RECEIVEDCLERK'S
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MA R 1
1007
AMERICAN BOTTOM CONSERVANCY
Pollution
STATE OFControl
ILLINOISBoard
)
Petitioner,
)
V .
)
PCB 06-171
(3rd Party NPDES Permit
Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and UNITED STATES STEEL
)
CORPORATION
- GRANITE CITY WORKS,
)
Respondents.
)
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R . Thompson Center
Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 N. Grand Ave
. East
P.O
. Box 19274
Springfield, IL 62794-9274
NOTICE OF FILING
Edward J
. Heisel
Interdisciplinary Environmental Clinic
Washington University School of Law
One Brookings Drive
Campus Box 1120
St. Louis, MO 63130-4899
Carolyn S. Hesse
David T . Ballard
Erika Powers
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, IL 60606
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
MOTION FOR AND
MEMORANDUM OF LAW IN SUPPORT OF RECONSIDERATION
of the Illinois Environmental
Protection Agency, a copy of which is herewith served upon you
.
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
BySanjay
: K
. Sofat, Assistant Counsel
Division of Legal Counsel
Dated
: March 8, 2007
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
(217) 782-5544
THIS FILING PRINTED ON RECYCLED PAPER
CLERKSEIIVED
MAR 1 2 2007
STATE OF ILLINOIS
AMERICAN BOTTOM CONSERVANCY
)
Pollution
Control
Board
Petitioner,
)
v.
)
PCB 06-171
(3rd Party NPDES Permit
Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and UNITED STATES STEEL
)
CORPORATION
- GRANITE CITY WORKS,
)
Respondents .
)
AGENCY'S MOTION FOR RECONSIDERATION
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 35 Ill
. Adm
. Code 101 .520,
hereby submits this Agency's Motion for Reconsideration to the Illinois Pollution
Control Board ("Illinois PCB" or "Board")
. The Agency is requesting the Board to
RECONSIDER its decision as it erred in applying "existing law
." See Citizens Against
Regional Landfill v. County Board of Whiteside County,
PCB 92-156, slip op. at 2
(March 11, 1993), citing Korogluyan v . Chicago Title & Trust Co
., 213 Ill .App .3d 622,
627, 575 N .E.2d 1154, 1158 (1st Dist . 1991)
. The Agency respectfully requests the Board
to apply an abuse of discretion standard to determine whether the Agency's decision to
not hold a public hearing was "clearly erroneous" and not just a "poor" decision
. In
support of its Motion, the Agency states as follows :
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
I
On May 8, 2006 American Bottom Conservancy ("ABC")
filed its Petition
seeking the Board's review of the Agency's issuance of United States Steel's
("US Steel") National Pollutant Discharge Elimination System ("NPDES")
permit .
2.
On September 21, 2006, the Board dismissed ABC's petition on all the issues,
except "the issue of a request for a public hearing
." PCB 06-171, January 26,
2007 at 8. (Hereinafter "Board Order
.")
3 .
A Board hearing was held on November 20, 2006 .
4.
On February 2, 2007, the Agency received the Board's order dated January 26,
2007
. The Board phrased the issue as "whether the Agency's decision to not hold
a public hearing at the underlying level invalidates the permit
. "Board Order at 5
.
5.
In that order, the Board states
: "the issue of whether the Agency abused its
discretion in deciding not to hold a hearing is squarely before the Board
."
(emphasis added) Board Order at 13 .
6.
Yet, the Board applied the standard under which the Agency's final permit
decision is reviewed. Specifically, the Board states that, "[I]n reviewing the
Agency's decision not to hold a public hearing, the
Board applies the standard
applicable to all reviews of an Agency's permit decision- whether or not the
issuance of the permit violates the Act or Board regulations ."
(emphasis added)
Board Order at 13.
7 .
The Board's reasoning assumes that since the applicable regulation is a Board
regulation, the proper standard of review is the same as that which is applied to
2
review the Agency's final permit decision
. The Board thus reads Section
309 .115(a) as a non-discretionary regulation
.
8 .
By applying the standard that whether the issuance of the permit violates the Act
or Board regulations, the Board ignores the Agency's discretion written into
Section 309
.115(a). Consequently, the Board rejected the abuse of discretion
standard, in favor of determining whether the Agency erred in the context of the
Board regulation . Board Order at 13
.
9.
The state courts have long held that the Agency's decision under Section
309.115(a)l is discretionary in nature
. The Environmental Appeals Board
("EAB") has also read a similar regulation at 40 C
.F.R. § 124.12
as discretionary,
granting the Agency discretion on whether to hold a public hearing .
10.
The Borg-Warner
court agreed that the Agency's decision of whether to hold a
public hearing is discretionary .
Borg-Warner Corp . v. Mauzy, 100
I11.App.3d
862, 427 N .E.2d 415 (3rd Dist . 1981)
. Regarding the reviewability of Agency
action, the court states that, "agency action is reviewable, subject to an abuse of
discretion standard, but the availability of review over the determination
does not
alter the essentially discretionary nature of the determination
." Id.,
at 867
(emphasis added) .
11 .
The 5th District Court provides further insight into the nature of the Agency's
decision under Section 309
.115(a). The court also finds the federal regulation at
40 C.F.R. § 124.12(a),
from which Section 309 .115(a) is modeled, to be
discretionary. In Village of Sauget,
the court recognized that "a hearing pursuant
The criterion for holding a public hearing is set forth in the Board's regulations at 35 III.Adm . Code
309
.115(a) is identical to the criteria stated in the federal regulations at 40 C .F.R
. § 124 .12(a) .
3
to these regulations [35 II1.Adm . Code 309
.115(a) ; 40 C .F.R . § 124.11 ] is
discretionary with the
IEPA. . . ." Village of Sauget v . PCB, 207
Ill .App .3d 974,
981, 566 N .E.2d 724 (5th Dist . 1991) .
12 .
The EAB has also read similar regulation at 40 C .F .R
. § 124.12 as warranting
discretion to Environmental Protection Agency ("EPA") . In In re: Sunoco
Partners Marketing & Terminals, LP
2006 WL 1806987 (June 2, 2006), the EAB
held that, "[a]s
we have expressed on many occasions, the Region's decision to
hold a pubic hearing is a largely discretionary one
." See, e.g., In re City of Fort
Worth, 6 E.A .D. 392, 407 (EAB 1996) ; In re Avery Lake Prop . Owners Assn,
4
E.A .D. 251, 252 (EAB 1992) ; In re Osage
(Pawhuska, Okla .), 4 E.A.D
. 395, 399
(EAB 1992) .
13 .
Even the Board in Marathon Oil
acknowledged that the Agency's decision to
grant a hearing is discretionary . Specifically, the Board noted that
: "[w]hether an
Agency hearing is to be held in an NPDES permit review
is discretionary with the
Agency . . . ." Marathon Oil, PCB 92-166, slip op.
at 10 (emphasis added) .
14.
As the EAB and the courts in Borg-Warner
and Sauget have repeatedly
concluded, the proper standard of review here is abuse of discretion, as the
Agency's decision under Section 309
.115(a) is discretionary in nature
. The
Agency's decision of whether to hold a public hearing is separate and independent
from the final permit decision
. By applying the improper standard, the Board is
bypassing the Agency's discretion that is written into Section 309
.115(a) .
15 .
The Agency thus urges the Board to apply the proper standard of review, abuse of
discretion
.
4
WHEREFORE, the Agency respectfully requests that the Board
RECONSIDER its decision regarding the proper standard to review Agency's
discretionary decision under Section 309
.115(a). The Agency further requests the Board
to apply an abuse of discretion standard .
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By:
-'
Sanjay K . Sofat
Assistant Counsel
Special Assistant Attorney General
DATED : March 8, 2007
1021 North Grand Avenue East
P
.O
. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
5
RECEIVEDCLERK'S
OFFICE
MAR
1 2 2001
BEFORE THE ILLINOIS POLLUTION CONTROL BOA
R~IlutionSTATE
OFControl
ILLINOIS
Board
AMERICAN BOTTOM CONSERVANCY
)
Petitioner,
)
v.
)
PCB 06-171
(3`d Party NPDES Permit
Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and UNITED STATES STEEL
)
CORPORATION - GRANITE CITY WORKS,
)
Respondents .
)
AGENCY'S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR
RECONSIDERATION
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 35 Ill
. Adm. Code 101 .520,
hereby submits this Agency's Memorandum of Law in Support of Motion for
Reconsideration to the Illinois Pollution Control Board ("Illinois PCB" or "Board")
. The
Agency respectfully requests the Board to RECONSIDER its decision regarding the
proper standard to review Agency's discretionary decision under Section 309
.115(a) . In
support, the Agency states as follows :
ARGUMENTS
A party can file a motion to reconsider "to bring to the [Board's] attention
. . .
changes in law or errors in the [Board's] previous
application of existing law
." (emphasis
6
added) See Citizens Against Regional Landfill v. County Board of Whiteside County,
PCB 92-156, slip
op. at 2 (March 11, 1993), citing Korogluyan v. Chicago Title & Trust
Co., 213 I1l .App .3d 622, 627, 575 N .E.2d 1154, 1158 (1st Dist
. 1991). By applying the
standard that is only applicable to Agency's permit decision, the Board has erred in
applying the existing law .
I. Applicable Statutory and Regulatory Provisions
The Clean Water Act ("CWA")
requires the Agency to allow the public an
"opportunity to comment."
33 U.S.C. § 1342 . This opportunity to comment mandate
does not require that a public hearing be held every time a request is made
. This
requirement is satisfied as long as the public "receives notice of each application for a
permit and . . . an opportunity for a public hearing . . . ." 33 U.S.C. § 1342 .
The Environmental Protection Agency (EPA) adopted 40 C .F .R . § 124.12 to
comply with the opportunity to comment requirement of the CWA
. Under Section
124.12, EPA is required to " . . . hold a public hearing whenever
. . . [the Director finds] a
significant degree of public interest in a draft permit(s) ."
(emphasis added) 40 C .F.R. §
124.12(a)
. Similarly, to ensure that the State of Illinois' NPDES program is consistent
with the CWA requirements, Illinois adopted 35 Ill
. Adm. Code 309.115(a). The
criterion for holding a public hearing set forth in Section 309
.115(a) is identical to the
criterion stated in the federal regulations at 40 C .F.R. §124.12(a). Section 309 .115(a) of
the Board regulations requires :
The Agency shall hold a public hearing on the issuance or denial of an NPDES
Permit . . . whenever the Agency determines that there exists a significant degree of
public interestinthe proposed permit . . .
to warrant the holding of such a hearing
35 Ill
. Adm. Code 309 .115(a)(1) (2005) (emphasis added) .
7
The Board's opinion rephrases the issue as, "[w]hether the Agency's decision not
to hold a public hearing at the underlying level invalidates the issued permit
." See Board
opinion at 5.
By rephrasing the issue, the Board has changed the paramount inquiry . The
Board's stated issue only considers the
impact of not holding a hearing on an issued
permit, but the real inquiry before the Board is whether the Agency abused its discretion
by not holding a public hearing .
Also, the Board's opinion rephrases the burden of proof as "American Bottom
must establish that the permit issued to US Steel will violate the Act or Board
regulations ."
See Board opinion at 12 . By rephrasing the burden of proof, the Board has
changed the true burden of proof that American Bottom must establish to secure a
favorable outcome in this case. ABC cannot meet the burden of proof outlined in Section
40(e) of the Act by simply arguing that two or more inferences are possible from the
facts. Nor can ABC meet this burden by showing that the Agency made a "poor
decision ." To prove the Agency abused its discretion, ABC must show that the Agency's
decision is clearly erroneous3
or arbitrary and unreasonable given the facts of the case .
In its opinion, the Board does not address the sole issue before it-- whether the
Agency's decision under Section 309 .115(a) is discretionary
. To apply the proper
standard of review, the Board first must ascertain whether Section 309
.115(a) vests
discretion in the Agency to decide whether to hold a hearing . As discussed below, the
proper standard of review of the Agency's discretionary decision under Section
309 .115(a) is an abuse of discretion .
Z For a
detailed discussion of applicable burden of proof, please refer to the Agency's brief, pgs
. 16-17.
For a detailed discussion of abuse of discretion, please refer to the Agency's post-hearing brief, pgs
. 20-
21 .
8
11. Section 309.115(a)is
discretionary
The Agency's decision under Section 309
.115(a) is discretionary and several
Illinois courts have recognized this discretion . The 3rd District court in
Borg-Warner,
referring to Water Rule 909(a) (now Section 309
.115(a)), notes that a public hearing is "a
discretionary decision to be made by the Agency ." Borg-Warner Corp. v. Mauzy, 100
Ill .App .3d 862, 867, 427 N
.E.2d 415 (3rd Dist. 1981) (emphasis added) . Also, the 5th
District in Village of Sauget reads Section 309
.115(a) to give the Agency discretion in
making the decision of whether to hold a public hearing . The court specifically states
that,
"[w]e recognize that a hearing pursuant to these regulations [35 IIl .Adm.Code §
309.115(a); 40 C.F.R. § 124.11]
is discretionary with the IEPA . . ." Village of Sauget v .
IPCB, 207 Ill.App.3d 974,981, 566 N .E.2d
724 (5th Dist. 1990) (emphasis added) .
The Agency did not cite Marathon in its post-hearing brief to contend that the
issue regarding the Agency's decision to not hold a hearing was before the Board
. Rather
the Agency cited Marathon Oil
to show that even the Board acknowledged that the
Agency's decision under Section 309.115(a) is discretionary in nature
. Specifically, the
Board states that, "[w]hether an Agency hearing is to be held in an NPDES permit review
is discretionary with the Agency . . . ." Marathon Oil Co
. v. IEPA, PCB 92-166, slip op. at
10 (March 31, 1994) (emphasis added) .
The Environmental Appeals Board ("EAB") reviews EPA's decisions to hold or
not hold a public hearing, has expressed on many occasions
4 that, "the Region's decision
to hold a public hearing is a largely discretionary one
." In re : Sunoco Partners
Marketing & Terminals, LP (June 2, 2006) (emphasis added)
quoting See, e .g., In re City
of Fort Worth, 6
E.A.D
. 392, 407 (EAB 1996).
9
The Agency's decision to not grant a public hearing under Section 309
.115(a) is a
separate and independent decision from the Agency's decision to issue or deny an
NPDES permit
. The Illinois courts have read Section 309
.115(a) to give the Agency
discretion in deciding whether to hold a hearing in a given case
. However, to review the
Agency's discretionary decision, the Board applies the standard of whether the issuance
of the permit violates the Act or Board regulations
. The Board can apply this standard
only if it determines that the Agency's decision under Section 309
.115(a) is non-
discretionary
. Without making that determination, the Board applied an improper
standard to review the Agency's decision that is discretionary in nature
.
III .
If the regulation is discretionary, the only applicable standard of
review is abuse of discretion .
It is a long held principle that it is only the alleged abuse of discretion, not
discretion itself that is reviewable on appeal .
See McFarlan V. Fowler Bank City Trust
Co., 214 Ind
. 10, 14, 12 N .E.2d 752 (Ind. 1938)
. When a regulation is discretionary in
nature, the reviewing court must apply the abuse of discretion standard
. The court in
Borg-Warner
applied a similar principle and held that, "Agency action on a decision is
reviewable, subject to an abuse of discretion standard, but the availability of review over
the determination does not alter the essentially discretionary nature of the determination
."
Borg-Warner Corp . v. Mauzy, 100 I11.App .3d 862, 867, 427 N
.E.2d 415 (3rd Dist
. 1981)
.
The EAB has also applied the abuse of discretion standard to review EPA's
decision whether to hold a hearing under Section 124
.12 of the federal regulations .
'
For a detailed discussion of EAB cases, please refer to the Agency post-hearing brief, pgs
. 9-10.
10
In In re: Sunoco Partners Marketing & Terminals, LP
2006 WL 1806987, (June 2, 2006),
the EAB held that, "[a]s we have expressed on many occasions, the Region's decision to
hold a pubic hearing is a largely discretionary one ." See, e.g.,
In re City of Fort Worth, 6
E .A.D. 392, 407 (EAB, 1996) ; In re Avery Lake Prop . Owners Ass 'n, 4 E.A .D. 251, 252
(EAB 1992) ; In re Osage (Pawhuska, Okla .), 4 E.A.D
. 395, 399 (EAB 1992). In In the
matter of Osage (November 24, 1992), the EAB applied the same standard of review
.
("The Region did not commit error or abuse its discretion by not granting Petitioner's
request for an administrative hearing .")
IV. Board applied an improper standard of review
To review the issue of whether the Agency abused its discretion in deciding not to
hold a hearing, the Board did not apply the abuse of discretion . Instead, the Board
applied a standard that is applied to review the Agency's permit decision
. The Board,
however, provides no logic or rationale for its departure from the commonly applied
standard of review . Even though the Board mentions that the issue of whether the
Agency abused it discretion is squarely before the Board, the Board did not review the
Agency's decision as if it were discretionary . Rather, the Board treated Section
309.115(a)
as a non-discretionary regulation and applied a standard that is used to review
the Agency's non-discretionary decision . The Board's reasoning makes no distinction
between a discretionary and a non-discretionary decision
. The net effect of this reasoning
is that the Board reviewed a discretionary decision by a standard that is applicable only to
non-discretionary decisions .
11
By applying the standard of review as whether the issuance of the permit violated
the Act or Board regulations, the Board has effectively removed the Agency's discretion
written into the Section 309
.115(a) language . By reading Section 309.115(a) as non-
discretionary, the Board is also requiring the Agency to grant public hearing whenever
one is requested by the public
. Neither the Clean Water Act nor the Board regulations
require that the Agency must hold a public hearing every time a request is made to the
Agency
. The Agency is required to grant a request for a public hearing only when it
determines a significant degree of public interest is present in the proposed permit
. The
Agency's decision under Section 309.115(a) has been read to be a discretionary one .
Unless the Board determines that the Agency's decision under Section 309 .115(a) is not
discretionary, the proper standard of review is abuse of discretion .
In sum, the Agency contends that the Board must apply a proper standard to
review the Agency's discretionary decision . The proper standard of review for a
discretionary decision is abuse of discretion .
12
CONCLUSION
For the reasons and arguments provided herein, the Agency respectfully requests
the Board to RECONSIDER its decision to apply a non-discretionary standard of review
to an Agency's discretionary decision .
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By:
Sanjay
K
. Sofat
L
Special Assistant Attorney General
Division of Legal Counsel
Dated : March 8, 2007
1021 North Grand Avenue East
P .O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
13
STATE OF ILLINOIS
COUNTY OF SANGAMON
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R . Thompson Center
Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 N . Grand Ave . East
P.O
. Box 19274
Springfield, IL 62794-9274
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the attached the
MOTION
FOR AND MEMORANDUM OF LAW IN SUPPORT OF RECONSIDERATION
upon the persons to whom it is directed, by placing a copy in an envelope addressed to :
and mailing it from Springfield, Illinois on March 8, 2007, by U .S. Mail with sufficient
postage affixed .
SUBSCR1B DD AND SWORN BEFORE ME
THIS DAY OF MARCH, 2007 .
SS
Edward J
. Heisel
Interdisciplinary Environmental Clinic
Washington University School of Law
One Brookings Drive
Campus Box 1120
St . Louis, MO 63130-4899
Carolyn S. Hesse
David T. Ballard
Erika Powers
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, IL 60606
TWS FTLUNG PRNYTED ON RECYCLED PAPER
14
OFFICIAL SEAL
BRENDA BOEHNER
<:
:
'
NOTARY PUBLIC, STATE
OF ILLINOIS
MY COMMISSION EXPIRES
11 .3-2009
