DES PLAINES RIVER WATERSHED ALLIANCE,

LIVABLE COMMUNITIES ALLIANCE,

PRAIRIE RIVERS NETWORK, and SIEERA CLUB,

V .

ILLINOIS ENVIRONMENTAL PROTECTION

BEFORE THE ILLINOIS POLLUTION CONTROL, BOARD

Petitioners,

)

AGENCY and VILLAGE OF NEW LENOX,

)

Respondents.

)

NOTICE OF FILING

Dorothy Gunn, Clerk

Albert F

. Ettinger

Illinois Pollution Control Board

Senior Staff Attorney

James R

. Thompson Center, Suite 11-500

Environmental Law & Policy Center

100 West Randolph Street

35 East Wacker Drive, Suite 1300

Chicago, IL 60601

Chicago, IL 60601

Bradley P

. Halloran

Roy M. Harsch

Illinois Pollution Control Board

Gardner Carton & Douglas LLP

James R

. Thompson Center, Suite 11-500 191 N

. Wacker Drive- Suite 3700

100 West Randolph Street

Chicago, Illinois 60606-1698

Chicago, IL 60601

PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of

the Pollution Control Board an original and four (4) copies of the

POST HEARING

BRIEF

of the Illinois Environmental Protection Agency, a copy of which is herewith

served upon you

.

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

By: Y

SanjayK

. Sofat

Assistant Counsel

Dated

: June 30, 2006

Illinois Environmental Protection Agency

1021 North Grand Avenue East

Springfield, Illinois 62794-9276

(217)782-5544

THIS FILING PRINTED ON RECYCLED PAPER

RECEIVED

CLERK'S OFFICE

JUL 0 3 2006

Pollution

STATE OFControl

ILLINOIS

Board

PCB 04-88

(NPDES Permit Appeal)

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

RECEIVED

CLERK'S

OFFICE

JUL

0 3 2006

DES PLAINES RIVER WATERSHED ALLIANCE,

STATE OF

ILLINOIS

)

LIVABLE

COMMUNITIES ALLIANCE,

Pollution Control Board

)

PRAIRIE RIVERS NETWORK, and SIEERA CLUB,

)

Petitioners,

)

v.

)

PCB 04-88

(NPDES Permit Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY and VILLAGE OF NEW LENOX,

)

Respondents.

)

POST HEARING BRIEF IN SUPPORT OF AGECNY'S RESPONSE TO

PETITIONERS' THIRD-PARTY PERMIT APPEAL

NOW COMES the Respondent, Illinois Environmental Protection Agency

("Illinois EPA" or "Agency") by and through its attorney, Sanjay K . Sofat, Assistant

Counsel and Special Assistant Attorney General, pursuant to the Hearing Officer Order

dated June 8, 2006, hereby submits this brief in response to Des Plaines River Watershed

Alliance, Livable Communities Alliance, Prairie Rivers Network, and Sierra Club's

(hereinafter "Petitioners") third party National Pollution Discharge Elimination System

("NPDES") permit appeal .

I. RELEVANT FACTS

Hickory Creek is a general use water

. Agency Record (hereinafter "Record") at

354

. Hickory Creek is a tributary of the Des Plaines River, which flows in Will County

.

Record at 115 .

Hickory Creek has a flow of 2 .4 cubic feet per second ("cfs")

during

1

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critical 7Q10 flow, and is rated a "C" stream under the Agency's Biological Stream

Characterization ("BCS") system . Record at 5 .

According to the Illinois National

Survey publication Biologically Significant Illinois Streams, Hickory Creek does not

support any threatened or endangered species . Id. at 5.

Hickory Creek has fish

populations that are not indicated of low dissolved oxygen concentrations

. Record at

361 .

In clarification of the Petitioners' brief, the Agency's 2002 Illinois 303(d) list did

not list all of Hickory Creek as impaired

. However, 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 life use based primarily on

biological data collected at river mile 10

.6, Marley Road . Record at 5 . The potential

causes of impairment at the time of listing were nutrients, phosphorus, nitrogen,

salinity/TDS/Chlorides, TDS (chlorides), flow alterations, and suspended solids

. The

potential sources associated with the impairment are municipal point sources, combined

sewer overflows, construction, land development, urban runoff/storm sewers,

hydrological/habitat modification, and flow regulation/modification .

Record at 5 . The

inclusion of pH as a potential cause of impairment in the 2002 Illinois 303(d) list was a

mistake

. The pH value that indicated noncompliance with the minimum pH standard of

6

.5 was mistakenly entered into the database as 0.87 instead of 7

.87 .

The Agency conducted a facility related stream survey in 1991 . This facility

related stream survey is not representative of the current stream conditions as the facility

has been expanded since the 1991 survey .

Record at 5 . To obtain more current

information on the conditions of Hickory Creek below the plant's discharge, the

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Agency's requested the Village to perform a macroinvertebrate survey of Hickory Creek

.

The survey performed in August 2002 found pollution intolerant organisms both

upstream and downstream of the existing discharge from the plant

. Record at 5. The

presence of many tolerant species combined with the presence of many intolerant species

generally suggests a balanced healthy assemblage, which is characteristic of high quality

sites.

According to Northeastern Illinois Planning Commission (1981), land use

upstream of Pilcher Park was primarily agricultural

. Downstream land use was

predominately residential and commercial with numerous sewers and combined sewers

overflows ("CSOs") 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

. 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 discharge

. Record at 371 ; 699 .

The record thus shows that existing conditions in Hickory Creek below the plant's

discharge are fully supporting the aquatic life use as diverse organisms were found both

upstream and downstream of the discharge point

. The record also shows that conditions

in Hickory Creek degrade as it approaches the Washington Street USGS station in Joliet

.

The degradation in lower 10

.1 miles is brought about by several sources such as CSOs,

urban runoff, storm sewers, land development and flow alterations

.

Though Petitioners claim that phosphorus values are "high" in Hickory Creek, the

record shows that these values are typical and consistent with values found in other

effluent dominant streams across the State

.

3

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B.

Information In The Record Regarding Hickory Creek and New Lenox

Discharge

Plant-

On June 10, 2002, the Agency received the Village of New Lenox's

("Village") application for expansion of its existing wastewater treatment plant ("plant"

or "STP I") .

The Village's application concerns an existing source that was built in 1973

to treat wastewater

. The Village is requesting expansion of the plant at 301 North Cedar

Road based on projected growth in the community and also because the plant is

operating at 85 percent capacity .

Record at 354 .

The treatment plant consists of a mechanical bar screen with a manual bypass bar

screen, 3 primary clarifiers, 5 aeration tanks, 3 clarifiers, 4 sand filters, 2 traveling bridge

filters, 2 chlorine contact tanks, aerated excess

flow lagoon with chlorination, two sludge

thickners, 4 aerobic digesters, sludge storage tank and effluent pumping station

. The

treatment plant has been meeting the effluent limits of its NPDES permit

. Record at 424-

482 .

The plant effluent had 2

.76 milligrams per liter ("mg/L") of total phosphorus in the

effluent in August of 2002, and the four downstream samples all showed phosphorus

levels at values of 1 .60 mg/L, 1

.63 mg/L, 1 .47 mg/L, and 1 .52 mg/L

. Record at 545 .

The plant effluent showed pH ranging from 6.67

to 8

.21 in the vicinity of the plant

discharge point .

The Village is proposing to expand the plant design average

flow from 1 .54

million gallons per day

("MGD") to 2.516 MGD

; and the design maximum flow

from 4 .0

MGD to 5.963

MGD in Phase 1 and to 7

.93 MGD in Phase 2

. Record at 424 . The

facility is under construction for Phase I and Phase II improvements

. Phase I

improvements (Permit No

.2002-AB-2121) include improvement to the waste activate

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sludge system, new digested sludge belt thickener, 4 aerobic digesters , provide cover for

existing and new sludge storage tanks, and order control system . Phase 11 improvements

(Permit No .2003-AB-4997) include addition of one aeration tank, three blowers and one

final clarifier . Phase II construction is near completion at this time . Record at 424-82 .

In its NPDES permit application, the Village, based on 156 samples, provided the

CBOD5 concentrations in its effluent . Record at 433 . The applicant reported actual

CBOD5 concentrations of 5 mg/L as daily maximum and 2 mg/L as monthly average .

Record at 404 . The dissolved oxygen concentrations reported in the application for

outfall 001 are : 8 .35 mg/L as maximum daily and 7.45

mg/L as average daily .

Record at

437 . Based on the 76 samples reported, the daily maximum dissolved oxygen

concentration is 10 .2 mg/L, whereas the daily average concentration is 7 .43 mg/L .

Record at 626 .

The plant effluent is of high quality with respect to the concentrations of CBOD S

and dissolved oxygen . Further, the above mentioned improvements will allow the

expanded treatment plant to provide an equally high quality effluent to the receiving

stream .

Internal Agency e-mail Discussions-

To supplement the information available

on physical, chemical, and biological conditions of Hickory Creek below the plant's

discharge point and to conduct a meaningful antidegradation analysis that complies with

the requirements of the Board regulations, the Agency requested the Village to conduct a

biological study

. The study showed no significant impact by the Village's discharge on

the receiving stream as measured by macroinvertebrates . Record at 368; 403-418 ; 512-

521 . Petitioners claim that the conclusions made in the study are without explanation,

5

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however, they fail to consider the underlying data that the Village considered in making

those conclusions .

Petitioners next cite to several emails from Agency staff discussing the Earth

Tech study, but mischaracterize the nature of discussion among the staff

. These e-mails

simply show that the Village's study was subject to extensive discussions among the

Agency staff

. The internal Agency discussions focused on the information provided in

the Village's study and general discussions about the methodology used to perform the

study.

The internal deliberations among various Agency staff were appropriate and

necessary in determining the actual scope of the Earth Tech study

. The Agency staff who

reviewed the Earth Tech study are responsible for assessing the waters of the State

consistent with the requirements of Section 305 of the Clean Water Act

. The Agency

staff's initial comments on the study were based on their understanding of the Agency's

methodology used to assess waters for the Clean Water Act purposes

. Also, the

Agency's comments were influenced by the fact that the receiving stream in question is

listed on the 2002 Illinois 303(d) list

. The Agency's review of the study had a narrower

purpose than the one intended in assessing the waters of the State

. The review was

specifically regarding whether the Village's study is adequate in determining the existing

conditions of Hickory Creek below the plant's discharge and what the possible impact of

the plant's existing discharge is on the aquatic life in the Hickory Creek segment below

the discharge.

Specifically, most of the discussion cited by Petitioners was focused on various

valid methodologies that could have been used for performing MBI analysis

. Record at

6

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665; 671 ; 674-675 . Some of the tolerance values assigned to several species were not as

the Agency would have assigned in assessing the waters of the State . Record at 370. At

the Agency's request, the consultant made these changes and recalculated the MBI

results

. The difference between the two results was relatively minor . The overall

conclusion of the study was that as there was very little difference between upstream and

downstream MBI values and there was an insignificant or no adverse effect on the

receiving stream from the effluent . Record at 370; 562

. After these extensive

deliberations, the Agency concluded that the Village's study is valid for its limited

purpose to show that the existing discharge is not adversely impacting Hickory Creek .

Record at 370; 562.

Petitioners cite to an internal Agency deliberation that concerns the procedures

used by the Village's consultant were not exactly as the Agency would have used . The

Agency staff discussion simply shows that there are alternative field sampling practices

.

Based on the information received from the Village's consultant during the Agency's

review, the Agency concluded that the study was valid and an acceptable way of

characterizing the current conditions of Hickory Creek . Record at 370; 562

.

The Agency did not make its final decision solely based on the Earth Tech study,

but rather utilized it as useful and important information for the purposes of its

antidegradation assessment . Upon reviewing the basis for listing Hickory Creek as

"partial impairment," the Agency concluded that the decision to list as partial impairment

was based on violation of standards for total dissolved solids, rather than on biological

information . To ensure that the Village's permit does not violate or contribute to the

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violation of the total dissolved solids, the Agency incorporated a limitation for total

dissolved solids in the final NPDES permit .

The e-mails cited by Petitioners are evidence that the Village's study was subject

to extensive analysis and scrutiny by the Agency prior to accepting it for its limited

purpose

. The Agency believes that the internal discussions are necessary and routine in

NPDES permitting decisions

. Here, internal Agency deliberations were an integral part

of the appropriate antidegradation analysis, and also lead the Agency to reach the legally

sound final decision reflected in the final NPDES permit, Responsiveness Summary, and

the antidegradation assessment

. The Agency's conclusion that the plant's discharge is

not adversely affecting the aquatic life in Hickory Creek below the discharge is also

supported by the study's findings that pollution intolerant organisms were found both

upstream and downstream of the Village's STP 1 existing discharge . Record at 562

.

Phosphorus-

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 of the 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)

of the Village's STP 1

. Station GG-06 at Marley Road was assessed as full aquatic life

use based 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 . However,

for the Agency to list phosphorus as a cause of impairment, other data such as biological

8

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conditions in the receiving stream and or water quality numeric standards must indicate

actual impairment in the stream . Phosphorus concentrations were similar at these two

stations in 1997 with means of 0

.58 mg/L at GG-06 and 0 .53 mg/L at GG-02 . Record at

365 .

Petitioners attempt to show that the sampling conducted on August 20, 2002,

showed 2.76 mg/L of total phosphorus in the plant effluent, almost twice the upstream

concentration on that day, and six times the average over time for that particular stream .

The comparison provided by Petitioners is misleading as the calculation does not

consider the flows of the effluent and Hickory Creek below the discharge point . When

the flow is considered for comparison purposes, total phosphorus from the plant effluent

is only one fourth of the upstream total phosphorus, not twice as suggested by Petitioners .

Also, when average concentrations are considered, total phosphorus from the plant

effluent is one fourth of the upstream phosphorus , not six times as suggested by

Petitioners .

Copper-

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 of the copper samples was 0 .0173

mg/L. As this value is less than the chronic water quality standard of 0

.0206 mg/L, the

Agency determined that there was no reason to incorporate permit limits for copper .

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 of copper is discharging into the Village's STP 1, and the

sample results were below the chronic water quality standard, the Agency determined

that no permit conditions for copper are necessary .

9

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The Agency uses the USEPA Technical Support Document for Water Quality

Based Tomes Control (TSD) as technical guidance where underlying data, as

recommended by the guidance, is available . However, the Agency limits its use of the

TSD to a screening tool to determine if further analysis is necessary . In cases where a

very small sample population exists, the USEPA procedure does not give a valid result .

In such cases, the Agency decides if additional information is necessary to make the final

determination regarding whether the contaminant in question has a reasonable potential

to exceed applicable water quality standard . In this case, the Agency did not require this

additional information as the Agency had determined that this facility has a lower risk for

high levels of metals and other industrial pollutant in its treated domestic waste effluent .

Also, the Agency determined that as there does not exist any known source of copper,

there is no need for additional information .

C.

Information In The Record In Response To Petitioners Comments

Provided During the Public Comment Period

In their public comments, Petitioners commented that the draft permit allowed

discharges of phosphorus and nitrogen that cause or have a reasonable potential to cause

or contribute to violations of the water quality standards regarding offensive condition

and that nutrients are likely the cause of algal blooms and other unnatural plant growth .

Petitioners further commented that the permit allowed discharges that may cause or have

a reasonable potential to cause or contribute to violations of water quality standards

regarding dissolved oxygen, pH and copper . Petitioners comments are not supported by

the facts present in the record .

10

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Algal Bloom-

There are several factors that can contribute to excessive algal

growth including nutrients, stream flows, dams/impoundments, turbidity and

sunlight/canopy cover

. It is possible to have excessive algal growth even if nutrients are

not substantially elevated

. There is a dam located in Pilcher Park at river mile 4 .6, which

is about 3 .8 miles downstream of the Village's STP 1

. Furthermore, it is a known fact

that algae is a vital part of the aquatic community and only excessive algal population is

considered a problem

. The best measure of determining 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

. Record at

361; 515; 639.

Petitioners claim that the stream is covered from Pitcher Park almost all the way

up to Cedar Street with Hydrodictyon and algae on the surface of it . Hydrodictyon is

green algae commonly found in lakes, small ponds, and irrigation ditches . Petitioners fail

to indicate that there is a dam located in Pilcher Park at about river mile 4 .6

. Further, the

Petitioners' comment does not indicate where the bloom stopped

. The Village's STP 1

discharge is located about 0 .18 mile downstream of Cedar Street

. If the Village's STP 1

was responsible for this condition, the green algae would not extend upstream of the

discharge. Record at 361

; 515; 639.

Also, Petitioners' above statement does not indicate where in relation to the

Village's STP I discharge this green patch was seen

. This statement is confusing as it

tends to indicate that there was only a little patch of water down the center

. Hickory

Creek near Marley Road has fairly extensive areas of water willow that can make up a

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large proportion of the stream channel during low flow stream conditions

. Record at

361; 515; 639.

During the sampling done on August 20, 2002, the applicant documented that

there was no visible signs of organic pollution or over-nitrification at the plant discharge

site (heavy algal growth, turbid water, etc .).

Record at 633; 639. The record shows that

Hickory Creek does not have an "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 . Record

at 361; 364.

Contrary to Petitioners' assertions, the record does not show that the offensive

conditions exist in Hickory Creek below the discharge point

. Also the record does not

show that conditions cited by Petitioners existed because of the Village's discharge . The

Agency found that the conditions found in Hickory Creek below the discharge point were

typically found in an effluent dominated stream .

Treatises :

Petitioners cite to many treatises to denote that elevated levels of

nutrients can cause impairment of streams

. The Agency is aware of this phenomenon

.

The record, however, does not show that elevated levels of nutrients do exist in Hickory

Creek below the Village's discharge point

. Nor does the record show that the algal

bloom in Hickory Creek below the Village's discharge point is causing adverse affects on

dissolved oxygen levels and pH

. In addition, these treatises are irrelevant as the

discussion is directed at developing criteria for nutrients, and not at developing effluent

limits for a discharge

. Further, the water based effluent limit for dissolved oxygen in the

Village's permit will help to improve the instream dissolved oxygen concentrations in

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Hickory Creek, as the Creek is an effluent dominated stream during low flow conditions

.

Record at 356 .

As part of their comments, Petitioners provided detailed calculations performed

by Professor David Jenkins and Michael Lemke to show that it is likely that nutrient

discharges from New Lenox are already adversely impacting Hickory Creek and

reductions of nutrient discharges are needed to prevent further impact

. The record belies

Petitioners' position .

The Petitioners' calculation is inaccurate

. First, they take the sample done on July

13, 2000, and compare it to the sample done at the same site on August 20, 2002

. Instead

of using actual or estimated flow in Hickory Creek, they used average August stream

discharge from 1945 through 2001 and applied it to the August 20, 2002 for comparison

purposes .

For August 20, 2002, the USGS station registered the flow in Hickory Creek to be

24 cfs . The flow at New Lenox can be estimated as 11 cfs using the ratio of the drainage

areas

. Petitioners on the other hand used a flow of 35 .3 cfs . This added a factor of three

to the comparison

. When proper flow is applied, there is no difference in the nutrient

loading.

In their public comments, Petitioners made several statements regarding how

there is a reasonable potential that instream nutrient concentrations would cause violation

of the offensive conditions standard, however, when the Agency considered all relevant

information in the record, it could not agree with Petitioners' statements

. The Agency's

review of the record showed that Hickory Creek below the discharge point is supporting a

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balanced aquatic life, typical levels of nutrients, high levels of dissolved oxygen, pH, and

there were no sign of algal bloom present due to excessive nutrient levels .

D.

The Information In The Record Prior To Issuing The Final NPDES

permit and Responsiveness Summary

1 .

The Agency did consider All Alternatives to minimize pollution

Petitioners comment that the final permit did not contain any limits on discharge

of phosphorus, nitrogen or copper

.

The Agency's decision to not incorporate permit limits for phosphorus and

nitrogen is supported by the facts in the record

. Neither the stream conditions regarding

algal bloom nor concentrations of dissolved oxygen and pH indicate that a limit is

required under the Act or Board regulations . The Agency would have appropriately

incorporated limits for these two parameters had the record indicated that offensive

conditions exist in Hickory Creek below the discharge point and are being cause by the

Village's effluent . Further, the limit for copper was not necessary as the record shows

that there does not exist a known source of copper discharging into the Village's

treatment plant . Without a source of copper discharging into the wastewater stream, a

permit limit serves no purpose but to waste public resources . As the record does not

show that algal bloom exist in the vicinity of the Village's discharge, a permit limit for

pH at the water quality standard ensures that this water quality standard is not violated .

Petitioners are incorrect in stating that the Agency did not require limits for

nutrients because narrative standards are difficult to apply to a permit

. This was not the

Agency's legal reasoning to not incorporate permit limits for nutrients . The Agency staff

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who made these comments was simply stating the fact that narrative standards are

difficult to apply in a permit situation .

2 .

The Agency did incorporated all limits necessary to prevent violation

of water quality standards

To ensure that all limits necessary to prevent violation of the applicable water

quality standards are incorporated in the Village's NPDES permit, the Agency considered

all available information including the permit application, public comments, and the

relevant information within the Agency

. As part of this review, the Agency considered

two whole effluent toxicity testing reports and a biosurvey performed by the Earth Tech

.

See Record at 377-401

; 484-507 .

The data contained in these reports also helped the Agency to determine the

existing conditions in Hickory Creek below the plant discharge and also the quality of the

plant effluent and its likely impact on the aquatic life in the receiving stream

. The

following discussion details the Agency's findings from these three reports

.

NPDES permit holders are required to perform the whole effluent toxicity

("WET") testing

. Currently, four rounds of testing using two species,

Ceriodaphnia and

fathead minnow, are required in NPDES permits for major (1 MGD or greater DAF)

municipal dischargers

. Usually this is done at about a year and a half before permit

renewal

. The WET testing performed in 2001 and 2002 coincided with the discharger-

sponsored testing and served to corroborate discharger data

.

The purpose of the WET tests is to detect toxicity caused by any toxicant that may

be present in the effluent

. For the WET testing purposes, effluent samples collected on

July 10, 2001, and May 28-29, 2002, show that there was no acute toxicity to either

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species

. Thus indicating that no substance was present in the effluent that exceeded the

tolerance threshold for these species

. This includes copper and any other metal along

with numerous other toxic substances, including salts, pesticides, surfactants, etc

., that

may be found in effluents

. Had there been toxicity in the samples, the Agency would

have had to look for the cause, a process that may include additional testing and a process

called, toxicity reduction evaluation

("TRE") .

Effluent biochemical oxygen demand ("BOD")

can cause dissolved oxygen to be

depressed in the toxicity test chambers (beakers)

. If necessary, the testing laboratory will

aerate the test chambers to preserve the organisms through the duration of the tests

. The

testing laboratory must indicate this fact in the test report

. In the case of the two rounds

of testing for New Lennox, this was not necessary as there is no indication that aeration

was provided

. Dissolved oxygen was naturally maintained at least 8 mg/L throughout the

tests for both effluent samples, indicating that effluent BOD was very low

. Effluent pH

was also normal throughout the tests, which last 48 hours for

Ceriodaphnia and 96 hours

for fathead minnow

.

Based on the two WET testing reports, the Agency concluded that the Village's

effluent would have no direct adverse effects on stream dissolved oxygen

. As protective

dissolved oxygen levels existed in the laboratory over the duration of the WET tests, this

indicates that the flowing stream receiving the plant's effluent would also have no

problem maintaining dissolved oxygen despite presence of biochemical oxygen demand

in the effluent

. Initial pH is within normal range in the laboratory test chambers and

nothing intrinsic to the effluent exists to make pH higher or lower than normal levels

.

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Thus, no direct impact on receiving stream pH is apparent

. Moreover, no acutely toxic

effect will occur in the receiving stream from this effluent .

3.

The Village's Earth Tech stream survey chemical water quality data

The Agency requested that the Village conduct a stream biosurvey on Hickory

Creek for purposes of documenting existing stream conditions

.

See Record at 522-536;

540-555.

Biosurveys involve chemical and physical characterization of water quality and

well as biological characterization

. Sampling stations were established to facilitate an

understanding of stream water quality relative to the plant discharge

. The plant effluent

was also tested . Sampling was conducted on August 20, 2002 . One Hickory Creek

station was sampled just upstream of the plant effluent outfall while four stations were

sampled downstream . The exact locations of the sampling stations are illustrated on a

map supplied with the Earth Tech report.

The water quality analysis facilitated by this study enables the Agency to

determine the water quality in Hickory Creek, the quality of the effluent on that day, and

any influences the effluent may have on the water quality of the stream

. Laboratory

measurements were performed by Suburban Laboratories while field measurements were

performed by Earth Tech

.

The sampling station upstream of Hickory Creek showed a hardness value of 380

mg/L, which equates to very hard water, typical of many Northern Illinois streams .

Copper, chromium, lead, nickel and zinc are hardness based metals

. No detection of

these metals was reported

. The laboratory testing these samples used adequately low

reporting limits, thus, indicating that the concentrations of these metals are well within

the acute water quality standards

. These concentrations are also below the level of the

17

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chronic standards when the default conversion factors is used to convert dissolved metals

water quality standards to total metal concentrations equivalent to the standards

. The

metals that are not hardness based, silver, manganese, boron and barium, are all either not

detected or well within the water quality standards

. Phosphorus (total) is 1 .49 mg/L,

typical for a suburban stream receiving both point and nonpoint sources of phosphorus

.

Nitrate/nitrite concentration is also typical

. Ammonia is somewhat elevated over what

would be expected in an unimpacted stream at 0

.420 mg/L . Conductivity is also elevated

over an unimpacted stream at 2,200 umhos/cm

. BOD and suspended solids are low . Of

the field parameters, temperature and pH are well within water quality standards as is

dissolved oxygen with a reading of 8

.33 mg/L . All measurements indicate that water

quality standards are met .

The plant effluent quality is very similar to the upstream water in many ways

.

The concentrations of BOD and suspended solids in the plant effluent are the same or

lower than the concentrations found in the receiving stream

. Most metals concentrations

are the same or lower than the concentrations seen in the receiving stream

. Conductivity

is much lower indicating that the effluent is lower in salts than the stream

. The much

lower sodium concentration of the effluent supports that finding

. Field pH is lower than

upstream, still within water quality standards, but this is typical for a biologically treated

effluent

. Dissolved oxygen is slightly higher than the upstream station

. The effluent

concentrations for ammonia (lower), zinc and copper (higher) and nutrients (phosphorus

and nitrate/nitrite, both higher) differ from the concentrations of these constituents in the

receiving stream

. Zinc and all hardness influenced metals are evaluated using the

hardness of the receiving stream rather than the effluent

. Organisms live in the receiving

18

---

stream under ambient hardness and metals concentrations, not effluent concentrations . In

this case, the zinc and copper concentration of the effluent is well within the acute and

chronic water quality standard applicable in the receiving stream. Phosphorus and

nitrate/nitrite concentrations in the effluent are typical of municipal treatment plant

effluents. Thus, this data indicates that the effluent at New Lennox is of very good

quality, meeting all water quality standards and in fact for some parameters, it is in better

condition than the receiving stream .

Data from the downstream stations is very consistent, indicating that no

significant dilution is encountered within the study zone

. The data shows no impact of

the effluent on the downstream receiving stream . The concentrations of various

parameters in downstream waters resemble more closely with the upstream Hickory

Creek concentrations, than they do the effluent concentrations . Any elevated levels of

these parameters found upstream are at similar concentrations downstream,

e.g.,

phosphorus, conductivity, sodium and hardness . The concentration of zinc shows a slight

increase downstream as a result of the influence of the effluent, but well within acute and

chronic water quality standards . Dissolved oxygen is found at similar or higher

concentrations downstream, indicating no impact from the effluent

. BOD and suspended

solids values downstream are low, indicating the lack of impact of the plant effluent .

Therefore, the date supports that there is simply no indication of any water quality

problem in the creek that is exacerbated by the effluent, nor does the effluent appear to

create any new problems . The physical and chemical data show no indication of

violation of water quality standards or any other problem in the stream, except for

elevated nutrient concentrations that are typical of all streams of this nature .

19

---

4.

The Final Permit and Responsiveness Document

In response to the public's comments including Petitioners', the Agency made the

following changes to the draft permit :

The Village's discharge is subjected to ammonia limits for spring/fall

months;

ii .

Total dissolved solids from the discharge are limited to a daily maximum

concentration of 1000 milligram per liter ("mg/L"); and

iii .

The Village's discharge is subjected to the dissolved oxygen limit of 6

mg/L.

Record at 353 .

5.

The Agency did ensure that existing uses are protected

Contrary to the Petitioners' belief, neither the Act nor the Board regulations

require the Agency to protect existing conditions

. The antidegradation regulations at 35

Ill. Adm. Code 302 .105(a), rather require that the existing uses must be protected . The

Board's water quality standards are considered protective of existing uses . See Revisions

to Antidegradation Rule, RO1-13 (June 21, 2001) . As long as there is substantial

evidence in the record to show that the final permit complies with all applicable water

quality standards, the Agency has ensured that the existing uses of Hickory Creek are

fully protected .

II

. APPLICABLE STAUTORITY AND REGULAOTRY PROVISIONS

Statutory Authority

Petitioners bring the permit appeal pursuant to Section 40(e) of the Act. This

section allows the third parties to appeal the Agency's decision of an NPDES permit to

the Board. Section 40(e) of the Act provides :

20

---

I .

If the Agency grants or denies a permit under subsection (b) of Section 39

of this Act, a third party, other than the permit applicant or Agency, may

petition the Board within 35 days from the date of issuance of the

Agency's decision, for a hearing to contest the decision of the Agency .

2 .

A petitioner shall include the following within a petition submitted under

subdivision (1) of this subsection :

a. 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

b

. A demonstration that the petitioner is so situated as to be affected by

the permitted facility.

3 .

If the Board determines that the petition is not duplicitous or frivolous and

contains a satisfactory demonstration under subdivision (2) of this

subsection, the Board shall hear the petition (i) in accordance with the

terms of subsection (a) of this Section and its procedural rules governing

permit denial appeals and (ii)

exclusively on the basis of the record before

the Agency . The burden of proof shall be on the petitioner . The Agency

and permit applicant shall be named co-respondents

. 415 ILCS 5/40(e)

(2004) (emphasis added)

Section 39(a) of the Act provides that the Agency has a duty to issue a permit

upon proof that the facility will not cause a violation of the Act or Board regulations . See

415 ILCS 5/39(a) (2004) .

(a)

When the Board has by regulation require a permit for the construction,

installation, or operation of any type of facility, equipment, vehicle,

vessel, or aircraft, the applicant shall apply to the Agency for such

permit and is shall be the duty of the Agency to issue such a permit

upon proof by the applicant that the facility, equipment, vehicle, vessel,

or aircraft will not cause a violation of the Act or of regulations

hereunder. . . . 415 ILCS 5/39(a) (2004)

(Emphasis added)

Applicable Board Regulations

The Board regulations at 35 111 . Adm. Code 302

.105 set forth in detail the

requirements that apply to the Agency's antidegradation analysis

. Section 302 .105

provides:

21

---

The purpose of this Section is to protect existing uses of all waters of the State of Illinois,

maintain the quality of waters with quality that is better than water quality standards, and

prevent unnecessary deterioration of waters of the State .

a)

Existing Uses

Uses actually attained in a surface water body or water body segment on or after

November 28, 1975, whether or not they are included in the water quality

standards, must be maintained and protected . Examples of degradation of

existing uses of the waters of the State include :

1)

an action that would result in the deterioration of the existing

aquatic community, such as a shift from a community of

predominantly pollutant-sensitive species to pollutant-tolerant

species or a loss of species diversity ;

2)

an action that would result in a loss of a resident or indigenous

species whose presence is necessary to sustain commercial or

recreational activities ; or

3) an action that would preclude continued use of a surface water body or

water body segment for a public water supply or for recreational or

commercial fishing, swimming, paddling or boating.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. .

.

. . . . . . . . . .

. . . . . .

c)

High Quality Waters

1)

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

waters of the State whose existing quality is better than any of the

established standards of this Part must be maintained in their

present high quality, unless the lowering of water quality is

necessary to accommodate important economic or social

development.

The Agency must assess any proposed increase in pollutant

loading that necessitates a new, renewed or modified NPDES

permit or any activity requiring a CWA Section 401 certification to

determine compliance with this Section . The assessment to

determine compliance with this Section must be made on a case-

by-ease basis

. In making this assessment, the Agency must

:

A)

Consider the fate and effect of any parameters proposed for

an increased pollutant loading .

B)

Assure the following :

22

---

1)

The applicable numeric or narrative water quality

standard will not be exceeded as a result of the

proposed activity ;

ii)

All existing uses will be fully protected ;

iii)

All technically and economically reasonable

measures to avoid or minimize the extent of the

proposed increase in pollutant loading have been

incorporated into the proposed activity ; and

iv)

The activity that results in an increased pollutant

loading will benefit the community at large

.

C)

Utilize the following information sources, when available:

i)

Information, data or reports available to the Agency

from its own sources ;

ii)

Information, data or reports supplied by the

applicant;

iii)

Agency experience with factually similar permitting

scenarios

; and

iv)

Any other valid information available to the

Agency.

. . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . .

. . . .

. . . . . .

. . . . . . . . . . . . .

f)

Antidegradation Assessments

In conducting an antidegradation assessment pursuant to this Section, the Agency

must comply with the following procedures .

A permit application for any proposed increase in pollutant loading

that necessitates the issuance of a new, renewed, or modified

NPDES permit or a CWA Section 401 certification must include,

to the extent necessary for the Agency to determine that the permit

application meets the requirements of this Section, the following

information :

A)

Identification and characterization of the water body

affected by the proposed load increase or proposed activity

and the existing water body's uses

. Characterization must

23

---

address physical, biological and chemical conditions of the

water body .

B)

Identification and quantification of the proposed load

increases for the applicable parameters and of the potential

impacts of the proposed activity on the affected waters

.

C)

The purpose and anticipated benefits of the proposed

activity. Such benefits may include :

i)

Providing a centralized wastewater collection and

treatment system for a previously unsewered

community;

ii)

Expansion to provide service for anticipated

residential or industrial growth consistent with a

community's long range urban planning ;

iii)

Addition of a new product line or production

increase or modification at an industrial facility ; or

iv)

An increase or the retention of current employment

levels at a facility .

D)

Assessments of alternatives to proposed increases in

pollutant loading or activities subject to Agency

certification pursuant to Section 401 of the CWA that result

in less of a load increase, no load increase or minimal

environmental degradation. Such alternatives may include :

i)

Additional treatment levels, including no discharge

alternatives ;

ii)

Discharge of waste to alternate locations, including

publicly-owned treatment works and streams with

greater assimilative capacity ; or

iii)

Manufacturing practices that incorporate pollution

prevention techniques .

E)

Any additional information the Agency may request .

F)

Proof that a copy of the application has been provided to

the Illinois Department of Natural Resources .

24

---

Section 302 .203

Offensive Conditions

Waters of the State shall be free from sludge or bottom deposits, floating debris, visible

oil, odor, plant or algal growth, color or turbidity of other than natural origin

. The

allowed mixing provisions of Section 302

.102 shall not be used to comply with the

provisions of this Section .

(Source : Amended at 14 Ill . Reg

. 2899, effective February 13, 1990)

Section 304

.105

Violation of Water Quality Standards

In addition to the other requirements of this Part, no effluent shall, alone or in

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

standard

. When the Agency finds that a discharge which would comply with effluent

standards contained in this Part would cause or is causing a violation of water quality

standards, the Agency shall take appropriate action under Section 31 or Section 39 of the

Act to require the discharge to meet whatever effluent limits are necessary to ensure

compliance with the water quality standards

. When such a violation is caused by the

cumulative effect of more than one source, several sources may be joined in an

enforcement or variance proceeding, and measures for necessary effluent reductions will

be determined on the basis of technical feasibility, economic reasonableness and fairness

to all dischargers .

Section 309 .141

Terms and Conditions of NPDES Permits

In establishing the terms and conditions of each issued NPDES Permit, the Agency shall

apply and ensure compliance with all of the following, whenever applicable

:

a) . Effluent limitations under Sections 301 and 302 of the CWA

;

b)

Standards of performance for new sources under Section 306 of the CWA

;

c)

Effluent standards, effluent prohibitions, and pretreatment standards under

Section 307 of the CWA ;

d)

Any more stringent limitation, including those :

1)

necessary to meet water quality standards, treatment standards, or

schedules of compliance, established pursuant to any Illinois

statute or regulation (under authority preserved by Section 510 of

the CWA),

2)

necessary to meet any other federal law or regulation, or

25

---

3)

required to implement any applicable water quality standards, such

limitations to include any legally applicable requirements

necessary to implement total maximum daily loads established

pursuant to Section 303(d) of the CWA and incorporated in the

continuing planning process approved under Section 303(e) of the

CWA and any regulations or guidelines issued pursuant thereto

;

III

. STANDARD AND SCOPE OF REVIEW

A. Under Section 40(e) Of The Act, Petitioners Have The Burden Of Proof

And The Act Does Not Allow Petitioners To Shift That Burden

Petitioners brought this third party NPDES permit appeal under Section 40(e) of

the Illinois Environmental Protection Act ("Act").

415 ILCS 5/40(e)(1) (2004). Section

40(e)(3) of the Act specifically states that the burden of proof shall be on the petitioner

.

See 415 ILCS 5/40(e)(3)

(emphasis added) .

The Board's scope of review and standard of review are the same whether a

permit applicant or a third party brings a petition for review of the Agency's final action

on an NPDES permit. Prairie Rivers Network v. PCB et al., 335 111

. App. 3d 391, 401,

781 N .E. 2d 372 (4' Dist

. 2002), and Joliet Sand & Gravel Co. v. PCB, 163 Ill. App . 3d

830, 833, 516 N .E.2d 955, 958 (3`d Dist., 1987), citing

IEPA v. PCB, 118 Ill. App. 3d

772, 455 N .E. 2d 189 (1 s' Dist. 1983).

In Village ofLake

Barrington et al., v. Illinois EPA and Village

of Wauconda,

PCB 05-55 (April 21, 2005), the Board addressed the burden of proof issue in a third-

party NPDES permit appeal

. The Board noted that, "[t]he distinction between the two

types of NPDES permit appeals is which party bears the burden of proof

." Id. at 5 .

Under Section 40(a)(1) of the Act, if the permittee appeals the permit, the burden of proof

26

---

is on the permit applicant . Id.

The Board, consistent with the holding of the court in

Prairie Rivers,

held that, "[u]nder Section 40(e)(3) of the Act, in a third party NPDES

permit appeal,

the burden of proof is on the third party." Id. at 5 ; Prairie Rivers, 781

N

.E. 2d 372, 380 (emphasis added) .

According to the Board in

Village ofLake Barrington, the question before the

Board in permit appeal proceedings depends on who is filing the petition for review of

the Agency's final action

. In the case of an applicant challenging the Agency's final

decision, the question becomes, "whether the applicant proves that the application, as

submitted to the Agency, demonstrates that no violation of the Act would have occurred

if the requested permit had been issued ." Id. at 5

. Whereas in the case of a challenge

brought by a third party, the question becomes, "whether the third party proves that the

permit as issued will violate the Act or Board regulations ." Id

. (emphasis added), citing

to Joliet Sand & Gravel Co . v. PCB, 163 Ill. App

. 3d 830, 833, 516 N.E.2d 955, 958 (3rd

Dist ., 1987) ; Prairie Rivers,

335 Ill . App . 3d at 401 ; 781 N.E.2d at 380 .

On the burden of proof issue, the Board in

Des Plaines River Watershed Alliance

v. Illinois EPA,

PCB 04-88 (2005), held that, "IEPA's decision to issue the permit in this

instance must be supported by substantial evidence

. This does not, however, shift the

burden away from the petitioner, who alone bears the burden of proof in this matter

."

Des Plaines River Watershed Alliance at 7 (emphasis added) .

Thus, in a third party permit appeal the burden never shifts away from Petitioners .

Here, since Petitioners challenged the Agency's final decision, pursuant to Section

40(e)(3) of the Act and the Board's ruling in Village of Lake Barrington

and Des Plaines

River Watershed Alliance, Petitioners must come forward with the evidence to show that

27

---

the permit as issued by the Agency would cause a violation of the Act or the regulations .

Petitioners may not meet this burden by simply asserting that the permit may or might

cause a violation of the Act or Board regulations . This conclusion would shift the burden

of proof set forth in Section 40(e) of the Act .

B. Petitioners Must Show Solely Based On The Entire Record That the

Permit As Issued Would Violate The Act or Board Regulations

As long as there is substantial evidence in the record, the Agency's decision to

issue the permit must be upheld . Consequently, Petitioners must identify the lack of

substantial evidence in the record to prove that the issued permit would violate the Act

and/or the applicable regulations . The following cases illustrate the kind of substantial

evidence that must be missing in the record . The court in Ex Parte Fowl River Protective

Association, Inc ., 572

So.2d

446, 461 (Ala . 1990) found the following to be the

substantial evidence that was missing from the record in that case : that Mobile Bay was

determined to be too complex an environment to be simulated and the court found

numerous factors that could affect water quality but cannot be analyzed . Also, in Miners

Advocacy Council, Inc. v. Department of Environmental Conservation, 778 P .2d 1126,

1139-40 (Alaska 1989), the substantial evidence that was not in the record was that the

mine in question may not have had the assumed level of dilution present for its discharge

due to numerous mines discharging into the same waterbody .

Mere dislike of the permit conditions or mere allegations of noncompliance with

the law without any proof to support those allegations or mere allegations that the

additional permit limits could have been incorporated into the permit, is not the kind of

28

---

burden of proof required by Section 40(e)(3) of the Act

. See Village of Lake Barrington

at 7

. Petitioners must establish that the permit issued to the Village will violate the Act

or Board regulations in order for the Board to find for the petitioners in this matter .

Id.

In this case, Petitioners made no attempt to establish lack of substantial evidence

in the record through testimony at the Board hearing

. In fact, Petitioners chose to waive

their right s to present its case-in-chief or cross-examine the Agency staff responsible for

making the permitting decision

. Also, at the Board hearing, Petitioners chose not to

present any expert witness or scientific evidence to establish how the alleged

shortcomings in the permit would cause violation of the Act or the applicable Board

regulations . Petitioners thus have agreed to meet its burden under Section 40(e) solely

based on the information in the record . In other words, Petitioners must show that the

evidence in the record demonstrate that the permit as issued would cause the violation of

the Act or Board regulations .

As Petitioners did not present additional testimony or evidence at the Board

hearing, pursuant to Section 40(e) of the Act they must meet their burden of proof solely

based on the record that is filed with the Board . Petitioners can not meet this burden as

Petitioners may read the Board's November 17, 2005 decision more broadly and argue that Section 40(e)

of the Act prohibits any additional testimony at the Board hearings as the Agency's review should be

strictly based on the record that was before the Agency at the time of making the decision

. However, the

Agency does not believe that the Board's November 17, 2005 decision in R04-88 stands for this position .

The Board held that, "[tlhe Board cannot conclude under the circumstances of this case that the respondents

have persuasively identified any additional discoverable evidence ." The Board decision does not speak to

the issue of whether Section 40(e) limits the parties' ability to present witness at a third party NPDES

permit Board hearing .

The Agency's reading of the Board's November 17, 2005 decision is consistent with the Board's action

where the third party was allowed to present witness at the Board hearing . See Wesley Brazas v

. Village of

Hampshire and IEPA,

PCB 06-131 . The petitioner was allowed to testify in that case .

Further, Petitioners' reading would be contrary to the holding of the Appellate court in Borg-Warner v

.

IEPA, 10011l.App .3d 862, 427 N

.E.2d

415, 56 I11

.Dec . 335 (3". Dist ., 1981) . The court noted that, "an

29

---

the Board in its November 17, 2005, decision held that there is a "genuine issue of

material fact" with regard to the issue of nutrient loadings, offensive conditions standard,

and the copper water quality standard

. As there remain unresolved factual issues,

Petitioners cannot, as required by Section 40(e) of the Act, prove that the permit as issued

would violate the Act or the Board regulations

.

Specifically the Board in November 17, 2005 decision provides the following

:

Regarding nutrient loadings issue, the Board held that, "the Board cannot

conclude that there is no genuine issue of material fact with regard to the issue of nutrient

loadings

. Although the disputes listed in the preceding two paragraphs are not intended

to be exhaustive, they nonetheless indicate that significant factual issues remain

unresolved with regard to matters such as the present quality of Hickory Creek, the

effects of the Village's proposed discharge on the creek, and the Agency's consideration

of alternatives to that discharge ." Board's November 17, 2005 opinion at 22

.

Regarding the narrative offensive conditions standard issue, the Board held that,

"the Board cannot conclude that there is no genuine issue of material fact with regard to

the issue of narrative offensive conditions standard

. Although the disputes listed in the

preceding two paragraphs are not intended to be exhaustive, they nonetheless indicate

that significant factual issues remain unresolved with regard to matters such as the source

of algae in

Hickory Creek, the extent and location of algae in the creek, any effects of

algae on the creek, and the Agency's consideration of those effects

." Board's November

17, 2005 opinion at 29 .

appeal to the PCB [Board] includes a right to an adjudicatory hearing before the PCB

. That hearing is

conducted under rules for adjudicatory cases

." Borg, 427 N .E.2d 415, 420

.

30

---

Regarding the copper water quality standard issue, the Board held that, "the Board

cannot conclude that there is no genuine issue of material fact with regard to the issue of

the copper water quality standard

. Although the disputes listed in the preceding two

paragraphs are not intended to be exhaustive, they nonetheless indicate that significant

factual issues remain unresolved with regard to matters such as the analysis of the

Village's samples, and the Agency's consideration of copper limits

." Board's November

17, 2005 opinion at 33 .

C.

Only Evidence In Record At The Time Agency Issued The Village's

Permit is Relevant

In Prairie Rivers Network and

Village of Lake Barrington, the Board addressed

the issue concerning the scope of the Board's review of the Agency's decision . Section

40(e)(3) of the Act directs the Board to consider the petition "exclusively on the basis of

the record before the Agency ." 415 ILCS 5/40(e)(3) (2004)

. The Board has long held

that in permit appeals, its review is limited to the record that was before the Agency at the

time the permitting decision was made .

See Community Landfill Company v. JEPA, PCB

01-48, PCB 01-49 (consolidated) (April 5, 2001)

; Panhandle Eastern Pipe Line Company

v. IEPA, PCB 98-102 (January 21, 1999) . In

Prairie Rivers Network, the Board held that,

"Section 40 of the Act (415 ILCS 5/40 (2000)) does not differentiate between the scope

of the review in permit appeals brought by permit holders and those brought by third

parties ." Prairie Rivers Network at 10 .

Petitioners argue that, "IEPA's decision to issue the permit must be supported and

justified in the Responsiveness Summary and the facts and documents cited in the

31

---

Responsiveness Summary ." Petitioners, however fail to cite any applicable Board

regulation in support of its position

. Petitioners' contention is contrary to the specific

language of Section 40(e) of the Act, which requires that the Board shall review the

Agency decision based on the entire record, not based on a particular document

.

Contrary to Petitioners' assertion, 35 III . Adm . Code 166 .192 does not state that

the Agency's decision should be exclusively based on the rationale and facts referenced

in the Responsiveness Summary document . Nowhere in Section 166 .192 or Part 166, is

it stated that the Agency's decision should be based on the rationale presented in the

Responsiveness Summary document . See

35 Ill . Adm. Code Part 166 .

Part 166 does not require that the Agency's decision be fully based on the

Responsiveness Summary document, rather it is intended to set forth the practice and

procedures to be followed by the Agency in conducting informational hearings . See 35

111. Adm

. Code 166 .101(a). It states that if an informational hearing is held in a case, the

Agency must respond to all significant comments criticisms, and suggestions

. Part 166

simply requires that the Responsiveness Summary document must be made part of the

hearing record . See 35 111 . Adm . Code 166 .180.

In support of its position, Petitioners cite to In Re:

Washington Aqueduct Water

Supply System,

NPDES Appeal No. 03-06 (July 29, 2004), 2004 WL 3214486

. However,

this case is inapplicable here because 40 C .F.R. § 124.17

does not apply to the case at

hand

. Further, contrary to Petitioners assertions, the federal Environmental Appeals

Board's ("EAB")

review was based on the entire administrative record and not just a

document similar to that of an Responsiveness Summary . ("Upon

review of the

administrative record

and applicable federal law and Agency guidance, the Board holds

32

---

that Region III clearly erred by failing to respond, adequately or in some cases at all, to

significant comments NWI submitted on the Washington Aqueduct's draft NPDES

permits ." In Re: Washington at 3-4.)

Basing its decision on the entire record, the EAB

stated that, "the record contains virtually nothing explaining the Region's decision to

proceed as it did." In Re: Washington at 4 .

Petitioners also argue that, "IEPA and applicant cannot develop new rationales for

what IEPA did with the matter in its current posture and the permit can be upheld only on

the basis of theories clearly articulated in the Responsiveness Summary." Petitioners cite

Federal Power Commission v. Texaco Inc ., 5 P.U.R

. 4th 320, 417 U

.S

. 380, 94 S.Ct.

2315 (1974), and Reservation Telephone Cooperative v . Federal Communication

Commission, 826 F.2d 1129, 264 U .S .App.D.C. 113,63 Rad

. Reg. 2d (P & F) 1132

(1987) in support of this assertion . Both of these cases are distinguishable here .

In Federal Power Commission,

the court interpreted an order that was ambiguous

regarding the applicable standard . Federal Power Commission at 398-99 . The court held

that, "[h]ad the order unambiguously provided what the commission now asserts it was

intended to provide, we would have a far different case to decide

. But as it is, we cannot

`accept appellate counsel's post hoc rationalizations for agency action, for an agency's

order must be upheld, if at all, `on the same basis articulated in the order by the agency

itself ... Id.

In

Reservation Telephone Cooperative, the court was reviewing the Federal

Communication Commission's order

. When the Commission attempted to offer an

explanation that was contrary to its 1983 opinion, the court held that, "we cannot affirm

33

---

an agency's decision on any rationale other than the one it offers to explain its actions

."

Reservation Telephone Cooperative at 1134 .

Contrary to the situations in

Federal Power Commission and

Reservation

Telephone Cooperative,

the case at hand involves an administrative review of the

Agency's final action under Section 40(e) of the Act

. The Act specifically mandates that

the review be based on the entire record that was before the Agency prior to issuing the

permit, not just based on the Responsiveness Summary document

. Petitioners are now

coining a new requirement that is neither based on the Act nor the Board regulations

.

Petitioners would want the Agency to summarize its entire rationale to issue a permit on a

piece of paper or in a document

. The law does not require the Agency to do so . Further,

it would make no sense to file the entire record with the Board if the Board's review is to

be based on a single document

. Further, in this brief, the Agency is not providing any

rationale that is not supported by the entirety of the record

.

The fundamental purpose of the Responsiveness Summary document is to provide

response to the comments received during the comment period

. This document alone can

not constitute the Agency's rational to issue or not issue a permit as the Agency's

responses are dependent on the type of questions received during the comment period

.

How would Petitioners deal with a situation where no public hearing was held or no

public comments were received? In these two cases the Agency would not have the

Responsiveness Summary document

. For the purposes of Section 39(a) and 40(e), the

Agency must create a record that includes all the relevant information supporting the

Agency's final action to issue or deny an NPDES permit

. The Agency must meet this

statutory burden irrespective of the nature and extent of questions asked by the public

34

---

during the comment period

. Thus, the appropriate inquiry for reviewing the Agency's

final action is whether the Agency's final action is supported by the data and information

contained in the record .

Petitioners next argue that the Agency's statements must be supported by facts or

logic

. To support their argument, Petitioners cite to Reinhardt v . Board of Education of

Alton Community Unit School District No

. 11, 61 I11 .2d 101, 329 N .E.2d 218 (1975) ;

District 1199P, National Union of Hospital and Health Care Employees, AFL-CIO v .

National Labor Relations Board,

864 F.2d 1096, 110 Lab .Cas. P 10,886, 130 L .R.R.M .

(BNA) 2201 (US Court of Appeals, 3rd Circuit, 1989) ; and Harris v. Cropmate

Company, 302 I1I.App.3d 364, 706 N .E.2d

55, 235 I11.Dec. 795 (4th Dist ., 1999) . These

cases are distinguishable as they do not apply to the Section 40(e) situation, which is the

case here .

In Reinhardt, the court reviewed the Board's order that was entered without any

findings by the Board

. The Board by its vote said there were `reasons or causes' for the

plaintiffs dismissal . The record however did not include what evidence the Board

accepted or rejected

. The court held that, "[t]here can be no judging whether a ground

relied on by the Board was constitutionally proper or not, for there were no findings

. In

short, there can be no judicial review on the record before us

." Reinhardt at 220 .

In District 1199P,

the case involved the NLRB's interpretation of the Act

. As the

NLRB failed to state what law it applied in that case or why, the court held that a

reviewing court can only assess the rationality of the agency's interpretation if "the

agency provides a reasoned explanation of its actions

." District 1199P at 1098 .

35

---

In Harris,

the court was addressing the issue whether the proffered witness has

sufficient information to render a reliable opinion?

Harris at 64-65 .

The court noted

that, "[c]ourts should remember that they need not and should not accept an expert's

opinion on the basis of ipse dixit, i.e.,

such a thing is so because I say it is so ." Id. at 65 .

Petitioners provide a general discussion of several legal theories, but fail to show

how these theories are applicable to the case at hand

. The Petitioners' burden under

Section 40(e) of the Act is to come forward with specific evidence, not general discussion

of legal theories, to show that the Agency's decision to issue the Village's permit is not

supported by the facts in the record . Mere allegations of noncompliance with the law

without any proof to support those allegations, is not the kind of burden of proof required

by Section 40(e)(3) of the Act . See Village of Lake Barrington at 7

.

As long as the Agency's decision is supported by substantial evidence in the

record, it should be upheld

. The Agency's final decision to issue the Village's NPDES

permit is fully supported by the facts in the record

. Further, the Agency staff involved in

making decisions have extensive experience and knowledge in reviewing the permit

application

. Further, the Agency staff's statements are based on the information in the

record, and are not

ipse dixit.

The Agency, like any other administrative agency, is bound by rule that

"[a]dministrative agencies are required to apply their rules as written, without making

ad

hoc exceptions in adjudications of particular cases

." Panhandle Eastern Pipe Line V.

Illinois EPA, 314 Ill. App . 3d 296, 734 N .E . 2d 18, 24 (4 t'

Dist., 2000) . In this case, upon

receiving information from the applicant, and the general public through the public

hearing process, including Petit oners in this case, the Agency determined that the

36

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applicant has met the Section 39(a) burden of proof requirement and therefore, an

NPDES permit must be issued to the Village .

There is no reasonable basis to argue that the discharge from the Village's

treatment plant would violate any applicable water quality standard, and there is no

reasonable basis to conclude that the Agency in any way failed in its duty to ensure that

the permit, as issued, does not violate any provisions of the Act or the regulations .

Here, Petitioners failed

to meet the requisite burden of proof, that the permit, as

issued by the Agency, would violate the Act or the applicable regulations .

THEREFORE, Petitioners' request for relief must be DENIED .

In the alternative, assuming the Board determines that the Petitioners have met the

burden of proof outlined in Section 40(e)(3) of the Act, the Agency asserts that the

permit, as issued, would not cause a violation of the Act or the applicable regulations :

There is substantial evidence in the Agency record to support its decision to issue the

Village's NPDES permit.

In the following subsections, the Agency will address the substantive issues raised

by Petitioners .

IV

. ARGUMENTS

I. PETITIONERS CANNOT MEET THE SECTION 40(e) BURDEN AND THE

PERMIT ASS ISSUED WOULD NOT VIOLATE THE ACT OR THE BOARD

REGULATIONS

A.

The Permit As Issued Complies With The Applicable Requirements Of

Antidegradation Regulations

37

---

Petitioners argue that the permit as issued does not comply with 35 Ill . Adm .

Code 302 .105(c) as the Agency did not assure that the permit incorporated all reasonable

measures to avoid or minimize the extent of the new pollution loading . Specifically,

Petitioners argue that the Agency failed to assure that reasonable controls were put on

nutrients . In support of their argument, Petitioners claim that the Village's plant is a

major source of phosphorus to Hickory Creek . Petitioners further argue that Section

302.105(c) language is plainly mandatory and requires that the Agency must assure that

all reasonable measures to minimize the extent of the pollution have been incorporated .

Petitioners' interpretation to require the Agency to incorporate nutrient treatment

controls in the Village's permit is contrary to the meaning and intent of Section

302.105(c)(2)(B)(iii) language . As per Petitioners' reading, anytime there is an increased

pollutant loading from a proposed activity, and a technology to treat that pollutant is

available, the Agency must incorporate such controls in the permit

. Petitioners' reading

of Section 302 .105(c)(2)(B)(iii) is clearly erroneous .

The basic directive of Section 302 .105(c)(2) is that the Agency must consider all

non-degrading or less-degrading alternatives that are technically and economically

available in a given situation . This assessment must be done on a case-by-case basis .

The real objective of this assessment is to reduce the pollutant loading from a proposed

activity if it is reasonable to do so . Petitioners clearly ignore the balancing test required

by the antidegradation rules . For example, in case of Tier II waters, water quality cannot

be lowered below the level necessary to protect the fishable/swimmable uses and other

existing uses. However, maintaining a level of water quality above the

"fishable/swimmable" level is not always required and water quality may be lowered if

38

---

necessary to accomplish important economic or social development in the area in which

the waters are located. In The Matter Of. Revisions To Antidegradation Rules, 35 Ill .

Adm. Code 302

.105, 303

.205, 303 .206, AND 102 .800-102

.830, 2001 WL 34084035,

RO1-13, June 21, 2001, page 3 . (emphasis added) .

Section 302 .105(c)(2)(B)(iii)does not require the Agency to consider technology

controls as reasonable measures to avoid or minimize the proposed increase in pollutant

loading. Thus, no nutrient controls were incorporated in the Village's NPDES permit,

pursuant to Section 302 .105(c)(2)(B)(iii) .

Petitioners assert that the record does not contain any evidence to show that

additional nutrient loading was "necessary" in this case . Contrary to Petitioners'

assertion, the record reflects that expansion was necessary to accommodate the future

growth of the area . In 2000, the Agency approved the Water Quality Management Plan

("WQMP") to ensure that the future expansion in the New Lenox area occurs in a

planned manner. This expansion was also supported by NIPC in 1999 . Record at 601 .

The expanded plant would provide waste treatment services to a population equivalent of

25,000. Record at 78-79 . Thus, the lowering of water quality was necessary in this case

to accommodate an important social need . See 35 Ill . Adm. Code 302 .105(c)(1).

Under Section 40(e) of the Act, Petitioners bear the burden to prove that the

permit as issued would cause the violation of the Act or the Board regulations . The Act

does not allow Petitioners to shift this burden . To satisfy the Section 40(e) burden,

Petitioners must come forward with undisputed facts to show that the Agency's

antidegradation assessment was insufficient, and as a result the permitted discharge from

the Village's wastewater treatment plant would cause the violation of Section 302 .105(c).

39

---

Petitioners can not meet this burden as the Board in its November 17, 2005 opinion held

that, "it can not conclude that there is no genuine issue of material fact with regard to the

issue of nutrient loadings." Board's November 17, 2005 opinion at 22 . Specifically,

without providing an exhaustive list of disputed facts, the Board found that, "significant

factual issues remain unresolved with regard to matters such as the present quality of

Hickory Creek, the effects of the Village's proposed discharge on the creek, and the

Agency's consideration of alternatives to that discharge ." Id. Consequently, Petitioners

fail to meet the requisite burden under Section 40(e) of the Act .

There is substantial evidence in the record to show that the Agency complied with

all three requirements of Section 302 .105(c) . Pursuant to Section 302 .105(f)(1)(D), the

Agency conducted its assessment of alternatives to the Village's proposed increase in

pollutant loading. Record at 5-7; 372-374 . The Agency in its Responsiveness Summary

discusses in detail the various alternatives considered in this case

. The Village

considered land application of its effluent as an alternative but found the alternative to be

economically unreasonable . The Village's consultant estimates that 425 acres of land is

required for irrigation alternative, out of which 269 .9 acres is required for irrigation

purposes and the rest of the land for treatment and buffer zone . The supplement

information provided by the Village's consultant shows that the Village contacted a

neighboring golf course to find if the golf course would be interested in spraying its

effluent. The golf course did not consider the offer due to high groundwater and artesian

wells that feed the ponds . Further, the Agency and NIPC require communities to explore

other alternatives for wastewater treatment such as land application and regionalization of

plants when possible and cost effective

. Contrary to the Petitioners' assertion, the

40

---

Agency did consider all technically and economically reasonable alternatives to minimize

the pollution loading from the Village's plant .

Contrary to Petitioners' claim, the Village's plant is not a major source of

phosphorus to Hickory Creek and there is no evidence in the record to assert that

phosphorus from the plant is already causing an adverse impact on the stream . Along

with the non-point sources of phosphorus, there are at least 12 wastewater treatment

plants that discharge into Hickory Creek . Nine of these facilities are located upstream of

the Village's plant discharge . Thus, contrary to Petitioners' claim, the Agency did

consider all technically and economically reasonable alternatives to the proposed increase

in pollutant loading .

The Agency's antidegradation analysis ensures that the discharge from the

Village's plant meet the applicable general use water quality standards, thus protecting

the existing uses

. Further, the analysis considered all reasonable alternatives available in

this case to meet the Section 302 .105(C)(2)(B)(iii)requirement . Thus, the Agency's

decision to issue the Village's NPDES permit on the antidegradation assessment issue be

upheld, as there exist, substantial evidence in the record to show that the permit as issued

would not cause violation of the Act or the Board regulations .

B.

The Permit As Issued Would Not Cause a Violation Of Section 302.203,

304 .105, Or 309 .141

Petitioners assert that the Agency failed to ensure under Section 302 .105(c) that

permit would not result in violation of the narrative standard . In addition, Petitioners

argue that pursuant to Section 304 .105 and 309 .141(d), the Agency failed to ensure that

41

---

the total discharge from the plant would not cause or contribute to the violation of the

narrative standard against algal blooms .

Petitioners' argument lacks the reasonable interpretation

of the law and is not

supported by the undisputed facts

. Section 303 .203, in part, provides that, "[w]aters of

the State shall be free from sludge or bottom deposits, floating debris, visible oil, odor,

plant or algal growth, color or turbidity

ofother than natural origin . 35 Ill . Adm. Code

302 .203 (emphasis added).

The Agency contends that 'unnatural' is the operative word in

determining the violation of Section 302 .203 . Therefore, a Section 302 .203 violation can

only occur if plant or algal growth ofunnatural origin is found in receiving waters . The

record lacks any evidence to suggest that unnatural algal growth exists because of the

Village's discharge . Petitioners have made no attempt to prove otherwise . Petitioners'

statements, at the best, suggest that algae was witnessed in the stream . These statements

do not establish that algal bloom of

unnatural growth was found in Hickory Creek below

the Village's discharge point .

If Petitioners are arguing that Section 302

.203 strictly prohibits the discharge of

any levels of phosphorus in the receiving waters, then this argument must be rejected

.

Under such construction, discharge of

even a small amount of phosphorus is a violation

of Section 302 .203

. Nitrogen and phosphorus are the primary nutrient required for

virtually all plant life, both terrestrial and aquatic . These nutrients are available to water

bodies naturally as well as anthropogenically. Phosphorus is generally believed to be the

nutrient in shortest supply in the freshwater ecosystems, and therefore, its concentrations

may often limit plant growth

. Sometimes a waterbody receiving nutrients may have

algae that is not limited by phosphorus but rather by another nutrient or by water quality

42

---

factors

. Phosphorus is an essential nutrient for the health of aquatic life . The Agency

objects to Petitioners' narrow and literal interpretation as Section 302 .203 does not stand

for a total prohibition of discharge of small amounts of phosphorus in the receiving

stream . The general principle is that the Board regulations are construed and applied to

avoid absurd and unfair results . See Village of Fox River Grove v . Pollution Control

Board, 299 111 . App. 3d 869, 880, 234 111 . Dec. 316, 702 N.E. 2d 656, 664 (1998) .

Therefore, the Petitioners' interpretation must be rejected as it produces impractical and

absurd results .

In City of East Moline v. Illinois EPA, 1989 WL 144768, PCB 87-127 (Nov

. 15,

1989), the petitioner had asked for a variance from the water quality standards of 35 111

.

Adm . Code 302

.203 relating to unnatural sludge for its discharge to an unnamed tributary

of the Mississippi River . The Board denied the petitioner's request for relief and

concluded that the petitioner's discharge violated both Section 302 .203 and Section

304.106 . The Board's conclusion was in part based on the Agency's findings that "the

quality of the water changed from clear to brown and turbid

; sludge was up to 14-20

inches deep ; no fish were found below the discharge point in the tributary, but were

found upstream ; and benthic organisms were reduced substantially ." 1989 WL 144768,

*6 . Petitioners have failed to meet the burden of proof required under the City of East

Moline.

Under Section 40(e) of the Act, Petitioners bear the burden to prove that the

permit as issued would cause the violation of the Act or the Board regulations . The Act

does not allow Petitioners to shift this burden

. To satisfy the Section 40(e) burden,

Petitioners must come forward with undisputed facts to show that the permitted discharge

43

---

from the Village's wastewater treatment plant would cause the violation of Section

302 .105(c), 304 .105, and 309

.141 . Petitioners can not meet this burden as the Board in

its November 17, 2005 opinion held that, "it can not conclude that there is no genuine

issue of material fact with regard to the issue of narrative offensive conditions standard

."

Board's November 17, 2005 opinion at 29 .

Specifically, without providing an exhaustive

list of disputed facts, the Board found that, "significant factual issues remain unresolved

with regard to matters such as the source of algal in Hickory Creek, the extent and

location of algal in the creek, and the Agency's consideration of alternatives to that

discharge." Id

. These disputed facts are the same facts Petitioners need to meet the

Section 40(e) burden that the permit as issued would violate the narrative offensive

condition standard of the Board regulations

.

To prevail under Section 40(e), Petitioners must present undisputed facts to show

that because of the Village's plant, algal growth of unnatural origin exist in Hickory

Creek

. Mere presence of algal growth that is of natural origin is not prohibited by

Section 302 .203

. Further, the Agency's discussion in the Relevant Facts section of this

brief shows that there is substantial evidence in the record to support the Agency's

finding that the permit as issued does not violate the narrative offensive condition

standard, the Agency's decision to issue the Agency's permit must be upheld .

Petitioners next argue that the Agency failed to assure that the plant discharges

would not cause violations of the standards for dissolved oxygen and pH

. Petitioners'

argument is premised on their erroneous belief that extra loading of nutrients from the

Village's plant would impair the existing uses and would cause violation of the water

quality standards for pH and dissolved oxygen .

44

---

As Petitioners argument is premised on the belief that violations of these

standards is closely related to nutrient control, the Agency's reasoning in the nutrient

loading issue also applies here . See Board's November 17, 2005 opinion at 8 .

Under Section 40(e) of the Act, Petitioners bear the burden to prove that the

permit as issued would cause the violation of the Act or the Board regulations . The Act

does not allow Petitioners to shift this burden

. To satisfy the Section 40(e) burden,

Petitioners must come forward with undisputed facts to show that the permitted discharge

from the Village's wastewater treatment plant would cause the violation of water quality

standards for pH and dissolved oxygen

. Petitioners can not meet this burden as the Board

in its November 17, 2005 opinion held that, "it can not conclude that there is no genuine

issue of material fact with regard to the issue of narrative offensive conditions standard ."

Board's November 17, 2005 opinion at 29 .

Specifically, without providing an exhaustive

list of disputed facts, the Board found that, "significant factual issues remain unresolved

with regard to matters such as the source of algal in Hickory Creek, the extent and

location of algal in the creek, and the Agency's consideration of alternatives to that

discharge." Id.

These disputed facts are the same facts Petitioners need to meet the

Section 40(e) burden that the permit as issued would violate the pH and dissolved oxygen

water quality standards of the Board regulations

. Consequently, Petitioners fail to meet

the requisite burden under Section 40(e) of the Act

.

To prevail under Section 40(e), Petitioners must present undisputed facts to show

that because of the Village's plant there is a violation of pH and dissolved oxygen water

quality standard in Hickory Creek

. As the Village's permit has a water quality based

effluent limit for dissolved oxygen and pH, Petitioners' assertion is without any merit

.

45

---

Also, the Agency's discussion in the Relevant Facts section of this brief shows that there

is substantial evidence in the record to support the Agency's finding that the permit as

issued would fully support the existing uses and would not violate the water quality

standards for pH and dissolved oxygen . Thus, the Agency's decision to issue the

Village's NPDES permit must be upheld

.

C.

The Permit As

Issued Would Not Violate The Water Quality Standard For

Copper

Petitioners argue that the permit does not comply with 35 111 . Adm. Code 302 .105

or 309 .141 as it does not limit all pollutants that may cause or contribute to a violation of

the copper standard .

On December 19, 2002, the Board adopted changes to General Use water quality

standards for most metals from total metal to dissolved metal . The impetus for this

change came from USEPA after experiments with aquatic life in the laboratory concluded

that the dissolved form of metals is the toxic component whereas copper in an un-

dissolved or suspended form is not harmful . Total metal is suspended form plus

dissolved forms of a given metal . Copper was included in the change, which in this case

consisted of adding a "default conversion factor" to the previously existing hardness

based formula for determining the copper acute and chronic standards.

Petitioners' argument is flawed in that it assumes that copper limit was necessary

in this case . All municipal sewage treatment plants are expected to discharge measurable

concentrations of copper given the presence of copper in food and other domestic

substances . The results seen so far show that copper metal translator values have been

close to a factor of 0.5 . The Agency considers 10 to 20 ppb of copper in a sewage plant's

46

---

effluent as average concentrations

. In the Agency's opinion, different chemistries in the

drinking water of communities dictate the severity of copper pipe erosion or even if

erosion occurs at all . In the Agency's experience, copper levels over 30 ppb are what

may be considered `elevated' levels, and depending upon on local stream hardness, may

or may not exceed water quality standards

. The copper levels reported by the applicant

do not display the elevated levels seen in other approximately ten sewage treatment

plants with copper NPDES permit limits . The Agency suspects that the low copper levels

in the Village's plant discharge are from erosion of pipes within homes and businesses

.

The following discussion shows that the record contains substantial evidence to

support the Agency's decision to issue the Village's NPDES permit without a copper

limit.

The Agency uses the USEPA Technical Support Document for Water Quality

Based Toxics Control ("TSD") as a technical guidance document

. Using the TSD, the

Agency determines whether further analysis is necessary . The Agency does not believe

that the USEPA's procedure described in the TDS is valid when a small sample size

exists because the TDS recommends the application of higher multiplier . In cases where

limited data exist, the Agency evaluates these substances against the water quality

standards applicable to the receiving stream . This approach is especially appropriate in

cases where facilities have been previously identified through the pre-treatment program

as having a low risk of high levels of metals and other industrial pollutants in treated

domestic waste effluents

. In this case, the Agency determined that the Village's STP I is

one of such facilities .

47

---

The Village reported results of copper samples collected on January

9, 2001 and

June 15, 2001 as 0.0141 mg/L and 0.0205

mg/L respectively . The average of copper

samples was 0.0173 mg/L. Since this value is less than the chronic water quality

standard of 0.0206

mg/L, the Agency determined that there permit limit for copper was

not warranted in this case

. If one of the samples would have exceeded the acute water

quality standard, the Agency would have incorporate copper limits into the permit or

would have required six (6) months of monitoring

. Also, if the average of the samples

would have exceeded the chronic water quality standard, the Agency would have

incorporated copper limits into the permit or would have required six

(6)

months of

monitoring. If there seems to have been an outlier or more data is necessary, the Agency

would have required more sampling . This decision was also based on the fact that no

known source of copper is discharging into the Village's waste stream .

The copper levels reported by the Village's STP 1 are not elevated concentrations

.

The average of three copper samples (0 .0205, 0

.0141, and 0 .0165 mg/L total copper)

reported by the applicant is 0 .0170 mg/L

. If the Agency had believed there exist a chance

of exceeding the chronic copper water quality standard, it would have expected a site-

specific metals translator study to demonstrate that only about half is present in the

dissolved form

. Adjusting the allowable effluent concentrations accordingly yields an

effluent limit of 0.0394

mg/L that would be protective of the chronic dissolved standard

at the end of pipe . Further, the available dilution in the Hickory Creek would ensure that

the New Lenox effluent would have no potential to exceed water quality standard for

copper .

48

---

The Agency did not include copper limits in the Village's permit as it has no

reasonable potential to exceed the chronic water quality standard . Also, the Agency data

does not show that Hickory Creek contains significant amounts of metals . Further, the

land use in the area or the effluent itself are not significant sources of copper

. Record at

361 .

Under Section 40(e) of the Act, Petitioners bear the burden to prove that the

permit as issued would cause the violation of the Act or the Board regulations

. The Act

does not allow Petitioners to shift this burden . To satisfy the Section 40(e) burden,

Petitioners must come forward with undisputed facts to show that the permitted discharge

from the Village's wastewater treatment plant would cause the violation of the copper

water quality standard . Petitioners can not meet this burden as the Board in its November

17, 2005 opinion held that, "it can not conclude that there is no genuine issue of material

fact with regard to the issue of the copper water quality standard

." Board's November

17, 2005 opinion at 33.

Specifically, without providing an exhaustive list of disputed

facts, the Board found that, "significant factual issues remain unresolved with regard to

matters such as the analysis of Village's samples, the Agency's consideration of copper

limits." Id.

These disputed facts are the same facts Petitioners need to meet the Section

40(e) burden that the permit as issued would violate the copper water quality standard of

the Board regulations

. Consequently, Petitioners fail to meet the requisite burden under

Section 40(e) of the Act .

To prevail under Section 40(e), Petitioners must present undisputed facts to show

that the Village's plant would cause the violation of the copper standard in Hickory

Creek. Also, the Agency's discussion in the Relevant Facts section of this brief shows

49

---

that there is substantial evidence in the record to support the Agency's finding that the

permit as issued does not violate the copper water quality . Thus, the Agency's decision

to issue the Agency's permit must be upheld

.

CONCLUSION

As Petitioners clearly failed to meet the requisite burden under Section 40(e) and

as there exist substantial evidence in the Record to support the Agency' final decision,

the Agency respectfully requests that the Board

DENY the Petitioners' request for relief

regarding additional permit limits to reduce nutrient loading from the Village's plant or

permit limits for offensive conditions, dissolved oxygen, pH or copper .

Respectfully submitted,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

By

:

Sanjay K. Sofat

Special Assistant Attorney General

Division of Legal Counsel

Dated : June 30, 2006

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

50

---

STATE OF ILLINOIS

)

COUNTY OF SANGAMON

)

PROOF OF SERVICE

I, the undersigned, on oath state that I have served the attached the

POST

HEARING BRIEF

upon the persons to whom it is directed, by placing a copy in an

envelope addressed to :

Dorothy Gunn, Clerk

Illinois Pollution Control Board

James R

. Thompson Center, Suite 11-500

100 West Randolph Street

Chicago, IL 60601

Bradley P . Halloran

Illinois Pollution Control Board

James R. Thompson Center, Suite 11-500

100 West Randolph Street

Chicago, IL 60601

SS

Albert F. Ettinger

Senior Staff Attorney

Environmental Law & Policy Center

35 East Wacker Drive, Suite 1300

Chicago, IL 60601

Roy M . Harsch

Gardner Carton & Douglas LLP

191 N. Wacker Drive- Suite 3700

Chicago, Illinois 60606-1698

and mailing it from Springfield, Illinois on June 30, 2006, by U

.S . Mail with sufficient

postage affixed .

SUBSCRIBE]) AND SWORN BEFORE ME

THIS "t DAY OF JUNE, 2006 .

THIS FILING PRINTED ON RECYCLED PAPER

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