RECE
WED
BEFORE THE ILLINOIS POLLUTION CONTROL
BOA1~LERK’S
OFFICE
FEB
28
2005
VILLAGE OF LAKE BARRINGTON, CUBA
)
STATE OF
IWNOIS
TOWNSHIP,
PRAIRIE
RIVERS NETWORK,
)
PoUut~Ofl
Control Board
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 DRATNAGE DISTRICT OF
LAKE
)
COUNTY, ILLINOIS,
)
)
Petitioner,
)
)
v.
)
PCB
05-58
)
(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 IIvIPROVEMENT
)
ASSOCIATION, MAT SCHLTJETER, MYLITH PARK
)
LOT OWNERS ASSOCIATION, DONALD KREBS,
)
DON BERKSHIRE, JUDY BRUMME, TWIN POND
)
FARMS HOMEOWNERS ASSOCIATION, JULIA
)
TUDOR and CHRISTINE DEVINEY,
)
)
Petitioners,
)
)
v.
)
PCBO5-59
)
(3td
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 S1~RVICELIST
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe Pollution
Control
Board
an
original
and
four
(4)
copies
the
POST-HEARING
BRIEF
of the
Illinois
Environmental Protection Agency, a copy ofwhich is herewith served upon you.
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
By:___________________________
SanjayK.
Sofat, Assistant Counsel
Division ofLegal Counsel
Dated:
February
25,
2004
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
(217)
782-5544
THIS FILING PRINTED
ON RECYCLED PAPER
2
BEFORE
THE ILLINOIS POLLUTION CONTROL BOAR~ECEIVED
EF~K
S OFFICE
FE9282065
VILLAGE OF LAKE BARRINGTON, CUBA
)
TOWNSHIP,
PRAIRIE
RIVERS
NETWORK,
)
STATE OF ILLINOIS
SIERRA CLUB, BETH WENTZEL and
)
°
uttpn
Control Board
CYNTHIA SKRUIKRUD,
)
)
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
)
(3rd
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,
)
GABRIELLE MEYER, LISA O’DELL, JOAN LESLIE,
)
MICHAEL DAVEY, NANCY DOBNER, MIKE
POLITO,
WILLIAMS PARK IMPROVEMENT
)
ASSOCIATION, MAT SCHLUBTER, MYLITH PARK
)
LOT OWNERS ASSOCIATION, DONALD KREBS,
)
DON BERKSHIRE, JUDY BRUMME, TWIN POND
)
FARMS HOMEOWNERS ASSOCIATION, JULIA
)
TUDOR and CHRISTINE DEVINBY,
)
)
Petitioners,
)
)
v.
)
PCB
05-59
)
(3rd
Party NPDES Permit
)
Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
(Consolidated)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
POST-HEARING BRIEF IN SUPPORT
OF AGENCY’S RESPONSE TO PETITIONERS’.
THIRD-PARTY PERMIT APPEAL
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 hereby.submits this brief in support ofthe Agency’s response to Petitioners’
third party permit appeal.
I.
BACKGROUND
The Village ofWauconda (“Village”) proposes to expand its existing wastewater treatment
plant’s design average flow from 1.4 million gallons per day (“MGD”) to
1.9 MGD, and design
maximum flow from 4.0 MGD to
5.963 MGD, during Phase
1
ofthe expansion.
DuringPhase 2 of
the expansion, the Village plans to expand the plant’s design average
flowto
2.4 MGD and design
maximum flow to
7.93 MGD.
The treatment plant
is located at 302
Slocum Lake Road and
4
discharges into Fiddle Creek, at North Anderson Road.
The Fiddle Creek is classified as a general
use stream, which ultimately discharges into the Fox River.
(Agency Record hereinafter “Record”
Book 4, p.2213)
The Wauconda wastewater treatment plant originally discharged to Bangs Lake Drain Creek,
also known as Slocum Creek.
The Bangs Creek or Slocum Creek flows into Slocum Lake, exits
through the Slocum Lake Drain and finally merges into the Fox River.
In the mid
1 970s, it became
apparent to the Agency that the discharge from the Village’s wastewater treatment plant was causing
high levels ofphosphorus in Slocum Lake.
In 1977, the Illinois Pollution Control Board (“Board”)
granted the Village ofWauconda a variance from the phosphorus effluent standard at 35 Ill.
Adm.
Code 304.123 ofthe Board regulations in order to give the Village some time to resolve the
L
problem.
As the high levels ofphosphorus persisted in the Slocum Lake, theBoard terminated the
Village’s variance in
1983.
The Village then movedthe dischargepoint to Fiddle Creek.
At times,
the receiving stream has been referred to
as “an uimamed tributary to
the Fox River” or “Wauconda
Creek” in the Agency documents, however, the discharge point has been the same since 1983.
(Record, Book 4, p. 2213)
The receiving stream, Fiddle Creek, is part of a complex combination ofwetlands and man-
made drainage ditches.
The Fiddle Creek flows through a man-made silt trap and thenjoins into the
—
wetland complex.
The wetland complex has been channelized and the drainage ditch flows West
for approximately 625
feet, South for approximately 1,500 feet, West for approximately 5,250 feet,
South for approximately 1,250 feet, and West for approximately 1,125
feet where itjoins Slocum
Lake Drain before entering the Fox Riverjust south ofFox RiverValley Gardens.
(Record, Book
1,
p. 239).
The Lake County Forest Preserve District (“LCGPD”) owns a portion ofthe Fiddle Creek,
approximately 2,600 linear feet, which constitutes the northernboarder ofthe 517-acre Fox River
Preserve.
The land use surrounding the Fiddle Creek over time has changed from farmland to
5
highly populated residential area.
The Fiddle Creek passes through the Saddlewood, Lakewood, and
Twin Farm
subdivisions before discharging into the Fox River which is about 2.4 miles from the
Village’s outfall.
According to
the drainage district, the ditch was dug in about 1905 to drain the
wetlands for agricultural development.
Restoration work was done on the ditch in
1960 and 1997.
The restoration work is done on the ditch if the drainage district has sufficient funds to perform the
necessary activities.
(Record, Book 4, p. 2213)
II.
CHRONOLOGY OF
EVENTS
On March 24, 2003, the Agency received an application for modification ofNational
Pollutant Discharge Elimination System (“NPDES”)
Permit No. IL 0020109.
(Record, Book
3, pp.
1608-1669).
On April 9-10, 2003, the Agency conducted a general review ofthe Village’s NPDES
permit modification application.
(Record, Book 3, pp.
1673-1676).
Beginning July 25, 2003, the Agency provided public notice ofthe Village’s draft NPDES
permit forpublic comments thrice (July 25, August
1
and
8) in the
Wauconda Leader.
(Record,
Book 4, p. 2212).
The Agency had to change the originally scheduledpublic hearing on August 26
to September 9, 2003, as the required public notice was not published in the local newspaper.
On
July 23, 2003, the Agency mailed the public hearing notice to local
legislatures, county and
municipal officials, environmental organizations, and interested citizens.
The public hearing notice
was mailed.
Prairie Rivers
Network helped to widely circulate the public hearingnOtice by sending
it to their listserv.
The local citizens near the Village’s treatment plant also helped to widely
circulate the public hearing notice through distribution offliers, posting ofsigns, and on their
website at www.savefiddlecreek.com.
From August 1, 2003, through September 7, 2003, the
Agency further notified the general public by publishing the public hearing notice in the
Wauconda
Leader,
Waukegan News Sun, DailyHerald, and Barrington Courier Review.
In order to educate
6
the general public regarding the Village’s NPDES draft permit,
the Agency mailed an issue
information fact sheet on September
5,
2003, to all persons for whom the Agency had a mailing
address.
(Record, Book
4, p.
1121)
On September 9, 2003, the Agency conducted a public hearing at the Wauconda High
School.
Due to the large number ofparticipants, the Agency had to
move the hearing location from
the Wauconda Township Hall, as notified in the public hearing notice, to the Wauconda High
School.
An Agency representative remained at the Township Hall until
8 p.m. to direct interested
citizens to
the new location.
Approximatelytwo hundred participants including persons
representing municipalities, news media, local citizens, consultants, county officials,
and
environmental interests attended the public hearing.
(Record, Book
4, p. 2212).
The Agency posted a transcript ofthe public hearing on its website on October 8, 2003.
Due
to the great interest expressed by the participants, the Agency extended the public hearing comment
period
from October 9, 2003, to
October 31, 2003.
The Agency published the extension ofthe
public hearing comment period on its website and in the
Waukegan News Sun.
(Record, Book
4, p.
2212)
.~..
.
On August 23, 2004,
the Agency issued the Village’s NPDES permit IL 0020109,
which
expires on November 30, 2005.
(Record, Book 4, p. 2251)
On September 17, 2004, Village ofLake Barrington, Cuba Township, Prairie Rivers
Network, Sierra Club, Beth Wentzel, and Cynthia Skrukrud filed a third partypermit appeal with the
Board pursuant to 415
ILCS 5/40(e)(1) and 35 Ill. Adm. Code
105.204(b).
On September 27, 2004,
Slocum Lake Drainage District ofLake County (“Slocum District” or “SD”), Illinois filed a.Section
40(e) petition with the Board.
Also, on September.27, 2004, Al Phillips, VernMeyer,
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
7
Tudor, and Christine Deviney(“Resident Group” or “RG”)
filed a Section 40(e) petition with the
Board.
On January 11, 2005, Village ofLake Barrington, Cuba Township, Prairie Rivers Network,
Sierra Club, Beth Wentzel, and Cynthia Skrukrud (referred to as “Settling PetitiOners” in the
settlement document) and the Village ofWauconda
filed a stipulation with the Board.
The Settling
Petitioners, under Section IV ofthe stipulation, stated that, “In consideration ofWauconda’ s
agreement to
commitments contained in the IGA, upon the Pollution Control,Board’s acceptance•
and approval ofthe terms ofthis Stipulation
...
the Settling Petitioners shall dismiss theirpetition in..
case number PCBO5-55 with prejudice.”
Stipulation at 8.
On February 3, 2005, the Board declined
to accept the stipulation.
As the Settling Petitioners and the Village of Wauconda have expressed
their desire to
be bound by the terms ofthe stipulation, this brief doesnot address the issues raised
by the Settling Petitioners.
The Slocum District (“SD”) and the Resident Group (“RG”) are
collectively referred to as “Petitioners” in this post-hearing brief.
III.
APPLICABLE STAUTORITY AND
REGULAOTRY
PROVISIONS
Statutory Authority
Petitioners bring the permit appeal pursuant to Section 40(e) ofthe Act.
This section allows
the third parties to appeal the Agency’s decision ofan NPDES permit to the Board.
Section 40(e) of
the Act provides:
1.
Ifthe Agency grants or denies a permit under subsection (b) of Section 39 ofthis Act,
a third party, other than the permit applicant or Agency, may petition the Board
within 35 days from the date ofissuance ofthe Agency’s decision, for a hearing to
contest the decision ofthe Agency.
2.
A petitionershall include the following within a petition submitted under subdivision
(1) of this subsection:
8
a.
A demonstration that the petitioner raised the issues contained within the petition
during the public notice period or during thepublic hearing on the NPDES permit
application, if a public hearing was held; and
b.
A demonstration that the petitioner is so situated ~as
to be affected by the
permitted facility.
3.
Ifthe Board determines that the petition is not duplicitous or frivolous and contains a
satisfactory demonstration under subdivision (2) ofthis subsection, the BOard shall
hearthe petition (i)
in accordance with the terms ofsubsection (a) ofthis Section and
its procedural rules
governingpermit denial appeals and-(ii) exclusively on the basis
ofthe record before the Agency.
The burden ofproof shall be on the petitioner.
The
Agency and permit applicant shall be named co-respondents.
415 ILCS
5/40(e)
(2004)
(emphasis added)
Section 3 9(a) ofthe Act sets forth the applicant’s and the Agency’s obligations prior to
issuing an NPDES permit.
Section 39 ofthe Act provides:
L
(a)
Whenthe Board has by regulation require a permit forthe construction,
installation, or operation ofany type of facility, equipment, vehicle, vessel, or
aircraft, the applicant shall apply to the Agency for such permit and is shall be the
duty ofthe Agency to
issue such a permit upon proofby the applicant that the
facility, equipment, vehicle, vessel, or aircraft will not cause a violation ofthe Act
or ofregulations hereunder.
The Agency shall adopt suchprocedures as are
necessary to carry out its
duties under this
Section.
In making its determinations
on permit applications under this
section the Agency may consider prior
adjudications ofnoncompliance with this Act by the applicant that involved a
release ofa contaminant into the environment.
In granting permits, the Agency
mayimpose reasonable conditions specifically related to the applicant’s past
compliance history with this Act as necessaryto
correct, direct, orprevent
noncompliance.
The Agency may impose such otherconditions as may be
necessary to accomplish the purposes ofthis Act, and as are not inconsistent with
the regulations promulgated by the Board hereunder....
415 ILCS 5/39(a) (2004)
(Emphasis added)
Section 44
Criminal acts; penalties
(a)
Except
as otherwise provided in this Section, it shall be a Class A misdemeanor to
violate this Act or regulations thereunder, or any permit or term or condition thereof,
orknowingly to submit any false information under this Act or regulations adopted
thereunder, or under any permit or term or condition thereof.
A court may, in
addition to any other penalty herein imposed, order a person convicted ofany
violation ofthis Act to
perform community service for not less than
100 hours
and
not more than 300 hours if community service is
available in the jurisdiction.
It shall
be the duty ofthe all State and local law-enforcement officers to
enforce such Act
9
and regulations, and
all such officers shall have the authority to issue citations for
such violations.
415
ILCS 5/44(a) (2004)
(emphasis added)
(h)
Violations;
False Statements.
(1)
Any person who knowingly makes a false material statement in an
application
for a permit or license required by this Act to treat,
transport, store, or dispose of
hazardous waste
commits the offense ofperjury and shall be subject to the penalties
set forth in Section 32-2 ofthe Criminal Code of1961.
415 ILCS
5/44(h)(1)(2004)
(emphasis added)
Applicable Board Regulations
The Board regulations at 35 Ill. Adm. Code 302.105
set forth in detail the requirements that
apply to the Agency’s antidegradation analysis.
Section 302.105 provides:
The purpose ofthis Section
is to protect
existing uses of all waters ofthe State ofIllinois, maintain
the quality ofwaters with quality that
is better thanwater quality standards,
and prevent unnecessary
deterioration ofwaters ofthe State.
a)
Existing Uses
Uses actually attained in a surface water body orwater body segment on or after November
28,
1975, whether ornot theyare included in the water quality standards, must be maintained
and protected.
Examples ofdegradation ofexisting uses ofthe waters ofthe State include:
1)
.
an
action that would result in the deterioration ofthe existing aquatic
cothmunity, such as a shift from a communityofpredominantlypollutant-
sensitive species to pollutant-tolerant species or a loss ofspecies diversity;
2)
an action that would result in a loss ofa resident or indigenous species whose~
presence is necessary to sustain commercial or recreational activities; or
3)
an action that would preclude continued use of a surface water body or water
body segment for a public water supply or for recreational or commercial fishing,
swimming, paddling or boating.
c)
High Quality Waters
1)
Except as otherwise provided in subsection (d) ofthis Section, waters ofthe
State whose existing quality is better than any ofthe established standards of
this Part must be maintained in their present high quality, unless the lowering
ofwaterquality is necessary to
accommodate important economic or social
development.
10
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
not be exceeded as a result ofthe proposed activity;
ii)
All existing uses will be fullyprotected;
iii)
All technically and economically reasonable measures
to avoid
or minimize the extent ofthe proposed increase in pollutant
loading have been incorporated into the proposed activity;
and
iv)
The activity that results in
an increased pollutant loading will
-
benefit the community at large.
C)
Utilize the following information sources, when available:
-
i)
Information, data or reports available to the Agency from its
own sources;
ii)
Information, dataor reports supplied by the applicant;
iii)
Agency experience with factually similar pennitting scenarios;
-
and
iv)
Any other valid information available to the Agency.
~
f)
Antidegradation Assessments
In conducting an antidegradation assessment pursuant to this Section, the Agency must
comply with the following procedures.
.
-
1)
Apermit application for any proposed increase in pollutant loading that
necessitates the issuance ofa new, renewed, ormodified NPDES permit or a
CWA Section 401
certification must include, to the extent necessary forthe
Agency to determine that the permit application meets the
requirements of
this Section, the following information:
11
A)
Identification and characterization ofthe water body affected by-the
proposed load increase orproposed activity and the existing water
body’s uses.
Characterizationmust address physical, biological and
chemical
conditions ofthe water body.
-
B)
Identification
and quantification ofthe proposed load increases forthe
applicable parameters and ofthe potential impacts ofthe proposed
activity on the affected waters.
-
C)
The purpose and anticipated benefits of theproposed activity. Such
benefits may include:
i)
Providing a centralized wastewater collection and treatment
system for a previously unsewered community;
ii)
Expansion to provide service for anticipated residential or
industrial growth consistent with a community’s long range
urban planning;
iii)
Addition ofa new product line or production increase or
modification at an
industrial facility; or
iv)
An increase orthe retention ofcurrent employment levels at a
facility.
D)
Assessments ofalternatives to proposed increases in pollutant loading
or activities subject to Agency certificationpursuant to Section
401 of
the CWA that result in less of a load increase, no load increase or
minimal environmental degradation.
Such alternatives may include:
i)
-
Additional treatment levels, including no discharge
alternatives;
ii)
Discharge ofwaste to alternate locations, including publicly-
owned treatment works and streams with greater assimilative
capacity; or
-
iii)
Manufacturing practices that incorporate pollution prevention
techniques.
E)
Any additional information the Agency may request.
F)
Proof that a copyofthe application has been provided to the Illinois
Department ofNatural Resources.
-
12
-
-
IV.
ARGUMENTS
-
A.
Petitioner Failed To Meet The Requisite Burden OfProof
Petitioners brought this third party NPDES permit appeal under Section 40(e) ofthe Illinois
Environmental Protection Act (“Act”).
415 ILCS
5/40(e)(1) (2004).
This Section allows a third
partychallenge to the Agency’s decision on an NPDES permit within 35 days of such decision.
Section 40(e)(3) provides that the burden ofproof shall be on the petitioner.
415
ILCS 5/40(e)(3).
Petitioners argue that Section 39(a) ofthe Act requires that “the permits be issued
-
only upon proofby the applicant that the permit will not cause a violation ofthis Act or the
regulations hereunder.”
(RG ¶1147, 47,
64).
The Agency is aware ofthis requirementof the Act and
has consistently applied this burden ofproofrequirement on the permit applicants.
The Agency,
like any other administrative agency, is bound by.rule that “administrative
agencies are required to
applytheir rules as written, without making
ad hoc
exceptions in adjudicatiOns ofparticular cases.”
Panhandle Eastern Pipe Line v. Illinois EPA,
314 Ill. App. 3d 296, 734 N.E. 2d
18, 24
(4th
Dist.,
2000).
In this
case, upon receiving information from the applicant, and the general public through
the public hearing process, including Petitioners in this case, the Agency determined that the
-
applicant has met the Section 39(a) burden ofproofrequirement and therefore, an NPDES permit
must be issued to the Village.
In
Prairie Rivers Network v. Illinois EPA and Black Beauty Coal Company,
PCB 01-112
(August 9, 2001), the Board addressed the burden ofproofissue in its first third partyNPDES
permit appeal.
In addressing the issue, the Board concluded that, “Section 40(e)(3) ofthe Act
unequivocallyplaces the burden ofproofon the petitioner, regardless ofwhether the petitioner is
a
-
permit applicant or a third-party.”
Prairie Rivers Network
at 9.
The Board held that, “as
-
petitioner, Prairie Rivers Network bears the burden ofproving that the permit, as issued, would
violate the Act or Board regulations.”
Id.
13
Since Petitioners challenged the Agency’s final decision, pursuant to Section 40(e)(3) ofthe
Act and the Board’s ruling in
Prairie Rivers Network,
Petitioners must come forward with the
evidence to
show that the permit issued by the Agency would cause-a violation ofthe Act or the
regulations thereunder.
This requirement is no more burdensome than what an applicant is required
to meet.
—
Also, in
Prairie Rivers Network,
the Board addressed the issue of scope ofBoard’s review of
-
the Agency’s decision.
Section 40(e)(3) ofthe Act directs the Board to consider the petition
“exclusively on the basis ofthe record before the Agency.”
415
IILCS 5/40(e)(3) (2004).
The Board..
has long held that in permit appeals, its review is limited to the record that was before the Agency at
the time the permitting decision was made.
See
Community Landfill Company v. IEPA,
PCB 0 1-48,
PCB
01-49 (consolidated) (April
5,
2001);
Panhandle Eastern PipeLine Company v. IEPA,
PCB
98-102 (January 21,
1999).
In
Prairie Rivers Network,
the Board held that, “Section 40 ofthe Act
(415 ILCS
5/40 (2000)) does not differentiate between the scope ofthe review in permit appeals
brought by permit holders and those brought by third parties.”
Prairie Rivers Network
at 10.
Regarding the supplementing ofthe Agency record in NPDES permit appeals, the Board held that,
“the Board’s review is limited, pursuant to Section 40(e)(3) ofthe Act, to the recordthat was before
IEPA during its permit review process.” 415 ILCS
5/40(e)(3) (2004).
As long as there is substantial evidence in the record1, the Agency’s decisionto issue the
permit must be upheld.
Consequently, Petitioners must identify the lack ofsubstantial
evidence in
1
Though Petitioners have repeatedly
accused
the Agency ofnotfiling a complete record, the Agency has made
every
effort to file a complete record.
Initially, the Agency filed a record comprising of approximately 2262-pages.
On
December
10, 2004, the Agency amended
its record to include the Agency’s
information
hearing transcript.
Thiswas
not an intentionalact but rather an inadvertentmistake.
In order toprovide a complete transparency to the Agency’s
record compiling process, the Agency invited Petitioners to review additional documents in person.
On December
17,
2004 Petitioners came
to the Springfield Office to review these documents.
On January 31, 2005, the Agency filed
additional sevendocuments to
ensure
the completeness of the Agency record.
A full explanation of the Agency’s
reasoningto file these seven documents is provided inthe Agency’s response toPetitioners’
motion to compel the
Agency to produce documents.
Again, on February 8, 2005, the Agency filed
additional documents per the Hearing
Officers’ directive.
The Agency does notbelieve that the documents filed on February 8, 2005
are part
ofthe Agency
14
-
-
the record to prove that the issued permit would violate the Act andlor the applicable regulations.
The following cases illustrate the kind ofsubstantial evidenôe that must be missing in the record.
The court in
Ex ParteFowl RiverProtective Association, Inc.,
572, So.2d 446,
461
(Ala.
1990)
found the following to be the substantial evidence that was missing from the record in that case:
that Mobile Bay was determined to be too
complex an environment to-be simulated and the court
found numerous factors that could affect water quality but cannot be analyzed.
Also, in
Miners
Advocay Council, Inc. v. Department ofEnvironmental Conservation,
778 P.2d 1126,
1139-40
-
(Alaska 1989), the substantial evidence that was missing from the record was that the mine in
question may not have had the assumed level ofdilution present for its discharge due to numerous
-
mines discharging into the same waterbody.
In this case, Petitioners made no attempt to establish
lack ofsubstantial evidence in the
record through their petition or through testimony at the Board hearing.
In fact, Petitioners chose to
waive their right to present its case-in-chiefor cross-examine the Agency staff responsible for
making the permitting decision.
Also, at the Board hearing, Petitioners chose not to present any
expert witness or scientific evidence to establish how the alleged shortcomings in the permit would
cause violation of the Act or the applicable Board regulations.
Mere dislike ofthe Village’s permit conditiOns ormere allegations ofnoncompliance with
-
the law without any proof to support those allegations, or mere allegations that the permit could
have been written in a different fashion,
is not the kind ofburden ofproofrequired by Section
40(e)(3) ofthe Act.
-
record.
However, the Agency filed the documents to allowthe Board to review those
documents
and make its
own
decision as to whether or not those documents should be
part
of the Agency record.
At the hearing on February
10,
2005, the Agency was directed to file the Village’s preliminary design
report.
The Agency filed that report with the
Board
on February
14, 2005.
The Agency would like to direct the Board’s attention that
this
preliminary reportwas
filed with the Agency on February
11, 2003, a month prior to the filing ofthe
application for the modification of the
permit.
Because ofthat reason, this report was not part of the Agency files on the permit record.
15
The petitions
and the failure ofPetitioners to present any evidence presented at the Board
hearing clearly demonstrate that it
is
the Petitioners’ mere belief, not based on any scientific
findings, that the water quality standards would not be met, that the limits
in
the permit are not
stringent enough to protect the existing uses, and that the certain regulations would be violated.
There is
no
reasonable basis
to
argue
that the discharge from the Village’s treatment plant
will violate any Illinois
water
quality standard, and there is no reasonable basis to conclude that the
Agency in
any way failed in its
duty to ensure that the permit, as issued, does not violate any
provisions
of
the Act or the regulations.
-
Here, Petitioners
failed
to meet the requisite
burden ofproof,
that the permit, as issued by the
Agency, would violate the Act or the applicable regulations.
THEREFORE, Petitioners’ request forrelief must be DENIED.
In the alternative, assuming the Board determines that the Petitionerhas met the burden of
proof outlined in Section 40(e)(3) ofthe Act, the Agency asserts that the permit, as issued, would
not cause a violation of the Act orthe applicable regulations:
There is substantial evidence in the
Agency recordto support its
decision to issue the Village’s NPDES permit.
In the following subsections, the Agency will address the substantive issues raised by
Petitioners.
B.
Klaeren IIDoes Not Apply To The Agency’s Informational Hearings
Asserting that
Klaeren II
applies to the case
at
bar, Petitioners argue that the Agency be
ordered to draft new procedures for hearings and re-notice a public hearing to discuss the permit or
any modification ofthe permit reasonable cross-examination ofthe Applicant and the Agency.
(RG
¶1132,
33, 34, 35,
36, 37, 38; SD
§4).
16
In
People ex rel. RobertJ. Klaeren II et aL, v.
Village ofLisle et a!,
202 Ill.2d 164,
781
N.E.2d 223, 269 Ill.Dec. 426, 2002,
rehearing denied December 2,
2002,
the issue before the
Illinois Supreme Court was to determine “whether a landowner whoseproperty abuts a parcel
subject to
a proposed annexation, special use, and rezoning petition can be wholly .denied the right
to cross-examine witnesses at a public hearing regarding the petition.
—Klaeren II,
781 NE 2d 223,
224.
-
hi
Klaeren II,
a public hearing pursuant to the Illinois Municipal Code was held.
See
65
-
ILCS
5/1-1-1
et
seq..
The defendants, in that case, argued that the applicable provisions ofthe
Municipal
Code granted the plaintiffs only
notice
and
an
opportunity to be hea’rd at a public hearing
concerning a special use in municipalities with a population ofless than 500,0002.
The plaintiffs,
on
the other hand argued, that the right to cross-examine is implied in the legislature’s requirement ofa
public hearing
in
zoning matters because a public hearing is meaningless if the audience is not
allowed to participate.
Klaeren II,
781 NE 2d 223, 232.
The appellate court agreed with the
plaintiffs’ reasoning.
According to the Supreme Court, the resolution ofthe case depended on the
“distinction between-legislative hearings and administrative hearings before municipal bodies.”
Klaeren II,
781 NE 2d 223, 233.
The Supreme Court held that “municipal bodies act in
administrative
or quasi-judicial capacities when those bodies conduct zoning hearings concerning a
-
special
use
petition.”
Klaeren II,
781 NE 2d 223, 234.
Due process is a flexible concept and requires only such procedural protections
as
fundamental principles ofjustice and the particularsituation demand.
Abrahamson v. Illinois
Department ofProfessional Regulation,
153 Ill.2d 76, 92,
180 Ill.Dec. 34,
606 N.E.2d 1111
(1992).
(all aspects ofdue process protection need not be afforded at a fact-gathering hearing conducted
2
See
65
ILCS 5/11-13-7,
11-13-1.1
(West
1998).
Section 7a of the Municipal Code applies to municipalities with a
population of more than 500,000,
and explicitlyprovides
the property owners a rightto “cross examine all witnesses.”
65
ILCS 5/1 1-13-7a
(West 1998).
17
before a plan commission).
Petersen v. Plan
Comm ‘n,
302
Ill.App.3d at 461,
468,
236
IILI.Dec. 305,
707 N.E.2d 150 (1998).
Failure to permit cross-examinatiOn at a zoningboard hearing violates due
process.
E & E hauling,
77 Ill.App.3d at 1022,
33 lll.Dec. 536, 396 N.E.2d 1260.
-,
-
To what extent the full panoply ofdue process rights commonly associated with quasi-
judicial proceedings must be afforded interested parties depends
upon—the purpose ofthe hearings.
Hannah v. Larche,
363 U.S. 420, 80 S.Ct 1502,
4 L.Ed.2d
1307 (1960):
Due process is an elusive concept.
Its
exact boundaries are undefmable, and its
content varies according to specific factual contexts.
Thus, when governmental
agencies adjudicate or make binding determinations which directly affect the
legal
rights of individuals, it is imperative that those agencies use the procedures which
have traditionally been associated with the judicial process.
On the other hand, when
governmental
action does not partake ofan
adjudication, as for example, when a
general fact-finding investigation is being
conducted, it is not necessary that the full
panoply of
judicial procedures
be used.
Therefore, as a generalization, it-can be said
that due process embodies
the differing rules offair play, which though the years,
have become associated
with differing types ofproceedings.
Whether the
-
Constitution requires that a particular right obtain complexity of factors.
The nature
ofthe alleged right involved, the nature of the proceeding, are all considerations
which must be taken into account.
Hannah,
363
U.S. at 442, 80
S.Ct.
at
15 14-15, 4
L.Ed.2d at 1321.
(emphasis added)
Petitioners’ reliance on
Klaeren II
is misplaced
and
reflects the Petitioners’ lack of
understanding
ofthe hearing process before the Agcncy and the-Board.
The Agency does not
dispute the findings of
Klaeren II,
but asserts that
Klaeren II
is inapplicable here.
Klaeren II
involved a quasi-judicial proceeding in that a special use application was heard and interested
parties were not afforded theright to cross-examine adverse witnesses.
Here the Agency’s decision
to issue the permit is subject to the mandates set forth in Section 39(a) of theAct.
The permit
process under Sections 39(a) and 40(a)(1) ofthe Act differs from the process oflocal governmental
approval ofsite locations under Sections 39.2 and 40.1.
Illinois in Environmental Protection
Agency v. Pollution Control Board,
115 Ill.2d
65,
503 N.E.2d 343, 345,
104 lll.Dec.
786 (1986).
In
18
Illinois EPA,
the Supreme Court ofIllinois addressed the issue ofwhetherthe Board is required to
apply the manifest weight test to its review of the Agency’s decision denying a permit.
The
Supreme Court held that the Board is not required to apply the manifest weight test.
In reaching this
holding, the Court
stated:
Unlike the procedures required under section 39.2 and 40.1, the permit process under
section 39(a) and 40(a)(l) does not require the Agency to conduct any hearing.
Consequently, no procedures, such as cross-examination, are available for the
-
applicant to test the validity ofthe information the Agency relies upon in denying its
application.
As the appellate
court noted, the procedure before the Agency has none
-
of the characteristics of an adverse proceeding.
The safeguards of a due process
hearing are absent until the hearingbefore
the Board.
503 N.E.2d 343, 345.
(emphasis added)
The court
in
Village ofSáuget v. Pollution Control Board et al,
207 Ill.App.3d 974,
566
N.E.2d 724,
152 Ill.Dec.
847
(5th
Dist.,
1990) further sheds some light on the nature ofthe hearings
before the Agency and the Board.
The
Sauget
court
concluded that, “while
the IEPA is bound to
follow its own procedures and practices (quoting Harris-Hub Co.
v. Pollution Control Board (1977),
50 Ill.App.3d 608, 613,
8
lll.Dec. 685, 689,
365 N.E.2d 1071,
1075), the supreme court recognizes
that the procedure before the IEPA has none of the characteristics of
an adversaryproceeding,
and
that the safeguards of a due process hearing are absent until the hearing before the Pollution Control
Board.”
-
The due process clause requires that the opportunity to
be heard occur “at a meaningful time
-
and in meaningful manner.”
Midwest Generation EME, LLC v. Illinois Environmental Protection
Agency,
2004 WL 2578734 (PCB 04-185, November 4, 2004) citing
Mathews v. Eldridge, 424
U.S. 319, 96 S.Ct.
893, 902
(1976), quoting Armstrong v. Manzo,
380 U.S.
545, 552,
14 L.Ed.
2d
62, 66,
85
S.Ct.
1187,
1191
(1965)J.
Lyon,
209 Ill.2d at 272, 277, 807 N.E.2d at 430-31, 433.
Tn
-
-
-
U
19
Midwest Generation,
the Board noted3 that providing due process is not necessarily synonymous
with compliance with state regulations.
Nevertheless, state requirements “are a useful reference
because they represent standards that the General Assembly and
the
agency
concluded were
sufficient.”
Lyon,
209 Ill.2d at 274,
807 N.E.2d at 432.
“Generally, the State must act reasonably
before depriving a person ofan interest protected by due process clause.”
Rosewell v.
Chicago Title
&
Trust
Co.,
99 IlL2d at 407, 412,
459 N.E.2d
966
(1984).
The Supreme Court ofIllinois’
holding and reasoning in
Illinois EPA
applies to the case at
bar.
Under the
Illinois EPA
Court’s reasoning, the Petitioners’ due process rights did not include a
right
to an evidentiary
adversarialhearing until the hearing before the Board.
At the Board hearing,
Petitioners had the right to present their own
case-in-chiefand
cross-examine the Agency and the
applicant.
However, Petitioners waived their right to cross-examine the Agency
and
the
applicant.
Further, Petitioners were afforded reasonable opportunity to comment at the Agency’s information
hearing.
-
The NPDES permitting regulations provide many opportunities for input from the public
as well as the permit applicant, through issuance ofdraft permits followed by comment periods and
potential hearings, all before a final permit issues.
See Village ofSauget,
207 Ill.App.3d at 979-83,
566
N.E.2d at 727-30.
The Agency’s informational hearing was held pursuant to Part 309 of the Board regulations
and Part 164 ofthe Agency rules.
The Board regulations set specific requirements that the Agency
must follow in providing public participation prior to
issuing an NPDES permit.
See 35 Ill. Adm.
Code 309.108, 309.109, 309.115, and 309.119.
The Agency fully complied with these
requirements.
The Agency also met the requirements set forth in Part 164 ofthe Agency rules.
As
the Agency complied with all regulatory “public participation” requirements in issuing the permit,
3 The United States
Supreme
Court
has
made
clear that due process is a
matter
of
federal constitutional law, so
compliance or noncompliance
with
state procedural requirements is not a determinativeof whether
minimum
procedural
20
Petitioners’ due process rights were not violated.
C.
The Agency ~ Antidegradation Analysis Is CompleteAnd Protective OfExisting
Uses
-
Petitioners contend that the Agency’s antidegradation analysis did not satisfy the
requirements of35 Ill. Adm. Code 302.105.
More specifically, Petitioners argue that “the Agency
has implemented policies which are incompatible with the language ofboth 302.105 and 302.105(a)
and which contravenes both the antidegradation mandate and the November 28,
1975
benchmark~”
RG ¶63; SD
§4C.
Petitioners
further argue that,
“a
fair reading ofthe antidegradation provisions
-requires the Agency to do an assessment of the Slocum wetlands, as
it existed, prior to November
-
28, 1975.”
RG ¶63; SD
§4C.
Petitioners’ reading of Section 302.105
is enoneous.
-
The purpose of the Board’s antidegradation regulations is to “protect existing uses of all
waters of the
State of Illinois, maintain the quality of waters with quality that is better the water
L
quality standards
and
prevent unnecessary deterioration ofwaters of the State.”
See 35
Ill. Adm.
Code 302.105
(emphasis added).
The Board’s antidegradation regulations
are equivalent of the
federal regulations
at-
40 CFR
131.12(a)(
1).
The federal regulations classifythe waterbodies into
three-tier system.
Tier I in the federal scheme is based on achieving and maintaining existing stream
uses.
Tier I sets the minimum level ofprotection and is intended to be the absolute floor ofwater
quality protection for all waters ofthe United States.
In The Matter Of
Revisions To
Antidegradation Rules, 35
Ill. Adm.
Code 302.105, 303.205, 303.206, AND 102.800-102.830, 2001
-
-
WL 34084035, R01-13, June 21, 2001, pages 2-3.
Tier II of the federal program addresses waters
-
-
whose quality exceeds the levels necessary to support the propagation offish, shellfish, and wildlife
and recreation in and
on the water.
Water quality cannot be lowered below the level necessary to
due process
standards
have been met.
Lyon, 209 Ill.2d at274,
807 N.E.2d at 432, citing
Cleveland Board of Education
v.
Loudermill,
470 U.S.
532, 541,
105
S.Ct.
1487, 1492
(1985).
21
protect the “fishable/swimmable” uses and other existing uses.
However, maintaining a level of
water quality above the “fishable/swimmable” level is not always required and water quality may be
lowered if necessary to accomplish important economic or social development in the areain which
the waters are located.
Id.
at page 3
(emphasis added).
Both the Board regulations and the federal
regulations prohibit theloss ofexisting uses and require that the existing uses actually attained in
the waterbodymust be maintained
and protected.
This mandate appears
itt
the 302.105(a) language.
It provides, “uses
actually attained in a surface water body or water segment on or after November
28,
1975, whether or not they included in the water quality standards, must be maintained and
protected.”
35
Ill. Adm. Code
302.105(a)
(emphasis added).
The Agency, like any other administrative agency, is bound by rule that
“a
dministrative agencies are required to apply their rules as written, withoutmaking
ad hoc
exceptions
in adjudications ofparticular cases.”
Panhandle Eastern Pipe Line v. Illinois
EPA,
314 Ill. App.
3d 296, 734 N.E. 2d 18, 24
(4th
Dist., 2000).
The directive by Section
302.105 of the Board regulations is to protect the existing uses of the Fiddle Creek, the
receiving water, that -existed on or after November
28, 1975.
Unlike Petitioners’
assertion,
-
the Board regulations do not require the Agency to .compare the physical, chemical, or
biological datathat existed on or after November 28,
1975, but mandate that the uses
actually attained on or after November 28,
1975 be maintained and protected.
-
Petitioners must prove that the permitted discharge from the Village’s wastewater
treatment plant would impairthe existing uses ofthe Fiddle
Creek.
Petitioners assert that
KOT report (Record, Book 1, ppA.7O-478) attached as Exhibit L to the Resident Group’s
-
-
petition shows that Slocum wetlands have
experienced a loss of 180 acres of open water
-
since
1993.
RG ¶66; SD
§4C.
Neither the KOT report nor Petitioners list any of the
assumptions or calculations for making these conclusions.
Both the KOT report and
22
Petitioners fail to mention the fact that the Drainage District performed “restoration” in
1960
and
1997.
In 1997, the restoration was performed not to
restore the wetlands, but to restore
the drainage canal
so that wetlands can be drained better.
It would be irresponsible to adopt
the conclusions ofthe KOT report without fullycross-examining the assumptions used in the
models.
The Agency believes that loss of180
acres ofopen water is most likely due to the
“restoration” of the drainage channel and to the sources of non-point pollution generated by
the urban development in the area adjoining the wetlands.
Consequently, Petitioners provide
no evidence in support of its’ gross assumption that
180 acres of open water was lost due to
-
the Village’s discharge.-
Petitioners then argue that “the September 15,
1993, Facility Related Surveywas the
statutory benchmark.”
Pursuant to 35 Ill.
Adm. Code
302.l05(c)(2)(C) and
105(f) ofthe
Board regulations, the Agency considered as much date
as were available in-house, provided
by applicant or by the public.
At no point the Agency stated that the September
15,
1993
-
-
facility related survey was the statutory benchmark.
-
-
Petitioners also argue that the “survey found ‘fair environmental condition and
identified elevated levels- of conductivity, nitrate, plus nitrite, phosphorus, sodium,
potassium, boron, strontium, and oil downstream ofthe WSTP outfall.”
RG ¶1163,
65;
SD
§4C.
Under Section 40(e)(3) of the Act, Petitioners burden ofproofis to show that the
-
above-mentioned parameters violated the applicable water quality standards and thus the
-
-
permit as issued is in violation of the Act andthe Board regulations.
Petitioners provide no
such evidence.
--
-
In its responsiveness
summary,
the Agency responded to the similar comments.
-
(Record, Book4, p. 2222).
The Agency indicated that the above-mentioned parameters were
-
found to be elevated in relation to concentrations upstream ofthe Village’s discharge.
The
23
Agency also
found that the concentrations ofthe above mentioned parameters coming out of
the Village’s discharge
were
typical ofdomestic
wastewater plants throughout the state.
Most importantly, the above-mentioned parameters do ~
violate the
applicable water
quality standards, and also the permitted dischargewill not increase the concentrations of the
above-mentioned
parameters above the water quality standards.
-
Petitioners also fail to provide
any
evidence in support of their assertion that “the
potential effect
on existing uses including aquatic community, including endangered fish,
pollutant sensitive plant species has not been considered.” RG
¶65.
The Board’s water
quality standards
are considered protective ofthe existing uses.
There is no evidence that
endangered fish are present where the Village’s wastewater treatment plant is
discharging
into the Fiddle Creek.
-
Petitioners contend that “the
KOT report Ex L coupled with the testimony ofHuff
& Huff Tr 61-83 evidence a degradation
of the Slocum Wetlands
from current discharges
from WSTP.”
RG¶67, ¶70;
SD §4C.
Petitioners are alluding to violations ofdissolved
oxygen water quality-standard in the receiving stream.
The Agency reviewed the data and
information provided by Huff& Huff4, V3,
and Bonestroo and Devery (Record, Book
1,
pp.249-310, 311-345,
Book 3, pp.
1574-1579),
concluded that the
low dissolved oxygen
levels in the receiving stream were caused by algae.
The Agency found that low dissolved
oxygen was present in the morning and supersaturation occurred in the afternoon.
This is a
common phenomenon in many streams that pass through wetlands or exhibit physical and
habitat characteristics typical of a wetland environment.
To reduce the growth of algae from
-
4
All of the stream samples
were taken in the
downstreamcontinuum of the discharge.
There were
no
samples
taken
upstream or on
tributary streams, which
are not impacted by the effluent.
This
does not allow the Agency to draw any
-
-
conclusions on the results of the samples
taken.
The dissolved oxygen samples
were takenin
the early
morning hours.
This
is
the
time
when dissolved oxygen is expected to be at its lowest
levels, ifthe
algae are present.
There were not any
--
24
point sources, the Agency continues to regulate CBOD5, and ammonia.
In addition, the
Agency requires the Village to meet phosphorus effluent limit of 1
milligram per liter and to
meet the dissolved oxygen water quality standard at the end ofpipe.
The Agency also added
a special permit condition to the permit to
study the dissolved oxygen profile ofthe Fiddle
Creek and the possible effects, if any, ofnutrients downstream from the outfall.
(Record,
Book
4, p. 2211).
Petitioners fail to show how the Village’s discharge has a potential to
cause orcontribute to the violations ofthe dissolved oxygen water quality standard when the
Agency determined that the low dissolved oxygen conditions are caused by algae in the
receiving stream and that the permit requires the Village to meet the water quality based
effluent limits for dissolved oxygen at the end ofthe pipe.
See RG ¶70.
Unlike Petitioners’ assertion, the Agency’s analysis did consider the loading of
nutrients and radium.
(Record, Book 4, pp. 2224-2225, 2244-2245).
To address the nutrient
problem in the receiving stream, the Agency included a phosphorus limit of 1
mg/L as a
monthly average in the Village’s NPDES permit.
After the installation ofphosphorus
removal equipments, the receiving stream would experience a net reduction ofphosphorus
loading
from the Village’s discharge.
Regarding radium, pursuant to 35 Ill. Adm. Code
391.420(f) the Village is required to test its
sludge for radium prior to land applying.
Further, the Village is required to report the results of the testing on a semi-annual basis.
(Record, Book 4, pp.
2244-2245).
Also, the Agency incorporated a monitoring condition in
the state construction permit, 2003-FIB-4649, regarding radium 226.
Under this condition,
the permittee is required to take three 8-hour composite samples ofinfluent and effluent.
(Record, Book 4, p.
2244).
-
-
samples taken from adjacent
streams
or wetlands to indicate whether
the dissolved oxygen was depressed due
to the
Village’s discharge or because ofthe background conditions.
-
25
Petitioners assert that the Agency provides no support to
conclude that ammonia and
dissolved oxygen water quality standards will not be exceeded.
SD
§4E.
The Agency’s
conclusion is supported by the fact that the Village’s permit contains water quality standard
based effluent limits for ammonia and dissolved oxygen.
Therefore, the permit, as issued,
does not violate water quality standard for ammonia or dissolved oxygen.
As the permit
includes a limit for phosphorus, the loading ofphosphorus will decrease when the expanded
facilityis complete.
The dissolved
oxygen levels in the receiving stream are impacted by the
presence of algae and presence ofwetlands.
However, the Agency believes that permit
conditions related to ammonia, phosphorus, and dissolved oxygen in the Village’s permit
will help to improve the dissolved oxygen conditions in the receiving stream.
Petitioners assert
that the “Agency’s decision is flawed by the fact that no
consideration was given to any discharge alternatives.”
SD
§4D.
Petitioners contend that
the Agency be instructed to review alternatives including alternative sites.
RG atp.27.
The
Agency disagrees with the Petitioners’
assertion.
Pursuant to Section 302. 105 (f)(1)(D)of the Board regulations, -the Agency conducted
its assessment ofalternatives to the Village’s proposed increase in pollutant loading.
(Record, Book 3, pp.
1599-1602; Book 4, pp. 2234-2235).
The Agency in its
Responsiveness Summary discusses in detail the various alternatives
considered in this case.
The supplement information provided by Bonestroo Devery & Associates on June 3, 2004
(Record, Book 4, pp. 2054-2099) evaluated the purchase ofand
application to land,
application to a near-by golf course, and other discharge locations, but found none of those
-
sites to be the feasible alternatives.
The supplement information also considered discharging
into alternative waterbodies including Mutton Creek/Island Lake, Bangs Lake, Gangs Lake
-
Drain/Slocum Lake, and the Fox River.
Discharging into lakes were not considered as
-
26
feasible alternatives
as such discharges have the potential to cause greater long-term water
quality impacts.
The Fox River was not considered a feasible alternative as it is currently on
the State’s impaired water list.
Clearly, the Agency did consider the feasible alternatives as
mandated by Section 302.l05(f)(l)(D) ofthe Board regulations.
-
The two alternatives suggested by the Resident Group are not feasible alternatives.
RG 78.
With the Phase
1
and 2 extension, the Village’s wastewater treatment plant would
be much more sophisticated than Northern Moraine Wastewater Reclamation District
(“Northern Moraine WRD”) facility.
For example, Northern Moraine WRD
is only required
to treat BOD and TSS to the limits of20 mg/L and 25
mg/L respectively..
Also, Northern
Moraine WRD is not subject to phosphorus removal
conditions in its permit.
Petitioners
suggest running a pipe on the bottom ofthe SLDD channel directly to the Fox River.
RG 78.
As mentioned earlier, the discharge to the Fox River was not considered feasible as it is
listed on the Section 303(d) list.
Further, the Agency would have serious reservations with
putting a pipe through the wetland, when an alternative path would be available.
Unlike the
Petitioners’
argument5 all feasible and reasonable
alternatives were considered in writing this
permit.
Unlike as suggested by Petitioners, Section 302.105
does not require that every time
a discharge is proposed, a biological
study must be performed on the receiving stream.
A
known discharge into a well-known receiving waterbodyis definitely not a situation in
which the Agency would require the applicant to perform a biological
study.
A permittee
maybe required to perform biological study if the information about the receiving stream is
-
not otherwise available from various respurces atthe Agency’s disposal.
This position is
-
consistent with the mandates ofSections 302.105(c) and 302.105(f) ofthe Board regulations.
-
The Agency contends that
as the discharge from the Village’s wastewater treatment
27
plant is required to
meet the general use water quality standards, thus protecting the existing
uses, the Village’s NPDES permit as issued meets the burden ofproof requirements of
Section 302.105.
The Agency further contends that the record shows that the Agency’s
antidegradation analysis fully complies with the mandates ofSection 302.105 ofthe Board
regulations.
—
D.
The
Village ‘s NPDES Permit Conditions Ensure That The Illinois’ General
Use Water Quality
-
Standards Are Met
-
Petitioners contend that the Village should be required to sample and monitor, at a
minimum, every contaminant found in Wauconda Sand
& Gravel Superfund site.
RG 54.
In
support ofits position, the Resident Group attaches Exhibit Ito indicate that the fourvolatile
compounds were found in the Village’s wastewater effluent above the reporting limits.
The Petitioners’ contention fails for manyreasons.
First, the Resident
Group did not provide
the results of the analysis to the Agency during the comment period or any other period prior to
the
issuance ofthe permit.
On August 20, 2004, the Resident Group tested the Village’s effluent by
taking a single grab sample.
The laboratory analysis report was prepared on September 20, 2004.
The Agency issued the permit on August 23, 2004.
For the fact that the laboratory results were not
-
submitted to the Agency during permitting decision, this information should not be considered by
the Board to review the Agency’s decision.
As Board has long held that its
review is limited to
the
record that was before the Agency at the time of the permitting decision was made.
citation
omitted
Despite Petitioners claim, the data does not show that the permit as issued would cause
-
-
violation ofthe Act or Board regulations.
Ofthe four volatile organic compounds detected, none
exceeded the acute water quality criteria.
Only bromodichioromethane exceeded the chronic water
28
quality criteria.
This is not a violation ofapplicable water quality standard because for a single grab
sample violation of acute standard is required.
-
-
The Agency’s decision to not regulate volatile organic compounds or all other contaminants
found in Wauconda Sand & Gravel’s effluent was based on its analysis ofreasonable potential to
exceed water quality standards.
On July 31, 2000, the Agency analyzed the date submitted by the
Village that included, arsenic, barium, cadmium, chromium (hexavalent), chromium
(total), copper,
cyanide (WAD), cyanide (total),
fluoride, iron (total), iron (dissolved), lead, manganese, mercury,
-
nickel, oil, phenols, selenium, silver, and zinc.
(Record, Book 4, pp. 2216-2217).
As similar
concerns were raised at the public hearing, the Agency collected four additional samples for some of
the above parameters and also
sampled,, magnesium, potassium, beryllium, cobalt, strontium,
calcium, sodium, aluminum, boron, and vanadium.
These parameters were selected based on
potential for these contaminants to pass through the treatment process and be
discharged in the
effluent.
As
a result of these analyses, the Agency determined that the copper has the reasonable
potential to exceed water quality standard, and therefore, a copper limit was included in the final
permit.
All ofthe other parameters were found not to have a reasonable potential to exceed water
quality standards, and therefore, no monitoring was required for these parameters in the Village’s
-
permit.
It should be noted that the Village’s permit requires routine monitoring ofmetals twice
prior to
the expiration ofthe permit.
Id.
On September 18, 2003, the Village sampled their influent and effluent for organics
•
(Record, Book 3, pp.
1774-1779).
Most organic parameters in the influent, including vinyl chloride
were not detected.
Similarly, all organic parameters in the effluent, including vinyl chloride
and
benzene, were not detected.
As similar concerns were raised at the public
hearing the Agency also
sampled effluent on June 21, 2004, and only one organic compound was detected, Bis (2-ethythexi)
phthalate.
However, the concentrations were well within the acceptable human health and aquatic
29
life criteria.
(Record, Book 4, pp. 2219).
Also, Huff& Huff report includes the results of a sample
for organic compounds taken in the receiving stream on August26, 2003.
(Record, Booki, pp. 289-
299).
The samples did not detect any volatile organic compounds in the receiving stream.
Consequently, Petitioners have failed to
show that the permit, as issued, would cause the violation
ofany applicable water quality standards.
-
E.
The Agency Did Not
Violate Section 44 Of The Act
Petitioners argue that the Agency had an obligation under Section 44(h)(1) ofthe Act to
report the false answer submitted by the Village in its NPDES permit application.
RG
¶1139, 40, 41,
42, 43, 49;
SD
§4A.
The Agency could not disagree more.
There is no such requirement under
Section 44 or 44(h)(1) ofthe Act.
Also, the Agency has no reason to believe that the Village lied on
-
its NPDES permit
application.
.A inadvertent mistake in filling an NPDES permit application does
not amount to providing false information.
Petitioners have provided no evidence to show that the
applicant intentionally lied on its application.
In this case, the Agency became aware ofthe facts
regarding the Wauconda Sand & Gravel site discharge at the hearing, and therefore any information
that was not part ofthe application became available for the Agency’s review prior to the issuance
ofthe final permit.
Unlike Petitioners suggest, the Board regulations do not require the applicant or
the Agency to correct the original application every time additional information becomes available.
The real test is whether ornot all pertinent information was considered by the Agency in making its
final decision.
Further, there is nothing in the Section 44(h)(1) language to suggest that the Agency
had any obligation.
Clearly under the Section 44 language,
State’s Attorney ofthe county in -which
-
the violation occurred and the Attorney General have authority to file actions both before th~
Board
and the circuit courts.
Thus, Petitioners yet again fail to meet the requisite burden under Section
40(e)(3) ofthe Act.
-
30
F.
USEPA, NOT The Agency, Is
The ProperAuthority ToApprove Pre-Treatment Program
--
Petitioners argue that the Agency failed to require the Village to implement a pretreatment
program.
RG ¶57; SD
§4F.
Petitioners’ contention lacks support oflaw.
The Agency is not
delegated by the USEPA to
operate the pre-treatment program outlined in Part 310 ofthe Board
regulations.
As the Agency is not the control authority,
pursuant to 35
111. Adm.
Code
3 10.400, the
Agency has no
authority to issue pretreatment permits.
Instead, USEPA is the proper authority to
review and approve the pretreatment programs.
-
-
Here in this case, the Village, pursuant to Special Condition
8 ofits NPDES permit, was
required to submit industrial user surveywith the Agency.
The Agency forwarded the information
to USEPA for its review and determination.
In its August 3, 2003 letter, USEPA determined that,
“the Village is not required to
develop a pre-treatment program at this time.”
(Record, Book 3, pp.
1559-1572).
As US EPA is the agency with proper jurisdiction, the illinois EPA has no authority to
direct the Village to implement a formal pre-treatment program.
However, the Agency in response
to the public
concern at the hearing has required the Village to submit industrial user survey
annually with the Agency.
The purpose behind this permit modification is to allow the USEPA to
review and reconsider its decision to approve or disapprove the Village’s pretreatment program
based on the additional information gathered during each annual cycle.
Thus, Petitiotiers again fail
to prove that the permit as issued violates the Act or Board regulations.
G.
The Discharge From
The
Village ‘s Treatment Plant Is Not The Cause OfContamination In The
-
Private Wells
31
The Resident Group attaches Exhibit N5 to its petition that the private well was
contaminated from the Village’s discharge.
RG ¶1175, 76.
The Resident Group’s claim fails for
many reasons.
First, the Resident
Group did not provide the results ofthe analysis to the Agency
during the comment period or at any other time prior to the issuance of thepermit.
The private well
was tested on September
1, 2004, nine days after the final permit was issued.
As
the laboratory
results were not submitted to the Agency prior to the permit issuance, this information should not be
considered by the Board to review the Agency’s decision.
As Board has long held that its review is
limited to
the record that was before the Agency at the time ofthe pennitting decision was made.
citation
omitted
Further, Petitioners fail to prove that any contamination found is the private well is as a
result ofthe discharge from the Village’s treatment plant.
After receiving similar concerns at the
NPDES permit information hearing, the Agency investigated this issue.
After thorough review of
the data on private wells including the geological information regarding the aquifer feeding the
private wells, the Agency concluded that contamination from the Village’s discharge is unlikely.
(Record, Book
4, pp. 2216-2217).
The Agency’s conclusion is based on the hydrological
-
information for the Fiddle Creek around the Village’s treatment plant discharge area.
The Agency
found that the eastern portion is
a low geologic susceptibility area.
Well logs show this area to have
a low permeability layer.
Though the western area shows high geological susceptibility to surfacial
contamination, well logs within this area show that the areacontains less permeable material near
the surface at most well locations.
(Record, Book
4, p.
2216).
The Agency further concluded that
“it is more likely that groundwater in the vicinity ofthe Fiddle Creek would tend to be discharging
-
to
the creek.”
Id.
This
allows the Agency to conclude that there is a limited nature of
-
5
The sample tested positive for Total Coliform and negative for E.Coli.
The recommendation was to
chlorinate
the
well, and not drink or testthe water.
Also, Total Coliform
contamination
could be caused
due to close proxiniity-t& the
septic
field.
32
-
-
-
-
communication between the Creek and shallow groundwater.
This is
further confirmed by the fact
that the LCHD records show no fecal colifoim contamination in private wells within 1000 feet of
Fiddle Creek over the past years.
TheAgency also
suspects that improper well construction,
damage to or flooding ofwell casings couldbe causing the contamination ofwells.
(Record, Book
4, p. 2217).
Clearly, Petitioners have failed to
show that the permit, as issued, would cause violation
ofthe Act or the regulations.
H.
The Agency Complied With The Requirements OfSection
39(a) OfThe Act
Petitioners argue that the Agency failed to consider the Village’s treatment plant’s acts of
non-compliance.
In support of its argument, Petitioners cite to the language ofSection
3 9(a) of the
Act.
RG ¶1158, 61, 62,
63,
65,
66, 67,
71, 72, 77, 78, 79; SD §4B.
Petitioners’ argument fails for
two reasons.
First, the Section the Section 39(a) language does not impose a mandatory duty on the
Agency.
It specifically states that, “in
making its
determination on permit applications under this
Section, the Agency ill!! consider prior adjudications ofnoncompliance with this Act by the
-
applicant.”
415 ILCS
5/39(a) (2004)
(emphasis added).
The Act requires the Agency to
consider
prior adjudications ofnoncompliance such that, where necessary, the Agency mayimpose
reasonable conditions in the applicant’s NPDES permit to specifically address the reasons of
noncompliance.
See
415 ILCS 5/39(a) (2004).
-
Second, the Agency did consider the Village’s prior adjudication ofnoncompliance.
The
Agency found one prior adjudication ofnoncompliance in the form of a consent decree
entered on
-
December
13, 2000, with the Act.
Based on the review ofthe consent decree, the Agency
-
determined that the Village’s requestto expand its treatment would directly address the problems
that led to the violations ofthe Act coveredby the December 13, 2000 consent decree.
Additional
33
capacityto treat wastewater would reduce the burden on the existing treatment plant and thus would
reduce the incidents ofoverflow.
Once again, Petitioners fail to prove that the Agency’s decision to
issue the Village’s permit would lead to violations ofthe Act or the Board regulations.
V.
CONCLUSION
—
For the reasons and arguments provided herein, the Agency respectfully requests that the
Board
the Petitioners’ requested relief.
Respectfully Submitted,
ILLINOIS ENVWONMENTALPROTECTION AGENCY
By: ~
-
SanjayK. Sofat
-
Assistant Counsel
-
Division ofLegal Counsel
DATED:
February 25,
2005
-
Illinois Environmental Protection Agency
-
1021 North Grand Avenue East
-
P.O.
Box
19276
Springfield, Illinois
62794-9276
(217) 782-5544
-
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FILING PRINTED ON RECYCLED PAPER
34
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
B. 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 Day Road
Suite 350
Bannockburn, IL 60015
THIS
FILlING
PRINTED
ON RECYCLED PAPER
35
)
STATE OF ILLINOIS
COUNTY OF SANGAMON
)
)
)
)
SS
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the attached
POST HEARING BRIEF
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 5. 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
B. Butterfield Rd.
Suite 315
-
Bradley P. Halloran
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
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)
Jay J. Glenn
Attorney at Law
2275
HalfDay Road
Suite 350
Bannockburn, IL 60015
(OVERNIGHT MAIL)
Lombard, IL 60148
(OVERNIGHT MAIL)
36
and mailing it from Springfield, Illinois on February 25, 2005, with sufficient postage affixed as
indicated above.
SUBSCRIBED AND SWORN TO BEFORE ME
this day ofFebruary 25, 2005.
~íi~j~4L
~
Notary Public
OFFICIAL
SEAL
.i.
-
BRENDA BOEHNER
:~:
~
NOTARY
PUBLIC.
STATE
OF
ILLINOIS
IMY
COMMISSION
EXPIRES
11-14-2OO5:~:
-
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FILING
PRINTED ON RECYCLED PAPER
-
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