~ECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JAN 1 0 2005
VILLAGE OF LAKE BARRINGTON, CUBA
)
PoUt
Control
Board
TOWNSHIP, PRAIRIE RIVERS NETWORK,
)
SIERRA CLUB, BETH WENTZEL and
)
CYNTHIA SKRUKRUD,
)
)
Petitioners,
)
)
v.
)
PCB05-55
)
(31.d Party NPDES Permit
)
Appeal)
ILLINOIS ENVIRONMENTALPROTECTION
)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
SLOCUM LAKE DRAINAGE DISTRICT OF LAKE
)
COUNTY, ILLINOIS,
)
)
Petitioner,
)
)
v.
)
PCB05-58
)
(3rd Party NPDES Permit
)
Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
THIS FILING PRINTED ON RECYCLED PAPER
1
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 BRIJMME, TWIN POND
)
FARMS HOMEOWNERS ASSOCIATION, JULIA
)
TUDOR and CHRISTINE DEVINIEY,
)
)
Petitioners,
)
)
v.
)
PCB
05-59
)
(3rd Party NPDES Permit
)
Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
(Consolidated)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
NOTICE OF
FILING
Dorothy Gunn, Clerk
Bradley P. Halloran
illinois Pollution Control Board
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500 James R. Thompson Center, Suite 11-500
100 West Randolph Street
100 West Randolph Street
Chicago, IL 60601
Chicago, IL 60601
SEE
ATTACHED
SERVICE
LIST
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe Pollution
Control Board an original and four (4) copies the RESONSE
TO MOTION FOR SANCTIONS AN)
TO COMPEL
ofthe Illinois Environmental Protection Agency, a copy ofwhich is herewith served
upon you.
ILLINOIS ENVIRONMENTA
ECIION AGENCY
By:____________________
Sanjay K. Sofat, Assistant Counsel
Division of Legal Counsel
Dated: January 7, 2005
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
(217)
782-5544
THIS FILING PRINTED ON RECYCLED PAPER
2
RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD JAN 102005
STATE OF ILLINOIS
VILLAGE OF
LAKE BARRINGTON, CUBA
)
Pollution Control Board
TOWNSHIP, PRAIRIE RIVERS NETWORK,
)
SIERRA CLUB, BETH WENTZEL and
)
CYNTHIA SKRUKRUD,
)
)
Petitioners,
)
)
v.
)
PCB
05-55
)
(3rd Party NPDES Permit
)
Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
SLOCUM LAKE DRAINAGE DISTRICT OF LAKE
)
COUNTY, ILLINOIS,
)
)
Petitioner,
)
)
v.
)
PCB
05-58
)
(3fd Party NPDES Permit
)
Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
THIS FILING PRINTED ON RECYCLED PAPER
3
AL PHILLIPS, VERN MEYER, GAYLE DEMARCO,
)
GABPJELLE 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
)
Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
(Consolidated)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
RESONSE
TO
RESONSE
TO MOTION FOR SANCTIONS
AND
TO COMPEL
NOW COMES, Respondent, the Illinois Environmental Protection Agency (“Illinois EPA”
or “Agency”), by one ofits attorneys, Sanjay K. Sofat, Assistant Counsel and Special Assistant
Attorney General, and pursuant to 35 Ill. Adm. Code 101.500, 101.502, 101.504, 101.614, 101.616,
and 101.618, 101.800, 101.802, the Illinois Code ofCivil Procedures, the Illinois Supreme Court
Rules, and the Hearing Officer’s Order dated December 15, 2004, a~idhereby submits its Response
to the Slocum Lake Drainage District ofLake County and the Resident Group’s Motion for
Sanctions and to Compel. In support ofits Response, the Illinois EPA states as follows:
1.
On September 17, 2004, Village of Lake Barrington, Cuba Township, Prairie Rivers
Network, Sierra Club, Beth Wentzel, and Cynthia Skrukrud filed a third party permit
appeal with the Board pursuant to 415 ILCS
5140(e)(1)
and 35 Ill. Adm. Code
105.204(b).
4
2.
On September 27, 2004, Slocum Lake Drainage District (“Slocum District”) ofLake
County, Illinois filed a Section 40(e) petition with the Board. Also, on Scptember
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 Chlueter, Mylith Park Lot Owners Association, Julia
Tudor, and Christine Deviney (“Resident Group”) filed a Section 40(e) petition with
the Board.
3.
The Agency’s permitting decision in this case only pertains to the Village of
Wauconda’s request to expand its treatment plant design average flow discharge
from 1.4 million gallons per day (“MGD”) to 1.9 MGD during Phase land to 2.4
MGD in Phase II.
4.
This modified permit issued on August 23, 2004, will expire on November 30, 2005.
5.
The Agency made its decision to issue the modified permit pursuant to Section 39 of
the Act.
6.
The Slocurn District and the Resident Group appeal the Agency’s decision to grant
the Village ofWauconda’s request to modify its National Pollutant Discharge
Elimination System (“NPDES”) permit, IL 0020109.
7.
Pursuant to 35 Ill. Adm. Code 105.116, the Agency Record is to be filed with the
Board within thirty (30) days after receipt ofthe petition. The Agency Record was
timely filed with the Board and consists ofapproximately 2262 pages.
8.
On December 13, 2004, the Illinois EPA filed a motion for leave to amend its.Record
to include the transcript ofthe NPDES permit information hearing as part ofthe
Agency Record.
5
9.
On December 15, 2004, the Hearing Officer granted the Agency’s motion to amend
its record.
10.
On December 27, 2004, the Agency received the Slocum District and the Resident
Group’s combine motion for sanctions and to compel.
11.
Section 105 .212(b) ofthe Board regulations defines what must be included in the
Agency record. Specifically it provides that, the record must include:
i)
Any permit application or other request that resulted in the Agency’s final
decision;
ii)
Correspondence with the petitioner and any documents ormaterials submitted
by the petitioner to the Agency related to the permit application;
iii)
The permit denial letter that conforms to the requirements ofSection 3 9(a) of
the Act or the issued permit or other Agency final decision;
iv)
The hearing file of any hearing that may have been held before the Agency,
including any transcripts and exhibits; and
v)
~Anyother information the Agency relied upon in making its final decision.
12.
To satisfy the requirements of Section 105.212, the undersigned attorney reviewed
the files maintained by the Bureau ofWater.
13.
Also, the undersigned attorney asked the Agency staff to provide emails related to the
Agency’s final decision on the Village ofWauconda’s request to modify its NPDES
permit. To meet this request, the Agency staff performed a universal search on their
computers using the word “Wauconda.” This search generated all those documents
on their computers that contained the word “Wauconda” in them. The undersigned
attorney reviewed all the emails provided by the Agency staff and found that not all
6
emails generated by the universal search were related to the Agency final decision on
the Village ofWauconda’s request to modify its permit.
14.
The undersigned attorney reviewed and sorted the emails that were related to the
Village of Wauconda’s permit application and the Agency’s decision to issue the
NPDES permit.
15.
The documents that are not considered as part of the Agency record could be
classified into the following groups: i) Attorney-Client Privileged documents; ii)
Documents dated after August 23, 2004; and iii) Documents not related to the
Village ofWauconda’s permit application and the Agency’s final decision on the
Village’s request.
16.
Section 7 ofthe Illinois Environmental Protection Act protects the disclosure ofthe
Agency attorney’s work product. Therefore, pursuant to Section 7 ofthe Act, all
documents containing attorney-client information are privileged and thus are exempt
from disclosure.
17.
Section 40(e)(3) ofthe Illinois Environmental Protection Act provides that the Board
shall hear the petition “exclusively on the basis of the record before the Agency.” 40
ILCS 5/40(e)(3). As the Village of Wauconda’s permit was issued on August 23,
2004, any document dated after the Agency’s final decision could not have been
relied upon by the Agency in making its final decision. Therefore, pursuant to
Section 40(e)(3) ofthe Act, all documents that are dated after August 23, 2004, must
not be considered as part of the Agency record.
18.
The attorneys for the Slocum District and the Resident Group reviewed the
-
documents belonging to the third classification group on December 17, 2004. After
the review, the attorneys submitted a list offorty-seven (47) documents that they
7
believed should be part ofthe Agency record. Attachment A provides the Agency’s
detailed response to each of the requested documents.
19.
As is clear from the reasons provided in the discussion above and the reasons stated
in the Attachment A, the record before the Board, after the filing ofadditional
documents, is now complete and meets all the requirements of the Act and Section
105.212(b) ofthe Board regulations.
-
20.
The Slocum District and the Resident Group’s demand to produce documents
contained in all folders reviewed on December 17, 2004, is outside the mandates of
both the Act and the Board regulations.
21.
Part oftheir demand is irrelevant to this permit appeal and goeswell beyond the
requirements ofSections 39 and 40(e)(3) ofthe Act.
22.
Part of the Slocum District and the Resident Group’s demand is irrelevant to the
permit appeal because neither the Agency is required by the Act to consider all
violations records nor did it.
23.
Further, as ~heAct specifically requires the Board to hear the petition “exclusively on
the basis ofthe record before the Agency”, demanding the introduction ofdocuments
that were not considered by the Agency during the permitting decision process would
not only be inconsistent with the requirements ofthe’Act but also be a waste ofthe
Board’s valuable time.
24.
The Agency urges the Hearing Officer and the Board to DENY the Slocum District
and the Resident Group’s Motion for Sanctions and to Compel. The Agency further
urges the Hearing Officer and the Board to bar the Slocum District and the Resident
Group from seeking information that is clearly outside the mandates of the Act and
the Board regulations.
8
WHEREFORE, for the reasons stated above, the Illinois EPA hereby respectfully requests
that the Hearing Officer and the Board to TAKE NOTICE ofthe documents attached and
DENY the Slocum District and the Resident Group’s Motion for Sanctions and to Compel.
Respectfully Submitted,
ILLINOIS ENVIRONMENTALPROTECTION AGENCY
By:
-
SanjayK. Sofat
Assistant Counsel
Division of Legal Counsel
DATED: January 7, 2005
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
THIS FILING PRINTED ON RECYCLED PAPER
9
SERVICE LIST
Percy L. Angelo
Russell R. Eggert
Kevin G. Desharnais
Mayer, Brown, Rowe & Maw, LLP
190 5. LaSalle St.
Chicago, IL 60603
Albert Ettinger
Environmental Law and Policy Center
35 E. Wacker Dr.
Suite 1300
Chicago, IL 60601
William D. Seith
Total Environmental Solutions, P.C.
631 E. Butterfield Rd.
Suite 315
Lombard, IL 60148
Bonnie L. Macfarlane
Bonnie Macfarlane, P.C.
106 W. State Rd.
P.O. Box 268
Island Lake, IL 60042
Jay J. Glenn
Attorney at Law
2275 Half DayRoad
Suite 350
Bannockburn, IL 60015
THIS FILING PRINTED ON RECYCLED PAPER
10
Attachment A
ILLINOIS EPA’S RESPONSE TO PETITIONER’S REQUEST
FOR SANCTIONS
AND
TO COMPEL DOCUMENTS
1.
Missing first page ofletter from Alan Keller.
Agency response: This document already exists in the Record. Complete signed
letter is on pages 2195-2196.
2.
Memorandum dated August 14, 2003, from Alan Kellerto Jessica Pickens.
Agency response: This document already
exists
in the Record.
See
pages 1757-
1758.
3.
“Contents of an Engineering Report” Attachment A (35 III. Adm. Code 370.2 10)
and letter dated July 18, 2002, from Thomas McSwiggin to Huff& Huff.
Agency response: This document already exists in the Record.
See
pages 300-302.
4.
Memorandum dated and faxed August 3, 2004, from Howard Essig to Don Netemeyer.
Agency response:
This document already exists in the Record.
See
pages 2178-
2179.
5.
E-mail dated July 6, 2004, 4:31 p.m., from Bruce Yurdin to Marcia Wilthite.
Agency response: This document already
exists
in
the
Record.
See
pages 2164-
2167.
6.
E-mail dated June 16, 2004, 8:11 a.m., from Gregg Good to Toby Frevert and others.
Agency response:
This document already
exists in the Record.
See
pages 2142-
2143.
7.
E-mail dated September 24, 2003, 1:28 p.m., from Al Keller to Toby Frevert and others.
Agency response:
This document already exists in the Record.
See
page
1783.
8.
E-mail dated July 29, 2004, 3:17 p.m., from Renee Cipriano to Connie Tonsor.
E-maildated July 29, 2004, 2:19 p.m., from Connie Tonsor.
Agency response: Attorney-client privilege
document.
9.
Memorandum dated February 6, 2004, from Bill Hammel to Al Keller and others.
Agency response: Pursuant to Section
105.212(b) of the
Board
regulations, this
document
is
not released because
it is a news
clip and
the Agency did not rely
upon
this information in making its final decision.
10.
E-mail dated August 24, 2004, 11:11 a.m., from Toby Frevert to Mark Pfister.
E-mail dated August 24, 2004, 11:04 a.m., from Mark Pfister.
E-mail dated August 24, 2004, 10:03 a.m., from Mark Pfister.
Agency response: As the Agency issued the Village ofWauconda’s NPDES permit
on August 23, 2004, this information could not have been relied upon by the Agency
in making its final decision.
11.
E-mail dated October 2, 2003, 9:37 a.m., from Connie Tonsor to Renee Cipriano.
Agency response:
Attorney-client privilege document.
12.
E-mail dated July 31, 2003, 3:32 p.m., from Chris Kallis to TobyFrevert and others.
Agency response:
The attached memo already
exists in the
Record on pages
1744-
1746.
The Illinois EPA will supplement the Record with the requested e-mail.
13.
E-mail dated June 13, 2003, 9:50 a.m., from Rick Cobb to Renee Cipriano and others.
Agency response:
Part ofthe
e-mail already exists
in the Record on page 2. The
Illinois
EPA will supplement the Record with the requested e-mail.
14.
E-mail dated July 22, 2003, 1:41 p.m., from Chris Kallis to Marcia Wilihite.
E-mail dated July 22, 2003, 11:39 am., from Marcia Willhite.
E-mail dated July 22, 2003, from Chris Kallis.
Agency
response: Pursuant to Section 105.212(b) ofthe Board regulations, this
document is not released because
it is related to an enforcement meeting
discussion
with the Attorney General’s Office and the Agency did not rely upon this
information in making its final decision.
15.
Wauconda Permit Responsiveness Summary —Mar/Apr 04.
Agency response: Pursuant to Section 105.212(b) of the Board regulations, this
document is not released because it is a partial draft of the responsiveness summary.
Note that the Agency’s final Responsiveness Summary document is part of the
Agency Record.
16.
E-mail dated OctOber 22, 2003, 9:12 a.m., from Connie Tonsor to Roger Callaway and
others.
Agency
response: Pursuant to Section 105.212(b) of the Board regulations, this
document is
not
released because
it is related to an enforcement related matter
discussion
with the Compliance Assurance Section and the Agency did not rely upon
this information in making its fmal decision.
17.
E-mail dated August 2, 2004, 8:25 a.m., from Chris Kallis to Scott Twait.
E-mail dated July 30, 2004, 11:01 a.m., from Scott Twait.
Agency response: Pursuant to Section 105.212(b) ofthe
Board regulations,
this
document is not released because
it is related to odor complaints from the
citizens
and the Agency did not
rely upon this information in making its final decision.
18.
E-mail dated June 25, 2004, 11:28 a.m., from Marcia Willhite to Bruce Yurdin and
others.
E-mail dated June 23, 2004, 12:11 p.m., from Gregg Good.
E-mail dated June 23, 2004, 10:42 a.m., from Marcia Willhite.
Agency response: Part of the e-mail already exists in the Record on page 2154. The
Illinois EPA will supplement the Record with the requested e-mail.
19.
E-mail dated June 23, 2004, 2:44 p.m., from Lalit Sinha to Toby Frevert and others.
Agency response:
Part of the e-mail already
exists
in the Record on page
2154,
or in
e-mail dated June
25, 2004, 11:28
a.m., to be added to the Record
(see
above). The
Illinois EPA will supplement the Record with the requested e-mail.
20.
E-mail dated November 4, 2003, 8:59 a.m., from Marcia Willhite to Renee Cipriano and
others.
E-mail dated November 3, 2003, 5:03 p.m., from Renee Cipriano.
Agency response:
Pursuant to Section
105.212(b)
of the Board regulations, this
document is
not released because it
is related to
the Director’s request for status
update and the Agency did not rely upon
this
information in making its final
decision.
-
21.
E-mail dated September 24, 2003, 4:08 p.m., from Toby Frevert to Connie Tonsor.
Agency response: Pursuant to Section 105.212(b)
of the Board regulations, this
document
is
not released because it
is related
to radium rulemaking discussion-and
the Agency did not rely upon this information
in making its
final decision.
22.
E-mail dated September 23, 2003, 4:17 p.m., from Blame Kinsley to Connie Tonsor.
Agency response: Part of the e-mail already exists
in the Record on page
1783.
The
Illinois EPA will supplement the Record with the requested e-mail.
23.
E-mail dated September 15, 2003, 11:45 a.m., from Mike Garretson to Dennis
McMurray.
Agency response: Pursuant to Section 105.212(b) of the Board regulations, this
document is not released because it is a list of municipal sanitary districts
wastewater facilities and the Agency did not rely upon this information in making
its final decision.
24.
E-mail dated October 17, 2003, 9:41 a.m., from Chris Kallis to Renee Cipriano and
others.
Agency response: Part ofthe e-mail already exists in the Record on page 1807. The
Illinois EPA will supplement the Record with the requested e-mail.
25.
Draft Justification for Changing Water Quality Standards for Radium, February 14, 2003.
Agency response:
Pursuant to
Section 105.212(b)
of the Board regulations, this
document is not released because it
is
related to discussion on changing water
quality standards for radium and the Agency did not rely upon this information in
making its final decision.
26.
E-mail dated September 25, 2003, 1:18 p.m., from Deborah Williams to Scott Phillips
and Connie Tonsor.
E-mail dated September 25, 2003, 11:11 a.m., from Connie Tonsor.
Agency response: Pursuant to Section 105.212(b) of the Board regulations, this
document is not released because it is related to. radium rulemaking discussionand
the Agency did not rely upon this information in making its final decision.
27.
E-mail dated February 17, 2004, 10:05 a.m., from Chris Kallis to Roger Callaway and
others.
Agency response: Pursuant to Section 105.212(b) of the Board regulations, this
document is not released because it is related to reporting of raw sewage overflow
from the plant to Compliance Assurance Section and the Agency did not rely upon
this information in making its final decision.
28.
E-mail dated June 30, 2003, 9:16 a.m., from Connie Tonsor to Joel Johnson and Deborah
Williams.
Agency response: Pursuant to Section
105.212(b)
ofthe Board regulations, this
document is not released because it is related to the assigning ofthe Agency attorney
and the Agency did not rely upon this information in making its final decision.
29.
E-mail dated October 21, 2003, 9:49 a.m., from Jeb McGhee to Chris Kallis, with
Attachment A revised.
Agency response: Pursuant to Section 105.2 12(b) of the Board regulations, this
document is not released because it is related to discussion ofa reported violation
and the Agency did not rely upon this information in making its final decision.
30.
E-mail dated December 4, 2003, 10:24 a.m., from Bonnie Carter to Renee Cipriano.
Agency response:
Pursuant to Section
105.212(b) of
the Board regulations,
this
document
is
not released because
it is related to discussion ofwho
should
pay for
pre-testing and pretreatment and the Agency did not rely upon this information in
making its final decision.
31.
E-mail dated December 30, 2003, 3:20 p.m., from Al Keller to Karen Cox.
Agency response: Pursuant to Section 105.212(b) of the Board regulations, this
document is not released because it is related to a weekly status report ofthe Agency
and the Agency did not rely upon this information in making its final decision.
32.
E-mail dated January 20, 2004, 10:58 p.m., from Toby Frevert to Marcia Wilthite.
Agency response:
Pursuant to Section
105.212(b) of the Board regulations, this
document is not released because it is
related to a news clipping on Minnesota
rulemaking and the Agency did not
rely upon this
information in making
its
fmal
decision.
33.
E-mail dated March 8, 2004, 8:57 a.m., from Chris Kallis to Al Keller and others.
Agency response: Pursuant to Section 105.212(b) of
the Board regulations, this
document is not released because
it is related to reported violations
at Town &
Country-Liberty Lakes and the Agency did not rely upon this information in
making its final decision.
34.
E-mail dated April 13, 2004, 3:43 p.m., from Bonnie Carter to Renee Cipriano.
Agency
response: Pursuant to Section 105.212(b) of the Board regulations, this
document is
not released because it
is related
to a request for status update on the
Wauconda permit application and the Agency did not rely upon this information in
making its final decision.
35.
E-mail dated April 16, 2004, 3:00 p.m., from Connie Tonsor to Jerry Kuhn and Roger
Selburg.
Agency response: Attorney-client privilege document.
36.
E-mail dated May 10, 2004, 8:21 a.m., from Renee Cipriano to Toby Frevert.
Agency response: Attorney
Client
privilege document.
37.
Draft Guidance for Submittal of Surface Water Data.
Agency response: Pursuant to Section 105.212(b) ofthe Board regulations,
this
document is not released because it is related
to draft guidance for submittal of
surface water data and the Agency did not rely upon this information in making its
final decision.
38.
E-mail dated July 8, 2004, 10:46 a.m., from Bruce Yurdin to Karen Cox and Marcia
Willhite.
Agency response: Pursuant to Section 105.212(b) ofthe Board regulations, this
document is not released because it is related to status reporting on Fiddle Creek
L
and the Agency did not rely upon this information in making its final decision.
39.
E-mail dated February 26, 2004, 3:16 p.m., from Dennis McMurray to Renee Cipriano.
E-mail dated February 26, 2004, 3:13 p.m., from Roger Callaway.
E-mail dated February 26, 2004, 1:33 p.m., from Dennis McMurray.
.
r
E-mail dated February 26, 2004, 12:59 p.m., from Mike Garretson.
Agency response: Pursuant to Section 105.212(b) of the Board regulations, this
document is not released because it is related to violation notice discussions with
Compliance Assurance Section and the Agency did not rely upon this information in
making its final decision.
40.
Memorandum dated February 20, 2004, from Chris Kallis to Roger Callaway.
Agency response: Pursuant to Section 105.212(b)
ofthe Board regulations, this
document is not released because it is
related to violation notice discussions with
Compliance Assurance Section
and the Agency did not
rely
upon this information in
making its final
decision.
41.
E-mail dated May 13, 2004, 2:06 p.m., from Jeb McGhee to Roger Callaway and.others.
Agency response: Pursuant to Section 105.212(b) of the
Board regulations,
this
document is not released because it
is
related to violation notice discussions with
Compliance Assurance Section and the Agency did not rely upon this information in
making its final decision.
42.
Letter (unsigned) dated May 13, 2004, from Michael Garretson to Dan Quick.
Agency response:
Pursuant to
Section 105.212(b) of the
Board regulations, this
document is not released because
it
is related to Compliance Assurance Section’s
addressing
the rejection of a compliance commitment agreement and the Agency
did not
rely upon this information in making its
final decision.
43.
Letter (unsigned/not dated), from Renee Cipriano to Bharat Mathur.
Agency response:
Pursuant to
Section 105.212(b) of the
Board regulations,
this
document is not released because it is related to
Part
620 of the
Board
regulations
discussion
and the
Agency did not rely upon this information in
making its final
decision.
44.
Memorandum dated March 11, 2004, from Chris Kallis to Roger Callaway.
Agency response:
Pursuant to Section
105.212(b)
of the Board regulations, this
document is not released because
it is related to
Town & Country-Liberty
Lakes
compliance updates and the Agency did not rely upon this information in making its
final decision.
45.
E-mail dated September 25, 2003, 2:33 p.m., from Tim Kluge to Toby Frevert and others.
Agency response:
Pursuant to Section
105.212(b)
ofthe Board regulations, this
document is not released because it is related to Compliance Assurance Section
inspection reporting and the Agency did not rely upon this information in making
its final decision.
46.
E-mail dated October 1, 2003, 11:37 a.m., from Tim Kluge to Toby Frevert.
Agency response: Pursuant to Section 105.212(b) ofthe Board regulations, this
document is not released because it is related to discussion of reported digester
foaming incident and the Agency did not rely upon this information in making its
final decision.
47.
E-mail dated October 22, 2003, 9:18 a.m., from Renee Cipriano to Roger Callaway and
others.
E-mail dated October 20, 2003, 9:12 a.m., from Connie Tonsor.
Agency response: Pursuantto Section 105.212(b) of the
Board
regulations, this
document is not released because it is related to the
Attorney General Office’s
request
for additional information on the reported overflow incident and the
Agency
did not
rely
upon
this information in making its final decision.
Sc
Twait-Wauconda meeting - -
- -~_____
Pa~e1
From:
Chris Kallis
To:
Frevert, Toby; Gunnarson, Charles; Hammel, Bill; Keller, Al; Kluge, Tim: Mosher,
Bob; Willhite, Marcia
Date:
7/31/03 3:32PM
Subject:
Wauconda meeting
Here are my noted on the Wauconda meeting at the AGO. As a follow-up I recommend the following:
1. DLC should evaluate the allegation of the NPDES Permit application omitting required information.
2. Permits Section should review the data submitted by the Wauconda Task Group. I noted that there
were some traces of Poly Aromatic Hydrocarbons but not those that mentioned of being of major concern
by the citizens. One thing I did note in my cursory review was that Iron was extremely high as expected~
and so was the Boron. The one thing that may be of concern is that the Boron concentrations almost
always significantly exceed Wauconda’s rather stringent ordinance lint. What little I know about Boron is
that it usually passes through the plant and Wauconda discharges to a zero flow stream. If the effluent
and downstream exceeds 1 mg/I, its a violation. That’s why I had out sampling tech sample for metals and
Boron recently.
AlKeller - Re: Wauconda
PageTJ
From:
Rick Cobb
To:
Cipriano, Renee; Frevert, Toby; Willhite, Marcia
Date:
6/13/2003 9:50:27 AM
Subject:
Re: Wauconda
Toby, please see the attached. This is the citizens group that I had some extensive dialog with in regard
questions that they had in regard to groundwater, drinking water and waste water.
Rick
Richard P. Cobb, P.G.
Deputy Manager
Division of Public Water Supplies
Bureau of Water
Illinois EPA
Phone & Voice Mail: (217) 785-4787
Fax: (217) 557-3182
E-mail: rick.cobb©epa.state.il.us
Renee Cipriano 06/13/03 09:42AM
I received a very concerned call from a good friend of mine regarding n NPDES permit that is pending for
the Village of Wauconda. The permit number is ~L0020109and is for an increase in discharge, I
understand, from 4 million to 8 million into a tributary to Lake Lakeland and Slocum Lake (and ultimately
the Fox Lake) called Fiddle Creek. Apparently, we had recently (I think within the last couple of years)
allowed Wauconda and exemption for effluent disinfection for this same discharge.
There are many homes (approximately 100) in this area that are on private wells. My friend purchased a
home in the Robert Bartlett Lakeland Estates and all of the homes in that subdivision are on private well
water and are located along Fiddle Creek. Some of the neighbors have had their wells tested and the test
have revealed high levels of fecal. Additionally, I am told, people and children play in these waters and
fish in these waters. As you can imagine the neighbors are beside themselves. They have contacted
Senator Peterson and Rep Beaubien. They are concerned that the permit will issue without their chance
to share their concerns. They are also concerned with the no effluent disinfection decision that was made.
At minimum, they want a hearing on the permit during the evening hours (after 6:00 pm.). Could someone
please brief me on this matter and also let me know if we were aware of the private well situation?
Monday is fine although I do not want the permit to issue before we have the chance to discuss. thanks
CC:
Callaway, Roger; Cox, Karen; Elzinga, Sherrie; Gunnarson, Charles; Keller, Al;
Killian, Bernie; Mosher, Bob; Pickens, Jessica
Marcia Willhite - Re Fiddle Creek
Pag~~J
From:
Marcia Willhite
To:
Bruce.Yurdin@epa.state.iI.us,Gregg.Good~epa.state.il.us,Toby.Frevert~epa.state.iI.us
Date:
Fri, Jun 25, 2004 11:28 AM
Subject:
Re: Fiddle Creek
I agree that setting up criteria and informing folks ahead of time is most desirable. Agency rules would
probably be best.
Marcia T. Willhite
Chief
Bureau of Water
217/782-1654
marcia.wiIlhite@epa.state.il.us
Bruce Yurdin 06/23/04 2:40 PM
You’re lurching toward rulemaking, which in this case may not be a bad idea. Simple Agency rules could
be done relatively quickly for the 2006 IR. The trick would be to keep them simple and away from data
quality issues (recall the problems with data quality laws in Iowa, Arizona, etc., most of which dealt with
data age). I also suggest you revise the too rigid time frame, as in “Data packages will be accepted
through May 1, 2005.” Make the rule applicable to whatever year we want, as in “Data packages will be
accepted through May 1 of the year prior to Integrated Report submittal.”
If we stick with May I as the submittal date, rules will need to be drafted, vetted by a workgroup, published
and approved by JCAR by late March--early April of 2005.
bjy
Bruce Yurdin
.
Manager, Watershed Management Section
Bureau of Water
Illinois EPA
1021 North Grand Avenue East
Springfield, IL 62794
phone 217/782-3362
fax 217/785-1225
Gregg Good 6/23/2004 12:11:30 PM
For our next report, the 2006 Integrated 305(b)/303(d) report, I have drafted a policy regarding the who’s,
what’s, where’s, when’s, and why’s of submitting “outside data” for use in that assessment/listing process
(see attached draft). This draft was developed to meet data solicitation guidance from USEPA. Basically,
ISAPI wants to insure that states let outside entities know that we are required and will review (not
necessarily use) “readily available data.”
Personally, I am opposed to any routinely used “mid-term” listing process. I believe we need to finalize the
attached, send it out to those we work with on a daily basis, send out a news release regarding it’s
availability, and put it on our website so that all of Illinois knows our requirements for using outside data in
our ultimately regulatory303(d) program. It should be clear, simple, and if the data requirements aren’t
met, so be it. This is my biased monitoring/science (we must have a cutoff date) perspective!
However, like Toby suggests, I do believe that we have the obligation of reviewing and considering outside
data provided to us almost anytime, especially during a formal 303(d) comment period on a hot-button
issue like Lake Barrington/Wauconda/Fiddle Creek. We shouldn’t automatically discount the data only on
the basis that it wasn’t QAPPed; In this case, we should say “thanks for the information; we need to
investigate your claim further,” and in Fiddle Creek’s case, “we’ll do some follow-up monitoring of our
own.” On the other hand, we shouldn’t and CAN’T just take outside data at face value. We need to know
the objectives of monitoring programs, how data was gathered, how it was analyzed, etc., before we can
use it. This takes time. If our objective is to find D.O. violations to prove a CWA violation, we can find
them if we simply monitor at i.e., 6:30 a.m. That objective is totally different than if our objective is to
,LMarcia Willhite - Re: Fiddle Creek
-
.
Fag~J
collect appropriate data, for passage through IEPA assessment/listing methodologies, to get something on
or off the 303(d) list for any of a number of the uses that we assess.
Ultimately, if data is submitted to us “way after the fact,” but we ultimately find it credible after
investigation, we can and should use it in the NEXT listing cycle.
Marcia Willhite 6/23/2004 10:42:57 AM
Can we modify a 303(d) list at any time? List something, for example? That may be our approach here.
Do our own work to further evaluate and assess, then initiate a “mid-term” listing process, if appropriate.
Marcia T. WilIhite
Chief
Bureau of Water
217/782-1654
marcia.willhite@epa.state.il.us
Toby Frevert 6/23/2004 10:30:53 AM
My take on this matter is that we have information from outside parties and an assertion that Fiddle Creek
exceeds applicable WQS and may be impaired to some degree. Irrespective of the veracity of the QAPP
associated with the info we cannot merely disregard it. The logical response is to view the situation as
indeterminate and warranting additional monitroing on our part. We have already started with a visit to the
creek yesterday and will be doing additional data collection in the future. We will probably also require
Wauconda to conduct stream monitoring as well through a permit condition.
Bruce Yurdin 6/22/2004 10:02:24 AM
Based on a short talk with Al and another with Lalit, I assume a decision was made on 6/17/04 that the
data submitted by the Village of Lake Barrington in response to the draft 2004 303(d) List would not be
accepted and that Fiddle Creek would remain unassessed. If this is the case, Fiddle Creek would not be
added to the 2004 List.
The unacceptability of the data seems to have focused on the lack of a QAPP, and not on the data proper.
If this is the case, we have precedent to the contrary made during the public participation process for the
2002 List. How we arrived at the Fiddle Creek decision in the face of a previous, opposing determination
will need to be clarified for the responsiveness summary. On the other hand if the lack of a QAPP was not
the basis for our decision, we will need to have Wally or staff review the data and document why
impairment has not been identified. In either case we will need a written record of the decision for the
responsiveness summary and subsequent discussions with Region 5 on this matter.
bjy
Bruce Yurdin
Manager, Watershed Management Section
Bureau of Water
Illinois EPA
1021 North Grand Avenue East
Springfield, IL 62794
phone 217/782-3362
fax 217/785-1225
CC:
Al.Keller~epa.state.il.us,LaIit.Sinha@epa.state.il.us,Mike.Henebry@epa.State.iI.uS
1~byFrevert - Re Fiddle Creek
Page 1
From:
LalitSinha
To:
Frevert, Toby; Good, Gregg; Willhite, Marcia; Yurdin, Bruce
Date:
Wed, Jun 23, 2004 2:44 PM
Subject:
Re: Fiddle Creek
What is the purpose of holding a public hearing if the Agency is not going to be truely responsive to
comments and data and information provided by public during this process?
Gregg Good 6/23/2004 12:11:30PM
For our next report, the 2006 Integrated 305(b)/303(d) report, I have drafted a policy regarding the who’s,
what’s, where’s, when’s, and why’s of submitting “outside data” for use in that assessment/listing process
(see attached draft). This draft was developed to meet data solicitation guidance from USEPA. Basically,
ISAPI wants to insure that states let outside entities know that we are required and will review (not
necessarily use) “readily available data.”
Personally, I am opposed to any routinely used “mid-term” listing process. I believe we need to finalize the
attached, send it out to those we work with on a daily basis, send out a news release regarding it’s
availability, and put it on our website so that all of Illinois knows our requirements for using outside data in
oUr ultimately regulatory 303(d) program. It should be clear, simple, and if the data requirements aren’t
met, so be it. This is my biased monitoring/science (we must have a cutoff date) perspective!
However, like Toby .,suggests, I do believe that we have the obligation of reviewing and considering outside
data provided to us almost anytime, especially during a formal 303(d) comment period on a hot-button
issue like Lake BarringtoniWauconda/Fiddle Creek. We shouldn’t automatically discount the data only on
the basis that it wasn’t QAPPed. In this case, we should say “thanks for the information; we need to
investigate your claim further,” and in Fiddle Creek’s case, “we’ll do some follow-up monitoring of our
own.” On the other hand, we shouldn’t and CAN’T just take outside data at face value. We need to know
the objectives of monitoring programs, how data was gathered, how it was analyzed, etc., before we can
use it. This takes time. If our objective is to find D.O. violations to prove a CWA violation, we can find
them ifwe simply monitor at i.e., 6:30 a.m. That objective is totally different than if our objective is to
collect appropriate data, for passage through IEPA assessment/listing methodologies, to get something on
or off the 303(d) list for any of a numberof the uses that we assess.
Ultimately, if data is submitted to us “way after the fact,” but we ultimately find it credible after
investigation, we can and should use it in the NEXT listing cycle.
Marcia Willhite 6/23/2004 10:42:57AM
Can we modify a 303(d) list at any time? List something, forexample? That may be our approach here.
Do our own work to further evaluate and assess, then initiate a “mid-term” listing process, if appropriate.
Marcia T. Willhite
Chief
Bureau of Water
217/782-1654
marcia.willhite~epa.state.il.us
Toby Frevert 6/23/2004 10:30:53 AM
My take on this matter is that we have information from outside parties and an assertion that Fiddle Creek
exceeds applicable WQS and may be impaired to some degree. Irrespective of the veracity of the QAPP
associated with the info we cannot merely disregard it. The logical response is to view the situation as
indeterminate and warranting additional monitroing on our part. We have already started with a visit to the
creek yesterday and will be doing additional data collection in the future. We will probably also require
Wauconda to conduct stream monitoring as well through a permit condition.
Bruce Yurdin 6/22/2004 10:02:24AM
Based on a short talk with Al and another with Lalit, I assume a decision was made on 6/17/04 that the
Connie Tonsor - Re: Wauconda --________
____________________________
Page 1
From:
Blame Kinsley
To:
Tonsor, Connie
Date:
Tue, Sep 23, 2003 4:17 PM
Subject:
Re: Wauconda
Upon further review of 40 CFR 122.62, I agree with your determination of the need for major modification
to remove the disinfection exemption.
Connie Tonsor 09/23/03 03:23 PM
Attached is a draft of the “immediate” modification options. As indicated at the meeting, I do not believe
that we can eliminate the chlorine exemption without going through notice, etc. This would be a change in
a substantive condition and thus would be a major modification. This would not be sensiblen timewise
since it is proposed for elimination with the permit modification currently in post hearing comment.
However, we could with a little slight of hand and the cooperation of the permittee modificy to increase
monitoring to reflect the chlorination and as for fecal samples pending the issuance of the modified permit.
All correction and criticism accepted.
—~15oiNeterneyer Re Wauconda
___
— ___
_____
____
Page
1
From:
Chris Kallis
To:
Cipriano, Renee; Frevert, Toby; Keller, Al; Willhite, Marcia
Date:
10/17/03 9:41AM
Subject:
Re: Wauconda
It just so happens that I talked with Mr. Devry two days ago on another matter. He did discuss the
problems he had with the content of my memo. One was using the Lake County Health Department
sampling data which showed high fecal coliform in the Bangs Lake Drain. He complained that LCHD did
not take an upstream sample at the Bangs Lake overflow and that there some rain the night before. I
found that complaint quite curious since Wauconda sewers entirely surround Bangs Lake. Nonetheless, I
informed that Wauconda was not cited for fecal Coliform violations since standards are based on
geometric mean. The sampling results were included in support of the LCHD stream site assessment
(which we routinely have them do for us by contract) as a follow-up to this incident and was used in
support of the evidence I contributed.
He also had problems with my comments on the lack of industrial monitoring. I reminded him that similar
incidents happened before and the Village did not have a clue on how to track it down before their was
never any field confirmation on the industrial survey which they conducted by mail. It is a weak system
when an outsider who has never seen the survey points them in the right direction. He countered that this
could have happened if they were on the pretreatment program. I countered that it would be highly unlikely
that a company would dump a slug load if they were aware of an ordinance which the likely culprit didn’t.
They would be even less likely if they would be willing top enforce which we know they are not. He
disputed my statement that the Village does not have a handle on when industries move in, which was a
concern expressed by the POT’vV staff. He said the building department knows when a industry hooks up.
I asked do they inform the P01W. He could not answer. I asked if the building would know if an
electroplater moved in the rental industrial park. He could not answer.
If anyone has a problem with the content of my findings let me know. In the meantime I got a phone
message and E mail from Howard Chin of the IAGO. He wants a copy of the Village Ordinance.
Al Keller 10/16/03 05:12PM
I talked with Bob Devery, village consultant, today about the letter I sent to the village and him concerning
the disinfection exemption withdrawal letter we requested from the village. .Devery’s main question was
what was our definition of primary contact. He thought we were changing our definition to fit Wauconda’s
situation. I said first of all we are not changing any rules to fit Wauconda’s situation. I said the letter
expressly said potential for primary contact and that was due to a change in the situation with housing
developments near the stream. I stated there was more of a potential for kids to play in or near the
stream. I acknowledged that it is not directly adjacent to the houses but there were actual paths leading to
the stream area. He wanted to discuss boating, skiing and swimming in this 6 inch deep creek but I stated
wading was a subset of swimming activities and there was a potential forcontact with kids wading or
playing near streams. I advised we knew there was not going to be any boating or swimming but there can
be contact thru wading. He finally somewhat agreed with me.
He also inquired what other issues may be included with the disinfection exemption withdrawal. He asked
if nutrient removal or other special designations would be included. I said I thought we were pretty clear
that we were only looking at the one issue. The withdrawal would only include requiring disinfection and
including a fecal coliform limit in the existing permit. That would be all it would include. All other issues
would be addressed in the responsive summary for the stp expansion modification. He again asked if it
would slow down the other request and I said no.
He again advised that the village would have to decide on the issue and there meeting was Monday.(The
village attorney advised me that the meeting was next Tuesday) Devery asked how soon would we want
any letter. I said we wanted it ASAP and actually wish we already had the letter. He said he understood the
urgency.
I also talked to Rudy Magna, attorney for the village, and discussed 4 items. They were:
1. disinfection exemption withdrawal letter
1~.onNetemeyer
- Re: Wauconda
____
_______________
____
Page 2
2. joint press release
3.comments on his draft letter to Toby
4. changes to Agency memo and protocol.
Concerning the first 2 items, I first told him I had expressed to Bob Devery that the Agency wishes to
receive the letter asap after the meeting and that we had hoped to have it sooner. I further expressed to
him that there were no hidden agendas and no other issues included with this. It only requires full time
disinfection and incorporation of a fecal coliform number in the permit. I said the Agency was still
interested in a press release. He understood the issue and will discuss at the village board meeting.
Concerning item 3, I advised that we actually had no comments on their letter. Magna discussed the
whole issue about rules for the committee, hidden agendas, the trust issue, timing of the project team, etc.
I said why don’t you propose some rules for the committee and also advise us what you want the
committee to discuss. I said the draft letter articulated more problems with the project teani-andwhat you
didn’t want to discuss. I said maybe you want to show a more positive side at what you want to have the
team discuss and offer some rules. He said he would consider that and will finalize the letter.
Concerning item 4, he asked how he could get us to change any correspondence specifically Chris’ memo
on the foaming incident. He said the village feels there were some inaccuracies in the memo. I said he
needs to express them to Chri~and if they want to document anything ,they should do it by letter. He
inquired about how they got the letter from Bonnie 1-C. I said that Bonnie sent in a FOIA request and
received the memo in that fashion. He understood that ok and inquired why didn’t proper authorities
receive copies if reports on their facilities. I advised him we are going to review our present policy on that
issue and he was ok with that response.
I said thanks and we will be talking to him and the village officials.
CC:
Kluge, Tim; Netemeyer, Don; Patel, Jay
)
STATE OF ILLINOIS
COUNTY OF SANGAMON
)
)
SS
)
)
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the attached
RESONSE TO MOTION
FOR SANCTIONS
AND
TO COMPEL
upon the person to whom it is directed, by placing a copy
in an envelope addressed to:
Dorothy Gunn, Clerk
Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
(OVERNIGHT MAIL)
Percy L. Angelo
Russell R. Eggert
Kevin G. Desharnais
Mayer, Brown, Rowe & Maw, LLP
190 S. LaSalle St.
Chicago, IL 60603
(OVERNIGHT MAIL)
Albert Ettinger
Environmental Law and Policy Center
35
B. Wacker Dr.
Suite 1300
Chicago, IL 60601
(OVERNIGHT MAIL)
William D. Seith
Total Environmental Solutions, P.C.
631 E. Butterfield Rd.
Suite 315
Lombard, IL 60148
(OVERNIGHT MAIL)
Bradley P. Halloran
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street,
Chicago, Illinois 60601
(OVERNIGHT MAIL)
Bonnie L. Macfarlane
Bonnie Macfarlane,
P.C.
106 W. State Rd.
P.O. Box 268
Island Lake, IL 60042
(OVERNIGHT MAIL)
JayJ. Glenn
Attorney at Law
2275
Half Day Road
Suite 350
Bannockburn, IL 60015
(OVERNIGHT MAIL)
Suite 11-500
12
and mailing it from Springfield, Illinois on January 7, 2005, with sufficient postage affixed as
indicated above.
,~)
-~-~~1
I
-‘I---
SUBSCRIBED
AND
SWORN TO BEFORE ME
this
~7/k
day
1
ofJanuary, 2005.
i;L
Notary
~
Public
1’OFF1CiAL~
~EAL
~ Vicky Vonianken
NotaryPub~iC,St~,teof~ihnO~
~ My
CornflliSSiOfl
Exp. C 1,12/2008
THIS FILING PRINTED ON RECYCLED PAPER
13
