BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
VILLAGE OF LAKE BARRINGTON,
)
CLERK’S OFFICE
CUBA TOWNSHIP, PRAIRIE RIVERS )
JAN
112
NETWORK, SIERRA CLUB, BETH
)
WENTZEL and CYNTHIA SKRUKRUD,)
STATE OF ILLINOIS
Pollution Control Board
Petitioners,
)
v.
)
PCB 05-55
(Permit Appeal-NPDES)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY and
)
VILLAGE OF WAUCONDA,
)
)
Respondents.
)
SLOCUM LAKE DRAINAGE
)
DISTRICT OF LAKE COUNTY,
)
ILLINOIS,
)
)
Petitioner,
)
)
v.
)
PCB 05-58
)
(Permit Appeal-NPDES)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY and
)
VILLAGE OF WAUCONDA,
)
)
Respondents.
)
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
)
ASSOC., DONALD KREBS, DON BERKSHIRE,
)
JUDY BRUMME, TWIN POND FARMS
)
HOMEOWNERS ASSOC., JULIA TUDOR,
)
CHRISTINE DEVINEY,
)
Petitioners,
)
)
v.
)
PCB 05-59
)
(Permit Appeal-NPDES)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
NOTICE OF FILING
TO:
See Attached Certificate of Service
Please take notice that on January
10,
2005, I filed with the Illinois Pollution
Control Board an original and nine copies of this Notice of Filing and attached
Stipulation, which are hereby served upon you.
Dated: January
10,
2005
William D. Seith
Total Environmental Solutions, P.C.
631 E. Butterfield Rd., Suite 315
Lombard, IL 60148
630-969-3300
Rudolph Magna
Magna & Johnson
495 N. Riverside Dr., Suite 201
Gurnee, IL 60031
847-623-5277
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
VILLAGE OF LAKE BARRINGTON,
)
CUBA TOWNSHIP, PRAIRIE RIVERS )
NETWORK, SIERRA CLUB, BETH
)
WENTZEL and CYNTHIA SKRUKRUD, )
)
Petitioners,
)
)
V.
)
PCB 05-55
)
(Permit Appeal-NPDES)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY and
)
VILLAGE OF WAUCONDA,
)
)
Respondents.
)
SLOCUM LAKE DRAINAGE
)
DISTRICT OF LAKE COUNTY,
)
ILLINOIS,
)
)
Petitioner,
)
)
v.
)
PCB 05-58
)
(Permit Appeal-NPDES)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY and
)
VILLAGE OF WAUCONDA,
)
)
Respondents.
)
Printed on Recycled Paper
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
)
ASSOC., DONALD KREBS, DON BERKSHIRE,
)
JUDY BRUMME, TWIN POND FARMS
)
HOMEOWNERS ASSOC., JULIA TUDOR,
)
CHRISTINE DEVINEY,
)
)
Petitioners,
v.
)
PCB 05-59
)
(Permit Appeal-NPDES)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
STIPULATION
Petitioners Village of Lake Barrington, Cuba Township, Prairie Rivers Network,
Sierra Club, Beth Wentzel and Cynthia Skrukrud (sometimes “Settling Petitioners”), and
Respondent Village of Wauconda (“Wauconda”), have agreed to the making of this
Stipulation and submit it to the Illinois Pollution Control Board (“Board”) for consideration
in the proceedings reviewing the Wauconda NPDES permit. The parties agree that the
statement of facts contained herein represents a fair summary of the record currently
under review by the Board and that would be presented by the parties if a hearing were
held and that the permit modifications proposed are based on the record in the permit
proceeding below and represent an environmentally responsible resolution of the issues
raised in that proceeding. Wauconda agrees to be bound by the provisions agreed to in
this Stipulation and agrees not to contest their validity in any subsequent proceeding to
implement or enforce their terms. Wauconda further agrees to accept an NPDES
permit in accordance with the provisions of the Intergovernmental Agreement.
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I.
JURISDICTION
The Board has jurisdiction of the subject matter herein and of the parties
consenting hereto pursuant to the Illinois Environmental Protection Act (“Act”), 415 ILCS
5/1
et seq.
(2004).
II.
AUTHORIZATION
The undersigned representatives for each party certify that they are fully
authorized by the party whom they represent to enter into the terms and conditions of
this Stipulation and to legally bind them to it.
III.
STATEMENT OF FACTS
A.
Parties
1.
On September 17, 2004, a Petition was filed by the Settling Petitioners
pursuant to Section 40(e)(1) of the Act, 415 ILCS 5/40(e)(1) (2004), against the Illinois
Environmental Protection Agency (“Illinois EPA”) and Wauconda to review the August
23, 2004 decision of the Illinois EPA to issue a modified National Pollutant Discharge
Elimination System (“NPDES”) permit (Permit IL 0020109) to Wauconda (referred to
herein as “the Modified Permit”).
2.
The Village of Lake Barrington (“Lake Barrington”) is an Illinois Municipal
Corporation and is located in Lake County. It borders Fiddle Creek on the north and is
downstream of the Wauconda discharge.
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3.
Cuba Township is a township existing under the laws of the State of
Illinois and is located in Lake County. Fiddle Creek runs through Cuba Township
downstream of the Wauconda discharge.
4.
Lake Barrington and Cuba Township (the “Governmental Petitioners”)
were significant participants in the public proceeding on the Wauconda permit and in
subsequent comments. The Governmental Petitioners retained a technical expert to
assist in their presentation and presented extensive technical documentation.
5.
Prairie Rivers Network is an Illinois not-for-profit corporation concerned
with river conservation and water quality issues in Illinois. Prairie Rivers Network
members live in the Fiddle Creek and Fox River Watersheds.
6.
Sierra Club is a California not-for-profit corporation, which has among its
purposes to protect and restore the quality of the natural and human environment and
submitted comments on the proposed permit.
7.
Beth Wentzel is a member of and a watershed scientist with the Prairie
Rivers Network and submitted comments on the proposed permit.
8.
Cynthia Skrukrud is a member of the Sierra Club and a clean water
advocate for that organization. She presented testimony for the record in this matter
and submitted comments on the proposed permit.
9.
Prairie Rivers Network, Sierra Club, Beth Wentzel and Cynthia Skrukrud
(the “Environmental Group Petitioners”) presented significant testimony for the record
and in comments thereafter as to the technical issues raised by the Wauconda permit
and their significance for environmental policy in Illinois.
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10.
The Illinois EPA is an administrative agency of the State of Illinois, created
pursuant to Section 4 of the Act, 415 ILCS 5/4 (2004).
11.
The Village of Wauconda is an Illinois Municipal Corporation and is
located in Lake County.
B.
Site Description and Permitting Process
1.
Waucondä owns and operates a Wastewater Treatment Plant (“WWTP”)
pursuant to NPDES Permit IL 0020109. Wauconda’s WWTP discharges to Fiddle
Creek, tributary to the Fox River.
2.
Pursuant to an application by Wauconda, on August 23, 2004, Illinois EPA
modified Wauconda’s NPDES Permit to allow upgrades, improvements and expansion
of Wauconda’s WWTP. Pursuant to the Modified Permit, Wauconda is permitted to
increase the capacity of its WWTP in two stages. In Stage 1, the WWTP will be able to
increase its throughput from 1.4 million gallons per day (“MGD”) to 1.9 MGD. In Stage
2, the WWTP will be able to increase its throughput from 1.9 MGD to 2.4 MGD.
3.
A public proceeding was held by the Illinois EPA on Wauconda’s permit on
September 9, 2003. The Governmental Petitioners and the Environmental Group
Petitioners were significant participants in the public proceeding and in subsequent
comment process.
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C.
Governmental and Environmental Group Petitioners Claims
At the public proceeding and in their comments to Illinois EPA, and in their
petitions to the Board, the Governmental and Environmental Group Petitioners have
raised legal and scientific issues regarding the draft permit including the following:
1.
The permit allows discharges of phosphorus and nitrogen that cause,
have reasonable potential to cause, or contribute to violations of the water quality
standards regarding offensive conditions, 35 III. Adm. Code 302.203, in violation of
40 CFR 122.44(d) and 35 III. Adm. Code 309.141.
2.
The permit allows discharges that may cause, have a reasonable potential
to cause, or contribute to violations of state water quality standards regarding dissolved
oxygen (“DO”), 35111. Adm. Code 302.206, in violation of 40 CFR 122.44(d) and 35 III.
Adm. Code 309.141.
3.
The permit and the Illinois EPA assessments did not comply with Illinois
antidegradation rules protecting the existing uses of the receiving waters. 35 III. Adm.
Code 302.105(a).
4.
The Illinois EPA assessment fails to include the analysis of alternatives
required by 302.105(f).
5.
Illinois EPA’s antidegradation assessment was insufficient under
302.105(f) by failing to consider impacts to biological communities, increased loadings,
or alternatives or by providing a showing of benefits which fully justify the project.
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6.
Illinois EPA’s permit analysis, including its 2003 antidegradation
assessment, fails to address the impact ofthe discharge on the Fox River, an impaired
waterway.
7.
Fiddle Creek should be considered an impaired waterway for nutrients,
phosphorus and total nitrogen, and low DO and should be subject to federal
requirements for such waters.
8.
In light of the existing problems with Fiddle Creek and its wetlands and the
Fox River, the pounds per day of TSS, BOD5, ammonia, and total nitrogen discharged
by the WWrP should not be permitted to exceed the levels in the prior Wauconda
permit,
i.e.
no net increase.
9.
In light of the wetland impacts already experienced, Wauconda should be
required to develop, with the concurrence of its wetland neighbors, a wetland
management plan to maintain and restore the Fiddle Creek wetlands.
10.
Plant and algal growth along Fiddle Creek, stimulated by excessive
nutrients, has impeded the capacity of the creek during high flow conditions, causing
flooding. Wauconda should be required to limit discharges, both loading and hydraulic,
to reduce such impacts and should be required to contribute to the maintenance of such
waterway.
11.
The IEPA permit fails to require Wauconda to implement a pretreatment
program for its industrial dischargers.
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D.
Wauconda’s Position on Settling Petitioners Claims
Wauconda believes NPDES Permit IL 0020109 fully complies with both
applicable federal and state law and was properly issued and modified by Illinois EPA.
Nevertheless, Wauconda desires to resolve its dispute with respect to the Settling
Petitioners’ claims.
E.
The Settlement Efforts
The Settling Petitioners and Wauconda have undertaken a lengthy settlement
process to achieve a possible resolution of their dispute over the Wauconda permit.
Technical experts have been consulted. A variety of public views have been solicited,
environmental groups in addition to the Environmental Group Petitioners have been
involved and a wide spectrum of public input has been obtained. Wauconda and the
Settling Petitioners believe their process has led to a successful resolution of difficult
community-based environmental problems. This process has resulted in the
Intergovernmental Agreement described below.
IV.
TERMS OF SETTLEMENT
A.
Intergovernmental Agreement
1.
On December 17, 2004, Lake Barrington, Cuba Township and Wauconda
entered into an Intergovernmental Agreement (“IGA”), a copy of which is attached
hereto as Attachment A and incorporated herein by reference thereto. Pursuant to the
IGA, Wauconda has agreed, among other things, to increase the treatment efficiency of
its WWTP during both the Phase I and Phase 2 construction, such that there will be no
Page 7 of 12
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net increase in the loads in Fiddle Creek of CBOD5 and Suspended Solids, and
Wauconda has also agreed in the IGA to seek a further modification of its NPDES
Permit to implement these revised load limits. Wauconda has also agreed to install four
groundwater monitoring wells and to periodically test both the wells and its effluent as
specified in the IGA. Pursuant to the IGA, Wauconda has also agreed to design nitrate
removal capabilities for the Phase I and Phase 2 expansion of its WWTP. Wauconda
agrees to fully comply with the Modified Permit as issued by Illinois EPA and the
additional requirements of the IGA.
2.
Wauconda has also agreed to take certain additional actions, including the
implementation of nitrate removal and the enhancement of Fiddle Creek, contingent on
grant funding and dismissal of all permit appeals. The parties to the IGA will work
together to secure the grant funding to support these efforts.
B.
Enforceability
of the Intergovernmental Agreement
By virtue of being signatories to this Stipulation, all of the Settling Petitioners
shall have the authority to enforce the terms and conditions of IGA, whether or not they
are signatories thereto.
C.
Dismissal of
PCB 05-55 and Action by the Board
1.
In consideration of Wauconda’s agreement to commitments contained in
the IGA, upon the Pollution Control Board’s acceptance and approval of the terms of
this Stipulation or sooner, when and if so requested by Wauconda, the Settling
Petitioners shall dismiss their petition in case number PCB 05-55 with prejudice.
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2.
Wauconda and the Settling Petitioners believe that this Stipulation and the
IGA properly address all of the environmental issues raised by the permit and this
Stipulation and the IGA constitute an environmentally responsible resolution of the
issues raised in the permit proceedings below.
D.
Correspondence, Reports and Other Documents
Any and all correspondence, reports and any other documents required under
this Stipulation, shall be submitted as follows:
For Village of Lake Barrington:
For Cuba Township:
Christopher Martin
Priscilla H. Rose
Village Administrator
Town Clerk
Village of Lake Barrington
Town of Cuba
23860 Old Barrington Rd.
28000 W. Cuba Rd.
Lake Barrington, IL 60010
Barrington, IL 60010
Percy Angelo
Mayer, Brown, Rowe & Maw LLP
For Prairie Rivers Network:
190 S. LaSalle St.
Chicago, IL 60603
Prairie Rivers Network
600JamesBarrington,HartBatemanRoad,IL 60010Suite 260
809Champaign,S. 5th St.IL
61820
For Beth Wentzel:
For Sierra Club:
809 S. 5th st.
Champaign, IL 61820
Sierra Club
200 N. Michigan Ave.
For Cynthia Skrukrud:
Suite 505
4209 W. Solon Rd.
Chicago, IL 60601
Richmond, IL 60071
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For Village of Wauconda:
Daniel Quick
Rudolph Magna
Village Administrator
Magna & Johnson
101 N. Main Street
495 N. Riverside Drive
Wauconda, IL 60084
Suite 201
Gurnee, IL 60031
William D. Seith
Total Environmental Solutions, P.C.
631 E. Butterfield Rd.
Lombard, IL 60148
E.
Modification of Stipulation
The parties may, by mutual written consent, agree to modify the terms of this
Stipulation. A request for any modification shall be made in writing and submitted to the
contact persons identified in Section VllI.D. Any such request shall be made by
separate document, and shall not be submitted within any other report or submittal
required by this Stipulation. Any such agreed modification shall be in writing, signed by
authorized representatives of each party, and then accompany a joint motion to the
Illinois Pollution Control Board seeking a modification of the prior order approving and
accepting the Stipulation to approve and accept the Stipulation as amended.
F.
Enforcement of Board Order
1.
Upon the entry of the Board’s Order approving and accepting this
Stipulation, that Order is a binding and enforceable order of the Illinois Pollution Control
Board and may be enforced by the Settling Petitioners as such through any and all
available means.
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2. Wauconda agrees that notice of any subsequent proceeding to enforce
the Board Order approving and accepting this Stipulation may be made by mail and
waives any requirement of service of process.
3.
The parties agree that, if the Board does not
approve
and accept this
Stipulation, then this Stipulation shall nonetheless remain in full force and effect as a
binding Settlement Agreement among the parties hereto.
4.
It is the intent of the Settling Petitioners and Wauconda that the provisions
of this Stipulation and any Board Order accepting and approving such shallbe
severable, and should any provision be declared by a court of competent jurisdiction to
be inconsistent with state or federal law, and therefore unenforceable, the remaining
clauses shall remain in full force and effect.
5.
This Stipulation may be executed in one or more counterparts, which
counterparts, when affixed together, shall constitute one and the same document.
WHEREFORE, the foregoing Stipulation represents an environmentally
responsible resolution of the issues raised in permit proceeding below and the Settling
Petitioners and Wauconda request that the Board adopt and accept the foregoing
Stipulation as written.
For Village of Lake Barrington:
For Cuba Township:
‘Doroth~)H?;S~hofield,//
7 ~
Nelson
Village Pr~esident
( Supervisor
Date:
7
Date:
/
?~OS
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For Prairie Rivers Network:
Je Flemma
xecutive Director
Date:
Beth Wentzel:
-~--~
Date:
~
For Village of Wauconda:
James Eschenbauch
Village President
Date:
For S~erra~
h Darin
F~1fector,
Illinois
Ch pter
Date:
Cynthia Skrukrud:
~
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For Prairie Rivers Network:
For Sierra Club:
Jean Flemma
John Darin
Executive Director
Director, Illinois Chapter
Date: __________________________
Date: __________
Beth Wentzel:
Cynthia
Skrukrud:
Date: _________________________
Date:
For Village of Wauconda:
LQ~llageEschenbauch
Date:
/ ~/—~—
—
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Attachment A
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 ofthe 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 Barrington, an Illinois Municipal
Corporation (hereinafter referred to as “Lake Barrington”), and the Township of Cuba
(hereinafter referred to as the “Township”):
WITNESSETH:
WHEREAS, Article VII, Section 10, of the Constitution ofthe State ofillinois of 1970,
provides that units oflocal 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
ILCS 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 a heavily channelized drainage-way commonly
known as Fiddle. Creek (hereinafter “Fiddle Creek”), an intermittent receiving stream which is
tributary to the Fox River; and
WHEREAS, Wauconda currently discharges to Fiddle Creek pursuant to NPDES Permit
1L0020109, 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
Lak~landEstates and Twin Pond Farm residential subdivisions within Lake Barrington as well as
Lake County Forest Preserve 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, Lake
Barrington, the Township; and
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 T ownsbip have common goals o fprotecting and p reserving 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
WHEREAS, 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 andlor
corporate authorities of Wauconda, Lake Barrington, and the Township that this
Agreement is in the best interests ofeach 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 and delivery 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 if each had been set forth in its entirety in the body ofthis 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 1L0020 109 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\74.43\SEWER.PLA\00009792.DOC)
-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 ContTol Board, to wit: IPCB docket nos.
05-55; 05-58
and
05-59
(hereinafter referred to as the “present IPCB
proceedings”), except as agreed to by Wauconda in this Agreement and/or
by stipulation approved by Wauconda in said present JIPCB 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 b ased on annual averages, and achieve a 1 m g/L p hosphorus level
based on a monthly average, and shall request and 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 forward to
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 success ofsuch 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 NPDES fecal coliform limits shall be
carried forward to the Phase II improvements and operations and the related
NPDES 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 ofthis program and comply with the regulations of the applicable
regulatory authorities pertaining thereto.
(20\74.43\SEWERPLA\00009792.DOC
-3-
D.
Wauconda has designed, and has obtained NPDES permit approval for, and
shall install, as part ofPhase 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 II improvements
and operations and the related NPDES permit.
B.
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 i nitial year following the execution o ft his A greement,
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, E-Coli 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 U SEPA M ethod 525.2 for s emi-
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 (1) above which were determined to b e 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 known products ofdegradation.
(3)
After the first year of operation of the monitoring wells, the effluent
from the Wauconda 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, B-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\SEWERPLA\00009792.DOC
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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 ofWauconda.
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. T he P hase II expansion ofthe treatment p lant 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 s uch nitrate removal, and, i n such event, W auconda
shall not delay the operation of the nitrate removal facilities beyond the
later of January 1, 2007 or the commencement of the Phase II expansion
and shall operate s uch nitrate removal facilities tO a ssure no n et increase
over existing nitrate loading. For the purposes ofthis Paragraph F, “full” or
“complete” grant of funding shall not include design costs incurred prior to
the approval of a grant agreement, provided, however, such design costs
may be applied for within the facilities grant application, or byway ofa
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 JEPA 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 JEPA construction permit for the Phase I
treatment plant expansion, then Wauconda shall include such nitrate
removal capabilities as part ofthe 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 influent and effluent. In addition,
during the initial year after this Agreement becomes effective, Wauconda
shall monitor TKN and Nitrate one day per month in both its influent and
20\74.43\SBWERPLA\00009792.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 currently contained in the effluent from the Wauconda WWTP”.
U.
Additionally, Wauconda, Lake Barrington, and the Township agree to
cooperate to jointly attempt to secure grant funds for the 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 rel’ated 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, and a stipulation reflecting all or a portion ofthe
terms of this Agreement may be entered of record in the present PCB proceedings if
requested by Wauconda.
5.
Remedies,
It is ~greed that a breach ofthis Agreement by one party 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
and remedies available at law or in equity in any litigation or administrative proceeding in
connection with their respective obligations under this Agreement.
Nothing herein sh4~
be construed to require on~party to pay any costs, charges, and expenses, mclu~g
attorneys’ fees, related to ~y litigation, administrative proceeding, negotiation, or
transaction that results from th~unlawful, or negligent or willful act or omission to a~t~•O~
2O\74.43\SEWERPLA\00009792.DOC
-6-
the other party(ies) or their respective officers, agents or employees in c onnection 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 (i) established express
delivery service which maintains delivery records, (ii) hand delivery, or (iii) certified or
registered mail, postage p repaid, 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 Lake Barrington:
To Township of Cuba:
Village ofWauconda
Village of Lake Barrington
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 fax, provided the Notice is concurrently given by one ofthe
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 ofeach 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 o fthe State of
Illinois.
D.
This Agreement shall be binding on all parties and may not be modified or
amended orally, but only in writing signed by all parties hereto.
B.
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.
20\74.43\SEWERPLA\00009792.Doc
-7-
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 ofthis 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 contrary notwithstanding, if all administrative
and/or
trial and appellate
court appeals on the subjectNPDES 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) ofthis Agreement shall be considered
null and void and ofno 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 ofthe
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 LAKEBARRINGTON
a municipal corporation,
Its~&erk
~
LLAGE
WAUCONDA
2O\74.43\5BWBRPLA\O0OO9~~,J~
iiurrniS
RiUI~OED
AUGUST 18.
1817
-8-
By:
Its Village President
ATTEST:
Its Village Clerk
VILLAGE OF WAUCONDA,
a muni~
ATTEST:
TOWNSUIP OF CUBA
By’/~~~~
Supervisor
Its lerk
35708-1
CERTIFICATE OF SERVICE
It is hereby certified that true copies of the foregoing Stipulation were mailed, first
class, on January 10, 2005 to each of the following persons:
Dorothy M. Gunn
Bradley P. Halloran
Illinois Pollution Control Board
James R. Thompson Center
100W. Randolph St., Suite 11-500
Chicago, IL 60601
Percy L. Angelo
Russell R. Eggert
Kevin G. Desharnais
Mayer, Brown, Rowe & Maw, LLP
190 S. LaSalle St.
Chicago, IL 60603
Albert Ettinger
Environmental Law and Policy Center
35 E. Wacker Dr., Suite 1300
Chicago, IL 60601
Rudolph Magna
Magna & Johnson
495 N. Riverside Dr., Suite 201
Gurnee, IL 60031
847-623-5277
Sanjay Kumar Sofat
James Allen Day
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Ave. East
P.O. Box 19276
Springfield, IL 62794-9276
Bonnie L. Macfarlane
Bonnie Macfarlane, P.C.
106W. State Rd.
P.O. Box 268
Island Lake, IL 60042
Jay J. Glenn
Attorney at Law
2275 Half Day Road
Suite 350
Bannockburn, IL 60015
William D. Seith
Total Environmental Solutions, P.C.
631 E. Butterfield Rd., Suite 315
Lombard, IL 60148
