BEFORE THE ILLINOIS POLLUTION CONTROL BOA11~E C E ~V E D

CLERK’S O~F~CE

SEP

272004

SLOCUM LAKE DRAINAGE DISTRICT OF

)

LAKE COUNTY, ILLINOIS

)

p~ontrO~Board

Petitioner

)

PCB______

ILLINOIS ENVIRONMENTAL

)

(Third Party)

PROTECTION AGENCY AND VILLAGE OF

)

(Appeal from IEPA Decision)

WAUCONDA, ILLINOIS

)

Granting NPDES Permit

)

Permit No. 1L0020109

Respondents.

)

PETITION FOR HEARING TO

REVIEW

THE

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S

DECISION ON ISSUANCE OF NPDES PERMIT TO

VILLAGE OF

WAUCONDA’S

NOW COMES, SLOCUM

LAKE

DRAINAGE DISTRICT OF

LAKE

COUNTY,

ILLINOIS (“District”; “Petitioner”), pursuant to Section 40(e) ofthe Environmental

Protection Act (“Act”) (415 ILCS

5/40(e)

and 35 Iii. Admin. Code Section 105, and requests

a hearing before

the Illinois Pollution Control Board (“Board”)

to review the August 23,

2004

decision ofthe Illinois Environmental Protection Agency (“IPEA”)

to issue a modified

National Pollutant Discharge Elimination System

Permit (“NPDES Permit”)(See Exhibit A

attached hereto and made a part hereof)

to the Village of Wauconda (“Wauconda”),

County of Lake, Illinois, which allows Wauconda to increase its discharge ofpollutants into

Fiddle Creek tributary to the Fox River from

its Wastewater Sewage Treatment Plant

(“WSTP”) through the District’s ditch system, and in support ofthe District’s petition,

states as follows:

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ESTABLISHMENT OF SLOCUM

LAKE

DRAINAGE DISTRICT

The District

is an Illinois

drainage district established

pursuant to the Illinois

Drainage Code, 70 ILCS 605/1-1

et. seq., with the full power to contract, sue and be sued.

70 ILCS 605/3-24.

The District is a special purpose, non-profit entity that was originally

established by the Circuit Court of Lake County in 1915, for which, at that time,

its

purpose was to provide drainage of agricultural land.

At present, the District is

responsible for maintenance of approximately

17,900 linear feet ofditch line

(“Ditch”) See

Exhibit B, Slocum Drainage District Boundary Map attached hereto and made a part

hereof.

Over theyears, the Ditch has not been maintained

despite the increased usage it

receives. Furthermore, in addition to natural drainage, the Ditch has been impacted by the

increasing use by Wauconda WSTP.

BACKGROUND

SLOCUM LAKE AND FIDDLE CREEK

Originally, Wauconda WSTP discharged to Bangs Lake Drain Creek which flows

into Slocum Lake and exits through the Slocum Lake Drain and joins the Fox River.

1983, when the Wauconda WSTP discharge was causing high levels of eutrophication in

Slocum Lake, this Board required the discharge to

be moved from Slocum Lake to its

current Ditch discharge point which is Fiddle Creek. (See Exhibit C, Baxter & Woodnian,

Inc. letter dated March 23,

1983)

Fiddle Creek ultimately unloads into the Fox River.

(September 9, 2003 Public Hearing Transcript designated hereinafter as (“Tr.”) Tr. 15-16.

Currently, the Wauconda WSTP discharges

through District’s Ditch system

under Anderson Road into Fiddle Creek.

Current Wauconda WSTP

discharge rates

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average over one million gallons per day.

Ifresidential development in the Wauconda

area is allowed to expand resulting in the state agencies allowing Wauconda WSTP to

increase the discharge per day into the Ditch, the downstream potential for increased

flooding and degradation ofthe surrounding area (Fiddle Creek watershed and Slocum

Basin watershed, i.e., 11 square miles) will escalate and deteriorate at an alarming rate.

The current District Ditch system is inadequate for surface water drainage, let alone an

increase in discharge by the Wauconda WSTP.

Future residential and industrial

developmentwithin the watershed will further impactthis outdated system.

In addition,

the elevation ofthe drainage Ditch invert has a limited

two

foot pitch from the spiliway to

the Fox River into which it ultimately empties.

Silt build-up and culvert problems along

the secondary ditch from the spiiway to the confluence also pose restrictions to the outflow

volume ofWauconda WSTP

effluent and stormwater runoff, not to mention an increase of

possibly tens of millions ofgallons per day from the Wauconda WSTP if the modified

permit is allowed to stand.

MAINTENANCE OF THE DISTRICT’S DITCH

Historically, maintenance ofthe Ditch has been at a minimum, since the District

receives only $14,000 annually in assessments from residents within the boundaries ofthe

District.

The costfor any improvements required as a result of the issuance ofthe NPDES

Permit to the Village of Wauconda would

far exceed the amount received in annual

assessments from residents and a minimal annual

fee paid by the Village of Wauconda.

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Consequently, the Ditch managed by the District

is inadequate to handle the outflow of

effluent from Wauconda WSTF and stormwater runoff.

The ability of the District to

obtain additional funding to improve the capacity and maintenance ofthe Ditch is

extremely limited. Furthermore, if the landowners in the communities downstream and the

adjacent wetlands (Fiddle Creek, Slocum Lake, their tributaries, and associated wetlands

in the Slocum Basin Watershed) have increased susceptibility to contamination from the

effluent from WSTP to their property, the District may be required to defend potentially

thousands of lawsuits alleging contamination and pollutants

from Wauconda WSTP’s

increased discharge.

Consequently, the District

is and shall be so situated as to be

detrimentally affected by the NPDES Permit if the modified NPDES Permit is affirmed by

this Board.

ISSUES RAISED AT PUBLIC HEARING ORIN PUBLIC COMMENT

decision to modify the NPDES permit to the Wauconda

WSTP would allow

WSTP to increase its

design average flow from 1.4 million gallons per day (“MGD”) to 1.9

MGD in Phase I and to 2.4 MGD in Phase 2, with increases in

design maximum flow from

4.0

MGD to 5.963 MGD and to 7.93 MGD.

(See Exhibit “A”).

At the public

hearing held on September 9, 2003, (as well as comments submitted

in opposition to the NPDES Permit during the public comment period), many individuals,

representatives and residents commented, testified, and submitted exhibits, prior to the

District representative,

Ed McGlade.

Most importantly, at the outset of the hearing, the

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Hearing Officer remarked,

at page 7, line 22,

of the September 9, 2003 public hearing

transcript, as follows:

“...And lastly, I would like to avoid unnecessary repetition, if possible.

So, if anyone

before you has already presented testimony that

is contained in your written or oral

comments, please skip over those issues when you testify.

And remember, all

written comments whether or not you

say them out loud tonight will become part of

the official hearing record and will be considered.”

(See Exhibit D, attached hereto and made a part hereof.)

In addition, the Hearing Officer

defined the public hearing as strictly an informational hearing;

advised that the hearing

was not “a contested hearing..”; no sworn testimony was taken; prohibited speakers from

arguing, cross-examining, or engaging in a prolonged dialogue with the panel; and the

Hearing Officer also limited

individuals to five minutes and representatives ofgroups to

ten minutes.

The District maintains that any issues raised during and after Mr. McGlade’s

testimony are issues that should be allowed by this Petition before the Board.

(See Tr. 110

through 114).

Moreover, for the purposes ofthis Petition, testimony by any witness at the

public hearing held on September 9, 2003,

is repetitive of those that would

have been

espoused by the District if the District’s representative would

have been given the

opportunity.

Finally, the Hearing Officer advised that the IEPA would issue a Responsiveness

Summary which would attempt to answer all the relevant and significant questions raised

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in the Hearing or submitted prior to the close of the comment period. (See Tr, 8-9). See

Exhibit “E” attached hereto and made a part hereof.

Through comments and testimony as aforesaid, Petitioner raised and has raised

legal and scientific issues regarding deficiencies in the draft permit and in IEPA’s

consideration ofthe draft permit including, but not limited to, the following:

FALSE PERMIT APPLICATION SUBMITTED BY THE VILLAGE OF

WAUCONDA

The Village ofWauconda submitted a false application

to the IEPA for a modified

NPDES

Permit, forwhich possible criminalviolations may be charged.

(1.)

Note, 415 ILCS 5/44,

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 permit 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, order 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 thejurisdiction.

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.

(2.)

In addition, 415 ILC5

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 ofthe Criminal Code of 1961

(720 ILCS 5/32-2)

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(3).

The Village ofWauconda submitted its NPDES application by

answering questions

falsely. In particular,

Question F-12 of that application

states

“Does the treatment works

currently or has it been notified that

itwill receive

waste from

remedial activities?”

The Village of Wauconda answered

“N/A”, meaning “not

applicable.”

On page 10 ofthe Wauconda WSTP NPDES application, “vinyl chloride”

listed with an asterick

(*),

which indicates “not believed to be present.”

(4).

The Conestoga-Rovers report on the Wauconda Sand & Gravel

Superfund site states to the contrary.

The IEPA failed to consider that the WSTP filed a

false answer on its Application, since the Wauconda WSTP currently receives waste from a

remedial activity, i.e., Wauconda Sand & Gravel Superfund Site; and that vinyl chloride is

present at the facility outflow.

(5).

On information and belief, the IEPA has failed to consider these

facts

and has not reported the Village of Wauconda as having included false and misleading

statements in its Application for the

modified

NPDES permit, pursuant to Section 44

(h)(1).

The District maintains that filing a

false application should have consequences and

at the very least, the Agency’s consideration ofthe fact itself that such conduct was

exhibited to

a governmental agency from which relief is being sought.

NON-COMPLIANCE WITH THE ACT

The IEPA failed to consider Wauconda WSTP’s acts of non-compliance with the

Act and adjudications therefor.

Because of past violations, the WSTP was forced into

compliance with the Act upon a lawsuit having been filed in

1999 in Lake County, Illinois,

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at the request of the IEPA by the Attorney General’s Office.

A consent decree was not

entered in the matter until December 13, 2000.

Furthermore, on September 24

and

October 1, 2003, an industrial user of WSTP sent contaminated water to WSTP and sludge

was released into Bangs Lake Drain.

(See Exhibit

—,

a copy of which is attached hereto

and made a part hereof).

Section 39 ofthe Act, (415 ILCS 5/39) sets

forth the requirements for issuance ofa

permit and states:

“...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

Section, the Agency may consider prior adjudications of noncompliance with this

Act by the applicant that involved a

release ofa 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 ofthis Act, and as are

not inconsistent with the regulations promulgated by the Board hereunder....”

At the September

9 and 10,2003 informational hearing, Ms. Moreno, the IEPA

Attorney, stated as follows:

“...Now, yes, it is true that through the ‘90’s it (WSTP) had a lot ofproblems.

question about that.

But it (WSTP) doesn’t have those same problems anymore.

What happened basically is that in 2000,

1999 and 2000, 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 ofyou who might be interested, it’s No, 99 CH

720.

It was entered on December 13, 2000....”

Tr.

18-19.

Therefore, the IEPA failed to consider the credibility ofthe applicant when

reviewing the contents ofthe WSTP application, and that the IEPA failed to consider the

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past non-compliance of the WSTP with the Act.

The District would contend that past

conduct and non-compliance with the Rules should indicate the likelihood of non-

compliance by the Village ofWauconda in the future.

However, apparently these issues

were not considered seriously by Agency and this Board should

direct the Agency to do so.

NO VALID ANTI-DEGRADATION ANALYSIS WAS CONDUCTED

Pursuant to 35 IlI.Adm.

Code 302.105(a), apparently no valid assessments were

accomplished prior to the draft Permit, which conduct by the Agency

does not comply

with Illinois anti-degradation rules, which protects the existing uses ofthe receiving waters.

To conduct a proper anti-degradation assessment, the potential effect on the aquatic

quality data as ofNovember 28, 1975 would have to be used as a base, thereby comparing,

assessing and/or determining the potential effect of the draft Permit on current existing

uses and receiving waters.

This was not accomplished prior to the creation ofthe draft

Permit.

The 2003 IEPA

anti-degradation assessment referenced a IEPA 1993 facility

stream survey.

That

1993 survey specified elevated levels ofnitrate plus nitrite,

phosphorus, sodium, potassium, boron, strontium,

and oil downstreaniofthe

Wauconcla

outfall.

Notwithstanding these findings, the IEPA failed to assess any one ofthese

contaminants under the 2003 anti-degradation assessment.

In addition, the 2003 anti-

degradation analysis failed to include any mention ofthe 1975 data, the base data for a

anti-degradation

analysis.

Likewise, the IEPA failed to consider the impact from the increased permitted

loadings on existing uses in order to support the assertion that the proposed project “..will

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result in improved effluent quality.” Ex.

No evidence supported such a statement.

All

ofthe evidence is to the contrary, i.e., the IEPA 1993 facility stream survey, the lack of

comparison between the relevant 1975 conditions versus current conditions as well as

future impact conditions,

and other evidence available to theIEPA.

A Final Report for the Preliminary Evaluation ofthe Fiddle Creek Watershed by

KOT Environmental Consulting, Inc. dated October 8, 2003 (“Report”)(A copy ofwhich is

attached hereto as Exhibit H and made a part hereof) performed at the request ofthe

Village ofLake Barrington, conducted a Surface evaluation on the water flow ofthe

discharge from the WSTP which combines with Fiddle Creekwatershed, on through a 360-

acre wetland, enters the District’s drainage channels which flows westward to an

intersectionwith the flow from Slocum Lake continuing southward through a small wet

land area discharging into the Fox River.

That Report compared the then current

conditions with the 1993 conditions.

In 1993, the residence time (i.e., the period of time

that a wetland can hold water) in Fiddle Creek wetland was 38 days.

At the time of the

comparison (2003), the resident time was 11

days, which represented a 71

decrease.

The

Report states that “...under current wastewater loading conditions (1.4MGD), the wetland

will be reduced to a channel taking the 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 of the wetland

altogether.”

Nothing more need to

be stated to have this Board be convinced that to direct

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the JEPA to conduct a proper anti-degradation analysis

is reasonable, necessary, vital and

essential.

Therefore, this Board should

direct the IEPA to conduct a anti-degradation analysis

based upon stream conditions on or about November 28, 1975 in accordance with 35

IlLAdm. Code 302.105(a).

Such an analysis must include nutrients and radium being

contributed by not only the proposed Wauconda expansion, but also the existing treatment

plant contribution (industrial users and Superfund Site).

DISCHARGE ALTERNATIVES NOT CONSIDERED

The Agency’s decision is flawed by the fact that

no consideration was given to any

discharge alternatives.

Such negligence could negatively impact

the District’s position in

relationship to the increased loading and the subsequent impact on downstream

receiving

waters and landowners adjacent and surrounding properties to the Ditch, in light of the

District’s inability to maintain the Ditch (algae and plant growth stimulated by

excessive

nutrients throughout the Ditch as well as sediment build-up), but such issues were not

considered by the IEPA in prior to issuing their decision.

35 Ill.Adm. Code 302.105(f).

Additional discharge points

could avoid the impactto degrading wetlands,

in light

ofsilt and sediment accumulations into and along

theDitch, but were not considered by

the IEPA prior to issuing their decision. An alternative discharge point into a subsurface

pipe was also not considered by the IEPA.

Therefore, the discharge alternatives

were not

considered properly or seriously in light of the significant impact on all aspects ofthe

receiving waters and,

as a result, the

District’s involvement.

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NO OUALITY WATER SAMPLES OBTAINED PRIOR TO DECISION

The IEPA failed to obtain water quality samples from Wauconda WSTP as required

by 35 Ill.Adm.Code 302.105(1), and the three-page anti-degradation assessment was

compiled even though no water quality samples had been taken over the previous ten (10)

years.

The conclusion of the IEPA that “...ammonia and dissolved

oxygen standards will.

not be exceeded..” is made without any basis or authority.

Without

taking water samples

for analysis, how does the Agency

make this unsupported conclusion?

When the IEPA’s

assessment references phosphorus and total nitrogen, the assessment “defers” any analysis

ofthese chemicals until state standards are adopted.

Section 302.105 ofthe Illinois

Administrative

Code does not provide for a deferral or a conclusion to be reached

without

obtaining the required scientific data.

In the end, the IEPA

fails to produce any relevant

data that would support the conclusion that the WSTP

discharge “...wiIl result in improved

effluent quality.”

Because of the serious negative impacts already experienced in Slocum Lake, Fiddle

Creek and Fiddle Creekwetlands, at the hands ofthe Village of Wauconda WSTP, the

Village of Wauconda should be required

to cooperate with theDistrict and other Lake

County government entities towards implementation of

management plan to maintain

and restore Slocum Lake,

Fiddle Creek, and the Fiddle Creek wetlands, as well as the

exploration ofany alternative discharge carrier(s) and downstream receiving water(s)

effected by the discharge from WSTP historically and futuristically.

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NO PRE-TREATMENT PROGRAM IMPLEMENTED

The IEPA has failed to include in the Modified Permit a pre-treatment program for

any current or unidentified industrial users, i.e., Wauconda Sand

and Gravel Superfund

Site, which wastewater is not treated prior to entry into the WSTP for processing.

The

IEPA referenced

a August 3, 2001 letter from the U.S. EPA, that since there were no

industrial users,

a pre-treatment program was not required at that time. (See Exhibit I,

attached hereto and made a part hereof).

Since that time, the IEPA has not re-visited this

issue, other than to require the Village of Wauconda to conduct surveys ofthe industrial

users in the area which are sending their industrial wastewaterto the WSTP.

information and belief, the Village of Wauconda does not diligently or actively monitor the

potential industrial users ofthe WSTP on an ongoing basis.

Clearly, the Village of

Wauconda is

negligent in their targeting ofindustrial waste users of the WSTP since

violations have occurred in the past (See Exhibit E).

The IEPA has failed

to implement

strict procedures upon the Village ofWauconda regarding the scientific

monitoring of

wastewater entering the WSTP from industrial users, i.e., Wauconda Sand

and Gravel

Superfund Site and other industrial users.

The IEPA has failed to consider the impact of

these wastewater contributions to the WSTP from industrial users and the loading from

these users in conjunction with the loading from the requested expansion due to the

residential development in and around Wauconda.

Upon review ofthe Record filed by the IEPA with this Board, the District

respectfully

reserves the right to amend its Petition after such review.

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WHEREFORE, SLOCUM LAKE DRAINAGE DISTRICT, OF

LAKE

COUNTY,

ILLINOIS, Your Petitioner requests a hearing before this Board to review and set

aside the IEPA’s August 23, 2004, decision to issue the Modified NPDES Permit

(

IL0020109) to the Village of Wauconda, and respectfully requests that the Board set

aside the IEPA Decision to Issue the Modified NPDES Permit, and the Petitioner

additionally requests this

Board to:

(A) Direct the Village ofWauconda to implement a formal pre-treatment

program ofwater from remedial sites;

(B)

Direct the IEPA to monitor the Village of Wauconda’s discharge for

organics and heavy metals as well as overflow ofraw sewage from industrial

users ofthe WSTP;

including taking of current water samples from the WSTP and in the

downstream receiving waters;

(D) Direct the IEPA to consider alternative(s) for discharge other than

Fiddle Creek and Fiddle Creek wetlands or Slocum Lake;

(E) Direct the Village of Wauconda to cooperate with Lake County

governmental entities in order to restore and implement a wetland

management plan for Slocum Lake, Fiddle Creek and the surrounding

wetlands; and

(F)

for such other relief as may be deemed appropriate and reasonable

under the circumstances by

this Board.

Bonnie L. Macfarlane

BONNIE MACFARLANE, P.C.

106 W. State Road, P.O. Box 268

Island Lake, Illinois 60042

847-487-0700

Atty.

No. 06205127

General

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