BEFORE
VILLAGE OF LAKE B.
CUBA TOWNSHIP, PRAIRIE RIVERS
NETWORK, SIERRA CLUB, BETH
WENTZEL and CYNTHIA SKRUKRUD,
VS.
Petitioners,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY AND
VILLAGE OF WAUCONDA,
Respondents.
SLOCUM LAKE DRAINAGE DISTRICT
OF LAKE COUNTY, ILLINOIS
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY AND VILLAGE
OF WAUCONDA, ILLINOIS
Respondents.
VS.
Petitioner
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RECE~VED
CONTROL BOARfiLERK’S
OFFICE
PCB
05-55
(3RD
Party NPDES Permit
Appeal)
PCB
05-5
8
(3rd
Party NPDES
Permit
Appeal)
MAR
72005
STATE OF ILLINOIS
PoIIut~onControl Board
THIS DOCUMENT 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
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OWNERS ASSOCIATION, DONALD
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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 March 7, 2005, I will file with the Illinois Pollution
Control
Board
an original
and nine copies of this Notice of Filing and Reply Brief on Behalfof the
Village of Lake Barrington and Cuba Township, copies of which are attached hereto and
hereby served upon
you.
Dated:
March 4, 2005
/K~vinDesharnais
7
One ofthe Attorneys for the Village of Lake
Barrington and Cuba Township
Percy L.
Angelo
Russell R. Eggert
Kevin 0.
Desharnais
Mayer, Brown, Rowe & Maw LLP
190 South
LaSalle Street
Chicago, Illinois
60603
312-782-0600
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
RECEnJED
CLERK’S OFFICE
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
Percy L. Angelo
Russell R. Eggert
Kevin G. Desharnais
Mayer, Brown, Rowe & Maw LLP
190 South
LaSalle Street
Chicago, Illinois 60603
312-782-0600
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
/~nG~ais
1
_____
OF SERVICE
MAR
72005
~J
R\
~LJl~1~L—,
STATEOFILLINOIS
Kevin Desharnais~ah torn~~,1he1
~y ~reffies
that on
March 4, ~
foregoing
Notice of Filing and Reply
Briefon Behalf of the Village of Lake Barrington and
Cuba Township
was served on the persons listed below by UPS Next Day Air for delivery on
Monday March 7, 2005.
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
fll~
ri
1~ ~
Ru
A
CLERK’S OFFICE
lI\~I
II
MAR
~7 2005
BEFORE
IP~
118~4CONTROL BOARD
U
U
STATE OF ILLINOIS
VILLAGE OF LAKE BARRINGTON,
)
Pollution Control
Board
CUBA TOWNSHIP, PRAIRIE RIVERS
)
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.
)
(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, 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
)
(3rd
Party NPDES Permit
VS.
)
Appeal)
)
(Consolidated)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY AND VILLAGE)
OF WAUCONDA, ILLINOIS
)
Respondents.
)
REPLY BRIEF ON BEHALF OF THE
VILLAGE OF LAKE BARRINGTON AND CUBA TOWNSHIP
In his Proposed Finding ofFact and Brief Supporting Denial of Village of Wauconda
NPDES Permit (“Glenn Brief”), Attorney Jay Glenn on behalf of the Resident Group relies
on
suggestion, innuendo and unsupported and irresponsible assertions to
criticize not only
the IEPA decision in this case but to malign
his fellow petitioners.
The Village of Lake
Barrington and Cuba Township object to this
misuse of Board proceedings and reply as
follows:
A.
The Glenn Brief Improperly Attacks Lake Barrington and Cuba Township.
The Glenn Brief relies extensively on claims made without citation, and suggestions
and innuendo clearly intended to be taken as fact since they appear in
a section apparently
intended to be
findings of fact.
Among the “apparent” findings offact listed by the Glenn
2
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
Brief is its claim that by their activities and
pleadings the Village ofLake Barrington and
Cuba Township are endangering the health and
safety ofthe Resident Group:
“The Resident Group notes
that the Village ofLake
Barrington and Cuba Township (“Municipal Petitioners”)
and others, are captioned as Petitioners in
these Consolidated
Proceedings but the Resident Group advises this, The
Honorable Illinois Pollution Control Board, that the activities
and recent pleadings of the Municipal Petitioners are in
conflict with the views of the Resident Group, and if
implemented will endanger the health and safety of the
Resident Group.”
Glenn Brief, p.
8
This claim is an apparent restatement of Mr. Glenn’s prior Joint Motion to Realign
and/or Join Parties as Third Party Respondents and Leave to Amend in
which the Resident
Group and the Drainage District sought to
Realign the Municipal Petitioners as respondents
because those petitioners had entered into a Stipulation and Intergovernmental Agreement
with the Village ofWauconda to achieve more stringent Wauconda discharge limitations.
The Motion to Realign was withdrawn
when Lake Barrington and Cuba Township filed their
response, challenging the motion and questioning how the Stipulation and IGA failed to
address any legitimate concern raised by the Resident Group.
Despite withdrawal of its Motion to Realign, the Resident Group is at it again,
angered over the Stipulation and IGA,
Not surprisingly, however, there is no basis cited for
their unsupported
and unsustainable assertion that the Municipal Petitioners’
entry into the
Stipulation
and IGA
is endangering local health and safety.’
In fact, the Stipulation and
Mr. Glenn’s claim that the Municipal Petitioners do not speak for the Resident Group is interesting in light
of his unsupported claim elsewhere that the Resident Group numbers
500.
Glenn Br. at
15.
Even considering
an unincorporated association
as a possible valid party under the Board rules, Mr. Glenn has
18
clients listed as
petitioners in this case.
Most have raisedvery limited issues and concerns.
See Municipal-Environmental
Petitioners’ Main Brief, Ex.
B, First Column.
None of the Resident Group petitioners appeared
at the hearing
inthis matter (all other parties were present)
and the only member of the public
attending was actually an
(cont’d)
3
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
Intergovernmental Agreement require Wauconda to implement more advanced treatment
than required by IEPA in
its permit or achieved by other treatment plants in
the area.
Post-
Hearing Brief of the Environmental Protection
Agency at 27.
They cover every legitimate
issue raised by ~j~yPetitioners in
this proceeding, including the antidegradation analysis, by
requiring no additional
impact, the water quality violations and wetland concerns by
requiring nutrient limits and DO monitoring, and pretreatment concerns by requiring a
pretreatment program.
Groundwater concerns are addressed with a monitoring program.
Neither the Resident Group nor the Drainage District have identified any issue not covered.2
Mr. Glenn’s assertions are plainly wrong and designed for shock rather than any credible
argument to the Board.
Lest there be any confusion
about their position, Lake Barrington
and Cuba Township have taken careful
steps to retain and rely on environmental
professionals and respected environmental organizations
to ensure that the Wauconda permit
requires one of the most advanced treatment processes in the state for the single purpose of
protecting the health and welfare of the community.
They have attained that purpose and
achieved that protection with the Stipulation and IGA.
(...
cont’d)
attorney for the Drainage District (Ms. Lorraine Ray).
In fact, at prehearing conferences Mr. Glenn sought to
have the hearing cancelled.
It is suggested that the hearing attendance reflects the high degree of community
satisfaction with the results obtained in the Stipulation and
IGA.
2
Calls for a new antidegradation analysis are addressed by Wauconda’s agreement to limit its loadings to
current
levels.
Concerns regarding wetlands and water quality are addressed by
agreements to treat for
phosphorus
and, upon funding, for nitrogen and to provide aeration and monitor DO.
Pretreatment is required.
Groundwater monitoring provisions are instituted.
Radium testing is required.
Receivership or permit
revocation are not legally
appropriate in a permit appeal.
See their main briefs for the reliefrequest by the
Resident Group, pp. 34-35 and the Drainage District, unnumbered pp. 27-28.
For the
permit
and Stipulation
measures
responsive to the legally cognizable
issues, see Municipal Environmental Petitioners’
Main Brief,
Ex.
B and IEPA Decision R.2244-45.
Irrespective of the validity of Mr. Glenn’s argument that
the current discharge conditions are unacceptable,
this proceeding is not a proper forum for revisiting decisions made on the current
permit.
See
Glenn Br. at 9-
13.
The current permit became final years
ago and is not at issue
inthis case.
While the Board may
have the
power to revoke a permit in an enforcementaction, see Glenn Br. at 18, Mr. Glenn first has to bring and prove
that enforcement action in order to have a basis to ask for that
remedy.
4
THIS DOCUMENT HAS BEEN PRINTED ON
RECYCLED PAPER
B.
The Glenn Brief’s Reference to the Tarkowski “Superfund Site”
Is Irrelevant
and
Improper.
In one of its odder digressions, the Glenn Brief, at
13, raises a purported issue
regarding what it refers to, incorrectly as it is not listed on the National Priorities List, as the
“Tarkowski Superfund Site” (“Superfund
2”).
The Glenn Brief is referring to
a site owned
by Mr. John Tarkowski in Lakeland estates.
This property is downstream ofthe Wauconda
discharge and does not discharge to the Wauconda plant.
Without explaining how this
downstream property has
~j~y
relevance to the Wauconda permit, the brief asserts that
Mayer, Brown & Platt represented Mr. Tarkowski
in certain federal court proceedings, that
Mayer, Brown, Rowe & Maw LLP represents Lake Barrington and Cuba Township in this
proceeding and the Resident Group has additional information about the site “which is
confidential
and cannot become part of the public record.”
Glenn Br. at 14.
Mayer, Brown, Rowe & Maw LLP represents the Village of Lake Barrington and
Cuba Township in this matter.
Mayer, Brown & Platt was previously appointed by the
federal court for the Northern District of Illinois
to represent John Tarkowski in the matter,
United States v. Tarkowski, No. 99
C 7308.
After trial, the matter was decided in
Mr. Tarkowski’s favor.
It was appealed to the Seventh Circuit by USEPA, and resolved by
the Seventh Circuit in Mr. Tarkowski’s favor in a ruling which noted the agency’s
conclusions as to the lack of any kind ofenvironmental hazard presented by
Mr. Tarkowski’s property.
See 248 F.3d
596,
598 (7thCir. 2001).
There is no connection between the downstream Tarkowski site or United States
v.
Tarkowski
and the Wauconda discharge other than the Glenn Brief’s apparent attempt
to
discredit the Municipal Petitioners by reference to their law firm’s successful pro bono
5
THIS DOCUMENT HAS
BEEN PRINTED
ON
RECYCLED PAPER
defense in
a matter in
which it was appointed by the court.
The Glenn Brief provides no
explanation and cites no
connection.
This is irresponsible and illustrates nothing more than
the poverty of real issues on which the Resident Group can rely.
C.
The Stipulation and IGA Provide An Appropriate Resolution of the
Legitimate Issues Raised in This Case,
Including the Issues Raised by the
Resident Group and Drainage District.
As explained in its main brief, the Municipal Petitioners have participated in
these
proceedings in a professional and technically supported manner and have achieved a
resolution with
the Village ofWauconda and the Environmental Petitioners in a Stipulation
and IGA which addresses every legitimate issue raised by the petitioners.
The Slocum
Drainage District
in its main brief appropriately describes the issues which concern it, and
the Glenn Brief, while more difficult to
follow, addresses many of these same issues, e.g.
antidegradation, water quality violations and pretreatment. ~ Each one of these issues is
addressed by the Stipulation and IGA which effectively implement a no impact alternative
for the Wauconda plant by limiting additional loadings, achieving the result of an
antidegradation analysis.
Attacking the Municipal Petitioners for achieving all that
is legally achievable, based
on nothing
more than possibilities, suggestions and innuendo,
see e.g. Glenn
Br.
at 16
(“Residents mentioned the possibility.
.
.,“
“Residents then raised the possibility.
.
.“)
is
irresponsible and
legally wrong and should be rejected by the Board.
The resolutions
~
The Municipal Petitioners do not address the claims
of the Drainage District and
the Resident
Group that
they raised these issues before
the
Agency, as they
were required to do
by the Act, 415
ILCS 5/40(e), even
though in fact their claims are based on the argument that they can take credit for the fact that others such as
the Municipal Petitioners raised these issues.
See e.g. Drainage District main briefat unnumbered pp. 3-4.
In
fact, the participation by
the Drainage District and the Resident Group per se (Mr. Glenn did not announce that
his comments were made on behalf of anyone but himself) was extremely limited, with no
attempt at the time
to incorporate the
testimony of others or state that the commenters were declining to repeat testimony already
given.
See Municipal-Environmental Petitioners’
Main Brief, Exhibit B, First Column.
6
THIS DOCUMENT HAS BEEN PRINTED
ON RECYCLED PAPER
achieved in the Stipulation and IGA represent a legally and technically supported resolution
of the issues, based on the record, and the Municipal Petitioners urge their adoption by the
Board.
March 4,
2005
Percy L.
Angelo
Russell R. Eggert
Kevin G. Desharnais
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, Illinois
60603
312-782-0600
1263843
Percy
An
lo
One
the attorneys for the Village of
Lake Barrington and Cuba Township
/
7
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
