BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
RECEIVED
CLERK'S OFFICE
MAY 3 0 2007
Pollution
STATE OF
Control
ILLINOISBoard
Case No . PCB 2006-171
(NPDES Permit Appeal)
AMERICAN BOTTOM CONSERVANCY,
V .
Petitioner,
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY, and UNITED STATES STEEL
CORPORATION -
GRANITE CITY WORKS
Respondents .
To :
Sanjay K . Sofat
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O
. Box 19276
Springfield, IL 62794-9276
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
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P .O
. Box 19274
Springfield, IL 62794-9274
PLEASE TAKE NOTICE
that on May 30, 2007 there was filed with the Clerk of the
Illinois Pollution Control Board of the State of Illinois an original and executed copies of
United States Steel Corporation's Motion to Stay Orders of January 26, 2007 and
May 3,
2007 Pending Appeal along with United States Steel Corporation's Memorandum in
Support of Motion to Stay Orders of January
26, 2007
and May 3, 2007
Pending Appeal,
copies of which is herewith served upon you
.
Dated: May 30, 2007
Carolyn S . Hesse
David T
. Ballard
Barnes &
Thornburg LLP
One North Wacker Drive -
Suite $900
Chicago, Illinois 60606
(312) 357-1313
Respectfully submitted,
United States Steel Corporation
-
Granite City Works,
One
c
of Its Att
`N--~
s
THIS FILING IS SUBMITTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
I, the undersigned, an attorney, certify that I caused to be served the attached, United
States Steel Corporation's Motion to Stay Orders of January 26, 2007 and May 3, 2007
Pending Appeal along with United States Steel Corporation's Memorandum in Support of
Motion to Stay Orders of January
26, 2007
and May 3, 2007 Pending Appeal, by U.S .
Mail, postage prepaid, from One North Wacker Drive, Suite 4400, Chicago, Illinois 60606, on
this 30th Day of May, 2007, upon the following
:
Sanjay K . Sofat
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
sanj ay. sofat@epa . state . i 1 . us
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O . Box 19274
Springfield, IL 62794-9274
webbc@ipcb .state.il .us
Edward J. Heisel
Interdisciplinary Environmental Clinic
Washington University School of Law
One Brookings Drive
Campus Box 1120
St. Louis, MO 63130-4899
ejheisel@wulaw.wustl.edu
Carolyn S . HesNe
399987vI
THIS FILING IS SUBMITTED ON RECYCLED PAPER
2
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
AMERICAN BOTTOM CONSERVANCY, )
Petitioner,
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY, and UNITED )
STATES
GRANITE
STEEL
CITY WORKS,CORPORATION
- )
)
Respondents.
)
PCB No. 2006-171
(NPDES Permit Appeal)
RECEIVEDCLERK'S
OFFICE
MAY 3 0 2007
Pollution
STATE OFControl
ILLINOIS
Board
UNITED STATES STEEL CORPORATION'S MOTION TO STAY ORDERS OF
JANUARY 26, 2007 AND MAY 3, 2007 PENDING APPEAL
Respondent, United States Steel Corporation - Granite City Works ("U . S . Steel"),
pursuant to Illinois Supreme Court Rule 335(g) and 35 Ill . Adm. Code § 101
.906(c), moves the
Board to stay its January 26, 2007 and May 3, 2007 Orders pending U
. S . Steel's appeal of the
same orders . In support of its Motion, U
. S . Steel states as follows :
1
.
The American Bottom Conservancy ("ABC")
filed a third-party appeal of IEPA's
issuance of the final NPDES permit issued to U . S
. Steel's Granite City Works facility ("Granite
City Works") on March 8, 2006 (the "Final Permit")
.
2.
ABC alleged, among other things,' that ]EPA violated its administrative duties by
denying ABC's request for a public hearing on the proposed permit .
3
.
On January 26, 2007, the Board entered an Opinion and Order and found that
IEPA violated 35 111 . Adm. Code 309.115(a)(1)
because IEPA should have held a public hearing
'
On September 21, 2006, the Board dismissed all substantive issues raised in ABC's pet'tion except the request for
a public hearing.
[This filing submitted on
recycled paper as defined in 35 III. Adm . Code 101 .202]
before issuing the Final Permit
. Because of IEPA's purported failure to hold a public hearing,
the Board invalidated the Final Permit
.
4.
On March 9, 2007, U . S
. Steel moved to reconsider the Board's decision,
including the Board's invalidation of the Final Permit
.
5 .
On May 3, 2007, the Board entered an order denying U
. S . Steel's Motion to
Reconsider
.2
6.
On May 25, 2007, U . S
. Steel filed a Petition for Review of the Board Orders to
the Appellate Court for the Fifth District
. U. S
. Steel now moves to stay the Board Orders
pending appellate review
.
7 .
The Board should stay the Board's Orders pending appeal because all of the
relevant factors for determining whether a stay should be granted are satisfied in this case
.
8.
The Illinois Supreme Court has stated that the purpose of a stay pending review
"is preventive or protective and seeks to maintain the status quo
." Stacke v. Bates, 138 Ill
. 2d
295, 309 (1990)
. In order to determine whether a stay pending appeal is appropriate, "[t]here are
numerous different factors which may be relevant when the court makes its determination and,
by necessity, these factors will vary depending on the facts of the case
."
Stacke, 138 Ill . 2d at
305
. The factors that can be considered are "whether a stay is necessary to secure the fruits of
the appeal in the event the movant is successful," "the movant's likelihood of success on the
merits," and "the likelihood the movant will suffer hardship
. . ." Id.
at 305-307. Indeed, the
Illinois Supreme Court has provided a "balancing process" that is to be conducted in assessing
whether to grant a stay pending appeal :
We believe that in all cases, the movant, although not required to
show a probability of success on the merits, must, nonetheless,
2
Collectively, the Board's January 26, 2007 and May 3, 2007 orders will be referred to as the "Board Orders
."
2
[This tiling submitted on recycled paper as defined in 35 Ill
. Adm . Code 101
.202]
present a substantial case on the merits and show that the balance
of the equitable factors weighs in favor of granting the stay . If the
balance of the equitable favors does not strongly favor movant,
then there must be a more substantial showing of a likelihood of
success on the merits. Thus a strong showing of the likelihood of
success on the merits may offset other equitable factors favoring
the other party .
Stacke, 138 111 . 2d at 309 .3
9.
Applying the process provided by the Illinois Supreme Court, as stated above, it is
clear that the balance of the equitable factors weigh in favor of granting the stay . A stay is
necessary to secure the fruits of U . S . Steel's appeal, which would be lost if the Board Orders are
immediately imposed; there is a reasonable likelihood of success for U . S . Steel's appeal ; and
U. S. Steel will suffer substantial and irreparable harm if a stay is not granted
. Furthermore,
even if the appellate court rules that a public hearing should be held on U
. S . Steel's permit, it is
likely that the new permit would contain the same conditions as the permit that the Board
invalidated .
10.
U . S
. Steel hereby incorporates its Memorandum in Support of Motion to Stay
Orders of January 26, 2007 and May 3, 2007 Pending Appeal filed currently herewith
.
WHEREFORE, U . S
. Steel requests that the Board enter an Order staying its January 26,
2007 and May 3, 2007 Orders pending U . S
. Steel's appeal, and grant all relief it deems fair and
just.
3
The
Stacke
Court assessed the parameters of Illinois Supreme Court Rules 305(a) and (b), which involve stays
pending appeal of a civil judgment, including non-monetary judgments similar to the one entered in the instant case .
3
[This filing submitted on recycled paper as defined in 35 III . Adm . Code 101 .202]
Carolyn S . Hesse
Erika K. Powers
David T. Ballard
Barnes & Thornburg LLP
One North Wacker Drive - Suite 4400
Chicago, Illinois 60606
(312) 357-1313
CHDSOI DTB 399265v1
Respectfully submitted,
U
. S. Steel Corporation - Granite City Works
CR-a-Q-e
4
[This filing submitted on recycled paper as defined in 35 Ill
. Adm . Code 101 .202]
BEFORE THE POLLUTION CONTROL BOARD RECEIVED
OF THE STATE OF ILLINOIS
CLERK'S OFFICE
AMERICAN BOTTOM CONSERVANCY,
)
MAY 3 0 2007
STATE OF ILLINOIS
Petitioner,
)
Pollution Control Board
v .
) PCB No . 2006-171
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY, and UNITED
)
STATES STEEL CORPORATION -
)
GRANITE CITY WORKS,
)
Respondents
.
)
UNITED STATES STEEL CORPORATION'S MEMORANDUM IN SUPPORT OF
MOTION TO STAY ORDERS OF JANUARY 26, 2007 AND
MAY3, 2007PENDING APPEAL
Respondent, United States Steel Corporation
- Granite City Works ("U. S
. Steel"),
pursuant to Illinois Supreme Court Rule 335(g) and 35 Ill
. Adm. Code § 101 .906(c), moves the
Board to stay its January 26, 2007 and May 3, 2007 Orders pending U
. S. Steel's appeal of the
same orders
. In support of its Motion, U . S . Steel states as follows
:
INTRODUCTION
The American Bottom Conservancy ("ABC")
filed a third-party appeal of IEPA's
issuance of the final NPDES permit issued to U
. S
. Steel's Granite City Works facility ("Granite
City Works") on March 8, 2006 (the "Final Permit")
.
Along with other issues that were
dismissed, ABC alleged that IEPA violated its administrative duties by denying ABC's request
for a public hearing on the proposed permit
. On January 26, 2007, the Board entered an Opinion
and Order and found that IEPA violated 35 111
. Adm . Code 309.115(a)(1)
because IEPA should
have held a public hearing before issuing the Final Permit
. Because of IEPA's purported failure
to hold a public hearing, the Board invalidated the Final Permit
. On March 9, 2007, U . S . Steel
[This
filing submitted on recycled paper as defined in 35 111
. Adm . Code 101
.2021
moved to reconsider the Board's decision, including the Board's invalidation of the Final Permit
.
On May 3, 2007, the Board entered an order denying U . S
. Steel's Motion to Reconsider .' On
May 25, 2007, U . S
. Steel filed a Petition for Review of the Board Orders to the Appellate Court
for the Fifth District . U . S. Steel now moves to stay the Board Orders pending appellate review
.
The Board should stay the Board's Orders pending appeal because all of the relevant
factors for determining whether a stay should be granted are satisfied in this case
. Specifically, a
stay is necessary to secure the fruits of U . S
. Steel's appeal, which would be lost if the Board
Orders are immediately imposed ; there is a likelihood of success for U . S
. Steel's appeal ; and
U. S
. Steel will suffer substantial hardship if a stay is not granted . Furthermore, even if a public
hearing is held on U
. S . Steel's permit, the new permit would contain the same conditions as the
permit that the Board invalidated
.
BACKGROUND FACTS
1.
U. S.
Steel's application for a renewed NPDES permit, public comment, and
issuance of Final Permit.
1 .
On October 14, 2002, U . S
. Steel submitted an application to renew its NPDES
permit to IEPA for its Granite City Works facility located in Granite City, Illinois
. R. 135 .2 This
facility has had NPDES permits ever since such permits have been required
. R. 554. After
conducting a thorough analysis of the facility and its discharges into Horseshoe Lake, on
December 19, 2004, IEPA issued a proposed NPDES permit for the Granite City facility (the
"Proposed Permit"), which would allow the facility to continue to discharge into Horseshoe Lake
Collectively, the Board's January 26, 2007 and May 3, 2007 orders will be referred to as the "Board Orders
."
Y
Citations of "R
. _," will be to the Administrative Record, "SR . ,"
will be to ABC's Second Supplement to
the Administrative Record, and "Trans
. ,"
will be to the Transcript from the November 20, 2006 hearing before
the Chief Administrative Officer .
2
[This
filing submitted on recycled paper as defined in 35 III . Adm
. Code 101 .2021
in compliance with Illinois water quality standards
. R. 518
. This proposed permit was noticed
for public comment
. The public comment period expired on January 18, 2005
.
2 .
On January 17, 2005, Kathleen Logan Smith submitted a comment to IEPA
regarding the Proposed Permit on behalf of the Health & Environmental Justice -
St . Louis
("HEJ")
.
R. 532
. The letter raised a question about the permit allowing lead to be discharged
into Horseshoe Lake (R . 532). U. S
. Steel does not use lead in its processes
. R. 601
.3 The letter
did not identify any regulations or sections of the Act that would be violated by the Proposed
Permit if it were issued . R . 532 .
3 .
On January 18, 2005, Katherine Andria and four other individuals submitted
comments related to the Proposed Permit on behalf of ABC, HEJ, Neighborhood Law Office
(East St
. Louis), Sierra Club, and Webster Groves Nature Study Society
. R
. 537-539 . The
January 18, 2006 letter provided numerous comments on issues that were unrelated to
U. S
. Steel's effluent and whether the Proposed Permit, if issued, would violate the Act or water
regulations
. IEPA determined that ABC's letter did not identify any provisions of the Act or
regulatory standards for the protection of water quality that would be violated if the Proposed
Permit were issued as drafted
. R. 537-539 .
4.
On March 8, 2006, IEPA issued the Final Permit for U
. S. Steel's Granite City
Works facility . R. 637
. On March 31, 2006, IEPA reissued the Final Permit to coincide with its
issuance of the responses to the comments it received
. R. 645, 648, 651-657
. The effective date
of the Final Permit was April 1, 2006
.
'
The increased limits that appear on paper are due to production changes and are consistent with calculations of
allowable discharges under the effluent limitation guidelines and federal rules at 40 C
.F.R. 420 . R. 601 .
3
[This filing submitted on recycled paper as defined in 35111
. Adm . Code 101
.2021
H.
U. S .
Steel's operations under the Final Permit .
On April 1, 2006, Granite City Works began operating its facility according to the
parameters of the Final Permit
. There were some differences between the Final Permit and the
NPDES permit under which Granite City Works previously operated, which will be discussed in
more detail below
. One of the most significant changes is that the Final Permit was written to
reflect new, more stringent water quality standards that apply to Horseshoe Lake
. These new
water quality standards were promulgated before the Final Permit was issued and after the
previous permit was issued
. A summary of some of the differences between the two permits
follows:
a.
The concentration-based limits were set to meet the water quality standards for
Horseshoe Lake
. See
Correspondence from Alan Keller at IEPA, dated April 10, 2006 (as
attached to ABC's First Motion to Supplement the Record), p
. 3 ("the Agency has concluded that
the NPDES permit issued March 31, 2006 is protective of water quality
. . .");
see also, id., pp .
2-5.
b.
The Final Permit included a new internal outfall for landfill leachate that would
allow landfill leachate from the National Steel Corporation's landfills to flow through an
underground pipe to U . S
. Steel's wastewater treatment plant instead of being transported above
ground with vehicles to the wastewater treatment plant
. R
. 478, 601 .° This permit condition has
no affect on the quality of the treated effluent
. In other words, the change in how the leachate
arrives at the treatment plant does not affect the quality of U
. S
. Steel's discharges to Horseshoe
Lake
. The leachate from the `landfills has been conveyed to the wastewater treatment plant
° In 2003, U. S
. Steel acquired the Granite City Works facility from National Steel Corporation but did not acquire
sections III and IV of the landfill or other lands
. Under the purchase agreement, U . S
. Steel agreed to continue
treating the landfill leachate
. National Steel Corporation had previously treated this landfill leachate in the
wastewater treatment system which is now owned by U
.S. Steel. R
. 260, 441, 601 .
4
[This riling submitted on recycled paper as defined in 35 I11
. Adm
. Code 101 .202]
since the landfills were created in the early 1980s . . . . The leachate wastestreams have been a
part of the final effluent of the facility and all effluent data evaluated over the years include this
source." R. 340 . (See also R. 302). "[T]reatment will remain the same ." Id. The Final Permit
only changes the allowable method for transporting leachate . See Affidavit of Carl Cannon,
attached as Exhibit A .
c.
The Final Permit concentration limits for ammonia are based on the general use
water quality standards, which apply to Horseshoe Lake . R
. 314, 509. The concentration based
limits in the Final Permit were set so that the ammonia water quality standards would be met in
Horseshoe Lake
.
R . 314, 509
. The Board revised the ammonia general use water quality
standards before the Final Permit was issued and after the previous permit was issued. Those
revisions are reflected in the Final Permit
. "With regard to ammonia, the difference in the limits
in the draft permit and the current permit reflect a revision in the water quality criteria used to
develop standards ." SR. X
. There is also a new weekly average concentration based limit for
ammonia that was not in the previous permit . Ex . A.
d.
Lead load limit levels in the permit increased because they are production-based
and production increased at the facility, even though U . S
. Steel does not use lead in its
production processes . SR
. 601, X. "A lead limit appears in the NPDES permit solely due to
Federal Categorical regulatory requirements that would apply to any steel mill in that category
.
The permit limits for categorical steel mills are production based ." SR. X. The effluent
limitation guidelines established at 40 CFR 420 determine the calculated allowable daily and
monthly loading limit for lead for the iron and steel manufacturing point source category . The
concentration based limit for lead changed because of changes in the water quality standard
.
5
[This filing submitted on recycled paper as defined in 35 Ill . Adm
. Code 101 .202]
There is a new 30-day average concentration limit for lead set at 0 .09 mg/L . Previously, there
was no 30-day average concentration based limit for lead . Ex. A.
e.
The limits are more stringent in the Final Permit for oil and grease, naphthalene
and total and available cyanide . For example, the daily load limit for available cyanide
decreased from 4.2 lb./day to 1 .1 lb./day. In addition, a different, more accurate test method is
required to test cyanide under the Final Permit . Ex . A.
f.
The concentration based limit for zinc was set to "assure that the dissolved zinc
water quality standard is met in Horseshoe Lake ." R . 314, 343 . Because the Board changed the
applicable zinc water quality standard between the time when the old permit was issued and
when the Final Permit was issued, some of the zinc concentration based limits went up, and
others went down . The Final Permit contains a new 30-day average zinc concentration limit of
0.17 mg/L that was not in the previous permit . Ex. A.
g.
The Final Permit also requires more frequent monitoring at outfall A01 Coke By-
products Wastewater . Under the previous permit, U . S . Steel was required to monitor
naphthalene and benzo(a)pyrene twice a month ; the new permit requires monitoring two times
per week for naphthalene and benzo(a)pyrene. Ex. A.
2.
Once the Final Permit was issued, U . S
. Steel modified piping and an internal
outfall to transport landfill leachate to its treatment system at a cost of approximately
$48,000.00. Ex. A. These costs included upgrading the sumps to the current configuration,
rebuilding pumps and installing guide rails in addition to the costs for the piping and monitoring
equipment . Ex . A . If U. S
. Steel is forced to comply with the prior permit because the Board
Order invalidating the Final Permit is not stayed, U
. S
. Steel will deconstruct the piping, and
transport the leachate with vehicles to the wastewater treatment system, as occurred under the
6
[This filing submitted on recycled paper as defined in 35111
. Adm . Code 101 .202]
prior permit. S
R. I and II; R. 302
. In addition to the costs of $36,000 to deconstruct the piping
modifications, the operating costs to store leachate in tanks at each sump and then transport it to
the wastewater treatment plant are expected to be approximately $128,000 per year
. Ex . A .
When ]EPA then issues a new permit that includes the internal outfall, U
. S . Steel will have to
re-construct the piping modifications at a cost roughly equal to $7,500 and at a risk to the
workers who would have to do the work in a confined space
. Ex. A.
These hazards arise
because a worker must be lowered into the leachate sumps to change the hard piping inside each
leachate sump
. The significant safety hazards associated with this work include confined space
entry, lockout/tagout requirements, hazardous atmosphere risk, and fall protection
. Ex . A.
III.
Administrative review of the Final Permit
.
1 .
On May 4, 2006, ABC filed its Petition for Review alleging among other things
that IEPA improperly denied ABC's request for a public hearing
. Petition for Review, 1127-29
.
2 .
U. S
. Steel and ]EPA filed motions to dismiss, and on September 21, 2006 the
Board dismissed all issues except whether IEPA should have held a public hearing
.
3 .
On November 20, 2006, a hearing was held before the Board Hearing Officer on
whether IEPA improperly denied ABC's request for a public hearing
.
4
. On January 26, 2007, the Board issued an Order finding that IEPA's decision not
to hold a public hearing prior to the issuance of the Final Permit violated section 309
.115(a) of
the Board's regulations. See Jan
. 26, 2007 Order, p . 14
. Specifically, the Board found "that the
two public comments filed in this case evidence a significant degree of public interest in the
proposed permit
." Id.
Based on its ruling that IEPA improperly failed to hold a public hearing,
the Board found that "the permit issued by the Agency on March 31, 2006, to U
. S . Steel for its
steelmaking facility at 20`
h
and State Streets, in Granite City, Madison County is invalid
." Id.
7
[This filing submitted on recycled paper as defined in 35 111
. Adm . Code 101 .202]
On March 9, 2007, U . S
. Steel filed an Amended Motion to Reconsider that
requested that the Board reconsider all legal aspects of its January 26, 2007 Order
.
6
.
On May 3, 2007, the Board denied the Motion to Reconsider
.
7 .
On May 25, 2007, U . S
. Steel filed a Petition for Review of the Board Orders to
the Appellate Court of Illinois for the Fifth District
.
ARGUMENT
I.
Standard of review for motion to stay pending appeal
.
The Illinois Supreme Court has stated that the purpose of a stay pending review "is
preventive or protective and seeks to maintain the status quo
." Stacke v . Bates,
138 IIL 2d 295,
309 (1990)
. In order to determine whether a stay pending appeal is appropriate, "[t]here are
numerous different factors which may be relevant when the court makes its determination and,
by necessity, these factors will vary depending on the facts of the case
." Stacke, 138 III
. 2d at
305
. The factors that can be considered are "whether a stay is necessary to secure the fruits
of
the appeal in the event the movant is successful," "the movant's likelihood of success on the
merits," and "the likelihood the movant will suffer hardship
. . ." Id. at 305-307
. In ruling on
motions for stays, "[t]he Board has held that it is not required to specifically address each
of
these factors in making a stay determination
."
North Shore Sanitary Dist
. v. IEPA, PCB No . 03-
146, 2006 Ill
. Env . LEXIS 156, *7 (March 20, 2003)
. Indeed, the Illinois Supreme Court has
provided a "balancing process" that is to be conducted in assessing whether to grant a stay
pending appeal
:
We believe that in all cases, the movant, although not required to
show a probability of success on the merits, must, nonetheless,
present a substantial case on the merits and show that the balance
of the equitable factors weighs in favor of granting the stay
. If the
balance of the equitable favors does not strongly favor movant,
then there must be a more substantial showing of a likelihood of
8
[This tiling submitted on recycled paper as defined in 35 111
. Adm . Code 101 .202]
success on the merits. Thus a strong showing of the likelihood of
success on the merits may offset other equitable factors favoring
the other party .
Stacke, 138 111. 2d at 309.5 Applying the above balancing approach set forth by the Supreme
Court, the Board should stay its invalidation of the Final Permit as provided in the Board Orders
pending U . S. Steel's appeal, because all of the above factors weigh in U . S. Steel's favor.
II.
The Board should stay its invalidation of the Final Permit pending appeal to protect
U. S. Steel's right to secure the fruits of a successful appeal .
A stay is necessary pending appeal to protect U . S . Steel's rights and the benefits derived
from its rights . As an initial matter, a stay is proper pending appeal because U . S. Steel is
entitled to protect its right to secure the benefits of the Final Permit under the Illinois
Environmental Protection Act (the "Act"), regardless of the Board's ruling that IEPA should
have held a public hearing
. Under section 39(a) of the Act, "[w]hen the Board has by regulation
required a permit for the construction, installation, or operation of any type of facility . . . . the
applicant shall apply to the Agency for such permit and it
shall be the duty of the Agency to
issue such a permit upon proof by the applicant that the facility . . . will not cause a violation of
this Act or of regulations hereunder
." 415 ILCS 5/39(a) (emphasis added) . Under this section,
U . S
. Steel timely filed an application with IEPA for an NPDES permit and met its burden of
proving that the permitted discharges would not cause a violation of the Act or regulations .
Accordingly, IEPA was required to issue an NPDES permit to Granite City Works because the
discharges from the facility will not cause a violation of the Act or its regulations . Nowhere in
the timely filed comments does ABC provide evidence that issuance of the permit would cause a
violation of the Act or regulations . Thus, U . S
. Steel has a clear right to have an NPDES permit
'
The Stacke Court assessed the parameters of Illinois Supreme Court Rules 305(a) and (b),
which involve stays
pending appeal of a civil judgment, including non-monetary judgments similar to the one entered in the instant case
.
9
[This riling submitted on recycled paper as defined in 35 III
. Adm . Code 101 .202]
issued to it under the Act, and a stay is necessary to protect the benefits that derive from that
right during the pending appeal
.
If the Board does not stay the permit invalidation, the status quo will be altered on appeal,
and Granite City Works will be forced to spend money to disconnect and modify piping that
U . S
. Steel modified to comply with the Final Permit in order to return to operating conditions
regulated under the old permit
. When the issues related to its NPDES permit are finally
resolved, U. S
. Steel will be required to modify the piping again
. As evidenced by the affidavit
of Carl Cannon, making the change is not a simple matter of turning a faucet off and on again
.
See Ex. A. If U. S
. Steel is forced to switch from operating under the Final Permit, in its
previous permit (while prosecuting its appeal), and then back to the conditions in the Final
Permit (should it prevail on its appeal or a new permit be issued with this condition if it does not
prevail) U . S
. Steel will be deprived of the benefit of pursuing an appeal . Ex . A
. The purpose of
a stay is to maintain the status quo
(Stacke, 138 Ill. 2d at 309) . Accordingly, the Board Orders
invalidating the Final Permit should be stayed pending U . S
. Steel's appeal to protect
U. S. Steel's right to its NPDES permit
.
There was no evidence presented by ABC that the Granite City facility's operation under
the Final Permit would cause a violation of the Act or its regulations
. Rather the Board found
that IEPA violated 35 111 . Adm . Code 309
.115(a)(1) because IEPA did not hold a public hearing
on the proposed permit
. This finding does not equate to a finding that the permitted discharges
would violate the Act or applicable regulations .
Because the facility's operations under the
conditions of the Final Permit would not violate the Act or regulations, IEPA had a duty under
section 39(a) of the Act to issue the Final Permit and the Final Permit was properly issued
.
Further, regardless of the outcome of the appeal, U
. S
. Steel will ultimately have a permit that
10
[This filing submitted on recycled paper as defined in 35 Ill
. Adm . Code 101
.202]
includes the piping and the internal outfall to transport the leachate to its wastewater treatment
plant. If U . S. Steel prevails on appeal, the Final Permit will be valid ; if it loses the appeal, a
public hearing will be held and the permit that will be issued will include the piping and internal
outfall . The effluent limit and quality of the effluent are not affected by the means of getting the
effluent to the wastewater treatment plant . Consequently, there is no harm to the environment if
the status quo is preserved by a stay. Thus, the Board should stay its decision to invalidate the
permit .
III.
U . S.
Steel will suffer a substantial hardship if the invalidation of the Final Permit is
not stayed pending appeal .
As discussed above, Granite City Works has been operating under the Final Permit for
approximately a year, and has made modifications to its facility and operations in reliance on the
requirements contained in the Final Permit
. If invalidation of the Final Permit is not stayed and
U. S . Steel is forced to comply with the prior permit until a new one is issued, U . S . Steel will
have to deconstruct the modifications that were made to comply with its previous NPDES permit
and then reconstruct the modifications after either U . S . Steel prevails on appeal or IEPA issues a
new permit, after a public hearing, with the same provisions as the Final Permit . A stay is
necessary to avoid this nonsensical situation .
Under Illinois rules, there is no mechanism to protect against such a result pending appeal
other than a stay of Board Orders . For instance, because U . S
. Steel is the appealing party and
neither ABC nor IEPA can be required to post a
supersedeas bond to protect against such
construction costs if the Appellate Court reverses, the costs will simply be imposed on
U . S. Steel, even though U . S
. Steel did nothing wrong and a reversal would mean that it was the
prevailing party
. In addition to unnecessary costs, the work will require pipe-fitters to conduct
I1
[This filing submitted on recycled paper as defined in 35 Ill . Adm . Code 101
.202]
potentially unnecessary work that raises safety concerns because they will need to enter confined
spaces
. All of these consequences will be avoided by granting a stay
.
IV.
Probability of success on the merits of U. S .
Steel's appeal .
While the Stacke
Court held that a movant is not required to show a probability of
success on the merits where the equitable factors weigh in favor of granting a stay
(Stacke, 138
Ill. 2d at 309), and U . S
. Steel has shown above that the equitable factors weigh in favor of
granting a stay, there is a probability of success on the merits of U . S
. Steel's appeal .
A.
The Board Order applied the wrong standard of review for determining
whether IEPA should have held a public hearing
.
In its Order, the Board correctly stated the standard of review for issuance of a permit
was that "American Bottom must establish that the permit issued to U . S
. Steel will violate the
Act or Board regulations in order for the Board to find for American Bottom in this matter
."
Jan
. 26, 2007 Order, p . 13 .
However, the Board improperly applied that standard when it
determined that U . S
. Steel's permit was invalid because IEPA violated 35 111
. Adm . Code
309
.115(a)(1) when IEPA determined that a public hearing on the proposed permit was not
warranted .
Further, the Board applied the wrong standard of review to 35 111
. Adm . Code
309.115(a)(1)
when the Board held that "the Board does not apply an `abuse of discretion'
standard as advocated by U . S
. Steel ." Id.
Both of these holdings were improper and will likely
be reversed on appeal .
Under 35 111
. Adm . Code 309
.115(a)(1), IEPA determines whether a party has
demonstrated a significant degree of public interest sufficient to warrant the holding of a public
hearing
. IEPA's decision to hold a public hearing "is a discretionary decision to be made by the
Agency." Borg-Warner Corp
. v. Mauzy, 100 111
. App. 3d 862, 867, 427 N
.E.2d 415, 419 (3d
12
[This filing submitted on recycled paper as defined in 35111
. Adm
. Code 101 .2021
Dist. 1981). The Borg-Warner Court further explained the standard for demonstrating that IEPA
should allow a public hearing, stating that 35 111
. Adm
. Code 309 .115 :
establishes that the party requesting a public hearing has the
burden of showing why it is warranted . Certainly, 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 .
Id. ; Marathon Oil Co . v. IEPA, PCB No . 92-166, 1994 Ill . ENV. LEXIS 488, *18-19 (IPCB,
March 31, 1994) ("Whether an Agency hearing is to be held in an NPDES permit review is
discretionary with the Agency, as has been declared by the [Borg-Warner] court .")6
Accordingly, IEPA's decision to not grant ABC's request for a public hearing was within IEPA's
discretion and should have been reviewed by the Board for an abuse of discretion .
Under the abuse of discretion standard, an agency abuses its discretion when it makes a
decision "without employing conscientious judgment or when the decision is clearly against
logic ." Deen v. Lustig, 337 Ill. App . 3d 294, 302, 785 N .E.2d
521, 529 (4th Dist . 2003) (citing
Bodine Electric of Champaign v. City of Champaign, 305 111 App . 3d 431, 435, 711 N .E.2d 471,
474 (4th Dist . 1999) ("the question is whether . . .
the court exceeded the bounds of reason and
ignored recognized principles of law so that substantial prejudice resulted
.")); see also Whirlpool
Corp. v
. Certain Underwriters at Lloyd's London, 295 Ill. App . 3d 828, 839, 692 N.E.2d 1229,
1237 (1st Dist . 1998) ; Modine Manufacturing Co. v. PCB, 192 Ill . App
. 3d 511, 519, 548 N .E .2d
1145, 1150 (2d Dist . 1989) (no abuse of discretion unless the agency acted "unreasonably or
arbitrarily.")
a
The Borg-Warner Court
interpreted former Water Rule 909(a), the language of which was identical to 35 III
.
Adm
. Code 309 .115(a)
. Accordingly, the Court was aware of the word "shall" in the regulation
. Despite the "shall"
in the regulation, the Court still ruled that IEPA's decision to hold a public hearing is reviewed for an abuse of
discretion .
Borg-Warner, 100 Ill . App. 3d at 867, 427 N .E.2d at 419 .
13
[This tiling submitted on recycled paper as defined in 35 Ill . Adm . Code 101 .202]
Applying the proper abuse of discretion standard as set forth by the Appellate Courts,
there is a likelihood that the Court on appeal will find that IEPA did not abuse its discretion in
finding that a public hearing on the Proposed Permit was not warranted
. Thus, IEPA properly
decided not to hold a public hearing on the Proposed Permit
. The language in
section 309 .115(a)(1) that states "instances of doubt shall be resolved in favor of holding the
hearing," does not undermine such conclusion . Specifically, there is no information in the record
that indicates any doubt on the Agency's part that a hearing was not warranted . The record
supports the fact that the Agency considered ABC's timely filed comments and concluded that, a
hearing was not warranted because those comments did not raise issues that would lead to
changes in the permit
. SR. X. Accordingly, the Agency correctly determined that a hearing on
the Proposed Permit was not necessary because no information would be gained that would
result in a change in the permit. Id. ("The comments do not provide any additional information
the Agency would use for inclusion in the reissued permit .") )EPA also determined that "the
issues raised by the environmental groups regarding permit limits and past violations are easily
answered, and the overall concerns for Horseshoe Lake have been and continue to be addressed
in 303(d) discussions and hearings that have opportunity for public participation." Id
.
Thus, the
Final Permit was properly issued without holding a public hearing . Id. U
. S
. Steel will likely
succeed in its appeal .
In the end, ABC did not present sufficient evidence to demonstrate that IEPA abused its
discretion or violated the Act or its regulations in denying ABC's public hearing request, and,
thus, U. S . Steel will likely succeed on appeal of the Board Orders.'
'
Moreover, if the public hearing is ordered, there is a likelihood that the Final permit will not be invalidated
because U . S . Steel complied with section 39(a) of the Act
.
See part 11
supra . If the Final Permit is not invalidated,
but a public hearing is ordered, the proper remedy is for IEPA to hold a public hearing, and then modify the Final
Permit, if needed, after the hearing .
14
[This filing submitted on recycled paper as defined in 35 Ill . Adm . Code 101 .2021
CONCLUSION
For the foregoing reasons, U . S. Steel requests that the Board stay its January 26, 2007
and May 3, 2007 Orders pending U . S . Steel's appeal, and grant all relief it deems fair and just .
Respectfully submitted,
U. S. Steel Corporation - Granite City Works
By: One
of Its
, of ItsAI a-~
tto eys
Carolyn S . Hesse
Erika K. Powers
David T . Ballard
Barnes & Thornburg LLP
One North Wacker Drive - Suite 4400
Chicago, Illinois 60606
(312) 357-1313
399900v1
15
[This filing submitted on recycled paper as defined in 35 Ill . Adm . Code 101 .202]
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
AMERICAN BOTTOM CONSERVANCY, )
Petitioner,
)
v.
) PCB No . 2006-171
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY, and UNITED
)
STATES STEEL CORPORATION -
)
GRANITE CITY WORKS,
)
Respondents .
)
AFFIDAVIT OF CARL CANNON
I, Carl Cannon, the undersigned, being first sworn on oath, states as follows :
1 .
My name is Carl Cannon, I am over the age of 21 years and competent to testify
in court if called to do so . I have personal knowledge of the facts set forth in this affidavit .
2 .
1 am currently employed by U . S. Steel in its Granite City Works facility at 1951
State Street, Granite City, Illinois 62040
. I am employed as an environmental manager for the
facility, in the Environmental Department, which administers the environmental compliance
programs and practices at Granite City Works
.
3 .
In reliance upon the NPDES permit issued by the Illinois Environmental
Protection Agency ("IEPA") on March 31, 2006, the Granite City Works modified piping at its
facility to facilitate the transport of National Steel Corporation sections III and IV landfill
leachate to Granite City Works wastewater treatment system
. The March 31, 2006 permit
allowed for an additional internal outfall for the leachate that did not exist in Granite City
Works' previous NPDES permit.
EXHIBIT
A
4.
Because the previous permit did not have the internal outfall, U
. S. Steel
transported the landfill leachate by vehicles to the wastewater treatment system prior to the
issuance of the March 31, 2006 permit
.
5.
The modification of the piping and installation of monitoring equipment for the
outfall in 2006 cost U . S
. Steel approximately $48,000 . These costs included upgrading the
sumps to the current configuration, rebuilding pumps and installing guide rails in addition to the
costs for the piping and monitoring equipment
.
6.
To deconstruct the piping modifications would cost U
. S. Steel approximately
$36,000 .
7.
To store and truck the National Steel Corporation landfill leachate to the U
. S.
Steel wastewater treatment system would cost U . S
. Steel approximately $128,000 per year .
8.
To reconstruct similar piping modifications would cost approximately $7,500
.
9.
The piping is in a confined space, which raises safety concerns for construction
workers operating in that space
. Such work raises work hazards because a worker must be
lowered into the leachate sumps to change the hard piping inside each leachate sump
.
Significant safety hazards associated with this work include confined space entry, lockout/tagout
requirements, hazardous
atmosphere risk, and fall protection
.
10.
There were differences between the NPDES permit for Granite City Works issued
by IEPA on March 31, 2006 and the NPDES permit under which Granite City Works previously
operated, some of the differences are stated below
:
a.
The March 31, 2006 Permit included a new internal outfall for landfill
leachate that would allow landfill leachate from the National Steel
Corporation's landfills to flow through an underground pipe to
2
U. S. Steel's wastewater treatment plant instead of being transported
above ground with vehicles to the wastewater treatment plant . This new
condition only changes the allowable method for transporting leachate,
and has no affect on the quality of the treated effluent ;
b.
There is a weekly average concentration based limit for ammonia in the
March 31, 2006 Permit that was not in the previous permit for Granite
City Works ;
c.
There is a new 30-day average concentration limit for lead set at 0 .09
mg/L, whereas the previous permit did not have a 30-day average
concentration based limit for lead ;
d.
The limits are more stringent in the March 31, 2006 Permit for oil and
grease, naphthalene and total and available cyanide than in the previous
permit;
e.
A different, more accurate test method to test cyanide is used in the March
31, 2006 Permit than the previous permit and the allowable daily load
limit for available cyanide decreased from 4 .2 lb ./day to 1 .1 lb./day
;
f.
The March 31, 2006 Permit contains a new 30-day average concentration
limit of 0 .17 mg/L for zinc ; whereas the prior permit did not contain a 30-
day average limit for zinc ;
g.
The March 31, 2006 Permit requires more frequent monitoring at outfall
A01, Coke By-Products Wastewater. Under the previous permit,
U . S . Steel was required to monitor naphthalene and benzo(a)pyrene twice
3
a month
; the March 31, 2006 Permit requires monitoring for naphthalene
and benzo(a)pyrene twice per week .
Under penalties as provided by law pursuant to Section 1-109 of the Illinois Code of
Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true
and correct, except as to matters therein stated to be on information and belief and as to such
matters the undersigned certifies as aforesaid that he verily believes the same to be true
.
Executed on this 30 day of May 2007 .
Carl
.ZL/
ann
K~2~~
n
399873v1
4
