BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

LIVABLEDESPRAIRIEPLANESRIVERSCOMMUNITIESRIVERNETWORK,WATERSHEDALLIANCE,and SIERRAALLIANCE,CLUB,

)))

RECEIVED

CLERK’S

JUN 082005

OFFICE

v.

Petitioners,

))

PCB04-88

PollutionSTATEOFControlILLIt’49

bOat

1Sd

)

(NPDES Permit Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY and VILLAGE OF NEW LENOX

)

)

Respondents.

)

NOTICE OF FILING

PLEASE TAKE NOTICE that the Des Plaines River Watershed Alliance, the Livable

Communities Alliance, Prairie Rivers Network, and the Sierra Club have filed the attached

PETITIONERS’ REPLY MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT and

PETITIONERS’ REPLY REGARDING RELEVANT FACTS iN THE AGENCY RECORD.

Albert F. ttinger (Reg.

0.

3125045)

Counsel for Des Plajnes River Watershed Alliance, Livable

Communities Alliance~ Prairie Rivers Network and Sierra

Club

DATED: June 7,

2005.

Environmental Law and Policy Center

35 E. Wacker Drive, Suite 1300

Chicago, Illinois 60601

312-795-3707

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

LIVABLEDESPRAIRIEPLANESRIVERSCOMMUNITIESRIVERNETWORK,WATERSHEDALLIANCE,and SIERRAALLIANCE,CLUB,

)))

RECE~V~D

STATE

CLERK’S

JUN

OF

082005

OFFICE

ILLINOIS

)

pollution Control Board

Petitioners,

.

)

)

v.

)

PCB04-88

)

(NPDES Permit Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY and VILLAGE OF NEW LENOX

)

)

Respondents.

)

PETITIONERS’ REPLY MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT

DATED: June 8, 2005

Albert F. Ettinger

Environmental Law and Policy Center

35

E. Wacker Drive,’Suite 1300

Chicago, Illinois 60601

312-795-3707

---

TABLE OF CONTENTS

INTRODUCTION

Respondents

do not contest the facts that are essential to Petitioners’ motion

4

II.

Respondents represent as facts matters not of record, and improperly cite

unsupported agency conclusions as though they were evidentiary facts or

reasoned findings

III.

Under the antidegradation rules, IEPAcould not allow the increased loading of

phosphorus unless it studied the necessity of the increased loading and found that

it was not feasible for New Lenox to remove phosphorus

8

A.

Regulatory Background and Purpose of35 Iii. Adm. Code 302.105(c)

8

B.

35

III. Adm. Code 302.105(c) is fully applicable to the New Lenox Discharge

to Hickory Creek

C.

IEPA had to require economically reasonable technology for phosphorus

control to minimize the new loading

13

D.

The fact that IEPA is working to establish numeric phosphorus standards

does not excuse it from complying with 35 Ill..Aclm. Code

302.105(c)

17

IV.

IEPA failed to assure that the discharge would not cause or contribute to

violations of the narrative “offensive conditions” standard

18

A.

The narrative standards are ilidependent legal requirements that may

not be ignored

~

B.

LEPA was obligated to take action to prevent the permit from allowing

discharges that have the potential to cause violations of the narrative

standard even if the discharge would not be the sole cause of the problem...19

C.

The Fact that JEPA should also control other potential contributors to

the offensive conditions does not allow it to except New Lenox from

controls

D.

The Fact that IEPA could petition the IPCB to establish a rule to control

phosphorus discharges does not free the New Lenox discharge from

compliance with existing regulations

V.

Respondents do not show that substantial evidence supports IEPA’s decision that

copper limits were unnecessary

CONCLUSION

---

INTRODUCTION

The Illinois Environmental Protection Agency (“IEPA” or the “Agency”) and the Village of

New Lenox (“New Lenox”) (collectively “Respondents”) in their responses to the motion for

summary judgment rely on legal arguments that contradict the express language of the relevant

regulations. Regarding the facts, Respondents frequently do not even try to support theirclaims with

citations to the record and many ofthe citations they do make do not support them. Respondents

frequently rely on Agency conclusions that have no basis other than the notion that if the Agency

says it, it must be true. In large part, the JEPA and New Lenox responses discuss issues (e.g.

dissolved oxygen levels, effect ofthe discharge on aquatic life and land treatment alternatives) that

were not raised by the motion.

However, the fundamental flaw in the responses ofIEPA and New Lenox is that they treat

this case as though it were an enforcement action brought byPetitioners againstNew Lenox claiming

that New Lenox had caused violations ofwater quality standards. Respondents fault Petitioners for

failing to prove indisputably with sworn testimony that New Lenox caused such violations. But this

is not an enforcement action. It is a permit review in which the question is whether JEPA followed

the Environmental Protection Act and the Board Rules in issuing the permit. The facts presentedby

Petitioners in their Statement ofRelevant Facts show the information about potential problems that

could result from the discharge under consideration that was provided to the Agency and what the

Agency did and did not do in response to that information during the permitting process.

In order to simplify this case and attempt to save Hickory Creek from the effects ofillegal

and unnecessary new pollution, petitioners Des Plaines River Watershed Alliance, the Livable

Communities Alliance, Prairie Rivers Network, and the Sierra Club (collectively, “Petitioners”)

moved for summary judgment on only three of the grounds forremanding the permit:

1

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1. IEPA never consideredputting any limit on discharges ofphosphorus-althoughthe-public

asked that such limits be considered and it is indisputably feasible to remove much ofthe

phosphorus from New Lenox’s discharge. The permit, accordingly, violates 35 Ill. Adm.

Code 302.1 05(c)(1) which requires that new pollution onlybe alkiwed~when~it is “necessary”

and

35

Ill. Adm. Code 302.105 (c)(2)(B)(iii), which requires that the Agency “assure”that all

technically andeconomicallyreasonable measures to minimize pollution be required.

2. Despite evidence (later confirmed by IEPA itself) that Hickory Creek is having unnatural

algal blooms and that discharges like those from New Lenox could contribute to such

blooms. IEPA failed to consider whether any permit limits or conditions were necessary to

prevent discharges that could cause or contribute to violations ofthe narrative “offensive

conditions” standard, 35 Ill. Adm. Code 302.203. Because ofthis failure, the permit violates

35 Ill. Adm. Code 302.203(c)(2)(B)(i), which requires that the Agency “assure”that narrative

standards will not be violated, and 35 Ill. Adm. Code 304.105 and 35 Ill. Adm. Code

309.141(d)(1) which prohibit issuance ofNPDES permits where the dischargewould “alone

or in combination with other sources cause a violation of any applicable water quality

standard” or where the discharge “will cause, have the reasonable potential to cause, or

contribute to an excursion above any State water quality standard including state narrative

criteria.” 40 CFR 122.44(d)(1)(i) (incorporated into Illinois rules by 35 Ill. Adm. Code

309. 141(d)(1)).

3. JEPA failed to assure that copper discharges will not cause or contribute to violations of

the copper water quality standard although testing by New Lenox’ s contractor showed that

there was a reasonable potential that copper discharges would cause such violations. Thus,

with regard also to copper, the permit violates 35 Ill. Adm. Code 302. 105(c)(2)(B)(iii), 35 Ill.

Adm. Code 302.203(c)(2)(B)(i), 35 Ill. Adm. Code 304.105 and

35

Ill. Adm. Code

309.141(d)(1).

(See Petitioners’ Memorandum in Support of Summary Judgment p.2.)’

Petitioners supported each oftheirthree claims with citations to the record showing how~the

permit violated Board regulations, thereby meeting their burden. JEPA and New Lenox do not in

response identify substantial evidence in the record that-supports:IEPA’s decisionon any ofthe three

grounds for remanding the permit. Nowhere in the record did TEPA consider whether adding so

Petitioners’ Memorandum in Support of Summary Judgment is cited as “Mem. in Support p.

“,

Petitioners’ Statement ofRelevant Facts from the Agency Record is cited as “SoF

¶ “,

the

IEPA Response toPetitioners’ Motion for and Memorandum of Law in Support ofSummary

Judgment is cited as “IEPA Resp. p.

“,

the Village ofNewLenox’s Memorandum ofLaw in

Opposition to Petitioners’ Motion for Summary Judgment is cited as “New Lenox Resp. Mem. p.

.“

and the Response ofVillage ofNew Lenox to Petitioners Statement ofRelevant Facts from

the Agency Record is cited as “New Lenox Resp. to Facts p.

.“

2

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much more phosphorus to Hickory Creek was necessary, and nothing in the record excuses this

failure unless the Board accepts the proposition that the fact that IEPA is working on developing

numeric nutrient standards means it does not have to comply with

35

Ill. Adm. Code

302.105(c).

Similarly, Respondents offer no evidence that IEPA considered taking any steps to prevent

potential violations ofthe narrative standards againstunnatural algal blooms. The Respondents do

bravelyattempt to argue that IEPA need not requirecompliance with narrative standards, but, as will

be seen below, this argument runs smack into clear legal requirements. Unless IEPA may ignore

regulations that are difficult to apply, the permit must also be remanded for this reason.

IEPA did go through the motions ofconsideringplacing copper limits in the permitbutthere

is no substantial evidence in the record supporting its decision not to place such limits in the permit.

Considering the evidence in the record as a whole, copper limits orfurther testing is needed before

the discharge can be permitted properly.

Because the decision by theBoard in this case must be made“exclusivelyon the basis ofthe

record before the Agency,” (415 ILCS

5/40(e)),

summaryjudgment is an appropriate method for

resolving this case. Summary judgment cannot be said to be a drastic remedy and is likely to be

appropriate in a proceeding in which there can never be a trial in which newevidenceis offered.

($~

e.g. Florida Fruit & Vegetable Assoc. v. Brock, 771 F.2d 1455, 1459 (11th Cir. 1985) (“Summary

judgment is appropriate in this case because in reviewing an agencyrulemaking, the court considers

the record that was before the agencyand the record is before the court”); Tarbell v. Dept. ofInterior,

307 F.Supp. 2d 409, 421 (N.D. N.Y. 2004) (where review is limited to agency record, the need for

resolution of fact issues, which often precludes summary judgment, does not generally apply);

Loggerhead Turtle v. County Council, 120 F. Supp. 2d 1005, 1011-1012 (M.D. Fla. 2000) (when

“the Court determines the issues based on the agency’s administrative record, a trial is generally

3

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unnecessary and summaryjudgment is often appropriate”)). Any hearingin this case would simply

be done to further summarize the evidence and provide oral argument. Ifsuch further summary or

oral argument is thoughtby the Board to be useful, the Board could order that there be oral argument

on the motion for summaryjudgment.

2

I.

Respondents do not contest the facts that are essential to Petitioners’ motion.

As explained further below, because it was IEPA’s duty to comply with the Board rules in

issuing the permit, Petitioners need only establish the following factual propositions to establish that

the permit violates the Board rules in three different.ways:

-

IEPA did not find that it was necessary for New Lenox to discharge into Hickory Creek

without providing phosphorus removal. (SoF ¶40)

-

IEPA did not determine that discharges from New Lenox could not cause algal blooms or

place any limits in the permit to prevent unnatural algal blooms. (SoF

¶

40)

-

Testing by New Lenox’s contractor indicated that there was a reasonable potential for

violations ofthe copper standard under the relevant U.S. EPA guidance, yet JEPA did not

require copper limits or further copper testing before permitting the discharge or offer a

reasonable justification for failing to do so. (SoF ¶~J36-38)

Because this is a third-party permit appeal, Petitioners had to prove a bit more to establish

standing and meet the requirements of4l

5

ILCS

5/40(e),

which requirePetitioners to have raised the

issues during the public notice period to challenge thepermitviolations. Accordingly, in addition to

providing the Board some background for the case, Petitioners in their Statement ofRelevant FactS

showed that:

-

Petitioners requested that IEPA consider placing some limit on phosphorus discharges in

the permit (S0F ¶~f3

1-33,

36)

-

Petitioners and other members ofthe public in comments complained of offensive algal

blooms in Hickory Creek. (S0F ¶~J6-8, 32)

2

Oral argument on this motion may well be appropriate given the importance ofthe issues raised

and the novelty ofmany ofthe issues.

4

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-

Petitioners offered into the record published treatises, expert comments and other

comments in the public record that indicate that discharges of phosphorus and other

pollutants ofthe kind dischargedby New Lenox may, alone orwith other sources, cause algal

blooms in Hickory Creek or downstream waters. (S0F ¶1J9-14, 30-32)

-

Petitioners requested that IEPA place a copper limit in the permit. (SoF ¶~J34-5)

These seven facts establishing the violations and the Petitioners’ right to complain about

them are beyond serious dispute and, in fairness to Respondents, they do not really try to contest

them. Respondents do, however, offer a numberofother denials and statements that are ofmarginal

relevance or no relevance to the motion.

II.

Respondents represent as facts matters not of record, and improperly cite

unsupported agency conclusions as though they were evidentiary facts or

reasoned findings.

Generally, the Board should not accept any ofthe statements offact madeby New Lenox or

IEPA in their responses without carefully studying the record. Many of their statements are not

supported by anything in the record. For example, New Lenox relies on the supposed fact that

“Illinois EPA made the determination th~tt.nolimits were required to address offensive conditions.”

(New Lenox Resp. Mem. p. 9). IEPA determined nothing of the sort. In the Responsiveness

Summary, the only thing that JEPA stated in regards to the narrative standard is that:

there is no existing water quality standards for nutrients that apply

to Hickory Creek. A narrative standard exists prohibiting plant and

algal growth of other than natural origin. This is a very difficult

standard to apply to a permit. The ongoing Agency effort to adopt

water quality standards for nutrients will resolve this issue. In the

meantime, the antidegradation assessment has concluded that the

expansion will not

exacerbate any existing

problems in Hickory

Creek due to nutrients. (HR 357) (emphasis added)

This statement from the Responsiveness Summaryprovides no basis forconcluding that no

limits were required to prevent offensive conditions, and sets forth the reason for the Agency’s

5

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decision.3 The statement acknowledges that there may be existing problems with algal growth and

that limits to prevent this may be set in the future. Indeed, subsequently, IEPA officials also

witnessed the same conditions that were seen by numerous persons who testified at the hearing and

listed Hickory Creek as impaired by “excessive algae growth” in the 2004 Illinois Water Quality

Report submitted by the agency to satisfy Section 305(b) of the Clean Water Act. (Ex. B to

Petitioners’ Analysis ofRespondents’ Claims Regarding Material Facts in Dispute)

Moreoyer, even where there is a document in the record that contains the statement cited by

IEPA or New Lenox, the document cited itself is often simply a naked conclusion without any.

scientific or factual basis. For example, IEPA and New Lenox repeatedly recite the marginally

relevant statement from the Agency antidegradation assessment that “the incremental nutrient

loading anticipated to result from this project is not expectedto increase algae or.othcrn~xiousplant

growth...” (New Lenox Mem. pp. 6-7, 9; IEPA Response p.6)4 No scientific justification or any

reasoning for this conclusion as to the exacerbation of existing problems is provided in the

antidegradation assessment (See HR 565) and the fact that this groundless statement is repeatediri

the Responsiveness Summary does not make it any better.

“Because I say so” is not a valid basis for JEPA decision-making and the permit cannotbe

upheld on the basis of IEPA statements in the record that are not supported by data or science.

Respondents cannotproperly rely on blind trust in IEPA’ s supposed scientific expertise. As federal

courts have said with regard to review ofdecisions by U.S. EPA, “judicial review ‘must be based

~Even if there were facts in the record from which a finding could be assembled that would

support the agency’s decision on this point, it is too late for the Agency to develop new rationales

for what it did. Under 35 Ill. Adm. Code 166.192, the Responsiveness Summary shall include the

“Agency’s specific response to all significant comments, criticisms and and suggestions.”

~This fact, were it a fact, is ofmarginal relevance to Petitioners’ motion for summary judgment

because IEPA could not issue a permit if the

total

permitted discharge, including the existing

discharge, has the potential to cause or contribute to a violation ofthe narrative standard.

6

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on something more than trust and faithin EPA’s experience’.” American Petroleum Institute v. EPA,

661 F.2d 340, 349 (D.C. Cir. 1981) (quoting Appalachian Power Co. v. Train,

545

F.2d

1351,

1365

(4th Cir. 1976)). Also see Citizens to Preserve Overton Parkv. Volpe, 401 U.S. 402,415; and Ethyl

Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976). The Board should not simply accept Agency

decisions based on

ipse dixit.

“Courts should remember that they need not

—

and should not— accept

an expert’s opinion on the basis of

zpse dixit,

i.e., such a thing is so because I say it is so.” Harris v.

Cropmate Co., 302 Ill. App. 3d 364; 706 N.E.2d

55,

65 (4th Dist. 1999). “Courts require that

‘administrative agencies articulate the criteria employed in reaching their result and are no longer

content with mere administrative

ipse dixit

based on supposed administrativeexpertise.’ “American

Petroleum Institute, 661 F.2d at 349 (quoting Appalachian Power Co. v. EPA, 477 F.2d

495,

507

(4th Cir. 1973)). More generally, as explained in District 1 199P v. N.L.R.B., 864 F .2d 1096, 1101

(3d Cir. 1989), “the overarching principle of agency review is that the agency must provide a

reasoned explanation ofits actions.”

In other words, IEPA cannot manufacture “substantial evidence” by making an

unsubstantiated statement in the record and then quoting itself. “Substantial evidence is more thana

mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion” and takes into account the evidence opposed to the view of the agency.

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 477, 488 (1951) (Frankfurter, J.); see also,

Farney v. The Civil Service Commission, 10 Ill. App. 3d 80; 293 N.E. 2d 450, 451

(4th

Dist. 1973)

In Petitioners’ Reply Regarding Relevant Facts in the Agency Record, Petitioners address

Respondents’ factual statements in light ofwhat the record actually contains. While theymight raise

an issue offactin anenforcement action brought against New Lenox, most ofRespondents’ factual

claims are simply not relevant to this permit appeal. Many ofRespondents’ factual claims are found

7

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to be supported by nothing. Incredibly, some ofthe statements cited repeatedly by Respondents are

backed only by naked statements in the record which have nothingbut the opinions ofanonymous

authors as support.

III.

Under the antidegradation rules, IEPA could not allow the increased loading of

phosphorus unless it studied the necessity of the increased loading and found

•that it was not feasible for New Lenox to remove phosphorus.

As to the only fact needed by Petitioners to prevail on their first claim, the record is crystal

clear. IEPA granted the New Lenox permit allowing an increased loading of phosphorus without

giving any consideration to whether it was necessary for New Lenox to discharge so much

phosphorus.5 IEPA’s failure to consider what phosphorus loadings are actually necessary is only

made worse by the facts that IEPA was aware that phosphorus was at least a potential problem in

Hickory Creek and downstream waters and that.members ofthe public asked for-a phosphorus limit,

submitting treatises and other data showing the potential problems from phosphorus.

The only rationale for failing to consider the necessityofthe increased phosphorus loading

that IEPA gave was that it did not think it needed to consider phosphorus controls until numeric

standards have been adopted (HR

358).

IEPA and New Lenox offer a variety oflegal arguments

regarding the antidegradation rules in an attempt to excuse the failure to even consider requiring

phosphorus treatment. None ofthese arguments have merit.

A.

Regulatory Background and Purpose of 35 Iii. Adm. Code 302.105(c)

~ Respondents do not deny the key fact here. (S0F

¶

40) Respondents do quibble about whether

an Illinois Association ofWastewater Agencies study, which was mentioned in the

Resp.onsiveness Summary without information on how to find it, can properly be said to be part

ofthe record. (IEPA Resp. pp. 26-7; New Lenox Resp. to Facts p. 26) Whether the unreviewed

IAWA study was “published” and part ofthe record or not, no one claims that it proves the

necessity ofNew Lenox’ s untreated phosphorus discharge.

8

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For a full understanding ofwhy the legal arguments of IEPA and New Lenox utterly fail, a

brief review of the purpose of the Clean Water Act (“CWA”) and the history of the Illinois

antidegradation rules that were enacted to implement the CWA is helpful.

The objective ofthe CWA “is to restore and maintain the chemical, physical and biological

integrity ofthe Nation’s waters.” 33 USC

§

1251(a). Inthe CWA, Congress set as an interim national

goal that “wherever attainable

...

water quality which provides forthe protection and propagation of

fish, shellfish and wildlife and provides for recreation in and on the water be achieved by July 1,

1983.” 33 USC

§

1251 (a)(2). Further, Congress established

elimination ofall discharges

by 1985 as

a national goal. 33 USC

§

1251(a)(1).

Federal antidegradation policy, 40 CFR

§

131.12, requires that states provide essentially three

typesThe

keyofprotectionforantidegradationtheirprotectionwaters, atonlyissueonehereofwhichis the

is“TierraisedII”byprotectionthe summarythat

isjudgmentcovered bymotion.35 Ill.6

Adm. Code 302.105(c).

35

Ill. Adm. Code 302.105(c) was designed to meet the requirements ofthe

federal Tier II rule, 40 CFR

§

13l.12(a)(2), that provides:

Where the quality ofthe waters exceed levels necessary to support

propagation offish, shellfish, and wildlife and recreation in and on

• the water, that quality shall be maintained and protected unless the

•

•

State finds, after full satisfaction of the intergovernmental

coordination, and public participation provisions of the State’s

continuing planning process, that allowing lower water quality is

necessary to accommodate important economicor social development

in the areain which the waters are located.

Actually, 35 Ill. Adm. Code 302.105(c), which was adopted in 2002, is the second Illinois rule that

recognized the federal TierII antidegradationpolicy. Illinois’ first antidegradation policy, then called

6 The first type ofprotection, protection ofexisting uses that is incorporated into the Board rules

at 35 Ill. Adm. Code 302.105(a), is raised by Petitioners in their petition but is not raised in the

motion for summary judgment.

9

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the “nondegradation” policy, was adopted by the Board in 1972 in PCB 71-14. In adopting this early

standard, the Board explained:

This preserves the presentprohibition on unnecessarydegradation of

waters presently of better quality than that required by the water

quality standards, recognizing that the standards represent not

optimum water quality but the worst we are prepared to’ tolerate if

economic conditions so require. In the Matter of Water Quality

•

Standards Revisions, (PCB March 7, 1972) 71-14, p. 11.

A few basic points that are fundamental to understanding 35 Ill. Adm. Code 302.105(c)

emerge from this discussion, First, it is not supposed to be easy to obtain permits for new or

increased discharges. Against the background that all discharges were supposed to be eliminated, it is

hardly surprising that U.S. EPA established regulations that required states to make it very hard to

obtain permits for new or increased discharges. It flows from this that new pollution is only to be

allowed where it has been shown to be really

necessary.

“Necessary” is the term used by both the federal regulation and 35 Ill. Adm. Code

302.105(c)(1), which tracks the federal rule. It is not enough to show that the new pollution is

reasonable, thought to meet a cost/benefit test or politically expedient. The previously discussed

principles ofthe CWA establish that discharges generally should be eliminated:and neworincreased

discharges should only be allowed where they are indispensable. As explained by U.S. EPA,

lowering water quality is allowed “only in a few extraordinary circumstances where the economic

and social need forthe activity clearly outweighs the benefit ofmaintainingwater quality~abovethat

requiredfor ‘fishable/swimmable’ water

and both cannot be achieved.”

(emphasis added) (Mem. in

Support, Appendix ofAuthorities B, p.4-’7)

Further, as is made clear by the federal regulation, the state regulation and the 1972 Board

opinion that established the “nondegradation” policy, the prohibition on new loadings that have not

10

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been shown to be necessary is an independent permitting requirementin addition to the requirement

that waterquality standards be met. See also, Columbus & Franklin CountyMetropolitan ParkDist.

v. Shank, 65 Ohio St. 3d 86, 99, 600 N.E.2d 1042, 1054 (Ohio 1992). That a new or increased

discharge will not cause a violation of the water quality standard for dissolved oxygen, total

dissolved solids, offensive conditions or copper does not make the discharge permissible unless it

has also been shown to be “necessaryto accommodate important economic orsocial development.”

35 Ill. Adm. Code 302.105(c)(1). As was stated by the Board in 1972 in adopting the

“nondegradation” standard, the water quality standards “do not represent optimum water quality but

the worstwe are prepared to tolerate ifeconomic conditions so require.”

(Supra

p. 4); See also, ~

Specific Exception to Effluent Standards for the Greater Peoria Sanitary and Sewerage Disposal

District, No. R87-21, 1988 Ill. ENVLEXIS 470, at *22 (Oct. 6, 1988) (the mandate ofthe Clean

Water Act to restore, maintain and enhance water quality requires that Illinois “strive to go beyond

the minimum cleanup goal of polluted waters, as well as to resist the temptation to pollute higher

quality waters up to the maximum allowable limits”).

B.

35 Ill. Adm. Code 302.105(c) is fully applicable to the New Lenox Discharge

to Hickory Creek.

Swinging for the fences, New Lenox attempts to argue on the basis ofthe litle of35 Ill. Adm.

Code 302.105(c), that the Board need not consider whether IEPA complied with 35 Ill. Adm. Code

302.105(c) at all because that regulation is only applicable to “high quality waters.” (New Lenox

Resp. Memo p.6) New Lenox further claims that “high quality waters” are only those that are on the

IDNR list ofbiologically significant streams. (New Lenox Resp. to Facts p. 1)

New Lenox’s argument, which IEPA wisely does not join, rams smack into the language of

35 Ill. Adm. Code 302.105(c)(1):

11

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(1) Except as otherwise provided in subsection (d) of this Section,

water ofthe State whose existing water quality is better than q~of

the established standards of this Part must be maintained in their

present high quality, unless the lowering ofwater quality is necessary

to accommodate important economic or social development.

(emphasis added)

Clearly, unless a water body does not have a level ofwater quality for any parameter that is better

than any of the standards listed in Part 302 (i.e. the water body violates all ofthe standards), it is

protected by 35 Ill. Adm. Code

302.105(e).7

While the parties disagree on the extent oftheproblems

ofHickory Creek, no one contends that the creek violates all ofthe water quality standards ofPart

302 and, thus, Hickory Creek is protected by 35 Ill. Adm Code 302.105(c) under the clear wordingof

the rules.There8

is no need to look beyond the plain language of35 Ill. Adm. Code 302.105(c) to reject

New Lenox’ s position as the language is clear. However, the history ofthat rule confirms that New

Lenox’s argument must fail. When IEPA presented in R01-13 the proposal to the Board that

established 35 Ill. Adm. Code 3 02.105(c), IEPA, through testimony ofTobyFrevert, made clear that

under the then proposed agency language every water body is covered that is meeting any ofthe

water quality standards. Frevert gave the example and explained that “just because we have an

ammonia problem doesn’t mean we are going to allow the copper loading to come up after we

address the ammonia problem. So the intent of this and I believe the federal law, is that we are

trying to minimize the amount of incremental additional pollution coming into the resources

~This was also the belief ofthe IEPA officials who wrote the antidegradation assessment who

went on to consider (inadequately) whether the social development was needed and a few

alternatives after concluding that Hickory Creek violated a number ofstandards and was not

listed as a biologically significant stream by the Illinois Natural History Survey. (HR 576-77)

8 ~ Ill. Adm. Code 302.105(c)(2) makes clear that “any proposed increase in pollutant loading

that necessitates a new, renewed or modified NPDES permit” is covered. “Degradation” includes

any perceptible lowering ofwater quality, Columbus & Franklin County Metropolitan Park Dist.,

600 N.E.2d at 1055.

12

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consistent with the goals ofthe Clean Water Act

...“

(Frevert Testimony, Nov. 17, 2000, Tr. 124-

125).

In other words, “high quality waters” is determined on aparameter-by-parameter basis and a

water can be “high quality” as to one pollutant even when it is impaired as to others. (Frevert

Testimony, Nov. 17, 2000, Tr. 118, 122-24); see also, U.S. EPA Handbookp.4-7

(~

Mem. in Supp.

App. ofAuthorities B) (“EPA believes that its antidegradation policy should be interpreted on a

pollutant-by-pollutant and waterbody-by-waterbody basis”).9 Protecting water quality on a

• parameter-by-parameter basis only makes sense as the Nation certainly will not meet its goal of

restoring and maintaining the chemical integrity ofits waters if it allows unnecessarynew loadings

ofa pollutant just because the water is violating standards for another pollutant)°

C.

JEPA had to require economically reasonable technology for phosphorus

•

‘control.

• IEPA in its Response claims that the Agency did consider reasonable alternatives to

minimize the pollution from the discharge. IEPA discusses how the costs ofland treatment and

sending the discharge to a golf course were considered as alternatives. (IEPA Response pp. 29-

30) Notablylacking, however, is discussion ofhow the Agency considered the cost of

phosphorus removal at New Lenox and determined if New Lenox could bear that cost. That

never happened. The closest IEPA came to looking at this common wayto minimize pollution

~The federal regulation that 35 Ill. Adm. Code 302.105(c) is designed to implement, 40 CFR

§

131 (a)(2) does not refer to “high quality waters” at all. It speaks ofwaters with “levels” ofquality

that are better than minimum fishable/swimmable water quality standards.

10 New Lenox’s theory that “high quality waters” only include those that are listed as biologically

significant by the Illinois Natural History Survey would also make nonsense out of35 Ill. Adm.

Code. 302.l05(d)(6). Read properly, that rule states that new loadings permissible under general

permits need not go through an antidegradation analysis except that the agencymust require

individual permits fornew discharges to waters ofparticular biological significance. Under New

Lenox’s perverse theory, the limit on the exception for new loadings permitted under general

permits would extinguish the general rule because the only thing to which antidegradation would

13

---

was to cite a cost study that did not even estimate the cost ofphosphorus removal because it dealt

with a combined cost of

both

nitrogen and phosphorus removal.

(~

HR 358 and IEPA

Response p. 24.)

•

•

More critically,just tossing out a cost figure obviously does not constitute proofthat

allowing the extra amount ofphosphorus loading into the creek that could be avoided with better

treatment is “necessary.” There is not a fragment of discussion in the record showing that New

Lenox, a growing and wealthy community, could not bear the cost ofphosphorus treatment. At a

minimum, for lowering ofwater quality to be “necessary to accommodate important economic or

social development,” it must be the case that the development cannot practicably go forward

without allowing lower water quality. As was explained by U.S. EPA in giving guidance to states

as to how to implement antidegradation, “when performing an antidegradation review, the first

question is whether the pollution controls needed to maintain the high-quality water will interfere

with the proposed development. If not, then the lowering ofwater quality is not warranted.”

Interim Economic Guidance for Water Quality Standards, U.S. EPA (1995).”

While the U.S. EPA Interim Economic Guidance is only guidance, it does indicate the

sort offactors that IEPA should consider if it is to comply with the 35 Ill. Adm. Code 302.105(c)

requirements. Under the U.S. EPA Interim Economic Guidance, pollution loading is not

considered necessary for development if the total annual cost ofavoiding the loading per

household is less than 1.0 percent ofmedian household income. ~p.

5-5)

The record does not

contain the information needed to do this calculation in relation to the necessity ofallowing the

loading ofphosphorus to Hickory Creek at issue here because IEPA did not look at such factors.

apply is discharges to biologically significant waters.

~ Available at, http://www.epa.gov/waterscience/econlchaptrs.html. Attached to this

memorandum as Supplemental Authority.

14

---

It is, however, extremelyunlikely that the phosphorus loading at issue here could be found

necessary given the size and prosperity of New Lenox and the low cost ofreducing phosphorus

concentrations in sewerage effluent down to 1 mg/L.

IEPA argues that it complied with the antidegradation requirements by considering the

matter on a case-by-case basis and doing what it thought was reasonable in light ofthe

circumstances. (IEPA Resp. pp 28-30) Actually, IEPA did not consider phosphorus on a case-by-

case basis. As the Responsiveness Summary demonstrates, it rejected phosphorus removal on the

general basis that IEPA did not then think it had to do anything regarding phosphorus discharges

to streams until numeric ph9sphorus standards were developed. IEPA offers no specific excuse

for failing to consider standard phosphorus removal treatment such as has been required of

numerous Illinois dischargers for decades.

($~

35 Ill. Adm. Code 304.123.)12

Moreover, IEPA misunderstands what 35 Ill. Adm. Code 302.105(c) requires. IEPA,

while launching offthe term “reasonable” in 35 Ill. Adm. Code 302.lOS(c)(2), passes over the

term “necessary” that appears in 35 Ill. Adm. Code 302.105(c)(1). IEPA can point to nothing in

the record that shows that it even considered whether the increased phosphorus loading was

necessary.

Further, IEPA misstates what “reasonable” means in the context of35 III. Adm. Code

302.105(c)(2). “Reasonable” must be read in the context and with the language ofthe entire

section in which it is referred. 35 Ill. Adm. Code 302.105(c)(2)(B)(iii) specifically states that

“all technically and economically

reasonable measures to.. .minimize

the extent ofthe j,roposed

12 The Board in adopting 35 Ill. Adm. Code 302.105(c) made clear that the “main objective” is to

identify and implement alternatives that reduce or eliminate the proposed increased loadings. In

the Matter of: Revision to Antidegradation Rules, R200 1-12, 2001 Ill. ENV LEXIS 316 at *31

(June 21, 2001). Here IEPA plainly frustrated the main objective by refusing to consider

phosphorus removal at all.

15

---

increase in pollutant loading have been incorporated into the proposed activity” (emphasis

added). “Minimize” has been defined and referred to as an action to “reduce to the smallest

possible number, degree or extent.” U.S. v. Focarile, 340 F. Supp. 1033 (D.C. M.D. 1972)

(quoting Webster’s New Third International Dictionary). Here, one purpose ofthe Clean Water

Act is to eliminate discharges to the nations’ waters. Thus, what “reasonable to minimize” means

• in this context is that a measure should be used to avoid or’minimize pollution unless it has been

shown to be economically infeasible. As IEPA itself explained in a letter it sent out to explain the

antidegradation rules:

Ifdegradation is likely to occur, the degradation must be held to

the smallest amount practically achievable and such degradation

•

•

must be fully justified by the benefits ofthe project.

The revised anti-degradation regulations focus less on the

requirements necessary to meet water quality standards (although

•

compliance with standards is still necessary) and more on what

kind oftreatment system can be designed that will have the least

adverse impact on the receiving water. Letter ofTom McSwiggen,

Manager Permit Section, July 18, 2002 App. ofAuthorities A

Still further, IEPA claims that part ofthe reason that it was reasonable to allow New

Lenox to discharge into Hickory Creek without any phosphorus treatment is that the “Village

STP 1 is not a major source ofphosphorus to Hickory Creek.” (IEPA Resp. p. 30) This is

irrelevant to the question ofwhether the phosphorus loading is necessary. Moreover, neither

IEPA nor New Lenox denied the assertion made in the record by Professors David Jenkins and

Michael Lemke that under the permit the plant will discharge 53.7 ofthe stream phosphorus

load on average and that the stream below New Lenox will be carrying 216 ofthe total

phosphorus loads upstream of the plant.

(~

SoF

¶

11, IEPA Resp. p. 16 and New Lenox Resp.

to Facts p. 8.)

Still further, the Board has repeatedly found that, using technology that existed decades

16

---

ago, “for systems ofgreater that 5000 population units, a 1.0 mg/L phosphorus limitation is

economically reasonable.” Village ofWauconda v. Illinois EPA, PCB 1981-017, 1981 Ill. ENV

LEXIS 266, at *4 (May 1, 1981); see also In the Matter of: Amendments to the Water Pollution

Regulations, Rl976-001, 1979 Ill. ENV LEXIS 312 (Feb. 15, 1979); In the Matter of: Site-

Specific Phosphorus Limitation for the City ofShelbyville, R1983-12, 1984 Ill. ENV LEXIS 129

(December 20,1984).

Finally, it cannot go without notice that IEPA’s argument

—

that it would have been

unreasonable to require phosphorus controls on New Lenox with regard to its increased discharge

from 1.54 to 2.516 million gallons per day

—

approaches surrealism given that in R2004-026 the

IEPA has presented evidence, found persuasive by the BOard, that a 1.0 mg/L phosphorus

effluent limit should be required ofall new orincreased discharges totaling over 1 million

gallons per day. For this reason, Petitioners are fairly confident that, given a chance to look at the

issue again after remand, IEPA will find that it is not necessary for New Lenox to discharge more

than 1 mg/L ofphosphorus into Hickory Creek.

D.

The fact that IEPA is working to establish numeric phosphorus standards

does not excuse it from complying with 35 Ill. Adm. Code 302.105(c).

The only reason fornot consideringphosphorus limits actually given byJEPA in the record

was that IEPA was workingto develop numeric waterquality standards forphosphorus. New Lenox

adds to this that the science ofdetermining the precise levels ofnutrients that cause-problems-is not

• yet settled. (New Lenox Resp. Mem. p.’7)

But the fact that IEPA is working on phosphorus numeric standards is no reason to fail to

place limits in NPDES permits to comply with the antidegradation regulations. As is made clear in

the Board rules, the water quality standards and antidegradation are separate requirements. The

requirement that unnecessary new pollution not be allowed applies even if all ofthe other water

17

---

quality standards are actually satisfied and it hasbeen shown that the new pollution will not havean

effect on existing uses. As the authorities discussed above make clear, under the Clean Water Act,

we as a society are trying to maintain and restore water quality to the greatest extent possible. This

precludes allowing unnecessarynewpollution evenifit is not knowirto bel.rarmful. The fact that we

do not know exactly how phosphorus affects streams or the safe levels that can be in a stream, if

anything, makes it more imperative that unnecessary new phosphorus loadings not be permitted.

IV.

IEPA failed

to assure

violations ofthe narrative “offensive conditions” standard.

As theydid with regard to the failure to place phosphorus limits in the permit and in section

302.105(c), Respondents offer a series of legal arguments that attempt to excuse the permit’s

violation ofBoard rules. As before, all ofthe arguments fail.

A.

The narrative standards are independent legal requirements that may not be

ignored.

Much ofRespondents’ argument seems based on the notion that narrative standards do not

really count. They imply that since there is no numeric standard yetforphosphorus andno proof, in

their view, that the dissolved oxygen or pH standard has been violated or aquatic life has been

exterminated, IEPA was not obligated to takethe narrative standard seriously. (IEPA responsep.3 1~

New Lenox Resp. Mem. p.

9)13

Such arguments cannot be reconciled with the law.

The Board Rules explicitly treat the narrativestandards as independent standards.thai must.be

satisfied alongwith the narrative standards. ~ç 35 Ill. Adm. Code 302.1 05(c)(2)(B)(i). The section

302,203 “offensive conditions” standard is listed right along with all the other water quality

standards in Part 302 without any hint that it maybeignored if other standards are satisfied. 35 Ill.

‘~Petitioners have offered facts from the record with regard to high pH values with regard to this

motion only because high pH values are further evidence ofexcessive algal activity.

18

---

Adm. Code 304.105 prohibits discharges which cause a violation of“any” water quality standard

and, similarly, 35 Ill. Adm. Code 309.14l(d)(1) does not indicate that more stringent limits on

permits are unnecessary iftheywould only be needed to preventviolations ofa narrative standard.

35

Ill. Adm. Code 309.141(d)(2) requires that Illinois permits comply with federal regulations. Among

such federal regulations, 40 CFR

§ •

122.44(d)(l)(i) explicitly prohibits states from allowing

discharges that may cause or contribute to violations ofnarrative standards. Moreover, the Board has

held persons liable for causingviolations ofthe “offensive conditions” standard. People v. Chalmers,

PCB 1996-111, 2000 111. ENV LEXIS 4 (PCB 2000); see also Sierra Club v. Hankinson, 939 F.

Supp. 865, 870 (N.D. Ga. 1996) (a state is not free to ignore narrative standards in listing impaired

waters under Section 3 03(d) ofthe CWA).

The notion that it is good enough to comply with numeric standards cannot be reconciled

with the la~r.

•

•

B.

IEPA was obligated to take action to prevent the permit from allowing

discharges that have the potential to cause violations ofthe narrative standard

• even if the discharge would not be the sole cause ofthe problem.

Respondents cannot deny that numerous persons stated in comments that unusual algal

blooms have occurred in Hickory Creek. (SoF ¶116-9) Although they quibble, Respondents cannot

deny that discharges ofpollutants like those coming from the New Lenox discharge are known in the

published literature to cause just the kind ofoffensive conditions reportedimithe record. Respondents

alsoActually,cannotwepointnowtoknowanythingthat

subsequentlyJEPA

did to determineTEPA

officialswhetheralsothewitnessedoffensivetheconditionssame conditionsoccurred.’that4

14

It cannot seriously be contended that the observation on one day by an anonymous New Lenox

contractor that there was no “visible” overnutrification demonstrates that the New Lenox

discharge has no potential to cause or contribute to violation ofstandards at any time downstream

from the plant. But that is the only fact in the record that provides any basis for Respondents’

claim.

(~ç

Petitioner’s Reply Regarding Relevant Facts in the Agency Record p.7.)

19

---

were seen by numerous personswho testified at the hearing and listed HiCkory Creek asimpaired by

“excessive algae growth” in the 2004 Illinois Water Quality Report submitted by the agency to

satisfy SectionRespondents305(b)cannotofthepointCleantoWateranythingAct.’that5

was placed in the permit to prevent the

observed problem from occurring in the future or to assure that the increased New Lenox

discharge would not make the problem worse. IEPA did not conclude that in its Responsiveness

Summary that permit limits to prevent offensive conditions were unnecessary or that offensive

conditions could not result in whole or in part from the New Lenox discharge. It said only that

• setting limits to control discharges that might cause violations of narrative standards is “very

difficult” and that it might do something about the potential problem after it develops numeric

• standards. (HR 357.)

•

•

Since they have nothing in the record to show that IEPA did anything to prevent discharges

that would cause orcontribute to violations ofthe narrative standards, Respondents try to rewritethe

Board rules to make it the public’s job to prove that a discharge will be the sole cause ofa violation

ofwaterquality standards before a permit condition is imposed. Based onthat premise, Respondents

argue that Petitioners did not prove that the green algae in Hickory Creek (said by eye witnesses to

be depressing and unusual and which was identified by a professional lake ecologist as resulting

from excess nutrients) was unnatural (IEPA Response25). They argue that Petitioners did not prove

that the New Lenox discharge was the cause ofwhatever problem occurred and, that even if it was

~ IEPA’s finding that Hickory Creek is in fact impaired by excessive algae growth is not in the

administrative record and so Petitioners did not rely on this finding to make their prima facie

case. However, the data showing the standards violation was in the Agency’s possession when it

• issued the permit and the Board can use the official post-decision finding by IEPA to reject

representations by Respondents that Hickory Creek is in compliance with the narrative standard.

(~

May Dept. Stores Co. v. Teamsters Union, 64 Ill. 2d 153, 159,

355

N.E. 2d 7, 9 (Ill. 1976)

(judicial notice may be taken ofdocuments in public record)).

•

•

20

••

---

part ofthe cause, that there are a lot ofother sourcesopollutants to the creek. (IEPA Resp. 14; New

Lenox Resp. Mem. 9) Respondents conclude that absent proofin the record that the New Lenox

discharge was the sole causeofthe problem, IEPA was free to do nothing. Getting a bit carried away,

IEPA claims that to prevail Petitioners must prove that the area of“Hickory Creek right below the

Village STP 1 discharge has algal growth of unnatural origin” (IEPA Resp. p. 33)16

IEPA’s reliance on City ofE. Moline v. IEPA, PCB 1987-127, 1989 Ill. ENV LEXIS 1205

(Nov. 15, 1989)makes clear the extent ofRespondents’ misunderstanding ofthe law relevant to this

proceeding. In E. Moline a party was held liable for causing a violation of section 302.203, which

serves to show further that the narrative standard is not as toothless as the Respor~t~h~xJain~d.

IEPA’s point, however, is that Petitioners have not met the same burden ofproofthat the Agency

met in proving that the respondent in E. Moline had violated the standard. Thatis plainly irrelevant.

Petitioners are not attempting in this proceeding to hold New Lenox liable for violating the law but

only to get IEPA to follow the applicable rules before issuing a NPDES permit. Those rules place

perquisites on permit issuance by the Agency that have not been satisfied.

Petitioners in this proceeding are obligated to show that the permit as issued violated the Act

or the Board rules. Prairie Rivers Network v. The Illinois Pollution Control Board, 335 Ill. App. 3d

391, 781 N.E. 2d 372, 380 (4th Dist. 2002). Petitioners here have done that by showing that IEPA

issued the permit in violation ofnumerous Board rules. These Board rules do not state that IEPA

maypermit a discharge unless it is mathematically certain that that discharge by itself, will cause a

violation ofwater quality standards. Rather, the Board rules statethat IEPA must “assure” there will

16 On better moments, IEPA is fully aware that discharges from a plant maycause problems

miles below the plant. The Board certainly recognized this in setting limits on phosphorus

discharges twenty-five miles above a lake or reservoir. 35 Ill. Adm. Code 304.123(c).

•

21

---

beFurther,no violationIEPA

couldas

thenotresultissueofthea newNeworLenoxincreasepermitdischarge.without35

determiningIll.

Adm. Codethat302.105(c)(2)(B).’the

total discharge7

“alone or in combination with other sources” would not cause a violation ofstandards 35 Ill. Adm.

Code 304.105 and IEPA could not issue the permit without findingthat the discharge did not have

“the potential to cause” or “contribute” to a violation of water quality standards. 40 CFR

§

1 22;44(d)(1 )(i).

The public did itsjob by bringing the potential problems to the attention ofIEPA.The permit

violates the Board rules because IEPA did not do what it was required to do before issuing a permit.

C.

The Fact that IEPA should also control other potential contributors to the

offensive conditions does not allow it to except New Lenox from controls.

New Lenox also suggests that it would be unreasonable for IEPA to regulate pollution from

New Lenox that might contribute to algal blooms without controlling all sources ofthe problem

stream-wide. (New Lenox Resp. Mem. p.10.) Petitioners agreethat IEPA should do more to control

other sources ofphosphorus and pollutants to Hickory Creek, but this provides no legal basis for

granting a permit to New Lenox that has the potential to contribute to the problem.

As discussed, the Board rules are clear that IEPA cannot issue a permit that “alone or in

combination with other sources” will violate standards. 35 Ill. Adm. Code 304.105. The Board has

upheld phosphorus limits even where the point source at issue was only seven percent (7) ofthe

total dissolved phosphorus input to the waterbodyat issue. Inthe Matter ofSite-Specific Phosphorus

Limitation for the City of Shelbyville, Ri 983-12 1984, Ill. ENV LEXIS 129 (Dec. 20, 1984).

New Lenox cites a California decision, Communities for a Better Environment v. State Water

Resources Control Board, 109 Cal. App. 4th 1089, 1 Cal. Rptr. 3d 76 (iSt Dist. 2003) for the

17 “Assure” means to make certain and put beyond doubt; to ensure positively. Rite Aid, Inc. v.

Houston, 171 F.3d 842, 852 (3d. Cir. 1999)

22

---

proposition that IEPA could not impose limits on one discharger if that would not solve the whole

problem. (New Lenox Resp. Mem p.9) Actually, this California decisionpresents a good example of

•the sort of thing that IEPA should have done.

Contrary to New Lenox’s suggestion that the California court approved a decision by

California authorities to do nothing with regard to the dischargerat issue, the case was actuallyabout

whether the California authorities had to impose a numeric water quality based limit on the

discharger. The court agreed that, under the circumstances, the California authority did not need to

-place such a limit on the discharger and that instead an interim performance based limit

-

that

imposed an 85 reduction ofthe pollutant in question from prior discharges and strict monitoring on

the discharger

-

was sufficient. Communities for a Better Environment, 109 Cal. App. ~ at 1102.

Petitioners do not believe that a remand by the Board in this case will result in IEPA

imposing strict performance-based limits on New Lenox requiring reductionsof85 ofthe loadings

ofphosphorus or other pollutants that may be causing the offensive conditions in Hickory Creek

(although there are feasible technologies that could easily reduce New Lenox discharges of the

relevant pollutants by 85). In any event, the fact that IEPA could not completely control the

problemby controlling discharges by New Lenox is no justification for issuing a permit that will add

to the loading ofpollutants known to cause algal blooms.

D.

The Fact that IEPA could petition the IPCB to establish a rule to control

phosphorus discharges does not free the New Lenox discharge from

compliance with existing regulations.

New Lenox also argues that IEPA could not place limits or conditions in New Lenox’s permit

to prevent discharges from causing “offensive conditions” without a rulemaking setting numeric

limit forwhateverpollutants are causing the offensive conditions. (New Lenox Resp. Mem. p. 10). In

support ofthis proposition, New Lenox cites Wisconsin Electric Power Company v. Department of

23

---

Natural Resources, 93 Wis. 2d 222, 287 N.W. 2d 113 (1980) and Simpson TacomaKraft v. Dept of

Ecology, 835 P.2d 1030 (Wash. 1992). However, both Wisconsin Electric and Simpson Tacoma

involve cases where the administrative agency adopted numeric standards ofgeneral applicability

without going through the process for adopting numeric standards. In Wisconsin Electric, the

Wisconsin DNR adopted specific numeric standards•for chlorine that applied to all powerplants. 287

N.W. 2d at 120. In Simpson Tacoma, the Washington Department ofEcology adopted a .013 ppq

dioxin standard that applied to all water bodies and point sources in the state. 835 P.2d at 1033.

Understandably, the courts faced with such agencyrulemakingheld that the agencyhad-to-followthe-

stateproceduresIn

this case,for

rulemaking.’as

to the narrative8

standard, Petitioners did not ask that IEPA adopt any rule

without going through rulemaking. Petitioners asked merely that IEPA apply the existing narrative

standard of302.203 and consider site-specific permit limitations orconditions that would preventthe

New Lenox discharge from causing or contributing to violations ofthe narrative standard.

Obviously, the “offensive conditions” standard is not susceptible of being replaced by a

numeric standard that will be applicable across the state, but that does not meanthat the standard can

be ignoredby IEPA in permit writing. On remand, IEPA should do the work that it should have done

before issuing the permit: determining whether there is a potential problem (it determined in 2004

that there is an actual problem), and then fashioning steps to assure that the New Lenox discharge

does not cause or contribute to the violation ofsection 302.203. Following Communities fora Better

Environment, such steps may include performance-based limits, improvedmonitoring orperhaps a 1

mg/L phosphorus limit such as the one it placed in the Wauconda permit recently approved by the

18 As will be seen below in the discussion ofcopper, there is a potential application ofthe

principle that rules must go through rulemaking in this case. IEPA has improperly established a

rule under which it routinely refuses to apply the U.S. EPA guidance regarding the determination

-

•

24

---

Board in Village ofLake Barrington v. IEPA, PCB 2005-55 (April 21, 2005).

V.

Respondents do not show that substantial evidence supports IEPA’s decision

that copper limits were unnecessary.

-

On copper limits, Respondents do not deny that using U.S. EPA recommended procedures,

copper limits should have been required. Respondents admit that JEPA performed the U.S. EPA

recommended analysis but then refused to apply the U.S. EPA recommendations as to permit limits.

(New Lenox Resp. Mem. p. 25; IEPA Resp. p. 34). IEPA’s defense ofits action consists of its

explanation that:

The Agency does not believe that the USEPA’s procedure

. ..

is valid

when a small sample size exists because USEPA recommends

application ofa higher multiplier. In cases where limited data exists,

-

the Agency evaluates these substances against the water quality

- •

standards applicable to the receiving stream. The approach is

especiallyappropriate in cases where facilities have-been previously

identified through the pretreatment program as having a low risk of

high levels of metals and other industrial pollutants in treated

• domestic waste effluents. (IEPA Resp. p. 34)

IEPA’s explanation does not make sense and falls far short of demonstrating substantial

evidence that IEPA assured that the discharge would not cause or contribute to violations ofthe

copper standards. First, U.S. EPA did not establish its recommendations in order to be cruel to

dischargers. Although the statistical reasoning involved in the U.S. EPA guidance is sophisticated,

the basic principle that “the more limited the amount ofdata, the larger the uncertainty” is common

sense. (See Mem. in Support p. 13.) IEPA, ofcourse, offers nothing to refute this truth. Instead,

IEPA states that it applies a rule that ignores the fact that limited data makes for greater uncertainty.

JEPA’s claim that it should be more lax ifthere is little datais almost comical. The fact that

data forthe New Lenox discharge (and other discharges to which IEPA’s rule applies) is limited did

not happenbecause ofan “act ofGod.” New Lenox could have collected more data and IEPA could

ofreasonable potential in favor ofits own much less protective rule.

-

25

---

have asked New Lenox to collect more data if it wanted to avoid a copper limit.19 Ifone is trying to

assure that water quality standards are not violated, the obvious answer to a problem with limited

data is to get more data collected.

•

-

-

IEPA’s statement that it, was reasonable for it to be less protective because it thought New

Lenox to be a “low risk” formetals problems also makes no sense. Whatever was reasonable to think

before the testing was done, it was not reasonable to assume that New Lenox was a low risk for

metals aftertests run by New Lenox’ s contractor showed high copper levels.

Moreover, here it does appearthat IEPA applied a general rule that ituses -whenever there is

limited data. This plainly is an implementation-rule that should have gone through the Illinois

•

Register Notice and Comment procedure and should have been submitted to the U.S. EPA for

approval as a standards implementation rule under 40 CFR

§

131.6(f). If IEPA should decide to

submit this rule to U.S. EPA for approval, it will be interesting to see what U.S. EPA thinks ofa rule

that defiantly rejects its guidance in favor ofa rule that is far less protective.

‘~The cost ofadditional copper sampling is reasonable. The U.S. EPA estimated cost for

• analyzing wastewater formetals, including copper, was $15 per sample (p. 128, U.S. EPA

NPDES Permit Writers’ Manual, dated December 1996, available at

http://www.epa.gov/npdes/pubs/owm0243.pdf

26

---

CONCLUSION

Ifthe Respondents want to put more evidence into the record, the easiest wayto accomplish

that is forthe permit to be vacated and remanded to the Agency forfurther consideration. JEPA could

then consider whether it was necessary to allow so much phosphorus into the water and what might

be done to assure that excessive algal blooms do not again occur. New Lenox and other interested

parties could then offer whatever evidence into the record that they wanted.

-

The Board should vacate and remand the permit to IEPA for reconsideration.

~F.Etting~g..3~5~

•

-

Counsel for Des Plaines River Watershed Alliance, Livable

Communities Alliance, Prairie Rivers Network and Sierra Club

DATED: June 8, 2005

Environmental Law and Policy Center

35 E. Wacker Drive, Suite 1300

Chicago, Illinois 60601

-

312-795-3707

• 27

---

Supplemental Authority

---

United States

Office of Water

EPA-823-B’95-002

Environmental Protection

Agency

•

•• •

•

(4303)

-

March 1995

6EPA

• • •

interim Ecoflómic

Guidance

- •

-

for Water Quality Standards

Section

101(a) of

the

Clean Water Act

AppendixM to the

• -•

-

Wafer Quality Standards Handbook

-•

Second

edition

Q~) Recycted/Recyclable

~

rIIJIteØ

on

p8p~rlhatWflLWna

-

atIeastSOmcydodfiber-

Workbook

“...

to restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters.”

---

INTERIM ECONOMIC GUIDANCE

FOR WATER

QUALITY

March

1995

---

5.

ANTIDEGRADATION: ROLE OF ECONOMIC ANALYSIS

Under the Water Quality Standards program, each State must develop, adopt and

retain a statewide antidegradation policy and establish procedures for its implementation.

The antidegradation policy is intended to protect current water quality; in only a limited

set of cases can economic grounds be used to allow for a lowering of water quality. In

particular, if the quality of the water exceeds levels necessary to support the propagation

of fish, shellfish, and wildlife and recreation in and on the water (i.e. “high-quality

water”), then economic considerations can be taken into account. Before any lowering

of water quality in high-quality waters, however, an antidegradation review must

determine that the lowering is necessary in order to accommodate important economic or

social development in the area in which the waters are located.

Antidegradation is not a “no growth” rule and was never designed nor intended to be

one. It is a policy that allows the public to make decisions about important-environmental

actions. Where the State intends to provide for development, it may decide that some

lowering ofwater quality in “high-quality waters” is necessary to accommodate important

economic or-social development. Any such reduction in water quality, however, must

protect existing uses fully and must satisf~’.the requirements for intergovernmental

coordination and public participation.

While the terminology is different, the tests to determine substantial and widespread

economic impacts (used when removing a use or granting a variance) are basically the

same as those used to determine if there might be interference with an important social

and economic development (antidegradation). As such, antidegradation analysis is the

mirror image ofthe analyses described in Chapters 2, 3 and 4. Variances and downgrades

refer to situations where additional treatment needed to meet standards may result in

worsening economic conditions; while antidegradation refers to situations where lowering

water quality may result in improved social and economic conditions.

When performing an antidegradation review, the first question is whether the pollution

controls needed to maintain the high-quality water will interfere with the proposed

development. Ifnot, then the lowering of water quality is not.warranted. If, on the other

hand, the pollution controls will interfere with development, then the review must show

that the development would be an important economic and social one. These two steps

rely on the same tests as the determination of substantial and widespread impacts. It

should be stressed at the outset that substantial economic impacts does not mean driving

profits to zero, nor precluding all other municipal expenditures.

The following sections describe the steps involved in performing an economic impact

analysis as part ofan antidegradation review. These steps are outlined in Figure

5-1.

The

analytic approach presented here can be used for a variety ofpublic-sector and private-

sector entities, including POTWs, commercial, industrial, residential and recreational land

Economic Guidancefor Water Quality Standards

5-1

---

uses, and for point and nonpoint sources of pollution. The guidance provided in this

chapter, however, is not meant to be exhaustive. The State and/or EPA may require

additional information or tests. In addition, the applicant should feel free to include any

additional information they feel is relevant. The steps described in further detail in the

rest ofthe chapter are:

•

Verify Project

Costs

and Calculate the Annual Cost of the Pollution Control

Project

-

This section describes the factors considered when verifying that the

proposed pollution control project is the most appropriate solution and the type of

information that should be provided about the proposed project. It discusses how

to annualize capital costs of the project and calculate total annual costs of the

pollution control project.

• Determine if Requirements would Interfere with Development (i.e., lower

water quality is “necessary”)

-

This section describes the types offinancial tests

that should be used to determine if maintaining the high-quality water would

interfere with the development.

•

Determine if Economic and

Social

Development -would be Important

-

This

section presents factors to be considered in determining whether the development

would be important from an economic and social point ofview.

These steps closely parallel the analytic techniques presented in Chapters 2, 3, and 4.

These chapters should be read for more detail.

5.1

Verify Project Costs

Project

Before the impact analysis can be performed, the project costs should be verified and

the annual costs calculated. Both private-sector and public-sector entities should consider

a broad range ofdischarge management options including pollution prevention, end-of-

pipe treatment, and upgrades or additions to existing treatment.

Whatever approach, the discharger must demonstrate that the proposed project is the

most appropriate means ofmeeting water quality standards and must document project

cost estimates. If there is at least one of the treatment alternatives that allows the

applicant to maintain high-quality water withoUt incurring substantial impacts, then they

have failed to show that the requirements would interfere with the development. Cost

information, and the assumptions underlying the cost estimates, should be supplied on

Worksheet 0.

-

The following two sections (5.1.a and 5.1.b) discuss analyzing public-sector projects.

Section 5.1 .c discusses private sector projects.

Economic Guidancefor Water Quality Standards

5-2

---

5.1.a

-

Public-Sector Developments: Calculate the Annual Costs of the Pollution

Control Project

-

Since capital costs typically will be paid over several years, annualized costs are used

in the evaluation of economic burden to the community. The capital portion ofpublic-

sector project costs is typically financed over approximately 20 years, by issuing a

municipal debt instrument such as a general obligation bond or a revenue bond.

The calculation of total annualized cost ofthe project is presented in Worksheet P.

First, capital costs are summed and the portion ofcosts to be paid for with grant monies

are deducted, as these costs will not need to be financed. Next,:the annualization factor

is calculated using the formula supplied on Worksheet P, or the annualization factor is

found in Appendix B. Annualized capital cost is then calculated by multiplying the total

capital costs to be financed by the annualization factor.

The interest rates used to annualize costs are dependent on the type of debt instrument

used as well as the issuer’s credit standing. Therefore, the interest rate used on

Worksheet P reflects the debt instrument (i.e. municipal bond, commercial bank loan,

state revolving fund loan, or other instrument) likely to be used by the municipality.

Next, annual operating and maintenance costs are added to the annualized capital cost.

0&M costs should include the costs of monitoring, inspection, permitting fees, waste

disposal charges, repair, administration, replacement, and any other recurring costs. All

recurring costs should be stated in terms of dollars per year. The sum ofthe annualized

capital cost and total annual operating and maintenance costs is the total annual cost of

the project.

Costs Per Household

To assess the burden that total pollution control costs are expected to have on

households, an average annualized pollution control cost per household should be

calculated for all households in the community that would bear project costs. In order to

evaluate substantial impacts, therefore, the analysis must establish which households will

actually pay for pollution control and what proportion of the costs will be borne by

households. Then, these apportioned project costs are added to existing pollution control

costs paid by the households.

It is important to define the affected community. The “community” is the

governmentaljurisdiction orjurisdictions responsible for paying compliance costs.

If project costs were estimated for some prior year, these costs should be adjusted

upward to reflect current year prices using the average annual national Consumer Price

Economic Guidancefor Water Quality Standards

5-3

---

Index (CPI) inflation rate for the period. The CPI inflation rate is available from the

-

Bureau of Labor Statistics. An additional source reporting the CPI inflation rate is the

CPI Detailed Report,

which is published monthly by the U.S. Department of Labor,

Bureau of Labor Statistics.

-

In calculating the total annual cost ofpollution control per household, currentcosts

of pollution control must be considered along with the projected annual costs of the

proposed pollution control project. The existing cost per household usually can be

obtained from the most recent municipal records. For example, use the most recent

operating revenues ofthe sewer enterprise fund, divided by the number of households

served. Ifthe portion ofproposed project costs that households are expected to pay is

known or is expected to remain unchanged, then use Worksheet

Q

to calculate the total

annual cost ofpollution controlper household. If the portion paid by households is based

on flow, then should refer to

Worksheet

Q:

Option

A as well.

Project

As with public-sector investments, the total capital costs are usually spread out over

several years. Annualization calculates the amount that will be paid each year, including

the financing costs. In order to allow for comparisons across cases, the analysis should

assume that the applicant will borrow the capital and repay the loan in even annual

installments over a 10 year period. The assumption often years is based on the likely life

ofthe equipment. The assumption ofeven annual installments is made for convenience.

The interest rate on the loan should be equivalent to the rate the applicant pays when it

borrows money.

-

-

-

The fmancial tests discussed below compare the costs ofcompliance to other costs and

revenues ofthe applicant. Compliance costs and other costs and revenues must, therefore,

be calculated for the same year. See discussion in Section 2.2, and Appendix A for

references to inflation/deflation indices. The Annualized Cost of Pollution Control for a

private-sector entity can be calculated using Worksheet R.

5.2

Financial Analysis to Determine if Lower Water Quality

is “Necessary”

The purpose ofthe financial impact analysis is to assess the extent to which planned

development will be reduced as a result ofmaintaining water quality. There are two sets

of tests presented in this section: one set for publicly owned developments, such as

POTWs, and another for privately owned developments, such as new manufacturing

facilities. The tests are not designed to determine the exact impact ofpollution control

costs on an entity. They merely provide indicators of whether pollution control costs

would result in a substantial impact.

-

Economic Guidancefor Water Quality Standards

5-4

---

5.2.a Public-Sector Developments: Calculate and Evaluate the Municipal

Preliminary Screener Value

-

Whether or not maintaining high-quality water is likely to interfere with a

development due to additional public-sectorcosts is determined by jointly considering the

results oftwo tests. The first test is a “screener” to establish whether the community can

clearly pay for the project. The Municipal Preliminary Screener estimates the-total per

household annual pollution control costs to be borne by households (existing costs plus

those attributable to the proposed project) as a percentage ofmedian household income.

The screener is written as follows:

MunicipaiPreliminaryScreener

=

-

Average TotalPollution Control CostperHousehold

Median Householdlncome

Median household income information for many municipalities is available from the

1990 Census ofPopulation. To estimate median household income for the current year,

use the CPI inflation rate for the period between the year that median household income

is available and the current year.

Depending on the results of the screener, the community is expected to incur small,

mid-range, or large economic impacts (see WorksheetS). If the total annual cost per

household (existing annual cost per household plus the incremental cost related to the

proposed project) is less than 1.0 percent of median household income, then the

requirements are not expected to impose a substantial economic hardship on households

and would not interfere with the development.

Communities are expected to incur mid-range impacts when the ratio of total annual

compliance costs to median household income is between 1.0 and 2.0 percent. If the

average annual cost per household exceeds 2.0 percent ofmedian household income, then

the project may place a large financial burden on many of the households within the

community and the requirements may interfere with the development. In either case,

communities move on to the Secondary Test to demonstrate substantial impacts.

5.2.b Public-Sector Developments: Secondary Test

The Secondary Test is designed to build upon the characterization of community

identified in the Municipal Preliminary Screener. The Secondary Test indicates the

community’s ability to obtain financing and describes the socioeconomic health of the

community. Indicators describe precompliance debt, socioeconomic, and financial

management conditions in the community. Using these indicators and the scoring system

Economic Guidance for Water Quality Standards

5-5

---

described below, the impact ofthe cost -ofpollution control is estimated. Specifically,

applicants are required to present the following six indicators for the community:

Debt Indicators

• Bond Rating (if available)

-

a measure of credit worthiness of the community;

•

Overall Net Debt as a Percent of Full Market Value of Taxable Property

-

a

measure ofdebt burden on residents within the community;

-

Socioeconomic Indicators

•

Unemployment Rate

-

a measure of the general economic health of the

community;

•

Median Household Income

-

a measure of the wealth ofthe community;

Financial Management Indicators

• Property Tax Revenue as a Percent of Full Market Value of Taxable Property

-

a measure of the funding capacity available to support debt based on the wealth

ofthe community; and

•

Property Tax Collection Rate

-

a measure of how well the local government is

-

administered.

-

A more detailed description ofthe six indicators is presented in Section 2.4, including

a discussion ofalternative measures to use in States with property tax caps and limitations

on assessed values.

-

Worksheet

T can be used to estimate each of the indicators. Table

5-1 summarizes the indicators and what is considered to be a strong, mid-range, or weak

rating.

The Secondary Score is calculated for the community by weighting each indicator

equally and assigning a value of -ito each indicator judged to be weak, a 2 to each

indicator judged to be mid-range, and a 3 to each strong indicator. A cumulative

assessment score is arrived at by summing the individual scores and dividing by the

number of factors used. Worksheet U guides the reader -through this calculation. The

cumulative assessment score is evaluated as follows:

• less than 1.5 is considered weak

-

-

-

• between

1.5

and 2.5 is consideredmid-range

-

• greater than

2.5

is considered strong

Economic Guidancefor Water Quality Standards

--

5-6

---

If the applicant is not able to develop one or more of the six indicators, they must

provide an explanation as to why the indicator is not appropriate or not available. Since

the point ofthe analysis is to measure the overall burden to the community, the debt and

socioeconomic indicators are assumed to be better measures ofburden than the financial

management indicators. Consequently, if one of the debt or socioeconomic indicators is

not

available, the applicant should average the two financial management indicators and

use this averaged value as a single -indicator with the remaining indicators. This averaging

is

necessary so that undue weight is not given to the financial management indicators.

5.2.d Public-Sector Developments: Assess Whether the Requirements Would

Interfere With the Development

The results of the two tests are considered jointly in determining whether the

community is expected to incur substantial impacts that would interfere with the

development. As shown in Table

5-2,

the cumulative assessment score for the community

is combined with the estimated household burden. The combination of factors establishes

whether impacts can be expected to be -substantial.-

- -

-

In the matrix, “X” indicates that the impact is likely to interfere with the development.

The

closer the community is to the upper right hand corner ofthe matrix, the greater the

likelihood. Similarly,

“/“

indicates that the impact is not likely to interfere with

development. The closer to the lower left hand corner of the matrix, the smaller the

likelihood. Finally, the

“?“

indicates that the impact is unclear.

5.2.e Private-Sector Developments: Financial Measures

-

Four general categories of financial tests are used to determine if maintaining high-

quality water will interfere with privately owned development. The four categories are

divided into a primary measure of financial impacts and three secondary measures of

financial impacts:

-

-

Primary

Measure

• Profit

--

how much would profits decline due to pollution control expenditures?

Secondary Measures

•

Liquidity

--

how easily can an entity pay its short-term bills?

•

Solvency

--

how easily can an entity pay its fixed and long-term bills?

• Leverage

--

how much money can the entity borrow?

Profit and solvency ratios are calculated both with and without the additional compliance

costs (taking into consideration the entity’s ability, if any, to increase its prices to cover

Economic Guidancefor Water Quality Standards

5-7

---

part or all ofthe costs). Comparing these ratios to each other and to industry benchmarks

provides a measure of the impact on the entity. Since antidegradation reviews involve

new or expanded operations, the ratios often will be calculated using estimated values

from pro-forma income statements and balance sheets prepared for the development.

-

For all of the tests, it is important to look beyond the- individual test results and

evaluate the total situation of the entity. While each test addresses a single aspect of

financial health, the results of the four tests should be considered jointly to obtain an

overall picture. The results should be compared with the ratios for other entities in the

same industry or activity.

The primary and secondary measures are described below, along with an example of

specific tests to be used. While there are several ratios that could be used for each test,

to simplify the presentation only one ratio per test is described. In most cases, interpreting

the results requires comparisons with typical values for the industry. Among the sources

that provide comparative information are: RObert Morris Associates’

Annual Statement

Studies, Moody’~sIndustrial Manual,

Dun and Bradstreet’s

Dun’s Industry Norms,

and

Standard & Poor’s

Industry Surveys.

The

Annual Statement Studies, Dun‘is’ Industry

Norms

,

and Standard & Poor’s

Industry Surveys

provide composite statistics for firms

grouped into various manufacturing and service industries. The

Moody~Industrial

Manual

provides detailed financial information on individual firms that can be used for

comparison purposes. Each of the tests is discussed in more detail inChapter 3.

5.2.f Private-Sector Developments: Primary Measure

- -

Primary measure is the Profit Test, which measures the development’s earnings if it

is required to prOvide pollution control necessary to maintain the high-quality waters and

if it is not required to do so. If maintaining high-quality water would result in-

considerably lower profits, then the development might not take place.

-

-

Two pieces ofinformation are needed for the Profit Test. The first piece is the total

annualcost ofthe required pollution control from Worksheet R. The second piece is the

earnings information from the entity’s income statement-

(Worksheet V).

Earnings Before Taxes

-

-

Profit Test

=

_____________________

Revenues

TheProfit

-

-

Test should be

-

calculated with and without the cost of the pollution control. In the former case, the

annualized cost ofpollution control (including O&M) is subtracted from the discharger’s

estimated earnings before taxes (revenues minus costs excluding income taxes). The

Profit Test can be calculated using Worksheets V,

and

W. These profit rates should be

Economic Guidancefor Water Quality Standards

5-8

---

compared to those for facilities in similar lines of business, using data in

Moody~

Industrial Manual, Dun & Bradstreet~Industry Norms and Key Business Ratios,

Standard & Poor’s Industry Surveys,

or Robert Morris’s

Annual Statement Studies.

The degree to which the discharger is able to raise prices is difficult to predict, and

depends on many factors. Considerations should include the level of competition in the

industry, the likelihood of competitors’ facilities- facing similar project costs, and the

willingness of consumers to pay more for the product.

5.2.g Private-Sector Developments: Secondary Measures

The following secondary measures provide additional impOrtant information about the

financial health of the development. All primary and secondary measures should be

included in the analysis.

Liquidity

-

Liquidity is a measure of how easily a discharger can pay its short-term bills. One

measure of liquidity is the Current Ratio, which compares current assets with current

-

liabilities. Current assets include cash and other assets that are or could reasonably be

converted into cash during the current year. Likewise, current liabilities are items that

must be paid within the current year.

-

The Current Ratio is calculated by dividing current assets by current liabilities.

-

Current Assets

Current Ratio

-=

Current Liabilities

The Current Ratio can be calculated using Worksheet X. The general rule is that if the

Current Ratio is greater than 2, the entity should be able to cover its short-term

obligations. Frequently, lenders require this level of liquidity as a prerequisite for

lending.. This rule (Current Ratio 2) may not, however, be appropriate for all types of

private entities. The Current Ratio of the discharger in question should be compared with

ratios for other-dischargers in the same line ofbusiness.

Solvency

Solvency is a measure of an entity’s ability to meet its fixed and long-term obligations.

These obligations are bills and debts that are owed on a regular basis for periods longer

than one year. Solvency tests are commonly used to predict financial problems that could

lead to bankruptcy within the next few years.

Economic Guidancefor Water Quality Standards

5-9

---

As with liquidity, there are several possible tests for-solvency. One solvency test, the

Beaver’s Ratio, compares cash flow-to total debt. This test has been shown to be a good

indicator ofthe likelihood ofbankruptcy.

-

/

-

.

Cash Flow

-

Beaver s Ratio

=

__________

-

Total Debt

The Beaver’s Ratio can be calculated using Worksheet

Y.

Cash Flow is a measure

-

of the cash the entity has available to it in a given year. Since depreciation is an

accounting cost

--

a cost that does not use any currently available revenues

--

it is added

back to reported net income after taxes to get cash flow. Total debt is equal to the current

debt for the current year plus the long term debt, since current debt includes that part of

long-term debt that is due in the current year.

-

Ifthe Beaver’s Ratio is greater than 0.20 the development is considered to be solvent

(i.e., can pay its long-term debts). If the ratio is less than 0.15 the development may be

insolvent (i.e., go bankrupt). Ifthe ratio is between 0.15 and 0.20, then future solvency

is uncertain.

Leverage

-

Leverage tests measure the extent to which a firm has fixed financial obligations and

thus indicates how much rn-ore money a firm is capable ofborrowing. Firms that rely

heavily on debt may find it difficult and expensive to borrow additional funds. One

commonly used measure of leverage is the Debt to Equity Ratio.

Debt/Equity Ratio

=

____________________

Long -Term Liabilities

Owners

/

Equity

The Debt to Equity Ratio can be calculated using Worksheet

Z.

Since there are no

generally accepted Debt/Equity Ratio values that apply to all types ofeconomic activity,

the ratio should be compared with the ratio offirms in similar businesses. If the entity’s

ratio compares favorably with the median or upper quartile ratio for similar businesses,

it should be able to borrow additional funds.

-

These ratios can be calculated using data in

Robert Morris Associates’

Annual Statement Studies, Moody~Industrial Manual,

and Dun

& Bradstreet’s

Dun’s Industry Norms.

-

For entities with special sources offunding, leverage is not an appropriate measure of

their ability -to raise capital. Examples are -agriculture and affordable housing, where

special loan programs may be available. In these cases, an analysis ofthe probability that

the project would receive this money is appropriate.

Economic Guidancefor Water Quality Standards

5-10

---

Interfere-With the Development: Interpreting the Results

The financial analysis should be used to determine if there will be a substantial

adverse impact such as to interfere with the development. If the four tests taken together

indicate that the requirements would interfere with the development, then proceed to

Section 5.3 to determine if the development would be considered important in social and

economic terms.

5.3

Determine If Economic and Social Development Would Be Important

There are no economic ratios per se that determine whether a development would be

considered important. Instead, the relative magnitudes of indicators such as increases in

unemployment, losses to the local economy, changes in household income, decreases in

tax revenues, indirect effects on other businesses, and increases in sewer fees should be

takdn into account. The term important is intended to convey a general concept regarding

the level of social and economic development used to justify a change in high-quality

waters.

5.3.a Define Relevant Geographical Area

One important factor is defining the geographical area in which the impacts will occur.

In the case of municipal pollution control projects, the affected community is most often

the immediate municipality. The relevant geographic area for evaluating the importance

of a private-sector development varies with each situation. The area will typically be

determined by the area in which the majority of its workers live and where most of the

businesses that depend on it are located. In either case, the geographical area considered

must include “...the area in which the waters are located.” (40 CFR 131.12 (a)(2)) There

are no simple rules fordefining the relevant area or community; the decision is based on

the judgement of the applicant and state, subject to EPA review-.

5.3.b Public-Sector Developments: Determine Whether

Important

-

While there are no explicit criteria, it is recommended that changes in the

socioeconomic indicators listed below be considered. For each indicator listed, the

applicant should estimate the potential change that would result from the development.

•

Median Household Income;

-

-

• Community Unemployment Rate;

• Overall Net Debt as a Percent of Full Market Value of Taxable Property;

• Percent of Households Below Poverty Line;

• Impact on Community Development Potential; and

• Impact on Property Values.

Economic Guidancefor Water Quality Standards

5-11

---

Estimated changes should be provided, along with supporting discussions, on

Worksheet

AA.

-

5.3.c Private-Sector Developments: Determine Whether Important

Determination of whether or not a private-sector development will be important to a

community requires exploring more factors than is the case with public-sector

developments.

Worksheet AB

has been provided to assist applicants in their evaluation

of socioeconomic impacts. It is designed as a list of the factors applicants should consider

in determining whether the development is important. Applicants should feel free,

however, to add anecdotal information to describe any current community characteristics

-

or anticipated impacts that are not listed in the worksheet..

-

-

Potentially, one of the most important impacts on the affected community’s economy

is the employment to be gained. The size of this impact is dependent on the number of

new jobs relative to the total number of jobs in the community, and to the other job

opportunities available

in

the community. Typically, ati increase in employment leads to

an increase in personal income in the affected community. The total amount of income

- -

gained by the affected community will depend, in part, on the other job prospects of those

hired. To assess the net impact on employment in the affected community, the existing

rate of unemployment should be considered as an indicator of worker mobility between

jobs.

-

-

-

The analysis should also consider whether the increase in employment opportunities

may lead to a decreased need for social services in the affected community. If the cost

of savings for decreased social services will be borne by the affected community, they

should be -included in the assessment.

The effects of increased employment andpersonal income will be compounded as the

money moves through the economy. This multiplier effect means that each dollar gained

to

an employee results in the gain of more than a dollar to the local economy. Multiplier

effects are discussed in more detail in Section 4.4.

Socioeconomic impacts may also include effects on the local government(s) -such as

property tax revenues and the demand for other-public services. For example, if the

development would be paying a share of the cost to upgrade amunicipal treatment plant,

then the analysis of community impacts is more complicated. If the development is

eliminated, the system may become excessively expensive for the remaining users.

5.4

Summary

Using the guidance described in-this document, the applicant must demonstrate tha~t

the pollution control measures needed to maintain the high-quality waters will interfere

Economic Guidancefor Water Quality Standards

-

-

5-12

---

with the development. In addition, the applicant will have to show that the development

is important to the community.

--

The tests used to demonstrate interference and importance are the same as those used

to demonstrate substantial and widespread. The difference is, however, that an

antidegradation review considers situations that would improve the economic condition.

Economic Guidance for Water Quality Standards

5-13

---

Figure 5-1:

Antidegradation Review

Capital Cost, Annual

O&M Costs, Interest Rates

:~

~

I

~

Wil

~

~11F

~

~

It~d~’e~wft

~-

~* ~

~

Socio-economic

characteristics of

community

Quality of water may be

reduced as long as existing

and designated uses fully

protected

Annual Cost, Median

Household Income,

Financial Data

No Degradation

Allowed

No

No

Yes

No Degradation

Allowed

Economic Guidancefor Water Quality Standards

---

TABLE 5-1

SECONDARY INDICATORS

-

-

-

-

--

Secondary Indicators

Indicator

- - -

Weak

Mid-Range

Strong

Bond Rating

Below BBB (S&P)

Below Baa (Moody’s)

BBB (S&P)

Baa (Moody’s)

Above BBB (S&P)

or Baa (Moody’s)

Overall NetDebt as

Percent ofFull Market

Value of Taxable

Property

Above

5

-

2-5

Below 2

Unemployment

More than 1 above

National Average

National Average

More than 1 below

National Average

Median Household

Income

More than 10 below

State Median

State Median

More than 10

above State Median

Property Tax

Revenues as a Percent

of Full Market Value

of Taxable Property

Above 4

2-4

Below 2

-

Property Tax

Collection Rate

94

94

-

98

98

---

-

TABLE 5-2

-

ASSESSMENT OF SUBSTANTIAL IMPACTS MATRIX

-

Secondary Score

-

-

Municipal Preliminary Screener

-

-

Less than 1.0 Percent

-

---

-

Between 1.0 and-2.0

Percent

-

Greater than 2.0

Percent-

Lessthanl.5

?

X

-

X

Between 1.5

and 2.5

/

- -

?

X

Greater than 2.5

/

/

?

Economic Guidancefor Water Quality Standards

-

5-1

---

R~CE~VED

BEFORE THE ILLINOIS POLLUTION CONTROL BOA~WRKSOFFICE

-

JUN082005

DES PLA1NES RIVER WATERSHED ALLIANCE,

)

-

STATE OF ILLINOIS

LWABLE COMMUNITIES ALLIANCE,

)

-

Pollution Contro’ Board

PRAIRIE RIVERS NETWORK, and SIERRA CLUB,

)

)

-

Petitioners,

-

)

-

)

v.

-

)

PCB04-88

-

-

)

(NPDES Permit Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

-.

)

-

AGENCY and VILLAGE OF NEW LENOX

)

)

Respondents.

)

-

PETITIONERS’

REPLY REGARDING RELEVANT

FACTS IN THE AGENCY

RECORD

Hickory Creek

1.

Hickory Creek, a tributary of the Des P/ames River which flows in- Will County, was once

knownfor its exceptionally high water quality and biological integrity. Phi/lip Smith, a scientist of

the Illinois Natural History Survey wrote in 1971 that “Prairie and Jackson Creeks have good

-

species diversity, but Hickory Creek is the outstanding stream in theDes Plaines River system and

contains populations of such unusual species as the northern hogsucker, rosyface shiner, and

slender madtom.” (HRJJ5)

-

IEPA

Response: 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 of the Village’s STP plant outfall. According to Northeastern Illinois Planning

Commission (1981), landuse upstream ofPilcher 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 ofthe segment of Hickory Creek in which the Village’s STP

1 discharges. Agency record at 371.

New

Lenox Response:

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

-

1

---

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 of the author in. this

proceeding, orother 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 (“JDNR”), Natural History Survey in the publication

Biologically Significant Illinois Streams. This list is relevant for purposes ofanti-degradation, and

-

~

ofthe

segment ofHickory Creek to which New Lenox will discharge. See HR 005,371. Hickory Creek is a

general use and is rated as a “C” stream by Illinois EPA under its Biological StreamCharacterization

-

System. HR 005,115.

-

-

-

Petitioners’ REPLY:

As the facts stated in Petitioners’ paragraph 1 are essentially background, it is

-probably not useful to refute the Respondents’ responses at length.

Petitioners will notethat Respondents do not cite anything showing that Hickory Creek was

not of unique biological value

-

in 1971. Further, the parties are agreed that water quality is not

particularly good in Hickory Creek now.

-

As explained in Petitioners’ Reply Memorandum (p.11), the legal arguments that New Lenox

attempts to base on the fact that Hickory Creek is not on the Illinois Natural History Surveylist of

waters ofparticular biological significance are without merit.

2.

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

IEPA Response:

None

New

Lenox

Response: New Lenox agrees with this fact and notes that its plant is located at 301

North Cedar Road. HR 005.

-

-

-

Petitioners’ REPLY:

The parties are agreed.

3.

Dr. David Bardack, formerly of the University ofIllinois at Chicago Circle, wrote in 1982

that “Studies of the Hickory Creek ecosystem are widely recognized beyond 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 diversifiedfauna....” (HR 108)

IEPA

Response: The Agency disputes the Petitioners’ statement in SOF ¶3. It is not clear from the

above statement ifthese conditions in Hickory Creek existedthroughout the Creek. Th~relevant fact

is whether these conditions exit immediately upstream and downstream ofthe Village’s STP plant

2

---

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 ofHickory Creek as

fully meeting aquatic life use while the lower 10 miles were rated as partial support. Further, the

Agency and IDNR classified all ofHickory Creek as a “C” stream in the 1989 and 1996 Biological

Stream Characterization reports. This characterization ofHickory Creek was based on data collected

between 1980 and 1988. Agency record at 371; 699.

New

Lenox

Response: New Lenox has no reason to agree or disagree with the cited conclusion,

which is oflimited relevance given the time period it references, the absence ofthe location along

Hickory Creek and dataon which it was based, the absenceofthe author in this proceeding, or other

relevant information. Hickory Creek is not on the current list ofbiologically significant streams

compiled by the Illinois Department ofNatural Resources, which is one list that by regulation is

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

endangered species exist in the vicinityofthe segment ofHickory Creek to which New Lenox will

discharge. See HR 371,699.

Petitioners’ REPLY:

The parties are agreedthat the statementquoted by Petitioners was~p1atediiito

the record.

IEPA and New Lenox also make theirown statements with regard to this paragraph. These

statements are largely irrelevant. Petitioners will also note that few ofthe propositions stated in

Respondents’ responses are actually supported by the few record cites they provide.

4.

New Lenox Sewage Treatment Plant #1 has been expanded since 1991. (HR 5)

IEPAResponse:

None

-

-

New

Lenox

Response: New Lenox agrees with this fact. At the time ofthe application forexpansion

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

necessary to ensure wastewater services were properly provided forprojected development in New

-

Lenox. The areato be served was within New Lenox’s FPA, and New Lenox received full approval

from the Northeastern Illinois Planning Commission for its expansion. HR 005.

Petitioners’ REPLY:

The parties are in agreement as to the fact stated by Petitioners.

NIPC approval ofthe expansion is plainly irrelevant as NIPC has no authority to make any

decision as to NPDES permits.

-

-

5.

Hickory Creek isfound on the draft 2002 Illinois 303(d) list ofimpaired waters. “The causes

3

---

of impairment given

...

at that time were nutrients, phosphorus, nitrogen, salinity/TDS/Chlorides,

TDS (~chlorides),flow alterations, and suspendedsolidc. 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 col~formbacteria, total suspended solids, excess algal growth, and total

phosphorus.

IEPA

Response: The Agency’s draft 2002 Illinois 303(d) list did not list all ofHickory 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 lifeuse based primarily on biological data collected at river mile 10.6, Marley Road. Also,

the list ofpotential sources ofimpairment included more thanjust municipal wastewaterdischarges.

The list also included CSOs, urban runoff/storm sewers, -land development and flow.

regulationlmodification. The inclusion ofpH as a potential cause ofimpairment in the 2002 Illinois

Water Quality Report was a mistake. The pH valuethat indicated noncompliance with the minimum

pH standard of 6.5 was mistakenly entered into the database as 0.87 -instead of7.87.

New

Lenox

Response: New Lenox agrees that Illinois EPA reportedthat HickoryCreek is found on

the draft 2002 Illinois 303(d) list, reportedly based on a study performedin 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 informationrelevantto this case. In addition, Illinois EPA concluded during the

permit proceedings that “a review ofthe causes ofimpairment resultedin a newconclusion. 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 of the New Lenox

outfall.” HR 360. New 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 hasreportedthat the inclusion of

pH as a potential cause ofimpairment was a mistake based on an erroneous database entry of0.87

instead of7.87.

-

Petitioners’ REPLY:

The Agency provides no citations to the record for any ofthe statements made

in its response.

-

New Lenox fails to cite to the record for any of its alleged facts except for the quoted

statement regarding the cause ofthe impairment in Hickory Creek. Petitioners have no ideahow

-

New Lenox concluded that the listing was based on 1991 data. The statement quoted regarding the

alleged conclusion ofagencybiologists states an unsupported conclusionwithottt providing any data

orreasoning in support ofit.

- -

-

-

4

---

In actuality, the record clearly shows that biologists did not conclude anything about what

caused the biological impairments in Hickory Creek that earned it its “C” rating. Given the way

IEPA then did its impairment listings, numeric violations ofwater quality standards could cause

listings in the absence of good biological data. After numerous internal discussions regarding

whether New Lenox’ contractor’s study proved anything (HR 660 -700), it was determined on-

November26, 2002, that the “basis for the 305(b)/303(d) ‘partial impairment’ assessment was TDS

standards violations rates greater than 11 percent. Therefore, forget using the contractor’s bug study.”

HR 562. At that point, the biologists stepped asidein the NPDES permit development process.

In short, we know that in the late 1 990s Hickory Creek had- high levels of a number of

-

pollutants because ofthe “potential cause” listings, even though the reason Hickory Creek was listed

apparently related to numeric violations ofthe TDS standard. In particular, in order to be listed on

the 2002 303(d) with a potential cause listed as”phosphorus,” water samples in the creek had to be

-

over the 85th percentile for phosphorus in the state. (See Exhibit 1, an excerpt from the 2002 Water

Quality Report, available on the web at http://www.epa.state.il.us/water/water-quality/index.html).

New Lenox, which is so eager to takediscovery that would go outside the record before the

agency, notes correctly that the 2004 Water Quality Report was issued after the permit was-issued-in

October 2003. However, the data that was used in the 2004 report was collected in 2002 and thus

was in IEPA’s hands when it issued the permit. The 2004 report lists Hickory Creek as impaired by,

among other things, “excess algal growth” (= 2210) and “Total Phosphorus” (=9910) and lists among

the potential causes “municipal sewerage treatment plants.”(See Exhibit 2, an excerpt from the 2004

Water Quality Report, available on the web at http://www.epa.state.il.us/water/water-

quality/index.html).

5

---

-

Offensive Conditions/Algal Blooms

-

6.

A number of witnesses gave reports of algal blooms in Hickory Creek including nearby

residentKim Kowalski. (HR 76)

-

IEPA

Response: It is not clear from the above statementwhether the reported algal blooms occurred

upstream ordownstream ofthe Village’s STP 1 orwhenthe 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/canopycover. It is possible to have excessive.algal growtheven ifnutrients-are

not substantially elevated. There is a dam locatedin Pilcher Parkat river mile 4.6, which is about 3.8

miles downstream ofthe Village’s STP 1. Furthermore, it is a known factthat algae is a vital part of

the aquatic community and only excessive algal population -is considered a problem. The best

-

measure ofdetermining if excessive algal conditions exist in a stream is by studying the local fish

population. Only if the oxygen concentration dips to low levels, the fish population is adversely

impacted. Agency record at 361;

515;

639.

New

Lenox

Response: This statement is a mischaracterization ofthe 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 ofthe waterquality study observed there were no visible signs oforganic

growth or over-nutrification at the plant discharge site. PR

515,

633. 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 ofthe aquatic communityand

algae growthin 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 ofwhether fish are adversely impacted is to look at the local fish

population. Hickory Creel: has fish populations that are not indicativeof 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.

Finally, to the extent algae was observed in August, those observations were more likely due to low

flow conditions and solar heating, not to nutrients discharged by the plant. PR 639.

-

-

Petitioners’

REPLY: The parties are agreedthat information was placedinto the record at the public

hearing regarding offensive algal blooms.

-

IEPA and New Lenox make factual statements here regardingdissolved oxygen conditions in

-

Hickory Creek. These statements are irrelevant to Petitioners’ motion because Petitioners have not

moved for summaryjudgment with regard to dissolved oxygen. IEPA maynot permit discharges that

may cause or contribute to violations of the “offensive conditions” standard whether or not the

6

---

discharges would cause violations ofthe dissolved oxygen standards.

Respondents do cite a statement in the record that stated that the offensive conditions

violation was due to low flow conditions and solar heating. The document cited forthis proposition

(HR 638-41) is an anonymous document that contains no analysis orfactual support. It merely states

that on one day (August 20, 2002) a New Lenox’ contractor did not observe “visible” signs of

organicpollution or over-enrichment at the point ofthe New Lenox discharge. (HR 639) This plainly

is not substantial evidence of anything. Furthermore, IEPA’s failure to make this point in the

Responsiveness Summary is a clear indication that IEPA did not think it proved anything.

Moreover, as the Board and the agency are well aware, nutrients may cause problems miles

downstream from the discharge when the flow ofthe stream changes orthe water encounters a lake

or reservoir (or the Pilcherdam) which is why the Board decades ago limited phosphorus diseharg~s

twenty-five miles above a lake or reservoir. 35 Ill. Adm. Code 304.123(c).

-

There is nothing to suggest that the flow or sunlight was unnatural. What could have been

unnatural was the level ofnutrients in the water, and no one denies that nutrient levels in Hickory

Creek are elevated over natural levels. IEPA statements in the record and the treatises cited make

- -

clear that high concentrations ofnutrients combined with natural sunlight will leadto algal blooms.

- -

(HR303-05)-

-

7.

Jim Bland, Director ofIntegrated Lakes Management, test~fIedthat “I should comment

that as recently as August ofthisyear I saw something unique in-stream, something I have not seen

before. The entirety ofthe stream is coveredfrom Pilcher Park almost all the way up to Cedar Street

withHydrodictyon and algae on the surface ofit. So here you have a running stream covered almos.t

-

completely and a running stream that’s really a very, very viable and important resource, pretty

sadly degraded by the sorts ofnutrient discharge that we are seeing.” (HR 80)

IEPA Response:

The Agency disputes the Petitioners’ statementin SOF ¶7. As the permit hearing

was only an informational hearing, the public was allowedto providecomments, but not testimony.

Contrary to Petitioners’ claim, Jim Bland could not have testified at the hearing. In addition, the

statement, “the entirety ofthe stream is covered from Pilcher Park almost all the wayup to Cedar

7

---

Streetwith Hydrodictyon and algae on the surface ofit”, doesnot indicatethat thereis 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 about0.l8 mile downstream ofCedar 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.

New

Lenox Response:

-See response to par. 6. Additionally, New Lenox disagrees that Mr. Bland

“testified,” as his comments were unswom and not subject to questioning or cross’examination. In

addition, Pilcher Park, which is located about two miles as

-

the crow flies from New Lenox, is the

location ofa dam. Dams are one aquatic feature that are associated with algae.

- -

Petitioners’

REPLY: The parities are agreed that Mr. Bland madethe statement into the record as

described in Petitioners factual statement. Respondents quibble that Mr. Bland did not “testify” but

the term testified is frequently used as to formal statements whether of not made under oath.

-None ofRespondents’ citations to the record support any ofthe propositions forwhich they

are cited.

-

-

Moreover, if it is true that there was also algae above the New Lenox discharge, it proves

only that New Lenox is not the sole cause ofthe offensive conditions~problem,which no one claims.

It also would prove that-New Lenox contractor, discussed in HR 639 and paragraph 6 above, who

reportedno visible evidence at the mouth ofthe discharge on the day he was at the New Lenox plant

must have either been there on a different day than the day that the reported algal bloom took place

or the contractor does not see well.

8.

Community resident Brad Salamy test~fIedat 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)

IEPA Response:

As the permit hearing was only an informational hearing, the public was allowedto

providecomments, but not to provide testimony. Contraryto 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

indicatethat there was only a little -patch ofwater down the center. Hickory Creek near Marley Road-

has fairly extensive areas ofwaterwillow that can makeupaiarge-proportionofthe stream channel

during low flow stream conditions. Agency record at 361;

515;

639.

8

---

New Lenox Response: 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.

Petitioners’ REPLY:

See reply to Respondents responses to paragraph 8.

Levels of Phosphorus in Hickory Creek

9.

Phosphorous concentrations are high in the creek. In addition to the IEPA impaired water

data discussed above-

(1J5),

the US. Geological Survey database shows thatfor the period of ‘92 to

‘97 totalphosphorus exceededIllinois ‘EPA trigger valuefor more than 20percent ofthe 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 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)

IEPA Response:

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 ofthe Village’s STP 1 discharge. The two stations sampled in 1997 that were used

for the assessment of Hickory Creek for the 2002 Illinois Water Quality Report were located

upstream (GG-06) and downstream (GG-02) ofthe Village’s STP 1. Station GG-06 at Marley Road

was assessed as full aquatic life usebased 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, indicateimpairment. Phosphorus concentrations were similar at these two

stations in 1997 with means of 0.58 mg/L at GG-06 and 0.53 mgIL at GG-02. Moreover, the

statement that phosphorus values are “high” in the Creek is not a fact but Petitioners’ opinion. As,

even within the various ecoregionsutilized by U.S. EPA, “the national criteriarecommendations are

based on statistical distribution and recurrence frequencies,not directrelationship to detrimental or

impaired stream conditions,” the Agency concluded that there is nothing unusual about the

phosphorus levels in Hickory Creek. Agency record at 365.

-

New

Lenox

Response: 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 monitoring

station is located approximately seven miles downstream ofNew Lenox’s discharge and the latest

data is from six years before the permit was issued.

Neither Illinois EPA’s “trigger value” nora criterion recommended by U.S. EPA constitute

regulatory standards in Illinois or are relevanthere. 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 ofphosphorus on a-stream ora cause/effect relationship. Illinois EPA

9

---

-

noted that 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.” HR 365. See also PR 639.

-

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 ofthe other dischargers to the Creek, and their location both upstream and downstream of

New Lenox, and discovery could be expected to address these dischargers.

-

Petitioners’ REPLY: It appears the parties agree that there are already high levels ofphosphorus in

Hickory Creek as stated in Petitioners’ paragraph:

The Respondents do not cite to the record for most ofthe alleged facts in their response.

In any event, Respondents admit that the levels ofphosphorus were “elevated” and that

statisticallyHickory Creek has a high level ofphosphorus using U.S. EPA criteria. Still, Respondents

insist that Hickory Creek’s levels ofphosphorus are not “unusual.” If,bythis, Respondents mean to

imply that manyIllinois waters have unfortunatelyhigh levelsofphosphoruspoi+ution, thenihey are

correct.

-

-

-

Certainly nothing in any ofthe facts cited by Respondents suggest any reason to be satisfied

with the levels ofphosphorus currently in Hickory Creek or to welcome additional phosphorus~

10.

Sampling by the applicant’s contractor, Earth Tech, conducted in August of2002found 2.76

milligrams per liter oftotalphosphQrus in the effluent, almost twice the upstream concentration on

that day and six times the average over timefor that particular stream. (Wentzel Testimony HR 68)

IEPA Response:

None

- -

New

Lenox Response.:

New Lenox agrees that the results ofa grab sample ofits effluent were 2.76

milligrams per liter oftotal 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, 1.63 milligrams per

liter, 1.47 milligrams per liter, and 1.52 milligrams per liter. See PR 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 had flows been considered, thetotalphosphonrs from

the plant effluent would have been on fourth of the upstream total phosphorus. PR. 632-33.

Concentrations ofphosphorus in effluent can behighly variable and dependent on flows, the time of

day and a host ofother 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 is long-term average values that

would be more critical. In addition,- the Illinois EPA is aware ofother dischargers upstream and

10

---

downstream ofNew Lenox.

Petitioners’ REPLY:

The parties again agree on the fact that New Lenox is a significant source of

phosphorus to Hickory Creek and that the increased discharge makes it still more important.

According to the New Lenox contractor, New Lenox pij~to the new authorized discharge is

discharging approximately one-fourth ofthe total upstream phosphorus under average conditions.

New Lenox’s permitted discharge is then a muchhigher percentage of the low flows.

Further, it must be noted that no author is identified for this document.

Still further, the document is titled “Comments on Draft Responsiveness Summary.” (HR

632) Are we t9 understand then that New Lenox was allowed to help write the Agency

Responsiveness Summary? If true, this indicates an outrageous level of collaboration between a

discharger and the Agency supposedly regulating it.

Effect of

New

in Hickory Creek

11.

-

Comments by Professors David Jenkins and Michael Lemke of the Biolo~gyDepartment,

University ofIllinois at Springfield stated:

-

—

Based on theNewLenoxAugust data, the currentplant releases an average of-64. 7kg of

nitrate+nitriteper 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 upstreamfrom the WWTP#1 are

151 kg nitrate+nitrite, and 22.7kg total-P.

—

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 currentlyplanned (andassuming nutrient levels in plant discharge remain the same),

the new plant discharge will release 105.7kg ofnitrate+nitrite per day and 26.3 kg of

-

total Pper day into Hickory Creek.. Assuming that Hickory Creekflow will not change

for reasons other than the planned extraplant discharge, the newplant 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

-

-

11.

-

---

nitrate+nitrite upstream of the plant, and 216 of the total P levels upstream of the

plant. These levels ofnutrient loading will have substantial effects on downstream water

quality, not only in Hickory Creek, but also the Des P/ames 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 3 04-305)

IEPA Response:

The Agency disputes the implications ofPetitioners’ statementin SOF ¶11. These

statements fail to establish any proofthat the Village’s STP 1 discharge would cause violation of

water quality standards algal blooms, dissolved oxygen water quality standard, and pH standard.

New

Lenox

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

However, the conclusions in these comments are based on questionab-le~orundisclosed 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 where the

Professors used incorrect assumptions, including the flow used and invalid data comparisons. PR

635. The conclusion that therewill be “substantial effects on downstreamwaterquality” in Hickory

Creek, the Des Plaines Riverand the Illinois Riveris ofvery questionable and undisclosedscientific

and mathematical support. In. any case, the Illinois EPA considered these comments and is aware of

point and non-point sources ofnutrients to all ofthese water bodies.

-

Petitioners’

REPLY:

Respondents agreethat Petitioners filed the statements quoted into the record.

These statements constitute additional proof that IEPA was put on notice that discharges of

phosphorus from New Lenox have the potential to harm Hickory Creek. See also Petitioners’ Reply

regarding paragraph 10.

12.

Published treatises placedin the recordshow that elevatednutrient levels cause impairment

ofstreams.

“Eutrophication is afundamental concern in the management ofall water bodies....

There is now also considerable interest in the enrichmentofstreams 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 sedimentation were the most significant causes of water quality

degradation in 44 of 1,000,000 km ofstreams and rivers surveyed in the US

(Ii

ttp://www.usda.gov/stream_restoration). Management problems caused by

-

nutrient enrichment, and associated benthic algalpro4ferations, include aesthetic

degradation..., loss ofpollution-sensitive invertebrate taxa through smothering of

-

substrata by algae

...,

and degradation of water quality (particularly dissolved

oxygen and pI-i) resulting in fish kills....”

-

12

---

Biggs, B.J.F. 2000. Eutrophication ofstreams and rivers: dissolved nutrient-chlorophyll

relationships for benthic algae. J. North Am. Benthol. Soc. 19.17-31. (HR 187)

“Reasonsfor 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 andE.B. Welch. 2000. Establishing nutrient criteria in streams. J. North Am.

Benthol. Soc. 19:186-196. (HR 177)

“High algal growth can affectfish distribution by altering thephysical (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 ofmaximum biomass, but also reduce thefrequency and duration of

benthic algalprol~ferationsin 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 JR. Jones. 1996. Phosphorus-chlorophyll relationship in

- -

temperate streams and its variation with stream catchnrentarea. 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

aestheticallypleasing, and their recreational usesmay be compromised. For benthic

chlorophyll to remain below 200 mg/m2 at the very least, TNshould 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 ofoxygen and carbon dioxide. In highly productive waters,

13

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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)

“Diel (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 deviatefrom atmospheric equilibrium in highly

productive lowland streams where luxuriant growths of macrophytes and

microbenthic algae can result in diel sh~fisin dissolved C02.... Because of the

interdependence of C02 concentration andpH

...,

mid-daypHcan 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 ofDO can occur when respiration oforganic Cproduced byphotosynthetic

processes in the stream exceeds the ability ofreaeration to supply DO.”

(Dodds, W K and E.B. Welch. HR 180)

“The contribution ofalgal 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 Urrizalqui, and I. Urrutia. 2000.

-

(HR 216)

IEPA Response:

The Agency disputes Petitioners’. implication ofcited quotes in SOF ¶12. These

treatises fail to establish that the Village’s STP 1 discharge would cause violation ofwater 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 criteriafornutrients, 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.

New

Lenox Response:

New Lenox agrees that the state in response to draft criteriaby 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-wereplaced in the record by Peti-tioners, but they are of

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

14

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unverified, and they are generally more appropriately considered in the context ofsetting generally

applicable standards fornutrients, not deriving waterquality limits forone discharger along a stream

with many dischargers. The provided snippets ofstatements from these studies do not changethe fact

that the science concerning nutrients, algal growth, dissolved oxygen levels, stream types, and other

factors is both complicated 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’theBoard’sproposal

of a technology-based interim standard forphosphorus. See Opinion and Order, R 04-26 (April-7,

2005).

Petitioners’ REPLY:

The parties agree that the quoted treatises were placed into the record.

The agencyconclusion regardingthe effect ofthe incremental nutrient loading anticipated to

result from the expanded plant is a naked conclusion with no support in the record. Indeed, if one

accepts the agency protestations that there are “major knowledge gaps” regarding the effects of

nutrients, it is impossible to understand how the agency could have any confidence in a conclusion

that the incremental nutrients will have no effect.

Moreover,

any statementregarding the effect ofthe “incremental” increase is irrelevantto the

question ofwhetherthe permit could be issued. The permit to discharge authorized orreauthorized

the entire New Lenox discharge and, thus, the permit could not be issued ifthe entire discharge alone

or in combination with other sources ofpollutants to Hickory Creek caused orhad the potential to

cause a violation ofwater quality standards in Hickory Creek or any downstream water.

13.

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

impacting Hickory Creek and that reductions ofnutrient discharges are needed to preventfurther

impact. (Statement ofProfessors Jenkins and Lemke HR 305)

IEPA Response: The

above statement is an opinion madeby Professorsat the permit hearing, and is

not a statement of fact. There is no evidence in the record to support Petitioners’ statement.

New Lenox Response:

See responses to 11 and -12. This statement is an unfounded characterization

and conclusion, submitted in an unsworn comment, and is contraryto Illinois EPA’ s conclusion. The

conclusion does not explain what the adverse impacts are, and New Lenox’ s studies and submissions

15

-

---

showed the opposite. HR 361,364. Based on the macroinvertebrate surveyperformedby 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.

Petitioners’ REPLY: Unlike the

anOnymous agency conclusion cited by Respondents, Professors

Jenkins and Lemke did not simply opine without any basis. Although Petitioners only cited their

conclusions in this paragraph, the complete Jenkins and Lemke report appears in the record aLHR

303-07. The Board mayjudge for itself the strength oftheir conclusions.

In any event, the point here is not whether nutrient discharges have caused problems in

Hickory Creek but whether they have the reasonable potential to do so. The parties agree that

Petitioners placed information in the record showing that the New Lenox dischargecould contribute

to violations of the offensive conditions standard.

14.

The IEPA at the hearing on the draftpermit acknowledged that it was “very possible” that

.supersaturated oxygen levelsfound during the daytime hours in Hickory Creek are due to algae

saturation photosynthesis. (HR 67)

-

-

IEPA

Response: 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 causingthe supersaturated oxygen levels in the Creek. Agency

record at 068; 361.

New

Lenox Response:

New Lenox agrees that Mr. Bob MosherofIllinois 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 Responsiveness Summary, Mr.

Mosher also stated that he was not aware ofany studies that show gas bubble disease in fish from

supersaturation. HR 068 and 361.

Petitioners’ REPLY: The

parties are agreed that high algae levels may be causing large swings in

dissolved oxygen levels in Hickory Creek.

-

-

15.

Hickory Creek also violatedpH standards by exceeding apHof9, likely as the result ofalgal

activity. (HR 126)

IEPA Response: The

statement is a Petitioners’ statement ofopinion and not a statement offact.

16

---

Also, the Agency, from the review ofits raw data, found that a pH value of0.87 was mistakenly

entered into the database, instead of7.87.

New

Lenox

Response: This conclusory statement is based on an unswom 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 orhigher, with two at 9.0 and one at 9.1. PR 640. New Lenox’s pH sampling in connection with

its waterquality report showed pH ranging from 6.77 to 8.21 in the vicinity ofNew 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 ofHickory Creek maynot have similar morphologyto the area

around New Lenox, and therefore drawing direct conclusions between sites may not be valid. HR

369.

Petitioners’ REPLY:

Petitioners’ statement is not an opinion. The fact that Hickory Creek

frequently violates pH limits was based on U.S.G.S. reports that are cited in the comment letter and

included in the record. (HR 129-159)

The data cited by New Lenox and IEPA do not seem to be directed at the U.S.G.S. data.

In any event, with regard to Petitioners’ motion, the point is merely that Petitioners placed

evidence of high pH levels into the record, which further demonstrates that algal blooms are

occurring in Hickory Creek.

-

Current Biological Integrity of Hickory Creek

16.

JEPA did not analyze the effects of the existing New Lenox discharge with a recent valid

study. The Antidegradation Assessment Memorandumfrom Scott Twaitto Abel H~ile,Nov. 26, 2002

states that “The most recentfacility relatedstream survey conducted by theAgencywas on June 10,

1991. Thefacility relatedstream 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)

IEPA Response:

The Agency disputes Petitioners’ claim that “IEPA did not analyze the effects of

the existing New Lenox dischargewith a recent valid study,” as this claim is inaccurate. The Agency

did, along with other information, did consider a study performedby the Village in 2003. The study

showed that no significant impact by the-Village’s discharge on the receiving stream as measured by

macroinvertebrates. Agency record at 368; 403-418; 512-521.

New

Lenox

Response: This statement is inaccurate. Illinois EPA requested and received a recent

17

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

Petitioners’

REPLY:

The Agency record makes clear that the agency did not performany study for

itself and that fact is not contested. The Earth Tech study is discussed below.

17.

The applicant’ contractor, Earth Tech, performed a biological studyfor the Village ofNew

Lenox (HR 513-519) at IEPA ‘s request (HR 660.5). There is extensive discussion in the Hearing

-

Record amongIEPA staffregarding deficiencies in the Earth Tech study. (HR 537, HR 556-558, HR

561, HR 661-698).

IEPA

Response: The Agency disputes Petitioners’ statements that the Village’s study was

“deficient.” The discussion in the record simplyprovides the views-~,f-variousAgency staffmembers

who were involved in reviewingthe Village’s study. Most ofthe discussion was focused on various

valid methodologies that could have been used forperforming 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 lifeofHickory Creek. The overall conclusionofthe study

was that as therewas very little difference betweenupstream- and-downstreari MBI values, therewas

an insignificant orno adverseeffect on the receiving stream from the effluent, Agency record at 370;

562.

-

New

Lenox

Response: 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’ practice and New Lenox’s consultant,

which were addressed by Illinois EPA and New Lenox’s consultant. Those differences included the

manner in which the MBI was calculated and the tolerance values-assignedto certain species, aswell

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

recognized the difficulty ofperforming an MB-I assessment and the variations in acceptable methods

that nevertheless may still not be perfect. For example, one ofthe Illinois EPA staffmembers cjted

by Petitioners has stated that even its own “bug-sampling methods (asthey are currently defined) fall

short ofadequately addressing how to control for habitat or flow influences on macroinvertebrate

samples collected at difference sites.” 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 ofthe 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 subsequentlyverified the validity and acceptability ~

ehr~cterimthe

-

18

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current condition ofHickory Creek. HR 370; PR 019.

-

Petitioners’

REPLY:

Nothing stated by either of the Respondents conflicts with Petitioners’

statement that there is substantial discussion in the record regarding deficiencies in the Earth Tech

study.

-

18.

A Sept. 24, 2002 internal IEPA email from Howard Essig to Roy Smoger states, “The

macroinvertebrate memo prepared by Earth Tech is one of the poorest studies I have seen in a

while. “It isfurther 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 streamflow, 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 dischargedfrom the WWI’P. They did notprovide anyflow data on Hickory Creek

or the New Lenox WWTP to back up this claim.” (HR 666-7)

IEPA Response:

The statement cited by Petitioners is a dialogue between two Agency staff

members, and is not the Agency’s final conclusion on the validityofthe Village’s studyforintended

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.

New -Lenox Response: See resp. to par. 17. The discussion within Illinois EPA is evidence ofproper

internal deliberations in this matter between various staff members prior to the time Illinois EPA

made a decision, and the cited memorandum is evidence ofone staffmembers’ 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 EPA, and Illinois EPA was ultimately

-

satisfied that the study was sound notwithstanding minor variations in procedure.

Petitioners’

REPLY:

IEPA and New Lenox state additional facts but do not deny that the statement

made in Petitioners statement offacts appears in the agency record.

19.

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

Mosher, summarizes the reviews by Smoger, HowardEssigandMarkJoseph ofthe Earth Tech study

and recommends that the study be conducted again. This memo states, “Wefind it d~fficult tojudge

the validity of the analyses and conclusions because the study used different collection methods,

d~fferenttaxon-tolerance values, and different criteria for interpreting MBI scores than those

typically used by Illinois EPA. In addition, the report does not contain enough spec~ficinformation

on habitat, water chemistry, andflow.

“

The memo concludes, “Therefore we recommend that Earth

Tech conduct the survey againfollowing the guidelines listed below.” (HR 559-560).

IEPA Response: 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. The

19

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discussion stems from the fact that the proceduresused by the Village’s consultant were not exactly

-

as the Agency would have used. The discussion also shows that there are alternative fieldsampling

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 wayofcharacterizing the current

conditions ofHickory Creek. Agency record at 370; 562.

New

Lenox Response:

See Resp. par. 17 and 18. In addition, New Lenox notes that the preferred

procedures and guidelines ofcertain staffmembers that reviewed thestudyhavenotheen adopt-ed-as

regulation, and to the extent New Lenox’ s consultant used different procedures, its study was

ultimately determined to be sound by Illinois EPA, and is evidence properly relied upon by Illinois

EPA.

-

-

-

Petitioners’ REPLY:

See Reply regarding paragraph 18.

20.

A Nov. 25, 2002 email indicates confusion on whether IEPAfield staffwould redo the study.

(HR 700) A Nov. 26, 2002 emailfrom IEPA ‘s Gregg Good shows IEPA ‘s decision to ignore the

Earth Tech study, stating, “Therefore, forget using the contractor ~ bug study.” On the same day,

JEPA 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)

IEPA Response: The

Agency disputes Petitioners’ unfounded claim that the Gregg Good’s email in

any wayrepresents 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 ofstandards 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 ofthe Village’s STP 1

existing discharge. Agency record at 562.

-

New Lenox Response: This paragraph cOntains inappropriate characterizations on the stateofmind

ofIllinois 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 ofthe 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 determinedthat the basis forthe listing was violation ofst-andards-

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 ofthe extensive

internal deliberations that properly occurred. They should not be-used as evidence of“confusion,”

nor do internal agency deliberations change the appropriate analysis &t2d conclusions ofthe Agency

reflected in the NPDES Permit, Responsiveness Summary and the Anti-Degradation Assessment.

Petitioners’ REPLY:

Respondents do not deny that the quoted statements were madein the record.

Regarding “confusion,” see HR 700 that looks back on the debate regardingthe contractor bug study,

20

-

---

the 303(d) listing and the New Lenox survey, and describes these as “a real headache” and as

involving “snafu’s.”

21;

The recorddoes not contain any study ofthepotentialeffect ofincreaseddischargesfrom the

plant on Hickory Creek or the Des P/ames River. In an emailofSeptember 9, 2002, IEPA ‘.s Robert

Mosher wrote, “There is no good way to predict what impact the expansion may have

(antidegradation)....” (HR 660.5)

-

IEPA Response:

None

-

New

Lenox

Response: The record contains extensive evidence ofappropriate 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 ofthe information before it, it was able to make a decision that the

current cause ofimpairment in the Creek was total dissolved solids, and a permit limit was included

in the permit. With respect to the Des Plaines River, consideration ofpotential impacts would be

entirely speculative.

Petitioners’ REPLY:

The parties are agreed that the agency determined that the reason for the

3 03(d) listing was from violations of the numeric standard for total dissolved solids.

The record shows that the agencynever determined the reason for why Hickory Creek is now

a “C” stream or the reasons for the reported excess algal blooms in the stream.

Copper

22.

In the reasonable potential analysis for copper done for this permit mod~fication

- -

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

sample was 20.5 pg/I while the chronic standardfor copper at the hardness levelfound in Hickory

Creek is 20.6 ~ug/l.IEPA ‘s calculation ofthe reasonable potentialfor a violation ofwater quality

standardsfor copper using the US. EPA method revealed that there was a reasonable potentialfor

the level ofcopper to be more than double the acute water quality standardfor copper and to exceed

the chronic standard by a factor ofover 3.7. (HR 508)

IEPA Response:

The results of the two copper samples collected by the Village’s STP 1 were

0.0141 mg/L and 0.0205 mg/L. The average ofthe copper samples was 0.0173 mg/L. As this value is

less than the chronic water quality standard of0.0206 mg/L, the Agency determined that there was

no reason to incorporate permit limits for copper.

New

Lenox Response:

Illinois EPA considered the U~S.EPA method aswell asthis comment. 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 that value. HR 363. In Scott Twait’s memorandum

concerning waterquality based effluent limits, Illinois EPA determined in accordance with Agency

-

21

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policy that it would not usethe high multiplierused in U.S. EPA’s method because that method does

not yield valid results whenonly a small sample population exists. Illinois EPA also concluded that

this facility had been previously identified as having a low risk for high levels ofmetals. PR 509.

Further, based on Illinois EPA’ s knowledge ofother dischargers to the Creek and a known problem

with copper in at least some segments ofHickory Creek, which could be expected to be explored

through discovery, Illinois EPA reasonably concluded that the New Lenox discharge would-not be

likely to cause a violation ofwater quality standard.

Petitioners’ REPLY:

Respondents restate the facts stated in Petitioners’ statement and state

additional facts but do not deny the statement made by Petitioners.

The Agency Proceedings

-

-

23.

On January 5, 2003, IEPA gave notice that it had made a tentative decision to renew a

NPDESpermit to New Lenox to discharge into Hickory Creek The draft renewedpermit allowed the

New Lenox plant to increase its design average flowfrom 1.54 million gallons per day to 2.516

million gallons perday. (HR 1-15)

-

-

IEPA Response:

None

New

Lenox Response:

New Lenox agrees with this paragraph.

Petitioners’ REPLY: The

parties agree

24.

After reviewing a copy ofthe draftperm it, Petitioners commented through testimony given at

-

a public hearing held on the draftpermit on April 24, 2003 in the New Lenox Council Chambers.

(HR 61-87)

IEPA Response:

None

-

New

Lenox Response:

New Lenox agrees with this paragraph.

-

Petitioners’ REPLY:

The parties agree.

-

25.

No one appeared at the hearing on behalfofthe applicant, which chose not to participate in

the hearing. (HR 61-87).

-

IEPA Response:

None

New Lenox Response:

New Lenox disputes that it did not appear at the Public Hearing. The

attendance sheet shows that Mike Tiurley, 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 ofthe fact that the purpose ofthe hearing is forIllinois EPA to provide information to

the public and accept public comments, this is consistent with the regulations governing the hearing.

22

---

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 informationprovided-to Illinois EPA prior to the hearing to

enable it to hold an informative and meaningful public hearingand comment period, as evidenced by

Petitioners’ extensive participation and voluminous submittals.

-

Petitioners’

REPLY:

Petitioners will not argue about what it means to “appear” at a hearing. The

parties agree that New Lenox offered no comment at the hearing.

26.

At the hearing, IEPA answered that it had done no studies ofalternatives to allowing the

discharge other than to review a sthdy of/and treatmentdone by the applicant’s contractorand that

it had not made any study of the cost ofremoving phosphorus or nitrogen at the plant. (HR 73-4)

IEPA Response: A

study performed by the Illinois Associated ofWastewater Agencies (IAWA)

regarding cost and efficiencyofnutrient 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 ~-sts~”Agency record at

74; 358.

New Lenox Response:

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; ill 1372-374. In addition, as noted at the hearing, the Illinois Associated ofWastewater

Agencies (IAWA) at the requestofIllinois EPA performeda study concerning cost and efficiency of

nutrient treatment, which was before Illinois EPA at the time it made its decisionand is consequently

properly part ofthe record. HR 74. All parties involved in this proceeding are aware ofthe content of

that study.

-

Petitioners’

REPLY:

Respondents do not contest the statement made by Petitioners as to what the

agency had studied as ofthe date ofthe hearing.

The statement that all parties were aware of the content of the IAWA statement is not

supported by any citation to the record and is false. Moreover, the IAWA study is irrelevant as it did

not consider the necessity ofNew Lenox discharging wastewater into Hickory Creek that was not

treated fornutrients.

-

--

27.

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

flaws in the draft permit and in IEPA ~ consideration ofthe draftpermit including:

a. The draft permit allowed discharges ofphosphorus and nitrogen that cause, have a

reasonable potential to cause or contribute to violations ofthe water quality standards

-

23

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regarding offensive condition, 35 Ill. Adm. Code 302.203, in violation of 40 CFR

122.44(d) and 35111. Adm Code 309.141. Nutrients are the likely cause ofalgal 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

¶~J

6-9

-

above)

-

-

c. That the draftpermit alloweddischarges that may cause, have a reasonablepotential to

cause or contribute to violations of state water quality standards regarding dissolved

oxygen, 35111. Adm 302.206, and copper, 35111. Adm. Code 302.208(e) in violation of4O

CFR 122.44(d) and 35111. Adm. Code 309.141. (HR 68, HR 265-6)

d. That the draft permit and the studies and lack ofstudies 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 ofthe draftpermit on existing uses

ofthe stream and because IEPA took no steps to determine ifexisting recreational uses

ofthe stream might be impactedby the lackofdisinfection ofwastewater from theplant

IEPA Response: None

New

Lenox Response:

New Lenox agrees that Petitioners availed themselves ofthe opportunity to

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

paragraph, all ofwhich were fully considered by Illinois EPA. To the extent raised in the motion, the

characterization ofthese issues as “flaws” in the draft permit constitutes (a) a legal argument, not a

fact and (b) these arguments were rejectedby Illinois EPA, as fully explained in its Responsiveness

Summary. HR 352-376.

Petitioners’ REPLY: The

parties agreethat Petitioners made comments into the record sufficientto

raise the issues raised in this appeal.

-

-

28.

Further, Petitioners urgedthat the IEPA take the steps necessary to comply with. 35111. Adm.

Code 302.105(c). Petitioners presented comments that the alternatives to allowing the increase in

pollution were not reasonably weighedprior to the issuance ofthe draftpermit and that manyofthe

costs ofproceeding under the draft permit were ignored. William Eyring, Senior Engineerfor 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 test~fledthat 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 tes4fled that the estimatedcosts ofa/ternatives

(e.g. land treatmentand land application oftreatedwastewa~ei)to allowing the increaseddischarge

were unreasonably inflated and the costs ofminimizing nutrient discharges were not considered.

Environmental economist JeffSwano requested a life cycle analysis beperformed 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)

24

-

---

-

IEPA Response: The

Agency disputes Petitioners’ those statementthat constitute interpretationof

the Board regulations. Such statements are not undisputed statements of facts. Further, since the

permit hearingwas only an informational hearing and no testimony was allowed, Petitioners could

not have testified at the hearing.

-

New

Lenox Response:

New Lenox does not dispute the general summary ofPetitioners’ comments,

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

Illinois EPA concerning same constitutes a legal argument, not a fact.New Lenox disagrees that any

Petitiioners “testified,” as public comments represent unsworn statements by parties not subject to

cross examination. New Lenox disputes that these particularcomments are relevant to the extent they

concern the “kinds of development that would be facilitated by the plant expansion,” which is a

consideration outside the scop~of Illinois EPA’s review ofthe impact ofthis particular treatment

plant, not the land use considerations that are properly within the discretion of New Lenox. New

Lenox is not aware ofMr. Swano’ s credentials or qualifications as an “environmental economist.”

New Lenox d-isputes that its estimated cost ofalternatives were unreasonablyinflated, and notes that

Mr. Swano’s comments concerning land application were not the result ofhis own independent

analysis but were based on information from Schaffer International, a company in the business of

selling land application systems. HR 71.

Petitioners’

REPLY:

See Reply to responses to paragraph 27.

29.

Petitioners asked that all technically and economically reasonable measures to avoid or

minimize the extent ofthe proposed increase in pollutant loadings be incorporatedinto the permit

and that the permit be improved in a number of respects including that,’

a. It provide for economicallyfeasible controls on the discharge of nutrients including

phosphorus and nitrogen,’

b. The limits in thepermit be improved to preventdischarges 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. ThatIEPA seriously consider whether the increaseddischarge was actually necessary in

light ofpotential alternatives; and

e. That IEPA seriously consider alternatives to allowing the levels ofpollutants in the

streams that would be allowed by the draft permit.

-

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

IEPA Response:

None

-

New

Lenox Response:

New Lenox does not dispute the general summary ofPetitioners 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.

Petitioners’

REPLY:

See Reply to responses to paragraph 27

-

25

---

30.

Inparticular, Jim Bland, an expert on eutrophication,

-

test~fledon behalfofthe Des Flames

River Watershed Alliance at the public hearing that “Data concerning increased nutrient loading,

especiallyphosphorus is not included in the proposedpermit.... On a long term basis theproposed

increase in discharge will increase the “attached algae” (periphyton that covers the rocks and

bottom rubble that are characteristic of this reach (c.f Ecological Effects of Wastewater, E.B.

Welch). This increase in streamproductivity has the capacity to dramatically alter the character of

the invertebrate communities downgradientfrom the STP.” (HR 110)

IEPA Response: 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.

-

New

Lenox

Response: 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 disagrees

that Mr. Bland “testified” in this case, ashe was unsworn and not subject to 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 “Streamswould be expected to- exhibit either one kind ofalgal growth or

another, i.e. planktonic orperiphyton” depending on a variety offactors, and “thebest measure of

whether fish are adversely impacted is to look at the local fish population. Hickory Creek has fish

populations that are not indicative oflow 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.

Petitioners’

REPLY:

Respondents agree that Mr. Bland placed the quoted views on the record and

thereby put IEPA on notice.

31.

In addition, Mr. Bland asked thatJEPA “Speed up the analysis ofnutrient loading influences

and apply this analysis to the existing permit spec~flcation.Document the direct influences of

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

IEPA Response:

None

-

New

Lenox Response:

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 more properly directed in the context ofthat proceeding than a specific permit proceeding.

Petitioners’

REPLY:

See Reply to response to paragraph 30.

32.

In post hearing comments, Beth Wentzel of the Prairie Rivers Network stated that “The

literature supports the claim that excess nutrients, nitrogen andphosphorus, can impair streams by

-

26

---

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 USGSflow 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 reasonablepotential that instream concentrations cause -violations-ofwater quality

standards. Because the discharge from New Lenox STP #1 contributes to these violations, the

-

existing discharge is illegal and an expansion ofthe discharge would be illegal. Prior to issuance of

this permit, IEPA must determine water quality based effluent limitsfor nitrogen andphosphorus

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)

IEPA Response:

None

-

-

New

Lenox Respons-e:

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

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

legal conclusion. In any case, Illinois EPA fully consideredthese comments. See resp. to par.

5,

6, 9,

-

10,11-15.

Petitioners’ REPLY:

The parties agree that Ms. Wentzel placed the quoted remarks into the record.

33.

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

Agency to provide an estimate ofthe cost ofremovingphosphorus and the cost ofremoving nitrogen

from the discharge. (HR 73-4)

-

IEPA Response:

None

New

Lenox Response:

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 ofWastewater Agencies at the request ofIllinois EPA,

which contained information on the cost associated with removing nutrients. See resp. to par. 26;

Petitioners’ REPLY:

The parties agree that Mr. Ettinger madethe quoted comment into the record.

As described in the Responsiveness Summary, the IAWA report contained only general

information on the cost ofremovingboth nitrogenand phosphorus at one particularlevel. The IAWA

study did not purport to consider whether it was necessary for New Lenox to discharge without

providing phosphorus removal. JEPA in the Responsiveness Summary did not purport to make any

determination as to the need forNew Lenox to increase its dischargewithout treating the wastewater

to remove phosphorus. (HR 358)

27

---

34.

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

USEPA methodwhere you use a multiplier to come up with a 95 percent

...

reasonablepotential, the

copper suggested that there should be further analysis. But thenfurther 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

beyondroutine requirements is needed. My concern is that there were only two samples taken. And

ofthose two samples, Ionlyknow what one ofthem was. Butone ofthem, the sample measured 20.5

microgramsper liter. The chronic standard is 20.6 microgramsper liter. It certainly would seem

given that you have only two samples, and you are so close to a violation of the chronic standard

there, that I would think that there is a reasonable potentialfor violation of the chronic standard,

and that because there were

...

so few samples that it needs to be investigatedfurther.” (HR 70)

IEPA Response: None

-

New

Lenox Response:

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.

Petitioners’

REPLY:

Again the parties agree that Petitioners raised the issue---beforethe-agency that

they now raise in -this appeal.

-

.~5.

Reasonable PotentialAnalysis to Exceed Water Quality Standards

The USEPA recommended methodfor 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. IEPA ‘s decision to abandon the method

recommended by USEPA in Technical Support Documentfor 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 IEPA concludesfrom this limited data set that there is no needfor additional

copper monitoring If the measured value had been 20. 7pg/linstead of2O.5, would

further investigation have been required? Are we then to believe that IEPA

considers 20.-S and 20.7 pg/l to be statistically different? The confusing situation

which -exists with IEPA ‘s method ofdirectcomparison ofsample values to standards

-

is exactly why the statistical method recommended by USEPA should be employed.”

IEPA Response:

None

-

New

Lenox Response:

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.

28

-

---

Petitioners’

REPLY:

See Reply to response to paragraph 34.

36.

Inadequate Consideration ofAlternatives

In addition to the otherflaws 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 economically necessary.

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

Illinois lawgiven 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

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)

IEPA Response:

None

New Lenox Response:

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.

Petitioners’ REPLY:

See Reply to response to paragraph 34.

The

Final Permit

and Responsiveness Document

7.

On October31, 2003, Illinois EPA issued thepermit that is subject to the current appeal. The

final permit contains some changesfrom the draft including required levels ofdissolved 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 341-50)

IEPA Response:

None

-

NewLenox Response:

New Lenox -agrees that Illinois EPA issued the permit subjectto the current

appeal on October 31,2003. Inresponse to comments made during the public comment period and to

information before Illinois EPA, the agencyrecommended and New Lenox agreed to accept certain

limits without challenge. New Lenox notes that it did not challengethe limits, but this does not mean

those limits were not challengeable or were required. They include limits on dissolved oxygen, total

dissolved solids, and ammonia.

-

29

---

Petitioners’

REPLY: The parties agree regarding the contents ofthe permit, which, in any case,

speaks for itself.

38.

The permit set no limitfor copper. (HR 343)No explanation appears in the recordas to why

the Agency proceeded in conflict with the US. 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

reasonablepotential to exceed a chronic water quality standard. By definition, a chronic standard

must not be exceeded in the receiving stream by the average ofat leastfour samples.” (HR 363) Yet

there is no discussion of the possibility ofrequiring more samples than the two provided.

IEPA Response: 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 sampleresults

were below the chronicwater quality standard, the Agency determinedthat no permit conditions for

copper are necessary. The Agency’s decision to not in-corporate copper limits is consistent with the

Act and Board regulations.

New

Lenox

Response: New Lenox agrees that no permit limit was set for copper.

Petitioners’ REPLY: The

parties agree that no limit was set for copper. With regard to the IEPA’s

explanation for the lack of a copper limit, see Petitioners’ Reply Memorandum in Support of

Summary Judgment at 25.

39.

Thefinal permit allowed a monthlydaily average increase of82 lbs of CBOD5 and did not

place any limit on the discharge ofCBOD5 other that the effluent limit of35 Ill. Adm. Code. 304.120.

(HR342-3)

-

-

-

IEPA Response: None

-

-

-

New

Lenox Response:

New Lenox disagrees that no permit limit was set for CBOD5. See PR652,

which shows the permit does contain a daily average and a daily maximum value for CBOD5.

Petitioners’ REPLY:

New Lenox misunderstands Petitioners factual statement. As Petitioners state,

there is a permit limit based on 35 Ill. Adm. Code 304. 1-20.

-

40.

No limits were setforphosphorus or nitrogen. (HR 343) Other than to mention that a study

done by the Illinois Association of WastewaterAgencies (neverplaced in the record) indicating that

30

---

the combined costs oftreating nitrogen to an unmentioned level andphosphorus to the level of0.5

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 ofphosphorus treatment alone (without nitrogen treatment) or ofany

level ofphosphorus treatment other than 0.5 mg/L.

JEPA

Response: 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 disputes the statement that the study

performed by the Illinois Association ofWastewater Agencies was not part ofthe record, as the

record properly includes everything the Agency relied upon at the time it made its decision.

New Lenox Response:

New Lenox agrees that no permit limit was set forphosphorus or nitrogen.

Further, New Lenox disagrees with the statementthat the study performedbythe illinois Association

-

ofWastewater Agencies was not part ofthe record, as the record properlyincludeseverythingbefhre

-

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.

-

Petitioners’ Answer

-

Petitioners’

REPLY:

Respondents agree with Petitioners regardingthe limits ofIEPA’s discussion

ofnutrient treatment and do not suggest that IEPA at any point in the record considered the necessity

ofthe phosphorous loading.

The Agency’s citations do not support their statement that Hickory Creek lacks offensive

conditions. As previously discussed, several witnesses gave report of excessive algae growth in

Hickory Creek. HR 76, 80, 82

-

83.

-

41.

No limits areplaced in thepermit to preventviolation ofthe “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 thepermit to satisft’ the narrative standard on plant and alga/growth because “This

is a very difficult standard to apply to a permit.” (HR 357)

IEPA Response:

Petitioners’ statement in SOF ¶41 that, “no limits are placed in the permit to

preventviolation 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.

Agencyrecord at 361; 364.

-

-

-

/

31

---

New

Lenox Response:

New Lenox agrees that no limits were placed in the permit concerning

“offensive conditions.” Further, no limits are requiredto addressoffensive conditions. To the extent

Petitioners claim that algal growthconstitutes an offensive condition, Illinois EPA-addressedalgae in

its Responsiveness Summary, explaining that algae is a vital part ofthe aquatic community and algae

growth in itself is not itself a problem; it is in relationth dissolved oxygen and the adverse impact on

fish that provides context. Illinois EPA stated that “Streams would be expected to exhibit either one

kind ofalgal growth oranother,” dependingon a variety offactors, and “thebest measureofwhether

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

populations that are not indicated oflow dissolved oxygen concentrations.” HR 361. Illinois EPA

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

waterquality standard fordissolved 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 ofnutrients 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 orother noxious plant

growth, diminish the present aquaticcommunity orotherwise aggravate-existingstream conditions.”

PR 565. Finally, Petitioners do not address the impact ofnumerous other dischargers to the stream.

Petitioners’

REPLY:

Respondents do not contestPetitioners’ statement that nothing was done in

the permit to address offensive conditions orPetitioners’ quotation ofthe Responsiveness Summary

in which IEPA stated for itself the reason why-it did not consider placing limits in the permit to

address the potential violation ofthe “offensive conditions” water quality standard. The other facts

stated by Respondents in relationto this factual statement are completely- irrelevantornot suppc)rted

by any evidence in the record.

DATED: June 8, 2005

Environmental Law and Policy Center

35 E. Wacker Drive, Suite 1300

Chicago, Illinois 60601

3 12-795-3707

-

-

Albert F. Ettinger (Reg. Ni3 125045)

Counsel for Des Flames River Watershed Alliance, Livable

Communities Alliance, Prairie Rivers Network and Sierra Club

32

---

Exhibit 1

---

This document is formatted -for double-sided printing.

Illinois

Environmental

Protection Agency

TFPAfROW/fl~-flfl6

Bureau of Water

P.O. Box 19276

Springfield, IL 62794-9276

Illinois Water Quality Report

Bureau of Water

July 2002

---

Bureau of Water

---

B. Assessment Methodology

This assessment methodology explains how Illinois EPA uses various criteria (including, but not

limited to, Illinois water quality standards) to assess the level of support of each applicable

designated use in the streams ofthe state. Each assessed use receives a use-support rating ofFull

(“good”), Full/Threatened (“good”), Partial (“fair”), or Nonsupport (“poor”). In general, use-

support assessments for streams in Illinois have focused on

aquatic life

use because of the

overriding and widespread importance of this beneficial use. Assessment of

aquatic life

use in

streams is based primarily on biological criteria that are not part of Illinois water quality

standards; however, standards are used subsequently to identify potential causes of

aquatic life

impairment. Alternatively, for some uses other than

aquatic life

use, the Illinois water quality

standards serve as primary assessment criteria.

Two major enhancements to the stream-assessment methodology are incorporated in this 2002

305(b) report. These changes do not affect the comparability between 2002 assessments and

those in previous reports. Each change is described below, with the purpose for the change and

overall effect on statewide use-support results.

-

1. Revision of the flowchart for assessing aquatic life use (Figure 3-3).

For the previous

2000 305(b) report (IEPA 2000), the flowchart for assessing

aquatic life

use (Figure 3-3)

was divided into two flowcharts: one for AWQMN sites (which have long-term water

chemistry data but may be lacking in biological and habitat data) and one for Intensive

Basin Survey stations (which have biological and habitat information, but only limited

water chemistry data).

Whereas these two flowcharts offered improvements over

previous assessment methods, they tended to be somewhat confusing. For this 2002

305(b) report, the flowchart has been combined into one. The new flowchart includes the

improvements of the previous flowcharts (IEPA 2000) while further clarifying Illinois

EPA’s process for assessing

aquatic life

use.

2. Refinement of Table 3-7.

Guidelines for IdentiMng Potential Causes of Use

Impairment in Streams.

Beginning with the 2000 305(b) report (IEPA 2000), Illinois

EPA developed guidelines for identifying potential causes of use impairment in streams.

For this 2002 305(b) report, Illinois EPA has further expanded this table by specifying

the monitoring program under which data were collected, the medium to which the data

apply (i.e., water, sediment, habitat, or fish tissue),- and whether the guideline is a

numeric standard, narrative standard, statistical guideline, or otherwise. Finally, Illinois

EPA has provided a

-

confidence level for each potential cause of impairment. This

confidence level reflects, in part, information about the data quantity and data source

used to make potential cause determinations. Illinois EPA believes that the addition of

this information will be useful in 303(d)-related decision-making.

-

-25-

-

-

---

Aquatic Life

Aquatic life

use assessments are based on biotic and abiotic data provided by Illinois EPA

monitoring programs. Biotic data consist of fish and macroinvertebrate information interpreted

by using the Index ofBiotic Integrity for fish (IBI; Karr et al. 1986; Bertrand et al. 1996) and the

Macroinvertebrate Biotic Index (MBI; IEPA 1994). Abiotic data used in

aquatic life

use

assessments include water and sediment chemistry and instream physical habitat. Habitat data

include stream quality descriptors (metrics) such as channelization, bank stability, other channel

alterations, and siltation (see Table 3-5). Both quantitative and qualitative instream habitat data

aid in the determination of habitat’s contribution to

aquatic life

use support. Water chemistry

data are examined by categories identified as conventionals (dissolved oxygen, pH, temperature)

and toxicants (priority pollutants including metals, chlorine, and ammonia) in Table 3-6.

MonitoredAssessments

The process for assessing

aquatic life

use (Figure 3-3) is designed for maximizing statewide

consistency in assessment results. The “weight of evidence” approach (USEPA 1 997b) is -the

basis for making

aquatic life

use assessments with more emphasis placed on biological data.

This emphasis on biological data (fish and macroinvertebrates) over chemical data provides a

direct measure of aquatic community health, facilitates detection of cumulative impacts from

multiple stressors, and provides a direct measurement of the Clean Water Act (CWA) “fishable”

goal. The flowchart shows how fish, macroinvertebrates, water-chemistry, and habitat

information are integrated and interpreted to guide the assessment of

aquatic life

use.

Knowledge of the study area is also factored into the assessment process and includes a review

of comments and field observations ofpotential causes and sources ofimpairment. Factoring in

this site-specific knowledge ensures that all

aquatic life

use assessments more accurately reflect

environmental conditions.

-

The availability ofAgency data will typically fall into one ofthe following categories. However,

almost any combination ofdata availability may also occur:

1) From Intensive Basin Survey (IBS) stations there is usually fish community data, which

is used to calculate an IBI score; macroinvertebrate data, which is used to calculate an

MBI score; two to three samples of water chemistry data; one sample of sediment

chemistry data; and habitat data from transect surveys and other observations which are

used to complete the Stream Habitat Assessment Procedure (SHAP) form and other

habitat forms.

2) Ambient Water Quality Monitoring Network (AWQMN) stations may also be jointly

located at lBS stations. When they are, the biological and habitat data collected are the

same as in item 1. AWQMN stations are generally sampled nine times per year and three

years ofwater chemistry data (27 samples) are used in the assessment process.

-

3) AWQMN stations that are not part of lBS monitoring usually have only water chemistry

data (three years, 27 samples) with which to make an assessment.

4) Facility Related Stream Surveys (FRSS) are conducted at selected locations to assess the

-

26

-

---

-impact of point-source discharges on stream quality. Data are generally collected at several

stations and include macroinvertebrate data, one to three samples of water chemistry data,

and habitat observations necessary to complete the SHAP and other forms. Fish data are also

collected at some FRSS stations.

The flowchart (Figure 3-3) is designed to assess use support regardless of which data or

combinations of data (described above) are available. Whereas the flowchart yields a result for any

data combination, an assessment based on habitat data alone would not be considered a monitored

assessment. In addition, an assessment based solely on water chemistry data may be judged to be

evaluated if it is believed that the amount and nature of the data are inadequate. Only existing and

readily available data are used to assess use support.

-

-

27

-

---

Figure 3-3. Flowchart for Assessing

Aquatic Life

Macroinvertebrate, Habitat, and Water-Chemistry Data.

-

(Ifdata are not available, answer, “No”)

Start

IBI41 and the

~

No~

2) Is IBI 20 but 41, and

is the MBI 5.9 but 8.9

No~

Yes

Yes

Partial Support

p

3)Is IBI 20 or is

MBI 8.9?

No

4) Does Water

Chemistry Indicate

Impairment?

(see table 3-2)

Yes

8)Is IBI20 and

MBI8.9?

No

V

7) Does Habitat Indicate

Impairment? (see table 3-5)

9)

Does Water Chemistry

Indicate Severe Impairment? (see

table 3-6)

Final review, considering site-specific knowledge and

other available data.

Yes

____

Nonsupport ~

5)

Are both biological

indexes available?

/

Yes

______________

Support

Yes

~iI

I

Partial Support

Ii

I

No

Nonsupport

jJ~

Partial Support

i1~

-

---

APPENDIX

TABLE

A-2.

WATERBODY

SPECIFIC

INFORMATION

FOR

STREAMS

IN

THE

DES

PLAINES

RIVER

WATERSHED.

2000.

Wfl~5d9~

&~henV~

£átá1og~:

~

-

~..

-

-Siz~3bl--

C9c~&~1Key

gtn~~~-~

-

~-

~

-

~

-

~

:~1~-~

-,

~~--

~

~

~

~

~i~1$~

ri5~

4

~

IJ~jst~-~

Se~esitNasne

~&i~s~

V

~

jDest

Mt

B~ntia!~esd4~athife5~

~.

~

~

ILGBL1O

GBLBO1

07120004

St.

Joseph

Cr.

4.28

2002

01/01/1997

M/

300,420

P1,P20

1200,

1600,

1900,

2100,

2210

200,

3000,

3200,

4000,

7000,

7100,

7550,

7600,

7700,

9000

ILGBL1O

GBLC

07120004

LaceyCr.

3.76

2002

01/01/1995

El

170

X1,X20

ILGCO2

GC

02

07120004

Jackson

Cr.

10.55

2002

01/0111991

El

150

F1,F20

ILGCO2

GC

03

07120004

Jackson

Cr.

14.39

2002

01/01/1997

MI

700

F1;F20,X21

-

ILGCO2

GCA

01

07120004

Manhatten

Cr.

8.33

2002

01101/1997

MI

F1,F20,X21

ILGCBO1

GCB

07120004

Jackson

Br.

8.95

2002

01/01/1991

El

150

P1,P20

900,

910,

930

200

-

ILGFO1

GF

01

07120004

SugarRun

6.57

2002

01/01/1983

El

150

P1,P20,X21

500,510,900,920,1000,1100,1200,1220

1000,

1100,3000,3200,4000

ILGGO2

GG

02

07120004

Hickory

Cr.

9.93

2002

01/01/1998

M/

230

N42,P1,P20

900,

910,

920,

1300,

1320,

1500,

2100

200,400,

3000,

3200,

4000,

7000,

7400

ILGGO2

GG

06

07120004

Hickory

Cr.

12.2

2002

01/01/1997

M/

700

F1,F20

ILGGO2

GGB

01

07120004

Marley

Cr.

10.02

2002

01/01/1976

El

150

X1,X20

ILGGO2

GGC

07120004

Union

Ditch

1.08

2002

01/01/1998

MI

300

F1,F20

ILGGO2

GGC-FN-C

07120004

Union

Ditch

1.42

2002

01/01/1998

Ml

300

N1,N20

600,900,920,1200,1220

200

ILGGO2

GGF

07120004

Frankfort

Trib.

4.12

2002

01/01/1999

Ml

300

P1,P20

900,

910,

930,

1300,

1320

200,

4000

ILGGAO2

OGA

02

07120004

spring

Cr.

15.63

2002

01/01/1983

El

150

P1,P20,X21

0

-

9000

ILGHEOI

GHEOI

07120004

LongRunCr.

12.74

2002

01/01/1997

Mi

700

F1,F20

ILGIO2

GH

07120004

Illinois

and

Michigan

Canal

5.82

2002

El

X1,X20

-

-

ILGIO2

GHA

07120004

Fraction

Run

7.14

2002

El

X1,X20

ILGIO2

GHAA

07120004

North

Fraction

Run

1.66

2002

El

X1,X20

Page

4

of

6

I

I

______________________________________________________

—

-

---

threshold statistical value at an lBS or FRSS site, or one exceedance over three years at an

AWQMN station, qualifies that parameter as a potential cause of impairment.

• Stream Habitat Assessment Procedure (SHAP) scores for selected metrics, quantitative

instream-substrate transect data, and related field-collected information are also used to

identify potential causes of impairment such as siltation and habitat alteration. SHAP scores

rated as “poor” for metrics 9 and 12 (IEPA 1994, Appendix 1), plus observations of channel

-

alteration, riparian vegetation, and channel modifications are used as guidelines

-

for

-

identifying potential causes.

• When a waterbody-specific fish-consumption advisory recommends limiting consumption of

particular types offish in a particular stream segment, the contaminants responsible for the

advisory are listed as potential causes of impairment.

• Sediment-chemistry data are also used for identifying potential causes of impairment. In

general, whenever a sediment parameter is found at highly elevated levels (Short 1997), the

parameter is listed as a potential cause.

For this 2002 305(b) report, four additional columns have been added to Table 3-7. The “Program

Name” cOlumn indicates the program under which the data were collected, (e.g., IBS/FRSS). The

“Media” column refers to the type ofdata collected, i.e., water, sediment, habitat, or fish tissue. The

“Guideline Reference” column indicates the basis for the guideline, such as a narrative standard,

numeric standard, or statistical basis.

-

The fourth column, “Illinois EPA Confidence Level,” is included because Illinois EPA believes that

this information can be useful in subsequent efforts to restore waterbodies identified as impaired in

this report. A confidence level of “3” indicates that Illinois EPA has relatively high confidence that

the identified cause is contributing to impairment. A confidence level of. “2” indicates moderate

confidence, and a confidence level

“1” indicates low confidence. These confidence levels provide

information potentially useful in restoring impaired waters. For example, potential causes of

impairment identified in the 305(b) report are considered when developing waterbody restoration

strategies (e.g., Total Maximum Daily Load analyses). Potential causes with “high” confidence (i.e.,

“3” in Table 3-7) are the causes most likely to be contributing to impairment, based on available

information. However, Illinois EPA cautions users of this information: the monitoring data used to

identify potential causes was NOT collected specifically to identify causes of impairment, rather it

was collected primarily.to assess the level of use support. Thus, the word “potential” is explicitly

invoked here. Despite these limitations, some potential causes, especially when interpreted in light of

other available site-specific or watershed-specific information, truly may be contributing to

impairment and thus should be considered in restoration efforts. Potential causes of impairment

identified in this 305(b) report, particularly those causes with low or moderate confidence, may lack

utility for waterbody-restoration efforts (e.g., TMDLs) until further evidence indicates, more

conclusively, that these causes are contributing to impairment. For any potential cause in Table 3-7,

the actual confidence level may differ from the level indicated in the table, if supporting evidence or

site-specific knowledge (additional to that addressed in the “Guidelines”) indicates that the cause

truly is contributing to impairment.

-

-

32

-

---

Table

3-7.

Guidelines

Causes

of

Use

Impairment

Streams.

Code

.

Potential

Cause

Program

Name/Data

-

Availability

.

Media

-

.

.

Guidelines

.

.

Guideline

Reference

IEPA

Confidence

-

Level

0000

Potential

Cause

Unknown

-

-

No

identifiable

potential

cause

based

on

available

information.

-

0300

Priority

Organics

Phenols,

pesticides

(see

Table

3-1

for

pesticide

standards)

-

AWQMN

IBS/FRSS

IBS/FRSS

-

FCMP

Water

Water

Sediment

Fish

tissue

At

least

one

violation

of

applicable

standard

in

most

recent

three

years

or

-

At

least

one

violation

of

applicable

standard

or

Any

priority

organic

compound

at

highly

elevated

concentrations

or

Fish

consumption

advisory

due

to

a

priority

organic

compound

Numeric

Standard’

-

Numeric

Standard’

Statistical

Guideline

2

USEPA

(1997b)

3

.2

2

3

0410

PCBs

-

-

IBS/FRSS

-

FCMP

Sediment

~

Fish

tissue

Any

PCBs

at

highly

elevated

concentrations

(?180

~xg/kg)

or

Fish

consumption

advisory

due

to

PCBs

-

Statistical

Guideline

2

-

USEPA

(1997b)

1

3

-

0500

0510

0520

0530

0540

0550

0560

0570

-

0580

Metals

(barium,

boron,

iron,

manganese,

nickel,

silver

or

any

of

those

below)

Arsenic

Cadmium

Copper

Chromium

Lead

-

Mercury

Selenium

Zinc

AWQMN

IBS/FRSS

IBS/FRSS

FCMP

Water

Water

Sediment

Fish

tissue

-

At

least

one

violation

of

applicable

acute

or

chronic

standards

for

any

metal

in

most

recent

three

years

or

At

least

one

violation

of

applicable

acute

standard

for

any

metal

or

-

Any

metal

at

highly

elevated

concentrations

-

or.

Fish

consumption

advisory

due

to

mercury

-

-

Numeric

Standard’

-

Numeric

Standard’

-

Statistical

Guideline

2

USEPA

(1997b)

-

-

3

2

-

2

3

0600

Ammonia

(total;

STORET

code

610

or

un-ionized;

STORET

code

612)

AWQMN

-

IBSiFRSS

Water

Water

At

least

one

violation

of

applicable

acute

or

chronic

standards

for

ammonia

in

most

recent

three

years

or

-

-

-

At

least

one

violation

of

applicable

acute

standard

for

ammonia

Numeric

Standard’

Numeric

Standard’

3

2

.

0700

Chlorine

FRSS

Water

-

At

least

one

violation

of

applicable

acute

or

chronic

standard

for

total

residual

chlorine

-

-

-

Numeric

Standard

2

0720

~

Cyanide

(WAD;

STOP.ET

code

718

or

total;

STORET

code

720)

AWQMN

IBS/FRSS

Water

Water

-

At

least

one

violation

of

applicable

standard

for

cyanide

in

most

recent

three

years

-

or

At

least

one

violation

of

applicable

standard

for

cyanide

-

Numeric

Standard’

Numeric

Standard

-

-

3

-

2

-

33

-

---

Code

-

.

Potential

Cause

-

Program

Name/Data

..

Availability

.

Media

.

.

Guidelines

.

.

-

Guideline

Reference

IEPA

Confidence

Level

0750

-_______

Sulfates

AWQMN

IBS/FRSS

Water

Water

At

least

one

violation

of

applicable

standard

for

sulfates

in

most

recent

three

years

or

At

least

one

violation

of

applicable

standard

for

sulfates

Numeric

Standard’

Numeric

Standard’

3

2

0800

Other

Inorganics

(fluoride)

AWQMN

IBS/FRSS

Water

~

Water

At

least

one

violation

of

applicable

standard

for

fluoride

in

most

recent

three

years

or

At

least

one

violation

of

applicable

standard

for

fluoride

Numeric

Standard’

Numeric

Standard’

3

2

0900

0910

0920

0921

0930-

Nutrients

Phosphorus

-

Total

Ammonia-N

Inorganic-N

(nitrates)

Nitrates

AWQMIN

IBS/FRSS

IBS/FRSS

AWQMN

-

-

IBS/FRSS

IBS/FRSS

AWQMIN

IBS/FRSS

IBS/FRSS

AWQMN

Water

Water

Sediment

Water

-

Water

Sediment

-

Water

-

Water

Sediment

Water

-

Total

phosphorus

exceeds

0.61

mg/L

in

at

least

one

sample

in

most

recent

three

years

-

or

Total

phosphorus

exceeds

0.61

mg/L

in

at

least

one

sample

or

Phosphorus

in

sediment

exceeds

2,800

mg/kg

(highly

elevated)

Total

Ammonia-N

exceeds

0.41

mg/L

in

at

least

one

sample

in

most

recent

three

years

(STORET

code

610)

or

Total

Ammonia-N

exceeds

0.41

mg/L

in

at

least

one

sample

(STORET

code

610)

or

Kjeldahl

nitrogen

in

sediment

exceeds

4,680

mg/kg

(highly

elevated)

(STORET

code

627)

Nitrate-N

exceeds

7.8

mg/L

in

I

sample

in

most

recent

three

years.

-

(STORET

code

630)

-

or

Nitrate-N

exceeds

7,8

mg/L

(STORET

code

630)

or

Kjeldahl

nitrogen

in

sediment

exceeds

4,680

mg/kg

(highly

elevated)

(STORET

code

627)

At

least

one

violation

of

applicable

standard

for

Nitrate-N

in

most

recent

three

years

(STORET

code

630)

Statistical

Guideline

~

Statistical

Guideline

Statistical

Guideline

2

Statistical

Guideline

Statistical

Guideline

Statistical

Guideline

2

Statistical

Guideline

~

-

-

Statistical

Guideline

Statistical

Guideline

2

Numeric

Standard’

.

1

1

1

1

1

-

1

-

1

I

~

3

1000

pH

-

-

-

AWQMN

IBS/FRSS

Water

-

Water

At

least

one

violation

of

applicable

standard

for

pH

in

most

recent

three

years

-

or

At

least

one

violation

of

applicable

standard

for

pH

Numeric

Standard’

Numeric

Standard’

3

2

-

34

-

---

Code

.

Potential

Cause

Program

Name/Data

Availability

-

.

Media

-

.

.

Guidelines

-

.

.

Guideline

Reference

IEPA

Confidence

Lev

I

e

1100

-

Siltation

-

-

IBSIFRSS

-

AWQMN

or

IBS/FRSS

Sediment

~

Water

Unnatural

bottom

deposits:

-

Silt/mud

or

sludge

-

Documented

site-specific

knowledge

or

34

siltlmud

bottom

substrate

(see

table

3-5)

or

Suspended

solids

—

total

suspended

solids

exceed

116

mg/L

in

at

least

one

sample

-

Narrative

Standard

~

-

Statistical

Guideline

Statistical

Guideline

3

1

1

1200

1220

Organic

Enrichment,

Low

Dissolved

Oxygen

Low

Dissolved

Oxygen

-

AWQMIN

IBS/FRSS

AWQMN

or

IBS/FRSS

Water

Water

Water

-

At

least

one

violation

of

applicable

standard

for

DO

in

most

recent

three

years

or

-

-

At

least

one

violation

of

applicable

standard

for

DO

or

Known

fish

kill

resulting

from

DO

depletion

-

Numeric

Standard’

Numeric

Standard’

Narrative

4

and

Numeric

1

Standards

3

-

2

3

1300

Salinity,

Total

Dissolved

Solids

(Code1320),

Chlorides

(code=1330)

AWQMN

or

IBS/FRSS

-

-

-

Water

At

least

one

violation

of

applicable

standard

for

TDS

(conductivity

~nnho/cm

x

0.6

=

TDS

mg/i)

or

chlorides

-

-

Numeric

Standard’

2

-

-

1400

Thermal

Modifications

AWQMN

IBS/FRSS

-

Water

Water

(Used

only

when

a

thermal

point

source

is

present.

Check

for

exemption

of

temperature

standard

in

receiving

stream)

At

least

one

violation

of

applicable

standard

for

temperature

in

most

recent

three

years

or

At

least

one

violation

of

applicable

standard

for

temperature

-

Numeric

Standard’

Numeric

Standard’

3

-

-

2

1500

Flow

Alterations

-

AWQMN

or

IBS/FRSS

Water

Documented

site-specific

knowledge

(unnatural

flow

alterations

only,

e.g.,

dams,

water

withdrawals)

Recorded

observation

1

1600

Habitat

Alterations

(other

than

flow)

-

-

-

-

IBS/FRSS

-

Instream

habitat

SHAP

bank

stability

score

(metric

9)

4,

or

SHAP

channel

alteration

score

(metric

12)

~2,

or

documented

riparian

vegetation

and

channel

alteration

Recorded

observation

-

-

-

1

1700

Pathogens

(fecal

coliform

bacteria)

AWQMIN

-

IBS/FRSS

Water

Water

At

least

one

violation

of

applicable

standard

or

assessment

guideline

(Table

3-6)

for

fecal

coliform

bacteria

in

most

recent

three

years.

This

guideline

applies

only

for

primary

contact

(swimminz)

use

assessments

Documented

site-specific

knowledge

of

pathogens

contributing

to

a

fish

kill.

This

guideline

applies

only

for

aquatic

life

use

assessments.

-

Numeric

Standard’

~

Recorded

Observation

2

1

1900

-

Oil

and

Grease

-

AWQMN

or

IBS/FRSS

AWQMN

Water

Water

-

Documented

site-specific

knowledge

-

or

At

least

one

violation

of

applicable

standard

for

oil

and

grease

in

most

recent

three

years

-

Narrative

Standard”

Numeric

Standard’

-

3

3

-

35

-

---

Code

.

Potential

Cause

Program

Name/Data

..

Availability

.

Media

-

.

.

Guidelines

-

.

-

.

Guideline

Reference

-

IEPA

Confidence

Level

-

2000

Taste

and

Odor

AWQMN

or

IBS/FRSS

Water

-Documented

site-specific

knowledge.

This

guideline

applies

only

for

public

water

supply

use.

Narrative

Standard”

3

-

2100

Suspended

Solids

AWQIvIN

or

IBS/FRSS

Water

Total

suspended

solids

exceed

116

mg/L

in

at

least

one

sample

-

Statistical

Guideline

-

1

-

2200

Excessive

Native

Aquatic

Plants

.AWQMN

or

IBS/FRSS

Water

-

Documented

site-specific

knowledge

-

Narrative

Standard”

-

-

3

2210

Excessive

Algal

Growth

AWQMN

or

IBS/FRSS

Water

Documented

site-specific

knowledge

Narrative

Standard”

3

2500

Turbidity

AWQMN

or

IBS/FRSS

Water

Documented

site-specific

knowledge

Narrative

Standard”

3

2600

-

Exotic

Species

AWQMN

or

IBS/FRSS

-

Plant

Animal

Documented

site-specific

knowledge

-

Documented

site-specific

knowledge

Narrative

Standard”

Recorded

observation

3

-

3000

3100

3200

3300

3400

3500

3600

3700

Pesticides

(half

life

~90

days)

Atrazine

Cyanazine

Alachlor

Metolachlor

Metribuzin

Trifluralin

Butylate

AWQMN

-

-

Water

.

Preliminary

water

chemistry

indicators

for

General

Use

waters

Pesticide

exceeds

chronic

value

in

average

of

three

samples

1.0~tg/L

30

~tg/L

-

-

100

~ig/L

-

130

p.g/L

800

jsg/L

1.0

p.g/L

50

j.tg/L

-

-

Narrative

Standard”

-

-

3

.

JEPA

Confidence

Levels:

3

=

high

confidence,

2

=

moderate

confidence,

1

=

low

confidence

See

Tables

3-1-

and

3-2

-

2

Short

(1997)

8

S~~

percentile

of

statewide

AWQMN

data

for

water

years

1978-1996

“

35

IL.

Adm.

Code

Part

302

(1999)

-

-

Derived

by

procedures

specified

at

35

IL.

Adm.

Code

302.627

(1990).

These

values

have

not

been

peer-reviewed.

-3~-

-

----

-

~----~---~

---

Exhibit

2

---

Illinois

Environmental

Protection Agency

IUDA

IflCWJIflAMfl,c

Illinois Water Quality Report

-

Bureau of Water

Bureau

ofWater

P.O. Box 19276

Springfield, IL 62794-9276

May 2004

---

-

Overview

This 2004 Illinois Water Quality Report was prepared by the Illinois Environmental Protection

Agency (Illinois EPA) to satisfy reporting requirements in Section 305(b) ofthe federal Clean

Water Act. This report provides an assessment ofthe quality ofthe state’s surface and

groundwater resources. An electronic copy ofthis report, the Illinois Water Quality Mapping

Tool, and

additional

related

information are available on the Illinois EPA website,

http://www.epa.state.il.us/water/water-quality/index.html.

The 305(b) Process

According to Section

305(b)

ofthe “Clean

Water

Act” (a generic name that refers collectively to

the Federal Water

Pollution

Control Act of 1972,

the Clean WaterAct of

1977, and subsequent

amendments) and guidance provided by the United States Environmental Protection Agency

(U.S.

EPA), each state must report to the U.S. Congress and the U.S. EPA on the quality ofthe

surface and groundwater resources ofthe state. Every other year, this report, commonly referred

to as the “305(b) report,” must be provided in written form, whereas, in alternate years each state

may submit an electronic database to meet the reporting requirement.

In

the 305(b). report, states

must also explain how they determined the resource quality

ofthe waters of the state in terms of -

the degree to Which predefmed beneficial uses (i.e., designated uses) ofthose waters are attained

(i.e., supported). Also in the 305(b) report, when any designated use for any waterbody is not

filly supported

(i.e., impaired), the state must report potential reasons (causes

and sources) for

the impairment. Herein, we explain how Illinois EPA determines the quality ofIllinois streams

and

rivers (hereafter referred to as “streams”) inland lakes, Lake Michigan basin waters, and

groundwaters. For impaired waters, we also explain how we determine the potential causes and

sources ofthe resource impairment.

-

Since water-resource data taketime to gather and process, each 305(b) report reflects up to a

two-year data lag.

In general, in this 2004 report, only surface-water bodies for

which new

information became available since the last report (i.e., 2002 report, based mostly on data

through September 2000) were assessed. Surface-water assessments in this 2004 report are

based primarily

on biological, water, sediment, physical-habitat,

and fish-tissue information

collected through 2002 (some in 2003) via various monitoring programs (IEPA 2002). These

programs include: the Ambient Water Quality Monitoring Network (AWQMN), Intensive Basin

Surveys (IBS), Facility-Related Stream Surveys

(FRSS), the

Ambient Lake Monitoring Program

(ALMP), the Illinois

Clean Lakes Monitoring Program (ICLP), the Volunteer Lake Monitoring

Program

(VLMP), and

the

Lake Michigan Monitoring Program (LMMP). Similarly, chemical

and biological data-were

collected on groundwater resources

throughout the stateto detect

impairments. Groundwater-quality monitoring programs include the Ambient Network of

Community

Water Supply Wells (CWS Network), Pesticide

Monitoring Subnetwork ofthe CWS

Network, Rotating Monitoring Network, and

Dedicated

Pesticide Monitoring Well Network.

---

Codes ofDesignated Uses, for

streams:

20

Aquatic

Life

21

=

Fix/i Consumption

42

=

Primary Contact

(Swimming)

46

=

indigenous Aquatic Life

-

50

=

Public Water

Supply

8) Use Support

---

The level to which

the designated use is attained.

F

= Full support (i.e., fully attained)

P

= Partial support (i.e., partially attained)

N = Nonsupport (i.e., not attained)

X = not assessed

9) Cause Code --Code that identifies each potential cause ofimpainnent.

10) Cause Name —Name of each potential cause of impairment.

I

(See tables 3-7, 3-10, 3-12, 3-14, and 3-16 for additional information)

C’ause

.

Code

-

Cause Name

Cause

Code

Cause Name

0000

Cause

Unknown

1710

Total Fecal Coliform Bacteria

Fish Kill

-

Oil and grease

0300

Unspecified

Priority

Organics

1730

0400

Unspecified Non-priority organics

1900

0410

Polychlorinated biphenyls (PCBs)

2100

Total Suspended Solids

0500

Unspecified Metals

2200

Aquatic Plants Native

0510

Arsenic

—

2210

ExcessAlgal Growth

-

-

0520

Cadmium

2620

Non-Native Animals (mci. fish, invertebrates)

0530

Copper

3100

Atrazine

0550

Lead

9312

Aidrin 9000

0560

Mercury

9313

alpha-BHC 9000

0580

Zinc

9318

Chlordane

9000

-

0593

Boron

9322

DDT900()

0594

Iron

9326

Dicldrin9000

0595

Manganese

9330

Endrin 9000

0596

Nickel

9334

Hepiachlor

0597

Silver

9336

Hexachlorobcnicne 9000

—

I.indane

9000

Methoxychlor

9000

-

Polychlorinated biphcnyls (PCBs)

9000

0600

Ammonia(Unionized)

9338

-

0610

Nitrogen, ammonia (Total)

9339

0700

Chlorine

9410

0751)

Sulfates

9510

Arsenic

9000

0800

Fluoride

9520

Cadmium 9000

0900

Unspecified Nutrients

9530

Copper 9000

0925

Total Nitrogen as N

9541

Chromium

(total) 9000

0930

Nitrogen.

Nitrate

Lead 9000

1000

nI-I

9560

Mercury9001)

-

-

100

Sedimentation/Siltation

9580

Zinc

900()

220

Oxygen, Dissolved

9591

Barium 9000

1300

Salinity/TDS/chlorides

9594

ron 9000

1320

Total Dissolved Solids

9595

Manganese 9000

1330

Chlorides

—

9596

Nickel 9000

1500

Other Flow Alterations

9597

Silver 9000

1510

Fish Barriers

9910

Total Phosphorus 9000

1610

Physical-Habitat Alterations

-

Page 9of 10

---

ii) Source

Code

—

Code that identifies each potential source of

impairment.

12)

Source Name

—

Name of each potential source of impairment.

(See table 3-8 for additional information)

Source

Code

-

Source Name

Source

Code

Source Name

0100

Industrial Point Sources

6000

Land Disposal

0200

Municipal Point Sources

6300

Landfills

0210

Major Municipal Point Source

6400

Industrial Land Treatment

0214

Major Municipal Point Sources-

wet

weather discharges

7000

Hydromodification

0400

Combined Sewer Overflow

7100

Channelization

0500

Collection System Failure

7200

Dredging

0800

Wildcat Sewer

7300

Dam Construction

1000

Agriculture

-

7350

Upstream Impoundment

1050

Crop-related Sources

7400

Flow Regulation/Modification

1100

Non-irrigated Crop Production

7550

Habitat Modification (other than

Hydromodi fication)

1200

Irrigated Crop Production

7600

Removal of Riparian Vegetation

1350

Grazing related Sources

7700

Bank or Shoreline

Modification/Destabilization

1400

Pasture grazing

-

Riparian and/or

Upland

7800

Drainage/Filling Of Wetlands

1600

1800

Intensive Animal Feeding

Operations

—

8100

Atmospheric Deposition

-

Off-fanut Animal

Holding/Management Area

8300

Highway Maintenance and Runoff

-

3000

Construction

8400

Spills

3100

Highway/Road/Bridge

Construction

8500 Contaminated Sediments

-

3200

Land Development

8600

Natural Sources

4000

urban Runoff/Storm

Sewers

8700

Recreation and Tourism Activities

5000

Resource Extraction

8710- Golf courses

-

5100

Surt~sceMining

-

8950

Other

5200

Subsurface Mining

.

8960

Forest/Grassland/Parkland

5500

Petroleum Activities

9000

Source Unknown

-

5700

Mine Tailings

5800

Acid Mine Drainage

5900

Abandoned mining

Page 10 of 10

---

~•

Map Output

Page 1

of I

Information and data presented were obtainedfrom various Federal, State, and local agencies and are

subjectto revision.

http://maps.epa.state.il.us/servlet/com.esri.esrimap.Esrimap?ServiceName=counties&Client... 6/4/2005

---

CERTIFICATE OF SERVICE

-

I, Albert F. Ettinger,

certify

that on June 8,

2005,

I filed

the attached PETITIONERS’ REPLY

MEMORANDUM N SUPPORT OF SUMMARY JUDGMENT and PETITIONERS’ REPLY

REGARDING RELEVANT FACTS IN THE AGENCY RECORD. An original and 9 copies

was filed, on

recycled paper, with the Illinois Pollution Control Board, James R. Thompson

Center, 100 West Randolph, Suite 11-500,

Chicago, IL 60601, and

copies were served

via

United States Mail to those individuals on the included service list.

-

Albert

F. Ettinger (Reg o. 3125045)

Counsel for Des Plaines River Watershed Alliance, Livable

Communities Alliance, Prairie Rivers Network and Sierra

Club

DATED: June 7, 2005

Environmental Law and Policy Center

35E. Wacker Drive, Suite 1300

Chicago, Illinois 60601

312-795-3707

---

SERVICE LIST

Bradley P. 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 Drivc, Suite 3700

Chicago, IL 60606-1698

SanjayK.Sofat

-

Illinois Environmental Protection Agency

-

1021 N. Grand Avenue East, Mail Code #21

Springfield, IL 62794-9276