WSTP
doesn’t have
those
same problems
anymore.
What happened
basically
is
that
in
2000,
1999
and
200,
we
had
the Attorney
General’s
office
file suit
against
the
Village
to
force
them
to
take
care
of
some
of
these
problems.
And
there was
a
consent decree entered
into
here
in
Lake
County
in
Chancery
Court.
And
for
those
of
you
who
might
be
interested,
it’s
No.
99
CH
720.
It
was
entered
on
December
13,
2000....”
49.
This WSTP permit, which has been approved by the Agency
the Agency can be characterized as follows:
a.
WSTP has filed a false Answer to this Application for
Modified
NPDES Permit, in that WSTP knows that WSTP currently receives
waste from a remedial activity;
b.
Upon information and belief, Agency has not reported this false
statement under 415 ILCS
5/44(h)(1);
c.
WSTP has filed a false Answer to this Application for this Modified
NPDES Permit, in that WSTP was asked on page 10 ofthe NPDES
application if vinyl chloride present, WSTP answered with an asterisk
indicating “not believed
to be present.”
d.
Upon information and belief, Agency has not reported this false
statement under 415 ILCS 5/44(h)(1);
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14
e.
That the Agency admits that WSTP “had a lot ofproblems” and the
Agency had to havethe Attorney General file suit against WSTP
to force them to comply with the law.
f.
The Agency has apparently not required WSTP to file a correct
Application.
WAUCONDA WASTE STREAM
-
INFLOW
50.
WSTP has three waste streams making up its inflow.
In addition to
domestic waste and industrial waste,
WSTP accepts third waste stream of
leachate from a superfund site leachate collection system. The industrial waste stream
services a variety ofindustries, and includes volatile organic compounds, semi volatiles,
base neutral acids (BNAs), metals, phenols, oils, grease, DOB,
COD, TSS, boron, radium
and radon. Rs-7 &
Rs-37
51.
Wauconda Sand &
Gravel (“Superfund 1”)
is a NPL Superfund Site
located at Bonner Road and Garland in Wauconda Township3.
The Village ofWauconda
is one ofa number ofpotentially responsible parties.
52.
In November, 2003,
the Lake County Health Department (“LCHD”) did
a
random residential well test in a private well near Superftmd
1.
Thattest found Vinyl
Chloride.
Since December, 2003, further testing has shown contamination of
groundwater from a leachate plume by a number ofcontaminates.
Groundwater
contamination has been identified in almost 100 homes in the Hillcrest Subdivision and
recent testing has shown the leachate plume is moving and contaminating adjacent
subdivisions. Petitioner will, by appropriate Motion, request the Illinois Pollution Control
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~Any
comment concerning
Wauconda Sand
& Gravel
Superfund Site
should note
the
extraordinary current
activity
by the USEPA
and the widespread contaminationofover
100
private
wells
by a
leachate
plume
which is
believed
to have traveled from
WS&G.
15
Board to include these developments in their review ofthis permit.
The testimony at the
hearing raises legal and scientific issues which point to flaws in analysis used by the
Agency in its draft permit.
53.
This permit and is
the 2’~
permit, issued by the Agency, which involves
Superfund
1
leachate. The Agency has issued
another permit number 2001-EP-3444
which allows the discharge ofan average of4,000 gallons per day ofleachate from a
Superfund
1
collection system to WSTP. RS-37
Even though the Agency knows that
WSTP receives leachate containing
11 metals,
volatile organic compounds, pesticides,
base/neutrals, cyanide, oils and grease, phenols, oxygen-demand compounds and total
suspended solids, it has still not required pretreatment, rather the Agency is only
requiring routine monitoring twice during each permit cycle
Rs-37
54.
The Resident Group does not believe the Agency will protect the Slocum
Wetlands and the Resident Group doesnot believe the WSTP discharge meets any water
standards.
These doubts
extend not only to the Agency assessments, but to Agency
testing, specifically the scope ofAgency and WSTP testing. On August 20, 2004,
a member ofthe Resident Group funded a grab sample from the WSTP outfall pipe.
The results indicate the presence of
four volatile compounds above the reporting limit:
Bromodichiormethane, Chloroform, Dichlormethane and Methyl-tert butyl (MTBE)
ether, a copy ofthat Analytical Report is
attached as
Exhibit I.
The Agency advises, in
this permit,
that on
June 21, 2004 it took tests ofeffluent which corroborated the
Wauconda samples that neither vinyl chloride nor benzene were present.
The Resident
Group test on August 20, 2004 evidences different facts.
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55.
415 ILCS
122/5, a copy ofwhich is attached as
Exhibit J,
states that the
GeneralAssembly finds that methyl tertiary butyl ether (MTBE) presents substantial
environmental
risks to the water quality in Illinois, as well as to the public health, safety,
and welfare ofthe people ofthe State of Illinois.
The presence ofMTBE in the Slocum
Wetlands will be addressed by supplemental Motion also. The issues raised by this test
go far beyond this permit and the test results have been reported to LCHD.
56.
It is absolutely clear that the inflow
Wauconda waste stream is a highly
dangerous fact and not routine in any
way.
The Wauconda waste stream
requires extensive pretreatment and testing before release into the environment, if in fact
it can ever be discharged into the environment. At a minimum every contaminant found
in Superfund
1
or in groundwater leachate
in the Hillcrest Subdivision should be
tested
for in this permit.
PRETREATMENT
57.
On September 19, 2000, Wauconda adopted an ordinance
establishing a
Pretreatment Program,
It has completed a survey and complied a list ofthe non-
residential users
in the village.
However it appears that Wauconda has not
implemented and enforcedthe program.
Rs-12
In a letter dated August 3, 2001 the
USEPA determined that Pretreatment per 35
Ill. Adm. Code Part 310 was not
warranted.
The Resident Group has not seen the August 3, 2001
USEPA letter.
The
Resident Group has constant discussions with the USEPA and will request the reason
for this decision.
That issue aside, the Agency has given no reason why it hasn’t
required WSTP to implement a pretreatmentprogram.
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ANTIDEGRADATION
WAUCONDA WASTE STREAM -OUTFLOW
58.
This Board has particularized an antidegradation
mandate
in its General
Water Quality Provisions
35 Ill.
Adm. Cod 302.105, a copy ofwhich is attached hereto as
Exhibit K, and this Board states as follows:
“The purpose ofthis Section is to protect existing uses of all waters of the
State of Illinois, maintain the quality of waters with quality that
is
better
than water quality standards, and prevent unnecessary deterioration of
waters of the State.”
59.
WSTP has directed its outflow to the Village border, choosing to
degrade
the
lakes, streams and wetlands of downstream neighbors and communities
Tr
180-196. The Agency is a willing participant in this downstream degradation
through
its NPDES permit
program.
The Agency employs a hearing process which
protects the Applicant and Agency from public cross-examination of the terms of Draft
Permits.
Inthis case the Agency has issued a permit which pays lip service to this
Board’s antidegradation mandate, and evades compliance.
60.
This Resident Group represents individuals and Homeowner Associations
downstream ofthe two outfalls which WSTP has used over the last 100..
This
Resident Group, represents individuals and homeowner associations and speaks for over
280 downstream home owners who know what to expect from WSTP and the Agency.
Except forthe outfall pipe and a short segment of the Fiddle Creek, the land to be
affected by this waste stream is not in the Village of Wauconda and it is not owned by
the Village of Wauconda..
The entire stream and channel system is under the jurisdiction
ofSLDD.
The downstream Residents ofthis Group are not
Residents ofthe Village of
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Wauconda. This permit grants WSTP,
with the approval ofthe Agency,
the right to
burden and degrade, withoutcompensation, all land, lakes, streams, channels, wetlands
and
a County Park
located in the Slocum Wetlands
and bind this unique environment to
the Wauconda waste stream for all time. From its construction
to 1983, WSTP
discharged into Bangs Lake Creek which
degraded Slocum Lake. “In
1983 the Board
terminated the variance, whereupon the discharge was moved away from Slocum Lake to
its present location in Fiddle Creek. (Fiddle Creek has previously been designated in
Wauconda’s NPDES permit and other Illinois EPA documents as “an unnamed tributary
to the Fox River” or Wauconda Creek;” however, the permitted discharge pointhas been
the same since 1983” Rs
—
7.
61.
302.105(a) Existing Uses states as follows:
Uses actually attained in the surface water body or water body
segmenton or after November 28, 1975, whether or not they are included in
the water quality standards, must be maintained and protected. Examples of
degradation
ofexisting uses of the water ofthe State include:
a.
an action that would
result in the deterioration ofthe existing
aquatic community, such as a shift from a community of
predominantly pollutant-sensitive species to pollutant-tolerant
species or a loss of species diversity;
b.
an action that would
result in loss of resident or indigenous species
whose presence is necessary to sustain commercial or recreational
activities; or
c.
an action that would preclude continued use ofthe surface water
body or water body segment for public water supply or fore
recreational or commercial fishing, swimming, paddling or
boating.
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62.
Prior to November 28,
1975 the Slocum Wetlands consisted of
Fiddle Marsh, Fiddle Lake, Fiddle Creek and the drainage channels ofthe SLDD.
There
was no NPDES discharge into the Slocum Wetlands and the boundary ofVillage of
Wauconda may not have extended
down Anderson Road.
63.
The Agency has implemented policies which are incompatible with the
language of both 302.105 and 302.105(a)
and which contravenes both the
antidegradation mandate and the November 28,
1975
benchmark. A fair
reading ofthe
antidegradation
provisions requires the Agency to do an assessment ofthe Slocum
Wetlands, as it existed, prior to November28,
1975.
The September
15,
1993 Agency
stream survey, is not the
statutory benchmark.
That survey found “fair environmental
conditions and identified elevated levels ofconductivity, nitrate plus nitrite, phosphorus,
sodium, potassium, boron, strontium, ~nd oil downstream ofthe WSTP outfall. These
conditions are clearly the result ofthe
1983 relocation ofthe WSTP outfall. The Agency
has refused to evaluate any ofthe
above contaminants
and further it has failed to
evaluate the impact ofincreased pollutant loading on either the fish and plant community.
64.
415
ILCS
5/39(a)
states that the applicant shall apply to the Agency for
such
permit and it, shall be the duty ofthe Agency to issue such a permit upon proof by
the applicant that the facility...will not cause a violation ofthis Act or of regulations
hereunder.
65.
The Agency issued a draft modified permit without any effort to obtain a
current antidegradation assessment. The 2003 antidegradation assessment was based on a
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September
15,
1993 stream survey.
The
1993 facility stream survey found “fail
environmental conditions in Wauconda Creek with minor impact from Wauconda STP
discharge.” Elevated levels ofconductivity, nitrate plus nitrite, phosphorus, sodium,
potassium, boron, strontium, and oil downstream ofthe Wauconda outfall.”
Conditions
as of November 28,
1975 is the benchmark for antidegradation assessments.
The Agency
has failed to protect the existing uses ofthe receiving waters,
as ofthe benchmark, the
potential effect on existing uses including aquatic community, including endangered fish,
pollutant sensitive plant species has not been considered.
66.
In October, 2003 the Village ofLake Barrington retained KOT
Environmental
Consulting, Inc
(“KOT”),
to perform a
Preliminary
Evaluation of
Fiddle Creek Watershed, a copy ofwhich is attached hereto as Exhibit L.
The Resident
Group obtained
a
copy ofthis document under
a
FOIA request, and we have been advised
that it
is a part ofthe Village of Lake Barrington post-hearing submission. This report
documents a loss of 180
acres ofopen water in the Slocum Wetlands since 1993
Exhibit
K at 3.
At the current wastewater loading conditions (1.4 MGD), the wetland will be
reduced to
a
channel taking wastewater directly to the Fox River.
This process can take
place in 14 to
15 years.
Increasing the wastewater discharge to 2.4 MGD will increase
the aging process even more resulting in the elimination ofthe wetland altogether.
67.
The KOT report Ex L
coupled with the testimony ofHuff& HuffTr 61-
83 evidence a degradation of the Slocum Wetlands from current discharges from WSTP.
The Resident Group has found no provision fordeferral ofdecision making.
415 ILCS
5/39(a)
actually states it is the duty ofthe Agency to issue such
a
permit upon proof by
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the applicant that the facility will not cause a violation ofthe act or regulations.
68.
302.105(f) Ex requires the antidegradation assessment to consider impacts
to biological
communities,
increased loading, or alternatives or by providing
a
showing
ofbenefits which fullyjustify the project.
69.
On December 10, 2003 the Agency held a Local Government Meeting,
and only approved local government representatives were allowed to participate.
The
Agency prepared an Action Items/Commitments Memo after the meeting which is
attached hereto as
Exhibit M. It
appears that the Agency did not honor its commitment
to local government representatives;
70.
On December
10, 2003 the Agency stated that “Data has not been
gathered on Dissolved Oxygen
(D.O.)
levels in local upstream/background locations. The
Illinois EPA has committed to re-evaluate the D.O. regime in the stream in light of
assertions of low D.O. concentrations Ex M
-1. On August 23, 2004, the Agency advised
the Public, in its Responsiveness Summary,
as
follows: Rs-7.
“This
information
is
limited;
the
extent
to
which
it
is
representative of normal
stream conditions and its relationship to the Wauconda discharge is unknown.
To
address
the
issue
the
Agency
is
adding
a
special
condition
requiring
the
facility to collaborate and participate in cooperation with the Agency in
a
study to
characterize the dissolved oxygen profile and study
possible nutrients
impacts in
Fiddle Creek in the vicinity and downstream of Outfall 001
before and after the
expansion.
The
Wauconda
permit
will
contain
a
re-opener
clause
to
allow
additional
controls
upon
the
facility
operation
should
there
be
an
ongoing
dissolved oxygen problem attributable either partially or wholly to the Wauconda
discharge.
While it is possible that additional flow from this facility may actually
be
beneficial
to
the
DO
regime
of the
system,
this
mater
will
be
evaluate
in
concert with additional required monitoring.
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On August 23,
2004 the Agency advised the public at Rs-3 1
as follows:
“The
permit
as
issued
includes
dissolved
oxygen
limits
and
supplemental
monitoring
requirements to
address potential
problems within Fiddle
Creek and
determine
any
culpability
of
this
discharge
should
Fiddle
creek
exhibit
DO
deficiencies, and require any additional controls that may be warranted.
Not only has the Agency defaulted on its commitment, to local
government representatives to re-evaluate the D.O. regime, we assume, prior to
issuing the final permit, in the approximately 8 months since the Agency made
its commitment to its local
government partners,
the Agency has made no
effort to
gather dataon the DO regime.
Instead it has chosen to ignore the
fmdings ofHuff& Huff, who did monitor Fiddle Creek in three locations and
their findings indicated four out offive DO violations. These documented
water
quality violations combined
with
findings that Nitrates plus nitrites findings
were above the use impairment criteria lead to the conclusionthat any
discharge ofeffluent alone or in combination with other sources, shall not cause
a
violation ofany applicable water quality standard outline in 35 Ill. Adm.
Code
302. This permit allows discharges that may cause or have a reasonable potential
to cause, or contribute to violations ofthe water quality standards regarding
offensive conditions, in violations of35
Ill. Adm.
Code 302.206 which violates 40
CFR 122.44(d) and
35
Ill. Adm. Code 309.141.
71.
The Resident Group looks to this Board to implement 302.105, protect
protect existing uses which includes a County Park and Marina with primary contact with
Residents along its entire boundary.
The Resident Group looks to the Board to enforce
its mandate that the quality of the waters ofthe Slocum Wetlands will be maintained with
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water quality that is better than water quality standards and prevent unnecessary
deterioration.
The Resident Group looks to the Board to restoration ofthe Slocum
Watershed to pre November 28,
1975.
72.
35
Ill. Adm. Code 302.105(c)(2) states as follows:
c)
High Quality Waters
2)
The Agency must assess any proposed increase in pollutant loading
that necessitates
a new, renewed
or modified NPDES permit or any
activity requiring a CWA Section 401 certification to determine
compliance with the Section.
The assessment to determine compliance
with this Section must be made on a case-by-case basis. In making this
assessment, the Agency must:
B)
Assure the following:
i)
The applicable numeric or narrativewater quality standard
will not be exceeded as a result ofthe proposed activity:
ii)
All existing uses will be fully protected;
iii)
All technically and economically reasonable measures to avoid
or minimize the extent of the proposed increase in pollutant loading
have been incorporated into the proposed activity; and
iv)
The activity that results in an increased pollutant loading will
benefit the community at large.
73.
The Agency advises the Public in its Responsiveness Survey that the
Agency sent out
a
letter to the regulated community in July 2002 explaining the
requirements of Part 302.
105(c)(2)(B).
AttachmentA to this same letter specifically
requires the dischargerto address compliance with the Illinois Groundwater Protection
Act and a discussion ofthe impact ofthe project on the receiving water. RS-7
74.
On
August23, 2004, the date of issuance ofthis permit, the Agency
advises
that Wauconda has NOT met these requirements.
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Private Wells
75.
In its Responsiveness Summary Rs —28
the Agency has advised that
for
the period ofSeptember 9, 2001, through September 9, 2003, the LCHD tested 20 ofthe
wells in the Fiddle Creek Area; none ofthese wells showed contamination. On September
1,2004 a member ofthis Resident Group residing in Lakeland Estates, at her expense,
had her well tested.
The results of that test are attached hereto as Exhibit N.
76.
The KOT Report Ex L,
a
2003 expert report notes at Ex L p2 “a
significant number ofresidences in the three communities that have wells that are not
reported in the database.
The conmiunity ofLakeland Estates has 12-recordedwells and
four ofthe wells exhibit a high susceptibility
to subsurface contamination. The
community ofLakeland Estates has 12-recorded wells and four wells exhibit a medium
susceptibility to surface contamination. The community ofTwin Pond Farms has 11
wells and one ofwhich has a high susceptibility to subsurface contamination.
The
community of Twin Pond Farms has
11
wells, one ofwhich has a medium susceptibility
to surface contamination.
Alternatives
77.
302.105 requires the Agency to provide an overview ofalternatives
considered by the applicant and identification ofany provisions or alternatives imposed
to lessen the load increase associated with the proposed activity.
The prior history of
WSTP and actions ofthe Agency evidence a bias to protect the surface waters in the
Village of Wauconda, specifically Bangs Lake.
The hearing had many comments from
Residents that the outfall should be into Bangs Lake.
At this writing WSTP has already
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degraded two lakes Slocum
Lake and Fiddle Lake,
and degraded the waters ofthe
Slocum Wetlands with a net loss of open waterin the Slocum Wetlands of 180 acres of
open water since
1993.
This permit sanctions the continued degradation ofthe Slocum
Wetlands.
78.
Two additional alternatives proposed by the Resident Group are:
a.
Closing the WSTP and put the waste stream underground to the
Northern Moraine Water Reclamation District facility about 3 miles
away;
b.
Construct an underground pipe which connects WSTP to the SLDD
channels and running
a
pipe on the bottom ofthe SLDD channel
directly into the Fox River.
This, ofcourse would require WSTP to
increase its treatment so that the outfall would not degrade the Fox
River.
Fox
River
79.
The permit has failed to address the impact WSTP will have on the Fox
River, an impaired waterway.
The DT22 segment ofthe Fox River which is the receiving
water body from Fiddle Creek is impaired due to nutrients, siltation, pathogens and
suspended solids.
WHEREFORE,
NOW COMES Al Phillips, VernMeyer,
Gayle DeMarco,
Gabrielle Meyer, Lisa O’Dell, Joan Leslie, Michael Davey, Nancy Dobner, Mike Polito
and the Williams Park Improvement Association, Mat Schlueter and the Mylith Park Lot
Owners Association, Donald Krebs, Don Berdshire, Judy Brumme and the Twin Pond
Farms Homeowners Association, Julia Tudor and Christine Deviney and the
180
homeowners and over 500 adult downstream Residents pray for the following relief:
A.
That the Illinois Pollution Control Board set aside NPDES permit IL
0020109 issued to the Village of Wauconda on August 23, 2004;
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B.
That
the Illinois Pollution Control Board rule that the hearing did not meet
the procedural due process requirements of Klaeren II and order the Agency to
draft new
procedures forhearings and re-notice a public hearing to discuss the permit or any
modification ofthe permit reasonable cross-examination ofthe Applicant and Agency;
C.
That
the Illinois Pollution Control Board instruct the Agency to begin a
new antidegradation assessment ofthe Slocum Wetlands using November 28,
1975
as the
benchmark date;
D.
That the Illinois Pollution Control
Board instruct
the Agency to
perform
a
new waterquality assessment in order to establish conditions and limits to
protect Illinois waters;
E.
Thatthe Illinois Pollution Control Board instruct the Agency to review the
Wauconda Waste Stream and the Superfund
1
leachate;
F
That the Illinois Pollution Control Board do detailed testing ofthe WSTP
outfall effluent, including sediment cuts along the waste stream for all contaminates
found in Superfund
1
leachate and all pollutants found in Hillcrest wells;
G.
That the Illinois Pollution Control Board instruct the Agency to review
alternatives including alternative sites;
H.
That For suchother and further relief as this Honorable Illinois Pollution
Control Board deems just.
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September 27, 2004
Jay J. Glenn
___________________________________
Attorney at Law
Jay J. Glenn
2275 Half Day Road
One ofthe attorneys forthe Resident Group
Suite 350
Bannockburn, Illinois 60015
(847) 526-9202
ARDC# 0970719
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