BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Wesley J. Brazas, Jr
.
)
Petitioner
)
v.
)
PCB 06-131
Mr. Jeff Magnussen, President
)
(Appeal from IEPA decision
Village of Hampshire
)
granting modified NPDES permit)
and the
)
Illinois Environmental Protection Agency
)
Respondents
)
TO :
Mr. Mark Schuster
Schnell, Bazos, Freeman, Kramer, Schuster & Vanek
1250 Larkin Ave., Suite 100
Elgin, IL 60123
Mr. James Day
Division of Legal Counsel
Illinois Protection Agency
1021 North Grand Avenue East
Springfield, IL 62794-9276
Subscribed and Sworn to me this
(~
day of
U G
Zoo
6
Notary Public
"OFFICIAL SEAL"
WANDA GEANES
Notary Public, State of Illinois
M Commr.ion Ex ires June 10, 2006
RECEIVED
NOTICE OF FILING
CLERK'S OFFICE
JUN 0 6 2006
Pollution
OF
Control Board
PLEASE TAKE NOTICE that on June 6, 2006, I filed with the Clerk of the Office of the
Pollution Control Board, and original and nine (9) copies of Petitioner's Memorandum ofLaw in
Support
of
Petition for Review
of
a Decision
by
the Illinois Environmental Protection Agency, a
copy of which is attached hereto and hereby served upon you
.
L
A
11%-A a s
*.~
s, Jr.,P
PROOF OF SERVIC
I, the undersigned, on oath state that I have served on the date of June 6, 2006, the
attached Petitioner's Memorandum
of
law in Support
of
Petition for Review
of
a Decision
by
the
Illinois Environmental Protection Agency upon each person/agency to whom it is directed by
placing a copy of same into an envelope correctly addressed as aforesaid and bearig sufficient
first class postage prepaid, and despositing same with the United States Post Office before 5 :00
p.m. on June 6, 2006.
Jr .
PETITIONER'S MEMORANDUM OF LAW IN SUPPORT OF
PETITION FOR REVIEW OF A DECISION BY THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
NOW COMES THE PETITIONER, Wesley J . Brazas, Jr., and as for his Memorandum ofLaw in
Support ofPetition for Review of a Decision by the Illinois Environmental Protection Agency,
argues as follows :
NATURE OF THE CASE
This matter comes before the Board on the IEPA's December 9, 2005 modification of
NPDES Permit No. IL 0020281 to permit the Village of Hampshire to more than double the
discharge of its wastewater treatment plant to 1,500,000 gpd (DAF) / 4,170,000 gpd (DMF) into
the Section 303(d) listed Hampshire Creek from the currently permitted 750,000 gpd (DAF) /
1,880,000 gpd (DMF) issued on July 21, 2004 . Petitioner argues that said modified permit was
not issued in compliance with the IEPA's statutory duty to protect the environment and asks that
the Illinois Pollution Control Board set aside said modified permit and remand to the Illinois
Environmental Protection Agency for issuance of a permit denial letter .
STATEMENT OF FACTS
Page 1 of 9
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Wesley J. Brazas, Jr.
)
RECEIVED
CLERK'S OFFICE
Petitioner
)
JUN 0 6 2006
V
.
)
PCB 06-131
STATE OF ILLINOIS
Mr. Jeff Magnussen, President
)
Pollution Control Board
(Appeal from IEPA decision
Village of Hampshire
)
granting modified NPDES permit)
and the
)
Illinois Environmental Protection Agency
)'
Respondents
)
The Village of Hampshire is a small farming community located in northwest Kane
County and is wholly located within the Chicago Ozone Non-attainment area . The Village has
grown over the years requiring an increase in wastewater treatment plant (WWTP) capacity from
136,000 gpd (DAF) in 1956 to 456,000 gpd (DAF) in 1979 .' The historical trend of increases in
wastewater treatment plant discharges is shown in the graph below :
Hampshire WWTP Discharges
Page 2 of 9
Year
Historical DAF Historical DMF - -
Projected DAF -Projected DMF
In 2004, the Village of Hampshire adopted a comprehensive land use plan which calls for
the conversion of over 15,000 acres of agricultural farmland into non-farmland uses, such as
housing, condominiums and parking lots, with a corresponding explosion in population from the
current 3,805" to an estimated 28,275 by 2023 - far in excess of the NIPC 2020 estimate of
5,143 .
Prior to adopting the 2004 Comprehensive Plan, the Village of Hampshire failed to
perform an environmental impact study to quantify the environmental impacts of such a large
conversion of farmland to rooftops will have on air quality, water quality, groundwater quality
and flooding .
To
support
this
explosion
in
population, Hampshire
has been
piecemealing
the
exponential increase of the discharge of its wastewater treatment plant by nearly doubling the
1979 discharge to 750,000 gpd (DAF) / 1,880,000 gpd (DMF) in 2004 ; then less than 17 months
later, again doubling the discharge to 1,500,000 gpd (DAF) / 4,170,000 gpd (DMF) ; and,
approximately a year later, will nearly double the discharge with a proposed increase to
approximately 2,760,000 gpd (DAF) and 7,700,000 gpd (DMF) pending for 2006
.
However, while planning for exponentially increasing wastewater treatment plant
capacity, Hampshire has failed to plan for the water supply to flush the tens of thousands of new
toilets."' One of the sources of water supply Hampshire still continues to study is the shallow
Bloomington Aquifer."
But while continuing to study the shallow Bloomington Aquifer,
Hampshire has already changed the land use over the most sensitive aquifer recharge area from
agricultural to condominiums and parking lots
without a determination of the aquifer
degradation such a change in land use will cause ."
The outfall for Hampshire's WWTP is Hampshire Creek with a 7Q10 flow value of zero .
Under the existing policies, procedures and enforcement mechanisms of the IEPA, the water
quality of Hampshire Creek has been on a precipitous decline, causing Hampshire Creek to be
listed by the IEPA in 2004 as a 303(d) listed stream.` Although a TMDL study has not been
preformed on Hampshire Creek, one of the suspected sources of impairment is the effluent from
Hampshire's WWTP .
ISSUES PRESENTED FOR REVIEW
I
IS THE IEPA's ACTION IN ISSUING THIS MODIFIED NPDES PERMIT IN
ACCORDANCE WITH THE CLEAN AIR ACT?
Page 3 of 9
"The General Assembly finds that pollution of the air of this State constitutes a menace to public
health and welfare, creates public nuisances, adds to cleaning costs, accelerates the
deterioration of materials, adversely affects agriculture, business, industry, recreation, climate,
and visibility, depresses property values and offends the senses
. "
-Environmental Protection Act, 415 ILCS 5/8
The cause and effect relationship from the conversion of farmland into rooftops into
increased motor vehicle emissions into unhealthful air is well settled . To illustrate how difficult
it is to clean up our air once it is polluted, in the ten year period from 1994 to 2003, ozone
pollution has shown only a 2% decrease ." The Chicago Area Transportation Study (CATS) is
responsible for the preparation of the Regional Transportation Plan (RTP) and corresponding
Transportation Implementation Plans (TIPs) which are used to program and prioritize
transportation projects to improve air quality by, for example, relieving congestion on roadways
which are designed to reduce the duration motor vehicles are emitting pollutants . The TIP is
based upon NIPC population and employment projections which are used in computer modeling
to determine Motor Vehicle Emission Budgets (MVEBs) . If a municipality grossly exceeds the
population budget used in the TIP, the TIP will underestimate the motor vehicle emissions
generated by that municipality and air quality for the Chicago region will not improve as the
model forecasts and can even backslide. Today, the Chicago region appears to be backsliding in
air quality since last year (2005) there were 15 days exceeding the Ozone NAAQS as compared
to 10 days in 2003, a 50% increase in NAAQS violations in two years.""'
IEPA's statutory duty to protect the air we breathe is found at 415 ILCS 5/9 which states
:
"No person shall
:
(a)
Cause or threaten or allow the discharge or emission of any
contaminant into the environment in any State so as to cause or tend to
cause air pollution in Illinois, either alone or in combination with
contaminants from other sources, or so as to violate regulations or
standards adopted by the Board under this Act;"
Page 4 of 9
The IEPA is a "person" as defined by 415 ILCS 5/3 .315'", and therefore, when making NPDES
permitting decisions, the IEPA must affirmatively determine that the increase in population
necessitating an increase in WWTP discharge is within the population projections used in the
current approved TIP, or in the alternative, the IEPA must independently determine the motor
vehicle emissions and other emissions generated by the conversion of farmland into rooftops in
order for the TIP to remain valid
.
Unfortunately, in the case at bar, the IEPA has done neither . The NIPC 2020 population
projection for the Village of Hampshire is 5,143 ." Using a standard rule of thumb of I person, or
population equivalent (P.E.) will discharge 100 gallons of wastewater per day", Hampshire's
proposed WWTP discharge of 1,500,000 gpd would support a population increase to
approximately 13,500 (@ 90% WWTP capacity), or more than 2 '/z times the NIPC 2020
estimate .
Even the prior permitted discharge of 750,000 gpd would support a population of
approximately 6,700 (@ 90% W WTP capacity), or 30% more than the NIPC 2020 estimate
.
Throughout these proceedings before the Board, the IEPA's position on the issue of degradation
to air quality caused by the increase in motor vehicle emissions caused by the conversion of
farmland into rooftops has been "it is not a factor in the issuance of an NPDES permit .""
Therefore, for IEPA's failure to demonstrate the increase in Hampshire's population to 2
'/2
times the NIPC 2020 estimate conforms to the MVEB established in the current SIP and will
not delay nor backslide in the attainment of the NAAQS for the Chicago ozone non-attainment
area, said modified permit was not issued in compliance with the IEPA's statutory duty to protect
the air quality of Illinois and asks that the Illinois Pollution Control Board set aside said modified
permit and remand to the Illinois Environmental Protection Agency for issuance of a permit
denial letter
.
Page 5 of 9
II
IS THE IEPA's ACTION IN ISSUING THIS MODIFIED NPDES PERMIT IN
ACCORDANCE WITH THE ILLINOIS GROUNDWATER PROTECTIONACT?
"[IJt is the policy of the State of Illinois to restore, protect, and enhance the groundwaters of the
State, as a natural and public resource. The State recognizes the essential and pervasive role of
groundwater in the social and economic well-being of the people of Illinois, and its vital
importance to the general health, safety, and welfare . It is further recognized as consistent with
this policy that the groundwater resources of the State be utilized for beneficial and legitimate
purposes; that waste and degradation
of
the resources be prevented; and that the underground
water resource be managed to allow, for the maximum benefit of the people of the State
of
Illinois. "
-
Illinois Groundwater Protection Act, 415 ILCS 55/2 .(b)
Today, it is gross negligence to issue a permit to increase the discharge of a wastewater
treatment plant, when, as in the case at bar, the municipality has not identified the source of
municipal water supply needed to supply the households generating the wastewater to be treated
at the expanded wastewater treatment plant. The IEPA has not learned the lessons of the crisis
caused by the overmining and degradation of the deep aquifer system due to the uncontrolled
expansion of the northwest suburbs . That crisis was "solved" by the construction of tens of
millions of dollars of very large watermains and pumping stations capable of delivering over
60,000,000 gallons per day of Lake Michigan water to the water starved suburbs
.
Today, as the next ring collar suburbs currently dependent on the deep aquifer system for
municipal water supply rush to "grow", regional planning agencies, such as NIPC, warn of a
looming second crisis of overmining and degradation of the deep aquifer system. However, the
prior "solution" of substituting Lake Michigan water for deep aquifer water is not available for
this second crisis as the allowable Lake Michigan withdrawals have been fully allocated for
years .
Page 6 of 9
The Village of Hampshire freely admits they have not identified the source of municipal
water supply needed to supply the households generating the wastewater to be treated at the
expanded wastewater treatment plant permitted by this modified NPDES permit . The Village of
Hampshire states it is studying the possibility of utilizing the shallow Bloomington Aquifer as a
municipal water source, but unwisely has changed the land use over the most sensitive aquifer
recharge areas to permit the construction of condominiums and parking lots
without completing
the study Hampshire states is in progress to determine if such a change in land use will
adversely impact the aquifer yield and water quality!
Therefore, for the failure of the IEPA to identify a sustainable source of municipal water
supply needed to supply the households generating the wastewater to be treated at the expanded
wastewater treatment plant permitted by this permit, said modified permit was not issued in
compliance with the ]EPA's statutory duty to protect the groundwater resources of Illinois and
asks that the Illinois Pollution Control Board set aside said modified permit and remand to the
Illinois Environmental Protection Agency for issuance of a permit denial letter
.
III
IS THE IEPA's ACTIONIN ISSUING THIS MODIFIED NPDES PERMIT IN
ACCORDANCE WITH THE REQUIREMENTS OF THE NPDES PROGRAM?
The cause and effect relationship from the conversion of farmland into rooftops into
increased point source pollution, such as the outfall of a wastewater treatment plant, and non-
point source pollution, such as, multiple stormwater detention basin outfalls, is well settled . A
review of the criteria pollutants of concern for 303(d) listed streams, such as, the Du Page River,
lists non-point source pollutants, such as, road salt, as exceeding the TMDL permitted for this
stream. Thus, when the IEPA evaluates a request for an increase in wastewater treatment plant
Page 7 of 9
capacity caused by the conversion of farmland into non-farm uses, it is incumbent upon the IEPA
to perform a TMDL study which includes all of the non-point source pollutants to certify that
non-point source pollutants will not exceed the TMDL values for the receiving stream
.
In the case at bar, the receiving stream, Hampshire Creek, is already listed as a 303(d) stream
prior to the issuance of this permit, yet the IEPA failed to perform a TMDL study prior to
determining the permitted discharges of pollutants for this permit . In addition, the IEPA only
requires sampling at the outfall of the plant itself, prior to the wastewater being additionally
treated by the proposed wetland prior to discharge into Hampshire Creek .
The Village of Hampshire's proposed wetland can be poorly designed, poorly constructed,
and poorly maintained just as easily as the tanks, clarifiers and digesters of the "mechanical"
components of the wastewater treatment plant . Thus to comply with NPDES requirements, the
IEPA must require sampling
at the point of the wetlands discharging into Hampshire Creek
to
ensure the wetland has been designed, constructed, operated and maintained in accordance with
the permitted discharges of pollutants
.
Therefore, for the failure of the IEPA to require sampling of the effluent after being treated
by the wetland and failure to determine TMDL limits of all point source and non-point source
pollutants prior to determination of the permitted concentration of pollutants allowed by this
permit, said modified permit was not issued in compliance with the IEPA's statutory duty to
protect the groundwater resources of Illinois and asks that the Illinois Pollution Control Board set
aside said modified permit and remand to the Illinois Environmental Protection Agency for
issuance of a permit denial letter
.
CONCLUSION
Page 8 of 9
Therefore, for the reasons stated above, Petitioner has demonstrated IEPA has failed in its
statutory duty to protect the air quality and water quality of the Hampshire area by the issuance
of this modified permit and asks that the Illinois Pollution Control Board set aside said modified
permit and remand to the Illinois Environmental Protection Agency for issuance of a permit
denial letter
.
Respectfully submitted,
Dated: June 6, 2006
lI
See Record, page 433
.
Hampshire's Estimated 2004 population. See Record, page 16
.
"'
"The Agency does not address water supply issues during the approval of an application for an NPDES
permit. The Village of Hampshire has been studying, and continues to study, the availability of adequate water
sources for the Village
.
. ." Record, page 508
.
11
'[Tjhe Village has been actively studying alternatives to its reliance on the deep aquifer system, such as
conducting two studies that have reviewed the possibility of utilizing shallow groundwater supply ." Record, page
377 .
See Record, page 442 for Hampshire's proposed developed land use map and overlay it with the existing
agricultural land use map and aquifer sensitivity shown in Exibits 5 and 6 of the Amended Petition for Review
.
rifdt
J
Wesle,t':j
i
zas, Jr
See Record, page 438, 444
.
See
Illinois Annual Air Quality report
2003, Executive Summary, page ix .
See http://www.epa.state.it.us/air/ozone/exceedances.htm I
415 ILCS 5/3.315 defines a "person" as "any individual, partnership, co-partnership, firm, company,
limited liability company, corporation, association, joint stock company, trust, estate, political subdivision,
state
agency,
or any other legal entity, or their legal representative, agent or assigns ." Emphasis added
.
See NIPC's 2020 regional population projections at http.//www nipc.org/test/revised 2020 table.htm
See Record, page 433 for I P .E. - 100 gpd rule of thumb
.
See Record, page 509
.
Page 9 of 9
