Electronic filing,
PCB 05-55,58,59, Received,
Clerk’s Office, 01/04/05
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF LAKE BARRINGTON, CUBA
)
TOWNSHIP, PRAIRIE RIVERS NETWORK,
)
SU~~~-1~
CLUB, BETH WENTZEL
and
)
c’~$T~
SKRUKRUD,
)
Petitioners
)
V.
)
PCB
05-55
)
(3rd
Party NPDES Permit
ILLINOIS
ENVIRONMENTAL PROTECTION)
Appeal)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
)
SLOCUM LAKE DRAINAGE DISTRICT
OF
)
LA~
COUNTY, ILLINOIS
)
)
Petitioner
)
v.
)
)
PCB 05-58
ILLINOIS ENVIRONMENTAL
)
(3rd Party NPDES Permit
~j~OTECTION AGENCY AND VILLAGE OF
)
Appeal)
WAUC0N~,ILLINOIS
)
)
Respondents.
)
Electronic filing,
PCB 05-55,58,59, Received, Clerk’s Office, 01/04/05
~
1’jJILLIPS,
VERN
MEYER, GAYLE DEMARCO,
GAW~IELLE MEYER, LISA O’DELL, JOAN LESLIE,)
MICHAEL
DAVEY, NANCY DOBNER, MIKE
)
WILLIAMS PARK IMPROVEMENT
)
ASSOCIATION~MAT SCHLUETER, MYLITH PARK)
LOT
OWNERS ASSOCIATION, DONALD KREBS,
)
p~N
BERKSHIRE,
JUDY BRUMME, TWIN
POND
)
~j~MS
HOMEOWNERS ASSOCIATION, JULIA
)
TIJPOR
and CHRISTINE DEVINEY,
)
)
Petitioners
)
)
v.
)
PCBO5-59
)
(3rd
Party NPDES Permit
ILLINOIS ENVIRONMENTAL PROTECTION
)
Appeal)
AGENCY and VILLAGE OF WAUCONDA,
)
(Consolidated)
)
Respondents.
)
NOTICE OF MOTION
TO: See Attached Certificate of Service
Please take notice that on January 4, 2005, we
filed
with
the Illinois Pollution Control
~oard an original and four (4) copies of the attached Motion to Realign and/or Join Parties as
Third Party Respondents and Leave to Amend, copies of which are attached and hereby
served upon you.
rated
January
4, 2005
~0~nieL. Macfarlane
RONNIE MACFARLANE, P.C.
j96 W. State Road,
P.O. Box 268
island Lake, Illinois
60042
841-4870700
~tt~rney No.
06205127
Illinois
of Lake County,
Electronic filing, PCB 05-55,58,59, Received,
Clerk’s Office,
01/04/05
STATE OF ILLINOIS
This Document Printed on Recycled Paper
)
)
COUNTY OF MCHENRY)
CERTIFICATE OF SERVICE
Bonnie L. Macfarlane, an attorney, hereby certifies that a copy of the foregoing
Notice of Motion, Certificate of Service, and Motion
to Realign and/or Join
Parties as
Third Party Respondents and Motion for Leave to Amend, was served on the persons listed
below
by first Class U.S. Mail, proper postage prepaid, on January
4,
2005.
DorothY Gunn, Clerk
Illinois Pollution Control Board
joO
West Randolph Street
Suite
11-500
~bicag0,
llllinois 60601
Percy
L. Angelo
Russell R. Eggert
Kevin
G. Desharnais
Mayer, Brown, Rowe & Maw, L.L.P.
190 S. LaSalle Street
~bicagO,
IL 60603
William D. Seith
Total Envirnomental Solutions, P.C.
631 E. Butterfield Road, Ste. 315
Lombard, IL 60148
Bonnie L. Macfarlane
BONNIE MACFARLANE, P.C.
106 W.
State Road, P.O. Box 268
Island Lake, IL 60042
847~487-0700
Bradley P. Halloran
Illinois Pollution Control Board
James R. Thompson Center
100
West Randolph
St., Ste. 11-500
Chicago, Illinois 60601
Albert Ettinger
Environmental Law and Policy Center
35 E. Wacker Drive, Ste. 1300
Chicago, Illinois 60601
Sanjay K. Sofat, Asst. Counsel
James Allen Day
Illinois Environmental Protection Agency
1021 North Grand Ave., East
P.O. Box
19276
Electronic filing,
PCB 05-55,58,59, Received,
Clerk’s Office, 0 1/04/05
This Document Printed on Recycled Paper
BEFORE THE ILLINOIS
POLLUTION
CONTROL
BOARD
OF LAKE BARRINGTON,
CUBA
)
TOWNSHIP,
PRAIRIE RIVERS
NETWORK,
)
SIEJ~-’~CLUB, BETH WENTZEL and
)
c~~NT~I~A
SKRUKRUD,
)
)
Petitioners
)
v.
)
PCB
05-55
)
(3rd
Party NPDES Permit
ILLINOIS
ENVIRONMENTAL PROTECTION)
Appeal)
AGENCY
and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
SL0~M LAKE DRAINAGE DISTRICT OF
)
Ui~~
COUNTY, ILLINOIS
)
)
Petitioner
)
v.
)
)
PCB 05-58
ILLINOIS ENVIRONMENTAL
)
(3rd Party NPDES Permit
pjtOTECTI0N
AGENCY AND VILLAGE OF
)
Appeal)
wAUC0~A, ILLINOIS
)
)
Respondents.
)
Electronic filing,
PCB 05-55,58,59, Received,
Clerk’s Office,
01/04/05
AL PHILLIPS, VERN MEYER, GAYLE DEMARCO,
)
GABRIELLE MEYER, LISA O’DELL, JOAN LESLIE,)
MICHAEL
DAVEY, NANCY DOBNER, MIKE
)
POLITO, 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.
)
PCB 05-59
)
(3rd
Party NPDES Permit
ILLINOIS ENVIRONMENTAL PROTECTION
)
Appeal)
AGENCY and VILLAGE OF WAUCONDA,
)
(Consolidated)
)
Respondents.
)
JOINT MOTION TO REALIGN AND/OR JOIN PARTIES AS THIRD
PARTY RESPONDENTS AND LEAVE TO AMEND
NOW COMES, Slocum Lake Drainage District of Lake County, Illinois, an agency
of the State ofIllinois, through their attorney, Bonnie Macfarlane, P.C., and The Resident
Group, through their attorney, Jay
J.
Glenn, and pursuant to 735 ILCS 5/2-407 and
Supreme Court Rule 135(b),
and for leave to amend Petitions in Case Nos. PCB 05-58 and
PCB 05-59, in order to designate the Village of Lake Barrington and Cuba Township as
Third Party Respondents, moves this Honorable Illinois Pollution Control Board for an
order to realign and/or join the Village of Lake Barrington and Cuba Township as Third
Party Respondents in PCB
05-58 and PCB 05-59, and in support of said motion, states as
follows:
1.
That on or about December
17, 2004, the Village of Lake Barrington and Cuba
Township announced the joint execution and approval of an Intergovernmental
Agreement
Betsveen the Village of Lake Barrington, The Village
of Wauconda and the
Township of
Cuba Relative to Fiddle Creek
(hereinafter referred to
as “Intergovernmental
Agreement”,
a copy of which is attached hereto and made a part hereof as
Exhibit “A”).
2.
Your Movants are requesting that the Illinois Pollution Control
Board take
official and/or judicial notice of the execution of the Intergovernmental
Agreement between
the Village of Lake Barrington, Cuba Township and the Village of Wauconda, and said
Intergovernmental
Agreement be spread of record.
3.
That Slocum Lake Drainage District of Lake County, Illinois, is not a party to the
Intergovernmental
Agreement.
4.
That the Village of Lake Barrington, Village ofWauconda,
and Cuba
Township
have, for a number of months, held secret negotiations relating to the Intergovernmental
Agreement.
5. That the Resident
Group has never been involved with any negotiations relating
to the Intergovernmental Agreement and only learned of the executed Agreement on or
about December
17, 2004.
6.
That the Village of Lake Barrington and Cuba Township have, by appropriate
action of their respective governing boards, authorized execution of the Intergovernmental
Agreement.
7, That pursuant to 5 ILCS 220/1 et seq. (1997), the Village of Lake Barrington and
Cuba Township have agreed with the Village of Wauconda to:
“...contract or otherwise associate among themselves to exercise, combine, or
transfer any power or function in any manner not
prohibited by law or by ordinance and
may use their credit, revenues, and other resources to pay
costs related to
intergovernmental activities....”
8.
That pursuant to paragraph 3 of the Intergovernmental
Agreement, the Village
of Lake Barrington and Cuba Township arc obligated “...to cooperate with the Village of
Wuaconda
and withdraw their prior objections
to and appeals relative to Phase I and
Phase II of Wauconda’s Expansion NPDES Permit(s)”.
9.
That pursuant to paragraph
7(E) of the Intergovernmental Agreement, “...The
parties agree
to reasonably cooperate
in a good
faith effort to implement this Agreement,
including but not limited to, the joint filing of such stipulations
and/or other pleadings as
appropriate for that purpose.”
10.
That pursuant to paragraph
7(F) of the intergovernmental
Agreement, the
Village of Lake Barrington and Cuba Township
have agreed that “...in the event the
Wauconda NPDES Permit as currently written is affected by a force majeure or
is
substantially modified (except as agreed to by Wauconda in this Agreement and/or by a
stipulations
and/or settlement agreement approved by Wauconda) in the present IFCB
proceedings (IPCB Docket No. 05-55,
05-58
and 05-59), then the parties hereto will meet
and attempt
to renegotiate in good faith thisAgreement in its entirety in order to endeavor,
to the extent that it still may be possible, to effect the goals and purposes
of this
Agreement...”
11.
That the Intergovernmental Agreement represents the formation of a
governmental partnership
between the Village of Lake Barrington, Village of Wauconda
and Cuba Township
to move
Wauconda wastewater/affluent through the corporate
limits
of Village of Lake Barrington and Cuba Township to the Fox River.
I
12.
That the parties
as amended
(i.e.,captions) for Third Party Appeal Nos.
PCB
05-58 and PCB 05-59, (reflecting the realties of the executed
Intergovernmental
Agreement), are reflected on the attached Exhibit “B”, which is attached hereto and made
a part hereof.
13.
Your Movants
hereby request that the Village of Lake Barrington and Cuba
Township
be realigned and/or joined as Third
Party
Respondents
in IPCB DocketNo. 05-
58 and No. 05-59.
WHEREFORE, Slocum Lake Drainage District and the Resident Group,
respectfully move this Honorable
Illinois Pollution Control Board for the following relief:
A.
Takejudicial
notice of the execution of the Intergovernmental
Agreement
between the Village of Lake Barrington, Cuba Township and the
Village of Wauconda;
B.
That the Petitions in case Numbers PCB 05-58 and PCB 05-59 be amended
to
reflect that the Village of Lake Barrington and Cuba Township
be and are
named
as
“Third Party
Respondents”, in said case Numbers before this Honorable Board;
Dated: January
4, 2005
BonnieL. Macfarlane
BONNIE MACFARLANE, P.C.
106 W. State Road, P.O. Box 268
Island Lake, Illinois 60042
847-487-0700
PLA1Nfl~p’~
J
EXHIBIT
~~fl~((
8-16278
INTERGOVERNMENTAL AGREEMENT BETWEEN
THE VILLAGE OF LAKE BARRINGTON, THE VILLAGE OF WAUCONDA
AND THE TOWNSHIP
OF CUBA RELATIVE TO FIDDLE CREEK
THIS
INTERGOVERNMENTAL
AGREEMENT
(this
“Agreement”),
made
and
entered
into
this
17th
day
of
December,
2004,
pursuant
to
authority
of
the
Illinois
Constitution
and
State
Statutes,
by
and between
the
Village
of
Wauconda,
an
Illinois
Municipal
Corporation
(hereinafter
referred
to
as
“Wauconda”),
the
Village
of
Lake
Ban-ington,
an
Illinois
Municipal
Corporation
(hereinafter
referred
to
as
“Lake
Barrington”), and the Township of Cuba (hereinafter referredto as the “Township”):
WJTNESSETH:
WHEREAS, Article VII,
Section
10, of the
Constitution of the
State of Illinois of
1970, provides that units of local government may contract or otherwise associate among
themselves
to
exercise, combine,
or
transfer
any power
or
function
in
any manner not
prohibited by law or by ordinance and may use their credit, revenues, and other resources
to pay costs related to
intergovernmental activities and
5
1LCS
220/1 et seq. (1997) further
• authorizes Intergovernmental Cooperation; and
•
WHEREAS, the
Village of Wauconda was
issued on August 23,
2004 a National
Pollutant Discharge Elimination System (hereinafter “NPDES”)
permit
(the
“Expansion
NPDES permit”) with the
Illinois Environmental Protection Agency (hereinafter “IEPA”)
for
the
Wauconda
Waste
Water
Treatment
Plant
(hereinafter
“the
Facility”
or
“the
Wauconda WWTP”)
to discharge
effluent into waters of the State of Illinois and to
allow
an increase in effluent volume to be discharged from the Facility into aheavily channelized
drainage-way
commonly
known
as
Fiddle
Creek
(hereinafter
“Fiddle
Creek”),
an
intermittent receiving stream whichis tributaryto the Fox River; and
WHEREAS, Wauconda
currently discharges
to
Fiddle Creek
pursuant to
NPDES
Permit
1L0020 109,
which
allows
it
to
discharge
into
Fiddle
Creek
at Anderson
Road
within Lake Barrington; and
WHEREAS,
Fiddle
Creek
passes
along
the
Northern
corporate
limits
of
and
adjacent
to
residential
areas
within
Lake
Barrington
and
within
the
Township
and
is
accessible
to
the
Lakeland
Estates
and
Twin Pond
Farm residential
subdivisions
within
Lake Barrington as well as Lake County ForestPreserve District property; and
WHEREAS,
Wauconda,
Lake
Barrington, ‘the
Township
and
its
residents
are
concerned
that
the
discharge
from
the
Facility
be
carefully
treated,
monitored
and
controlled
so as
to not adversely affect the health, sanitation, and welfare of the residents
of Wauconda, LakeBarrington, the Township; and
20\74.43\00009792.DOC
WHEREAS, while there is disagreement among the parties
as to the environmental
impact this increase in pollutant loading and flow will have, Wauconda, Lake Barrington,
and the
Township
have
common
goals
of protecting and preserving the
environment
as
well as being good neighbors; and
•
WHEREAS,
Wauconda,
Lake
Barrington,
and
the
Township
also
share
the
common
goal that the Facility
be
improved, operated,
and maintained
in
such a manner
that
its
sewage
treatment
operations
will
represent
a
model
for
protection
of
environmentally sensitive areas; and
1YVHEREAS,
the
Parties
hereto
understand
and
agree
that
in
order
to
make
it
•
feasible
to
provide
certain
additional
water
purification
objectives
and
related
improvements,
funds
for
the
design
and
construction
thereof must
be
obtained
from
•
sources other than the general or special funds and accounts ofthe Parties; and
WHEREAS,
it
has
been
determined by
the
respective
governing
boards
and/or
corporate
authorities
of
Wauconda,
Lake
Barrington,
and
the
Township
that
this
•
Agreement is in the best interests of each ofsaid units oflocal government; and
•
WHEREAS, Wauconda, Lake Barrington, and the
Township have by
appropriate
action of their
respective
governing
boards
and/or
corporate
authorities,
authorized
the
execution anddelivery ofthis Agreement.
NOW,
THEREFORE,
upon
the
consideration
of the mutual
promises
contained
herein
and upon the recitals
hereinabove set forth,
it is hereby agreed among Wauconda,
Lake Barrington, and the Township as follows:
•
1.
Recitals.
The parties hereto
find that the recitals to this Agreement are
•
true
and correct
and that each
of the foregoing recitals
is hereby incorporated herein
the
same as ifeach had been set forth in its entirety in the body Of this Agreement.
2,
Reports.
From and after the
effective date
of this Agreement,
copies
of
discharge monitoring reports (“DMRs”) and other periodic reports required
to be
filed
by.Wauconda with any county, state or federal agency relating to the Facility, its operation,
and NPDES permit Number
1L0020109 shall be forwarded
at the
time of submission of
such
reports
to
such
agencies,
to
the
Village
Clerk
of
Lake Barrington
for a
period
beginning on January
1, 2005, and ending on December 31, 2014.
Thereafter, such reports
will be
forwarded by Wauconda to the Village
Clerk of Lake Barrington annually for all
subsequent
annual
periods
ending
December
31.
The
initial
and amended
construction
schedules,
when available,
for the Phase
I and Phase
II WWTP expansion
shall
also be
provided to Lake Barrington.
3.
In
consideration for the undertakings by Wauconda
as herein set forth and
as set forth below,
Lake Barrington and the Township agree to cooperate with Wauconda
and withdraw
their
prior
objections
to
and
appeals relative to
Phase
I
and
Phase
II
of
Wauconda’s Expansion NPDES Permit(s), to wit:
20\74A3\00009792DOC)
-2-
A.
Wauconda
agrees that as part
of its Phase I
treatment plant
expansion to a
design
average, flow
of
1.9
MGD,
and provided
that
the
NPDES
Permit
remains
otherwise
valid
and
substantially
unmodified
by
the
present
proceedings before the
Pollution
Control Board,
to
wit:
IPCB
docket nos.
05-55;
05-58
and
05-59
(hereinafter
referred
to
as
the
“present
fPCB
proceedings”), except
as agreed
to by Wauconda in this Agreement
and/or
by
stipulation
approved
by
Wauconda
in
said present
1PCB
proceedings,
Wauconda shall install, maintain, and keep in operation such equipment and
other
Facility
improvements
as
necessary
to
provide
loading
limits
on
•
Fiddle
Creek
of
117
lbs/day
for
CBOD5, and
140
lbs/day for
suspended
solids
based on
annual
averages,
and achieve
a
I mg/L
phosphorus
level
based on a monthly average, and shall requestand accept an NPDES permit
•
•
incorporating such
limits for the Phase I
operations.
The Parties
recognize
that the August 23, 2004 NPDES permit allows for the discharge of almost
double the load of
117 lbs/day for CBOD5, and
140
lbs/day for suspended
solids and requires that the effluent achieve a
1
mg/L phosphorus level,
all
based
on monthly averages.
Wauconda shall use its best efforts to achieve
the
lower,
designed
discharge
limits
on
an
annual
average.
Wauconda
agrees
that
it
shall
make
these
design
capabilities
part
of
the
IEPA
construction permit for the Phase I
and Phase II treatment plant expansions
and
Wauconda
shall
operate
these
facilities
as
efficiently
as
practicable.
•
The
standards established under this Paragraph A shall be carried forwardto
the
Phase
II
design,
improvements,
and
operations.
To
the
extent that
unanticipated
costs
are required
to
be
incurred
by
Wauconda
in
order
to
carry forward
the
loading
limits
as
stated in
this Paragraph A to
Phase II,
Wauconda and Lake Barrington
will
cooperate and utilize their respective
best
efforts
in
attempting
to
secure
grant
funding
for
such
unanticipated
costs,
but
Wauconda’s
obligations
under
this Paragraph
A
shall
not
be
contingent on the successof such efforts.
B.
Wauconda
has
already
designed
and
it
shall install
as
part
of Phase
I,
•
effluent disinfection capabilities to meet
the NPDES fecal
coliform limits,
and Wauconda’s Facility shall,
beginning with the date of operation of the
Phase
I
improvement,
meet these
fecal
coliform limits
in
accordance with
its
NPDES permit.
Until that time, Wauconda shall remain
in conformity
with its current NPDES permit limitations
on fecal coliform.
These effluent
disinfection capabilities to
meet the NPDBS
fecal
coliform
limits
shall
be
carried forward to the Phase
LI improvements andoperations andthe related
NPDBS permit.
C.
Wauconda
has
developed
an
industrial
discharge
and
pretreatment
monitoring program
and Wauconda
has secured
approval of this program
from the appropriate regulatory agencies. Wauconda
agrees to maintain the
operation of this program and comply with the regulations of the applicable
regulatory authorities pertaining thereto.
20\74.43\00009792.DOC
-.)-
D.
Wauconda
has designed, and
has obtained NPDES permit approval for, and
shall install,
as part of Phase
1, sufficient aeration capabilities to maintain 6
mg/L dissolved oxygen at the point the effluent enters Fiddle Creek.
These
aeration
capabilities shall be
carried forward to the Phase H improvements
•
and operations and the relatedNPDES permit.
E.
Wauconda, Lake Barrington, and Cuba Township agree that within the next
year following the
execution of this Agreement, they shall jointly cooperate
with
each
other
and
take
such
separate
and/or
collective
action
as
reasonably
necessary
to jointly
locate,
install,
operate,
and
maintain,
at
Wauconda’s
expense,
four
(4)
monitoring
wells
at mutually
agreed
upon
locations,
and Wauconda
shall, at Wauconda’s expense,
periodically
test
both
the
Wauconda
WWTP
effluent
and
the
water
quality
of
said
•
monitoring wells
as described below:
•
(1)
Within
the
initial year following the
execution
of this
Agreement,
Wauconda
shall
quarterly
test
the
effluent
from
the
Wauconda
WWTP
for
Priority
Pollutants
plus
Tentatively
Identified
•
Compounds
(including
but
not
limited
to
MTBE),
Endocrine
Disrupters,
Fecal
Coliform,
B-Coil
Bacteria,
and
Nitrates.
The
•
availability
of
commercial
laboratory
testing
for
endocrine
disrupters is evolving and will expand from year to year.
Initially, at
a minimum,
testing
shall
include
USEPA Method
525.2
for
semi-
volatile synthetic organic compounds.
(2)
After the
installation of the
above-described monitoring wells, and
upon
completion
of
the
quarterly
effluent
testing
described
in
•
Subparagraph E(l), the monitoring wells shall be tested quarterly for
one year by Wauconda for those compounds
or substances listed in
Subparagraph
E(l)
above
which were determined
to
be
present in
the
Wauconda
WWTP’s
effluent
based
on
the
initial
year
of
quarterly
testing
of
Wauconda’s
WWTP
effluent,
and
for
any
chlorinated solvents detected, the knownproducts of degradation.
(3)
After the firstyear of operation of the monitoring wells, the effluent
from the Wauconcla WWTP
shall
be
tested by Wauconda annually
for
Priority
Pollutants
plus
Tentatively
Identified
Compounds
•
(including but
not
limited
to
MTBE), Endocrine Disrupters,
Fecal
Coliform,
E-Coli
Bacteria,
and Nitrates,
and
all
such
testing
shall
occur during
the Wauconda
WWTP’s low flow period.
•
(4)
The
water
in
each of the
monitoring wells,
after_the
initial year of
quarterly
testing
described
in
Subparagraph
E(2)
above,
shall
be
tested
annually
by
Wauconda
for
any
Priority
Pollutants
plus
Tentatively
Identified
Compounds
(including
but
not
limited
to
MTBE), Endocrine Disrupters, Fecal Coliform, E-Coli Bacteria, and
Nitrates detected during the effluent testing for that year, and for any
chlorinated solvents
detected, the known products of degradation.
20\74.43\00009792.DOC
Lake Barrington
shall
have the right
to be present for the collection
of all
effluent
and monitoring well
water
samples
which
are
collected
for
the
testing contemplated by this Paragraph (E), as well as for the testing of such
samples,
and for these purposes,
Wauconda shall provide Lake Barrington
with reasonable notice thereof.
Lake Barrington
shall also have the right to
collect
and
test
its
own samples
from
said monitoring wells
at the
same
time, at its own expense. All information gathered through such effluent and
monitoring well testing shall not be considered
the proprietary information
of
any
parties,
and,
upon
receipt
by
Wauconda
in
written
form,
such
information
shall
be
promptly
shared
with
the
other
parties
to
this
Agreement and such information shall
be considered part of the permanent
public records of the Village of Wauconda.
F.
Wauconda shall, at its expense, upon the effective
date of this Agreement,
design nitrate removal capabilities for the Phase I and Phase II expansion of
its
treatment plant.
The
Phase
II
expansion of the
treatment plant to
2.4
MGD
design
average
flow
by
Wauconda
shall
include
nitrate
removal
capabilities,
provided
that
Wauconda
receives
complete
grant
funding
through
state
or
federal
sources
for
the
design,
equipment
and
facilities
•
necessary to
achieve
such
nitrate removal, and,
in
such
event,
Wauconda
shall
not
delay
the
operation of the
nitrate
removal
facilities beyond
the
later of January
1,
2007 or
the commencement of the Phase
H expansion
and
shall
operate
such nitrate
removal
facilities to
assure
no
net
increase
over existingnitrate loading.
For the purposes of this Paragraph F, “full” or
“complete” grant of funding shall not include design
costs incurredprior to
the
approval of
a
grant agreement,
provided,
however,
such
design
costs
may be
applied
for within
the
facilities grant application,
or by
way of a
separate
grant
application,
but
the
receipt
of
grant
funding
for
•
reimbursement of said
design
costs, from
whatever source,
shall
not be a
condition
to
Wauconda’s
obligations
as
provided
in
this
Paragraph
F.
Wauconda
agrees
that
in
the
event
full
funding
is
obtained for
the
said
nitrate
removal
facilities,
then
Wauconda
shall
make
these
design
capabilities part of the TEPA construction permit for the Phase II treatment
plant expansion.
In
the event
full funding
is
obtained for nitrate removal
within a
time
frame
which is
reasonably
timely
in
order
to
make
these
design
capabilities
part
of the
EPA
construction
permit
for
the
Phase
I
treatment
plant
expansion,
then
Wauconda
shall
include
such
nitrate
removal capabilities as part of the Phase I expansion. Wauconda
shall also
request and accept an NPDES permit modification incorporating such limits
for
its
Phase
II
operations,
and
at
the
same
time
as
said
NPDES
permit
modification, Wauconda
shall also request and accept a Special
Condition
to
the
modified NPDES permit requiring Wauconda to
monitor TKN and
•
Nitrate-N
one day per
week
in
both
its imfluent
and effluent.
In
addition,
during
thc
initial year after this Agreement becomes
effective,
Wauconda
shall monitor TKN and Nitrate one day per
month in
both
its influent and
2O\74.43~OQOO9792.DOC
•
•
-5-
•
effluent to
establish base line data
for this provision.
For the purposes of
•
this Agreement, the
term
“no net
increase”
shall mean as measured on
an
annual
average basis,
no
increase
in
nitrate
loading over
the
quantity
of
nitrates currentlycontained in the effluent from the Wauconda WWTP”.
G.
Additionally,
Wauconda,
Lake
Barrington,
and
the
Township
agree
to
cooperate to jointly attempt to secure grant funds forthe
following purposes
and
to
apply
such
grant
funds
so
obtained
according
to
the
following
hierarchy
of
priorities
to
the
greatest
extent
permitted
by
applicable
authorities:
(1)
to
reimburse
Wauconda
for
the
cost
of
design,
acquisition
and
installation
of
such
equipment
necessary
and
other
Facility
improvements
so
as
to
effect
nitrate
removal
from
the
Facility’s
effluent, as stated in Paragraph
3(F);
•
(2)
to provide funds
for planning,
flow restoration and natural resource
management
of
the
Fiddle
Creek
wetland
complex
and
Slocum
•
Drainage Ditch in consultation with relevant environmental
groups,
including but not limited to, Citizens for Conservation, Inc.
Similarly, to the extent that grant resources are available from time to
time,
Lake
Barrington,
Wauconda
and
the
Township
agree
to
undertake
in
a
cooperative
effort with the
Slocum
Drainage District,
or
its successor, the
efforts described in (2) above.
4.
The Parties agree that
in the
future,
as circumstances change and develop,
they each will continue to be engaged in matters related to the environmental protection of
Fiddle
Creek,
the
Fox
River
and
associated
waters,
including,
but
not
limited
to
proceedings before the Illinois
Environmental Protection Agency and the Illinois Pollution
Control Board.
Nothing in this Agreement shall be
construed as a bar to such activity by
either party or
as an
admission by either party with respect to any matter, except that this
Agreement
shall
constitute
a
complete
resolution
and
settlement
of
the
present
PCB
proceedings
as between the Parties hereto, anda stipulation reflecting all or aportion ofthe
terms
of this Agreement
may be
entered of record
in
the
present
PCB
proceedings
if
requested by Wauconda.
5.
Remedies.
It is agreed that abreach of this Agreement by oneparty may
cause
irreparable
injury to
the
other party
and that,
in the
event
of a
breach,
a party so
injured shall
be entitled, without
limiting its
rights,
to
seek injunctive relief against said
breach in the Circuit Court ofLake County.
Further, each party hereto shall have all
rights
andremedies available at law or in equity in any litigation or administrative proceeding in
connection with
their respective obligations under this Agreement.
Nothing herein shall
be
construed
to
require
one
party
to
pay any
costs,
charges,
and
expenses,
including
attorneys’
fees,
related
to
any
litigation,
administrative
proceeding,
negotiation,
or
transaction that results
from the unlawful,
or negligent or willful act or omission to
act of
t20\74.43\00009792.DOC
•
-6-
the
other party(ies)
or
their
respective
officers,
agents
or
employees
in
connection with
carrying out such obligations of other parties under this Agreement.
6.
Notices.
All
notices,
requests,
demands,
and
other
communications
(collectively, “Notices”) hereunder shall be
in writing and given by
(1) established express
delivery
service
which maintains
delivery records,
(ii)
hand
delivery, or
(iii) certified
or
registered mail,
postage
prepaid,
return
receipt requested,
to
the
parties
at the
following
addresses,
or
at such
other address
as
the
parties
may designate by Notice
in
the above
manner:
To Wauconda:
To LakeBarrington:
To Township of Cuba:
Village of Wauconda
Village ofLakeBarrington
Cuba Township
101
N.
Main Street
23860 Old Barrington Road
28000 W.
Cuba Road
Wauconda, IL 60084
Lake Barrington, IL
60010
Barrington, IL
60010
Attn:
Village President
Attn:
Village President
Attn:
Township
Supervisor
Notices may also be given by fhx, provided the Notice is concurrently given by
one of the
above methods.
Notices are effective
upon receipt,
or upon attempted delivery if delivery
is
refused
or
impossible
because
of
failure
to
provide
a
reasonable
means
for
accomplishing delivery.
7.
Miscellaneous:
A.
Paragraph titles are descriptive only and do not defme or in any other way
limit the contents of each paragraph.
Words of the masculine gender shall
be read to
include
the feminine
and neuter genders, and the
singular shall
include the plural.
B.
If any provision of this Agreement shall be declared invalid for any reason,
such
invalidation
shall not
affect
any other provisions of this Agreement
•
which can be
given effect without the invalid provision
and to
that extent,
the provisions of this Agreement are severable.
C.
This
Agreement
shall
be
governed by the
applicable laws
of
the
State
of
Illinois.
D.
This Agreement
shall
be
binding on all parties
and may not be modified or
amended orally, but only in writingsigned by
all parties hereto.
E.
The
parties
agree
to
reasonably
cooperate
in
a
good
faith
effort
to
implement this Agreement, including
but not limited to,
the joint
filing of
such stipulations and/or other pleadings as appropriate forthat purpose.
~2O\74.43\OOOO9792.DOC
F.
In
the
event the
Wauconda NPDES Permit as currently written
is affected
by
a force
majeure
or
is
substantially
modified
(except
as
agreed
to
by
Wauconda
in
this
Agreement
and/or
by
a
stipulation
and/or
settlement
agreement approved by Wauconda) in the present IPCB proceedings (IPCB
Docket No.
05-55, 05-58
and
05-59),
then the parties
hereto will meet and
attempt to renegotiate in good faith this Agreement in its entirety in order to
endeavor,
to
the extent that it still
may be possible, to effect
the goals and
purposes of this Agreement.
G.
This Agreement
shall
become effective only upon approval and execution
hereof by
all
the parties hereto
on
or before
December 21, 2004
and upon
the execution by Wauconda and all
the appellants
in IPCB Docket No. 05-
55
of a stipulation
and/or settlement agreement in the present IPCB
appeal
providing for
the
withdrawal
forthwith of said appeal
and
the
objections
contained
therein,
which
stipulation
and/or
settlement
agreement
shall
include,
among other
things,
the
right of all
of
said
appellants
in
IPCB
Docket No.
05-55
to enforce this Agreement. Anything in this Agreement to
the contraiy notwithstanding, if all administrative and/or trial and appellate
court
appeals on the
subject
NPDES
permit
are not
exhausted
Within
ten
(10)
months
of
the
date
of
this
agreement,
then,
at the
sole
option
of
Wauconda, Paragraph
3(F)
and 3(G) of this Agreement shall be considered
null and void and of no effect.
H.
This
Agreement
may
be
executed
in
one
or
more
identical
counterparts,
which counterparts when affixed together, shall constitute one and the same
document.
IN WITNESS WHEREOF, the parties hereto
have, pursuant to the authority of the
respective
Boards
and/or Corporate
Authorities,
caused this Agreement
to
be
executed,
attested and delivered by its duly authorized officers as ofthe date first mentioned above.
VILLAGE
OF
WAUCONDA,
VILLAGE OF
LALKE BARRINGTON
a municipal corporation,
a municipal corporation,
By:
_________________________
By: ________________________
Its Village President
Its Village President
ATFEST:
•
AYrEST:
Its Village Clerk
Its Village Clerk
• 20\74.43\00009792.DOC
-8-
TOWNSRIP
OF
CUBA
By:
Its
Supervisor
ArrEST:
Its Clerk
420\74.43\00009792.DOC
-9-
EXHIBIT
“B”
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
VILLAGE OF LAKE BARRINGTON, CUBA
)
TOWNSHIP,
PRAIRIE RIVERS
NETWORK,
)
SIERRA CLUB, BETH WENTZEL and
)
CYNTHIA SKRUKRUD,
)
)
Petitioners
)
)
PCB
05-55
)
(3”’ Party NPDES Permit
ILLINOIS ENVIRONMENTAL PROTECTION)
Appeal)
AGENCY and VILLAGE OF
WAUCONDA,
)
)
Respondents.
)
SLOCUM LAKE DRAINAGE DISTRICT OF
)
LAKE COUNTY, ILLINOIS
)
)
Petitioner
)
v.
)
)
PCB 05-58
ILLINOIS ENVIRONMENTAL
)
(3rd Party NPDES Permit
PROTECTION AGENCY AND VILLAGE OF
)
Appeal)
WAUCONDA, ILLINOIS
)
Respondents.
)
)
v.
)
VILLAGE OF LAKE BARRINGTON, CUBA
)
TOWNSHIP,
)
Third Party Respondents.
)
AL PHILLIPS, VERN MEYER, GAYLE DEMARCO,
)
GABRIELLE
MEYER, LISA O’DELL, JOAN LESLIE,)
MICHAEL DAVEY, NANCY DOBNER, MIKE
)
FOLITO, 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.
)
PCB
05-59
)
(3”’ Party NPDES
Permit
ILLINOIS ENVIRONMENTAL PROTECTION
)
Appeal)
AGENCY and VILLAGE OF WAUCONDA,
)
(Consolidated)
)
Respondents
)
)
V.
)
VILLAGE OF LAKE BARRINGTON, CUBA
)
TOWNSHIP,
)
Third Party
Respondents.
)
