ORIGINAL
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
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JUN
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PCB 06-131
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MR. JEFF MAGNUSSEN, PRESIDENT
)
(Appeal from Illinois EPA
VILLAGE OF HAMPSHIRE
)
decision granting modified
and the
)
NPDES permit)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondents
)
NOTICE OF FILING
To :
Mr. Wesley Brazas, Jr
.
44W331 Big Timber Road
Hampshire, Illinois 60140
James Allen Day, Esq
.
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
PO Box 19276
Springfield, Illinois 62794-9276
Mark Schuster, Esq
.
Schnell, Bazos, Freeman, Kramer, Schuster and Vanek
1250 Larkin Avenue, Suite 100
Elgin, Illinois 60123
Linda Vasquez
Clerk, Village of Hampshire
234 South State Street
Hampshire, Illinois 60140-0457
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk
of
the Pollution
Control Board a Motion for Leave to File an Amicus
Curiae
Brief, and the
Amicuc Curiae
Brief, a
copy of
which is herewith served upon you . Filing and Service upon you was accomplished by
facsimile, by permission of Hearing Officer Bradley Halloran .
June 6, 2006
Jane L. Collins
13610 Kishwaukee Vly. Rd
.
Woodstock, Illinois 60098
Tel. & Fax: (815) 338-8339
ARDC# 6242700
L. Collins, Attorney
for Amicus Curiae
Attorney for Charles St. George
WESLEY BRAZAS, JR .,
)
Petitioner
)
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BEFORE THE ILLINOIS POLLUTION CONTROLBOARD
WESLEY BRAZAS, JR .,
)
RED
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Petitioner
)
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PCB 06-131
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MR. JEFF MAGNUSSEN, PRESIDENT
)
(Appeal from Illinois EPA
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VILLAGEOF HAMPSHIRE
)
decision granting modified
and the
)
NPDES permit)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondents
)
MQTION FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF
IN SUPPORT OF PETITIONER
Now comes Jane L. Collins, Attorney for Amicus Curiae and Counsel to Charles St
.
George. 17N635 Big Timber Road, Hampshire, Illinois 60140, and, pursuant to 35 III . Adm. Code
101 . 110, hereby requests permission from the Illinois Pollution Control Board to file the proposed
Amicus Curiae Brief attached hereto .
Interests of Proposed Amicus
Mr. St. George lives within the Village of Hampshire planning area and is surrounded by
territory annexed to the village- He has demonstrated an abiding interest in the December 9 . 2005
TEPA decision to issue the NPDES subject of this appeal, and attendant environmental issues it
raises. Individually and as represented by counsel, evidence of his and other community residents'
participation. along with Petitioner's, may be found throughout the public record of all
proceedings preceding the December 9 decision, and in the Record submitted by the ]EPA as part
of this proceeding
.
Because Petitioner's appeal has been reduced to one count, excluding all issues raised by
Mr. St. George and others regarding this permit, Mr . St. George believes that an Amicus brief is an
appropriate and reasonable means of trying to keep these issues before the Board . For these are
issues that are capable of repeating themselves in other municipal and governmental settings . They
are too important to dismiss as irrelevant or "novel," as characterized by the IEPA
.
Argument
Mr. St. George believes in plain speaking. And the plain truth here is that citizens who
have taken the time to inform themselves appear to be far more cognizant of what constitutes
environmental protection than State agencies charged with that duty. They understand that
discharging higher volumes of pollutants into a local stream will not make it swimmable, drinkable
or suitable for fishing and that the exponential withdrawal of groundwater and its subsequent
export downstream as treated effluent does not protect local resources. Instead, it degrades the
stream, requires withdrawal of groundwater at unsustainable rates, yet fails to return any of that
water to the local aquifers to maintain their recharge function .
As Hearing Officer Halloran and TEPA Counsel Day noted in the May 15, 2006 hearing on
this matter, the Board and Agency arc creatures of statutes and rules . Unfortunately, these
carefully calibrated environmental regulations do not always serve the public well
.
page one of Motion for Leave
to
File
Dated : June 6. 2006
Respectfully submitted,
e L. Collins
Attorney for
Amicus Curiae
Counsel to Mr. Charles St. George
13610 Kishwaukee Vly. Rd
.
Woodstock, Illinois 60098
(815) 338-8339
ARDC 46242700
I, Jane L. Collins, hereby declare :
I am counsel for Mr. Charles St. George, 17N635 Big Timber Road, Hampshire . Illinois 60140
.
1 submit this Declaration to provide the Board with a copy of the attatched brief I propose to file as
amicus
curiae
on behalf of Mr. St. George in support of Petitioner, Wes Brazas
.
Pursuant to 35 Ill. Adm. Code 101.504 and 735 ILCS 5/1-109, 1 certify under penalty of perjury
that the foregoing is true and correct
.
Executed on June 6, 2006
Conclusion
For the foregoing reasons, 1 respectfully submit that the Board should grant leave and
permit the filing of the proposed brief amicus
curiae .
page nvo
of
Motion for Leave to File
BRIEF OF
AMICUS CURIAE
IN SUPPORT OF PETITIONER'S APPEAL
Jane L. Collins,
Attorney for Amicus Curiae
and Representing Mr. Charles St. George
13610 Kishwaukee Vly. Rd .
Woodstock, Illinois 60098
(815) 338-8339
ARDC #6242700
TABLE OF CONTENTS
Statement of Identity and Interest of
Amicus Curiae
Introductory Statement and Summary of Argument
Argument
I .
The Board regulations governing this proceeding and the IEPA's actions leading to
it have not provided the public adequate due process and meaningful participation .
A .
The Board's May 4, 2006 Order materially prejudiced the public interest in
protecting local water resources
.
B .
The IEPA's failure to provide a public hearing
re
the modified permit in
question deprived community residents of due process rights
.
IL
Board rules and IEPA permitting procedures failed to meet Board rules re
backsliding and antidegradation .
A
.
The permit., as modified, allows backsliding
.
B .
The required antidegradation analysis was either flawed or ignored
.
III .
The modified permit would violate the Clean Water Act, Public Trust Doctrine
and Board rules.
A .
It fails to fulfill the Clean Water Act's prime objective : zero discharge of
pollutants into the waters of the United States .
B
.
It would allow a degradation of resources deemed to be held in
public trust by the State for the benefit of its people
.
C .
It allows the degradation of Hampshire Creek, contrary to Board rules
.
Conclusion
page one of four
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
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WESLEYBRAZAS, JR .,
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Petitioner
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MR. JEFF MAGNUSSEN. PRESIDENT
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PCB o6-131
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(Appeal from Illinois EPA
Sara
VILLAGE OFHAMPSHIRE
)
decision granting modified
and the
)
NPDES permit)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondents
1
TABLE OF AUTHORITIES
Cases
Illinois Central Railroad v. Illinois, 146 U .S. 387 (1892)
Federal Statues
Federal Water Pollution Prevention & Control Act, 33 U .S.C. 1251
et .ceq .
Other
35 111. Adm. Code, sections 101 and 302
I
.
Statement of Identity and Interest of Amicus Curiae
By leave of the Board, with whom a Motion for Leave to File is attached, Attorney Jane L
.
Collins, counsel to Charles St. George. submits this brief amicus curiae in support of the
Petitioner .
Charles St. George lives at 17N635 Big Timber Road, Hampshire, within the Village of
Hampshire's planning area. His property adjoins and is adjacent to territory newly annexed to the
village .
Mr . St. George and his wife, Francis, before her untimely death in 2005, worked with a
group of concerned citizens calling itself Citizens After Responsible Expansion ICARE1 . This
group includes the Petitioner. CARE has been actively engaged in following and publicly
commenting on the major environmental and land use issues affecting community residents
.
The IEPA's Record shows participation in the modified permitting process by Mr
. St .
George, represented by counsel .
Although Mr. St. George chose not to appeal the modified permit in question, he believes
that this matter is of substantial import to all Hampshire community residents . He supports
Petitioner's appeal and wishes to bring arguments to the Board that he believes are germane to and
of material significance in this proceeding
.
II.
Introductory Statement and Summary of Argument
This proceeding involves a challenge to the IEPA's December 9, 2005 decision to issue a
modified NPDES permit increasing the Village of Hampshire's STP/WWTF discharge of treated
wastewater to Hampshire Creek .
The JEPA's refusal to hold a public hearing on the modification deprived interested
residents from the opportunity to cross-examine the Applicant's experts and examine the evidence
supporting the IPEA IAgencyl's decision
.
Absent a record, the Board has relied on what the Agency has chosen to provide it, and has
agreed to narrow Petitioner's appeal to one count, materially prejudicing all members of the public
whose concerns-- while not being represented by Petitioner-- should be made available to him in
his appeal, as they are all to be found in the public record
.
The Agency pledged in its public notice of July 2005 that the modified permit would not
increase the total pollutant load, a pledge flatly contradicted by the permit itself, as Petitioner has
demonstrated in his appeal_
The permit allows backsliding from the Board's more strict antidegradation standards, and
is not supported in the Record by Antidegradation evidence and analyses_
Further, by increasing the total pollutant load discharged into Hampshire Creek, the permit
violates the Clean Water Act's spirit and intended goal of zero discharge . It also represents the
State's abrogation of its public trust duty to protect the public's interest in the State's natural
resources, protecting the integrity and health of streams, the biotic community they should support,
and groundwater drawn from increasingly vulnerable aquifers .
Finally, the increased pollutant discharge viiolates what has come to be regarded as the
page two of four
Board's most significant protection of stream water quality, its antidegradation rules designed to
prevent further deterioration of the State's streams
.
III
Argument
1 .
The Board regulations governing this proceeding and the IEPAs actions leading to
it have not provided the public adequate due process and meaningful public
participation
.
A .
he Board's May 4,2996 Order materiallyor_eiudiced the
uR bli
interest in
o_rstectinglocal water resources .
The Order was issued in response to the (EPA's Motion to Dismiss for Lack of
Jurisdiction, claiming that because Mr. Brazus had not raised all the issues in his appeal during a
public comment period, he should be precluded from having them heard by the Board
.
We note that many community residents raised the same issues found in Petitioner's appeal
in writing and in public forums, so do not agree with the Board's narrow ruling .
Therefore, we have to disagree with the Board's finding that material prejudice would
result from its proceeding to Iconduetl a hearing on issues "not within the Board's jurisdiction ."
The "material prejudice" in Section 101 .506 addresses whether a motion is filed within
prescribed time limits. The IEPA motion was not timely filed .
We believe that it is the public's interest that has been materially prejudiced here, by the
Board's allowing the Agency that practices before it on a regular basis to be excused from the
application of the rules, then to use that untimely motion to exclude matters clearly raised in the
public record preceding the permit's issuance . It is far from evident how the issues excluded from
hearing are "novel" or how the failure to exclude them would materially prejudice Petitioner
or any community residents who support his effort
.
B
The (EPA's failure to provide a uublic hearing re the modified permit in question
deprived community residents of due vrocess rip_hts .
When Hampshire community residents requested a hearing on the permit pursuant to 35
Admin. Code 309.115, the Agency prevaricated. It is evident from the Record that the public
interest ran counter to the ]EPA's wish to just get the permit
` outta here," and to Village
consultants, EEl's wish to get Hampshire Creek off the 303(d) list so they could get more
generous permit terms .
Hampshire residents were offered an October 4, 2005 "informational meeting" under
rules written by the Village and IEPA, with four days' notice to prepare, with no opportunity to
cross-examine, and no answers to the antidegradation and performance questions they asked
.
It is clear from the IEPA Record that residents' concerns were dismissed as the "usual
growth complaints," and that a hearing was to occur -- until the Director of the IEPA convinced
State Senator Chris Iauzen to withdraw his support for a bearing
.
The consequence: community residents were deprived of the opportunity of creating a
record that should be before this Board in this proceeding
.
II .
The modified permitting process failed to meet Board backsliding prohibitions
and antidegradation requirements .
The permit, as modified on December 9, 2006 . allows backslidine. prohibited,
by 11 Admin, Code section 302,
NPDES Permit No. IL 0020281 for 0.75 mgd. was modified on February 20, 2001 . Special
condition 14: "Thirty-six months from the modificaton date of this Permit
[i.e., February 20041 the
following ammonia nitrogen (as N) limits shall become effective " lemphasis added] :
page three of four
Load limits lbs/day
monthly
average
daily m
Concentrations limits mg/I
monthly average
daily max .
Apr-Nov
5.7 (15)
21 (54)
1 .5
5.4
Nov-3-31
6.8 (18)
20 (52)
1 .8
5 .2
These are stricter than limits in the Dec. 9, 2005 permit. This is impermissible backsliding
.
B .
In his October 27, 2004 letter to EEi, Village consultants . Bob Mosher disagrees
that adding more flow to the creek would improve its impaired status- He asks for a new stream
study in 2005 to meet the antidegradation test The IEPA's Record contains no evidence to
confirm or deny that such a study was conducted, what it produced, and if it met the test.
Ill.
Board approval of the modified permit would violate the Clean Water Act, the
Public Trust Doctrine and Board rules .
A.
The permit would be in violation of the Clean Water Act's prime obie Live : the
restoratioj and maintenance of the chemical physical and biological ntegrity .of the Natio's
waters. 33 U.S.C. 1251 et sea .
The village's application states that the creek is included in "waters of the United States."
The village's consultants, Hey and Associates, in a May 2004 study, state that conditions
are very poor for fish and aquatic life at the plant's outfall, the Dissolved Oxygen levels are below
the General Use standard .
It is of concern that when data showing DO levels below stream standards was noted by
Bob Mosher, EEI resubmitted that data, but omitted the date with the low number in that
submission. Record, pp. 116, 285
.
As shown above, the permit would allow increased pollutant loading, further degrading the
stream quality
.
B,
The Dermit would allow a degradation of resources deemed to be held in ub 'c
trust by the State for the benefit of the peovle,
The Public Trust Doctrine, as held in the seminal case, Illinois Central Railroad v . Illinois,
146 U.S. 387 (1892), prohibited the alienation of lands lying beneath navigable waters, such lands
considered a natural resource held in trust for the people by the state . The definition of navigable
waters has been extended to tributaries of navigable waters, so would include Hampshire Creek
.
We believe that the stream and the biotic community it should support are protected by the
Public Trust Doctrine, and that by allowing discharging of additional pollutants into the stream,
the IEAPA's modified permit violates the Doctrine
.
We further believe that the Doctrine could be extended to protect the recharge function of
increasingly vulnerable local aquifers. NPDES permits to discharge into streams instead of
treating to higher standards then reusing that water to recharge aquifers is no longer acceptable
.
C
. The increased Dollutant load allowed by the permit iolates what has come to be
retarded as the Board's most sipniftcant protection of stream water Quality, its artidegradation
rules intended to prevent further deterioration of the State's streams This permit would further
degrade Hampshire Creek
.
CONCLUSION
For the foregoing reasons, we urge this Board to grant Petitioner's Appeal and reconsider
the IEPA's decision to issue the subject modified permit .
June 6, 2006
Respectfully submitted,
Jane L. Collins, Attorne
r Arnicus Curiae and Representing Mr. Charles St. George
13610 Kishwaukee Vly . Rd
.
Woodstock. Illinois 60098
(815)338-8339
ARDC #6242700
page four of four
Jane L. Collins
Attorney at Law
13610 Kishwaukee Vly. Rd
.
Woodstock, Illinois 60098
Telephone & Facsimile: (815) 338-8339
SENT BY FACSIMILE
DATE :
Tuesday, June 6, 2006
TO
:
Clerk of the Illinois Pollution Control Board, 312-814-3669
RE
:
PCB 06-131
Please find the attached documents, filed by facsimile, by permission of Hearing Officer
Brad Halloran
:
Notice of Filing [1 page]
Motion for Leave to File and Amicus Curiae Brief [2 pages]
Amicus Curiae Brief 14 pages]
If there are any problems with this filing, please let me know
.
Thank you
.
8 pages
