ILLINOIS POLLUTION CONTROL BOARD
March 2, 2006
WESLEY BRAZAS, JR.,
Petitioner,
v.
MR. JEFF MAGNUSSEN, president,
VILLAGE OF HAMPSHIRE, and the
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondents.
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PCB 06-131
(Third-Party NPDES Permit
Appeal – Water)
ORDER OF THE BOARD (by N.J. Melas):
On January 13, 2006, Mr. Wesley Brazas, Jr. filed a petition asking the Board to review a
December 9, 2005 determination of the Illinois Environmental Protection Agency (Agency).
See
415 ILCS 5/40(a)(1) (2000); 35 Ill. Adm. Code 105.206(a). On December 9, 2005, the Agency
issued a National Pollutant Discharge Elimination System (NPDES) permit No. IL 0020281 to
the Village of Hampshire for its wastewater treatment plant in Kane County. Mr. Brazas appeals
on the grounds that the permit is “not sufficiently protective of the environment and not in accord
with the law.” Pet. at 8. On February 2, 2006, the Board found the petition deficient and
requested more information from the petitioner before the Board could accept the matter for
hearing. Today the Board dismisses the allegations of air and water pollution and accepts the
remainder of Mr. Brazas amended petition that concerns the December 9, 2005 NPDES permit
for hearing.
The Agency modified the Village of Hampshire’s NPDES permit to allow an increase in
the facility’s design average flow and design maximum flow as a result of a plant expansion.
The modification keeps the concentration limits and load limits at their current levels. Mr.
Brazas appeals on the grounds that: (1) the issued permit violates public notice requirements; (2)
the Agency and the Village of Hampshire failed to perform a study assuring that the increase in
discharge will not cause a violation of any other applicable water quality standard as required by
Special Condition 5; (3) the permit fails to require monitoring of radium in the effluent in
violation of Special Condition 9; and (4) the modified permit “unnecessarily jeopardizes the
water quality of Hampshire Creek.”
THIRD-PARTY APPEAL
Section 40(e)(1) of the Environmental Protection Act (Act) (415 ILCS 5/40(e)(1) (2004))
allows certain third parties to appeal Agency determinations to grant NPDES permits. The third
party’s petition to the Board must contain:
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a demonstration that the petitioner raised the issues contained within the petition
during the public notice period or during the public hearing on the NPDES permit
application, if a public hearing was held; and
a demonstration that the petitioner is so situated as to be affected by the
permitted facility. 415 ILCS 5/40(e)(2) (2000);
see also
35 Ill. Adm. Code
105.210(d).
The petition also must, among other things, specify the grounds for appeal and include a copy of
the issued permit. 35 Ill. Adm. Code 105.210(a), (c). The third party must file the petition
within 35 days after the “date of issuance of the Agency’s decision.” 415 ILCS 5/40(e)(1)
(2004);
see also
35 Ill. Adm. Code 105.206(b). If the Board determines that the third party’s
petition for review is not “[duplicative] or frivolous,” the Board will hear the petition. 415 ILCS
5/40(e)(3) (2004);
see also
35 Ill. Adm. Code 105.214(d).
On February 21, 2006, Mr. Brazas filed an amended petition for review, accompanied by
the NPDES permit and certificate of service. Mr. Brazas’s petition states that, during the
Agency’s public notice period on the Village of Hampshire’s NPDES permit application, Mr.
Brazas raised the issues on which he now appeals. Mr. Brazas’s petition also states that he is so
situated as to be affected by the permitted facility. The petition meets the content requirements
of 35 Ill. Adm. Code 105.210. The certificate of service also demonstrates that Mr. Brazas filed
its petition within 35 days after the Agency issued its determination.
An action before the Board is duplicitous if it is “identical or substantially similar to one
brought before the Board or another forum.” 35 Ill. Adm. Code 101.202. An action before the
Board is frivolous if it is “a request for relief that the Board does not have the authority to grant”
or “fails to state a cause of action upon which the Board can grant relief.”
Id.
The Board finds that all claims other than those that concern the Agency’s issuance of the
December 9, 2005 NPDES permit to the Village of Hampshire are frivolous, and dismisses those
claims. The Board accepts the remainder of Mr. Brazas’s petition for hearing.
HEARING AND DECISION DEADLINE
Mr. Brazas has the burden of proof. 415 ILCS 5/40(a)(1) (2004);
see also
35 Ill. Adm.
Code 105.112(a). Hearings “will be based exclusively on the record before the Agency at the
time the permit or decision was issued.” 35 Ill. Adm. Code 105.214(a). Hearings will be
scheduled and completed in a timely manner, consistent with the decision deadline (
see
415
ILCS 5/40(a)(2) (2004)), which only Mr. Brazas may extend by waiver (
see
35 Ill. Adm. Code
101.308). If the Board fails to take final action by the decision deadline, Mr. Brazas “shall be
entitled to an Appellate Court order pursuant to subsection (d) of Section 41 of this Act [415
ILCS 5/41(d) (2004)].” Currently, the decision deadline is May 13, 2006, the 120th day after
January 13, 2006.
See
35 Ill. Adm. Code 105.114. The Board meeting immediately before the
decision deadline is scheduled for May 4, 2006.
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Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
record of its determination by March 22, 2006, which is 20 days from the date of this order. 35
Ill. Adm. Code 105.116, 105.212(a). If the Agency wishes to seek additional time to file the
record, it must file a request for extension before the date on which the record is due to be filed.
35 Ill. Adm. Code 105.116. The record must comply with the content requirements of 35 Ill.
Adm. Code 105.212(b).
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on March 2, 2006, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
