ILLINOIS POLLUTION CONTROL BOARD
October 7, 2004
VILLAGE OF LAKE BARRINGTON,
CUBA TOWNSHIP, PRAIRIE RIVERS
NETWORK, SIERRA CLUB, BETH
WENTZEL and CYNTHIA SKRUKRUD,
Petitioners,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and VILLAGE
OF WAUCONDA,
Respondents.
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PCB 05-55
(Third-Party NPDES Permit Appeal –
Water)
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SLOCUM DRAINAGE DISTRICT OF
LAKE COUNTY, ILLINOIS
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and VILLAGE
OF WAUCONDA,
Respondents.
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PCB 05-58
(Third-Party NPDES Permit Appeal –
Water)
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AL PHILLIPS, VERN MEYER, GAYLE
DEMARCO, GABRIELLE MEYER, LISA
O’DELL, JOAN LESLIE, MICHAEL
DAVEY, NANCY DOBNER, MIKE
POLITIO, WILLIAMS PARK
IMPROVEMENT ASSOCIATION, MAT
SCHLUETER, MYLITH PARK LOT
OWNERS ASSOCIATION, DONALD
KREBS, DON BERKSHIRE, JUDY
BRUMME, TWIN POND FARMS
HOMEOWNERS ASSOCIATION, JULIA
TUDOR, and CHRISTINE DEVINEY,
Petitioners,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and VILLAGE
OF WAUCONDA,
Respondents.
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PCB 05-59
(Third-Party NPDES Permit Appeal –
Water)
ORDER OF THE BOARD (by G.T. Girard):
On September 17, 2004, Village Of Lake Barrington, Cuba Township, Prairie Rivers
Network, Sierra Club, Beth Wentzel and Cynthia Skrukrud (Village petitioners ) filed a petition
asking the Board to review an August 23, 2004 determination by the Illinois Environmental
Protection Agency (Agency). On September 27, 2004, Slocum Lake Drainage District of Lake
County, Illinois filed a petition for review of the Agency’s decision (Drainage District
petitioners). Also on September 27, 2004, Al Phillips, Vern Meyer, Gayle Demarco, Gabrielle
Meyer, Lisa O’Dell, Joan Leslie, Michael Davey, Nancy Dobner, Mike Politio, Williams Park
Improvement Association, Mat Schlueter, Mylith Park Lot Owners Association, Donald Krebs,
Don Berkshire, Judy Brumme, Twin Pond Farms Homeowners Association, Julia Tudor, and
Christine Deviney filed a petition for review of the Agency’s decision (Association petitioners).
(collectively, petitioners).
Petitioners appeal the Agency’s determination to grant a National Pollutant Discharge
Elimination System (NPDES) permit to Village of Wauconda (Wauconda). The permit was
issued to allow an increase in discharges for Wauconda’s wastewater treatment plant into Fiddle
Creek, a tributary of Fox River. The wastewater treatment plant is located in Wauconda, Lake
County.
Village petitioners appeal on several grounds, including that no limits were imposed for
total nitrogen discharges, no limitations were imposed to address dissolved oxygen issues, no
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pretreatment was required, and a proper antidegradation assessment was not performed.
Drainage District petitioners and Association petitioners appeal on several grounds, including
that the Agency did not follow proper permit procedures, the antidegradation assessment was
inadequate and no pretreatment program was implemented. For the reasons set forth below, the
Board accepts the petitions for hearing.
THIRD-PARTY APPEAL
Section 40(e)(1) of the Environmental Protection Act (Act) (415 ILCS 5/40(e)(1) (2002))
allows certain third parties to appeal Agency determinations to grant NPDES permits. The third
party’s petition to the Board must contain:
a demonstration that the petitioner raised the issues contained within the petition
during the public notice period or during the public hearing on the NPDES permit
application, if a public hearing was held; and
a demonstration that the petitioner is so situated as to be affected by the
permitted facility. 415 ILCS 5/40(e)(2) (2002);
see also
35 Ill. Adm. Code
105.210(d).
The petition also must, among other things, specify the grounds for appeal and include a copy of
the issued permit. 35 Ill. Adm. Code 105.210(a), (c). The third party must file the petition
within 35 days after the “date of issuance of the Agency’s decision.” 415 ILCS 5/40(e)(1)
(2002);
see also
35 Ill. Adm. Code 105.206(b). If the Board determines that the third party’s
petition for review is not “duplicitous or frivolous,” the Board will hear the petition. 415 ILCS
5/40(e)(3) (2002);
see also
35 Ill. Adm. Code 105.214(d).
The petitions state that, during the Agency’s public notice period and at the public
hearing on Wauconda’s NPDES permit application, petitioners raised the issues on which they
now appeal. The petitions also state that petitioners are so situated as to be affected by the
permitted facility and include a copy of the issued permit. The petitions meet the content
requirements of 35 Ill. Adm. Code 105.210. Petitioners also filed their petitions within 35 days
after the Agency issued its determination.
An action before the Board is duplicitous if it is “identical or substantially similar to one
brought before the Board or another forum.” 35 Ill. Adm. Code 101.202. An action before the
Board is frivolous if it is “a request for relief that the Board does not have the authority to grant”
or “fails to state a cause of action upon which the Board can grant relief.”
Id.
No evidence
before the Board indicates that these actions are duplicative or frivolous. The Board accepts the
petitions for hearing. The Board also consolidates these proceedings for hearing.
HEARING AND DECISION DEADLINE
Petitioners have the burden of proof. 415 ILCS 5/40(e)(3) (2002);
see also
35 Ill. Adm.
Code 105.112(a). Hearings “will be based exclusively on the record before the Agency at the
time the permit or decision was issued.” 35 Ill. Adm. Code 105.214(a);
see also
415 ILCS
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5/40(e)(3) (2002). Hearings will be scheduled and completed in a timely manner, consistent with
the decision deadline (
see
415 ILCS 5/40(a)(3) (2002)), which only Wauconda may extend by
waiver (
see
35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision
deadline, Wauconda “shall be entitled to an Appellate Court order pursuant to subsection (d) of
Section 41 [415 ILCS 5/41(d) (2002)].” 415 ILCS 5/40(a)(3) (2002). Currently, the decision
deadline is January 15, 2005 (the 120th day after September 17, 2003, the date that Village
petitioners filed their petition).
See
35 Ill. Adm. Code 105.114. The Board meeting immediately
before the decision deadline is scheduled for January 6, 2005.
AGENCY RECORD
Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
record of its determination within 30 days after petitioners filed the petitions. 35 Ill. Adm. Code
105.212(a). If the Agency wishes to seek additional time to file the record, it must file a request
for extension before the date on which the record is due to be filed. 35 Ill. Adm. Code 105.116.
The record must comply with the content requirements of 35 Ill. Adm. Code 105.212(b).
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on October 7, 2004, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
