BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
rEB2520~
VILLAGE OF LAKE BARRINGTON,
)
STATE OF fLU
CUBA TOWNSHIP, PRAIRIE RIVERS
)
POllUtjOfl
Controf~~
NETWORK, SIERRA CLUB, BETH
)
WENTZEL and CYNTHIA
SKRUKRUD,
)
)
Petitioners,
)
PCB
05-55
)
(3RD
Party NPDES Permit
VS.
)
Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY AND
)
VILLAGE OF WAUCONDA,
)
)
Respondents.
)
)
SLOCUM LAKE DRAINAGE DISTRICT
)
OF LAKE COUNTY, ILLINOIS
)
)
Petitioner
)
PCB
05-5
8
VS.
)
(3rd
Party NPDES Permit
)
Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY AND VILLAGE)
OF WAUCONDA, ILLINOIS
)
)
Respondents.
)
THIs
DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
AL PHILLIPS, VERN MEYER, GAYLE
)
DEMARCO, GABRIELLE MEYER, LISA)
O’DELL, JOANLESLIE, MICHAEL
)
DAVEY, NANCY DOBNER, MIKE
)
POLITO, WILLIAMS PARK
)
IMPROVEMENT ASSOCIATION, MAT
)
SCHLUETER, MYLITH PARK LOT
)
OWNERS ASSOCIATION, DONALD
)
KREBS, DON BERKSHIRE, JUDY
)
BRUMME, TWIN POND FARMS
)
HOMEOWNERS ASSOCIATION, JULIA)
TUDOR and CHRISTINE DEVINEY,
)
)
Petitioners
)
PCB
05-59
)
(3rd
Party NPDES Permit
VS.
)
Appeal)
)
(Consolidated)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY AND VILLAGE)
OF WAUCONDA, ILLINOIS
)
)
Respondents.
)
NOTICE OF
FILING
TO:
See attached Certificate of Service
Please take notice that on February
25,
2005, I filed with the Illinois Pollution Control
Board an original
and nine copies of this Notice ofFiling and Brief
on Behalfofthe Village of
Lake Barrington, Cuba Township, Prairie Rivers Network, Sierra Club, Beth Wentzel and
Cynthia Skrukrud, copies of which are attached hereto and hereby served upon you.
Dated:
February
25,
2005
,~‘f~evin
Desh,
ai
“
One of the Attorneys for the Village ofLake
Barrington and Cuba Township
Percy L. Angelo
Russell R. Eggert
Kevin G. Desharnais
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, Illinois 60603
312-782-0600
THISDOCUMENT HAS BEEN PRINTEDON RECYCLED PAPER
CERTIFICATE OF SERVICE
Kevin Deshamais, an attorney, hereby certifies that on
February
25,
2005, a copy of the
foregoing Notice of Filing and Brief
on Behalf of the Village ofLake Barrington, Cuba
Township, Prairie Rivers Network, Sierra Club, Beth Wentzel and Cynthia Skrukrud
was
served on the persons listed below by UPS Next Day Air fordelivery on Monday
February 28, 2005.
Sanjay K. Sofat
James Allen Day
Illinois Environmental Protection Agency
Division of Legal Counsel
1021
North Grand Avenue East
Springfield, Illinois
62794-9276
William D. Seith
Total
Environmental Solutions, P.C.
631 East Butterfield Road
Suite 315
Lombard, Illinois 60148
Jay J. Glenn
Attorney at Law
2275 Half Day Road
Suite 350
Bannockburn, Illinois 60015
Rudolph F. Magna, Jr.
Magna & Johnson
495 North Riverside Drive
Suite 201
Gurnee, Illinois 60031
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
Bonnie L. Macfarlane
Bonnie Macfarlane, P.C.
106 West State Road
P.O. Box 268
Island Lake, Illinois 60042
Albert Ettinger
Environmental Law and Policy Center
35 East Wacker Drive
Suite 1300
Chicago, Illinois 60601
Percy L. Angelo
Russell R.
Eggert
Kevin G. Desharnais
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, Illinois 60603
312-782-0600
/~nG~sharnai~’
THIS DOCUMENT HAS BEEN
PRINTED
ON RECYCLED PAPER
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARl~EB
252005
VILLAGE OF LAKE BARRINGTON,
)
STATE
OF
ILLINOIS
CUBA TOWNSHIP, PRAIRIE RIVERS
)
Pollution Control
Board
NETWORK, SIERRA CLUB, BETH
)
WENTZEL and CYNTHIA SKRUKRUD,
)
)
Petitioners,
)
PCB
05-55
)
(3RD
Party NPDES Permit
VS.
)
Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY AND
)
VILLAGE OF WAUCONDA,
)
)
Respondents.
)
)
SLOCUM LAKE DRAINAGE DISTRICT
)
OF
LAKE COUNTY, ILLINOIS
)
)
Petitioner
)
PCB 05-58
VS.
)
(3~
Party NPDES Permit
)
Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY AND VILLAGE)
OF WAUCONDA, ILLINOIS
)
)
Respondents.
)
THISDOCUMENT HAS
BEEN PRINTED ON RECYCLED
PAPER
AL PHILLIPS, VERN MEYER, GAYLE
)
DEMARCO, GABRIELLE MEYER, LISA)
O’DELL, JOAN LESLIE, MICHAEL
)
DAVEY, NANCY DOBNER, MIKE
)
POLITO, WILLIAMS PARK
)
IMPROVEMENT ASSOCIATION, MAT
)
SCHLUETER, MYLITH PARK LOT
)
OWNERS ASSOCIATION, DONALD
)
KREBS, DON BERKSHIRE, JUDY
)
BRUMME, TWIN POND FARMS
)
HOMEOWNERS ASSOCIATION, JULIA
)
TUDOR and CHRISTINE DEVINEY,
)
)
Petitioners
)
PCB 05-59
)
(3~
Party NPDES Permit
VS.
)
Appeal)
)
(Consolidated)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY AND VILLAGE)
OF WAUCONDA, ILLINOIS
)
)
Respondents.
)
BRIEF ON BEHALF OF THE
VILLAGE OF LAKE BARRINGTON, CUBA TOWNSHIP,
PRAIRIE RIVERS NETWORK, SIERRA
CLUB, BETH WENTZEL and CYNTHIA
SKRUKRUD
This matter involves consolidated third-party
permit
appeals
of a
modified NPDES
permit issued to the Village ofWauconda on August 23, 2004, to expand its sewage
treatment plant in two phases:
from
1.4 million gallons per day (“MGD”) to
1.9 MGD and
from
1.9 MGD to 2.4 MGD.
Three third partypermit appeals were filed by objectors to the
permit.
The first by Lake Barrington, Cuba Township, Sierra Club, Prairie Rivers Network,
Cynthia Skrukrud and
Beth Wentzel (hereinafter the “Municipal-Environmental
Petitioners”) was denominated PCB 05-55.
The second by Slocum Lake Drainage District
(“Drainage District”) was denominated PCB
05-5
8.
And the third, by a group ofarea
residents represented by Attorney Jay Glenn (“Resident Group”), was denominated
2
THISDOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
PCB
05-59.
All three matters were consolidated by the Board by an order dated October 7,
2005.
The permit in question had been the subject of a public notice proceeding by the
Illinois Environmental Protection Agency, (“IEPA Proceeding”).
I.
INTRODUCTION
A.
Participation by the Municipal-Environmental Petitioners
The Municipal-Environmental Petitioners were extremely active participants
in the
IEPA Proceeding.
Lake Barrington and Cuba Township retained environmental consultants
to advise
on the issues and conduct independent testing.
All ofthe Municipal-
Environmental Petitioners provided comments andlor testimony in the IEPA Proceeding.
In
fact, over one hundred pages ofthe record in this matter was supplied by the Municipal-
Environmental Petitioners, which also provided the only technical data furnished by any
petitioner regarding the Wauconda discharge and Fiddle Creek.
See for Lake Barrington
and Cuba Township Tr. 57-76, R. 146-47, 231-39, 249-310, 441-44, 470-78, 569-73,
1051,
1954-57, 2102-13; for Sierra Club Tr.97-102;
140-46, 150-54, R.163-64, 173,
1023-25,
1065, and forPrairie Rivers Network R.97-102; 566-68, 1793-95.’
B.
Impact on the Municipal-Environmental Petitioners
Lake Barrington, Cuba Township and the Municipal-Environmental Petitioners were
so involved because they are the immediate downstream neighbors ofWauconda.
The
Wauconda effluent discharges to Fiddle Creek at Anderson Road, approximately 2.4 miles
from the Fox River.
Fiddle Creek flows through a wetland area, a channelized sectioncalled
the Slocum Lake Drainage District and then into the Fox River.
As described in their
Citations to the transcript of the IEPA proceeding, filed as an Amended Record on December
10,
2004,
are
designated “Tr.”
Citations to
the
IEPA
record
are
designated “R._”.
3
THIs
DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
testimony and submissions, Lake Barrington, a municipal corporation, borders Fiddle Creek
on the south immediately downstream ofthe Wauconda discharge.
Cuba Township
is the
township including Lake Barrington and immediately downstream ofthe Wauconda
Discharge.
R.249-50.
Prairie Rivers Network is an Illinois not-for-profit corporation, an
affiliate ofthe National Wildlife Federation, concerned with river conservation and water
quality issues and includes members in the Fiddle Creek and Fox River watersheds.
R.1793-95.
The Sierra Club is a California not-for-profit corporation with members who
live and recreate in the Fiddle Creek area.
R. 163-64.
Beth Wentzel
is a watershed scientist
with Prairie Rivers, R.1793-95, and Cynthia Skrukrud
is a
clean water advocate with the
Sierra
Club.
R.163-64,
1023-25.
Members ofSierra Club and Prairie Rivers are adversely
affected by conditions in Fiddle Creek and the Fox River.
C.
IEPA Response to Public Participation and Further Discussions
As a result ofthe IEPA Proceeding, a number ofpositive changes were made in the
draft Wauconda NPDES permit, including a requirement for phosphorus control and
requirements for dissolved oxygen monitoring, studies ofDO and nutrients in Fiddle Creek
and yearly updated industrial user surveys.
Pursuing discussions begun under the auspices
ofthe IEPA, before and following issuance ofthe permit and the filing ofthe permit
appeals, Wauconda and the Municipal-Environmental Petitioners continued discussions
concerning additional changes to the permit which might resolve the concerns ofthe permit
objectors.
These discussions were widelypublicized as the parties attempted to involve,
consult with and satisfy many local constituencies.
Public presentations were made to the
Lake Barrington Village Board and televised on local access TV.
See Affidavit ofKevin
Richardson in
Lake Barrington and
Cuba Township Response to Joint Motion to Realign
and/or Join
Parties
as
Third Party Respondents and Leave to Amend.
Affidavit is attached
4
THIS DOCUMENT HAS
BEEN PRINTED ON RECYCLED PAPER
as
Exhibit C
hereto
and incorporated herein.
Eventually, these discussions led to two
written documents which attempted to incorporate a resolution ofthe issues raised in the
IEPA proceedings.
D.
Stipulation and Intergovernmental Agreement
The first document addressing a resolution ofongoing issues ofconcern was an
Intergovernmental Agreement (“IGA”) reached among the Villages ofWauconda and Lake
Barrington and Cuba Township.
IGA’s are specifically authorized and encouraged by the
Illinois Constitution.
Ill. Const. of 1970; Art. VII,
§
10,
5
ILCS 220/1
et seq.
Because the IGA was limited to governmental entities, a mechanism was needed to
allow the environmental petitioners, including the Sierra Club
and Prairie Rivers Network,
to have the benefit ofthe IGA.
Accordingly, a Stipulation was reached and signed by the
participating parties in which the IGA parties and the enviromnental group and individual
petitioners in PCB
05-55
achieved the same resolution ofissues outlined in the IGA, as well
as the right to enforce that resolution.
The Stipulation with incorporated IGA is attached as
Exhibit A hereto and incorporated by reference herein.
It is the beliefof the parties to the Stipulation that it involves an appropriate
resolution ofthe issues properly raised in the record in this case.
To assist the Board in
reviewing those issues and reaching its own conclusionconcerning the correct resolution,
the Municipal-Environmental Petitioners have created a chart ofthe issues raised by the
various petitioners, theirprincipal discussion on the record, including the petitioners who
raised them, the IEPA response in the permit as issued and the treatment of those issues in
the IGA and Stipulation.
See Exhibit B attachedhereto and incorporated by reference
herein.
As discussed below, it is the request ofthe Municipal-Environmental Petitioners that
the Board, upon completing its review,confirm that the resolution reached is appropriate
5
THIS DOCUMENT HAS BEEN PRINTEDON RECYCLED PAPER
and maybe the basis for the Board’s own independent decision in this case.
It bears
repeating that the Stipulation is directly tied to and driven by the record assembled in the
IEPA Proceeding.
The Municipal-Environmental Petitioners recognize that the Drainage District
Petitioner in
05-58
and the Resident Group Petitioners in 05-59 have not participated in the
Stipulation and have even sought to penalize Lake Barrington and Cuba Township by asking
that they be realigned as Respondents
for signing the Stipulation and the IGA.
(Joint
Motion to Realign and/or Join Parties as Third Party Respondents and Leave to Amend
(hereinafter “Joint Motion to Realign”) withdrawn afterresponse by Lake Barrington and
Cuba Township.)
As described more fullybelow,
numerous efforts were made to involve as
many as possible in the community in the IGA and Stipulation, including the Drainage
District and members ofthe Resident Group, and to insure that all legitimate environmental
concerns received thoughtful consideration and inclusion if appropriate.
At the same time, it
was recognized that IEPA and the Pollution Control Board only have certain powers under
the Environmental Protection Act and it was unreasonable to expect the environmental
agencies to address matters which might be beyond their statutory authority, no matter how
desirable that might be to some
as a matter ofcommunity planning and
growth.
II.
STANDARD
OF REVIEW
NPDES permits must contain “those terms and conditions.
.
.
which maybe required
to accomplish the purposes
and provisions” ofthe Environmental Protection Act (the “Act”),
415
ILCS 5/39(b).
The IEPA’s
decision to issue a permit must be supported by substantial
evidence.
~
Prairie Rivers Network v. IEPA (Aug. 9, 2001), PCB 01-112.
The permit
cannot be upheld if, as
issued,
it would violate the Illinois Environmental Protection Act or
Board regulations.
~
jç~The Board reviews third-party permit
appeals, like other
.6
THIS
DOCUMENT
HAS BEEN PRINTEDON RECYCLED PAPER
petitions, exclusively on the basis ofthe record before the Agency.
$~
j4~
(citing 415
ILCS
5/40(e)(3)); see
also Saline County Landfill, Inc. v. IEPA (May 6, 2004), PCB 04-117 (“It is
well settled that the Board’s review ofpermit appeals ofthis type is limited to information
before the Agency during the
Agency’s
statutory review period, and is not based on
information developed by the permit applicant, or the Agency, after the Agency’s
decision.”); ESG Watts, Inc. v. IEPA (Apr. 4, 2002), PCB 0 1-62 (same).
While the
applicant must demonstrate by substantial evidence that a permit will not violate the Act or
regulations, the burden ofproofin
a permit appeal is on the petitioner.
415 ILCS
5/40(e)(3).
III.
DISCUSSION
A.
Nature ofPublic Participation in the IEPA Proceeding, the Permit Appeals
and the Stipulation and IGA.
Lake Barrington, Cuba Township and the environmental group petitioners have
sought to involve the public at large in their participation in this matter and to
furnish the
IEPA in its Proceedings with well-founded technical bases fortheir concerns.
In
participating in the IEPA Proceedingbelow Lake Barrington and
Cuba Township retained
James Huffofthe consulting firm Huffand Huff to analyze the Wauconda application and
provide expertise.
Huff and Huffassembled and analyzed existing data, reviewed IEPA
records and conducted additional sampling in Fiddle Creek and the Fox River.
The resulting
data and analyses were supplied in the IEPA Proceeding.
Tr.57-76; R.249-310,
1054-57.
In
addition, Kot Environmental Consulting was retained to provide an
analysis ofthe possible
susceptibility ofarea wells and the impacts ofthe proposed permit on the Fiddle Creek
wetlands.
R.470-78.
The environmental groups and individuals, Sierra Club and Prairie Rivers Network
and their scientists Beth Wentzel and Cynthia Skrukrud also provided technical input and
7
THIS DOCUMENT HAS
BEEN PRINTEDON RECYCLED PAPER
analysis in the IEPA Proceeding.
See e.g. R.97-102,
163-64,
566-68,
1023-25,
1065,
1768,
1793-95.
Following a government party discussion process sponsored by IEPA during its
public proceedings, see
e.g. IEPA Decision and Response to Comments, R.22 10 et seq.
(hereinafter “IEPA Decision”) at 2215, Lake Barrington, Cuba Township and the
environmental groups continued their discussions with Wauconda and the community
throughout the permit process, both before and after issuance ofthe permit.
Wauconda was
receptive to ongoing discussions and the municipal parties and environmental groups sought
input from their communities as discussions proceeded.
The Drainage District and Resident
Group, petitioners in PCB
05-58
and
59,
have claimed in a motion filed in this proceeding
(Joint Motion to Realign, withdrawn afterresponse by Lake Barrington and Cuba Township)
that such discussions were secret.
As clearly stated in the affidavit ofLake Barrington
Trustee Kevin Richardson, previously supplied to the Board as part ofLake Barrington and
Cuba Township’s Response and Objection to the Joint Motion to Realign and attached as
Exhibit C hereto and incorporated herein, this was simplynot the case.
Besides the groups
and individuals consulted, regular reports of the progress ofthe discussions were made to
the Lake Barrington Village Board meetings and a broad ranging Power Point presentation
concerning the discussions was broadcast on local access TV.
As a government
organization, Petitioner Slocum Lake Drainage District attended the governmental
discussion process, R.1081-87,
1091-93, and was invited to the negotiations concerning the
IGA.
The Drainage District attended at least two ofthe negotiation meetings before
declining to participate further.
In addition, Trustee Richardson met personally with Mr. Jay
Glenn who described himself as leader ofthe Resident Group in PCB 05-59.
(Mr. Glenn is
8
THIS DOCUMENT HAS BEEN PRINTEDON RECYCLED PAPER
the attorney representing the petitioners
in PCB
05-59.)
Mr. Glenn, however, made it clear
that the goal of his group, whose widely publicized motto was “Plug the Pipe,” was to deny
a permit to Wauconda and require it to
cease its
discharge to Fiddle Creek entirely until his
group’s concerns with water, traffic
and other Wauconda growth issues were satisfied.
See
Exhibit C.
Those discussions with Mr. Glenn, therefore, did not continue because of
concerns that his goals went beyond the statutory authority ofthe Environmental Protection
Act and were not legally achievable.
Moreover,
as illustrated by the chart of issues raised,
Exhibit B, the legitimate and statutorily cognizable concerns ofthe Drainage District and the
Resident Group are addressed by IEPA’s permit revisions and, importantly, the Stipulation
and
IGA.2
There is, ofcourse, no requirement that settlement discussions be public:
the
contrary is more often the case.
The participants in the IGA and the Stipulation sought
public input in this process because ofa concern that any resulting agreement regarding the
NPDES permit deal appropriately with all legitimate environmental issues.
The Pollution
Control Board and IEPA should encourage the process used as embodying the principles
underlying the Environmental Protection Act and good public policy.
B.
The Achievement ofthe IGA and the Stipulation
Third party NPDES permit appeals are a relatively new phenomenon before the
Pollution Control Board, with little in the way ofsettled practice or instruction in the Board
rules to provide guidance.
And there is even less settled wisdom
about how to resolve a
third-party permit appeal.
Thus, as the parties to the Stipulation proceeded in their
2
In largemeasure the comments and IEPA Proceedings participation by the Drainage District
and the
Resident
Group were very general and were not tied to the statute
or the Board’s regulations.
Without
addressing the sufficiency of those comments for the purposes ofpermit appeal, the Municipal-Environmental
Petitioners have sought to illustrate in Exhibit B how
the Stipulation addresses the concerns of the Petitioners
in PCB
05-58
and
05-59
as well.
9
THIs DOCUMENT HAS BEEN
PRINTED ON RECYCLED PAPER
discussions and began to find common ground, they approached the problem of
memorializing any resolution from several standpoints.
As
several ofthe parties were
government organizations, they realized they could resolve their issues through an IGA, a
mechanism they were familiar with and which is encouraged by the Illinois Constitution.
There was concern, however, to include as well the environmental groups and individuals
who could not participate directly in an IGA.
It was believed that a Stipulation settlement
document could be used to extend the benefits ofthe
IGA to these groups and individuals.
The Stipulation additionally had two other purposes.
Most importantly, it was a mechanism
to present to the Board an agreement among the participating parties as to certain facts and
issues and the participants’ belief as to theirproper interpretation and resolution.
While
confining themselves entirely, as they must, to the permit record, the petitioners identified in
the Stipulation the issues raised in the IEPA Proceeding and the desired and appropriate
resolution of those issues.
The Municipal-Environmental Petitioners ask that the Board
consider the issues raised, and the record support provided and urge that the Board
determine that it has sufficient basis to exercise its
independentjudgment to reach the
conclusions and resolutions reached by the parties and contained in the Stipulation.
See
February 3, 2005
Board Order in PCB
05-55,
58 and 59, at 2.
Petitioners recognize that the
Board is not bound by those resolutions and will consider each issue independently, but
believes that the Board will find that the resolutions reached in the Stipulation also represent
an appropriate resolution ofthe issues in this permit appeal.
The parties to the Stipulation also asked that the Board accept the Stipulation as a
settlement of the permit appeal, in much the same fashion as a stipulation may be accepted
as a settlement in an enforcement-case, essentially as a binding determination ofthe issues.
10
THIS
DOCUMENT
HAS BEEN PRINTEO ON RECYCLED PAPER
The Board declined to do so in its Order ofFebruary 3, 2005, and the Municipal-
Environmental Petitioners understand and accept the Board’s ruling.
They continue to
believe, however, that the Board may independently review each issue raised and the record
and the resolution indicatedby the Stipulation and considerwhether that resolution
independently represents
an appropriate determination in the appeal.
In the context ofa
thirdparty permit appeal, it is respectfully suggested to the Board that this mechanism
represents a way ofencouraging responsible settlements, one which involves the public
as
much as possible,3 without compromising the obligation ofthe Board to review permit
appeals according to statutory criteria and its own rules.
Additionally, it is significant that
Wauconda, without conceding that the permit as issued is not correct,
has agreed in the
Stipulation to accept a revised permit incorporating the additional limitations identified,
insuring their incorporation in a permit document with appropriate public availability.
Accordingly, and again as a matter ofgood public policy and the principles underlying the
Environmental Protection Act’s commitment to public participation and private and local
government involvement,
see
e.g. 415 ILCS 5/2(a)(iv)(b) and (c);
7(a) and (b);
11(a) and (c),
the Board is requested to
endorse the approach taken and through its independent review, of
the resolutions reached adopt the revisions to the NPDES permit agreed to by the
participants to the Stipulation.
Finally, it is urged that the Board recognize this process and the resulting permit as
positive and significant for responsible environmental policy in Illinois.
The permit
~ While IEPA normally participates in a resolution of a direct permit appeal
by the permit applicant, this
agency participation is more difficult where the IEPA and the applicant are both respondents defending the
permit and where the
IEPA must be concerned about the programmatic impacts of a resolution which goes
beyond usual
agency practice, e.g. regarding antidegradation
or nutrient
limitations, and therefore might have
precedential effect.
11
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
Exhibit
A
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
VILLAGE OF LAKE BARRINGTON,
)
CUBA TOWNSHIP,
PRAIRIE
RIVERS
)
NETWORK, SIERRA CLUB,
BETH
)
WENTZEL and
CYNTHIA SKRUKRUD,)
)
Petitioners,
)
)
v.
)
PCB
05-55
)
(Permit Appeal-NPDES)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY and
)
VILLAGE OF WAUCONDA,
)
)
Respondents.
SLOCUM LAKE DRAINAGE
)
DISTRICT OF LAKE COUNTY,
)
ILLINOIS,
)
Petitioner,
)
)
v.
)
PCB
05-58
)
(Permit Appeal-NPDES)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY and
)
VILLAGE OF WAUCONDA,
)
)
Respondents.
AL PHILLIPS, VERN
MEYER, GAYLE DEMARCO,
)
GABRIELLE MEYER, LISA O’DELL, JOAN LESLIE,
)
MICHAEL DAVEY, NANCY DOBNER, MIKE POLITO,)
WILLIAMS PARK IMPROVEMENT ASSOCIATION,
)
MAT SCHLUETER, MYLITH PARK LOT OWNERS
)
ASSOC., DONALD KREBS, DON BERKSHIRE,
)
JUDY BRUMME, 1WIN POND FARMS
)
HOMEOWNERS ASSOC., JULIA TUDOR,
)
CHRISTINE DEVINEY,
)
)
Petitioners,
)
v.
)
PCB
05-59
(Permit Appeal-NPDES)
ILLINOIS
ENVIRONMENTAL PROTECTION
)
AGENCY
and VILLAGE OF WAUCONDA,
)
)
Respondents.
NOTICE OF FILING
TO:
See Attached Certificate ofService
Please take notice that on January
10,
2005,
I filed with the
Illinois Pollution
Control Board an original and
nine copies of this Notice of Filing and attached
Stipulation, which are hereby served
upon you.
Dated:
January
10, 2005
William
D.
Seith
Total Environmental Solutions,
P.C.
631
E. Butterfield Rd., Suite 315
Lombard, IL
60148
630-969-3300
Rudolph Magna
Magna & Johnson
495 N.
Riverside Dr., Suite 201
Gurnee, IL
60031
847-623-5277
I
S
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
VILLAGE OF LAKE
BARRINGTON,
)
CUBA TOWNSHIP, PRAIRIE
RIVERS
)
NETWORK,
SIERRA CLUB,
BETH
)
WENTZEL and CYNTHIA
SKRUKRUD,)
)
Petitioners,
)
)
v.
)
PCB
05-55
)
(Permit Appeal-NPDES)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY and
)
VILLAGE OF WAUCONDA,
)
)
Respondents.
)
SLOCUM LAKE
DRAINAGE
)
DISTRICT OF
LAKE
COUNTY,
)
ILLINOIS,
)
Petitioner,
)
•
v.
)
PCB
05-58
)
(Permit Appeal-NPDES)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY and
)
VILLAGE OF WAUCONDA,
)
)
Respondents.
)
Printed on
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AL PHILLIPS,
VERN
MEYER, GAYLE DEMARCO,
)
GABRIELLE MEYER, LISA O’DELL, JOAN LESLIE,
)
MICHAEL DAVEY,
NANCY DOBNER,
MIKE POLITO,)
WILLIAMS PARK IMPROVEMENT ASSOCIATION,
)
MAT SCHLUETER,
MYLITH PARK LOT OWNERS
)
ASSOC., DONALD KREBS, DON BERKSHIRE,
)
JUDY BRUMME,
TWIN
POND
FARMS
)
HOMEOWNERS ASSOC., JULIA TUDOR,
)
CHRISTINE
DEVINEY,
)
)
Petitioners,
)
)
V.
)
PCB
05-59
)
(Permit Appeal-NPDES)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
STIPULATION
Petitioners Village of Lake Barrington, Cuba Township, Prairie Rivers Network,
Sierra Club,
Beth Wentzel and Cynthia
Skrukrud (sometimes “Settling Petitioners”), and
Respondent Village ofWauconda (“Wauconda”),
have agreed to the making of this
Stipulation and submit it to the. Illinois Pollution Control Board (“Board”) for consideration
in
the proceedings reviewing the Wauconda NPDES permit.
The parties agree that the
statement of facts contained
herein represents a fair summary of the record currently
under review by the Board and that would be presented by the parties if a hearing were
held and that the permit modifications
proposed are based on the record in the permit
proceeding
below and represent an environmentally responsible resolution of the issues
raised
in that proceeding.
Wauconda agrees to be bound by the provisions
agreed
to in
this Stipulation and agrees not to contest their validity in
any subsequent proceeding to
implement or enforce their terms.
Wauconda
further
agrees to accept an NPDES
permit in accordance with the provisions of the Intergovernmental Agreement.
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I.
JURISDICTION
The
Board has jurisdiction ofthe subject matter herein and of the parties
consenting hereto pursuant to the Illinois Environmental Protection Act (“Act”), 415 ILCS
5/1
et seq.
(2004).
II.
AUTHORIZATION
The undersigned representatives for each
party certify
that they are fully
authorized by the
party
whom
they represent to enter into the terms
and conditions of
this Stipulation and to legally bind them to it.
S
ill.
STATEMENT OF FACTS
A.
Parties
1.
On September 17, 2004,
a Petition was filed by the Settling Petitioners
pursuant to Section 40(eXl) of the Act, 415
ILCS
5140(eXl)(2004),
against the lijinois
Environmental Protection Agency (Illinois EPA”) and Wauconda to
review the August
23, 2004 decision of the Illinois EPA to issue a modified National
Pollutant Discharge
Elimination
System (“NPDES”) permit (Permit IL 0020109) to Wauconda (referred
to
herein as “the Modified
Permit”).
2.
The Village of Lake Barrington (“Lake Barrington”) is an
Illinois Municipal
Corporation and is located in
Lake County.
It
borders
Fiddle Creek
on the north and is
downstream of the Wauconda
discharge.
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3.
Cuba Township is a township
existing
under the laws ofthe State of
Illinois and
is located
in
Lake County.
Fiddle Creek runs through Cuba Township
downstream of the Wauconda
discharge.
4.
Lake Barrington and Cuba Township (the “Governmental Petitioners”)
were significant participants in the public proceeding on the Wauconda permit and in
subsequent comments.
The Governmental
Petitioners retained a technical expert to
assist in
their presentation and presented extensive technical documentation~
5.
Prairie Rivers
Network is
an Illinois
not-for-profit corporation concerned
with river conservation and water quality issues in Illinois.
Prairie Rivers Network
members live in
the
Fiddle Creek and Fox River Watersheds.
6.
Sierra Club is
a California not-for-profit corporation, which has among
its
•
purposes to protect
thid
restore the quality of the natural and human environment and
submitted comments on the
proposed permit.
7.
Beth
Wentzel
is a member of and a
watershed scientist with the Prairie
Rivers
Network
and submitted comments on the proposed
permit.
8.
Cynthia Skrukrud
is a member of the Sierra Club and a clean water
advocate for that
organization.
She presented testimony for the record
in this matter
and
submitted comments on the proposed
permit.
9.
Prairie Rivers Network,
Sierra Club,
Beth Wentzel and
Cynthia Skrukrud
(the “Environmental Group Petitioners~)
presented significant testimony for the record
and
in comments thereafter as to the technical
issues
raised by the Wauconda permit
and their significance for environmental policy
in
Illinois.
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10.
The Illinois
EPA is an administrative
agency of the State of
Illinois, created
pursuant to Section 4 of the Act,
415
ILCS 5/4 (2004).
11.
The Village of Wauconda is an Illinois
Municipa’ Corporation and is
located
in
Lake County.
B.
Site Description
and Permitting
Process
1.
Wauconda owns
and operates a Wastewater Treatment Plant (“WWTP”)
pursuant to NPDES
Permit IL
0020109.
Wauconda’s
WWTP
discharges to Fiddle
Creek, tributary to the Fox River.
2.
Pursuant to an application by Wauconda, on August 23, 2004,
Illinois EPA
modified
Wauconda’s
NPDES Permit to allow upgrades, improvements and
expansion
S
of Wauconda’s WWTP.
Pursuant to the Modified Permit, Wauconda is permitted to
increase the capacity of its
WWTP
in
two
stages.
In Stage
1, the
WWTP
will be able to
increase
its throughput from
1.4
million gallons per day (“MGD”) to
1.9 MGD.
In
Stage
2,
the
WWTP
will be able to increase its
throughput from
1.9
MGD tà 2.4 MGD.
3.
A public proceeding was held by the Illinois EPA on
Wauconda’s permit on
September
9, 2003.
The Governmental Petitioners and the Environmental Group
Petitioners were significant participants in the publicproceeding and in subsequent
comment
process.
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C.
Governmental and Environmental Group Petitioners Claims
At the public proceeding
and
in their comments to Illinois EPA, and in their
petitions to the
Board,
the Governmental and Environmenta’ Group Petitioners
have
raised legal and
scientific issues regarding the draft permit including the following:
1.
The permit allows discharges
of phosphorus and nitrogen that cause,
have reasonable potential
to cause, or contribute to violations-of the water quality
standards regarding offensive conditions,
35
III. Adm. Code 302.203,
in
violation of
40 CFR 122.44(d) and 35 III. Adm. Code
309.141.
2.
The permit allows
discharges that may cause,
have a
reasonable potential
to cause, or contribute to violations of state water quality standards regarding dissolved
oxygen (“DO”), 35
III. Adm.
Code 302.206, in violation of 40 CFR 122.44(d) and
35
Ill.
Adm.
Code 309.141.
3.
The permit and the Illinois EPA assessments did not comply with Illinois
antidegradation rules
protecting the existing
uses of the receiving waters.
35 Ill. Adm.
Code 302.105(a).
4.
The Illinois EPA
assessment fails to include the analysis of aJternatives
required by 302.105(f).
5.
Illinois EPA’s antidegradation
assessment was insufficient under
302.105(f) by failing to consider impacts to biological communities,
increased
loadings,
or alternatives or by providing a showing of benefits
which fully justify the project.
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6.
Illinois EPA’s permit
analysis, including its 2003 antidegradation
assessment, fails to address the impact of the discharge
on the
Fox River, an impaired
waterway.
7.
Fiddle Creek should
be
considered an impaired waterway for nutrients,
phosphorus and total
nitrogen, and low DO and should be subject to federal
requirements for such waters.
8.
In light of the existing
problems with
Fiddle Creek
and
its wetlands and the
Fox River, the pounds per day of TSS, BOD5,
ammonia, and total nitrogen discharged
by the
WWTP
should
not be permitted to exceed the levels in the prior Wauconda
permit,
i.e.
no net increase.
9.
In light of the wetland impacts already experienced, Wauconda should be
•
required to develop, with the concurrence of its wetland neighbors, a wetland
management plan to maintain and restore the Fiddle Creek wetlands.
10.
Plant and algal growth along Fiddle Creek,
stimulated
by excessive
nutrients,
has impeded the capacity ofthe creek during
high flow conditions,
causing
flooding.
Wauconda should
be required to limit discharges,
both loading and hydraulic,
to reduce such impacts and should
be required to contribute to the maintenance of such
waterway.
11.
The IEPA permit fails to require Wauconda to implement a pretreatment
program for its industrial dischargers.
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D.
Wauconda’s Position on
Settling
Petitioners Claims
Wauconda
believes NPDES Permit IL 0020109 fully complies
with both
applicable federal and state law and was properly issued and modified
by Illinois EPA.
Nevertheless, Wauconda desires to resolve
its dispute with respect to the Settling
Petitioners’ claims.
E.
The Settlement Efforts
The Settling Petitioners and Wauconda have undertaken a lengthy settlement
process to achieve a possible resolution of their dispute over the Wauconda
permit.
Technical
experts have been consulted.
A variety of public views have been solicited,
environmental groups in addition to the Environmental Group Petitioners have been
•
involved and a wide spectrum of public input has been obtained.
Wauconda
and the
Settling
Petitioners
believe their process has led to
a successful resolution of difficult
community-based environmental problems.
This process
has resulted
in the
Intergovernmental Agreement described
below.
IV.
TERMS OF
SETTLEMENT
A.
Intergovernmental Agreement
1.
On
December
17,
2004,
Lake Barrington,
Cuba Township and Wauconda
entered into an Intergovernmental Agreement (“IGA”), a
copy of which
is attached
hereto as Attachment A and incorporated
herein by reference thereto.
Pursuant to the
IGA, Wauconda
has agreed, among other things, to increase the treatment efficiency of
its
WWTP
during both the Phase
I
and Phase 2 construction,
such that there will be no
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S
net increase in the loads
in Fiddle
Creek of CBOD5 and Suspended Solids, and
Wauconda
has also agreed in
the IGA to seek a further modification of its
NPDES
Permit to implement these revised load
limits.
Wauconda
has also agreed to install four
groundwater monitoring wells and to periodically test both the wells and its effluent as
specified
in
the IGA.
Pursuant to the IGA, Wauconda has also agreed to design nitrate
removal capabilities for the Phase
1
and Phase 2 expansion of its
WWTP.
Wauconda
agrees to fully comply with the
Modified
Permit as issued by Illinois EPA and the
additional requirements ofthe
IGA.
2.
Wauconda has also agreed to take certain additional actions, including the
implementation of nitrate removal and the enhancement of Fiddle Creek,
contingent on
grant funding and dismissal of all permit appeals.
The parties to the
K3A will work
together
to secure the grant funding to support these efforts.
B.
Enforceability of the
Intergovernmental Agreement
By
virtue
of being signatories to this Stipulation,
all of the Settling Petitioners
shall have the authority to enforce the terms
and conditions of VGA, whether or not they
are signatories thereto.
C.
Dismissal of PCB 05-55 and Action by the Board
1.
In consideration ofWauconda’s agreement to commitments contained in
the IGA,
upon the
Pollution Control Board’s acceptance and approva’ ofthe terms of
this
Stipulation or sooner,
when and if so requested by Wauconda, the
Settling
Petitioners shall dismiss their petition in case number PCB 05-55 with prejudice.
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2.
Wauconda and the Settling Petitioners believe that this Stipulation
and the
IGA properly address all
of the environmental issues raised by the permit and this
Stipulation and the IGA
constitute an environmentally responsible resolution of the
issues raised
in the permit proceedings below.
D.
Correspondence,
Reports
and Other Documents
Any and all correspondence,
reports and any other documents required under
this Stipulation,
shaH be submitted
as follows:
For Village of Lake Barrington:
For Cuba Township:
Christopher Martin
Priscilla
H. Rose
Village Administrator
Town Clerk
Village of Lake Barrington
Town of Cuba
23860 Old
Barrington Rd.
28000 W. Cuba Rd.
•
Lake Barrington,
IL
60010
Barrington,
IL
60010
Percy Angelo
Mayer, Brown, Rowe & Maw
LLP
For Prairie Rivers Network:
190 S.
LaSalle St.
Chicago,
IL
60603
Prairie Rivers Network
809 S.
5th
St.
James Bateman
Champaign,
IL
61820
600
Hart
Road, Suite 260
Barrington,
IL
60010
For Beth Wentzel:
For Sierra
Club:
809 S.
5th
st.
Champaign,
IL
61820
Sierra Club
200 N.
Michigan
Ave.
For Cynthia
Skrukrud:
Suite 505
4209 W. Solon Rd.
Chicago,
IL
60601
Richmond,
IL
60071
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For Village of Wauconda:
Daniel Quick
Rudolph
Magna
Village Administrator
Magna & Johnson
101
N.
Main Street
495 N. Riverside Drive
Wauconda,
IL
60084
Suite 201
Gurnee,
IL
60031
William D.
Seith
Total Environmental Solutions,
P.C.
631
E. Butterfield
Rd.
Lombard,
IL
60148
E.
Modification of Stipulation
The parties
may,
by mutual written
consent, agree to modify the terms of this
Stipulation.
A request for any modification shall be made in writing and submitted
to the
contact persons
identified
in Section VIlI.D.
Any such
request shall be made by
separate document, and shall not be submitted
within any other report or submittal
required by this Stipulation.
Any such agreed modification
shall be
in writing, signed by
authorized representatives of each party, and then
accompany a joint motion to the
Illinois
Pollution Control Board seeking a
modification of the prior order approving and
accepting the Stipulation to approve and accept the Stipulation as amended.
F.
Enforcement of Board Order
1.
Upon the entry
of the Board’s
Order approving and accepting this
Stipulation, that Order is a
binding and enforceable order of the
Illinois
Pollution Control
Board and may be enforced by the Settling Petitioners as such through any and
all
available means.
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2.
Wauconda
agrees that
notice of any subsequent proceeding to enforce
the Board Order approving
and
accepting this Stipulation may be
made
by mail and
waives any requirement of service of prdcess.
3.
The
parties agree that,
if the
Board does
not approve and
accept this
Stipulation, then this Stipulation
shall nonetheless remain
in full force and effect as
a
binding Settlement Agreement among the parties
hereto.
4.
It is the intent of the Settling Petitioners and
Wauconda that the provisions
of this Stipulation and any
Board Order accepting
and
approving such
shall
be
severable,
and
should
any
provision be declared
by
a court of competent jurisdiction to
be inconsistent with state or federa~law,
and
therefore unenforceable,
the remaining
dauses shall remain in full force and effect.
5.
This Stipulation
may be executed in
one or more counterparts, which
counterparts, when affixed
together,
shall constitute one and the
same document.
WHEREFORE, the foregoing
Stipulation represents an environmentally
responsible resolution of the
issues raised in
permit proceeding
below and the Settling
Petitioners
and Wauconda request that the
Board adopt and accept the foregoing
Stipulation as written.
For Village of Lake Barrington:
For Cuba Township:
A
________
‘Doroth~H~~hofie~d
,//
7
Q~i(~
Nelson
Village
Pesident
(
Supervisor
Date:
-
Date:
_t~S°s
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For Prairie Rivers Network:
Director
Date:~f~
~
(oc
Beth Wentzel:
Date:
For Viii
l/3/ô?-’
age ofWauconda:
46hJ’Darin
LDtIector,
lIIino~sChppter
Date:._________
Cynthia Skrukrud:
Date:
James
Eschenbauch
Village President
Date:
_____________
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.
.
S
For Prairie Rivers Network:
For Sierra Club:
Jean Flemma
John Darin
Executive Director
Director,
Illinois Chapter
Date:
_________________________
Date:
__________
Beth Wentzel:
Cynthia
Skrukrud:
Date:
_________________________
Date:
—
For Village of Wauconda:
iia~i~hIth
Date:
/—
I;-/—~~3
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.
Attachment A
S
S
8-16278
INTERGOVERNMENTAL AGREEMENT BETWEEN
THE VILLAGE OF LAKE BARRINGTON, THE VILLAGE OF WAUCONDA
AND THE TOWNSHIP OF CUBA RELATIVE TO FIDDLE CREEK
TIlTS INTERGOVERNMENTAL AGREEMENT (this
“Agreement”), made and
entered
into this
17th day ofDecember, 2004, pursuant to
authority ofthe Illinois
Constitution and State
Statutes,
by
and
between
the
Village
of
Wauconda,
an
flhinois
Municipal
Corporation
(hereinafter referred to
as “Wauconda”),
the Village of Lake Barrington,
an
Illinois Municipal
Corporation
(hereinafter
referred
to
as
“Lake
Barrington”),
and
the
Township
of
Cuba
(hereinafter referred to as the “Township”):
WITNESSETH:
WHEREAS, Article VII, Section
10, ofthe Constitution of the State of illinois of 1970,
provides that units of local government may contract or otherwise associate among themselves to
exercise,
combine, or transfer any power or function in aa~y
manner not
prohibited by law or by
ordinance
and
may
use
their
credit,
revenues,
and
other
resources
to
pay
costs
related
to
intergovernmental
activities
and
5
1LCS
220/1
et
seq.
(1997)
further
authorizes
•
Intergovernmental
Cooperation;
and
WHEREAS,
the
Village
of
Wauconda
was
issued
on
August
23,
2004
a
National
Pollutant Discharge Elimination System (hereinafter “NPDES”) pemiit
(the “Expansion NPDES
permit”)
with
the
Illinois
Environmental
Protection
Agency
(hereinafter
“1EPA”)
for
the
Wauconda Waste Water Treatment
Plant (hereinafter “the Facility”
or “the Wauconda WWTP”)
to
discharge
effluent
into
waters
of the
State of flhinois
and
to
allow
an
increase
in
effluent
volume to
be
discharged from
the Facility into a heavily
channelized drainage-way commonly
known as Fiddle Creek (hereinafter ‘Piddle Creek”),
an intermittent
receiving
stream which
is
tributary to the Fox River; and
.
WHEREAS, Wauconda currently discharges to Fiddle Creek pursuant to
NPDES Permit
1L0020109,
which
allows
it
to
discharge
into
Fiddle
Creek
at
Anderson
Road
within
Lake
Barrington; and
WHEREAS, Fiddle Creek passes
along the Northern corporate
limits of and adjacent to
residential
areas
within
Lake
Barrington
and
within
the
Township
and
is
accessible
to
the
Lake.land
Estates
and
Twin Pond Farm
residential
subdivisions
within Lake
Barrington
as
well
as
Lake County
Forest Preserve
District property;
and
WhEREAS,
Wauconda,
Lake
Barrington,
the Township
and its
residents are concerned
that
the discharge from
the Facility be
carefully
treated,
monitored
and
controlled
so
as
to
not
adversely
affect
the
health,
sanitation,
and
welfare
of
the
residents
of
Wauconda,
Lake
Barrington,
the
Township;
and
WHEREAS, while there is
disagreement among the parties as to the
environmental
impact
this
increase
in. pollutant loading
and flow will have, Wauconda, Lake Barrington,
and the T ownship have
common goals o fprotecting and p reserving the environment as
well as being good neighbors; and
WHEREAS,
Wauconda,
Lake
Barrington,
and
the
Township
also
share
the
common
goal that
the Facility be
improved,
operated,
and
maintained
in
such
a manner
that
its
sewage
treatment
operations
will
represent
a
model
for
protection
of
environmentally sensitive areas; and
WHEREAS,
the
Parties
hereto
understand
and
agree
that
in
order
to
make
it
feasible
to
provide
certain
additional
water
purification
objectives
and
related
improvements,
funds
for
the
design
and
construction
thereof
must
be
obtained
from
sources other
than the general or special funds and accounts ofthe Parties;
and
WHEREAS,
it has
been
determined by
the
respective
governing
boards
andlor
corporate
authorities
of
Wauconda,
Lake
Barrington,
and
the
Township
that
this
Agreement is in the best interests ofeach ofsaid units oflocal government; and
WKEREAS,
Wauconda,
Lake Barrington, and
the Township
have by
appropriate
action
of their
respective
governing boards
andlor
corporate
authorities,
authorized
the
execution and delivery ofthis Agreement.
NOW,
ThEREFORE,
upon
the
consideration
of the
mutual
promises
contained
herein
and upon
the recitals hereinabove set forth,
it is hereby agreed among Wauconda,
Lake Barrington, and the Township
as follows:
1.
Recitals.
The parties hereto fmd that the recitals to this Agreement are
true and
correct
and
that
each of the foregoing recitals
is
hereby incorporated herein the
same as if eachhad been set forth in its
entirety in the body ofthis
Agreement.
•
2.
Reports.
From
and
after the effective
date of this
Agreement,
copies
of
discharge monitoring reports
(“DMRs”)
and
other
periodic reports required to
be filed
by Wauconda with any county,
state or federal agency relating to
the Facility, its operation,
and
NPDES
permit Number
1L0020109
shall be
forwarded
at the time
of submission of
such
reports
to
such
agencies,
to
the
Village
Clerk
of Lake
Barrington
for
a
period
beginning on January
1, 2005, and ending on December 31, 2014.
Thereafter, such reports
will be
forwarded by
Wauconda to
the
Village
Clerk of Lake Barrington annually for all
subsequent
annual periods
ending December
31.
The
initial
and
amended
construction
schedules,
when
available,
for
the Phase I
and Phase II
WWTP expansion
shall
also
be
provided to
Lake
Barrington.
3.
Tn
consideration for the undertakings by
Wauconda
as herein
set
forth
and
as set forth
below,
Lake Barrington and the Township agree to cooperate with Wauconda
and
withdraw
their prior
objections
to
and
appeals relative
to
Phase I
and
Phase II of
Wauconda’s Expansion NPDES Permit(s), to wit:
20\74.43\SEWERPLA\00009792.DOC)
-2-
A.
Wauconda
agrees
that as part of its
Phase I treatment plant
expansion to
a
design
average
flow
of
1.9
MGD,
and
provided
that
the NPDES
Permit
remains
otherwise
valid
and
substantially
unmodified
by
the
present
proceedings
before
the Pollution
Control Board,
to
wit:
IPCB
docket nos.
05-55;
05-58
and
05-59
(hereinafter
referred
to
as
the
“present
IPCB
proceedings”),
except
as agreed to by
Wauconda in
this
Agreement and/or
by
stipulation
approved by
Wauconda
in
said
present
PCB
proceedings,
Wauconda shall install,
maintain, and keep in operation such equipment and
other
Facility
improvements
as
necessary
to
provide
loading
limits
on
Fiddle Creek
of
117
lbs/day for CBOD5,
and
140
lbs/day for
suspended
solids based on annual averages, and
achieve a
1
mg/L phosphorus level
based on a monthly average, and shall
request
and accept an NPDES permit
incorporating
such
limits for the Phase I operations.
The Parties recognize
that the August 23, 2004 NPDES permit
allows for the discharge of almost
double the load of 117
lbs/day for CBOD5,
and
140 lbs/day for suspended
solids and requires that the effluent achieve a
1
mg/L phosphorus level,
all
based
on monthly averages.
Wauconda shall use its best efforts to
achieve
the
lower,
designed
discharge
limits
on
an
annual
average.
Wauconda
agrees
that
it
shall
make
these
design
capabilities
part
of
the
IEPA
construction permit for the Phase I and Phase II treatment plant expansions
and
Wauconda
shall
operate
these
facilities
as
efficiently
as practicable.
The standards established under this Paragraph A shall be can-ied forward to
the
Phase
II
design,
improvements,
and
operations.
To
the
extent
that
unanticipated
costs
are required
to
be
incurred
by
Wauconda
in
order
to
carry forward the loading
limits
as
stated in this Paragraph A to Phase II,
Wauconda and
Lake Barrington will cooperate
and
utilize
their respective
best
efforts
in
attempting
to
secure
grant
funding
for
such unanticipated
costs,
but
Wauconda’s
obligations
under
this
Paragraph
A
shall
not
be
contingent on the success ofsuch efforts.
B.
Wauconda has
already
designed
and
it
shall
install
as
part
of Phase
I,
effluent
disinfection capabilities to meet the NPDES
fecai coliform
limits,
and Wauconda’s Facility shall, beginning with the date of operation of the
Phase I improvement, meet these fecal
coliform
limits
in
accordance with
its
NPDES
permit.
Until that
time, Wauconda
shall remain
in
conformity
with its current NPDES permit
limitations on fecal coliform.
These effluent
disinfection
capabilities to meet the NPDES
fecal
coliform
limits
shall be
carried forward to the Phase II improvements and operations and the related
NPDES permit.
C.
Wauconda
has
developed
an
industrial
discharge
and
pretreatment
monitoring
program
and
Wauconda has secured approval of this
program
from the appropriate regulatory agencies.
Wauconda agrees to maintain
the
operation of
this program and comply with the regulations ofthe applicable
regulatory authorities pertaining thereto.
~2O\74.43’SEWERPLA\OOOO9792.DOC)
-3-
D.
Wauconda has designed,
and has obtained NPDES permit
approval for, and
shall install, as part ofPhase
1, sufficient
aeration capabilities to maintain
6
mg/L dissolved oxygen at the point the effluent enters Fiddle
Creek.
These
aeration capabilities
shall be carried
forward to the Phase II improvements
and
operations
and therelated NPDES permit.
E.
Wauconda, Lake Barrington, and Cuba Township agree that, within the next
year following the execution ofthis Agreement, they shall jointly cooperate
with
each
other
and
take
such
separate
and/or
collective
action
as
reasonably necessary
to
jointly
locate,
install,
operate,
and
maintain,
at
Wauconda’s
expense,
four
(4) monitoring
wells
at mutually agreed
upon
locations,
and
Wauconda
shall,
at
Wauconda’s
expense,
periodically
test
both
the
Wauconda
WWTP
effluent
and
the
water
quality
of
said
monitoring wells as described below:
(1)
Within
the
i nitial
year following the execution oft his A greement,
Wauconda
shall
quarterly
test
the
effluent
from
the
Wauconda
WWTP
for
Priority
Pollutants
plus
Tentatively
Identified
Compounds
(including
but
not
limited
to
MTBE),
Endocrine
Disrupters,
Fecal
Coliform,
E-Coli
Bacteria,
and
Nitrates.
The
availability
of
commercial
laboratory
testing
for
endocrine
disrupters is evolving and will expand from year to year.
Initially,
at
a minimum, testing shall include USEPA Method
525.2
for semi-
volatile synthetic organic compounds.
(2)
After the
installation of the
above-described monitoring
wells,
and
upon
completion
of
the
quarterly
effluent
testing
described
in
Subparagraph E(1), the monitoring wells shall be tested quarterly for
one
year by Wauconda
for those
compounds
or substances
listed in
Subparagraph
E (1)
above
which were
d etemiined to b e present in
the
Wauconda
WV~TTP’s effluent
based
on
the
initial
year
of
quarterly
testing
of
Wauconda’s
WWTP
effluent,
aiid
for
any
chlorinated solvents detected, the knownproducts of degradation.
(3)
After the first year of operation of the monitoring wells, the effluent
from
the Wauconda WWTP shall be tested by
Wauconda
annually
for
Priority
Pollutants
plus
Tentatively
Identified
Compounds
(including but
not
limited
to
MTBE),
Endocrine
Disrupters, Fecal
Colifomi,
E-Coli
Bacteria,
and
Nitrates,
and
all
such
testing
shall
occur during the Wauconda WWTP’s low flow period.
(4)
The water in
each of the monitoring wells,
after_the initial
year
of
quarterly
testing
described
in
Subparagraph
E(2)
above,
shall
be
tested
annually
by
Wauconda
for
any
Priority
Pollutants
plus
Tentatively
Identified
Compounds
(including
but
not
limited
to
•
MTBE), Endocrine Disrupters, Fecal Coliform, E-Coli Bacteria, and
Nitrates detected during the effluent testing for that year, and for any
chlorinated solvents detected,
the
known
products of degradation.
20\74.43\SEWERPLA\00009792.DOC)
-4-
Lake Barrington shall have the right to be
present
for the collection of all
effluent
and
monitoring
well
water
samples
which
are
collected
for the
testing contemplated by
this Paragraph (E), as well as for the testing ofsuch
samples, and for these purposes, Wauconda
shall provide Lake Barrington
with reasonable notice thereof.
Lake Barrington shall also have the right to
collect
and test
its
own samples
from
said
monitoring
wells
at
the
same
time, at its own expense. All information gathered through such effluent and
monitoring well testing
shall not be
considered the proprietary
information
of
any
parties,
and,
upon
receipt
by
Wauconda
in
written
form;
such
information
shall
be
promptly
shared
with
the
other
parties
to
this
Agreement
and such information shall be considered part ofthe permanent
public records of
the Village ofWauconda.
F.
Wauconda
shall,
at
its
expense, upon
the effective date of this
Agreement,
•
design nitrate removal capabilities for the Phase I and Phase II expansion of
its t reatnient p laxit.
T he Phase
II expansion o fthe treatment plant to
2 .4
MGD
design
average
flow
by
Wauconda
shall
include
nitrate
removal
capabilities,
provided
that
Wauconda
receives
complete
grant
funding
through
state or
federal
sources
for the
design,
equipment
and
facilities
necessary t o a chieve such nitrate removal, and, in such event, W auconda
shall not
delay the operation of the nitrate
removal
facilities
beyond the
later of January
1,
2007
or the
commencement of the
PhaseII
expansion
and shall operate such nitrate
removal facilities
to assure no net increase
over existing nitrate loading.
For
the purposes ofthis ParagraphF, “full” or
“complete” grant of funding shall not include
design costs incurred prior to
the
approval of a
grant
agreement, provided,
however,
such
design
costs
may be
applied for within the facilities grant application,
or byway ofa
separate
grant
application,
but
the
receipt
of
grant
funding
for
reimbursement of said
design costs,
from
whatever
source,
shall not be
a
condition
to
Wauconda’s
obligations
as
provided
in
this
Paragraph
F.
Wauconda
agrees
that
in
the event
full
funding
is
obtained
for
the
said
nitrate
removal
facilities,
then
Wauconda
sha~ll make
these
design
capabilities part of the TEPA construction permit for the Phase II treatment
plant
expansion.
In
the event full funding
is
obtained
for nitrate removal
within
a time
frame
which
is
reasonably
timely in
order
to
make
these
design
capabilities
part
of the
IEPA
construction permit
for
the Phase
I
treatment
plant
expansion,
then
Wauconda
shall
include
such
nitrate
removal capabilities
as
part ofthe Phase I expansion. Wauconda
shall also
request and accept an NPDBS permit modification incorporating such limits
for
its
Phase II operations,
and
at the
same time
as
said
NPDES
permit
modification, Wáuconda
shall
also request and
accept a
Special Condition
to
the modified NPDES
permit
requiring Wauconda to
monitor
TKN and
Nitrate-N one day per week
in both
its
iniluent
and
effluent. In
addition,
during
the initial year
after this
Agreement becomes
effective,
Wauconda
shall monitor
TKN and
Nitrate
one day per month
in
both its
influent
and
20\74.43\SEWERPLA\00009792.DOC)
-5-
effluent to
establish
base line
data for this provision.
For the purposes of
this Agreement,
the term “no net increase”
shall mean as measured on
an
annual average
basis,
no
increase
in
nitrate
loading
over
the
quantity
of
nitrates
currently containedin the effluent from the Wauconda WWTP”.
G.
Additionally,
Wauconda,
Lake
Barrington,
and
the
Township
agree
to
cooperate to jointly attempt to secure grant funds for the following purposes
and
to
apply
such
grant
funds
so
obtained
according
to
the
following
hierarchy
of
priorities
to
the
greatest
extent
permitted
by
applicable
authorities:
(1)
to
reimburse
Wauconda
for
the
cost
of design,
acquisition
and
installation
of
such
equipment
necessary
aiid
other
Facility
improvements
so
as
to
effect
nitrate
removal
from
the
Facility’s
effluent, as stated in Paragraph 3(F);
(2)
to
provide funds for planning,
flow restoration and natural resource
management
of
the
Fiddle
Creek
wetland
complex
and
Slocum
Drainage Ditch in
consultation with relevant environmental
groups,
including but not limited to, Citizens for Conservation, Inc.
Similarly, to the extent that grant resources are available from time to
time,
Lake
Barrington,
Wauconda
and
the
Township
agree
to
undertake
in
a
cooperative effort with the
Slocum Drainage District,
or its
successor, the
efforts described in (2) above.
4.
The Parties agree that in the future,
as circumstances change and
develop,
they each will continue
to be
engaged in matters related to the environmental protection of
Fiddie
Creek,
the
Fox
River
and
associated
waters,
including,
but
not
limited
to
proceedings before the Illinois Environmental Protection Agency and the Illinois Pollution
Control Board.
Nothing in
this Agreement shall be construed as a bar
to such activity by
either party or as
an admission by either
party with respect to
any matter, except that this
Agreement
shall
constitute
a
complete
resolution
and
settlement
of
the
present
PCB
proceedings as between theParties hereto, and a stipulation reflecting all or a portion ofthe
terms
of this
Agreement may
be
entered of record
in
the present PCB
proceedings
if
requested by Wauconda.
5.
Remedies.
It is agreed that a breach ofthis Agreement by one party may
cause in~eparableinjury to
the
other party
and
that,
in
the
event of a breach,
a party
so
injured shall
be
entitled,
without limiting
its
rights,
to seek
injunctive
relief against
said
breach in the Circuit Court ofLake County.
Further, each party hereto shall have all rights
and remedies
available at law or in equity in any litigation or administrative proceeding in
connection with their respective obligations under this
Agreement.
Nothing herein shall
be
construed
to
require
one
party to
pay
any
costs,
charges,
and
expenses,
including
attorneys’
fees,
related
to
any
litigation,
administrative
proceeding,
negotiation,
or
transaction that results
from the unlawful,
or negligent or willful act or omission to act of
.
~2O\74,43\SEWERPLA\OOOO9792.DOC
-6-
the
other party(ies)
or their respective
officers,
agents or
employees
in c onnection
with
carrying out such obligations of other parties under this Agreement.
6.
Notices.
All
notices,
requests,
demands,
and
other
communications
(collectively, “Notices”)
hereunder shall be in writing and given by
(i) established express
delivery service which
maintains
delivery records,
(ii) hand
delivery, or (iii)
certified or
registered
mail,
postage p repaid, return receipt requested,
to
the parties
at the
following
addresses,
or at such other address
as the parties
may designate by Notice in the
above
manner:
To Wauconda:
To Lake Barrington:
To Township ofCuba:
Village of Wauconda
Village ofLake Barrington
Cuba Township
101 N.
Main Street
23860 Old Barrington Road
28000 W. Cuba Road
Wauconda, IL 60084
Lake Barrington, IL
60010
Barrington, IL 60010
Attn:
Village President
Atm:
Village President
Attn:
Township
Supervisor
Notices may also be
given by fax, provided the Notice is concurrently given by one ofthe
above methods.
Notices are effective upon receipt; or upon attempted delivery if delivery
is
refused
or
impossible
because
of
failure
to
provide
a
reasonable
means
for
accomplishing delivery.
7.
Miscellaneous:
A.
Paragraph titles
are descriptive only and
do not
define or in any other way
limit the contents of each paragraph.
Words of the masculine gender shall
be read to
include
the feminine and neuter genders,
and
the
singular shall
include the plural.
B.
If any provision of this Agreement
shall be
declared invalid for any reason,
such invalidation
shall not
affect
any other
provisions
of this
Agreement
which
can be
given effect without the invalid provision
and to
that extent,
the provisions ofthis Agreement are severable.
C.
This Agreement shalibe governed bythe
applicable laws ofthe State
of
flhinois.
D.
This Agreement
shall be
binding on
all parties and may not be
modified or
amended orally, but only in writing signed by all parties hereto.
E.
The
parties
agree
to
reasonably
cooperate
in
a
good
faith
effort
to
implement
this
Agreement,
including but not
limited
to,
the joint filing of
such stipulations andlor other pleadings as appropriate for that purpose.
.
(20\74.43\SEWERPLA\00009792.DOC)
-7-
•
F.
In the event the Wauconda NPDES
Permit
as
currently written
is
affected
by
a
force
majeure
or
is
substantially modified
(except
as
agreed
to
by
Wauconda
in
this
Agreement
and/or
by
a
stipulation
andlor
settlement
agreement approved by Wauconda) in the present IPCB proceedings (IPCB
Docket No.
05-55, 05-58
and
05-59),
then the parties hereto will meet and
attempt to renegotiate in good faith this Agreement in its entirety in order to
endeavor, to the extent that it still may be possible, to
effect the
goals
and
purposes ofthis Agreement.
G.
This Agreement
shall become effective only upon
approval and
execution
hereof by all
the parties hereto on
or before December 21,
2004
and upon
the execution by Wauconda
and all
the appellants
in IPCB Docket No.
05-
55
of a stipulation and/or settlement agreement in the present
PCB
appeal
providing
for the withdrawal
forthwith
of said
appeal
and
the
objections
contained
therein,
which
stipulation
andlor
settlement
agreement
shall
include,
among
other things,
the
right
of all
of said
appellants
in
IPCB
Docket No.
05-55
to
enforce this Agreement. Anything in this Agreement to
the contrary notwithstanding, if all administrative and/or trial and appellate
court appeals on the subjectNPDES
p ermit are not exhausted within ten
(10)
months
of the
date
of
this
agreement,
then,
at
the
sole
option
of
Wauconda, Paragraph 3(F)
and
3(G) of this Agreement
shall be considered
null and void and ofno
effect.
H.
This Agreement
may be
executed
in
one’
or more
identical
counterparts,
which counterparts when affixed together, shall constitute one and the same
document.
IN WITNESS WHEREOF, the parties hereto have, pursuant to
the authority ofthe
respective
Boards
and/or
Corporate Authorities,
caused
this Agreement
to
be
executed,
attested and delivered by its duly authorized officers as ofthe date first mentioned above.
VILLAGE OF LAKEBARRINGTON
a mumicipal
corporation,
By:
________________
Its Village President
ATTEST:
Its Village Clerk
.
-8-
VILLAGE OF WAUCONDA,
amumCii
ATTEST:
AUGUST 18,
1877
‘I.;
ATMT
~
Its \il”erk
TOWNSHIP
OF CUBA
35708-1
CERTIFICATE OF SERVICE
It is hereby certified that true copies of the foregoing Stipulation were mailed, first
class, on January 10, 2005 to each of the following persons:
Dorothy M. Gunn
Bradley P. Halloran
Illinois Pollution Control Board
James R. Thompson
Center
100 W. Randolph St., Suite 11-500
Chicago,
IL
60601
Percy L. Angelo
Russell
R.
Eggert
Kevin G.
Desharnais
Mayer, Brown,
Rowe & Maw,
LLP
190 S.
LaSalle St.
Chicago,
IL
60603
Albert Ettinger
Environmental
Law and Policy Center
35
E. WackerDr.,
Suite 1300
Chicago,
IL
60601
Rudolph Magna
Magna & Johnson
495
N.
Riverside
Dr., Suite 201
Gurnee, IL
60031
847-623-5277
Sanjay Kumar Sofat
James Allen Day
Division
of Legal Counsel
Illinois Environmental Protection Agency
1021
North Grand
Ave.
East
P.O. Box 19276
Springfield,
IL
62794-9276
Bonnie L. Macfarlane
Bonnie Macfarlane,
P.C.
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
JS!~
William
D.
Seith
Total Environmental Solutions,
P.C.
631
E. Butterfield Rd., Suite 315
Lombard, IL
60148
m
Exhibit
B
Comparison of Issues Raised, IEPA Permit Response
and
Treatment by Stipulation and
IGA
‘~
For
the most part, comments
by
members of the Residents
Group were very general.
Mr.
Jay
Glenn,
who is not a
petitioner but
an
attorney for the petitioners, made several
comments as an individual.
Without addressing whether
Mr.
Glenn’s individual comments
may be imputed to the Resident
Group, they
are nevertheless included
as Resident
Group comments in this compilation for the sake of completeness.
Note
that
much
of Mr. Glenn’s submission, over 170 pages,
involved reporting by the Wauconda Sand & Gravel
Superfund Site,
presumably because it has a discharge to the
Wauconda WWTP.
The relevance of this information
to the permit
at
hand
was never
fully explained.
The pollutant associated with the Wauconda Sand & Gravel
Superfund Site is
vinyl chloride.
This compound
has been tested for in the effluent from the Wauconda WWTP, and
has not been detected.
References to IGA are
to the
sections of the
IGA, which is attached to, and incorporated
in,
the
Stipulation.
6
“Tr.” designates references to the
IEPA Proceeding Transcript.
“R” designates references to the
Record.
~
“Permit” references the permit at issue.
The JEPA Decision is found at R.2210 et seq. and
is cited “Decision.”
Issue Raised By Petitioners
IEPA
Permit Response
Stipulation and IGA5
(Lake Barrington and Cuba
Township designated as
“LB/CT.”
Sierra Club and
Prairie Rivers Network
designated as “SC/PR.”
Slocum
Lake Drainage District
designated as “District” and
Petitioners in 5-59 designated as
“Residents”)4
1.
Phosphorus
Removal.
Permit.
See e.g.
Decision7 R.2211.
Discharges of phosphorus and
nitrogen may contribute to water
quality
standard violations
regarding offensive conditions.
35
III. Adm. Code 302.203.
LB/CT:
Tr.61-73,73-76; R.249-
310,
1054-57, 2l02~l3.6
SC/PR:
Tr.151-54; R.
566-68,
1023-25, 1793-95.
Residents:
Tr.180-97; R.479-
80,
1069-70.
No net increase in
BOD5,
TSS load.
Wauconda will design
for Total Nitrogen
Removal
(“TNR”).
Parties will
seek funding
for TNR.
IGA(3)(A)(F).
Study ofDO
and
nutrients
in Fiddle Creek.
Possible permit
reopening.
See
e.g.
Decision R.2211.
Permit
Special
Condition
17.
THIS
DOCUMENT
HAS
BEEN PRINTED ON RECYCLED PAPER
Issue Raised By Petitioners
IEPA Permit Response
Stipulation and IGA
2.
~
Fiddle Creek shows evidence
that it is an Impaired Waterway.
Lake Barrington consultant,
Huff and Huff, supplied
monitoring results
showing DO
violations and nitrates plus
nitrites above IEPA use
impairment levels,
LB/CT:
Tr.57-60, 61-73, 73-
76; R.249-310, 441-44, 470-78,
569-73, 1054-57, 2102-13.
SC/PR:
Tr. 97-101;
R.163-64,
566-68, 1023-25,
1793-95.
Residents:
R.479-80, 578-828,
1069-70.
Phosphorus Removal.
Permit.
See e.g. Decision
R.22 11.
DO limits added.
Study of DO and
nutrients in Fiddle Creek.
Possible permit
reopening.
See e.g.
Decision R.2211.
Permit
Special Condition
17.
No net increase in
BOD5, TSS load.
Wauconda will design
for Total Nitrogen
Removal (“TNR”).
Parties will seek funding
for TNR.
IGA(3)(A)(F).
~
3.
Added
nitrogen
loading
upon
Fox Rivernot adequately
considered.
Fox River DT22
into which Fiddle Creek
discharges is impaired for
nitrogen, siltation, pathogens
and suspended solids.
LB/CT:
Tr.61-73, 73-76;
R.249-310, 470-78, 569-73.
SC/PR:
R.566-68,
1793-95.
Study
of
DO and
nutrients
in Fiddle Creek.
Possible permit
reopening.
See
e.g.
Decision R.22 11.
Permit
Special Condition
17.
No net increase in
BOD5/ TSS load.
Wauconda will
design
forTNR and Parties will
seek funding for TNR.
IGA(3)(A)(F).
4.
Water quality standards for
dissolved oxygen are being
violated below Wauconda
outfall.
Lake Barrington
consultant provided monitoring
results showing DO
exceedences.
LB/CT:
Tr. 57-60, 61-73, 73-
76; R.249-310, 470-78, 569-73,
1054-57, 2102-13.
SC/PR:
Tr. 97-101,
150-54;
R.566-68,
1023-25, 1793-95.
Residents:
Tr. 102-07.
DO limits added.
DO
monitoring required.
Study of DO and
nutrients in Fiddle Creek.
Possible permit
reopening.
See e.g.
Decision R at 2211.
Permit Special Condition
17.
BOD5 load limit held
constant.
IGA(3)(A).
Aeration of effluent
required.
IGA(3)(D).
B-2
THIS
DOCUMENT HAS BEEN
PRINTED ON RECYCLED PAPER
Issue Raised By Petitioners
IEPA Permit Response
Stipulation and IGA
Further degradation of Fiddle
Creek and wetlands due to
excessive nitrogen in
violation
of anti-degradation
requirements.
LB/CT:
Tr.
57-60,
6 1-73, 73-
76; R.249-310, 441-44, 470-78,
569-73,
1054-57, 2102-13.
SC/PR:
Tr.
97-101, 151-54;
R.163-64, 566-68, 1023-25,
1793-95.
Phosphorus
removal.
Permit.
See e.g. Decision
R.221 1.
Study ofDO and
nutrients in Fiddle Creek.
Possible permit
reopening.
See
e.g.
Decision R.2211.
Permit
Special
Condition
17.
Nitrogen removal
design
required.
Cooperation
to
secure funding for
nitrogen removal and
restoration of wetlands
and Slocum Drainage
Ditch.
IGA(3)(F)(G).
Impact on wildlife and plant
species and known threatened
fish species
in
Fiddle Creek.
LB/CT:
Tr. 61-73, 73-76;
R.470-78,
1054-57, 2102-13.
SC/PR:
R.163-64.
Residents:
R.479-82,
1029,
1069-70.
Phosphorus removal.
Permit.
See e.g. Decision
R.221 1.
DO limits added.
Study of DO and
nutrients in Fiddle Creek.
Possible permit
reopening.
See e.g.
Decision R.2211.
Permit
Special Condition
17.
No net increase in
BOD5,
TSS.
Nitrogen
removal design required.
Cooperation
to secure
funding for nitrogen
removal and restoration
of wetlands and Slocum
Drainage Ditch.
IGA(3)(A)(F)(G).
Antidegradation assessment
inadequate in that it was based
on September 15,
1993
stream
survey which identified elevated
levels of contaminants which
were not evaluated in
assessment.
Conditions not
evaluated as ofNovember 28,
1975
and impacts on pollutant
sensitive and endangered species
and possible alternatives not
considered.
Phosphorus and
nitrogen analysis deferred.
LB/CT:
Tr.
57-60, 6 1-73, 73-
76; R.249-310, 441-44, 470-78,
569-73, 1054-57,
2 102-13.
SC/PR:
Tr. 97-101,
151-54;
R.163-64, 566-68,
1023-25,
1793-95.
Phosphorus removal.
Permit.
See e.g. Decision
R.2211.
DO limits added.
Study ofDO and
nutrients in Fiddle Creek.
Possible permit
reopening.
See e.g.
Decision R.2211.
Permit
Special Condition
17.
No net increase in
BOD5, TSS.
Nitrogen
removal design
required.
Cooperation to secure
funding for nitrogen
removal and
restoration
of wetlands and Slocum
Drainage Ditch.
IGA(3)(A)(F)(G).
.
B-3
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
Issue Raised By Petitioners
IEPA Permit Response
Stipulation and IGA
8.
Permit does not require
Wauconda to implement
industrial pretreatment program.
Presence of Superfund Sites.
LB/CT:
R.569-73,
1054-57.
SC/PR:
R.163-64.
Residents:
Tr.48-53, 53-56, 61-
73, 180-97;
R.169,
35 1-87, 388-
421, 479-80, 487-88, 578-828,
1045,
1048-49, 1069-70, 1742,
1744-46.
Updated annual industrial
user survey required so
that need for pretreatment
program can be
reevaluated.
See e.g.
Decision R.2211.
Permit
Special Condition
8.
Wauconda will adopt
pretreatment ordinance
and implement program.
IGA(3)(C).
Wauconda will test
effluent for full priority
pollutants, pathogens and
endocrine disruptor
chemicals followed by
monitoring well testing
for detected compounds.
IGA(3)(E).
9.
~
Potential impacts on private
wells.
LB/CT:
Tr,
57-60, 6 1-73;
R.146-47, 23 1-39, 44 1-44, 470-
78, 569-73, 1054-57.
Residents:
Tr. 48-53,
180-97;
R.92-93,
142-44, 148-49,
169,
479-80, 578-828,
1029,
1069-70,
1742.
.
Updated annual industrial
user survey required so
that need for pretreatment
program can be
reevaluated.
See e.g.
Decision R.221
1.
Permit
Special
Condition
8.
Wauconda will test
effluent for full priority
pollutants, pathogens and
endocrine disruptor
chemicals followed by
monitoring well testing
for detected compounds.
IGA(3)(E).
Nitrogen
removal design required.
Cooperation to
secure
funding for nitrogen
removal and restoration
of wetlands and Slocum
Drainage Ditch.
IGA(3)(F)(G).
B-4
THIS DOCUMENT HAS BEEN PRINTED
ON RECYCLED PAPER
Issue Raised By Petitioners
IEPA Permit Response
Stipulation and IGA
10.
Alleged effluent, bypass and
odor violations by Wauconda
and distrust ofWauconda
monitoring,
LB/CT:
R.569-73.
Residents:
Tr.
53-56, 180-97;
R.351-87, 388-421, 479-80, 486-
88, 499,
556-60, 578-828, 1045-
46,
1048-49,
1069-70, 1742,
1744-46.
.
Permit is for upgrade of
Wauconda wwtp.
Updated annual industrial
user survey required so
that need for pretreatment
program can be
reevaluated.
Special
Condition
8.
~
Wauconda has adopted a
pretreatment ordinance
and implemented
program.
IGA(3)(C).
Wauconda will test
effluent for full priority
pollutants, pathogens
and
endocrine disruptor
chemicals followed by
monitoring well testing
for detected compounds.
Test results will be
shared and participants
may conduct own testing.
IGA(3)(E).
11.
Generalized concerns regarding
wetlands.
LB/CT:
Tr. 57-60; R.231-39,
441-44, 470-78.
Residents:
Tr.48-52,
180-97;
R.20, 52, 35 1-87, 388-421, 578-
828,
1069-70.
Phosphorus removal.
Permit.
See e.g. Decision
R.2211.
Study of DO
and
nutrients
in
Fiddle Creek.
Possible permit
reopening.
See
e.g.
Decision R.2211.
Permit
Special Condition
17.
No net increase in
BOD5, TSS.
Nitrogen
removal design
required.
Cooperation to secure
funding for nitrogen
removal and restoration
of wetlands and Slocum
Drainage Ditch.
IGA(3)(A)(F)(G).
12.
Stormwater/flooding impacts
due to excessive nutrients.
LB/CT:
Tr.73-76; R.441-44,
470-78, 569-73,
1054-57.
District:
Tr. 110-15.
Residents:
R.
142-44,
148-49,
479-80,
1069-70.
Phosphorus removal.
Permit.
See e.g. Decision
R.2211.
No net increase in
BOD5, TSS.
Nitrogen
removal design required.
Cooperation
to secure
funding for nitrogen
removal and restoration
of wetlands
and Slocum
Drainage Ditch.
IGA(3)(A)(F)(G).
B-S
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
Issue Raised By Petitioners
IEPA Permit Response
Stipulation and IGA
13.
Maintenance of Slocum Lake
Drainage Ditch.
LB/CT:
Tr.73-76; R.569-73.
District: Tr.1 10-15; R.437.
Phosphorus removal.
Permit.
See e.g. Decision
R.221
1.
Study of DO and
nutrients in Fiddle Creek.
Possible
permit
reopening.
Special
Condition
17.
.
No net increase in
BOD5, TSS.
Nitrogen
removal design required.
Cooperation to secure
funding for nitrogen
removal and restoration
of wetlands and Slocum
Drainage Ditch.
IGA3(A)(F)(G).
14.
~
15.
•
Wauconda should be required to
disinfect effluent.
SC/PR:
Tr.151-54, 213;
R. 163-64.
District:
Tr.
110-15; R.247.
Residents:
Tr.
48-53,
180-97;
R.20,
52,
92-93,
131,
142-44,
148-49, 23 1-39, 169, 486-88,
497, 578-828, 1744-46.
JEPA and Wauconda
announced that
Wauconda sought and
accepted permit
amendment to disinfect
effluent.
R.1076-77, 2215.
Effluent disinfection
is
being provided.
IGA3(B).
Wauconda discharges to
a
sensitive area of residences,
wetlands, forest preserve
property, and river access.
LB/CT:
Tr. 57-60, 441-44, 470-
78, 569-73, 1054-57.
SC/PR:
R.163-64.
Residents:
Tr.
180-97; R.92-93,
142-44, 148-49,
169, 35 1-88,
388-421, 578-828, 1742.
Phosphorus removal.
Permit.
See e.g. Decision
R.221 1.
Study of DO and
nutrients in Fiddle Creek.
Possible permit
reopening.
See e.g.
Decision R.2211.
Permit
Special Condition
17.
No net increase in
BOD5, TSS.
Nitrogen
removal design required.
Cooperation to
secure
funding for nitrogen
removal and restoration
of wetlands and Slocum
Drainage Ditch.
IGA(3)(A)(F)(G).
Effluent disinfection
will
be provided.
IGA3(B).
B-6
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
Issue Raised By Petitioners
IEPA Permit Response
Stipulation and
IGA
16.
Procedural due process and bias.
Cross-examination should
be
provided in IEPA Proceeding.
Insufficient
time to
testify.
Residents:
Tr.
180-97; R.169,
35 1-87, 578-828, 1742.
Wauconda given the
option
of answering
questions.
Questions
asked were in fact
answered,
and Mr.
Glenn
was allowed to testify
beyond any time limits.
See e.g. Tr. 26-27, 37,
48-52, 87-96, 102-_,
117-18,
148-50, 150-54,
159-61, 162-64, 166-70,
184-85,
190-91.
IEPA
followed hearing with
questions to
Wauconda
which were
answered.
Consider end to present
discharge.
“Plug the Pipe.”
Require merger with a
neighboring utility,
LB/CT:
R.569-73.
District:
R.247.
Residents:
Tr.
180-97; R.169,
556-60, 578-828, 1069-70, 1742,
1744-46.
Phosphorus removal.
Permit.
See e.g. Decision
R.221 1. Study of DO and
nutrients
in
Fiddle Creek.
Possible permit
reopening. See e.g.
Decision R.2210.
Permit
Special Condition
17.
No net increase in
BOD5, TSS.
Nitrogen
removal design required.
Cooperation to
secure
funding for nitrogen
removal and restoration
ofwetlands and Slocum
Drainage Ditch.
IGA(3)(A)(F)(G).
Effect
is to
limit
impact
of
permit revision.
Questions regarding
legality of request to end
the discharge.
Fear
of bypass to Bangs
Lake
drain to Slocum Lake.
Residents:
Tr.
180-97; R.487-
88, 498, 556-60, 578-828, 1042-
43,
1048-49.
Bypass to Bangs Lake not
possible.
Decision R.2220.
Unpermitted development in
Wauconda area.
IEPA must
require Wauconda to stop
approving developments.
Reckless
expansion
in
area.
Residents R.578-828,
1042-42,
1048-49.
Beyond
statutory
authority.
Decision R.2234-35,
2238, 2239.
1261643
B-7
THIS DOCUMENT HAS BEEN PRINTED ON
RECYCLED PAPER
N
rn
C)
S
State
ofIllinois
)
)
SS.
County ofDuPage
)
AFFIDAVIT
Kevin C. Richardson, being duly
sworn on oath, deposes and says:
1)
I am a Trustee of the Village ofLake Barrington and have been actively involved
in the Village’s efforts relative to the Wauconda NPDES permit, its appeal ofthat permit, and its
participation in an Intergovernmental Agreement (“IGA”) with the Village ofWauconda and
Cuba
Township.
2)
Upon the August 23, 2004 issuance ofthe amended Wauconda
NPDES
permit,
Lake Barrington believed that the permit failed to address a number ofimportant substantive
issues which continued to be ofconcern to the Village.
In addition to filing an appeal ofthat
permit with the Pollution Control Board, Lake Barrington
continued discussions with the
Village ofWauconda to try to resolve and settle those issues.
Those discussions took place over
several months and were successful
in leading to additional limitations on and monitoring ofthe
Wauconda discharge beyond those contained in the NPDES permit under appeal.
Wauconda,
Lake Barrington and Cuba Township embodied those
agreements in the IGA which was
executed December 17, 2004 and is attached to the Joint Motion to Realign and/or Join Parties as
Third Party Respondents and Leave to Amend (“Joint Motion”).
3)
While settlement negotiations are generally not subject to disclosure, Lake
Barrington sought to
maximize public input into the IGA.
An environmental engineering
consulting firm was retained to provide expert technical
advice.
Regular progress reports were
made at the publicly open portions ofthe monthly meetings ofthe Lake Barrington Village
Board and an extensive PowerPoint presentation was made to the Village
Board and broadcast to
the community over local cable access TV.
While only governmental bodies or corporations
may be parties to an intergovernmental agreement, citizens, environmental groups and other
governmental entities (not a party to the IGA) were regularly consulted on the IGA and their
vie~vsintroduced into settlement deliberations.
4)
The allegation in the Joint Motion that the IGA was arrived at in “secret
negotiations” is simply not correct.
Movant Slocum Drainage District was provided an early
draft ofthe IGA and invited to participate
in discussions.
It attended two meetings (September
15,
2004 and October 7, 2004) and then declined to participate further.
Additionally, I had
numerous communications with Jay Glenn, who represented himself to be a leader of a resident
group and is currently representing Movant Resident Group.
Mr. Glenn indicated that his goal
was to
end the Wauconda discharge into Fiddle Creek entirely.
His shorthand description ofthis
position was to “plug the pipe.”
He made it clear that the negotiation ofmore stringent permit
limitations with Wauconda
was an unacceptable alternative to “plugging the pipe”.
Under these
circumstances, further communication with Mr. Glenn became unavailing.
Copies oftwo emails
widely circulated by Mr. Glenn are attached and express the same positions he communicated to
me
in response to my attempts to elicit his constructive involvement
in the Lake Barrington
efforts.
They also state his
view that area development should be halted until his issues were
resolved.
(See emails dated September 2, 2004 and December 29, 2004).
5)
The IGA achieved with Wauconda and attached to the Joint Motion meets all of
the substantive
environmental objectives ofLake Barrington in the public proceedings leading up
to the
NPDES
permit and in
Lake Barrington’s appeal ofthat permit.
Mr. Glenn never identified
any environmental objectives he desired in the permit, beyond those sought by Lake Barrington,
otherthan his statements regarding the total elimination ofthe Wauconda discharge into Fiddle
Creek.
Further affiant sayeth not.
Kevin C. Richardson
Subscribed and sworn to
~1
before me this
,~
~.
day of
Janu~ry,
2005.
1~ICIATwEA~,
LATRESSA
G.
STAHLBERG
NOTARY
PUBLIC,
STATE
OF IWNOIS
MY
COMMISSION
EXPIRES 6
008
1256001
04237434
