RECEIVED

CLEf~K’SOFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL

BOAIth~Y252005

DES PLA1NES RIVER WATERSHED

ALLIANCE, LIVABLE COMMUNITIES

ALLIANCE, PRAIRIE RIVERS

NETWORK, and SIERRA CLUB

Petitioners

v.

)

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY and VILLAGE OF NEW LENOX

Respondents.

PCB 04-88

(APPEAL FROM IEPA

(DECISION GRANTING

NOTICE OF FILING

Ms. Dorothy M. Gunn

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

-

Suite 11-500

Chicago, IL 60601

Albert F. Ettinger, Senior Attorney

Environmental Law and Policy

Center ofMidwest

35

B. Wacker Drive

-

Suite 1300

Chicago, IL 60601

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

-

Suite 11-500

Chicago, IL 60601

PLEASE TAKE NOTICE

that on Wednesday, May 25, 2005, we filed the attached

The Village of New Lenox’s Memorandum ofLaw In Opposition To Petitioner’s Motion

For Summary Judgment

and

Response ofVillage of New Lenox To Petitioners’ Statement

Of Relevant Facts From The Agency Record with

the Clerk ofthe Pollution Control Board, a

copy ofwhich is herewith served upon you.

Respectfully Submitted,

Roy M. Harsch

Sheila H. Deely

GARDNER CARTON & DOUGLAS LLP

191 N. Wacker Drive

-

Suite 3700

Chicago, Illinois 60606

(312) 569-1000

,~e ~

Sheila H. Deely

)

)

)

)

)

)

STATE OF ILLINOIS

Pollution Control Board

)

)

)

)

THIS FILING IS BEING SUBMITTED ON RECYCLED PAPER

---

RECE~VED

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD

MAY 252005

DES PLAINES RIVER WATERSHED ALLIANCE,

)

STATE OF ILLINOIS

LIVABLE COMMUNITIES ALLIANCE,

)

Pollution Control

Board

PRAIRIE RIVERS NETWORK, and SIERRA CLUB,

)

)

Petitioners,

)

)

v.

)

PCB04-88

)

(NPDES Permit Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY and VILLAGE OF NEW LENOX

)

)

Respondents.

)

THE VILLAGE OF

NEW LENOX’S MEMORANDUM

OF LAW

IN

PETITIONERS’ MOTION FOR SUMMARY JUDGMENT

The Village of New Lenox urges the Illinois Pollution Control Board to deny the

Petitioners’ Motion for Summary Judgment. The Petitioners’ motion relies on misstatement of

.what the law requires and a selective attention to their own comments in the record, all without

properly considering Illinois EPA’s response or evidence in opposition to those comments.

Petitioners are not entitled to summary judgment.

Standard of Review

In a third party permit appeal, the petitioner is required to show that the permit at issued

would violate the Act or Board regulations.

See Opinion and Order, Village ofLake Barrington

v. Illinois EPA,

PCB

05-59

(April 21, 2005);

Prairie Rivers Network v. Illinois Environmental

Protection Agency,

PCB 01-112 (August 9, 2001), affirmed by

Prairie Rivers Network v. Illinois

Pollution Control Board,

335 Ill. App.3d 391 (4th Dist. 2002). The Board’s review is based on

information before the Agency during the Agency’s statutory review period.

Id.

It is

Petitioners’ burden to establish a

prima facie

case, and only at that point is it necessary for

Illinois EPA to put forth evidence that contravenes the evidence of Petitioners.

See Browning-

CHO2/ 22386522.1

---

Ferris Industries, Inc. v. Pollution Control Board,

179 Ill. App.3d

598, 534

N.E.2d 616 (2d Dist.

1989).

As the record will show, Petitioners cannot meet their initial burden, but even if they

could, Illinois EPA had ample evidence to support the determinations it made concerning the

limits to be included in the permit, and those limits advocated by Petitioners that were not

necessary to accomplish the purposes ofthe Illinois Environmental Protection Act,

415

ILCS

5/1

et seq..

With respect specifically to summary judgment, this motion is an inappropriate vehicle

for resolution of a third party permit appeal. Summary judgment can only be granted where

there are no disputed issues of fact, and the movant is entitled to judgment as a matter of law.

See

Roger Stone v. Illinois EPA,

PCB 01-68 (January 18, 2001). What Petitioners have done

here is simply excise snippets of statements that may be found in the record and intersperse those

snippets with legal argument. That does not meet the requirement to establish undisputed facts.

The response to Petitioners’ Statement of Facts ought to be enough to defeat their motion. To

the extent the Board may have a different view concerning whether summary judgment may be

granted in a case such as this, New Lenox has responded with the memorandum oflaw.

Procedural Background

In June 2002, the Village of New Lenox applied to expand its treatment plant,

constructed in 1973 and located at 301 North Cedar Road. SOF ¶ 2.’ The plant was then

operating at 85 percent capacity and expansion was necessary to ensure wastewater services

were properly provided for projected development in New Lenox. The area to be served was

within New Lenox’s FPA, and New Lenox had received full approval from the Northeastern

Illinois Planning Commission for its expansion. SOF ¶

4.

Citations refer to New Lenox’s responseto each cited paragraph of Petitioners’ statement of facts.

CHO2/ 22386522.1

2

---

The plant discharges into Hickory Creek, which is a general use water. 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. SOF ¶ 1.

Hickory Creek segment GG-02 is listed on the Illinois’ impaired waters list, known as the 3 03(d)

list. The potential causes of impairment at the time of listing were nutrients, phosphorus,

nitrogen, salinity/TDS/Chlorides, TDS (chlorides), flow alterations, and suspended solids. The

potential sources associated with the impairment are municipal point sources, combined sewer

overflows, construction, land development, urban runoffYstorm sewers, hydrological/habitat

modification, and flow regulationlmodification. SOF ¶ 4. It is not listed as a biologically

significant water body in the Illinois Natural Survey publication

Biologically Sign~ficant Illinois

Streams,

and does not support any threatened or endangered species. SOF ¶ 1.

On. January

5,

2003, JEPA gave notice that it had made a tentative decision to renew the

NPDES permit issued to the Village ofNew Lenox to discharge to Hickory Creek. SOF ¶ 23.

The draft renewed permit allowed the New Lenox plant to increase its design average flow from

1.54

million gallons per day to 2.5 16 million gallons per day. During the course of the permit

proceedings, New Lenox was asked to and did perform a Water Quality Assessment ofHickory

Creek, which included sampling of Hickory Creek, and a macroinvertebrate survey to assess the

effect of the discharge of aquatic life. SOF ¶ 16-20. New Lenox also reviewed alternatives to

the discharge, including an analysis ofspray irrigation. SOF ¶ 26. Based on these reports and on

other information before Illinois EPA, Illinois EPA was able to complete its antidegradation

assessment and conclude that expansion of the plant could proceed in compliance with

regulatory requirements governing water quality. SOF ¶ 16. After having provided New Lenox

CHO2I

22386522.1

3

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with an opportunity to review the proposed conditions ofthe draft NPDES permit, Illinois EPA

issued the draft permit for public notice on January

5,

2003. SOF ¶ 23.

V

Based on the comments that were received, Illinois EPA elected to hold a Public Hearing,

which took place on April 24, 2003. At the hearing, members ofthe public were provided with

and opportunity to comment and ask questions ofthe Illinois EPA staff members involved with

the permit. SOF ¶ 23. New Lenox was present at the Public Hearing, although as the applicant it

did not provide comments to Illinois EPA during the hearing. SOF ¶ 24. In Petitioners

comments, they made a variety of claims and requests, including request for nutrients limits,

copper, ammonia, total dissolved solids. Petitioners commented on algae in Hickory Creek, the

anti-degradation review, urbanization in New Lenox, the macroinvertebrate survey, and other

matters. All of these issues were properly considered by Illinois EPA—to the extent they were

relevant to the NPDES permit review—and were the subject of appropriate deliberation among

Illinois EPA staff members. All comments were ultimately addressed by the Illinois EPA as part

ofthe responsiveness summary or in the conditions ofthe final NPDES permit. SOF ¶ 29.

Illinois EPA issued its final NPDES permit on October 31, 2003. That permit included

new limits on dissolved oxygen, total dissolved solids, and ammonia, which were included to

satisfy concerns raised during the public notice and which New Lenox agreed to accept without

contest. Based on Illinois EPA’s determinations, no limitations were included for nutrients and

copper. SOF ¶ 37.

The Board’s review is heavily dependent on the Agency’s findings of fact here and

conclusions of law as found in its Responsiveness Summary and final NPDES permit, which

differ materially from Petitioners comments and conclusions. Consequently, New Lenox will

address specific public comments as part ofits response to each Petitioner argument.

CHO2/ 22386522.1

4

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1.

Illinois EPA Complied with Anti-Degradation Regulations

As part of the permit review, Illinois EPA conducted an anti-degradation assessment.

Hickory Creek is not on the current list of biologically significant streams compiled by the

Illinois Department ofNatural Resources (“IDNR”), which is one relevant list for purposes of

anti-degradation, and it is not an Outstanding Resource Water. No threatened or endangered

species are present in the stream segment to which New Lenox discharges. See Resp. par. 1.

During the course of these proceedings, Illinois EPA also reviewed the science underlying its

listing of Hickory Creek on the 303(d) list, and concluded that “a revie~vof the causes of

impairment resulted in a new conclusion. Agency biologists now believe that only total

dissolved solids can be implicated as a cause of whatever impairment may exist in this stream

segment outside ofthe immediate area ofthe New Lenox outfall.” Consequently, Illinois EPA

requested that the permit incorporate limits on total dissolved solids, and New Lenox accepted

those limits.

Illinois EPA performed its anti-degradation analysis by reference to standards governing

waters that meet existing uses, and this is the appropriate classification for Hickory Creek. See

PR. 601. Illinois EPA concluded that “at the present time.

. .

the incremental nutrient loading

anticipated to result from this project is not expected to increase algae or other noxious plant

growth, diminish the present aquatic community, or otherwise aggravate existing stream

conditions.” Illinois EPA noted the continued work of the Nutrient Standards Workgroup, and

the possibility that nutrient reduction requirements would be imposed on New Lenox upon

adoption of state standards. PR. 602. Illinois EPA also concluded that alternatives to the

discharge were not feasible, and also noted the economic and social need for the expansion.

CH02/ 22386522.1

5

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Petitioner contends that Illinois EPA failed to comply with anti-degradation regulations

because it did not ensure that reasonable controls were put on nutrients. As support for its

argument, Petitioner cites the “High Quality Waters” provision of Illinois Anti-Degradation

Regulations. Mem. 7. This is not the regulatory provision applicable to Hickory Creek. High

Quality Waters are those whose existing quality exceeds the state’s adopted water quality

standards, which is not the case here, and Hickory Creek does not meet this standard. See

Section 302.105(c). Instead, the antidegradation review should be based on the minimum level

ofprotection at Section 302.105(a) applicable to waters that meet existing uses.

Illinois EPA made the determination that no nutrients standards were necessary. With

respect to the uses in Hickory Creek, Petitioners argue that Illinois EPA “at a minimum should

have determined what level of phosphorus and nitrogen removal were economically reasonable

and imposed limits based on that determination.” Mem. 9. Illinois EPA explicitly determined

“the incremental nutrient loading anticipated to result from~this project is not expected to

.

aggravate existing stream conditions.” Illinois EPA completed the regulatory analysis required

under regulations governing antidegradation and considered all the comments made by the

public.

Illinois EPA also considered the nutrient data reported by New Lenox in connection with

its study. New Lenox’s effluent on the day it sampled was 2.76 milligrams per liter of total

phosphorus. The four downstream samples taken as part of the study all showed phosphorus at

values of 1.60 milligrams per liter, 1.63 milligrams per liter, 1.47 milligrams per liter, and 1.52

milligrams per liter. Addressing the available data, Illinois EPA concluded that there was

nothing unusual about stream phosphorus values such as those reported for Hickory Creek.

Further, the Illinois EPA concluded specifically in this case that “the incremental nutrient

CHO2/22386522.1

6

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loading anticipated to result from this project is not expected to increase algae or other noxious

plant growth, diminish the present aquatic community or otherwise aggravate existing stream

conditions.”

More importantly, Petitioners’ arguments concerning nutrients beg the question that

regulators and the regulated alike are wrestling with. Illinois EPA and the scientific community

in general have long recognized that the science concerning nutrients and their effect on

waterbodies is both complicated and uncertain, and Illinois EPA has convened a work group to

study the issue of nutrients and develop standards that would be proposed to govern dischargers

in Illinois. Many factors come into play, including the nature of the stream and the discharge.

There is no dispute and the Illinois EPA took into consideration that the existing New Lenox

plant discharges nutrients, and increasing the capacity of the plant will increase the mass of

nutrients, but it will also increase stream flows.

In addition, during the course of the

proceedings, Illinois EPA acknowledged “major knowledge gaps” in the science concerning

nutrients. HR 356. In fact, the Board itself has concluded as much in the opinion concerning the

technology-based interim standard for phosphorus recently proposed by the Board. See Opinion

and Order, R 04-26 (April 7, 2005). Under these circumstances, it would be inappropriate to set

nutrient standards in the context ofan NPDES permit.

The Agency also fully considered the economic and technical feasibility of a range of

alternatives, including spray irrigation at farmland and a golf course, as well as alternative

discharge locations.

PR 403, 634.

Those alternatives were found to be economically

unreasonable and technical unfeasible. With respect to Petitioners’ claim that the acceptance by

other environmental communities of phosphorus limits (see Mem. 10), the records of those

proceedings are more likely to show that those communities accepted the limits not as a

CHO2I 22386522.1

7

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consequence of Illinois regulatory requirements but instead as a consequence of the delay and

expense associated with the public’s regulatory involvement in the permit process, including the

right to challenge permits. The record is also likely to show that the acceptance ofpermit limits

by those communities to appease environmental groups, with the goal of allowing the

community projects to proceed in an expeditious manner, has had no discernable impact on the

quality ofthe streams to which those communities discharge.

2.

Illinois EPA’s

Permit Complies with Water

Quality Standards

As part of its determination concerning the permit’s compliance with water quality

standards, Illinois EPA requested and New Lenox voluntarily agreed to accept certain limits.

These limits include dissolved oxygen, total dissolved solids, and ammonia. Illinois EPA also

requested that New Lenox perform a study of the aquatic life in the creek. New Lenox

performed that study, which demonstrated that Hickory Creek has fish populations that are not

impaired by New Lenox’s discharge, and Hickory Creek did not have fish populations indicative

of low dissolved oxygen concentrations. HR 361. Illinois EPA concluded based on relevant data

for 2003 that all measurements in Hickory Creek meet the water quality standard for dissolved

oxygen. HR 364.

Illinois EPA nevertheless included a permit limitation governing dissolved oxygen, and

notwithstanding Illinois EPA’s determination, New Lenox elected not to challenge that permit

limitation. Illinois EPA also recommended limitations for ammonia and total dissolved solids.

Illinois EPA determined, however, that the other limits sought by Petitioners were not warranted

or appropriate. These include limits for nutrients, pH and copper.

CHO2/ 22386522.1

8

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a.

Illinois EPA made the determination that no permit limits were necessary to

address “offensive conditions”

Illinois EPA made the determination that no limits were required to address offensive

conditions. To the extent Petitioners claim that algal growth constitutes an offensive condition,

Illinois EPA addressed algae in its Responsiveness Summary, explaining that algae is a vital part

of the aquatic commu~iityand algae growth in itself is not a problem; it is in relation to

dissolved oxygen and the adverse impact on fish that provides context for assessing algae.

Illinois EPA stated that “Streams would be expected to exhibit either one kind of algal growth or

another,” depending on a variety offactors, and “the best measure ofwhether fish are adversely

impacted is to look at the local fish population. Hickory Creek has fish populations that are not

indicative of low dissolved oxygen concentrations.” HR 361.

Further, the Illinois EPA

concluded specifically in this case that “the incremental nutrient loading anticipated to result

from this project is not expected to increase algae or other noxious plant growth, diminish the

present aquatic community or otherwise aggravate existing stream conditions.” PR

565.

So long

as Illinois EPA has appropriately considered Petitioners comments and reviewed information on

the water quality in Hickory Creek, its decision is reasonable and should be upheld.

See Ohio

River Valley Environmental Coalition v. Callaghan,

133 F.Supp.2d 442 (S.D. W. Va. 2001).

Even were Petitioners claims concerning algae as true, it is reasonable for Illinois EPA to

determine that no nutrient limitations were appropriate for New Lenox. Illinois EPA is aware of

other dischargers to the stream as well as conditions in the stream. Under these circumstances, a

solution to any algae problem would be more appropriately imposed stream-wide, rather than

imposing limitations on one discharger not expected to contribute to any existing problem.

See,

e.g., Communities for a Better Environment v. State Water Resources Control Board,

109 Cal.

App.4t’~1089, 1 Cal. Rptr. 3d 76 (Cal 1st Dist. 2003).

CHO2/ 22386522.1

9

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It is also worth noting that given the complicated and disputed nature of the science

governing nutrients and their effects, including algae, Illinois EPA has convened a work group to

perform the work necessary to propose scientifically defensible standards for Illinois. In any

case, it is important that any nutrient standards be set in the context ofa rulemaking, not a permit

appeal before the Board. The question of what regulatory limits are appropriate for Illinois is

unresolved and surrounded by scientific uncertainty. Contrary to Petitioners’ arguments, for

Illinois EPA to have set limits on phosphorus in New Lenox’s permit in the absence of a

rulemaking (and a better understanding of the science) would have been a reversible error.

Illinois EPA made the determination that nutrient limitations were not necessary to accomplish

the purposes of the Act. Other state courts have considered this issue and made the finding that

application of such a standard would be rulemaking, requiring compliance with the procedural

requirements governing an agency’s issuance of a rule.

Simpson Tacoma Krafi Co. v.

Washington Dept. of Ecol.,

119 Wash.2d 640, 835 P.2d 1030, 1034-36 (Wash. 1992);

Wisconsin

Elec. Power Co. v. Dept. of Natural Resources,

287 N.W.2d 113 (Wis. 1980). Petitioners’

citation

of PUD No. 1 of Jefferson County v. Washington Dept. ofEcol.,

511 U.S. 700 (1994) is

inapposite, as that case considered imposition of a standard requiring minimum stream flows,

which is easily applied.

V

To the extent it is relevant, Illinois EPA also concluded that no permit limitations were

necessary for pH. Sampling performed by Illinois EPA at the U.S.G.S. stream gauge in Joliet,

approximately seven miles downstream from New Lenox’s discharge point, showed that during

the period of record, average pH was 7.8. PR 640. While there were a handful of pH levels

detected above 9.0 during the extensive time period of this data, Illinois EPA pointed out that in

some environments, a pH over 9.0 is not an unnatural condition. Illinois EPA also stated that its

CHO2/ 22386522.1

10

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monitoring station on the lower part of Hickory Creek may not have similar morphology to the

area around New Lenox, and therefore drawing direct conclusions between sites may not be

valid. HR 369. Finally, New Lenox’s pH sampling in connection with its water quality report

showed pH ranging from 6.77 to 8.21 in the vicinity ofNew Lenox’s plant.

b.

Illinois EPA determined that

New

Lenox did not have a reasonable potential

to contribute to violations of copper limits

As part of Illinois EPA’s review ofNew Lenox’s application for expansion, Illinois EPA

also considered whether New Lenox had the reasonable potential to violate water quality

standards for copper. In its Responsiveness Summary, Illinois EPA concluded that for the

chronic standard at issue here, on an average basis, the effluent is not likely to exceed the water

quality standard and therefore would not cause a violation of that standard. HR 363.

Petitioners continue to advocate application of the U.S. EPA’s “reasonable potential to

exceed” analysis, notwithstanding that it is inappropriate for application here and would yield

artificially high results. In Scott Twait’s memorandum concerning water quality based effluent

limits, Illinois EPA specifically considered the U.S. EPA method to assess the “reasonable

potential to violate water quality standards,” that Petitioners advocate. Illinois EPA applied its

policy and decided that it would not use the high multiplier used in U.S. EPA’s method because

that method does not yield valid results when only a small sample population exists. Illinois

EPA also concluded specifically concerning this facility that there was a low risk its effluent

would have high levels ofmetals. PR 509. Illinois EPA’s analysis of the sample results and its

specific consideration ofthe type of facility and the nature of its discharge were the appropriate

analysis to comply with the water quality standard. No permit limit was necessary for copper.

CHO2/ 22386522.1

.

11

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Conclusion

The Board must review the Illinois EPA’s decision by deferring to the Agency’s findings

of fact here and conclusions of law, which differ materially from Petitioners arguments in its

motion for summary judgment. Illinois EPA complied with all regulatory requirements in its

issuance of the NPDES permit to New Lenox to allow expansion of its wastewater treatment

facility. Hickory Creek is a general use stream, not a high quality water, and is properly assessed

for purposes of antidegradation by applying regulatory standards to ensure the minimum level of

protection. Illinois EPA properly completed that review by assessing its own information

concerning Hickory Creek, as well as reviewing a Water Quality Assessment that it requested

from New Lenox. New Lenox also provided information on alternatives to the discharge,

including spray irrigation, and Illinois EPA properly concluded that those alternatives were not

feasible. As a result of its review, Illinois EPA requested that the permit incorporate limits on

dissolved oxygen, total dissolved solids, and ammonia. New Lenox accepted those limits.

The Board should also appreciate the complicated and disputed nature ofthe science

governing nutrients and their effects, including algae, and the importance ofsetting those

standards in a reasoned manner that is scientifically defensible. Illinois EPA has convened a

work group to perform the work necessary to propose scientifically defensible standards for

Illinois, and nutrient standards to be set in the context ofa rulemaking, not a permit appeal

before the Board.

Respectfully submitted,

The Village ofNew Lenox

By: ____________________________

One of Its Atto eys

CHO2/22386522.1

12

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Roy M. Harsch

Sheila H. Deely

Gardner Carton & Douglas LLP

191 N. Wacker Drive

—

Suite 3700

Chicago, IL 60606

(312) 569-1000

CHO2I

22386522.1

13

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CERTIFICATE OF SERVICE

The undersigned certifies that a copy ofthe foregoing Notice

of Filing and

the

attached

The Village of

New Lenox’s

Memorandum of Law In Opposition To

Petitioner’s Motion For Summary Judgment

and Response

ofVillage of New Lenox To

Petitioners’ Statement Of Relevant Facts From The Agency Record

was filed by hand

delivery with the Clerk ofthe Illinois Pollution Control Board and served upon the parties to

whom said Notice is directed by electronic and regular mail on

Wednesday, May 25, 2005.

~AL~(

CHO1/ 12425982.1

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BEFORE THE ILLINOIS POLLUTION CONTROL BO.~&~~’SOFFICE

MAY 25 2005

DES PLAINES RIVER WATERSHED ALLIANCE,

)

LIVABLE COMMUNITIES ALLIANCE

)

rollution

STATE OF

Control

ILLINOIS

Bo

PRAIRIE RIVERS NETWORK, and SIERRA CLUB,

)

)

Petitioners,

)

)

v.

)

PCB04-88

)

(NPDES Permit Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY and VILLAGE OF NEW LENOX

..

)

)

Respondents.

)

RELEVANT FACTS FROM THE AGENCY RECORD

1.

Hickory Creek, a tributary ofthe Des Plaines River which flows in Will County,

was once known for its exceptionally high water quality and biological integrity. Phillip Smith,

a scientist ofthe Illinois Natural History Survey wrote in 1971 that “Prairie and Jackson Creeks

have good species diversity, but Hickory Creek is the outstanding stream in the Des Plaines

River system and contains populations of such unusual species as the northern hogsucker,

rosyface shiner, and slender madtom.” (HR1 15)

ANSWER:

The cited information appears to be a very brief conclusion in an abstract that was

inserted into the record. New Lenox has no reason to agree or disagree with the cited

conclusion, which is of limited relevance given the time.period it references, the absence of

the location along Hickory Creek and data on which it was based, the absence ofthe author

in this proceeding, or other relevant information. However, for regulatory purposes it is

important to note that Hickory Creek is not on the current list of biologically significant

streams compiled by the Illinois Department of Natural Resources (“IDNR”), Natural

History Survey in the publication

Biologically Significant Illinois Streams.

This list is

relevant for purposes of anti-degradation, and IDNR has further concluded that no

threatened or endangered species exist in the vicinity of the segment of Hickory Creek to

CHO2/ 22387197.1

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which New Lenox will discharge. See HR 005, 371. Hickory Creek is a general use and is

System. HR 005, 115.

2.

New Lenox Sewage Treatment Plant #1 was built in 1973. (HR 81)

Cedar Road. HR 005.

3.

Dr. David Bardack, formerly ofthe University ofIllinois at Chicago Circle, wrote

in 1982 that “Studies ofthe Hickory Creek ecosystem are widely recognizedbeyond the Chicago

area. In fact, Hickory Creek has attained the status of a classic biological study area.... As a

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

ANSWER:

New Lenox has no reason to agree or disagree with the cited conclusion, which is of

limited relevance given the time period it references, the absence of the location along

Hickory Creek and data on which it was based, the absence of the author in this

r

proceeding, or other relevant information. Hickory Creek is not on the current list of

biologically significant streams compiled by the Illinois Department of Natural Resources,

L

which is one list that by regulation is relevant for purposes of anti-degradation, and IDNR

segment of Hickory Creek to which New Lenox will discharge. See HR 371, 699.

4.

New Lenox Sewage Treatment Plant #1 has been expanded since 1991. (HR

5)

CHO2/ 22387197.1

2

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New Lenox agrees with this fact. At the time of the application for expansion at

issue in this proceeding, the plant was operating at 85 percent capacity, and expansion was

in New Lenox. The area to be served was within New Lenox’s FPA, and New Lenox

expansion. HR 005.

5.

Hickory Creek is found on the draft 2002 Illinois 3 03(d) list of impaired waters.

“The causes of impairment given

...

at that time were nutrients, phosphorus, nitrogen,

salinity/TDS/Chlorides, TDS (chlorides), flow alterations, and suspended solids. The sources

associated with the impairment are municipal point sources....” (HR

5)

In the Illinois Water

Quality Report 2004, Hickory Creek is listed as impaired with the potential causes ofimpairment

being silver, nitrogen, pH, sedimentationlsiltation, total dissolved solids, chlorides, flow

alterations, physical-habitat alterations, total fecal coliform bacteria, total suspended solids,

excess algal growth, and total phosphorus.

ANSWER:

New Lenox agrees that Illinois EPA reported that Hickory Creek is found on the

draft 2002 Illinois 303(d) list, reportedly based on a study performed in 1991. The selected

quote is misleading in that it omits the numerous other sources generally associated with

the listing. Discovery in this case could be expected to show the basis for the listing, the

additional sources to the stream, and other information relevant to this case. In addition,

Illinois EPA concluded during the permit proceedings that “a review of the causes of

impairment resulted in a new conclusion. Agency biologists now believe that only total

dissolved solids can be implicated as a cause ofwhatever impairment may exist in this

stream segment outside of the immediate area of the New Lenox outfall.” HR 360. New

CHO2/22387197.1

3

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Lenox voluntarily agreed to accept a limit in the permit on total dissolved solids. New

Lenox notes that the cited 2004 Water Quality Report was issued after the NPDES permit

challenged in this case was issued. In addition, Illinois EPA has reported that the inclusion

entry of 0.87 instead of7.87.

6.

A number ofwitnesses gave reports of algal blooms in Hickory Creek including

nearby resident Kim Kowalski. (HR 76)

This statement is a mischaracterization of the comment in this proceeding. New

Lenox agrees that a few commenters reported “algae,” but “algal blooms” have not been

the subject of comment. Further, as pointed out by New Lenox’s consultant, sampling

performed in August 2002 for purposes of the water quality study observed there were no

visible signs of organic growth or over-nutrification at the plant discharge site. PR 515,

Comments concerning algae were considered by Illinois EPA, and addressed in its

Responsiveness Summary. In the Responsiveness Summary, Illinois EPA stated that algae

is a vital part of the aquatic community and algae growth in itself is not problematic; it is

in relation to dissolved oxygen and the adverse impact on fish that provides context.

Illinois EPA stated that “Streams would be expected to exhibit either one kind of algal

growth or another, i.e. planktonic or periphyton” depending on a variety of factors, and

“the best measure of whether fish are adversely impactedj is to look at the local fish

population. Hickory Creek has fish populations that are not indicative of low dissolved

oxygen concentrations.” HR 361. Illinois EPA also concluded based on relevant data for

CHO2/ 22387197.1

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2003 that all measurements in Hickory Creek meet the water quality standard for dissolved

oxygen. HR 364. Finally, to the extent algae was observed in August, those observations

by the plant. PR 639.

7.

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 ofthe stream is covered from Pilcher Park almost all the way

up to Cedar Street with Hydrodictyon and algae on the surface ofit. So here you have a running

stream covered almost completely and a running stream that’s really a very, very viable and

important resource, pretty sadly degraded by the sorts of nutrient discharge that we are seeing.”

(HR 80)

ANSWER:

See response to

par.

6.

Additionally, New

Lenox disagrees that Mr. Bland

“testified,” as his

comments were unsworn and not subject to questioning or cross-

examination. In addition, Pilcher Park, which is located about

two

miles

as

associated with algae.

8.

Community resident Brad Salamy testified at the hearing that, “Last summer, and

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

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

ANSWER:

V

See response to

par.

6. New Lenox disagrees

that Mr. Salamy “testified,”

as his

comments were unsworn and not subject to questioning or cross-examination.

9.

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

CHO2/ 22387197.1

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New Lenox indicate the total phosphorus instream on that particular day when they sampled was

between 1.49 and 1.63 milligrams per liter. These concentrations are approximately 20 times the

USEPA-recommended criterion and more than twice Illinois EPA’s trigger. (Wentzel Testimony

HR 67)

ANSWER:

This paragraph’s characterization of phosphorus values as “high” in the Creek does

not constitute a fact but merely a characterization by the statement’s author. The cited

data is from Illinois EPA’s samples at U.S.G.S. gauge 05539000 in Joliet, Illinois, which is

published by U.S.G.S. under mutual agreement with Illinois EPA. HR 129, 365. This

Neither Illinois EPA’s “trigger value” nor a criterion recommended by U.S. EPA

constitute regulatory standards in Illinois or are relevant here. Illinois EPA’s trigger value

is a tool for ranking streams.

It is based on the

85th

percentile of values recorded for

phosphorus. It has absolutely nothing to do with the impact of phosphorus on a stream or

a cause/effect relationship. Illinois EPA noted that even within the various ecoregions

utilized by U.S. EPA, “the national criteria recommendations are based on statistical

Illinois EPA properly weighed Petitioners’ comments, and concluded that there is

nothing unusual about stream phosphorus values such as those reported for Hickory

Creek. Illinois EPA is also aware of the other dischargers to the Creek, and their location

these dischargers.

10.

Sampling by the applicant’s contractor, Earth Tech, conducted in August of2002

found 2.76 milligrams per liter of total phosphorus in the effluent, almost twice the upstream

CHO2/22387197.1

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

(Wentzel Testimony HR 68)

New Lenox agrees that the results of a grab sample of its effluent were 2.76

milligrams per liter of total phosphorus in the effluent on the date sampled, and notes that

the four downstream samples showed phosphorus at values of 1.60 milligrams per liter,

513, 545.

As New Lenox’s consultant pointed out, it is misleading to compare

concentrations in the creek and in the plant effluent when the flows are not the same, and

Concentrations of phosphorus in effluent can be highly variable and dependent on

flows, the time of day and a host of other facts, and a grab sample can be expected to result

in limited information. New Lenox notes that phosphorus is not an acute pollutant, and it

aware of other dischargers upstream and downstream ofNew Lenox.

11.

Comments by Professors David Jenkins and Michael Lemke of the Biology

Department, University ofIllinois at Springfield stated:

—

Based on the New Lenox August data, the current plant releases an average of 64.7

kg of nitrate+nitrite per day and 16.1 kg oftotal 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.

—

Therefore, the plant is responsible for 30 of downstream nitrate+nitrite load in

Hickory Creek, and 41 ofthe Hickory Creek total P load.

CHO2/22387197.1

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—

As currently planned (and assuming nutrient levels in plant discharge remain the

same), the new plant discharge will release 105.7 kg of nitrate+nitrite per day and

26.3 kg of total P per day into Hickory Creek. Assuming that Hickory Creek flow

will not change for reasons other than the planned extra plant discharge, the new

plant discharge will release 41 ofthe stream nitrate+nitrite load, and 53.7 ofthe

stream P load on an average basis.

—

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

ofnitrate+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)

New Lenox does not dispute that the Professors made the cited statements.

However, the conclusions in these comments are based on questionable or undisclosed

assumptions, and discovery would be necessary to show what support these comments are

based on, mathematically and otherwise. New Lenox’s consultant pointed out several areas

comparisons.

PR 635.

The conclusion that there will be “substantial effects on

downstream water quality” in Hickory Creek, the Des Plaines River and the Illinois River

is of very questionable and undisclosed scientific and mathematical support. In any case,

the Illinois EPA considered these comments and

is

nutrients to all of these waterbodies.

12.

Published treatises placed in the record show that elevated nutrient levels cause

impairment ofstreams.

.

“Eutrophication is a fundamental concern in the management of all water

bodies.... There is now also considerable interest in the enrichment of streams

and rivers (see discussion by Dodds and Welch 2000). For example in 1992, the

United States Department of Agriculture National Water Quality Inventory

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reported that enrichment and sedimentation were the most significant causes of

water quality degradation in 44

of 1,000,000 km of streams and rivers

surveyed in the US (http://www.usda.gov/stream_restoration).

Management

problems caused by nutrient

enrichment, and associated benthic algal

proliferations, include aesthetic degradation..., loss of pollution-sensitive

invertebrate taxa through smothering of substrata by algae

...,

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.

19:17-3 1. (HR 187)

“Reasons for nutrient criteria include: 1) adverse effects on humans and domestic

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

impacts on aquatic life, and

5)

excessive nutrient input into downstream systems.”

Dodds, W. K. and E.B. Welch. 2000. Establishing nutrient criteria in streams. .J

North

Am. Benthol. Soc.

19:186-196. (HR 177)

“High algal growth can affect fish distribution by altering the physical (algal mass

accumulation) and chemical (dissolved oxygen, pH) characteristics of the river

system.”

Sabater, S., J. Armengol, E. Comas, F. Sabater, I Urrizalqui, and I. Urrutia. 2000. Algal

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

Science 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 ofbenthic algal proliferations in streams.”

Biggs, B.J.F. 2000. (HR 187)

“...

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

chlorophyll and TP total phosphorus in temperate streams

...“

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. Sci. 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)

CHO2/22387197.1

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“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 andfunction ofrunning waters.

Chapman

& Hall, New York (HR 163)

“Die! (24 h) changes in oxygen concentration provide a means of estimating

photosynthesis and respiration ofthe total ecosystem...”

(Allan, J. D. HR 163)

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

productive lowland streams where luxuriant growths of macrophytes and

microbenthic algae can result in diel shifts in dissolved C02.... Because of the

interdependence ofCO2 concentration and pH

...,

mid-day pH can increase by as

much as 0.5 units.”

(Allan,J.D. HR 164)

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

problems affecting the aquatic life-support characteristics 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 die! dissolved oxygen (DO) variability

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

Sabater, S., J. Armengol, E. Comas, F. Sabater, I Urriza!qui, and I. Urrutia. 2000.

(HR216)

V

ANSWER:

New

Lenox agrees that the

state in response to

draft criteria by

U.S.

EPA is moving

forward to develop nutrient standards and has convened a study group that includes

stakeholders from numerous areas, including persons that commented in this proceeding.

New Lenox agrees that published statements were placed in the record by Petitioners, but

they are of limited usefulness since they are not directed at this stream or this effluent, they

CHO2/ 22387197.1

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are unsworn and unverified, and they are generally more appropriately considered in the

context of setting generally applicable standards for nutrients, not deriving water quality

limits for one discharger along a stream with many dischargers. The provided snippets of

statements from these studies do not change the fact that the science concerning nutrients,

and uncertain, and Illinois EPA has acknowledged “major knowledge gaps.” HR 356.

Further, the Illinois EPA concluded specifically in this case that “the incremental nutrient

loading anticipated to result from this project

is

not expected to increase algae or other

noxious plant growth, diminish the present aquatic community or otherwise aggravate

existing stream conditions.” PR 565. Finally, both Illinois EPA and the Board have

concluded as much with respect to the uncertain science surrounding nutrients in the

opinion concerning the Board’s proposal of a technology-based interim standard for

phosphorus. See Opinion and Order, R 04-26 (April

7, 2005).

13.

It is likely that nutrient discharges from New Lenox WWTP #1 are already

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

prevent further impact. (Statement ofProfessors Jenkins and Lemke HR 305)

ANSWER:

See responses

to 11 and

12. This

statement is an unfounded characterization and

conclusion, submitted in an unsworn comment, and

is contrary to Illinois EPA’s

conclusion. The conclusion

does

not explain what the adverse impacts are, and New

Lenox’s studies

and

submissions showed

the opposite. HR 361, 364. Based on the

macroinvertebrate survey performed

by New

Lenox at the request of Illinois EPA at the

location of the discharge, pollution intolerant organisms are present both upstream and

downstream ofthe existing discharge. PR

572.

CHO2/22387197.1

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14.

The IEPA at the hearing on the draft permit acknowledged that it was “very

possible” that supersaturated oxygen levels found during the daytime hours in Hickory Creek are

due to algae saturation photosynthesis. (HR 67)

ANSWER:

New

Lenox

agrees that Mr.

Bob Mosher of Illinois EPA acknowledged that it

is

“very possible

that algae saturation

photosynthesis

had a part

in

levels of supersaturated

dissolved oxygen levels

during the period of 1979 to

1997” as reported in the

data taken at

the U.S.G.S. stream gauge approximately seven miles in Joliet downstream from

New

Lenox. To put the statement in context, in response to follow up questioning and in the

that show gas bubble disease in fish from supersaturation. HR 068 and 361.

15.

Hickory Creek also violated pH standards by exceeding a pH of 9, likely as the

result ofalgal activity. (HR 126)

ANSWER:

This conclusory statement is based on an unsworn comment from Petitioners in the

record. It appears to be derived from Illinois EPA’s sampling at the U.S.G.S. stream gauge

in Joliet, approximately seven miles downstream from New Lenox’s discharge point. New

Lenox’s consultant pointed out that during the period ofrecord, average pH was 7.8, only 3

pH values were 9.0 or higher, with

two

at 9.0 and one at 9.1. PR 640. New Lenox’s pH

sampling in connection with its water quality report showed pH ranging from 6.77 to 8.21

in the vicinity of New Lenox’s plant. Illinois EPA also properly considered its data

concerning pH, and pointed out that in some environments, a pH over 9.0 is not an

unnatural condition. Illinois EPA also stated that its monitoring station on the lower part

therefore drawing direct conclusions between sites may not be valid. HR 369.

CHO2/22387197.1

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16.

EPA did not analyze the effects of the existing New Lenox discharge with a

recent valid study. The Antidegradation Assessment Memorandum from Scott Twait to Abe!

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

facilityrelated stream survey was conducted.” (HR

5)

ANSWER:

study from New Lenox, performed by its consultant Earth Tech.

17.

The applicant’ contractor, Earth Tech, performed a biological study for the

Village of New Lenox (HR 513-519) at EPA’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).

ANSWER:

New

Lenox

agrees

that

its

consultant performed a biological study, and

it was

subject to extensive

discussions

and appropriate internal

agency

deliberation about the

information it provided

as well as general discussions about the

manner in which

these

studies

are performed. The conclusion that the study was “deficient” is an inappropriate

characterization, and omits substantial parts of Illinois EPA’s thoughtful and thorough

deliberations. The agency’s deliberations reflect that there are various methodologies for

performing MBIs, and there were initially differences between Illinois EPA staff members’

Lenox’s consultant.

Those differences included the manner in which the MBI was

calculated and the tolerance values assigned to certain species, as well as

procedures,”beyond the staff members”. own familiarity and practice.” Illinois EPA has

also recognized the difficulty of performing an MBI assessment and the variations in

acceptable methods that nevertheless may still not be perfect. For example, one of the

Illinois EPA staff members cited by Petitioners has stated that even its own “bug-sampling

CHO2/22387197.1

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methods (as they are currently defined) fall short of adequately addressing how to control

PR 665; See also 671, 674-75.

As recognized by Illinois EPA, there

is

no regulatory method to perform the MBI.

See PR 674-75. New Lenox’s consultant was nevertheless able to satisfy Illinois EPA’s

concerns about the study and Illinois EPA made a decision to rely on the study as part of

the information that informed its decision. The consultant revised the MBI values to

accord with the Illinois EPA’s preferred methodology, which produced a relatively minor

difference from the originally calculated MBI. HR 370. Illinois EPA subsequently verified

Creek. HR 370; PR 019.

18.

A Sept. 24, 2002 internal EPA email from Howard Essig to Roy Smoger states,

“The macroinvertebrate memo prepared by Earth Tech is one ofthe poorest studies I have seen

in a while.” It is further stated that “Statements made by Earth Tech on page 3 oftheir 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)

ANSWER:

See resp. to par. 17. The discussion within

Illinois EPA

is evidence

of proper

internal deliberations in this matter

between various staff members

prior to the

time

Illinois EPA made a decision, and the cited memorandum is evidence of one staff members’

views and comments early in the process. It was not Illinois EPA’s ultimate conclusion

with respect to the study. There were ongoing discussions between New Lenox and Illinois

minor variations in procedure.

CHO2/22387197.1

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19.

Another internal IEPA memo, the Oct. 9, 2002 Memorandum from Roy Smoger

to Bob Mosher, summarizes the reviews by Smoger, Howard Essig and Mark Joseph ofthe Earth

Tech 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, different taxon-tolerance values, and different criteria for interpreting MBI

scores than those typically used by Illinois EPA. In addition, the report do.es 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

See Resp. par. 17 and 18.

In addition, New Lenox notes that the preferred

procedures and guidelines of certain staff members that reviewed the study have not been

adopted as regulation, and to the extent New Lenox’s consultant used different procedures,

relied upon by Illinois EPA.

20.

A Nov. 25, 2002 email indicates confusion on whether IEPA field staff would

redo the study. (HR 700) A Nov. 26, 2002 email from EPA’s Gregg Good shows EPA’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)

This paragraph contains inappropriate characterizations on the state of mind of

Illinois EPA field staff that are not supported by the record. Illinois EPA did not make a

decision to ignore the Earth Tech study but, having asked for it, utilized and relied on it as

useful and important information for purposes of the Anti-Degradation Assessment. As

explained by Gregg Good in the cited email, Illinois EPA also went back and reviewed the

basis for listing Hickory Creek as “partial impairment,” and determined that the basis for

CHO2/22387197.1

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the listing was violation of standards governing total dissolved solids.

Illinois EPA

therefore recommended and New Lenox agreed to accept a limitation for total dissolved

solids. Finally, the cited email is evidence of the extensive internal deliberations that

properly occurred. They should not be used as evidence of “confusion,” nor do internal

Assessment.

21.

The record does not contain any study of the potential effect of increased

discharges from the plant on Hickory Creek or the Des Plaines River. In an email of September

9,

2002, EPA’s Robert Mosher wrote, “There is no good way to predict what impact the

expansion may have (antidegradation)....” (HR 660.5)

ANSWER:

The record contains extensive evidence of appropriate Agency deliberations,

including by Bob Mosher, concerning the water quality in Hickory Creek and the plant’s

effect on it. After the Agency weighed all of the information before it, it was able to make a

permit limit was included in the permit.

consideration ofpotential impacts would be entirely speculative.

22.

In the reasonable potential analysis for copper done for this permit modification

(Memorandum ofJuly 16, 2002 from Scott Twait to Abel Haile), the concentration ofthe highest

sample was 20.5 ~ig/l while the chronic standard for copper at the hardness level found in

Hickory Creek is 20.6 pg/l. IEPA’s calculation of the reasonable potential for a violation of

water quality standards for copper using the U.S. EPA method revealed that there was a

reasonable potential for the level of copper to be more than double the acute water quality

standard for copper and to exceed the chronic standard by a factor ofover 3.7. (HR 508)

ANSWER:

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Illinois EPA considered the U.S. EPA method as well as this comment. In its

Responsiveness Summary, Illinois EPA concluded that for the chronic standard at issue

Twait’s memorandum concerning water quality based effluent limits, Illinois EPA

determined in accordance with Agency policy that it would not use the high multiplier used

in U.S. EPA’s method because that method does not yield valid results when only a small

sample population exists. Illinois EPA also concluded that this facility had been previously

identified as having a low risk for high levels of metals. PR 509. Further, based on Illinois

EPA’s knowledge of other dischargers to the Creek and a known problem with copper in at

least some segments of Hickory Creek, which could be expected to be explored through

likely to cause a violation of water quality standard.

23.

On January

5,

2003, IEPA gave notice that it had made a tentative decision to

renew a NPDES permit to New Lenox to discharge into Hickory Creek~ The draft renewed

permit allowed the New Lenox plant to increase its design average flow from 1.54 million

gallons per day to 2.5 16 million gallons per day. (HR

1-15)

ANSWER:

New Lenox agrees with this paragraph.

24.

After reviewing a copy of the draft permit, Petitioners commented through

testimony given at a public hearing held on the draft permit on April 24, 2003 in the New Lenox

Council Chambers. (HR 6 1-87)

New Lenox agrees with this paragraph.

25.

No one appeared at the hearing on behalf of the applicant, which chose not to

participate in the hearing. (HR 61-87).

ANSWER:

CHO2/ 22387197.1

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sheet shows that Mike Turley, the Wastewater Treatment Plant Superintendent, was

present at the hearing. HR 055. New Lenox was not requested to provide comment at the

hearing, and in light of the fact that the purpose of the hearing is for Illinois EPA to

provide information to the public and accept public comments, this is consistent with the

regulations governing the hearing. As the applicant, under the regulations New Lenox is

not in the same position as a member of the public. The record reflects the extensive

Petitioners’ extensive participation and voluminous submittals.

26.

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 ofremoving phosphorus or nitrogen at

the plant. (HR 73-4)

ANSWER:

As noted

by this paragraph and discussed

at the hearing, New Lenox’s consultant

performed an

analysis

of

spray

irrigation either at farmland or on a golf course as

alternatives to the

discharge, and New

Lenox also considered alternative discharge

locations.

PR

403, 634;

HR

372-374.

In addition,

as noted

at the hearing, the

Illinois

Associated of Wastewater

Agencies

(IAWA) at the request of Illinois EPA performed a

study

concerning cost and

efficiency

of nutrient treatment, which was before Illinois EPA

at the time

it made its decision and is consequently properly part of the record. HR 74. All

parties

involved in this proceeding are aware of the content of that study.

27.

In their comments and testimony, Petitioners raised legal and scientific issues

regarding flaws in the draft permit and in IEPA’s consideration ofthe draft permit including:

CHO2/ 22387197.1

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a.

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 condition, 35 Ill. Adm. Code 302.203, in violation

of 40 CFR 122.44(d) and 35 Ill. Adm Code 309.141. Nutrients are the likely

cause of algal blooms and other unnatural plant growth that have been reported in

the creek. (HR 68)

b.

Evidence, never disputed in the record, that Hickory Creek now violates state

water quality standards regarding offensive conditions because of algal blooms.

(see ¶IJ 6-9 above)

c.

That the draft permit allowed discharges that may cause, have a reasonable

potential to cause or contribute to violations of state water quality standards

regarding dissolved oxygen, 35 Ill. Adm 302.206, and copper, 35 Ill. Adm. Code

302.208(e) in violation of40 CFR 122.44(d) and 35 Ill. Adm. Code 309.141. (HR

68, HR 265-6)

d.

That the draft permit and the studies and lack of studies that led to the creation of

the draft permit did not comply with Illinois antidegradation rules protecting the

existing uses of the receiving waters. 35 Ill. Adm Code 302.105(a) because

studies were not properly conducted to determine the potential effect of the draft

permit on existing uses of the stream and because IEPA took no steps to

determine if existing recreational uses of the stream might be impacted by the

lack of disinfection of wastewater from the plant in months outside of May

through October. (HR 265, HR 82)

ANSWER:

New Lenox agrees that Petitioners availed themselves of the opportunity to provide

extensive public comment and raised various arguments including those cited in this

paragraph, all of which were fully considered by Illinois EPA. To the extent raised in the

motion, the characterization of these issues as “flaws” in the draft permit constitutes (a) a

explained in its Responsiveness Summary. HR 352-376.

28.

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 ofproceeding 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

testified that the environmental effects of the kinds of development that would be facilitated by

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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 oftreated wastewater) to

allowing the increased discharge were unreasonably inflated and the costs ofminimizing nutrient

discharges were not considered. Environmental economist Jeff Swano requested

a

life cycle

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)

ANSWER:

New Lenox does not dispute the general summary of Petitioners’ comments, but

Petitioners’ characterization of “the steps necessary to comply with” regulations and its

disagrees that any Petitioners “testified,” as public comments represent unsworn

statements by parties not subject to cross examination. New Lenox disputes that these

particular comments are relevant to the extent they concern the “kinds ofdevelopment that

would be facilitated by the plant expansion,” which is a consideration outside the scope of

Illinois EPA’s review of the impact of this particular treatment plant, not the land use

considerations that are properly within the discretion of New Lenox. New Lenox is not

aware of Mr. Swano’s credentials or qualifications as an “environmental economist.” New

Lenox disputes that its estimated cost of alternatives were unreasonably inflated, and notes

that Mr. Swano’s comments concerning land application were not the result of his own

company in the business of selling land application systems. HR 71.

29.

Petitioners asked that all technically and economically reasonable measures to

avoid or minimize the extent ofthe proposed increase in pollutant loadings be incorporated into

the permit and that the permit be improved in a number ofrespects including that;

a.

It provide for economically feasible controls on the discharge of nutrients

including phosphorus and nitrogen;

CHO2/ 22387197.1

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b.

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

contribute to violations of water quality standards regarding offensive conditions

and dissolved oxygen;

c.

That proper biological studies be conducted to assure that the discharge would not

adversely affect existing uses ofthe stream;

d.

That EPA seriously consider whether the increased discharge was actually

necessary in light ofpotential alternatives; and

e.

That IEPA seriously consider alternatives to allowing the levels of pollutants in

the streams that would be allowed by the draft permit.

(HR 112-3, 120-1, 126, 265-267)

New Lenox does not dispute the general summary of Petitioners comments

presented by this paragraph. New Lenox believes that Illinois EPA did seriously consider

alternatives in this matter, as noted in its Responsiveness Summary at HR 372-374.

30.

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 bottom rubble that are characteristic ofthis reach (c.f. Ecological Effects of

Wastewater, E.B. Welch). This increase in stream productivity has the capacity to dramatically

alter the character ofthe invertebrate communities downgradient from the STP.” (HR 110)

ANSWER:

New Lenox moves to strike the statement that Mr. Jim Bland

is

“an expert on

eutrophication,” as this has not been established by his comments. Further, New Lenox

cross-examination.

New Lenox does not dispute that Mr. Bland made the quoted

comments, which show a lack of understanding of the relationship between appropriate

permit considerations as opposed to what would be considered in a rulemaking or setting a

TMDL. Illinois EPA fully considered the comments, and stated that “Streams would be

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expected to exhibit either one kind of algal growth or another, i.e. planktonic or

periphyton” depending on a variety of factors, and “the best measure of whether fish are

adversely impactedj is to look at the local fish population. Hickory Creek has fish

populations that are not indicative of low dissolved oxygen concentrations.” HR 361.

Hickory Creek meet the water quality standard for dissolved oxygen. HR 364.

31.

In addition, Mr. Bland asked that EPA “Speed up the analysis ofnutrient loading

influences and apply this analysis to the existing permit specification. Document the direct

influences ofphosphorus which already exist at the stream.” (HR 113)

ANSWER:

See resp. to par. 30. New

Lenox

does

not dispute that Mr. Bland made the quoted

comments. New

Lenox notes that Illinois EPA fully

considered

them

as part

of

its permit

proceedings. New

Lenox also notes that Illinois EPA has convened a work group, and this

comment is

proceeding.

32.

In post hearing comments, Beth Wentzel ofthe Prairie Rivers Network stated that

“The literature supports the claim that excess nutrients, nitrogen and phosphorus, can impair

streams by affecting dissolved oxygen concentrations, causing nuisance algal blooms and

causing other problems.” (HR 125) She concluded that “As described at the hearing, the existing

facility discharges nitrogen and phosphorus to Hickory Creek at concentrations that exceed

instream concentrations. According to USGS flow data, Hickory Creek is regularly dominated

by effluent flow. As demonstrated above and through testimony provided by local residents at

the public hearing, there is reasonable potential that instream concentrations cause violations of

water quality standards. Because the discharge from New Lenox STP #1 contributes to these

violations, the existing discharge is illegal and an expansion of the discharge would be illegal.

Prior to issuance of this permit, EPA must determine water quality based effluent limits for

nitrogen and phosphorus that ensure that water quality standards will be satisfied instream.

Alternatively, the applicant must adopt an alternative that does not require discharge ofnutrients

to Hickory Creek.” (HR 126)

ANSWER:

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conclusions, although New Lenox disagrees with their content and notes that they

constitute a legal conclusion. In any case, Illinois EPA fully considered these comments.

See resp. to par.

5, 6,

9, 10, 11-15.

33.

At the public hearing, Albert Ettinger ofthe Environmental Law & Policy Center

asked the Agency to provide an estimate of the cost of removing phosphorus and the cost of

removing nitrogen from the discharge. (HR 73-4)

ANSWER:

New Lenox does not dispute

that Mr.

Ettinger

made the above request and also

submitted

comments in this proceeding. New Lenox notes that Illinois

EPA

had before

it

the study prepared by the Illinois Association of Wastewater Agencies at the request of

See resp. to par. 26.

34.

Cynthia Skrukrud Ph.D. testified on behalf of the Sierra Club that “using the

standard USEPA method where you use a multiplier to come up with a

95

percent

...

reasonable

potential, the copper suggested that there should be further analysis. But then further in the

memorandum, it’s reported that all copper samples reported were less than the acute and chronic

water quality standards and the conclusion was that no regulation of copper is necessary and no

monitoring beyond routine requirements is needed. My concern is that there were only two

samples taken. And ofthose two samples, I only know what one ofthem was. But one ofthem,

the sample measured 20.5 micrograms per liter. The chronic standard is 20.6 micrograms per

liter. It certainly would seem given that you have only two samples, and you are so close to a

violation ofthe chronic standard there, that I would think that there is a reasonable potential for

violation of the chronic standard, and that because there were

...

so few samples that it needs to

be investigated further.” (HR 70)

ANSWER:

New Lenox does not dispute

that

Ms.

Skrukrud made the above comments and

conclusions, although New Lenox disagrees with their content. See resp. to

par. 22.

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35.

In a post-hearing letter and attachments (HR 264-265), Skrukrud wrote:

Reasonable Potential

Analysis to Exceed Water Quality Standards

The USEPA recommended method for Reasonable Potential Analysis is to

use a multiplier to determine the potential to exceed a given standard when

a small number of samples have been collected. It is precisely because so

few data are collected that the multiplier is needed. EPA’s decision to

abandon the method recommended by USEPA in

Technical Support

Document for Water Quality Based Toxics Control

is not acceptable.

IEPA should either use the multiplier in their analysis or require that more

samples be collected

.Yet EPA concludes from this limited data set that there is no need for

additional copper monitoring. If the measured value had been 20.7 ~.tg/l

instead of 20.5, would further investigation have been required? Are we

then to believe that EPA considers 20.5 and 20.7 ~1g/lto be statistically

different? The confusing situation which exists with EPA’s method of

direct comparison of sample values to standards is exactly why the

statistical method recommended by USEPA should be employed.”

New Lenox does not dispute that Ms. Wentzel submitted the above comments,

although New Lenox disagrees with their content. See resp. to par.

5, 6,

9, 10, 11-15.

36.

Skrukrud further commented:

Inadequate Consideration ofAlternatives

In addition to the other flaws in the antidegradation analysis, the analysis

makes no serious effort to consider alternatives or to rationally weigh

whether the proposed new discharge is socially or economicallynecessary.

Nutrient removal is already required for New Lenox by the Clean Water

Act and Illinois law given that the discharge is plainly causing or

contributing to violations of state narrative water quality standards and

probably state dissolved oxygen standards. Although the Agency is not

now requiring nutrient removal, it concedes that requirements for nutrient

removal are likely to go into effect during the life of the proposed

expansion. It is, thus, unreasonable to decide on the merits of permitting

this expansion without explicit consideration of the costs of nutrient

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removal. The Agency wrongly rejects land treatment and other options as

too expensive both by overpricing land treatment and by ignoring

potentially huge future capital and operation costs that will be incurred by

permitting this discharge expansion.” (HR 267)

New Lenox does not dispute that Ms. Skrukrud submitted the above comments,

although New Lenox disagrees with their content. See resp. to par.

5, 6,

9, 10, 11-15.

37.

On October 31, 2003, Illinois EPA issued the permit that is subject to the current

appeal. The final permit contains some changes from the draft including required levels of

dissolved oxygen in the effluent and a limit on total dissolved solids. The final permit did not

place any limits on the discharge ofphosphorus, nitrogen or copper. (HR 34 1-50)

ANSWER:

New Lenox agrees

that Illinois EPA issued the permit subject to the current appeal

on October

31, 2003.

In

response

to

comments made during the public comment period

and to information before Illinois EPA, the agency recommended and New Lenox agreed to

accept certain limits without challenge. New Lenox notes that it did not challenge the

include limits on dissolved oxygen, total dissolved solids, and ammonia.

38.

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 reasonable 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.

ANSWER:

New

Lenox

agrees

that no permit limit

was set

for copper.

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39.

The final permit allowed a monthly daily average increase of 82 lbs of CBOD5

and did not place any limit on the discharge of CBOD5 other that the effluent limit of 35 Ill.

Adm. Code.304.120. (HR 342-3)

ANSWER:

New Lenox disagrees

that no permit limit was set for CBOD5. See PR 652, which

shows

the permit does contain a daily average and

a daily maximum value for

CBOD5.

40.

No 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 of0.5 mgIL 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 ofany level ofphosphorus treatment other than 0.5 mg/L.

ANSWER:

New Lenox agrees that no permit limit was set

for phosphorus or nitrogen. Further,

New

Lenox

disagrees

with the statement that the study performed by the Illinois

Association

of Wastewater Agencies was not part of the record,

as

the record properly

includes everything

before the Illinois EPA at the time it made

its decision.

The

study is

clearly referenced and disclosed by Illinois EPA in the documents filed in this proceeding.

41.

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)

ANSWER:

New

Lenox

agrees that no limits were placed in

the permit concerning “offensive

conditions.” Further, no limits are required

to address

offensive conditions.

To the extent

Petitioners claim that algal growth constitutes an offensive condition, Illinois EPA

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addressed algae in its Responsiveness Summary, explaining that algae is a vital part of the

aquatic community and algae growth in itself

is

not itself a problem;

it

is in relation to

dissolved oxygen and the adverse impact on fish that provides context. Illinois EPA stated

that “Streams would be expected to exhibit either one kind of algal growth or another,”

depending on a variety of factors, and “the best measure of whether fish are adversely

impacted is to look at the local fish population. Hickory Creek has fish populations that

are not indicated of low dissolved oxygen concentrations.” HR 361. Illinois EPA also

concluded based on relevant data for 2003 that all measurements in Hickory Creek meet

the water quality standard for dissolved oxygen. HR 364. Given the complicated and

disputed nature of the science governing algae, both Illinois EPA and the Board have

concluded that a work group is necessary to study the issue of nutrients and proposed

standards that would govern dischargers in Illinois. Further, the Illinois EPA concluded

specifically in this case that “the incremental nutrient loading anticipated to result from

this project is not expected to increase algae or other noxious plant growth, diminish the

present aquatic community or otherwise aggravate existing stream conditions.” PR 565.

Finally, Petitioners do not address the impact of numerous other dischargers to the stream.

Respectfully submitted,

The Village of New Lenox

By:____________

One ofIts Attome~’

Roy M. Harsch

Sheila H. Deely

Gardner Carton & Douglas LLP

191 N. Wacker Drive

—

Suite 3700

Chicago, IL 60606

(312) 569-1000

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