•

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD

~

E

C ~

~V’E D

CLERK~SOFFICE

DES PLANES RIVER WATERSHED ALLIANCE,

)

~

2005

LIVABLE

COMMUNITIES ALLIANCE,

)

STATE

OF ILLINOIS

PRAIRIE RIVERS NETWORK, and SIERRA CLUB,

)

Pollution Control Board

)

Petitioners,

)

v.

)

PCBO4-88

)

(NPDES

Permit Appeal)

ILLNOIS

ENVIRONMENTAL PROTECTION

)

AGENCY and VILLAGE OF

NEW LENOX

)

)

Respondents.

)

NOTICE OF FILING

PLEASE TAKE NOTICE that the Des Plaines River Watershed Alliance, the Livable

Communities Alliance, Prairie Rivers Network, and the Sierra Club have filed the attached

MOTION FOR SUMMARY JUDGEMENT, MEMORANDUM IN SUPPORT OF SUMMARY

JUDGEMENT, and STATEMENT OF RELEVANT FACTS

FROM THE AGENCY RECORD.

Albert F. Ettinger

(

eg. No. 3125045)

Counsel for Des

Flames River

Watershed Alliance,

Livable

Communities

Alliance,

Prairie

Rivers

Network

and

Sierra

Club

DATED:

February 4, 2005

Environmental Law and Policy Center

35

E. Wacker Dr. Suite 1300

Chicago, Illinois 60601

312 795

3707

---

BEFORETHE ILLINOIS POLLUTION CONTROL

BOAI~flECEIV~D

CLERK’S

OFFICE

FEB~

0

DES PLANES RIVER WATERSHED ALLIANCE,

)

LIVABLE

COMMUNITIES ALLIANCE,

)

STATE OF

ILLINOIS

PRAIRIE RIVERS NETWORK, and SIERRA CLUB,

)

•

PoUutiOfl Control Board

)

Petitioners,

)

)

v.

)

PCB 04-88

)

(NPDES Permit Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY and VILLAGE OF NEW LENOX

)

)

Respondents.

)

MOTION FOR SUMMARY JUDGMENT

Pursuant

to

35

Ill.

Adm.

Code

101.56,

the Des

Plaines River Watershed

Alliance, the

Livable

Communities

Alliance,

Prairie

Rivers

Network,

and

the

Sierra

Club

(collectively,

“Petitioners”) hereby move for summary judgment against the Illinois Environmental

Protection

Agency (“IEPA”) and the Village ofNew Lenox (“New Lenox”). The Board should

reverse the

October 31,

2003

decision of the Illinois

Environmental Protection Agency (“IEPA”)

to

grant a

National Pollutant Discharge Elimination System (“NPDES”) permit (Permit

No. IL0020559)

to

the Village of New

Lenox

to

increase

its

discharge of pollutants

into Hickory

Creek

from

its

sewerage treatment

plant Number

1

and

order

the IEPA

to

reconsider

certain limits

and

other

conditions ofany permit to be granted. In support oftheir motion, Petitioners state:

1.

Petitioners are not-for-profit organizations with members who live and recreate in

the Des Plaines River watershed, including areas near Hickory Creek, and who are concerned

with pollution that would

affect their ability to

enjoy recreation activities dependent on the

ecological health ofHickory Creek and the Des Plaines River including fishing, boating,

---

canoeing, nature study and hiking. Members ofthe Petitioners are potentially adversely affected

in theirhealth,

property values and enjoyment by offensive conditions that occur as the result of

nutrients discharged into Hickory Creek. Members ofPetitioners are concerned about ongoing

degradation of Hickory Creek and potential for further degradation. Members ofthe Petitioners,

including Beth Wentzel, KimberlyKowaiski, Gaylyn Grimm, William Eyring, James Bland, Jeff

Swano, Joyce Korista,

Albert Ettinger, and Cynthia Skrukrud, appeared at the hearing held in

this proceeding and submitted comments in opposition to the permit. They and other members of

Petitioners are so situated as to be affected by the permit

and by offensive conditions or other

violations ofwater quality standards in Hickory Creek, the Des Plaines River and the Illinois

River. (Petition for Review and Exhibits

thereto, filed December 3, 2003).

2.

Hickory Creek flows through Will County and discharges into the Des Plaines

Rivernear Joliet, Illinois. The stream has attracted attention because of its exceptional ecology,

history and

geology. According to

a 1971 publication by the Illinois Natural History Survey,

Hickory Creek was at that time the outstanding stream in the Des Plaines River system. More

recently, Hickory Creek was been identified as an impaired water by IEPA in list ofimpaired

•

waters.

Large offensive algal blooms have been reported in the creek and Hickory Creek has

been listed as impaired by excess algal growthby IEPA. (Hearing Record at

5,- 18,6

7~80,82-3,

110)

3.

On January

5,

2003,

IEPA gave notice that it had made a tentative decision to

renew

a NPDES. permit to New Lenox to

discharge into Hickory Creek, allowing

an expanded

discharge from 1.54 million gallons per day to 2.516 million gallons per day average daily flow.

(Hearing Record at 1)

2

---

4.

Petitioners commented through testimony given at a public hearing held on the

draft permit on April 24, 2003

(Hearing Record at 6 1-104) and through written comments

(Hearing Record at 107-322).

5.

In those comments and that testimony, Petitioners raised legal

and scientific

issues regarding flaws in the draft permit and in

IEPA’s consideration ofthe draft permit

including that:

a.

•

The draft permit allowed discharges ofphosphorus and

nitrogenthat

cause, have a reasonable potential to

cause or contribute to violations of

the water quality standards regarding offensive condition, 35

III. Adm.

Code 302.203,

•

b.

The draft permit allows discharges that may cause, have a reasonable

•

potential to cause or contribute to violations ofstate water quality

standards regarding dissolved oxygen,

35 Ill. Adm 302.206, and

copper,

35 Ill. Adm. COde 302.208(e) in violation of40 CFR 122.44(d) and 35 Ill.

Adm. Code 309.141.

c.

•

The draft permit and the studies and lack ofstudies that led to

the creation

ofthe draft permit did not comply with

Illinois’ antidegradation rules

protecting the existing uses ofthe receiving waters.

6.

At the hearing and in comments, Petitioners also

asked that all tecimically and

economically reasonable measures to

avoid or minimize the extent ofthe proposed increase in

pollutant loadings be incorporated into the permit and that the permit be improved in a number of

respects including that;

a.

It provide for economically feasible controls on the discharge ofnutrients

3

---

including phosphorus and nitrogen;

b.

The limits in the permit be improved to prevent discharges that could

cause or contribute to violations ofwater quality standards regarding

offensive conditions

and dissolved

oxygen;

•

c.

That proper biological studies be conducted to assure that the discharge

•

would not adversely affect existing uses ofthe stream;

d.

That IEPA seriously considerwhether the increased discharge was

actually necessary in light ofpotential alternatives; and

e.

That JEPA seriously consider alternatives to allowing the levels of

pollutants in the streams that would be allowed by the draft permit.

7.

On October

3 1, 2003, Illinois EPA issued the permit that is

subject to the current

appeal. (Hearing Record at 34 1-50) The final permit, while containing some

changes from the

draft perhiit that addressed a portion ofthe dissolved oxygen problem and the existing violations

ofthe total dissolved solid

standards, did not remedy the flaws discussed above that were raised

by Petitioners in oral comments at the hearing and written comments made afterthe hearing.

8.

Petitioners filed their Petition for Review on December 2, 2003.

9.

In its

Order ofDecember 18, 20O3~-the--Board--found

that Petitioners’ petition is

neither duplicitous nor frivolous and

contains a satisfactory demonstration under Section

40(e)(2) of the Environmental Protection Act, 415 ILCS

5/40(e)(2).

10.

As the result ofa disagreement between Petitioners and Respondents regarding

the need for and availability ofdiscovery with regard to the petition, Hearing Officer Bradley

Halloran in an

order ofApril

1, 2004 established a schedule for the submission ofbriefs on the

issues ofwhat the Board is to base its decision on in this matter and what constitutes

the record

4

---

before the Agency. The final briefs were filed in compliance with the April

1, 2004 Order on

April 30, 2004 and the issues addressed by the April

1, 2004 Order and the submissions filed

pursuant to it have been pending before that Board

since that time.

11.

The Board should immediately grant summaryjudgment to Petitioners. There is

no basis for allowing discovery or taking further evidence in this case because the case is

governed by 415 ILCS

5/40(e)

that state that the Board shall hear the petition “exclusively on the

basis ofthe record before the Agency.” As stated by the Board in Prairie Rivers Network v.

JEPA and Black Beauty Coal Company, (PCB 01-112) Opinion and

Order ofthe Board of

August 9, 2001, the evidence for a third party permit appeal is limited “to the record that was

before the IEPA at the time the permitting decision was made.” (at p.

25)

The Agency has filed

what it believes to be the record at the time the permitting decision was made and no partyhas

contested the Agency’s submission.

12.

Moreover,

even were the Board to

decide that discovery is appropriate as to

one

or more issues raised by the appeal, it should grant summaryjudgment as to

the issues not

implicated by such a decision so as to prevent unnecessary pollution and potential injury to

the

environment.

13.

The issuance ofthe permit and the final permit violate 35

Ill. Adm. Code 302.105,

304.105

and 35

Ill. Adm.

Code 309.141. These regulations include Illinois’ antidegradation

regulations,

the regulations prohibiting effluents which alone or in combination with other

pollution sources cause a violation ofanyof any numeric or narrative water quality standard and

Illinois regulations prohibiting issuance ofNPDES permits under circumstances where such

issuance would violate federal law. The most salient errors of the Agency in

granting the permit

and flaws in the final permit are:

5

---

a.

The Agency did not assure that all technically and economically

reasonable measures were incorporated into the proposed discharge to

prevent nutrient loadings to

Hickory Creek in violation of 35 Ill. Adm.

•

Code 302.105(c)(iii)

b.

The Agency did not

assure that the applicable narrative “offensive

conditions” (see 35 Ill.

Adm. Code

3 02.203) and numeric copperwater

quality standards will not be violated as a result ofthe proposed discharge

to Hickory Creek.

c.

The permit

allows effluents that alone or in combination with other

sources causes

a violation ofthe standard prohibiting offensive conditions

in violation of35

Ill. Adm. Code 304.105

d.

The p~rniitviolates 35 Ill. Adm.

Code 309.141(d) by failing to contain

limitations necessary to meet water quality standards and comply with

•

federal law requiring that permits control all pollutants which “will cause,

•

have the reasonable potential to cause, or contribute or contribute to an

excursion above any State waterquality standard, including State narrative

.ç~teriaforwater quality.” 40

C.F. R.

§122.44(d)(1)(i).

14.

In addition,

the Agency in granting the permit failed adequately to protect existing

conditions in Hickory Creek and added to the pollution problems ofthe Des Plaines and

Illinois

Rivers.

Still

further, to the extent the Agency may rely on the concept ofallowing a mixing

zones to justify some portion ofits decision to grant the permit, such zone has not properly been

designed under 35

Ill. Adm. Code 302.102.

15.

Documents entitled “Memorandum in Support ofMotion for Summary

6

---

Judgment” and “Statement of Facts in the Record” are being filed with this motion.

WHEREFORE, the Des Plaines River Watershed Alliance, Livable Communities

Alliance,

Sierra

Club,

and

Prairie

Rivers

Network

ask that

the

Pollution

Control

Board

grant

them summary judgment,

set

aside the NPDES

permit (No 1L0020559)

issued to

the Village of

New

Lenox

on

October

31,

2003

as not

sufficiently protective of the

environment

and

not

in

accord with law

and direct that the Agency reconsider the permit in order to

establish

conditions

and

limits

necessary

to

protect

Illinois

waters,

assure

protection

of

Illinois

water

quality

standards

and

comply with

the Federal Water

Pollution

Control

Act,

33

U.S.C.

§1251

et seq.,

and Illinois law. The Board should direct the Agency in any futurepermit

to:

-

Assure

that

all

technically

and

economically reasonable

measures

to

avoid

or

minimize

the extent

of nutrient

loadings

to

Hickory

Creek be

incorporated into the

• permit pursuant to 35

Ill. Adm.

Code 302.105(c)(B)(iii),

-

Assure

that

discharges

from

New

Lenox

STP

#1

not

cause

or

contribute

to

violations

of the

water

quality

standard

prohibiting

“offensive

conditions”

35

Iii.

Adm.

Code 302.203, and

-

Assure

that

discharges

from

New

Lenox

STP

#1

not

cause

or

contribute

to

violationsof-the -numeric water quality standard for copper provided in

35

Ill.

Adm.

Code Section 302.208(e).

•

___

Albert F. Ettinger

(

eg. No. 3125045)

Counselfor

Des Flames River

Watershed Alliance,

Livable

Communities

Alliance,

Prairie

Rivers

Network

and

Sierra

•

Club

DATED:

February 4,2005

7

---

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARP~

FE

C

E

~V FE D

CLERK’S OFFICE

)

)

STATE OF ILLINOIS

)

Pollution

Control

Board

)

)

)

)

PCBO4-88

)

(NPDES Permit Appeal)

MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT

The Des

Plaines River Watershed

Alliance, the

Livable Communities

Alliance,

Prairie

Rivers

Network,

and

the

Sierra

Club

(collectively,

“Petitioners”)

are

entitled

to

summary

judgment under 35

III Adm.

Code

101.5 16.

This case must be decided “exclusively on the basis

ofthe record before the Agency.”

415

ILCS

5/40(e).

The record before the Agency shows

that

the

Illinois

Environmental

Protection

Agency

(“IEPA”)

failed

to

comply

with

applicable

regulations

in

granting

the

permit

and

that

the

permit

violates

a

number

of

regulatory

requirements.

Indeed, with

regard

to

the

state and

federal

requirement that permits

control all

pollutants

necessary

to

prevent

violation

of

narrative

standards,

the

Agency has

essentially

admitted in the record that the permit does not comply with the law. There is

no issue Ofmaterial

fact and Petitioners are entitled to judgment as a matter of law.

IEPA in granting the permit to

the Village of New Lenox violated numerous

provisions

ofthe Board regulations regarding issuance ofNational

Pollutant Discharge Elimination System

(“NPDES”)

permits

with

regard

to

a

number

of

different

pollutants

and

parameters.

The

L

DES PLANES RIVER WATERSHED ALLIANCE,

LIVABLE COMMUNITIES ALLIANCE,

PRAIRIE RIVERS NETWORK, and SIERRA CLUB,

Petitioners,

v.

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY and VILLAGE OF NEW LENOX

)

Respondents.

)

---

Statement ofFacts

from the Agency

Record being filed with

this

memorandum sets

forth

facts

with regard to many ways in which the permit violates Illinois

law.1

-

However, in an

effort to

secure quicker protection for the receiving waters

and expedite

this proCeeding,

Petitioners

focus ‘in this

memorandum on the three most

salient ways in which

the permit

falls short of Illinois

requirements. First,

the record is very clear that the permit

does

not

require reasonable

controls

on

phosphorus.

Indeed,

IEPA did

not

even

seriously

consider

such controls although the applicable

regulation requires that IEPA “assure”•that all

reasonable

controls be put in place and phosphorus is known to be a problem in Hickory Creek. Second, it is

apparent that the permit does not

even pretend to control pollution that may cause or contribute

to

violations of the narrative offensive conditions standard

(35

Ill.

Adm.

Code

302.203). In lieu

of

compliance

with

the

Board

regulations,

IEPA

offers

only

the

excuse

that

the

narrative

offensive conditions standard is

“very difficult to apply.” (SoF

¶

41). Third, the permit does not

control

discharges

of copper

that

may

cause

or contribute

to

violations

of the

copper water

quality standard. ~

In

their

motion,

Petitioners

ask

that

the

permit

be

revoked

and

remanded

for

reconsideration by the Agency with instructions to the Agency in any future permit to:

1

Citations offacts in this memorandum are cited to The Statement ofFacts from the Agency

Record in the format of”SoF

¶

.“

2

In addition to failing to require, or even consider, technologically and economically reasonable

pollution control measures and failing to assure that discharges from the plant will not cause

violations ofthe offensive conditions and copper standards,

the continued and increased

discharges from New Lenox STP #1

allowed by the permit will seriously harm the biological

integrity ofHickory Creek and adversely affect the Des Plaines and

Illinois Rivers downstream.

The permit also fails to

assure that discharges from the plant will not cause violations ofnumeric

water quality standards forpH and dissolved oxygen. Because the environmental implications of

these violations

are intertwined with the failure to

control nutrients,

Petitioners believe that if on

remand the Agency properly addresses the nutrient issue, it will also address the protection of

existing uses, dissolved

oxygen and pH issues.

2

---

-

Assure

that

all

technically

and

economically reasonable

measures

to

avoid

or

minimize

the extent

of nutrient

loadings

to

Hickory

Creek be

incorporated

into the

permit pursuant to 35

Ill. Adm.

Code 302.105(c)(2)(B)(iii),

-

Assure

that

discharges

from

New

Lenox

STP

#1

not

cause

or

contribute

to

violations

of the

water

quality

standard

prohibiting

“offensive

conditions”

35

Iii.

Adm. Code 302.203, and

-

Assure

that

discharges

from

New

Lenox

STP

#1

not

cause

or

cOntribute

to

violations of the numeric

water quality standard for copper provided in 35

III.

Adm.

Code Section 302.208(e).

SUMMARY OF THE

Hickory Creek

Hickory Creek flows through Will

County and discharges into the Des Plaines River near

Joliet, Illinois.

(SoF

¶

1)

Because

the

proper

data has

not

been

collected,

the

evidence

in

the

record

is

at best

unclear

as

to the current

state of Hickory

Creek.3

It

is

clear that the trend of water quality in

Hickory Creek over

the last 30

years

has been

downward. According to

a

1971

publication by

the Illinois Natural History

Survey, Hickory Creek was at that time

the “outstanding

stream”

in

the Des Plaines River system.

More recently, Hickory

Creek has been rated

a “C” stream

and

was

listed

as

impaired

by

IEPA

in

its

2002

list

of

impaired

waters.

Potential

causes

of

~The record is unclear as to the extent to

which the existing New Lenox discharge is adversely

affecting the biological integrity ofthe receiving waters. A study ofthe existing biological state

ofthe creek was done by

a contractor forNew Lenox but the study was heavily criticized by

3

---

impairment

listed

in

2002

by

IEPA

are

phosphorus,

nitrogen,

total

dissolved

solids,

flow

alterations

and

suspended solids.

The potential

sources of impairment. listed

by

IEPA include

municipal point sources. (S0F

¶

5)

Also, while IEPA in its antidegradation analysis broadly concluded that the increment of

increased

pollution allowed by the permit would not

affect existing

aquatic life or other uses of

Hickory Creek, there does not appear to be any evidence in the record to support

that conclusion.

•

No specific study was conducted ofthe potential effects ofthe increased discharge although the

increased

discharge makes up

a large portion of the flow of the creek during

critical

low

flow

conditions.

(SoF

¶

11)

There

is

no

dispute

in

the

record

that

Hickory

Creek

is

being

affected

by

severe

vegetative growth. Eyewitnesses at the hearing testified of new and

offensive algal

blooms

that

took over miles of the creek during

the summer before the hearing. Other evidence ofunnatural

vegetative

growth

includes

evjdence

of large

diurnal

swings

in

dissolved

oxygen

levels

and

evidence ofpH levels that violate Illinois water quality standards. No one contested in the record

the existence of these

offensive

cOnditions and

subsequently Hickory

Creek was

listed

by

the

Agency as impaired by algal blooms. (SoF

¶IJ

5-8,

¶1J14-15)

There

is no

doubt that the kind ofalgal growth and pH and variations in dissolved.oxygen

levels that have been seen in Hickory Creek are generally a result of high

levels ofnutrients

in

the water, particularly phosphorus.

Further, it is

clear in

the record that Hickory

Creek has high

levels of phosphorus

and

that

the New Lenox

sewerage

treatment

plant

discharge

is

a major

source ofphosphorus. (SoF

¶~f

9-11)

IEPA scientists who requested the

study be done over. Ultimately it was decided by IEPA, not to

require a proper study of existing biological conditions. (SoF

¶~f

16-21)

4

---

Proceedings Before the Agency

On January

5,

2003,

IEPA gave notice

that

it had made

a tentative

decision to

renew

a

NPDES

permit to New Lenox

to

discharge into Hickory

Creek. The renewed permit allows the

New Lenox plant to

increase its

design average flow from

1.54 million gallons per day to

2.5

16

million gallons per day. (S0F

¶

23)

In their comments

and

testimony given

on

the draft permit,

Petitioners

raised

legal

and

scientific issues

regarding

flaws

in

the

draft permit

and

in

IEPA’s

consideration

of the

draft

permit.

Petitioners

commented

that

the

draft

permit

allowed

discharges

of

phosphorus

and

nitrogen that

cause, have a reasonable potential

to

cause or contribute to

violations of the water

quality standards regarding offensive conditions.

(SoF

¶

27) Petitioners

offered expert opinions

and

published treatises

showing that

nutrients

are

the

likely

cause

of algal

blooms

and

other

unnatural

plant growth that havebeen reported in thç creek. (SoF

¶~f

11-13)

Further, Petitioners commented the draft permit allows discharges that may cause, have a

reasonable potential

to cause or contribute to

violations of state water quality standards regarding

copper,

35

Ill.

Adm.

Code 302.208(e).

This comment was based

on the fact that, using the U.S.

EPA

method

for

determining

reasonably

potential,

the

two

laboratory

tests

of New

Lenox

effluent

done

by

New

Lenox’ s

contractor

showed

that

there

was

a

reasonable

potential

for

violation of the state’s copper standard and

that

a permit

limit or at least more careful

analysis

was required. (SoF

¶~J

34-3

5)

Petitioners also

commented that the draft permit

and the

studies and

lack ofstudies

that

led

to

the

creation

of the

draft

permit

did

not

comply

with

Illinois

antidegradation

rules

protecting the existing

uses of the receiving waters.

35

Ill. Adfn

Code

302.105(a).

Petitioners

5

---

cited

evidence that studies

were not properly

conducted to

determine the potential

effect of the

draft

permit

on

existing

uses

of the

stream,

and

that

IEPA officials

recognized

that

the

study

conducted by the applicant’s contractor was inadequate. (SoF

¶~J

16-21,

¶

29)

Petitioners

asked that

all

technically and

economically reasonable

measures

to

avoid or

minimize

the

extent

of the

proposed

increase

in

pollutant

loadings

be

incorporated

into

the

permit. In particular, petitioners asked IEPA to provide for economically feasible controls on the

discharge ofnutrients, particularly phosphorus.

(S0F

¶IJ

29-33).

On October

31,

2003,

Illinois EPA issued the permit that

is subject to the current appeal.

The final permit

does not

contain

any limit

on discharges of nutrients or copper or even require

that

these

pollutants

be

monitored.

.

(SoF

¶

37)

The

record

shows

further

that

IEPA

never

determined whether New Lenox could economically control nutrient pollution.

(SoF

¶

33,

¶

40)

The Agency Responsiveness Document states that any nutrient controls were being put offuntil

the development ofnumeric nutrient standards.

(S0F

¶

41) The Responsiveness Document states

further that

no

limit was

being placed

on

the

discharge

to

prevent violation of the “offensive

conditions” narrative standard because it is a “very difficult standard to apply.” (S0F

¶

41)

I.

The Permit Does Not Comply with

Illuiois

Antidegradation Regulations.

The permit

did

not

comply with

35

Ill.

Adm.

Code

302.105(c)(2)(D)(iii) because IEPA

did

not

assure

that

the

permit

incorporated

all

reasonable

measures

to

avoid

or minimize

the

extent

of the new pollution loading.

Much of the discussion

in the record focused

on

whether

New Lenox could have avoided some or all ofthe new discharge by spraying some or all of the

effluent

on

the land. Petitioners

believe that careful

consideratiOn of the record shows

that

the

6

---

consideration of land application by New Lenox and IEPA was purely

proforma.

However, the

failure to

consider land application seriously need not detain us here because the record is crystal

clear that IEPA did

essentially nothing to determine if New Lenox could reasonably reduce the

amount of its phosphorus pollution to Hickory Creek.

IEPA

failed

to

assure

that

reasonable

controls

were

put

on

nutrients

although

the

evidence in the record shows

without dispute that the nutrient pollution from

facilities like New

Lenox’s can practicably be reduced substantially. The law is

quite clear that,

at a bare minimum,

IEPA

should

have

carefully

considered

the

level

of nutrient

control

that

New

Lenox

could

technically and

economically provide.

The law

requires that new pollution

be

minimized

even

when it would not potentially

affect the receiving water.4 However,

IEPA’s

complete failure to

minimize the extent ofthe increased nutrient pollution ofHickory Creek and downstream waters

is

particularly

regrettable

here because

the record

is

clear

that

the

New Lenox

discharge

is

a

major

source

of phosphorus

to

Hickory

Creek

and

phosphorus

is

already

having an

adverse

impact on the stream and

downstream waters.

Key provisions of Illinois

Antidegradation regulations

enacted by the Board in

2002,

35

Ill. Adm.

Code 302.105(c), state:

c)

High Quality Waters

..

‘

4An antidegradation policy is “a policy requiring that state standards be

sufficient to maintain

existing beneficial uses ofnavigable waters, preventing their further degradation.” PUD No.

1 of

Jefferson County v. Washington Dep’t ofEcology, 511

U.S.

700,

705 (1994). Each state must

adopt an antidegradation policyconsistent with 40 C.F.R.

§

131.12, which creates

overlapping

“tiers” of.protection.

40 C.F.R.

§

131.12. At the base, Tier

1

requires the maintenance and

protection of“existing

instream water uses.” 40 C.F.R.

§

13 1.1 2(a)( 1). Tier 2 adds another

layer ofprotection for water quality by providing that levels ofwater quality better than that

needed to meet standards and protect

existing uses, “shall be maintained and protected” unless

“allowing lower water quality

is necessary

to

accommodate important economic or social

development in the area in which the waters are located.” 40

CFR 131 .12(a)(2)(emphasis added).

7

---

1)

Except

as otherwise provide in

the subsection (d) ofthis

Section,

waters

of the

State

whose

existing

quality

is

better

than

any

of

the

established standards ofthis

Part must be maintained in their present high

quality,

unless

the

lowering

of

the

water

quality

is

necessary

to

accommodate important economic or social development.

2)

The

Agency

must

assess

any

proposed

increase

in

pollutant

loading

that

necessitates

a

new,

renewed or modified

NPDES

permit

or

any

activity

requiring

a

CWA

Section

401

certification

to

determine

compliance with

this

Section.

The

assessment

to

determine

Compliance

with

this

Section

must be made

on

a

case-by-case basis.

In making

this

assessment, the Agency must:

A)

Consider the fate and

effect ofany parameters proposed for.

an increased pollutant loading.

B)

Assure the following:

i)

The

applicable

numeric

or narrative water quality

standard will

no

be

exceeded

as

a

result

of the

proposed

activity;

•ii)

All existing uses will be fully protected;

iii)

All

technically

and

economically

reasonable

measures

to

avoid or minimize

the extent of the proposed

increase

in

pollution

loading

have been

incorporated into

the proposed activity;

....

The language of302.105(c) is very clear and plainly mandatory. Before granting

a

permit

allowing new pollution loadings, the Agency

“must”

“assure”

that

“all”

reasonable measures to

minimize

the

extent of the pollution have been incorporated.

See

also

See

35

Ill.

Adm.

Code

302.105(f)(1)(D)

(information

on

treatment

levels

and

alternatives

must

be

presented by

the

applicant)5

The language

of Section

302.105(c)

certainly does not

allow the

IEPA

to

limit

its

~ An explanation ofthe antidegradation rules was sent out by IEPA shortly after they were

enacted. (Appendix ofAuthorities A).This explanation makes clear that under this rule, in

addition to requiring limits on all pollutants that could cause violations of standards, IEPA must

require the type oftreatment design that will hold degradation to

the “smallest amount practically

achievable.”

8

---

consideration of controls on

an important pollutant to

mentioning one possible level of treatment

and then rejecting it without thought. At a minimum, IEPA should have determined what level of

phosphorus

and

nitrogen

removal

were

economically reasonable

and

imposed limits

based

on

that determination.

.

While

the Board’s

language requiring IEPA

consideration of all

the

ways

to

minimize

pollution

could hardly be

more

clear,

it is

worthwhile

to

review the considerations that

led the

Board to adopt this language. Even decades before adoption of the 2002

antidegradation rules, it

was established Illinois

policy that the state would

not

allow unnecessary pollution

even if that

new

pollution

under

consideration

would

not

cause

a

violation

of water

quality

standards.

Indeed, even before the Pollution Control Board was created, it was not Illinois

policy to

permit

new pollution into a stream up to the level

at which a violation would develop. As was explained

by

the

Board

in

1972

in

adopting

the

“nondegradation”

policy

which

preceded

the

current

language

quote

above, “This

preserves

the

present prohibition

on

unnecessary degradation

of

waters presently of better quality than that required by:the~waterquality

standards, recognizing

that the standards represent not optimum water quality but the worst we are prepared to tolerate

if economic

Conditions so require.” In the Matter ofWater Quality Standards Revisions, R7 1-14

(PCBMarch7, l9’72)p.

11.

In

drafting

current

Section

302.105(c),

the

Board

was

also

advised

by

the

federal

antidegradation regulations which permit

a

lowering of water quality only if it

is

“necessary to

accommodate

important

economic

or

social

development”

40

CFR

131.l2(a)(2)

because

a

lowering of water quality

is

not necessary if it can practicably be avoided.. With regard

to

this

regulation,

U.S.

EPA in

its

Water Quality

Standards

Handbook (4th Edition

1994) (available

at

www.epa.gov/watescience/standards/handbook) explained:

9

---

Lowering

water quality

is

allowed

only

in

a

few

extraordinary

circumstances where the economic

and

social need for the activity

clearly outweighs the benefit

of maintaining

water

quality

above

that required for “fishable/swimmable”

water,

and both

cannot be

achieved. The burden of demonstration on the individual proposing

such activity will be

very high.

In any case, moreover, the existing

use

must

be

maintained

and

the

activity

shall

not

preclude

the

maintenance

of

a

“fishable

swimmable”

level

of water

quality

protection. (Appendix ofAuthorities B, p. 4-7)

Here the IEPA went forward without getting information on alternative controls from the

applicant in

violation of 35

Ill.

Adm.

Code

302.105(f)(1)(D)

and,

in

violation

of 35

Ill.

Adm.

Code

302.105(c),

did

not

do

any

analysis

of the

range of technologically

and

economically

reasonable

measures

to

avoid

or

minimize

nutrient

loadings

to

the

stream

although

it. was

repeatedly asked to

place nutrient

limits in

the permit

and consider the reasonableness of doing

so.

(SoF

¶IJ

30-33,

¶

36,

¶

40)

And, of course,

the Agency knew full well

that

it

is

feasible to

reduce phosphorus concentrations down to

1

mg/L as numerous Illinois

communities are already

doing so as a result of Illinois regulations that have been in place for decades. 35

Ill. Adm.

Code

304.123. The permit should be vacated and

IEPA directed by the Board to

consider what levels

of nutrient control measures are technically and

economically reasonable to

impose in the permit

and to

assure that all such measures are required.

IL

The

Permit

Fails

to

Control

All

Pollutants

that

Have

a

Reasonable

Potential

to

Cause

or

Contribute

to

Violations

of

Numeric

and

Narrative

Water

Quality

Standards.

.

.

The

permit

in

issue

also

fails

to

control

discharges

that

may

cause

or

contribute

to

violations of water quality

standards.

This violates

a number ofprovisions of Board regulations

controlling the issuance ofNPDES

permits.

The Record

shows

that

IEPA

failed to

assure that

10

---

discharges from the plant

would not

cause violations of the standards

for dissolved

oxygen

and

pH (SoF

¶~J

14-15),

but it is most clear that IEPA violated 35 III Adm. Code

302.105(c)(2)(B), 35

Ill.

Adm. Code 304.105

and 35 Ill. Adm.

Code

309.141(d)(l) and (2) with regard to

the narrative

water quality

standard as to

“offensive conditions,”

35 Ill.

Adm.

Code 302.203,

and the numeric

standard as to copper.

In violation of 35 Ill.

Adm. Code 309.142, IEPA has not properly verified

that

the

discharges

allowed

by

the

permit

will

not

cause

or

contribute

to

violations

of the

offensive conditions, or copper standards.

A.

The

Law

Clearly

Requires

that

Permits

limit

all

pollutants

that

may

cause

a

violation ofnumeric or narrative standards.

35

Ill.

Adm.

Code

304.105

requires

that

any

effluent

or

combination

of effluents be

regulated to

insure

that

thefe

is

compliance

with

all

applicable

water

quality

standards

in

all

receiving or

downstream waters

that

may be

affected by

the discharge.

See

also

35

Ill.

Adm.

Code 309.l41(d)(1).

Similarly,

applicable federal

regulations

explicitly

require

that

NPDES

permits

include

permit

limits

to

control

“all

pollutants

...

which

will

cause,

have

a

potential

to

cause,

or

contribute

to

an

excursion

above

any

State

water quality

standard,

including

State

narrative

criteria for water

quality”

40

CFR

§~

122.44(d)(1)(i)

see

also,

40

CFR

122.4(d)

and

(i).

As

explained by American Paper

Institute v.

U.S.

Environmental Protection Agency,

996 F.2d

346,

350

(D.C.

Cir.

1993). permit

“limitations

must control

all

pollutants or pollutant

parameters

(either

conventional, nonconventional or toxic pollutants) which

...

are or may be discharged at a

level

which will cause, have a reasonable potential to cause, or contribute to

an

excursion above

any

State

water quality

standard,

including

state narrative criteria for water quality.”

Not only

must

permit

limits

protect

standards

in

the

waters

immediately

below

the

discharge

point,

11

---

standards must

be protected in

waters

far

downstream of the discharge,

even

in

another state.

Arkansas

v.

•Oklahoma,

503

U.S.

91,

107

(1992).6

These

federal

principles

of law

are

fully

applicable

to

Illinois

NPDES

permits

under

applicable

Board

regulations

requiring

permits

to

meet any federal law or regulation. 35 Ill.

Adm. Code 309.14l(d)(2).

B.

The

Permit

Does

Not

Assure

Compliance

with

the

narrative

standard

on

Offensive Conditions

-

35 Ill. Adm. Code 302.203 establishes the narrative standard that:

Waters of the

State

shall be

free from sludge

or bottom

deposits,

floating

debris,

visible

oil,

odor,

plant

or algal

growth,

color or

turbidity of other than natural origin.

Under the law discussed above, IEPA could not legallyissue a permit that would cause or

contribute to a violation ofthis narrative standard and the record is unequivocal that this standard

has been violated as

the result of pollutants

of the

sort

permitted

by

this

permit.

Thus,

35

Ill.

Adm.

Code

304.105

and

309.141

are

clearly

violated

by

the

permit.

There

was

abundant

testimony

that

the offensive

conditions

standard

is

currently

being

violated.

There

was

also

testimony

and

comments

by

experts,

as

well

as

numerous

treatises

placed

into

the

record,

showing

that

the type

of pollution

coming

from

the plant

was exactly the kind ofphosphorus

pollution

likely to

cause the

offensive conditions

reported by

numerous

eyewitnesses.

Nothing

was

offered

into

the

record

by

the

applicant

or

IEPA

to

refute

any

portion

of this

record

testimony and other evidence.

Nonetheless,

IEPA

did

not

even consider placing

limits

in

the permit

to

prevent

such

6

The Board

applied this principle with regard to

the Des Plaines River system in holding that

heat discharges to the river at Joliet could not be allowed if they would cause or contribute to

violations ofwaterquality standards miles downstream. In the Matterof:

Petition of

Commonwealth Edison Company for Adjusted Standard from 35

Ill.

Adm. Code 302.211(d) and

(~,

AS 96-10 (PCB, October 3,

1996) p.

5.

12

.

---

violations

of narrative standards

but

instead offered only

the explanation that it

is

working

on

developing

numeric

standards

and

that

it

is

“very

difficult”

to

write permits

to

comply

with

narrative standards.

(SoF

¶

41)

Petitioners

submit

that

one

does not

comply with

a

regulation

simply by declaring that it is “verydifficult” to do

so.7

C.

IEPA must further consider whether a permit limit on copper is needed

The

IEPA permit

writers

at least purported to

consider

what

limits

were

necessary

to

prevent violations ofnumeric water quality standards.

But their efforts

fell far short of assuring

that the copper limit would not be exceeded.

The

United

States

Environmental

Protection

Agency

NPDES

Permit

Writers

Manual

(http://cf~pub.epa.

gov/npdes/writermanual.cfln?program

id=~45)discusses the problem of how to

determine reasonable potential to violate water quality standards and how to

deal with the risk of

uncertainly particularly in the case in which there is limited data. The Manual states:

All

toxic

effects testing

and

exposure

assessment

parameters, for

both

effluent

toxicity and

individual

chemical,

have

some

degree

of uncertainty associated

with

them.

The more limited

amount of

data, the larger the uncertainty. To better characterize the effects of

effluent

variability

and

reduce

uncertainty

in

the

process

of

deciding whether to require an

effluent limit EPA has developed

a

statistical

approach to determining a reasonable

potential.

(Section

6.3.2 p.

102, Appendix ofAuthorities C)

JEPA

did

its

analysis

of the

“reasonable potential

to

exceed”

with

only

two

effluent

samples and

actually did

the calculation recommended by

U.S.

EPA. Based

on

the

fact it was

using

two

samples,

IEPA

did

the math

for considering whether

it should

place

a

copper limit

using the federal technical guidance

and

found that there was a potential to

exceed the acute and

‘~

Still further, in this case involving an increased

discharge, 35 Ill. Adm. Code

302.105(c)(2)(B)(i) required that IEPA “assure” that narrative standards would not be exceeded.

13

---

chronic standards for copper.

Had IEPA applied the federal

guidance,

it clearly would have had

to place limits in the permit because its calculation showed that there was a reasonable potential

for violating standards.

Indeed, given the limited

amount of data that it looked

at,

there was

a

reasonable potential

for a discharge that exceeded the

acute

water quality standard by more than

200

percent.(HR 508)8 Still, IEPA

did not put

any copper limit in the permit or even establish a

monitoring requirement.

The

permit

does

not

comply

with

35

Ill.

Adm.

Code

302.105

or 35

Ill.

Adm.

Code

309.141

because it does not limit

all pollutants that may cause or contribute to a violation ofthe

copper standard.

And

in

the permit

IEPA

certainly did

not

“assure”

that the

copper

standard

would be met as required by

35 Ill. Adm.

Code

CONCLUSION

The Board should reverse the October 31, 2003

decision ofthe Illinois Environmental

Protection Agency (“IEPA”) to grant a National Pollutant Discharge Elimination System

(“NPDES”) permit (Permit No. 1L0020559) to the Village ofNew Lenox to

increase its

discharge ofpollutants into Hickory Creek from its

sewerage treatment plant for a numberof

reasons. The Board should further direct that the Agency reconsider the permit in order to

establish conditions and limits necessary to

limit nutrient pollution to that consistent with the

lowest technologically and

economically feasible level, and assure that discharges from New

Lenox

STP #1

do not violate the standards regarding copper and offensive conditions.

One certainly cannot be said to have assured compliance with a standard by declaring that the

standard is “very difficult” to apply.

14

---

•

__

Albert F. Ettinger (Re

.

No. 3125045)

Counselfor Des

Flames River

Watershed Alliance,

Livable

Communities

Alliance,

Prairie

Rivers

Network

and

Sierra

Club

DATED:

February 4,2005

Environmental Law

and Policy Center

35 E. Wacker Dr. Suite 1300

Chicago, Illinois 60601

.

.

312

795

3707

8

Had IEPA followed its own rule regarding discharges to the Great Lakes, it would have had to

do a mixing zone analysis or place a monitoring requirement in the permit.

35 Ill. Adm.

Code

352.421. But IEPA

did not do a mixing zone analysis or require monitoring either.

15

---

Appendix of Authorities A

---

‘~1/14/2@05

10:58

2173442381

PRAIRIE

RIVERS

PAGE

~2

ILLINOIS

ENVIRONMENTAL

PROTECTION

ACENCY

~

-.

1021

NORTH

GRAND

AVENUE E~r,P.O. Box

19276,

SPRORELD,

JLLtNOIS

62794-9276

R~NEE

CIPRIANO,

DIRECrOR

217/782-0610

July

l8~20O2

NAiL

C0U~

lb

Planning

CCmiss1~n

~?

Riverside pia~

Suite

1800

Chicago.

IL

606Q~

Re:

Revisions

in the Permiuin~

Procedures forAU New and

Expanded Sewage Treatment Plants

Dear Design

Engi-nt~cr:

The

purpose

ofthis

letter is to

inform

design

professionals ofrecent

changes to

NPDES

permit

program

administration

within

the

Division

of

Water

Po:Uution

Control

and

how

they

relate

to

application

documents

submitted

in

support

of a

permit application

These

changes pertain

to

new Illinois

Pollution

Control

Board

R~gula~ions

that

place specific

requirements

upon

the Agency

for issuance

of

permits

that

authorize

a new or increased

discharge

of

wastewatei- into waters ofthe

state.

The Agency

is

adjusting its

permit

review

and

issuance

process

to comply

with

these

Oew

requirements

with

minimal

additional

time

and burden upon

both the pertnit

applicant and.

Agency staff. In

‘order to

accomplish

this,

it

is

important

for the

engineering profession

to understand the importance of early and comprehensive facility pjanning

•

‘

and engineering

reports to the permittit~g

process.

The Illinois

Pollution

Control

Board

adopted

new

anti-degradation regulations

on

February

21,

2002.

These

rules

became

effective

on

Eebruary

22,

2002

and

can

be

downloaded

from

the

Board

at

www.ipcb.stateiLu

WArchive/dsc~i/ds.pv/Get/Fik-J66

I

91R

01-013

022102

Opinion

and

Order.pdf

using Adobe Acro~a~®,

Primarily, these regulations require that the Agency perform an analysis for all

new

and

expanded discharges to surface waters (requiring NPDES permits).

The

primary purpose ofthe

anti-degradation

analysis is to ensure that

new (or expanded) discharges do not cause

degradation

in

the

water

into

which

discharge

occurs

unJess

absolutely

necessary.

if

degradation

is

likely

to

occur,

the

degradation

must- be

held

to

the

smallest amount

practically

achievable and

such

degradation

must be

fully justified

by the benefitsofthe project.

In

times

past,

the p~rmitapplicant

and

their

engineer

have

decided

upon

the

method

of wastewater

treatment to

be provided

based primarily on cost

and

the

requirements of the applicant.

Review by

the

Agency took place

primarily

after design was

coiupleted (unless financial assistance was being provided

by the Agency) and was based on whether or notthe proposed treatment system would consistently meet

effluent standards.

~t

is

now necessary

for

the

Agency (and

the public) to become

involved

in the process

much

earlier.

The

revised anti-degradation regulations focus

less

on the requirements necessary to meet

water quality standards

(although

compliance

with

these

standards

is

still

necessary) and more

on

what

kind of treatment

system

can

be

designed to have the

least

adverse

impact on the receiving water.

GEORGE H. Rv~, GOVERNOR

O,vs

Vi.—,

.,.,•

~‘‘

“r’

---

@1/14/2@@5

1@:58

2173442383.

FR~Il~IE

RIVERS

-

PAGE

@3

Page2

-

Revisions

in

Pe

n~ining

Procedures

Any

discharge of treated

wastewater

to

surface

waters

has the

potential

to

cause

the

quality of the

receiving water to become degraded.

Therefore, systems that

do not discharge should be considered and

must

be

deemed

not

feasible

before

a

discharging

system

can

be

considered.

Examples

of non-

discharging systems

are golf

course,

agricultural

land,

and other

types

of spray

irrigation,

seepage fields,

and other types of

subsurface

discharges.

Regionalization should also be considered for communities so

located.

Potential

environmental

impacts

should

be

examined

and

included in

the preliminary

engineeringreport

(or

facility plan if the project

is to receive funding through the IEPA lo~program, etc.) for

each option

considered.

To expedite the

review process, an NPDES permit application should be submitted with the

engineering

report/facility

plan

in

cases

there a discharging system

is the

recommended

cdnstruction

alternative.

Plans and specifications should not be prepared

until the engineering report/facility plan

has

been approved

by the

Agency.

Thenew Board ruies essentially merge the engineering report/facility plan and NPDES

permit

applicat~

procedures into one process that must be completed before a state authorization

to

construct (state pernizt~

can be issuecL

The

items

to

be included in

the

engineering

report/facility plan

are attached.

As

the Agency

implements the

Board’s anti~degradation

regulations, additional items may cometo light.

The

Agency will

attempt

to

keep

the

regulated

community

apprised

of these as they

develop.

In

the

meantime,

we

have compiled a -list ofcommonly~rnade

errors

in

the processing of sewage treatment plant

permit applicatic~-u.

To

expedite the issuing ofpermits,

the

Agency has included these

as

an attachment

to this letter.

Ensuring that

your staff does not

make

any ofthese common errors on submissions to the

Agency should

help reduce

the burden

and

time that

it

takes

the

Agency to

review

the submittal.

The

Agency

thanks

you

for

your

continuing

cooperation

and

patience

in

this

matter

as

we

begin

impkmenting

these

new

requirements.

If you.

have questions

or comments

on

these

changes,

please

contactour

municipal

engineer at the phone number given above.

McSwiggin,

P

Manager, Permit Section

DivIsion of

Water

Pollution

Control

TOM:

DJS~

---

Appendix of Authorities

B

---

United

States

Erivironment~fProtection

Agency

EPA

823B-94-005•

August

1994

~3EPA

Water

Quality

Standards

Handbook:

Second

Edition

Contains

Update

#1

Sect~on1O1la~

of

the

Clean

Water

Act

August

1994

~)

~Rscyd.b~

Pnntv~

on p~,mat ~

Office of

1,Vater

(4305)

•1

“,..

to-

restore

and

maintain

the

chemical,

physical,

and biological integrity of the Nation’s

waters.”

---

Chapter

4

-

Atuidegradanon

High-quality

waters

are

those

whose

quality

exceeds

that

necessary

to

protect

the

section

lOl(a)(2)

goals

of

the

Act,

regardless

of

use

designation.

All

parameters

do

jjQ~

need

to

be

better

quality

than

the State’s ambient

criteria

for

the

water

to

be

deemed

a

“high-quality

water.”

EPA

believes

that

it

is

best

to

apply

antidegradation

on

a

parameter-by-parameter

basis.

Otherwise,

there

is

potential

for

a

large

number

of waters

not to

receive

antidegradation

protection,

which

is

important

to

attaining

the

goals

of

the

Clean

Water

Act

to

restore

and

maintain

the

integrity

of

the

Nation’s

waters,

However, if a

State

has

an

official

interpretation

that

differs

from

this

interpretation,

EPA

will

evaluate

the State

interpretation

for

conformance

with

the

statutory

and

regulatory

intent

of

the

antidegradation

policy.

EPA

has

accepted

approaches

that

do

not

use a

strict

pollutant-by-

pollutant

basis

(USEPA,

1989c).

In

‘high-quality

waters,”

under

131.12(a)(2),

before

any

lowering of water quality occurs, there

must

be an antidegradation

review consisting

of:

•

a finding that

it is necessary to accommodate

important

economical or

social development

in

the area

in

which

the

waters

are

located

(this phrase

is

intended to

convey

a general

concept

regarding

what

level

of social

and

economic

development

could

be

used

to

justify a change

in high-quality waters);

•

full

satisfaction

of

all

intergovernmental

coordination

and

public

participation

provisions

(the

intent

here

is

to

ensure

that

no

activity

that

will

cause

water

quality

to

decline

in

existing

high-quality

waters

is

undertaken

without

adequate

public

review

and

intergovernmental

coordination);

and

•

assurance

that

the

highest

statutory

and

regulatory

requirements

for

point

sources,

including new source performance standards,

and

best

management

practices for nonpoint

source

pollutant controls are achieved

(this

requirement

ensures

that

the

limited

provision

for lowering water quality of high-

quality waters down to “fishable/swimmable”

levels will

not be

used

to undercut

the Clean

Water

Act requirements

for

point

source and

nonpoint

source

pollution

control;

furthermore,

by

ensuring

compliance

with

such

statutory and regulatory controls,

there

is

less

chance

that

a

lowering

of

water

quality

will

be

sought

to

accommodate

new

economic

and

social development).

In addition,

water

quality

may

not be

lowered

to

less

than

the

level

necessary

to

fully

protect

the

“fishable/swimmable”

uses

and

other

existing

uses.

This provision

is intended to provide

relief

only

in

a few extraordinary circumstances

where

the

economic

and

social

need

for

the

activity

clearly

outweighs the benefit of maintaining water

quality

above

that

required

for

“fishable/swimmable”

water,

and

both

cannot

be

achieved.

The

burden

of demonstration

on

the

individual

proposing

such

activity

will

be

very

high.

In

any

case,

moreover,

the

existing

use

must

be

maintained

and

the

activity

shall

not

preclude

the

maintenance

of’

a

“fishable/swimmable”

level

of

water

quality

protection.

The

antidegradation

review

requirements

of this

provision

of

the

antidegradation

policy

are

triggered

by

any

action

that

would

result

in

the

lowering of water quality

in

a high-quality

water.

Such

activities as new discharges or expansion of

existing

facilities

would

presumably

lower

water

quality

and

would

not

be

permissible

unless

the

State

conducts

a

review

consistent

with

the

previous

paragraph.

in

addition,

no permit

may

be

issued,

without

an

antidegradation

review,

to

a discharger

to

high-quality waters

with

effluent

limits greater

than actual current

loadings if such

loadings

will

cause

a

lowering

of water

quality

(USEPA,

l989c).

Antidegradation is not

a “no growth”

rule and was

never

designed

or

intended

to

be

such.

It

is

a

policy

that allows public decisions

to

be made

on

important environmental actions.

Where the State

intends to provide for development,

it

may decide

under

this

-

section,

after

satisfying

the

(8/15/94)

4-7

---

Appendix

of Authorities

C

---

---

Water Quality-Based

Effluent Limits

Chapter 6

General

Considerations

When determining whether WQBELs are

needed

in

a

permit, the permit writer

is required

to

consider, at

a minimum:

(1) existing

controls on

point and

nonpoint

sources of pollution;

(2) the

variability of the

pollutant or pollutant parameter

in the

effluent;

(3)

the

sensitivity of the

species to toxicity testing;

and

(4)

where appropriate,

the

dilution

of the

effluent

in

the receiving water (40 CFR

§122.44(d)(ii)).

The permit

writer also

must consider whether technology-based

limits

are sufficient

to maintain

State water quality standards.

Finally,

the permit writer should

consider other

available data and

information pertaining

to the discharger (e.g., compliance

history,

in-stream survey data, dilution, data from

similar facilities)

in addition

to

effluent

monitoring data to assist

in

making

an

informed reasonable

potential

determination.

6.3.2

Determining Reasonable Potential With Effluent Monitoring Data

When characterizing an

effluent for the need

for a

WQBEL, the

permit writer

should use any

available

effluent

monitoring data as

well

as other information

pertaining to the discharge (e.g., type of industry, compliance

history,

stream surveys)

as the basis

for a decision.

The permit writer may already

have effluent data available

from

previous

monitoring,

or he

or she may decide

to

require the permittee to

generate effluent

monitoring data prior to

permit issuance or as a

condition

of the

issued

permit.

EPA recommends

monitoring data be generated

prior to

permit

limit

development for the following

reasons:

(1) the presence or absence

of a pollutant can

be

more clearly established or refuted; and

(2)

effluent variability can be

more clearly

defined.

Data collection

should

begin far enough

in

advance

of permit development to

allow sufficient time for conducting

toxicity tests and

chemical analyses.

The permit writer can

use the available

effluent data and a water quality

model

to

perform a reasonable

potential

analysis.

The mass

balance equation,

presented in

Exhibit 6-2,

is

a

simple

water quality

model

that

can be used for this analysis.

The

permit writer would

use the maximum observed

effluent

concentration, or

a

statistically

projected worst-case value,

to calculate a

projected

in-stream concentration,

under

critical stream

conditions.

The permit writer would

then compare the projected

-

receiving water concentration

to the applicable water quality

criteria to determine

whether a water quality-based

effluent

limit is

needed.

6EPA

NPDES

Permit Writers’

Manual

-

101

---

Chapter 6

Water Quality-Based

Effluent Limits

EXHIBIT 6-2

Basic Mass Balance

Water

Quality Equation

-

QdCd

+

Q5C8-= QrCr

waste

discharge flow

in million

gallons per day

(mgd)

or cubic feet per second

(cfs)

Cd

=

pollutant concentration

in

waste discharge in

milligrams per

liter (mg/i)

Q5

=

background stream flow

in

mgd or cfs

above point of discharge

Cs

=

background in-stream pollutant concentration

in

mg/i

=

resultant in-stream flow, after discharge in

mgd or cfs

Cr

=

resultant in-stream pollutant concentration

in

mg/i

in

the stream reach (after

complete mixing

occurs)

All

toxic

effects testing

and exposure assessment

parameters,

for both

effluent

toxicity and individual chemicals,

have some degree of uncertainty associated

with

them.

The more

limited

the amount

of data, the larger the

uncertainty.

To better

characterize the effects of effluent variability and reduce uncertainty in the process of

deciding whether to

require an effluent

limit

EPA has developed a

statistical approach

to

determining

reasonable potential.

This.approach

is described

in

detail

in

Chapter 3

of

the

Technical Support Document for Water Quality-Based Toxics

Control18

(hereafter referred

to

as the

“TSD”).

The

statistical

approach

combines knowledge

of

effluent variability with

the uncertainty due to a limited number of data to project an

estimated maximum

concentration for the effluent.

This projected

maximum

concentration,

after considering dilution,

can then be compared

to an

appropriate

water quality criterion

to determine the need

for an

effluent limit.

Example:

=

Available dilution

from

upstream

river flow

=

1.2

cfs

=

Discharge flow

-

=

0.31

cfs

=

Upstream

river concentration

=

0.8 mg/I

=

Statistically

projected

maximum discharge

concentration

=

2.0 mg/I

C,

=

Receiving water concentration

Water Quality criterion

=

1.0 mg/I

c

~d

Cd

+

Q8

C~

(0.31 cfs)

(2.0mg/I)

+

(1.2cfs)

(0.8mg/I)

(1.2cfs)

+

(0.31 cfs)

Cr

=

1.05mg/I

Discussion:

Since

the downstream concentration

(Cr)

exceeds

the water quality criterion,

there is

a-

reasonable potential for water quality standards to

be

exceeded.

18USEPA (1991).

Technical Support Document for Water Quallty-Based Toxics

ControL

EPA-

505/2-90-001.

Office of Water Enforcement

and Permits.

102

-

6EPA

NPDES

Permit Writers’

Manual

---

United States

Office Of Water

EPA!505/2-90-Qol

Environmental Protection

(EN—336)

PB91127415

-

Agency

-

-

March

1991

&EPA

Technical

Support Document-

-

Toxics Control

WW~

______

-

-

—

---

3.3.2

Addressing Unc6. wunyIn Effluent Characterization

by Generating Effluent Monitoring Data

All toxic

effects testing and exposure

assessment parameters, for

both effluent toxicity and

individual chemicals,

have some de-

gree

of uncertainty associated with them.

The

more limited the

amount of test

data

available,

the larger the uncertainty.

The

least amount of uncertainty of an effluent’s impact on the receiv-

ing water

exists where (1)

a

complete data

base

is available

on

the

effects of

acute and

chronic toxicity

on

many

indigenous

species,. (2) there

is

a

clear understanding

of

ecosystem

species

composition and functional

processes,

and (3)

actual measured

exposure

concentrations

are

available for

all

chemicals

during

seasonal

changes and dilution situations.

The uncertainty associ-

ated with such

an

ideal

situation

would

be

minimal.

However,

generation of these data can be very resource intensive.

An

example of uncertainty that

results from

limited monitoring

data is if a regulatory authority has only one pieceof effluentdata

(e.g., an

IC50 of

50

percent) for

a facility.

Effluent variability in

such

a case, given the range of effluent toxicity variability seen in

other effluents, may range between 20 percent and 100 percent

(see Appendix A).

It is impossible to determine from one

pieceof

monitoring data where in this range the effluentvariability

really

falls.

More

monitoring

data

would

need

to

be

generated

to

determine the

actual variability of

this effluent and reduce this

source of uncertainty.

To better characterize the effects of effluentvariabilityand reduce

uncertainty in

the

process

of

deciding

whether to

require

an

effluent

limit,

EPA

has

developed

the

statistical

approach

de-

scribed

below.

This approach combines knowledge of effluent

variability

as

estimated

by

a

coefficient

of

variation

with

the

uncertainty due to

a limited

number of

data to

project an

esti-

mated maximum concentration for the effluent.

-

The

estimated

maximum concentration

is calculated

as the upper bound of the

expected lognormaf distribution of effluent concentrations

at

a

high confidence level.

The projected

effluentconcentration after

consideration of dilution

can

then

be

compared to an appropri-

atewater quality criterion to determine the potential for exceed-

ing that criterion and the need for an effluent limit.

The statistical approach

has two parts.

The first is

a characteriza-

tion ofth~

highest measured effluent concentration based on the

desired confidence

level.

The

relationship

that describes this

is

the following:

Pn

=

(1

-

confidence

level)1 1’~

where Pn ~s

the percentile represented by the highest

concentra-

tion in the data and n

is the number of samples..

The following

are some examples of this relationship at a 99 percent confidence

level:

•

The

largest

value

of

5

samples

is

greater

than

the

40

percentile

•

The

largest

value

of

10

samples

is

greater than the

63

percentile

•

The

largest

value

of

20

samples

is

greater

than

the

79

percentile

•

The

largest

value of

100

samples

is

greater than

the

96

percentile.

The

second

part

of the statistical

approach

is

a

relationship be-

tween

the

percentile

described

above

and

the

selected

upper

bound of the lognormal effluent distribution.

EPA’s effluent data

base suggests

that the

lognormal distribution

well

characterizes

effluent concentrations

(see

Appendix

E).

For

example,

if

five

samples were collected (which represents

a 40th percentile),

the

coefficient of variation is

0.6, and the desired upper bound of

the

effluent distribution

is

the 99th

percentile,

then the two percen-

tiles can be related using the coefficient of variation (CV) as shown

below:

C99

exp(2.326o

-

0.502)

—=

=4.2

C40

exp(-0.258o

-

0.502)

where o

=

ln (0/2÷1)

and 2.326 and -0.258 are the normal distri-

bution values for the 99th and 40th percentiles,

respectively.

The

use

of

the 99th

percentile

is for

illustrative

purposes

here.

Al-

though

it

does

represent a

measure of the upper bound of an

effluent

distribution,

other

percentiles

could

be

selected

by

a

regulatory

agency.

The relationship

shown above can

be calcu-

lated for other percentiles and

CVs by replacing the valuesin the

equation.

Tables

3-1

and 3-2 show the combined effects of both parts for a

99-percent confidence

level

and upper bounds of the

99th

and

95th

percentiles, respectively.

The factors shown in the tables are

multiplied

by the highest concentration

in

an

effluent sample to

estimate the maximum expected concentration.

This

procedure

can

be

used for

both

single

and

multiple dis-

charges to the same receiving

waterbody.

This

is accomplished

for multiple dischargers by summing the projected

RWCs for the

pollutant orpollutant parameter of concern from each individual

discharger, and comparing it to

the water quality standard.

This

involves

an

assumption of conservative additivity of the pollutant

after discharge, which

may not accurately reflect the true

behav-

ior of the toxicant.

To overcome this,

and to further refine

the

proportional

contribution of

each discharger

and

the resultant

-

limits, thepermitting authority should supplement this evaluation

with multiple source

WLA

modeling

and/or ambient water con-

centration monitoring.

3.3.3

Effluent Characterization for

Whole

Effluent

Toxicity

Once

an

effluent

has

been

selected

for

whole

effluent

toxicity

characterization after consideration of the factors discussed above,

the regulatory authority

should require

toxicity testing

in accor-

dance

with appropriate

site-specific

considerations

and the

reC-

:1

ommendations discussed below.

In the past 5

years,

significant.1

additional

experience

has

been

gained

in

generating

effluent.~

toxicity data upon

which to make

decisions as to whether or

an effluent will

cause toxic

effects

in the receiving

water in bOth~

freshwater and marine environments.

-

‘1

I

a

~

4

56

---

Table

3-1.

Reasonable Potential

Multiplying

Factors:

99

Confidence

Level and

99~?/o

Probability

Basis

Number

of

Samples

Coefficient of Variation

0.1

0.2

0.3

0.4

0.5

0.6

0.7

0.8

0.9

1.0

1:1

1.2

1.3

1.4

1.5

1.6

1.7

1.8

1.9

2.0

-

1

1.6

2.5

3.9

6.0

9.0

13.2

18.9

26.5

36.2

48.3

63.3

81.4

102.8

128.0

157.1

90.3

227.8

269.9

316.7

368.3

2

1.4

2.0

2.9

4.0

5.5

7.4

9.8

12.7

16.1

20.2

24.9

30.3

36.3

43.0

50.4

58.4

67.2

76.6

86.7

97.5

3

1.4

1.9

2.5

3.3

4.4

5.6

7.2

8.9

11.0

13.4

16.0

19.0

22.2

25.7

29.4

33.5

37.7

42.3

47.0

52,0

4

1.3

1.7

2.3

2.9

3.8

4.7

5.9

7.2

8.7

10.3

12.2

14.2

16.3

18.6

21.0

23.6

26.3

29.1

32.1

35.1

5

1.3

1.7

2.1

2.7

3.4

4.2

5.1

6.2

7.3

8,6

10.0

11.5

13.1

14.8

16.6

18.4

20.4

22.4

24.5

26.6

6

1.3

1.6

2.0

2.5

3.1

3.8

4.6

5.5

6.4

7.5

8.6

9.8

11.1

12.4

13.8

15.3

16.8

18.3

19.9

21.5

7

1.3

1.6

2.0

2.4

2.9

3.6

4.2

5.0

5.8

6.7

7.7

8.7

9.7

10.8

12.0

13.1

14.4

15.6

16.9

18.2

8

1.2

1.5

1.9

2.3

2.8

3.3

3.9

4.6

5.3

6.1

6.9

7.8

8.7

9.6

10.6

11.6

12.6

13.6

14.7

15.8

9

1.2

1.5

1.8

2.2

2.7

3.2

3.7

4.3

5.0

5.7

6.4

7.1

7.9

8.7

9.6

10.4

11.3

12.2

13.1

14.0

10

1.2

1.5

1.8

2.2

2.6

3.0

3.5

4.1

4.7

5.3

5.9

6.6

7.3

8.0

8.8

9.5

10.3

11.0

11.8

12.6

11

1.2

1.5

1.8

2.1

2.5

2.9

3.4

3.9

4.4

5.0

5.6

6.2

6.8

7.4

8.1

8.8

9.4

10.1

10.8

11.5

12

1.2

1.4

1.7

2.0

2.4

2.8

3.2

3.7

4.2

4.7

5.2

5.8

6.4

7.0

7.5

8.1

8.8

9.4

10.0

10.6

13

1.2

1.4

1.7

2.0

2.3

2.7

3.1

-3.6

4.0

4.5

5.0

5.5

6.0

6.5

7.1

7.6

8.2-

8.7

9.3

9.9

•

14

1.2

1.4

1.7

2.0

2.3

2.6

3.0

3.4

3.9

4.3

4.8

5.2

5.7

6.2

6.7

7.2

7.7

8.2

8.7

9.2

15

1.2

1.4

1.6

1.9

2.2

2.6

2.9

3.3

3.7

4.1

4.6

5.0

5.4

5.9

6.4

6.8

7.3

7.7

8.2

8.7

16

1.2

1.4

1.6

1.9

2.2

2.5

2.9

3.2

3.6

4.0

4.4

4.8

5.2

5.6

6.1

6.5

6.9

7.3

7.8

8.2

17

1.2

1.4

1.6

1.9

2.1

2.5

2.8

3.1

3.5

3.8

4.2

4.6

5.0

5.4

5.8

6.2

6.6

7.0

7.4

7.8

18

1.2

1.4

1.6

1.8

2.1

2.4

2.7

3.0

3.4

3.7

4.1

4.4

4.8

5.2

5.6

5.9

6.3

6.7

7.0

7.4

19

1.2

1.4

1.6

1.8

2.1

2.4

2.7

3.0

3.3

3.6

4.0

4.3

4.6

5.0

5.3

5.7

6.0

6.4

6.7

7.1

20

1.2

1.3

Table 3-2.

1.6

1.8

2.0

2.3

2.6

2.9

3.2

3.5

3.8

4.2

4.5

4.8

5.2

5.5

5.8

6.1

6.5

Reasonable Potential

Multiplying Factors:

99

Confidence Level and 95

Probability Basis

6.8

Number of

Samples

Coefficient of Variation

0.1

0.2

0.3

0.4

0.5

0.6

0.7

0.8

0.9

1.0

1.1

1.2

1.3

1.4

1.5

1.6

1.7

1.8

1.9

2.0

1

1.4

1.9

2.6

3.6

4.7

6.2

8.0

10.1

12.6

15.5

18.7

22.3

26.4

30.8

35.6

40.7

46.2

52.1

58.4

64.9

2

1.3

1.6

2.0

2.5

3.1

3.8

4.6

5.4

6.4

7.4

8.5

9.7

10.9

12.2

13.6

15.0

16.4

17.9

19.5

21.1

3

1.2

1.5

1.8

2.1

2.5

3.0

3.5

4.0

4.6

5.2

5.8

6.5

7.2

7.9

8.6

9.3

10,0

10.8

11.5

12.3

4

1.2

1.4

1.7

1.9

2.2

2.6

2,9

3.3

3.7

4.2

4.6

5.0

5.5

6.0

6.4

6.9

7.4

7.8

8.3

8.8

5

1.2

1.4

1.6

1.8

2.1

2.3

2.6

2.9

3.2

3.6

3.9

4.2

4.5

4.9

5.2

5.6

5.9

6.2

6.6

6.9

6

1.1

1.3

1.5

1.7

1.9

2.1

2.4

2.6

2.9

3.1

3.4

3.7

3.9

4.2

4.5

4.7

5.0

5.2

5.5

5.7

7

1.1

1.3

1.4

1.6

1.8

2.0

2.2

2.4

2.6

2.8

3.1

3.3

3.5

3.7

3.9

4.1

4.3

4.5

4.7

4.9

8

1.1

1.3

1.4

1.6

1.7

1.9

2.1

2.3

2.4

2.6

2.8

3.0

3.2

3.3

3.5

3.7

3.9

4.0

4.2

4.3

9

1.1

1.2

1.4

1.5

1.7

1.8

-

2.0

2.1

2.3

2.4

2.6

2.8

2.9

3.1

3.2

3.4

3.5

3.6

3.8

3.9

10

1.1

1.2

1.3

1.5

1.6

1.7

1.9

2.0

2.2

2.3

2.4

2.6

2.7

2.8

3.0

3.1

3.2

3.3

3.4

3.6

11

1.1

1.2

1.3

1.4

1.6

1.7

1.8

1.9

2.1

2.2

2.3

2.4

2.5

2.7

2,8

2.9

3.0

3.1

3.2

3.3

12

1.1

1.2

1.3

1.4

1.5

1.6

1.7

1.9

2.0

2.1

2.2

2.3

2.4

2.5

2.6

2.7

2.8

2.9

3.0

3.0

13

1.1

1.2

1.3

1.4

1.5

1.6

1.7

1.8

1.9

2.0

2.1

2,2

2.3

2.4

2.5

2.5

2.6

2.7

2.8

2.9

14

1.1

1.2

1.3

1.4

1.4

1.5

1.6

1.7

1.8

1.9

2,0

2.1

2.2

2.3

2.3

2.4

2.5

2.6

2.6

2.7

15

1.1

1.2

1.2

1.3

1.4

1.5

1.6

1,7

1.8

1.8

1.9

2.0

2.1

2.2

2.2

2.3

2.4

2.4-

2.5

2:5

16

1.1

1.1

1.2

1.3

1.4

1.5

1.6

1.6

1.7

1.8

1.9

1.9

-

2.0

2.1

2.1

2.2

2.3

2.3

2.4

2.4

17

1.1

1.1

1.2

1.3

1.4

1.4

1.5

1.6

1.7

1.7

1.8

1.9

1.9

2.0

2.0

2.1

2.2

2.2

2.3

2.3

18

1.1

1.1

1.2

1.3

1.3

1,4

1.5

1.6

1.6

1.7

1.7

1,8

1.9

1.9

2.0

2.0

2.1

2.1

2.2

2.2

19

1.1

1.1

1.2

1.3

1.3

1.4

1.5

1.5

1.6

1.6

1.7

1.8

1.8

1.9

1.9

2.0

2.0

2.0

2.1

2.1

20

1.1

1.1

1.2

1.2

1.3

1.4

1.4

1.5

1.5

1.6

1.7

1.7

1.8

1.8

1.8

1.9

1.9

2.0

2.0

2.0

-

:1

57

---

-

BEFORE THE

ILLINOIS POLLUTION CONTROL

BOARI~~~P

•

FEBC42OO~

DES PLA1NES RIVER WATERSHED ALLIANCE,

STATE OF

Il LINOIS

LIVABLE

COMMUNITIES ALLIANCE,

-

)

Pollution Control

L3oard

-

PRAIRIE RIVERS NETWORK, and SIERRA CLUB,

)

)

Petitioners,

)

)

V.

)

PCB 04-88

-

)

(NPDES Permit Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY and VILLAGE OF NEW LENOX

.

)

)

-

Respondents.

)

STATEMENT OF RELEVANT FACTS FROM THE AGENCY

RECORD

Petitioners

state

that

the

following

facts

are

established

by

the

Agency

Record.

All

citations are to that record.

Hickory Creek

I.

Hickory

Creek, a

tributary of the Des Plaines River which

flows in

Will

County,

was

once known

for its

exceptionally high

water quality

and

biological

integrity.

Phillip

Smith,

a

scientist of the Illinois

Natural

History Survey wrote

in

1971

that “Prairie

and

Jackson Creeks

have

good

species diversity,

but

Hickory

Creek

is

the

outstanding

stream

in

the

Des

Plaines

River

system

and

contains

populations

of such

unusual

species

as

the

northern

hogsucker,

rosyface shiner, and slendermadtom.”

(HR1

15)

2.

New Lenox Sewage Treatment Plant #1

was built in

1973. (HR 81)

3.

Dr.

David

Bardack,

formerly of the University

of Illinois

at

Chicago

Circle,

wrote

in

1982

that

“Studies of the Hickory

Creek ecosystem are widely recognized beyond

the Chicago

area.

In fact,

Hickory

Creek has attained

the

status of a

classic biological

study

area....

As

a

relatively unpolluted and unaltered stream with a diversified fauna....” (HR 108)

-

1

---

4.

New Lenox Sewage Treatment,Plant #1 has been expanded since

1991.

(HR

5)

5.

Hickory

Creek

is

found

on

the

draft

2002

Illinois

303(d) list

of impaired

waters.

“The

causes

of

impairment

given

...

at

that

time

were

nutrients,

phosphorus,

nitrogen,

salinity/TDS/Chlorides,

TDS

(chlorides),

flow

alterations,

and

suspended

solids.

The

sources

-

associated

with

the impairment

are

municipal

point

sources....”

(HR

5)

In the

Illinois

Water

Quality Report 2004,

Hickory Creek is listed as impaired with the potential

causes ofimpairment

being

silver,

nitrogen,

pH,

sedimentation/siltation,

total

dissolved

solids,

chlorides,

flow

alterations,

physical-habitat

alterations,

total

fecal

coliform

bacteria,

total

suspended

solids,

-

excess algal growth, and total phosphorus.

6.

A number of witnesses gave reports of algal blooms

in Hickory

Creek including nearby

resident Kim Kowalski. (HR 76)

7.

Jim Bland, Director ofIntegrated

Lakes Management, testified that “I

should

comment

that as recently as August ofthis

year I saw something unique in-stream,

something

I

have not

seen before.

The entirety of the

stream

is

covered

from Pilcher Park

almost

all

the way up to

Cedar Street with Hydrodictyon and algae on the surface ofit.

So here you have a running stream

covered almost

completely and

a running stream that’s really a very, very viable

and important

resource, pretty sadly, degraded by the sorts ofnutrient discharge that we are seeing.” (HR 80)

8.

Community resident Brad

Salamy

testified at the hearing

that,

“Last summer,

and

this

was alluded to earlier, the creek was greener than I had ever seen it, a little patch down the center

was liquid, the rest ofit was completely green like you could walk on it.” (HR 82-3)

Levels of Phosphorus in Hickory Creek

.

9.

,

Phosphorous concentrations are high in the creek. In addition to the IEPA impaired water

2

‘

-

---

-

data discussed above-

(~J5),

the U.S.

Geological Survey database

shows that for the period of ‘92

to

‘97 total

phosphorus

exceeded

Illinois’

EPA

trigger value

for more than

20

percent

of the.

samples.

Illinois

EPA’s

trigger

is

approximately

eight

times-

higher

than

the

USEPA’s

recommended

criterion.

Furthermore,

data

collected

in

August

2002

by

the

Village

of New

Lenox

indicate

the total

phosphorus

instream

on

that

particular day

when

they sampled

was

between

1.49

and

1.63

milligrams per liter.

These concentrations are approximately 20 times

the

USEPA-recommended criterion and

more than twice Illinois EPA’s trigger. (Wentzel Testimony

HR 67)

10.

Sampling by the applicant’s contractor, Earth Tech, conducted in

August of 2002

found

2.76

milligrams

per

liter

of

total

phosphorus

in

the

effluent,

almost

twice

the

upstream

concentration on that day and six times the average over time for that particular stream. (Wentzel

Testimony HR 68)

-

in Hickory Creek

11.

Comments

by Professors David Jenkins and Michael

Lemke of the Biology Department,

University of Illinois at Springfield stated:

-

—

Based

on the New Lenox August data, the current plant releases an

average of 64.7

kg of nitrate+nitrite

per

day and

16.1

kg of total

P

total

phosphorus

into Hickory

Creek.

—

Based on long-term average August flow data from USGS and USGS Sclimuhl Road

nutrient analyses, current Hickory

Creek nutrient loads upstream from

the WWTP#1

are

151

kg nitrate+nitrite,

and 22.7

kg total P.

—

Therefore,

the

plant

is

responsible

for

30

of

downstream nitrate+nitrite

load

in

Hickory Creek, and 41

ofthe Hickory Creek total P load.

3

---

—

As

currently

planned

(and

assuming

nutrient

levels-

in

plant

discharge

remain

the

same), the new plant

discharge will

release

105.7

kg of nitrate+nitrite

per day

and

26.3

kg oftotal P per day into Hickory Creek. Assuming that Hickory Creek flow will

not

change

for reasons

other than the

planned

extra plant

discharge, the new plant

-

-

discharge will release 41

ofthe stream nitrate+nitrite load,

and

53.7

ofthe stream

P

load on an average basis.

-

-

—

More importantly, the same-sized receiving stream will be bearing 170

the levels of

nitrate-i-nitrite upstream ofthe

plant,

and 216

of the total

P levels upstream of the

plant.

These levels of nutrient

loading

will have

substantial

effects

on

downstream

water quality,

not

only

in

Hickory

Creek, but

also

the Des

Plaines

River and

the

Illinois

River. The Hickory

Creek channel

will

also be receiving

substantially more

flow,

which

will

have

effects

on

stream

habitat

and

biota

that

are

separate

from

nutrient

effects.

Summary

of Hickory

Creek

Water

Quality

Information,

David

Jenkins

and

Michael

Lemke (HR 304-305)

12.

Published

treatises

placed

in

the

record

show

that

elevated

nutrient

levels

cause

impairment ofstreams.

-

“Eutrophication

is

a

fundamental

concern

in

the

management

of

all

water

bodies.... There is

now

also

considerable

intereSt

in the enrichment of streams

and rivers (see discussion by Dodds and Welch 2000). For example in

1992,

the

United

States

Department

of

Agriculture

National

Water

Quality

Inventory

reported

that

enrichment

and

sedimentation

were

the most significant causes

of

water

quality

degradation

in

44

of

1,000,000

km

of

streams

and

rivers

surveyed

in

-

the

US

(http://www.usda.gov/stream

restoration).

Management

-

problems

caused

by

nutrient

enrichment,

and

associated

benthic

algal

-

proliferations,

include

aesthetic

degradation...,

loss

of

pollution-sensitive

invertebrate taxa through smothering ofsubstrata by algae

...,

and degradation of

water quality (particularly dissolved

oxygen and pH) resulting in fish kills.

.

.

4

---

Biggs, B.J.F.

2000. Eutrophication of streams and rivers: dissolved nutrient-chlorophyll

relationships forbenthic algae..

North Am. Benthol. Soc.

19:17-31.

(HR

187)

“Reasons for nutrient criteria include:

1) adverse effects on humans and domestic

animals, 2) aesthetic impairment, 3) interference with human use, 4) negative

impacts on aquatic life, and

5)

excessive nutrient input into downstream

systems.”

Dodds,

W. K.

and E.B. Welch.

2000. Establishing nutrient criteria in

streams.

J. North

Am. Benthol.

Soc.

19:186-196. (HR

177)

-

“High

algal growth can affect fish distribution by altering the physical (algal

mass accumulation) and chemical (dissolved oxygen, pH) characteristics ofthe

river system.”

Sabater, S., J. Armengol, E. Comas, F.

Sabater, I Urrizalqui, and I. Urrutia. 2000. Algal

biomass in a disturbed Atlantic river: water quality relationships and environmental implications.

Science ofthe Total Environment. 263:185-195.

(HR 210)

There is

a positive correlation between nutrients in streams and

algal activity.

“The present analysis suggests that managing nutrient supply could not only

-

-

reduce the magnitude ofmaximum biomass, but also reduce.the frequency and

duration ofbenthic algal proliferations in

streams.”

Biggs, B.J.F.

2000.

(HR 187)

“...

our study indicates that there is a generally positive relationship between Chl

chlorophyll

and TP total

phosphorus

in temperate streams

...“

VanNieuwenhuyse, E.E. and J.R. Jones.

1996.

Phosphorus-chlorophyll relationship in

temperate streams and its

variation with stream catchment area.

Can.

J.

Fish. Aquat.

Sci. 53:99-

105.

(HR206)

“If streams are not turbid, preventing maximum benthic chlorophyll levels from

exceeding 200 mg/m2 is reasonable because streams with higher levels are not

aesthetically pleasing, and their recreational uses maybe compromised. For

benthic chlorophyll to remain below 200 mg/m2

at the very least, TN should

remain below

3 mg/L and TP below

0.4 mg/L.”

Dodds, W. K. and

E.B. Welch. 2000. (HR

184)

-

“Photosynthesis and respiration

are the two important biological processes that

alter the concentration ofoxygen and carbon dioxide. In highly productive

waters, such as slow moving rivers with abundant macrophytes,

oxygen is

5

---

elevated and

carbon dioxide is

reduced during the daytime, while the reverse

occurs at night.”

Allan, J. D.,

1995.

Stream Ecology: stru~ture

andfunction ofrunning waters.

Chapman

& Hall,

NewYork (HR 163)

“Diel (24 h) changes in oxygen concentration provide a means ofestimating

photosynthesis and respiration ofthe total ecosystem...”

(Allan, J. D. HR 163)

“Carbon dioxide likewise tends to deviate from atmospheric equilibrium in highly

productive lowland streams where luxuriant growths ofmacrophytes and

microbenthic algae can result in diel shifts in dissolved C02.... Because ofthe

interdependence ofCO2 concentration and pH

...,

mid-day pH can increase by as

much as

0.5

units.”

(Allan, J. D. HR 164)

-

“Dissolved 02 deficit and high pH are perhaps the most severe algal-related

problems

affecting the aquatic life-support characteristics ofa river or stream.

Deficits ofDO can occur when respiration oforganic C produced by

photosynthetic processes in the stream exceeds the ability ofreaeration to

supply

DO.”

-

(Dodds, W. K. and

E.B. Welch. HR

180)

“The contribution ofalgal biomass to

the diel dissolved oxygen (DO) variability

in rivers is common in systems receiving high nutrient inputs....”

Sabater, S., J. Armengol, E.

Comas, F. Sabater, I Urrizalqui, and I. Urrutia. 2000.

(HR 216)

13.

It

is

likely

that

nutrient

discharges

from

New

Lenox

WWTP

#1

are already

adversely

impacting Hickory Creek and that reductions of nutrient discharges are needed to prevent further

impact. (Statement ofProfessors Jenkins and Lemke HR

305)

14.

The

IEPA at the hearing

on

the

draft permit

acknowledged that it was “very possible”

that

supersaturated oxygen

levels

found during the daytime hours in Hickory Creek are due to

algae saturation photosynthesis. (HR 67)

15.

Hickory Creek

also violated pH standards by exceeding a pH of 9,

likely as the result of

6

---

algal activity.

(HR 126)

16.

IEPA did not analyze the effects ofthe existing New Lenox discharge with

a -recent valid

study.

The Antidegradation Assessment Memorandum from Scott Twait to Abel Haile, Nov.

26,

2002 states that “The most recent facility related stream survey conducted by the Agency was on

June 10,

1991.

The facility related stream survey is not representative of the stream

conditions

that exist at this time,

since the facility has been expanded since the

1991

facility related stream

survey was conducted.”

(HR

5)

-

-

17.

The

applicant’

contractor,

Earth Tech,

performed a biological

study

for the

Village of

New Lenox (HR 513-519) at

IEPA’s

request (HR

660.5).

There

is

extensive

discussion

in

the

Hearing Record among JEPA

staff regarding deficiencies in the Earth Tech study.

(HR 537,

HR

556-558,

HR 561, HR 661-698).

18.

A

Sept.

24,

2002

internal

IEPA

email

from

Howard

Essig

to

Roy

Smoger states,

“The

macroinvertebrate memo

prepared by Earth Tech

is

one of the poorest

studies

I have seen in

a

while.” It is

further stated that “Statements made by Earth Tech on page

3 of their report are all

without merit.

They do

not back up

any oftheir statements with data. For example they attribute

differences

in taxa between

stations to

variations

in

stream flow,

dissolved

oxygen

levels

and

habitat types- but they provided no

stream flow or dissolved oxygen data.”

It is still further stated

in

this

email

that

“Earth

Tech also

indicated that

the

current baseflow

of Hickory

Creek

is

adequate to

dilute the volume discharged from

the WWTP. They did not provide any flow data

on Hickory Creek or the New Lenox WWTP to back up this claim.” (HR 666-7)

19.

-

Another internal

IEPA memo,

the

Oct.

9,

2002

Memorandum from Roy Smoger to

Bob

Mosher,

summarizes

the reviews by

Smoger,

Howard Essig

and

-

Mark Joseph ofthe Earth Tech

7

---

study

and recommends that the study be

conducted again. This memo states, “We find

it difficult

to judge the validity ofthe analyses

and

conclusions because the

study used different

collection

methods, different taxon-tolerance values, and

different criteria for interpreting MBI scores than

those

typically

used by

Illinois

EPA.

In

addition,

the report does

not

contain

enough

specific

information

on

habitat,

water

chemistry,

and

flow.”

The

memo

concludes,

“Therefore

we

recommend that

Earth Tech

conduct the

survey again

following the guidelines

listed

below.”

(HR

559-560).

20.

A

Nov.

25,

2002

email indicates confusion

on whether IEPA field staff would

redo the

study.

(HR

700) A Nov.

26,

2002

email

from

IEPA’s

Gregg

Good shows

IEPA’s

decision

to

ignore the Earth Tech study,

stating,

“Therefore, forget using the contractor’s

bug study.”

On the

same

day,

IEPA

referenced

the

study

in

the

Antidegradation

Assessment.

Antidegradation

Assessment Memorandum from- Scott Twait to Abel

Haile, Nov.

26, 2002

(HR

5):

“New Lenox

sponsored

a

macroinvertebrate

survey

of Hickory

Creek

at

this

location

in

August

2002.

Pollution

intolerant

organisms

were

found

both

upstream

and

downstream

of

the

existing

discharge.” (HR 562)

-•

-

21.

The record does not

contain any study ofthe potential effect ofincreased discharges from

the plant -on- Hickory Creek or the Des Plaines River. In an

email of September 9,

2002, IEPA’s

Robert Mosher wrote,

“There

is no

good

way to predict

what

impact the expansion

may have

(antidegradation)....” (HR

660.5)

-

-

Copper

22.

In

the

reasonable

potential

analysis

for

copper

done

for

this

permit

modification

(Memorandum ofJuly

16, 2002 from Scott Twait to

Abel Haile), the concentration ofthe highest

sample

was

20.5

~.tg/lwhile

the

chronic

standard for

copper

at

the

hardness

level

found

in

8

---

Hickory

Creek

is

20.6

~tg/l. IEPA’s

calculation of the

reasonable

potential

for a

violation

of

water

quality

standards

for

copper

using

the

U.S.

EPA

method

revealed

that

there

was

a

reasonable

potential

for the

level

of copper

to

be

more

than

double the

acute

water

quality

standard for copper and to

exceed the chronic standard by

a factor ofover 3.7. (HR 508)

The Agency Proceedings

23.

On January 5,

2003,

IEPA gave notice that

it had

made a tentative

decision

to

renew

a

NPDES

permit

to

New

Lenox

to

discharge

into

Hickory

Creek.

The

draft

renewed

permit

allowed the New Lenox plant to increase its

design average flow from

1.54 million gallons per

day to 2.516 million gallons per day. (HR

1-15)

24.

After

reviewing

a ‘copy

of the

draft permit,

Petitioners

commented

through

testimony

given at a public hearing held

on the draft permit on