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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WESLEY BRAZAS, JR.,
)
PCB No. 06-131
)
Petitioner,
)
)
Appeal from IEPA decision
vs.
)
granting modified NPDES Permit
)
JEFFREY R. MAGNUSSEN,
)
PRESIDENT, VILLAGE OF
)
HAMPSHIRE, AND THE
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondents.
)
______________________________________________________________________________
BRIEF AND ARGUMENT
OF APPELLEE JEFFREY R. MAGNUSSEN / VILLAGE OF HAMPSHIRE
ON REVIEW OF DECISION OF THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY TO ISSUE TO THE VILLAGE OF HAMPSHIRE
A MODIFIED NPDES PERMIT
______________________________________________________________________________
Mark Schuster #2519089
Schnell, Bazos, Freeman, Kramer, Schuster & Vanek
Attorneys for Appellee Jeffrey R. Magnussen / Village of Hampshire
1250 Larkin Avenue #100
Elgin, IL 60123
847-742-8800
mschuster@sbfklaw.com
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 5, 2006
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ISSUE PRESENTED
Whether -- in a case where the receiving stream had been listed on the Section 303(d) list
of impaired waters -- the Illinois Environmental Protection Agency violated the public notice
requirements for issuance of a Modified NPDES Permit for the Village of Hampshire (No. IL
0020281 – Kane County) when (in the Fact Sheet published in support of the Draft Permit) IEPA
identified a specific formula for calculation of pollutant load limits,
1
and then in the Final Permit
established an absolute load limit for such pollutants without utilizing the formula.
1
DAF or DMF x Concentration x 8.34 = Limit
(i.e., Design Average Flow and/or Design Maximum Flow in MGD) x (Applicable Concentration in mg/L)
x 8.34 (conversion factor ) = load limit)
ARGUMENT
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BECAUSE THE RECEIVING STREAM IS LISTED ON THE SECTION
303(d) LIST OF IMPAIRED WATERS, IEPA PROPERLY ASSIGNED AN
ABSOLUTE LIMIT TO LOADING FOR POLLUTANTS IN THIS CASE
IEPA properly set the load limit for various potential pollutants in the Village of
Hampshire Modified NPDES Permit in this case. Because the receiving stream (Hampshire
Creek) has been listed on the Section 303(d) list of impaired waters of the State of Illinois, IEPA
is prohibited under the Clean Water Act from allowing any more loading of such any pollutant in
the stream. Under these circumstances, IEPA correctly set an absolute load limit for such
pollutants in Hampshire Creek at a certain limit of pounds per day. The action of the
Environmental Protection Agency in this case must be upheld.
Background Facts
The Village of Hampshire operates a wastewater treatment facility of 0.75 mgd capacity
and discharges the effluent from the facility into Hampshire Creek. In 2004, Hampshire Creek
was listed on the Section 303(d) list of impaired waters of the State of Illinois. The principal
source of pollutants was identified in the listing as the Village’s wastewater treatment facility.
In 2004, the Village applied for modification of its NPDES permit to allow for an
expansion of the capacity of the WWTF from 0.75 mgd capacity to 1.5 mgd capacity. In July,
2005, IEPA published a Draft Permit together with the required Fact Sheet supporting same.
The Draft permit identified a load limit for CBOD
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at 63 lbs/day; for TSS at 75 lbs/day; for
phosphorus at 13 lbs./day; and for ammonia at a varying standard depending upon the time of
year.
The Fact Sheet accompanying the Draft Permit also stated as follows:
* Load limits are calculated by using the formula:
8.34 x (Design Average and/or Maximum Flow in MGD)
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x (Applicable Concentration in mg/L)
The Fact Sheet also stated the following:
Section 303 (d) listed impacts, as well as concerns for continued degradation of
the receiving stream, led to restrictions on pollutant loading for the expanded (1.5
MGD) plant. Further increases in BOD and TSS loading are not allowed due to
the documented dissolved oxygen problems in Hampshire Creek. The permit for
the expanded plant must therefore allow no increase in loading from previously
permitted levels.
This will result in correspondingly lower effluent
concentrations of BOD and TSS. Similarly, because ammonia was also listed as a
cause of impairment, no loading increase may be allowed for this substance and
likewise, lower effluent concentrations will result. The result will be a very high
quality effluent that will bring about positive changes in both the biological and
chemical condition of Hampshire Creek.
Public comment on the draft permit was accepted by IEPA, in accordance with the
requirements for permit consideration and issuance as stated in the Illinois Administrative Code.
Wesley J. Brazas, Jr. filed with IEPA a letter dated July 11, 2005 during this public comment
period. In this letter, Mr. Brazas raised no issue concerning the published notice of conditions to
be included in the NPDES permit.
After much consideration of the matter, IEPA at length determined that no public hearing
was warranted in the matter of this application. However, before issuance of the permit, a public
meeting was arranged for and conducted in the Village of Hampshire, after notice to all persons
who had submitted written comment. The purpose of the public meeting was to address
comment that had been filed within the initial public comment period, and to further consider the
the plan for expansion; to identify issues pertinent to the modification of the permit; and to note
all other non-relevant issues raised during the public comment period.
Following this public meeting, additional public comment was submitted by Mr. Brazas
in a letter dated October 11, 2005 (R. 320). In this letter, Mr. Brazas wrote, in a paragraph titled,
“Errors by IEPA in setting effluent discharge limits”:
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Proposed concentration limits must be cut in half to correspond to
required mass limits.
…40 CFR 122.45(b) requires pollution control concentrations to be
calculated based upon design flow, which are typically stated in concentrations of
mg/l. In addition to concentration limits, 40 CFR 122.45 (f)(ii) requires pollutant
limits to be restated as mass-based limits, typically, pounds. The mass-based
limits should be easily calculated by the formula contained on page 3 of the
Public Notice for this permit: Concentration limit mg/l x Design Flow mgd x
8.34 conversion factor = Mass lbs/day.
*
*
*
In my review of the file at the only location I could view it, IEPA’s
Springfield Office, I was surprised a summary of previous actions regarding this
permit was not included. One could not trace the history of permitted discharges
and concentration limits to determine the trend of mass limits going up or down
over the years and correlate these limits with the resulting impacts to the water
quality of the creek.
The final permit was issued December, 2005. The permit set a load limit for CBOD
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at
63 lbs/day, for TSS at 75 lbs/day; and for phosphorus at 13 lbs/day, and for ammonia at a
varying limit in lbs/day (depending upon the time of year), without reference to any particular
formula or calculation.
IEPA also responded to Mr. Brazas in a letter dated December 9, 2005 (R. 545), stating
the following:
Errors in effluent limits proposed by IEPA:
The effluent limits in the Village of Hampshire’s NPDES permit are correct and
the treatment plant will not be allowed to violate the effluent concentration limits
or the load limits stated in their permit. The concentration of a pollutant in the
treatment plant effluent will vary constantly depending on the amount of flow
being discharged and the mass of the pollutant being discharged. Federal
regulations do not require mass limits to convert exactly to concentration limits.
40 CFR 122.45 (f)(2) states: Pollutants limited in terms of mass additionally may
be limited in terms of other units of measurement, and the permit shall require the
permittee to comply with both limitations.
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The applicable effluent concentration limits, as required in 35 Ill. Adm. Code,
Section 104.120, are reflected in the modified permit. The mass effluent load
limits will remain the same as the present 0.75 MGD treatment plant effluent load
limits due to the present listing of Hampshire Creek as an impaired water.
Argument
Mr. Brazas is limited in this appeal to solely one issue. He claims that IEPA acted
erroneously when it stated in the Fact Sheet issued with the Draft Permit that load limits would
be calculated according to a certain formula, and then in the final permit, abandoned that formula
in calculating the load limit for the pollutants listed in the permit. This argument overlooks
several key factors.
First, the draft permit is published for the purpose of inviting public comments on its
issuance and content. Public participation in the permitting process is a key element of the
procedures for such permits. Indeed, Illinois’ first attempt at establishing permitting procedures
was struck down for its failure to include adequate public participation, as required by the Clean
Water Act. Citizens for a Better Environment v. Environmental Protection Agency,
596 F.2d
720 (7
th
Cir. 1079). Adequate and correct public participation occurred in this case. In fact, a
second chance at public comment was extended to interested parties in this case, and it was only
during this second chance opportunity that Mr. Brazas raised the point at issue in this appeal.
Assuming arguendo that Mr. Brazas means to say that the Fact Sheet / Draft Permit gave
notice to the public that pollutant load limits would be assigned in this case only pursuant to a
specific formulaic calculation, the assertion could not be honored. The Draft Permit did not set
forth the wrong standard, or two different standards for pollutant load limits. It set a fixed, mass-
based standard, in light of the fact that the receiving stream has been listed on the Section 303(d)
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list of impaired waters. There was adequate notice of this fact in the Draft Permit. Nothing in
the underlying Fact Sheet changed this notice to the public.
Second, in his appeal, Mr. Brazas overlooks the fact that Hampshire Creek is listed on the
Section 303(d) list of impaired waters of the State. This listing requires that IEPA restrict the
load limit to the existing conditions in the creek. Under such circumstances, the restriction has
nothing to do with any formulaic approach – it is an absolute limit.
The formula identified in the Fact Sheet published with the Draft Permit constitutes only
one means of addressing the pollutant limits for discharge to a receiving stream. Brazas would
have the IEPA go backwards through the formula (from the absolute limit required by the
Section 303(d) listing) to establish a new concentration limit (which is not applicable in this
situation). IEPA is not required to do so. IPEA may use an alternative means of setting the
limit. Where a stream is listed as an impaired water, the requirement is that there may be no
increase in any load limit.
These factors were explained in the record before the Board on this Appeal.
First, the Agency responded directly to Mr. Brazas at a public meeting conducted in the
Village on October 4, 2006. At the meeting, Mr. Alan Keller and Mr. Gary Bingenheimer on
behalf of IEPA told Mr. Brazas “It should be one-half the former discharge, if double the
effluent, to relate to pounds of contaminants.” Mr. Brazas stated, “Why is the draft permit not
accurate in its math?” And Mr. Bingenheimer stated, “It must be both [concentration and
pounds]. R. 446
At the same meeting, another interested party, Ms. Jane Collins, inquired, “If there is to
be ‘no new loading’ and ‘a very high quality effluent,’ how will this occur?” Mr. Keller again
responded, “The permit will require there not be any more pollutants in the receiving stream –
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the limits are what is permitted presently, the limits are the same, the concentration limits are the
same [sic], the pounds limits are the same as in 2001…” R. 447
Second, on December 9, 2005, Mr. Keller specifically advised Mr. Brazas in writing that
the effluent limits in the Village of Hampshire’s NPDES permit were correct. He explained that
IEPA was required to consider the Section 303(d) listing under applicable law and regulations,
and concluded that the Village would not be allowed to operate its treatment plant in a manner
that would violate the effluent concentration limits or the load limits stated in the permit. He
referred Mr. Brazas to the two applicable laws / regulations in question: 40 CFR 122.45 (f)(2)
and 35 Ill. Adm. Code, Section 104.120, which justified the statement of limitations included in
the draft permit.
Last, the record also reflects that IEPA identified the need to preclude the Village from
additional loading in the creek in an Internal Memorandum dated 11-14-05 (R. 508). A revised
version of the Memorandum also appears in the record as an attachment in correspondence
directed to State Senator Christopher Lauzen, in response to his various inquiries concerning
issuance of the modified permit at issue in this case (R. 528). In each document, it is clearly
stated by IEPA that the load limits for the expansion of Hampshire’s wastewater treatment plant
are being held within the current limits and there will be no increase in load limits for the
proposed expansion of the plant’s capacity.
At the hearing held on this Appeal on May 15, 2006, Mr. Brazas neither expanded on nor
brought to light any new points concerning his argument in this case. His testimony and/or oral
argument at the hearing was largely directed to portions of the case which had been stricken. In
short, he complained to the Hearing Officer that the NPDES process utilized by the Illinois
Environmental Protection Agency was not adequate to control growth – and any negative
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environmental impacts which might result therefrom – in the State of Illinois. He concluded,
“The process must change.”
As to the specific issue in this case, concerning concentration limits for pollutants, Mr.
Brazas argued that the draft permit for the Village of Hampshire set limits which in fact exceed
those otherwise allowed by IEPA for discharges into Lake Michigan. “The load limits for the
Village of Hampshire must not exceed the limits allowed for Lake Michigan.” Brazas never
otherwise specifically referred to the allegations of Paragraph 24 of his Amended Complaint in
this case. He never specifically criticized the formula referred to in the Draft Permit or Final
Permit, or objected to the IEPA explanation for setting an absolute limit on the pollutants
identified in the permit.
On the other hand, the allegations in Paragraph 24 of the Amended Complaint in this
case, that the concentration limits set in the draft permit do not fit the formula for calculation of
mass load limits identified in the draft permit, are clearly refuted on the record before the Board.
IEPA has made clear that there are two limits which will apply to the Village of
Hampshire; for example, in regard to CBOD
5
:
a)
a mass loading limit of 63 lbs. per day; and
b)
a concentration limit of 10 mg/l.
The limit of 63 lbs. per day controls. As to the other pollutants addressed in the permit, the
loading limit similarly will control.
Obviously, if or when the design average flow (DAF) or design maximum flow (DMF)
reaches 1.5 mgd, the concentration limit will of necessity be less than 10 mg/l. This will be
required in order to meet the 63 lb. per day load limit. In the meantime, however, before the
treatment facility reaches full flow or capacity, it will not be necessary to have a concentration
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limit of 5 mg/l. Under the formula, and given the limit on loading, the concentration limit under
the formula will vary depending on the flow.
Under the permit, the applicable Federal standards, and Illinois rules, there is no
confusion on this point in the permit issued to the Village of Hamsphire, and the permit should
be upheld.
CONCLUSION
In sum, Mr. Brazas has failed to establish on the record before the Board that any error
occurred when IEPA established a strict loading limitation on the pollutants listed in the final
modified NPDES permit issued to the Village of Hampshire. The issue raised by Mr. Brazas
concerning the load limitation was fully addressed in the process of reviewing the application for
and subsequently issuing the modified NPDES permit. The record makes clear beyond a doubt
that the limit has been properly established.
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For all these reasons, the decision of IEPA to issue the modified NPDES Permit (No. IL
0020281) to the Village of Hampshire must be upheld.
Respectfully submitted,
JEFFREY R. MAGNUSSEN, President, and
VILLAGE OF HAMPSHIRE,
By: ______________________________________
Mark Schuster
Schnell, Bazos, Freeman, Kramer, Schuster
& Vanek
Attorney for the Village
Mark Schuster #2519089
Schnell, Bazos, Freeman, Kramer, Schuster & Vanek
1250 Larkin Avenue #100
Elgin, IL 60123
847-742-8800
847-742-9777 (fx)
mschuster@sbfklaw.com
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 5, 2006