DES PLAINES RIVER WATERSHED ALLIANCE,
LIVABLE COMMUNITIES ALLIANCE,
PRAIRIE RIVERS NETWORK, and SIEERA CLUB,
Petitioners,
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY and VILLAGE OF NEW LENOX,
Respondents.
NOTICE OF FILING
PCB 04-88
(NPDES Permit Appeal)
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Bradley P. Halloran
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Albert F. Ettinger
Senior Staff Attorney
Environmental Law & Policy Center
35
East Wacker Drive, Suite 1300
Chicago, IL 60601
Roy M. Harsch
Sheila H. Deely
Gardner Carton & Douglas LLP
1~1N. Wacker Drive- Suite 3700
Chicago, Illinois 60606-1698
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of
the Pollution Control Board an original and four (4) copies of the
AGENCY’S
RESPONSE
TO PETITIONERS’ MOTION FOR AND MEMORANDUM OF
LAW IN SUPPORT OF SUMMARY JUDGMENT
of the Illinois Environmental
Protection Agency, a copy ofwhich is herewith served upon you.
ILLINOIS ENVIRONM
TAL PROTECIJQN AGENCY
By:
Sanjay K. Sofat
Assistant Counsel
Dated: May 24, 2005
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
(217) 782-5544
THIS FILING PRINTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~I~CEIVED
CLERK~SOFFICE
V.
MAY 252005
STATE
OF
ILLINOIS
Pollution Control Board
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PCB 04-88
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(NPDES Permit Appeal)
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RESPONSE TO PETITIONERS’ MOTION FOR AND MEMORANDUM OF
LAW IN SUPPORT OF SUMMARY JUDGMENT
NOW COMES the Respondent, Illinois Environmental Protection Agency
(“Illinois EPA” or “Agency”) by and through its attorney, Sanjay K. Sofat, Assistant
Counsel and Special Assistant Attorney General, pursuant to 35 Iii. Adm. Code 101.5 16,
and the Hearing Officer Order dated April 28, 2005, hereby submits this response to Des
Plaines River Watershed Alliance, Livable Communities Alliance, Prairie Rivers
Network, and Sierra Club’s (hereinafter ‘Petitioners”) Motion for and Memorandum of
Law in Support of Summary Judgment to the Illinois Pollution Control Board (“Illinois
PCB” or “Board”). The Illinois EPA respectfully requests that the Board DENY the
Petitioners’ Motion for Summary Judgment, as there exist genuine issues ofmaterial fact
and Petitioners are not entitled to judgment as a matter oflaw. In support of its
Response, the Agency states as follows:
BEFORE THE ILLINOIS POLLUTION CONTROL ~
MAY 25 2005
DES PLA1NES RIVER WATERSHED ALLIANCE,
)
STATE OF ILLINOIS
LIVABLE COMMUNITIES ALLIANCE,
)
Pollution Control Board
PRAIRIE RIVERS NETWORK, and SIEERA CLUB,
Petitioners,
v.
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY and VILLAGE OF NEW LENOX,
Respondents.
1
MOTION FOR SUMMARY JUDGMENT
On
June 10, 2002, the Agency received the Village’s application for expansion of
its existing wastewater treatment plant. The Village is proposing to expand the
plant design average flow from 1.54 million gallons per day (“MGD”) to
2.516
MGD; and the design maximum flow from 4.0 MGD to 5.963 MGD in Phase 1
and to 7.93 MGD in Phase 2.
Agency Record at 424.
2.
The Village’s application concerns an existing source that was built in 1973 to
freat waste water. The Village is requesting expansion ofthe treatment plant at
301 North Cedar Road (“plant” or “STP 1”) based on projected growth in the
community and also because the plant is operating at 85 percent capacity.
Agency
Record at 354.
3.
The Village also operates a treatment plant (“STP 2”) that discharges into Jackson
Branch ofJackson Creek.
Agency record at 354.
4.
The Village’s STP 1 discharges into Hickory Creek, which is a general use water.
Agency record at 354.
Hickory Creek is a tributary of the Des Plaines River,
which flows in Will County.
Agency Record 115.
Hickory Creek has a flow of
2.4 cubic feet per second (“cfs”) during critical 7Q10 flow, and is rated a “C”
stream under the Agency’s Biological Stream Characterization (“BCS”) system.
AgencyRecordat5
5.
Hickory Creek, segment GG-02, is listed on the Illinois’ impaired waters list,
Illinois 3 03(d) list.
Agency Record at 5.
The potential causes ofimpairment at
the time oflisting were nutrients, phosphorus, nitrogen, salinity/TDS/Chlorides,
TDS (chlorides), flow alterations, and suspended solids. The potential sources
2
associated with the impairment are municipal point sources, combined sewer
overflows, construction, land development, urban runoff/storm sewers,
hydrological/habitat modification, and flow regulationlmodification.
Agency
record at 5.
6.
Hickory Creek is not listed as a biologically significant water body in the Illinois
Natural Surveypublication
Biologically Sign ~fi
cant Illinois Streams.
According
to this publication, Hickory Creek does not support any threatened or endangered
species.
Agency record at 5.
7.
The Agency conducted a facility related stream survey in 1991. This facility
related stream survey is not representative ofthe current stream conditions as the
facility has been expanded since the 1991 survey.
Agency record at 5.
8.
At the Agency’s request, the Village performed a macroinvertebrate survey of
Hickory Creek below the plant’s discharge in August 2002. The survey found
pollution intolerant organisms both upstream and downstream of the existing
discharge from STP 1.
Agency record at 5.
9.
On December 17, 2002, the Agency sent a draft NPDES permit to the Village for
its review and requested comments within fifteen
(15)
days ofthe date ofthe
letter.
Agency Recordat 572.
10.
The Village provided comments during the 15-day notice period. The Village had
no objections to the proposed conditions ofits permit.
Agency Record at 591.
11.
The Agency public notice the draft permit on January
5,
2003 for thirty (30) days.
No changes were made to the draft permit prior to the public notice.
Agency
Record at 598.
3
12.
Petitioners provided comments at the public hearing held on April 24, 2003.
Agency record at 61-104.
Petitioners also provided written comments to the
Hearing Officer.
Agency record at 107-322.
13.
Petitioners provided the following comments1 regarding the draft permit
conditions:
i.
The draft permit allowed discharges ofphosphorus and nitrogen that
cause, have a reasonable potential to cause or contribute to violations of
the water quality standards regarding offensive conditions, 302.203.
ii.
The drat permit allows discharges that may cause, have a reasonable
potential to cause or contribute to violations ofstate water quality
standards regarding dissolved oxygen, 302.206, and copper, 302.208(e) in
violation of40 CFR 122.44(d) and 309.141.
iii.
The draft permit and the studies and lack of studies that led to the creation
ofthe draft permit did not comply with Illinois’ Anti-degradation rules
protecting the exiting uses ofthe receiving stream.
14.
Petitioners asked the Agency to modify the permit in the following respect:
i.
Provide for economically feasible controls on the discharge ofnutrients
including phosphorus and nitrogen.
ii.
The limits in the permit be such to prevent discharges that could cause or
contribute to violations ofwater quality standards regarding offensive
conditions and dissolved oxygen.
iii.
Properbiological studies be conducted to assure that the discharge would
not adve~se1yaffect uses of stream.
iv.
Consider whetherthe increased discharge was actually necessary in light
ofpotential alternatives; and
v.
Consider alternatives to allowing the levels ofpollutants in the streams
that would be allowed by the draft permit.
15.
In response to the public’s comments, the Agency made the following changes to
the draft permit:
i.
The Village’s discharge is subjected to ammonia limits for spring/fall
months;
ii.
Total dissolved solids from the discharge are limited to a daily maximum
concentration of 1000 milligram per liter (“mg/L”); and
iii.
The Village’s discharge is subjected to the dissolved oxygen limit of6
mg/L.
Petitioners’ motion
for
summary judgment at 3.
4
Agency record at 353.
16.
On October 31, 2003, the Agency approved the Village’s NPDES permit renewal
request.
Agency record at 353.
17.
On December 2, 2003, Petitioners filed a petition for review ofthe Agency’s final
decision.
-
18.
On December 18, 2003, the Board found the Petitioners’ petition to meet
requirements of35 Ill. Adm. Code 105.2 10 and Section 40(e)(2) ofthe Illinois
Environmental Protection Act (“Act”).
19.
On February 4, 2005, Petitioners filed their motion for summary judgment with
the Board.
20.
Petitioner argues that the final permit, as issued, violates 35 Ill. Adm. Code
302.105, 304.105, and 309.141.
Mot at 5.
21.
Contrary to Petitioners’ claim, the Agency’s anti-degradation analysis did comply
with35 Ill. Adm. Code 302.105(c).
Agency record at 005-007; 372-374; 357~
358.
The Agency’s anti-degradation analysis, in accordance with Section
302.105(c), did consider all teclmically and economically reasonable alternatives
to avoid or minimize the increase in pollutant loading. In this case, the Village
considered land application ofthe proposed increase in discharge, use ofwater by
a golf course, and regionalization ofplants as alternatives to the proposed
discharge. A land application system to treat 0.93 MGD would cost
approximately $23, 300, 000. The Agency determined that land application
alternative is not feasible, both tecimically and economically, because the land
5
costs and the pumping and transmission costs would be prohibitive.
Agency
record at 006, 374.
22.
Contrary to Petitioners’ claim, the permit, as issued, does not violate 35 Ill. Adm.
Code 302.203 (“offensive conditions”) or numeric water quality standard for
copper.
Agency record at 6; 356; 357~361; 363; 365; 36i~.
Illinois does not have
numeric water quality standards for nutrients that apply to Hickory Creek. The
Agency considered the application ofthe narrative standard at Section 302.203,
which prohibits “plant and algal growth of other than natural origin.”
Agency
record at 357.
The Agency concluded that no permit limits for nutrient is
required as the incremental loading ofnutrients from the discharge is not expected
to increase algae or other noxious plant growth, or diminish the present aquatic
community or otherwise worsen the existing stream conditions.
Agency recordat
6.
The Agency did not include copper limits in the Village’s permit as it has
no reasonable potential to exceed the chronic water quality standard. Also, the
Agency data does not show that Hickory Creek contains significant amounts of
metals. Further, the land use in the area or the effluent itselfare not significant
sources of copper.
Agency record at 361.
23.
Contrary to Petitioners’ claim, the permit, as issued, does not violate 35 Ill. Adm.
Code 304.105.
Agency record at 5-7; 369; 370; 361; 365; 366.
The Agency
determined that the Village’s discharge will meet all applicable water quality.
standards.
Agency record at 7.
The Agency further concluded that all existing
uses will be fully protected. The Village’s discharge will meet ammonia standard,
6
as the permit limit is set at water quality standard.
Agency record at 356-357.
The discharge is subjected to the most stringent effluent standards for BOD in
accordance with 35 Ill. Adm. Code 304.120. The TDS limits in the permit are set
at water quality standards.
Agency recordat 7.
Also, the Village’s discharge is
subjected to dissolved oxygen limit which is set at water quality standard of6
mg/L.
Agency record at 353.
Further, Contrary to Petitioners’ claim, the permit,
as issued, does not violate 35 Ill. Adm. Code 309.141(d).
Agency record at 5-7;
359. 360; 364.
24.
Contrary to Petitioners’ claim, the permit, as issued, protects the existing uses of
Hickory Creek.
Agency record at 5-7; 368; 369.
The Agency’s anti-degradation
analysis concludes that the discharge from the proposed expansion would not
impair the existing uses ofHickory Creek.
Agency record at 368.
A stream
survey performed by the Village showed that the existing discharge has not
caused any significant impact to the receiving stream as measured by
macroinverteberates.
25.
As a relief Petitioners requests the Board to direct the Agency to i) assure that all
technically and economically reasonable measures to avoid or minimize the extent
ofnutrient loadings to Hickory Creek; ii) assure that discharges not cause or
contribute to violations ofthe water quality standard prohibiting “offensive
conditions”; and iii) assure that discharge not cause or contribute to violations of
numeric water quality standard for copper.
Mot at 7.
26.
As is evident from the Agency’s discussion in “Material Facts In Dispute”, there
are genuine issues as to material facts. Also, Petitioners are not entitled to
7
judgment as a matter oflaw. Further, the Petitioners’ right is not clear and free
from doubt.
27.
Therefore, the Board must DENY the Petitioners’ motion for summary judgment
as Petitioners have failed to show that no genuine issue as to any material fact
exist and Petitioners are not entitled to the judgment as a riiatter oflaw.
WHEREFORE, the Agency respectfully requests that the Board DENY
Petitioners’ Motion for Summary Judgment, as genuine issue as to manymaterial facts
exist, and further because the permit, as issued, does not violate the applicable provisions
ofthe Act or Board regulations.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By:
-Th~~
SanjayK. Sofat
Assistant Counsel
Special Assistant Attorney General
DATED: May 24, 2005
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
8
STANDARD OF REVIEW
The “purpose ofa summary judgment proceeding is to determine whether there
are any genuine issues oftriable fact.”
Kobus v. Formfit Co.,
35 I1l.2d 533, 538, 221
N.E.2d 633 (1966). The courts have granted a motion for summary judgment only when
“the pleadings, depositions, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter oflaw.” 735 ILCS
5/2-1005(c), also see, Fooden v.
Board of Governors,
48 Ill.2d 580, 586-87, 272 N.E.2d 497 (1971),
cert. denied
(1972),
408 U.S. 943, 92 S.Ct. 2847
(emphasis added).
“While use of the summary judgment
procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit, it is a
drastic means ofdisposing oflitigation and therefore should be allowed only when the
right ofthe moving party is clear and free from doubt.”
Purtill v. Hess,
111 I1l.2d 229,
239, 489 N.E.2d 867, 871 (1986)
(emphasis added), citing Allen v. Meyer,
14 Ill.2d 284,
292, ~52N.E.2d 576 (1958);
Beverly Bank v. Alsip Bank,
106 I11.App.3d 1012, 1016, 62
Ill. Dec. 572, 436 N.E.2d 598 (1982);
Schnabel v. County ofDu Page,
101 I11.App.3d
553, 560,
57 Ill.Dec. 121, 428 N.E. 2d 671 (1981).
The Board’s ruling in
Roger Stone v. Illinois EPA and Naperville Park District,
PCB 01-68 (January 18, 2001) is directly applicable here.
Roger Stone
involved a third
party permit appeal ofan NPDES permit. In denying the petitioner’s motion for
summaryjudgment, the Board stated that, “there are still factual issues which must be~
further developed at hearing.”
Id. at 5.
The Board’s holding was based on “the Agency
list of issues as well as conflicting factual statements in the pleadings by the parties.”
Id.
9
MATERIAL FACTS IN DISPUTE
It is evident that the following material facts are in dispute, and therefore, need to
be developed through the discovery process and at the Board hearing.
Hickory Creek
In the Statement of Relevant Facts2, Pe?itioners
states
that, “Hickory Creek
...
was once known for
its
exceptionally
high water quality and biological integrity.” Phillip
Smith (1971) was quoted indicating that “Hickory Creek is
the outstanding stream in the Des Plaines River system
and contains populations of such unusual species as the
northern hogsucker, rosyface shiner, and slender madtom.”
(HR115)
.
SOF ¶1.
The Agency disputes the Petitioners’ statement in SOF ¶1. It is not clear from the
above statement
if the outstanding
conditions in Hickory Creek existed throughout the
Creek.
The relevant fact here is whether these outstanding conditions existed
immediately upstream and downstream ofthe Village’s STP plant outfall. According to
Northeastern Illinois Planning Commission (1981), land use upstream of Pilcher Park
was primarily agricultural while downstream land use was predominately residential and
commercial with numerous sewers and Combined Sewers Overflows in the Joliet area.
The Agency’s water quality reports since 1986 have reported the upper 12 miles of
Hickory Creek as fully meeting aquatic life use while the lower 10 miles were rated as
partial support; The lower portion includes the Joliet metropolitan area. Rosyface shiner
have recently (2003) been reported upstream and downstream of the Village’s STP 1.
Further, Hickory Creek is not on the current list of biologically significant streams
compiled by the Illinois Department of Natural Resources (“IDNR”). Furthermore,
IDNR has noted that no threatened or endangered species exist in the vicinity of the
2
Petitioners Statement ofRelevant Facts is cited as SOP
¶.
10
segment of Hickory Creek in which the Village’s STP 1 discharges.
Agency record at
371.
Petitioners state that, “Dr. David Bardack
...
In fact,
Hickory Creek has attained the status of a classic
biological study area.... As a relatively unpolluted and
unaltered stream with a diversified fauna.
.“
(HR 108).
SOF ¶3.
-
The Agency disputes the Petitioners’ statement in SOF
¶3.
It is not clear from the
above statement if these conditions in Hickory Creek existed throughout the Creek. The
relevant fact is whether these conditions exit immediately upstream and downstream of
the Village’s STP plant outfall. According to Northeastern Illinois Planning Commission
(1981), land use upstream of Pilcher Park was primarily agricultural while downstream
land use was predominately residential and commercial with numerous sewers and
Combined Sewers Overflows in the Joliet area. The Agency’s water quality reports since
1986 have reported the upper 12 miles of Hickory Creek as fully meeting aquatic life use
while the lower 10 miles were rated as partial support. Further, the Agency and IDNR
classified all ofJiickory Creek as a “C” stream in the 1989 and 1996 Biological Stream
Characterization reports. This characterization of Hickory Creek was based on data
collected between 1980 and 1988.
Agency record at 371; 699.
Petitioners’
state that,
“Hickory Creek is found on the
draft 2002 IllinoiS
303(d)
list of impaired waters. “The
causes of impairment given
.. .
at that time were nutrients,
phosphorus,
nitrogen,
salinity/TDS/Chlorides,
TDS
(chlorides), flow alterations, and suspended solids. The
sources associated with the impairment are municipal point
sources...
.“
(HR
5)
In the Illinois Water Quality Report
2004, Hickory Creek is listed as impaired with the
potential causes of impairment being silver, nitrogen, •pH;
sedimentation/siltation, total dissolved solids, chlorides,
flow alterations, physical-habitat alterations, total fecal
coliform bacteria, total suspended solids, excess algal
growth, and total phosphorus. SOF ¶5.
11
The Agency’s draft 2002 Illinois 303(d) list did not list aU of Hickory Creek as
impaired. The lower 10.1 miles were listed as impaired based primarily on water quality
data collected at Washington Street in Joliet at river mile 2.5. The upper 12 miles were
rated as full aquatic life use based primarily on biological data collected at river mile
10.6, Marley Road. Also, the list ofpotential sources of impairment included more than
just municipal wastewater discharges. The list also included CSOs, urban runoff/storm
sewers, land development and flow regulationlmodification. The inclusion of pH as a
potential cause of impairment in the 2002 Illinois Water Quality Report was a mistake.
The pH value that indicated noncompliance with the minimum pH standard of
6.5
was
mistakenly entered into the database as 0.87 instead of 7.87.
Offensive Conditions/Algal Blooms
Petitioners’ state that, “a number of witnesses gave
reports of algal blooms in Hickory Creek including nearby
resident Kim Kowalski. (HR 76)
.“
SOF ¶6.
It is not clear from the above
statement whether the reported algal blooms
occurred upstream or downstream
of the Village’s STP 1
or when the blooms occurred.
Did the blooms
occur during low, normal, or high flow stream conditions? Further, there
are several factors that can contribute to excessive algal growth including nutrients,
stream flows, dams/impoundments, turbidity and sunlight/canopy cover. It is possible to
have excessive algal growth even if nutrients are not substantially elevated. There is a
dam located in Pilcher Park at river mile 4.6, which is about 3.8 miles downstream ofthe
Village’s STP 1. Furthermore, it is a known fact that algae is a vital part of the aquatic
community and only excessive algal population is considered a problem. The best
measure of determining if excessive algal conditions exist in a stream is by studying the
12
local fish population. Only if the oxygen concentration dips to low levels, the fish
population is adversely impacted.
Agency record at 361; 515; 639.
Petitioners’ state that, “Jim Bland, Director of Integrated
Lakes Management, testified that “I should comment that
as recently as August of this year I saw something unique
in-stream, something I have not seen before. The entirety
of the stream is covered from Pilcher Park almost all the
way up to Cedar Street with Hydrodictyon and algae on the
surface of it. So here you have a running stream covered
almost completely and a running stream that’s really a
very, very viable and important resource, pretty sadly
degraded by the sorts of nutrient discharge that we are
seeing.” (HR 80)
.
SOF ¶7.
The Agency disputes the Petitioners’ statement in SOF ¶7. As the
permit hearing
was only an informational hearing, the public was allowed to provide comments, but not
testimony. Contrary to Petitioners’
claim, Jim Bland could not have testified at the
hearing. In
addition, the statement, “tjhe entirety
of
the stream is covered from Pilcher
Park almost all the way up to Cedar Street with Hydrodictyon and algae on the surface of
it”, does not indicate that there is a dam located in Pilcher Park at about river mile 4.6.
Hydrodictyon is a green algae commonly found in lakes, small ponds, and irrigation
ditches. The statement also does not indicate where the bloom stopped. The Village’s
STP 1 discharge is located about 0.18 mile downstream of Cedar Street. Ifthe Village’s
STP 1 was responsible for this condition, the green algae would not extend upstream of
the discharge.
Agency record at 361; 515; 639.
Petitioners
state that,
“Community resident
Brad Salamy
testified at the hearing that, “Last summer, and this was
alluded to earlier, the creek was greener than I had ever
seen it, a little patch down the center was liquid, the
rest of it was completely green like you could walk on it.”
(HR 82-3)
.
SOF ¶8.
13
As the permit hearing was only an informational hearing, the public was allowed
to provide comments, but not to provide testimony. Contrary to Petitioners’ claim, Brad
Salamy could not have testified at the hearing. The above statement does not indicate
where in relation to the Village’s STP 1 discharge this green patch was seen. This
statement is confusing as it tends to indicate that there was onl~’a little patch of water
down the center. Hickory Creek near Marley Road has fairly extensive areas of water
willow that can make up a large proportion of the stream channel during low flow stream
conditions.
Agency record at 361; 515, 639.
Levels of Phosphorus in Hickory Creek
Petitioners’ state that, “Phosphorous concentrations are
high in the creek. In addition to the IEPA impaired water
data discussed above (~J5), the U.S. Geological Survey
database shows that for the period of ‘92 to ‘97 total
phosphorus exceeded Illinois’ EPA trigger value for more
than 20 percent of the samples. Illinois EPA’s trigger is
approximately eight times higher than the USEPA’s
recommended criterion. Furthermore, data collected in
August 2002 by the Village of New Lenox indicate the total
phosphorus in-stream on that particular day when they
sampled was between 1.49 and 1.63 milligrams per liter.
These concentrations are approximately 20 times the USEPA—
recommended criterion and more than twice Illinois EPA’s
trigger. (Wentzel Testimony HR 67). SOF ¶9.
Phosphorus levels in Hickory Creek are elevated from background levels both
upstream
and downstream of the Village’s STP 1 discharge. There are at least 12
wastewater treatment plants that discharge into Hickory Creek and its tributaries. Nine of
these facilities are located upstream of the Village’s STP 1 discharge. The two stations
sampled in 1997 that were used for the assessment ofHickory Creek for the 2002 Illinois
Water Quality Report were located upstream (GG-06) and downstream (GG-02) of the
14
•0
Village’s STP 1. Station GG-06 at Marley Road was assessed as full aquatic life use
based on biological data. Station GG-02 at Washington Street, Joliet was assessed as
partial support based on water chemistry data. Both stations had total phosphorus
concentrations that exceeded the Agency’s cause listing criteria of 0.61 mg/L.
Phosphorus is only listed as a possible cause ofimpairment if other data, biological and
or water quality numeric standards, indicate impairment. Phosphorus concentrations
were similar at thes~etwo stations in 1997 with means of 0.58 mg/L at GG-06 and 0.53
mg/L at GG-02. Moverover, the statement that phosphorus values are “high” in the
Creek is not a fact but Petitioners’ opinion. As, even within the various ecoregions
utilized by U.S. EPA, “the national criteria recommendations are based on statistical
distribution and recurrence frequencies, not direct relationship to detrimental or impaired
stream conditions,” the Agency concluded that there is nothing unusual about the
phosphorus levels in Hickory Creek.
Agency recordat 365.
Effect ofNew Lenox Discharge on Nutrient Levels, Algal blooms, Dissolved oxygen
-
and pH in Hickory Creek
Petitioners summarize the comments provided by Professors
David Jenkins and Michael Lemke as:
—
Based on the New Lenox August data, the current
plant releases an average of 64.7 kg of
nitrate+nitrite per day and 16.1 kg of total P
total phosphorus into Hickory Creek.
—
Based on long-term average August flow data from
USGS and USGS Schmuhl Road nutrient analyses,
current Hickory Creek nutrient loads upstream from
the WWTP#1 are 151 kg nitrate+nitrite, and 22.7 kg
total P.
15
—
Therefore, the plant is responsible for 30 of
downstream nitrate+nitrite load in Hickory Creek,
and 41 of the Hickory Creek total P load.
—
As currently planned (and assumin~ nutrient levels
in plant discharge remain the same)
,
the new plant
discharge will release 105.7 kg of nitrate+nitrite
per day and 26.3 kg of total P per day into Hickory
Creek. Assuming that Hickory Creeic flow will not
change for reasons other than the planned extra
plant discharge, the new plant discharge will
release 41 of the stream nitrate+nitrite load, and
53.7 of the stream P load on an average basis.
—
More importantly, the same-sized receiving stream
will be bearing 170 the levels of nitrate+nitrite
upstream of the plant, and 216 of the total P
levels upstream of the plant. These levels of
nutrient loading will have substantial effects on
downstream water quality, not only in Hickory
Creek, but also the Des Plaines River and the
Illinois River. The Hickory Creek channel will
also be receiving substantially more flow, which
will have effects on stream habitat and biota that
are separate from nutrient effects.
Summary of Hickory Creek Water Quality Information,
David Jenkins and Michael Lemke (HR 304-305). SOF ¶8.
The Agency disputes the implications of Petitioners’
-statement in SOF ¶11.
These statements fail to establish any
proof that the Village’s STP
1 discharge would
cause violation of
water quality standards algal blooms, dissolved oxygen water quality
standard, and pH standard.
Petitioners state that, “published treatises placed -in the
record show that elevated nutrient levels cause impairment
of streams.”
“Eutrophication is a fundamental concern in the
management of all water bodies.... There is now
also considerable interest in the enrichment of
streams •and rivers (see discussion by Dodds and
Welch 2000)
.
For example in 1992, the United
States Department of Agriculture National Water
Quality Inventory reported that enrichment and
16
sedimentation were the most significant causes of
water quality degradation in 44 of 1,000,000 km
of streams and rivers surveyed in the US
(http: //www.usda.gov/stream restoration).
Management problems caused by nutrient
enrichment, and associated benthic algal
proliferations, include aesthetic degradation..
loss of pollution-sensitive invertebrate taxa
through smothering of substrata by alg~e
...,
and
degradation of water quality (particularly
dissolved oxygen and pH) resulting in fish
kills.
. .
Biggs, B.J.F. 2000. Eutrophication of streams and
rivers: dissolved nutrient-chlorophyll relationships for
benthic algae. J. North Am. Benthol. Soc. 19:17-31. (HR
187)
“Reasons for nutrient criteria include: 1)
-
adverse effects on humans and domestic animals,
2) aesthetic impairment, 3) interference •with
human use, 4) negative impacts on aquatic life,
and 5) excessive nutrient input into downstream
systems.”
Dodds, N. K. and E.B. Welch. 2000. Establishing
nutrient criteria in streams. J. North Am. Benthol. Soc.
19:186-196. (HR 177)
“High -algal growth can affect fish distribution
by altering the physical (algal mass
accumulation) and chemical (dissolved oxygen, pH)
characteristics of the river system.”
Sabater, S., J. Armengol, E. Comas, F. Sabater,
Urrizalqui, and I. Urrutia. 2000. Algal biomass in a
disturbed Atlantic river: water quality relationships and
environmental implications.
Science of the Total
Environment. 263:185-195. (HR 210)
There is a positive correlation between nutrients in
streams and algal activity.
-
“The present analysis suggests that managing
nutrient supply could not only reduce the
magnitude of maximum biomass, but also reduce the
frequency and duration of benthic algal
proliferations in streams.”
17
Biggs, B.J.F. 2000. (HR 187)
“...
our study indicates that there is a
generally positive relationship between Chl
chlorophyll
and TP total phosphorus in
temperate streams
.. .“
Van Nieuwenhuyse, E.E. and J.R. Jones. 1996.
Phosphorus-chlorophyll relationship in temperate streams
and its variation with stream catchment area. Can. J.
Fish. Aquat. Sd. 53:99-105. (HR 206)
“If streams are not turbid, preventing maximum
benthic chlorophyll levels from exceeding 200
mg/m2 is reasonable because streams with higher
levels are not aesthetically pleasing, and their
recreational uses may be compromised.
For
benthic chlorophyll to remain below 200 mg/m2 at
the very least, TN should remain below 3 mg/L and
TP below 0.4 mg/L.”
Dodds, W. K. and E.B. Welch. 2000. (HR 184)
“Photosynthesis and respiration are the two
important biological processes that alter the
concentration of oxygen and carbon dioxide. In
highly productive waters, such as slow moving
rivers with abundant macrophytes, oxygen is
elevated and carbon dioxide is reduced during the
daytime, while the reverse occurs at night.”
Allan, J. D., 1995. Stream Ecology: structure and
function of running waters. Chapman & Hall, New York (HR
163)
“Diel (24 h) changes in oxygen concentration
provide a means of estimating photosynthesis and
respiration of the total ecosystem.
. .“
(Allan, J. D. HR 163)
“Carbon dioxide likewise tends -to deviate from
atmospheric equilibrium in highly productive
lowland streams where luxuriant growths of
macrophytes and microbenthic algae can result in
diel shifts in dissolved C02.... Because of the
interdependence of C02 concentration and pH
. . .,
mid-day pH can increase by as much as 0.5 units.”
18
(Allan, J. D. HR 164)
“Dissolved 02 deficit and high pH are perhaps the
most severe algal-related problems affecting the
aquatic life-support characteristics of a river
or stream. Deficits of DO can occur when
respiration of organic C produced by
photosynthetic processes in the stream exceeds
the ability of reaeration to supply DO.”
(Dodds, W. K. and E.B. Welch. HR 180)
“The contribution of algal biomass to the diel
dissolved oxygen (DO) variability in rivers is
common in systems receiving high nutrient
inputs.
. . .“
Sabater, S., J. Armengol, E. Comas, F. Sabater, I
TJrrizalqui, and I. Urrutia. 2000. (HR 216)
.
SOF
¶12.
The Agency disputes Petitioners’
implication of cited quotes in SOF ¶12. These
treatises fail to establish that the Village’s STP 1 discharge would cause violation of
water quality standards for algal blooms, dissolved oxygen water quality standard, and
pH standard. In addition, these treatises are irrelevant as the discussion is directed at
developing criteria for nutrients, and not at developing effluent limits for a discharge.
Further, the water based effluent limit for dissolved oxygen will help to improve the
instream dissolved oxygen concentrations in Hickory Creek as this Creek is an effluent
dominated stream during low flow conditions.
Agency record at 356.
Petitioners state that, “it is likely that nutrient
discharges from New Lenox WWTP #1 are already adversely
impacting Hickory Creek and that reductions of nutrient
discharges are needed to preve~it further impact.
(Statement of Professors Jenkins and Lemke HR 305)
.“
SOF
¶13
19
The above statement is an opinion made by Professors at the permit hearing, and
is not a statement of fact. There is no evidence in the record to support Petitioners’
statement.
Petitioners state that, the IEPA at the hearing on the
draft permit acknowledged that it was “very possible” that
supersaturated oxygen levels found during the daytime hours
in Hickory Creek are due to algae saturation
photosynthesis. (HR 67)
.“
SOF ¶14.
Petitioners are taking the Agency’s comment out of context. The Agency’s
comment is referring to a phenomenon that may be occurring in Hickory Creek, not in
any way, implying that the Village’s STP 1 is causing the supersaturated oxygen levels in
the Creek.
Agency record at 068; 361.
Petitioners’ state that, “Hickory Creek also violated pH
standards by exceeding a pH of 9, likely as the result of
algal activity. (HR 126)
.“
SOF ¶15.
-
The statement is a Petitioners’ statement of opinion
and
not a statement of fact.
Also, the Agency,
from the
review of its raw data, found that a
pH value of
0.87 was
mistakenly enter~dinto the database, instead of7.87.
Current Biological
Integrity
of
Hickory Creek
Petitioners’ state that, “IEPA did not analyze the effects
of the existing New Lenox discharge with a recent valid
study. The Antidegradation Assessment Memorandum from
Scott Twait to Abel Haile, Nov. 26, 2002 states that “The
most recent facility related stream survey conducted by the
Agency was on June 10, 1991. The facility related stream
survey is not representative of the stream conditions that
exist at this time, since the facility has been expanded
since the 1991 facility related stream survey was
conducted.” (HR 5).
SOF ¶16.
20
The Agency disputes Petitioners’ claim that “IEPA did not analyze the effects of
the existing New Lenox discharge with a recent valid study,” as this claim is inaccurate.
The Agency did, along with other information, did consider a study performed by the
Village in 2003. The study showed that no significant impact by the Village’s discharge
on the receiving stream as measured by macroinvertebrates.
Agthicy record at 368; 403-
418,- 512-521.
Petitioners state that, the applicant’ contractor, Earth
Tech, performed a biological study for the Village of New
Lenox (HR 513-519) at IEPA’s request (HR 660.5). There is
extensive discussion in the Hearing Record among IEPA staff
regarding deficiencies in the Earth Tech study. (HR 537,
HR 556-558, HR 561, HR 661-698)
.“
SOF ¶17.
-
The Agency
disputes Petitioners’ statements that the Village’s study was
“deficient.” The discussion in the record simply provides the views of various Agency
staff members who were involved in reviewing the Village’s study. Most of the
discussion was focused on various valid methodologies that could have been used for
performing MBI analysis.
Agency record at 665; 671; 674-675.
Some of the tolerance
values assigned to several species were not as the Agency would have assigned them;
Agency record at
370.
The consultant made these changes and recalculated the MBI
results. The difference between the two results was relatively minor. The pertinent
inquiry here is whether the Village’s study is adequate in determining the impact ofthe
Village’s existing discharge on the aquatic life ofHickory Creek. The overall conclusion
of the study was that as there was very little difference between upstream and
downstream MBI values, there was an insignificant or no adverse effect on the receiving
stream from the effluent.
Agency record at 370; 562.
Petitioners’ state that, “a Sept. 24, 2002
internal
IEPA
email from Howard Essig to Roy Smoger states, “The
21
macroinvertebrate memo prepared by Earth Tech is one of the
poorest studies I have seen in a while.” It is further
stated that “Statements made by Earth Tech on page 3 of
their report are all without merit. They do not back up
any of their statements with data. For example
-
they
attribute differences in taxa between stations to
variations in stream flow, dissolved oxygen levels and
habitat types- but they provided no stream flow or
dissolved oxygen data.” It is still further stated in this
email that “Earth Tech also indicated that the current
baseflow of Hickory Creek is adequate to dilute the volume
discharged from the WWTP. They did not provide any flow
data on Hickory Creek or the New Lenox WWTP to back up this
claim.” (HR 666-7)
.“
SOF ¶18.
The statement cited by Petitioners is a
dialogue between two Agency staff
members, and is not the Agency’s final conclusion on the validity of the Village’s study
for intended purposes. The Agency’s considers the Village’s study as valid for its limited
purpose to show that the existing discharge is not adversely impacting Hickory Creek.
Agency record at 370; 562.
Petitioners’ state that, “another internal IEPA memo, the
Oct. 9, 2002 Memorandum from Roy Smoger to Bob Masher,
summarizes the reviews by Smoger, Howard Essig and Mark
Joseph of the Earth Tech study and recommends that the
study be conducted again. This memo states, “We find it-
difficult to judge the validity of the analyses and
conclusions because the study used different collection
methods, differ~nt taxon-tolerance values, and different
criteria for interpreting MBI scores than those typically
used by Illinois EPA. In addition, the report does not
contain enough specific information on habitat, water
chemistry, and flow.” The memo concludes, “Therefore we
recommend that Earth Tech conduct the survey
-
again
following the guidelines listed below.” (HR 559-560)
.“
SOF ¶19.
The statement cited by Petitioners is a dialogue between two Agency staff
members, and is not the Agency’s final conclusion on the validity ofthe Village’s study.
The discussion stems from the fact that the procedures used by the Village’s consultant
22
were not exactly as the Agency would have used. The discussion also shows that there
are alternative field sampling practices. Based on the information received from the
Village’s consultant during the Agency review, the Agency concluded that the study is
valid and acceptable way of characterizing the current conditions of Hickory Creek.
Agency record at 370; 562.
-
Petitioners’ state that, “a Nov. 25, 2002 email indicates
confusion on whether IEPA field staff would redo the study.
(HR 700) A Nov. 26, 2002 email from IEPA’s Gregg Good shows
IEPA’s decision to ignore the Earth Tech study, stating,
“Therefore, forget using the contractor’s bug study.” On
the same day, IEPA referenced the study in the
Antidegradation Assessment. Antidegradation Assessment
Memorandum from Scott Twait to Abel Haile, Nov. 26, -2002
(HR 5)
:
“New Lenox sponsored a macroinvertebrate survey of
Hickory Creek at this location in August 2002. Pollution
intolerant organisms were found both upstream and
downstream of the existing discharge.” (HR 562)
.“
SOF
¶20.
The Agency disputes Petitioners’ unfounded claim that the Gregg Good’s email in
any way represents the Agency’s decision to ignore the Earth Tech study. Upon
reviewing the basis for listing Hickory Creek as “partial impairment,” the Agency
concluded that the decision-to list as partial impairment was rather based on violation of
standards for total dissolved solids, and not on biological information. The Agency’s
conclusion is also supported by the Village’s study that pollution intolerant organisms
were found both upstream and downstream of the Village’s STP 1 existing discharge.
Agency record at 562.
-
Copper
Petitioners state that, “in the reasonable potential
analysis for copper done f or this permit modification
(Memorandum of July 16, 2002 from Scott Twait to Abel
23
Haile), the concentration of the highest sample was 20.5
jig/l while the chronic standard forcopp~r at the hardness
level found in Hickory Creek is 20.6 ~ig/l. IEPA’s
calculation of the reasonable potential for a violation of
water quality standards for copper using the U.S. EPA
method revealed that there was a reasonable potential for
the level of copper to be more than double the acute water
quality standard f or copper and to exceed the chronic
standard by a factor of over 3.7. (HR 508)
.“
SOF ¶22.
The results of the two copper samples
collected by the Village’s STP 1
were
0.0 141 mg/L and 0.0205 mg/L. The average of the copper samples was 0.0173 mg/L.
As this value is less than the chronic water quality standard of 0.0206 mg/L, the Agency
determined that there was no reason to incorporate permit limits for copper.
Petitioners’ state that, “at the hearing, IEPA answered
that it had done no studies of alternatives to allowing the
discharge other than to review a study of land treatment
done by the applicant’s contractor and that it had not made
any study of the cost of removing phosphorus or nitrogen at
the plant. (HR 73-4)” SOF ¶26.
A study performed by the Illinois Associated of Wastewater
Agencies (IAWA)
regarding cost and efficiency ofnutrient treatment was before the Agency at the time the
Agency was making-its final decision. At the hearing, the Agency indicated that “a
2.5
MGD plant addition capabilities to remove both nitrogen and phosphorus is estimated to
have capital cost in excess of$5.4 million. This does not include the annual operations
and maintenance costs.”
Agency record at 74; 358.
Petitioners state that, “further, Petitioners urged that
the IEPA take the steps necessary to comply with 35 Ill.
Adm. Code 302.105(c). Petitioners presented comments that
the alternatives to allowing the increase in pollution were
not reasonably weighed prior to the issuance of the draft
permit and that many of the costs of proceeding under the
draft permit were ignored. William Eyring, Senior Engineer
for the Center of Neighborhood Technology, raised concerns
about the social and economic costs of expanding the plant
in the center of the Village. (HR 120-1) Jim Bland
•24
testified that the environmental effects of the kinds of
development that would be facilitated by the plant
expansion were not considered.
(HR 78-79, HR 109)
Petitioners testified that the estimated costs of
alternatives (e.g. land treatment and land application of
treated wastewater) to allowing the increased discharge
were unreasonably inflated and the costs of minimizing
nutrient discharges were not considered. Environmental
economist Jeff Swano requested a life cy~le analysis be
performed on all considered alternatives as an appropriate
economic assessment of the costs to provide a better cost-
benefit analysis and to provide the public with a costs-
per-treated-volume figure. (HR 70-2)
.“
SOF ¶28.
The Agency disputes Petitioners’ those statement that constitute interpretation of
the Board regulations. Such statements are not undisputed statements of facts. Further,
since the permit hearing was only an informational hearing and no testimony was
allowed, Petitioners could not have testified at the hearing.
-
Petitioners’ state that, “in particular, Jim Bland, an
expert on eutrophication, testified on behalf of the Des
Plaines River Watershed Alliance at the public hearing that
“Data concerning increased nutrient
-
loading, especially
phosphorus is not included in the proposed permit.... On a
long term basis the proposed increase in discharge will
increase the “attached algae” (periphyton that covers the
rocks and bat-tom rubble that are characteristic of this
reach (c.f. Ecological Effects of Wastewater, E.B. Welch)
This increase in stream productivity has the capacity to
dramatically alter the character of the invertebrate
communities downgradient from the STP.” (HR 110). SOF
¶30.
The Agency objects to Petitioners’ claim that Mr. Jim Bland is “an expert on
eutrophication,” as this claim is not supported in the record. Also, the Agency disputes
Petitioners’ comment that Mr. Bland “testified”, as the permit hearing was only an
information hearing, Mr. Bland could not have testified at this hearing.
The Final Permit and Responsiveness Document
25
Petitioners state that, “the permit set no limit for
copper. (HR 343) No explanation appears in the record as
to why the Agency proceeded in conflict with the U.S. EPA
recommended method for determining the reasonable potential
to violate the acute copper standard. No study was done
under 35 Ill. Adm. Code 302.102 to develop a mixing zone
analysis. Regarding the chronic standard, the New Lenox
Responsiveness Summary states “It is important to remember
that this comment is dealing with reasonahle potential to
exceed a chronic water quality standard. By definition, a
chronic standard must not be exceeded in the receiving
stream by the average of at least four samples.” (HR 363)
Yet there is no discussion of the possibility of requiring
more samples than the two provided.” SOF ¶38.
Facilities such as the Village’s STP 1 that have been
identified through the pre-
treatment program as having a low risk for high levels of metals are not a significant
source of copper. As no known source ofcopper is discharging into the Village’s STP 1,
and the sample results were below the chronic water quality standard, the Agency
determined that no permit conditions for copper are necessary. The Agency’s decision to
not incorporate copper limits is consistent with the Act and Board regulations.
Petitioners’ state that, “nb
limits were set for
phosphorus or nitrogen. (HR 343) Other than to mention
that a study done by the Illinois Association of Wastewater
Agencies (never placed in the record) indicating that the
combined costs of treating nitrogen to an-unmentioned level
and phosphorus to the level of 0.5 mg/L might cost capital
costs of $5.4 million (HR 358), IEPA never discussed the
cost of treating phosphorus. No mention appears in the
record of any analysis of the cost, feasibility or
reasonableness of any level of phosphorus treatment alone
(without nitrogen treatment) or of any level of phosphorus
treatment other than 0.5 mg/L.” SOF ¶40.
The Agency, based on the information in the Agency record, found that Hickory
Creek does not have an “offensive conditions” situation, and that Hickory Creek is
supporting a healthy and diverse aquatic ecosystem. Therefore, no permit limits are
required for offensive conditions.
Agency record at 361; 364.
Additionally, the Agency
26
‘
disputes the statement that the study performed by the Illinois Association ofWastewater
Agencies was not part of the record, as the record properly includes everything the
Agency relied upon at the time it made its decision.
Petitioners’ state that, “no limits are placed in the
permit to prevent violation of the “offensive conditions”
narrative standard. The Responsiveness Summary indicates
that the Agency would only place limits on nutrients in the
permit after numeric standards are set. (HR 356) The IEPA
declines to attempt to place limits in the permit to
satisfy the narrative standard on plant and algal growth
because “This is a very difficult standard to apply to a
permit.” (HR 357)
.“
SOF ¶41.
Petitioners’ statement in SOF ¶41 that, “no limits are placed in the permit to
prevent violation ofthe ‘offensive conditions” is a statement oflaw, and not a fact. It is
the Board’s, not the Petitioners’, authority to determine if the Agency imposed the proper
requirements in the permit. The Agency based on the information in the Agency record,
determined that Hickory Creek does not have “offensive conditions” situation, and that
Hickory Creek is supporting a healthy and diverse aquatic life. Therefore, no permit
limits are necessary with regard to offensive conditions.
Agency
record at 361; 364.
ARGUMENTS
The sole basis for the Petitioners’ motion for summary judgment is that the permit
as issued would violate 35 Ill. Adm. Code 302.105, 302.203, and 304.105 of the Board,
warranting summary judgment in their favor. As there exist numerous issues ofmaterial
facts and law, the Agency requests that the Petitioners’ motion for summary judgment is
DENIED.
I. THE PERMIT AS ISSUED COMPLIES WITH THE APPLICABLE
REQUIREMENTS OF ANTIDEGRADATION REGULATIONS
27
Petitioners argue that the permit as issued does not comply with 35 Ill. Adm.
Code 302.105(c)(2)(B)(iii) as the Agency did not assure that the permit incorporated all
reasonable measures to avoid or minimize the extent ofthe new pollution loading.
Specifically, Petitioners argue that the Agency failed to assure that reasonable controls
were put on nutrients.
Memo at 6.
In support oftheir argument, Petitioners claim that the
Village’s STP 1 is a major source ofphosphorus to Hickory Creek and that phosphorus is
already having an adverse impact on the stream and downstream waters.
Memo at 7.
Petitioners further argue that Section 302.105(c) language is plainly mandatory and
requires that the Agency
must
assure that
all
reasonable measures to minimize the extent
ofthe pollution have been incorporated.
Memo at 8.
•
The Agency disagrees with the Petitioners’ interpretation that Section 302.105(c)
requires the Agency to incorporate phosphorus treatment controls in the Village’s permit.
In support ofthis, the Agency provides the following analysis:
Section 302.105, in part, provides:
c)
High Quality Waters
-
2)
The Agency must assess any proposed increase in pollutant loading that
necessitates a new, renewed or modified NPDES permit or any activity requiring
a CWA Section 401 certification to determine compliance with this Section.
The assessment to determine compliance with this Section must be made on a
case-by-case basis. In making this assessment, the Agency must:
A)
Consider the fate and effect of any parameters proposed for an
increased pollutant loading.
-
B)
Assure the following:
i)
The applicable numeric or narrative water quality standard
will not be exceeded as a result ofthe proposed activity;
ii)
-
All existing uses will be fully protected;
iii)
All technically and economically reasonable measures to
avoid or minimize the extent of the proposed increase in
28
pollutant loading have been incorporated into the proposed
activity....
35
Ill. Adm. Code 302.105
(emphasis added).
Petitioners read Section 302.105(c)(2)(B)(iii) to require that if there is an
increased pollutant loading by an activity and a technology to treat that pollutant is
available, the Agency must incorporate such controls in the permit.- Petitioners’ reading
ofSection 302.105 is erroneous. The Agency believes that the basic directive of Section
302.105(c)(2) is that where technical and economical alternatives exit to an activity and
those alternatives are reasonable, the Agency must consider such alternatives in its
assessment. This assessment must be done on a case-by-case basis. The real objective of
this assessment is to reduce the pollutant loading if it is reasonable to do so. Petitioners
ignore the balancing test required by the antidegradation rules. For example, in case of
Tier II waters, water quality cannot be lowered below the level necessary to protect the
fishable/swimmable uses and other existing uses. However, maintaining a level ofwater
quality above the “fishable/swimmable” level is not always required and water quality
maybe lowered if necessary to accomplish important economic or social development in
the area in which the waters are located.
In The Matter Of? Revisions To
Antidegradation Rules,
35 Ill. Adm. Code 302.105, 303.205, 303.206, AND 102.800-
-
102.830, 2001 WL 34084035, ROl-13, June 21, 2001, page 3.
(emphasis added).
Pursuant to Section
302.105(f)(l)(D),
the Agency conducted its assessment of
alternatives to the Village’s proposed increase in pollutant loading.
Agency record at 5-
7~
372-374.
The Agency in its Responsiveness Summary discusses in detail the various
alternatives considered in this case. The Village considered land application of its
effluent as an alternative but found the alternative to be economically unreasonable. The
Village’s consultant estimates that 425 acres ofland is required for irrigation alternative,
29
out of which 269.9 acres is required for irrigation purposes and the rest ofthe land for
treatment and buffer zone. The supplement informationçrovided by the Village’s
consultant shows that the Village contacted a neighboring golf course to find if the golf
course would be interested in spraying its effluent. The golf course did not consider the
offer due to high groundwater and artesian wells that feed the pon~1s. Further, the
Agency and NIPC require communities to explore other alternatives for wastewater
treatment such as land application and regionalization ofplants when possible and cost
effective. Unlike the Petitioner~’assertion, the Agency did consider all technically
and
economically reasonable alternatives to minimize the pollution loading from the Village’s
STP 1.
Unlike Petitioners’ claim, the Village’s STP 1 is not a major source ofphosphorus
to Hickory Creek
and
there is no evidence in the record to assert that phosphorus from the
Village’s STP 1 is already causing an adverse impact on the stream. Along with the non-
point sources ofphosphorus, there are at least 12 wastewater treatment plants that
discharge into Hickory Creek. Nine ofthese facilities are located upstream ofthe
Village’s STP 1 discharge. Contrary to Petitioners’ claim, the Agency did consider all
technically and economically reasonable alternatives to the proposed increase in pollutant
loading.
II. THE PERMIT AS ISSUED DOES NOT VIOLATE APPLICABLE NUMERIC
OR NARRATIVE WATER QUALITY
STANADRDS
In
order to prevail in theirmotion for summaryjudgment, Petitioners must show
through undisputed facts that the permit as issued would cause violations the numeric or
30
narrative water quality standards. It is evident from the following discussion that
Petitioners fail to meet this burden.
A.
The Permit As Issued Does Not Violate Section 304.105 or 309.141
Requirements
-
Petitioners argue that the Agency failed to assure that the plant discharges would
not cause violations ofthe standards for dissolved oxygen and pH. Petitioners further
argue that the Agency violated Section 304.105 in granting this permit.
Memo at 10-11.
As the Village’s.permit has a water quality based effluent limit for dissolved
oxygen and pH, Petitioners’ assertion is without any merit. Petitioner fails to show how
Section 304.105 would be violatedby this permit. The Agency is well-aware ofthe
requirements ofSection 304.105. However, in this case, the Agency determined that the
Village’s effluent, alone or in combination with other effluents, will meet all applicable
water quality standards. The record fully supports the Agency’s determination that the
permit, as issued, would not cause the violation ofthe Act or the applicable Board
regulations.
-
B. The Permit
As Issued
Would
Not Cause a Violation
of Section
302.203
Petitioners argue that Sections 302.203, 304.105, and 309.141 are clearly violated
by the permit as the record clearly establishes that the offensive conditions standard is
currently being violated.
Memo at 12.
-
Petitioners’ argument lacks the reasonable interpretation ofthe law and is not.
-
supported by the undisputed facts. Section 303.203, in part, provides that, “waters of
the State shall be free from sludge or bottom deposits, floating debris, visible oil, odor,
-
31
plant or algal growth, color or turbidity of other than natural origin. 35 Ill. Adrn. Code
3 02.203
(emphasis added).
A plain review ofthis section reveals that this section has
two components. The first component enumerates the substances that are prohibited in
• the State’s waters. The second component clarifies that the enumerated substances are
prohibited only when they are of ‘other than natural origin.’ The Agency contends that
‘unnatural’ is the operative word in determining the violation of Section 302.203.
Therefore, a Section 302.203 violation can only occur if plant or algal growth of
unnatural origin is found in receiving waters. The record lacks any evidence to suggest
that unnatural algal growth exists below the Village’s discharge point. Petitioners have
made no attempt to prove otherwise. Petitioners’ statements, at the best, suggest that
algae was witnessed in the stream. These statements do not establish that algal bloom of
unnatural growth was found in Hickory Creek below the Village’s discharge point.
IfPetitioners are arguing that Section 302.203
strictly prohibits the discharge of
any levels ofphosphorus in the receiving waters, then this argument must be rejected.
Under such construction, discharge ofeven a small
amount
ofphosphorus is a violation
ofSection 302.203. Nitrogen and phosphorus are the
primary
nutrient required for
virtually all plant life, both terrestrial and aquatic. These nutrients are available to water
bodies naturally as well as anthropogenically. Phosphorus is generally believed to be the
nutrient in shortest supply in the freshwater ecosystems, and therefore, its concentrations
may often limit plant growth. Sometimes a waterbody receiving nutrients may have
algae that is not limited by phosphorus but ratherby anothernutrient or by water quality
factors. Phosphorus is an essential nutrient for the health ofaquatic life. The Agency
objects to Petitioners’ narrow and literal interpretation as Section 302.203 does not stand
32
for a total prohibition ofdischarge ofsmall amounts of phosphorus in the receiving
stream. The general principle is that the Board regulations are construed and applied to
avoid absurd and unfair results.
See Village ofFox River Grove v. Pollution Control
Board,
299 Ill. App. 3d 869, 880, 234 Ill. Dec. 316, 702 N.E. 2d 656, 664 (1998).
Therefore, the Petitioners’ interpretation must be rejected as it prdduces impractical and
absurd results.
In
City ofEast Moline v. Illinois EPA,
1989 WL 144768, PCB 87-127
(Nov.
15,
1989), the petitioner had asked for a variance from the water quality standards of35 Ill.
Adm. Code 302.203 relating to unnatural sludge for its discharge to an unnamed tributary
of the Mississippi River. The Board denied the petitioner’s request for relief and
concluded that the petitioner’s discharge violated both Section 302.203 and Section
304.106. The Board’s conclusion was in
part
based on the Agency’s findings that “the
quality ofthe water changed from clear to brown and turbid; sludge was up to 14-20
inches deep; no fish were found below the discharge point in the tributary, but were
found upstream;l and benthic organisms were reduced substantially.”
Id.
at 1989 WL
144768, *6. Petitioners have failed to meet the burden ofproof required under the
City of
East Moline.
-
To prevail in their motion for summary judgment, Petitioners must present
undisputed facts to show that Hickory Creek right below the Village’s STP 1 has algal
growth ofunnatural origin. Mere presence of algal growth that is of natural origin is not
prohibited by Section 302.203. The Agency’s discussion in Material Facts In Dispute
section ofthis response, shows that these material facts are at dispute. Therefore, the
33
Board must DENY Petitioners’ motion and direct the parties to develop these facts
through the discovery process and at the Board hearing.
C. The Agency’s Decision to Not Include Copper Limits in the Permit Does Not
Lead to Violation of The Act or Board Regulations
Petitioners argue that the permit does not comply with 35 Ill. Adm. Code 302.105
or 309.141 as it does not limit all pollutants that may cause or contribute to a violation of
the copper standard.
Memorandum ofLaw (hereinafier “Memo’) at 14.
Petitioners’ argument is flawed in that it assumes that copper limit was necessary
in this case. The following discussion shows that the Agency’s decision to issue the
Village’s NPDES permit without copper limit is supported by the record•and is consistent
with the Act and the applicable Board regulations.
The Agency uses the USEPA
Technical Support Documentfor Water Quality
Based Toxics Control
(“TSD”) as a technical guidance document. Using the TSD, the
Agency determines whether further analysis is necessary. The Agency does not believe
that the USEPA’s prOcedure described in the TDS is valid when a small sample size
exists because the TDS recommends the application ofhigher multiplier. In cases where
limited data exist, the Agency evaluates these substances against the water quality
standards applicable to the receiving stream. This approach is especially appropriate in
cases where facilities have been previously identified through the pre-treatment program
as having a low risk ofhigh levels ofmetals and other industrial pollutants in treated
domestic waste effluents. In this case, the Agency determined that the Village’s STP 1 is
one of such facilities.
34
The Village reported results ofcopper samples collected on January 9, 2001 and
June
15,
2001 as 0.0141 mg/L and 0.0205 mg/L respectively. The average ofcopper
samples was 0.0 173 mg/L. Since this value is less than the chronic water quality
standard of0.0206 mg/L, the Agency determined that there permit limit for copper was
not warranted in this case. Ifone ofthe samples would have exceeded the acute water
quality standard, the Agency would have incorporate copper limits into the permit or
would have required 6 months ofmonitoring. Also, if the average ofthe samples would
have exceed the chronic water quality standard, the Agency would have incorporated
copper limits into the permit or would have required 6 months ofmonitoring. Ifthere
seems to have been an outlier or more data is necessary, the Agency would have required
more sampling. This decision was also based on the fact that no known source ofcopper
is discharging into the Village’s waste stream.
CONCLUSION
For the reasons and arguments provided herein, the Agency respectfully requests
that the Board
DENY the Petitioners’ motion for
summary
judgment, and direct the
parties to develop factual issues through the discovery process
and
at the Board hearing.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By: _______________________
SanjayK. Sofat
Special Assistant Attorney General
35
Division of Legal Counsel
Dated: May 24, 2005
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
36
a
STATE OF ILLINOIS
COUNTY OF SANGAMON
)
)
)
PROOF OF SERVICE
SS
I, the undersigned, on oath state that I have served the attached the RESPONSE
TO PETITIONERS’ MOTION FOR
AND
MEMORANDUM OF LAW IN
SUPPORT OF SUMMARY JUDGMENT upon the
persons to whom it is directed, by
placing a copy in an envelope addressed to:
Dorothy Gunn, Clerk
Albert F. Ettinger
Illinois Pollution Control Board
Senior Staff Attorney
James R. Thompson Center, Suite 11-500 Environmental Law & Policy Center
35 East Wacker Drive, Suite 1300-
Chicago, IL 60601
and mailing it from Springfield, Illinois on May 24,
2005, by U.S. Mail with sufficient
postage affixed.
SanjayK. Sofat
SUBSCRIB~~AND SWORN BEFORE ME
THIS
c~(4~
DAY OF MAY, 2005.
~iA~QJ(
OFFICIAL SEAL
•BRENDA BOEHNER
j: NOTARY pUBLlC~ STATE OF ILLINOIS
~:MY
COMMISSION EXPIRES iI.14-2OO5~
THIS FILING PRINTED ON RECYCLED PAPER
100 West Randolph Street
Chicago, IL 60601
BradleyP. Halloran
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Roy M. Harsch
Sheila H. Deely
Gardner Carton & Douglas LLP
191 N. Wacker Drive- Suite 3700
Chicago, Illinois 60606-1698
36
