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BACKGROUND

 

On December 19, 2004, the Agency gave notice that it proposed to issue a renewal of the

NPDES permit governing the discharge by U.S. Steel at its Granite City Works facility of certain

pollutants into Horseshoe Lake. Petition at 3-4; Agency Record (AR) at 518. The Agency put

the draft NPDES permit on 30-day public notice beginning on December 19, 2004, and ending

on January 18, 2005. AR at 518. The Agency received draft permit comments from U.S. Steel

on January 13, 2005. AR. at 530-31. The Agency received a request for public hearing from

Kathleen Logan-Smith of Health & Environmental Justice in St. Louis on January 17, 2005. AR

at 532.

 

On January 18, 2005, American Bottom filed with the Agency a comment that Horseshoe

Lake is impaired and has a negative impact on the community that utilizes the lake for recreation

and as a food source. American Bottom raised the following issues: (1) that allowing U.S. Steel

to put additional lead and ammonia into the lake would be contrary to the federal Clean Water

Act and the Agency’s Bureau of Water’s mission; (2) that U.S. Steel should be added to a list of

potential contributors to the impairment of the lake; (3) that U.S. Steel had violated ammonia and

“other” limits in the past; (4) that the Agency should hold a public hearing; and (5) that the

public comment period should be extended 30 days if the Agency denied the request for a public

hearing. AR at 533-39. American Bottom sent supplemental technical comments to the Agency

in October 2005, and on December 9, 2005. AR at 607-09, 611-23.

 

On March 8, 2006, the Agency issued an NPDES permit to U.S. Steel. AR at 635-43.

The Agency reissued the NPDES permit on March 31, 2006, after responding to the American

Bottom comments filed after the comment period. AR at 648-57.

 

On May 8, 2006, American Bottom appealed to the Board on the grounds that (1) the

Agency erred in setting various effluent limitations in the permit and granted exemptions not

allowed by law; (2) the permit would allow discharges that violate water quality standards and

effluent limitations; (3) the permit would fail to require adequate pollutant monitoring; (4) the

permit does not include a compliance schedule to address a history of non-compliance; (5) the

permit does not establish effluent limitations on the discharge of pollutants present in the

facility’s effluent discharges; and (6) the Agency issued the permit without first addressing

public comments and holding a requested public hearing.

 

APPLICABLE LAW AND BOARD RULES

 

Section 40(e)(1) of the Act (415 ILCS 5/40(e)(1) (2004)) allows certain third parties to

appeal Agency determinations to grant or deny NPDES permits. The third party’s petition to the

Board must contain:

 

[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

 

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

permitted facility. 415 ILCS 5/40(e)(2) (2004);

see also

35 Ill. Adm. Code

105.210(d).

 

Section 101.506 of the Board’s procedural rules provides that all motions to strike,

dismiss or challenge the sufficiency of any pleading filed with the Board must be filed within 30

days after the service of the challenged document, unless the Board determines that material

prejudice would result. 35 Ill. Adm. Code 101.506.

 

STANDARD OF REVIEW

 

For purposes of ruling on a motion to dismiss, all well-pled facts contained in the

pleading must be taken as true, and all inferences from them must be drawn in favor of the non-

movant. People v. Stein Steel Mills Services, Inc., PCB 02-1 (Nov. 15, 2001). A petition should

not be dismissed for failure to state a claim unless it clearly appears that no set of facts could be

proven under the pleadings that would entitle the petitioner to relief. Lone Star Industries, Inc. v.

IEPA, PCB 03-94 (Mar. 6, 2003)

;

Shelton v. Crown, PCB 96-53 (May 2, 1996).

 

MOTION TO APPEAR

PRO HAC VICE

 

In the motion to appear

pro hac vice

, Edward J. Heisel asserts as follows: (1) he has been

a member in good standing of the bar of the State of Missouri since 2000; (2) he is a member in

good standing of the bar of a number of federal courts; (3) he has never been disbarred or the

subject of disbarment proceedings; (4) no disciplinary proceedings are currently pending, nor

have any disciplinary proceedings ever been brought against him; and (5) he is familiar with the

Illinois Code of Civil Procedure, the rules of the Illinois Supreme Court, and the procedural rules

of the Board. Motion to Appear at 1-2. As stated earlier, no response to this motion has been

filed.

 

The Board grants this motion to appear

pro hac vice

and enters the appearance of Edward

J. Heisel on behalf of American Bottom in this matter.

 

MOTIONS TO DISMISS

 

The motions to dismiss filed by the Agency and U.S. Steel are substantially similar. The

Board will summarize each motion and response thereto separately, but discuss the merits of the

two motions concurrently.

 

U.S. Steel Motion to Dismiss

 

In its memorandum accompanying its motion, U.S. Steel asserts that many of the issues

included in the petition were not raised by American Bottom during the public notice period

before the Agency, and should be dismissed. Memorandum at 4. U.S. Steel contends that only

the request for a public hearing was timely asserted.

Id

. at 5. U.S. Steel argues that the

allegation that the Agency wrongfully denied a public hearing should also be dismissed with

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4

prejudice, because the Agency did not abuse its discretion in deciding not to hold the hearing.

Id

. at 6.

 

American Bottom’s Response to U.S. Steel’s Motion to Dismiss

 

American Bottom asserts that its substantive technical claims should not be dismissed

because they were submitted to the Agency well before the permit decision was made. Response

(Resp.) at 3. In addition, American Bottom argues that the Agency extended the comment period

by its actions during the 14 months following American Bottom’s first comment letter.

Id

. at 4-

5. Specifically, American Bottom notes that the Agency received three submittals from U.S.

Steel after what it refers to as the initial public comment period.

Id

. at 5. American Bottom

argues that the Agency conceded the relevance of American Bottom’s later-filed comments by

including them in the record filed herein.

Id.

     

 

American Bottom contends that the clear purpose of Section 40(e)(2) of the Act is to

require parties to raise concerns about a draft permit with the Agency so that the Agency can

address those concerns and thereby avert a potential appeal proceeding. Resp. at 6. American

Bottom argues that it satisfied this statutory purpose.

Id.

American Bottom asserts that nothing

precludes the Agency from considering comments submitted after the public comment period,

and that it is not uncommon for permit applicants to submit additional information to the Agency

after the period is over.

Id.

   

 

American Bottom contends that its public hearing claim is not subject to dismissal. Resp.

at 7. American Bottom acknowledges that the Agency has discretion in the matter, but argues

that instances of doubt are to be resolved in favor of holding the hearing.

Id

. at 7, citing 35 Ill.

Adm. Code 309.115(a)(1). American Bottom asserts that the facts alleged in the petition

demonstrate that the Agency abused its limited discretion in not holding a hearing. Resp. at 7.

 

U.S. Steel Reply

 

U.S. Steel argues that in support of American Bottom’s argument that the Agency

de

facto

extended the comment period, American Bottom states that U.S. Steel submitted comments

after the 30-day comment period ended, allegedly demonstrating that the period was extended.

Reply at 2. U.S. Steel asserts that the documents cited by American Bottom were not public

comments on the draft permit, but rather were sent to the Agency with specific information to

assist the Agency as it was writing the final NPDES permit.

Id.

U.S. Steel seeks leave to file the

reply in order to address this narrow issue and to prevent the material prejudice that will result

from the misleading description of U.S. Steel’s submissions.

Id.

The Board grants U.S. Steel’s

unopposed motion for leave to file the reply.

 

Agency Motion to Dismiss and Accompanying Memorandum

 

The Agency asserts that the draft NPDES permit was put on 30-day public notice

beginning on December 19, 2004, and ending on January 18, 2005. Motion (Mot.) at 2. The

Agency contends that based on the comments provided by American Bottom in its letters dated

January 17 and 18, 2005, and the additional information provided by U.S. Steel, the Agency

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5

determined that holding a public hearing would not serve any public interest as the comments

were not germane to the issuance of U.S. Steel’s NPDES permit.

Id

. at 4.

 

The Agency argues that except for the public hearing issue, all of the issues in American

Bottom’s petition were raised outside of the public comment period. Mot. at 6, Memorandum

(Mem.) at 5. The Agency contends that the Board lacks jurisdiction over these issues because

they were raised after the close of the public comment period. Mot. at 8. The Agency asserts

that American Bottom failed to present evidence to show the Agency abused its discretion in

declining to hold a public hearing, and that the Board should therefore dismiss the petition for

review. Mot. at 7, Mem. at 8.

 

The Agency argues that American Bottom failed to provide any provision of the Act or

Board regulations to support its argument that the Agency

de facto

extended the public comment

period. Mem. at 6. The Agency notes that its motion to dismiss is timely as it is a challenge to

the jurisdiction of the Board to hear the case.

Id

. at 7.

 

American Bottom’s Memorandum in Opposition to the Agency Motion

 

American Bottom reasserts that its substantive technical claims should not be dismissed

because they were submitted to the Agency more than three months before the permit decision

was made. Memorandum (Mem.) at 4. American Bottom next reasserts the arguments, detailed

above, that the Agency effectively extended the comment period and that American Bottom

satisfied the statutory purpose of Section 40(e)(2) of the Act.

Id

. at 5-7.

 

American Bottom contends that it has pled facts demonstrating the need for a public

hearing, including that the public has a significant stake in ensuring that U.S. Steel’s water

pollution discharge complies with the applicable law and that the permit should not allow any

pollution beyond applicable limits, and that several organizations – including the Sierra Club –

requested a public hearing in this case. Mem. at 10.

 

Discussion

 

The Board has consistently, and recently, held that to have standing in an NPDES permit

appeal as a third-party petitioner under Section 40(e)(2) of the Act (415 ILCS 5/40(e)(2) (2004)),

a petitioner must show that he or she raised the issues contained in the petition during the public

comment period. Wesley Brazas v. IEPA, PCB 06-131, slip op at 3-4 (May 4, 2006). The

record shows that public comments to the Agency were due on or before January 18, 2005, in

this matter. AR at 518. American Bottom did submit a timely public comment. The technical

issues raised in that comment, however, were not raised in American Bottom’s petition for

hearing. The only issue raised in the comment and contained in the petition is the request for a

public hearing.

 

American Bottom does not argue that the technical comments other than the request for a

public hearing were timely made within the public comment period set by the Agency. Instead,

American Bottom argues that the claims should not be dismissed because they were submitted

well before the Agency ultimately made its permit decision, and that the Agency effectively

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6

extended the comment period. The Board is not persuaded by these arguments to ignore the

clear language of the Act and prior Board precedent. Accordingly, the issues contained in the

petition, other than the issue concerning the request for a public hearing, are improperly before

the Board, and will be dismissed.

 

The Agency and U.S. Steel both argue that Agency did not abuse its discretion in

deciding not to hold a public hearing, and that this issue should also be dismissed. American

Bottom met the requirements of Section 40(e)(2) of the Act regarding this issue. The petition

does contain a demonstration that American Bottom raised the issue during the public notice

period, and that American Bottom is so situated as to be affected by the permitted facility.

See

 

415 ILCS 5/40(e)(2) (2004). Further, when taking all well-pled facts contained in the petition as

true, a set of facts can be proven that would entitle the petitioner to relief.

 

Section 309.115(a) of the Board regulations sets forth the criteria for holding a public

hearing, providing that the Agency shall hold a public hearing whenever the Agency determines

that there exists a significant degree of public interest in the proposed permit to warrant the

holding of the hearing.

See

35 Ill. Adm. Code 309.115(a). American Bottom has asserted facts

that if proven true would show a significant degree of public interest in the proposed permit to

warrant the holding of a hearing.

 

Accordingly, the motions to dismiss are granted in part and denied in part. The Board

hereby dismisses the petition as to all the issues save American Bottom’s assertion that the

Agency improperly denied the request for a public hearing.

 

MOTIONS TO SUPPLEMENT THE RECORD

 

Both the Agency and American Bottom have filed motions to amend or supplement the

record in this case. The Board will summarize each motion and response.

 

Agency June 22, 2006 Motion to Amend

 

In the accompanying motion for leave to amend, the Agency asserts that although it

timely filed the record, three documents were overlooked. Motion to Amend at 1-2. The

Agency asserts that no prejudice will result from the amendment.

Id

. at 2. The Agency provides

three documents for inclusion in the record. No response to the June 22, 2006 motion was filed.

The Board grants the Agency leave to amend the record and accepts the documents listed as part

of the record.

 

American Bottom July 14, 2006 Motion to Supplement

 

American Bottom asserts that five documents have been erroneously excluded from the

record. Motion to Supplement at 1. The documents in question are:

 

1. correspondence dated April 10, 2006, from the Agency to counsel for American

Bottom that is the Agency’s response to American Bottom’s

December 9, 2005 comments;

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2. correspondence dated April 5, 2006, from the Agency to counsel for American

Bottom that is the Agency’s response to correspondence dated March 24, 2006,

from American Bottom’s counsel to the Agency;

 

3. correspondence dated March 7, 2006, from American Bottom to the Agency that

reiterates the request for a public hearing;

 

4. e-mail correspondence dated March 7, 2006, and March 14, 2006, between the

Agency and American Bottom continuing an e-mail string already in the record;

and

 

5. correspondence dated March 24, 2006, from American Bottom’s counsel to the

Agency that discusses purported procedural irregularities in the issuance of the

permit.

Id

.at 2-4.

 

American Bottom asserts that the documents relate directly to the permit at issue in this appeal

and must be included in the record.

Id

. at 3-4.

 

Agency Response to the Motion to Supplement

 

The Agency objects to the first two documents being included in the record because the

documents were not before the Agency at the time the permitting decision was made on

March 31, 2006. Agency Response at 2-3. The Agency does not object to the inclusion of the

documents dated prior to March 31, 2006.

Id

. at 4.

 

U.S. Steel Response to the Motion to Supplement

 

U.S. Steel objects to supplementing the record with any of the documents attached to the

motion to supplement because they were not before the Agency for its issuance of the permit.

U.S. Steel Response at 1. U.S. Steel adopts the reasoning of the Agency in opposition to

supplementing the record with documents dated April 5, 2006 and April 10, 2006.

Id.

   

 

Discussion

 

The Board grants American Bottom’s motion to supplement in part and denies it in part.

The three documents dated prior to March 31, 2006, will be accepted as part of the record.

However, the documents that post-date the date of the Agency’s decision will not be accepted.

The Board has long held that in permit appeals, it is limited to the record before the Agency at

the time the permitting decision was made.

See

,

e.g.

, Pandhandle Eastern Pipe Line v. IEPA,

PCB 98-102 (Jan. 21, 1999). Only information the Agency relied upon while making its final

decision should be included in the record. Section 40(e)(3) of the Act specifically provides that

when the Board hears a third-party NPDES permit appeal, the Board must hear the petition

“exclusively on the basis of the record before the Agency.” 415 ILCS 5/40(e)(3)(ii) (2004).

Thus, the Board denies the motion as to the documents dated April 5, 2006 and April 10, 2006,

and will not accept those documents as part of the record.

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CONCLUSION

 

The Board grants the motions to dismiss in part and denies them in part, and directs the

hearing officer to proceed to hearing on the issue of a request for a public hearing. The Board

also grants American Bottom’s motion for

pro hac vice,

and accepts the Agency’s amended

record. Further, the Board grants American Bottom’s motion to supplement the record in part

and denies the motion in part, accepting only those documents that pre-date the Agency’s

decision of March 31, 2006.

 

The Board directs the parties to proceed expeditiously to hearing on the remaining issue

of the request for hearing. The Board reminds the parties that Section 40(e)(3) of the Act places

the burden of proof on the petitioner.

See

415 ILCS 5/40(e)(3) (2004). As the petitioner,

American Bottom bears the burden of proving that the permit, as issued, would violate the Act or

Board regulations.

See

Prairie Rivers Network v. PCB, 335 Ill. App. 3d 391, 400-01, 781 N.E.2d

372, 378-80 (4th Dist. 2002) (affirming the Board’s decision on, among other things, the third-

party NPDES permit appeal petitioner’s burden of proof). Hearings “will be based exclusively

on the record before the Agency at the time the permit or decision was issued.” 35 Ill. Adm.

Code 105.214(a);

see also

415 ILCS 5/40(e)(3)(ii) (2004).

 

IT IS SO ORDERED.

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on September 21, 2006, by a vote of 4-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board