BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
AMERICAN BOTTOM CONSERVANCY,
)
)
Petitioner,
)
) Case No. PCB 2006-171
) (3rd Party NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY, and UNITED STATES STEEL
)
CORPORATION - GRANITE CITY WORKS
)
)
Respondents.
)
NOTICE OF FILING
To:
Jason R. Boltz
David T. Ballard
Division of Legal Counsel
Barnes & Thornburg L.L.P.
Illinois Environmental Protection Agency
One North Wacker Drive
1021 North Grand Avenue East
Suite 4400
P.O. Box 19276
Chicago, IL 60606
Springfield, IL 62794-9276
david.ballard@btlaw.com
jason.boltz@illinois.gov
Carol Webb, Hearing Officer
Carolyn S. Hesse
Illinois Pollution Control Board
Barnes & Thornburg L.L.P.
1021 North Grand Avenue East
One North Wacker Drive
P.O. Box 19274
Suite 4400
Springfield, IL 62794-9274
Chicago, IL 60606
webbc@ipcb.state.il.us
carolyn.hesse@btlaw.com
PLEASE TAKE NOTICE
that on November 5, 2008, there was filed with the
Clerk of the Illinois Pollution Control Board of the State of Illinois a copy of
Petitioner’s
Brief on Remand.
Respectfully submitted
_______/s/________________________
Maxine I. Lipeles, Director
Interdisciplinary Environmental Clinic
Washington University School of Law
One Brookings Dr., Campus Box 1120
St. Louis, MO 63130-4899
314-935-5837 (phone); 314-935-5171 (fax)
milipele@wulaw.wustl.edu
Electronic Filing - Received, Clerk's Office, November 5, 2008
1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
AMERICAN BOTTOM CONSERVANCY,
)
)
Petitioner,
)
) Case No. PCB 2006-171
v.
) (3rd Party NPDES Permit Appeal)
)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY, and UNITED STATES STEEL
)
CORPORATION - GRANITE CITY WORKS,
)
)
Respondents.
)
BRIEF OF PETITIONER AMERICAN BOTTOM CONSERVANCY ON
REMAND
I. INTRODUCTION
The Illinois Environmental Protection Agency (“IEPA” or the “Agency”) abused
its discretion by issuing a renewal NPDES permit to United States Steel (“U.S. Steel”),
authorizing the company to discharge up to 25 million gallons per day of industrial waste
into a lake in a state park, without holding a public hearing. Whereas the governing
regulation directs IEPA to hold a public hearing when it determines there is significant
public interest in the permit, 35 Ill. Adm. Code § 309.115(a)(1) (2005), and five
organizations representing 27,000 members requested a public hearing and stated various
concerns about the impact of U.S. Steel’s water pollution discharge on Horseshoe Lake,
IEPA made no evaluation of the public interest in the permit, denied the public hearing
request without explanation, and acted as if it had unfettered discretion to deny a public
hearing request for any reason or no reason. At the same time, IEPA implicitly conceded
that there was public interest in the permit. Moreover, ABC demonstrated, both in its
written comments requesting the public hearing and in the evidentiary hearing in this
Electronic Filing - Received, Clerk's Office, November 5, 2008
2
appeal, that there indeed is significant public interest in the U.S. Steel permit.
Accordingly, IEPA’s decision to issue the U.S. Steel NPDES permit without holding a
public hearing should be invalidated and remanded to IEPA with instructions to hold a
public hearing before re-issuing a permit.
II. FACTUAL BACKGROUND
On December 19, 2004, IEPA published a public notice for a proposed NPDES
renewal permit for U.S. Steel’s Granite City Works. (AR 518-28).
1
As proposed, and as
issued, the permit allows U.S. Steel to discharge up to 25 million gallons of industrial
wastewater into Horseshoe Lake, which is the centerpiece of Horseshoe Lake State Park.
(AR 524-28, 651-57).
2
The Lake has no outflow during dry periods. (AR 312).
During the public comment period on the draft permit, five organizations
representing some 27,000 members asked IEPA to hold a public hearing. These requests
were set forth in two comment letters. One letter was jointly submitted by the American
Bottom Conservancy (“ABC”), Sierra Club, Webster Groves Nature Study Society,
Health & Environmental Justice-St. Louis, and the Neighborhood Law Office (AR 533-
36), and the other was submitted by Health & Environmental Justice-St. Louis (AR 532).
In support of their hearing request, the organizations cited concerns about “discharges of
toxic heavy metals known to accumulate in biological organisms,” the fact that
Horseshoe Lake was already violating applicable water quality standards for several
pollutants discharged by U.S. Steel, that academic studies had shown high levels of
metals in the Lake’s sediment, and that U.S. Steel-Granite City Works had a history of
1
Citations to the IEPA’s record are designated “AR __”; citations to the transcript of the Board hearing that
took place on November 20, 2006 are designated “Tr. __”; citations to the Board’s administrative record
are designated “C __.”
2
IEPA made two changes from the draft to the final permit, both in response to comments submitted by
U.S. Steel.
Electronic Filing - Received, Clerk's Office, November 5, 2008
3
non-compliance with environmental requirements. (AR 532-36). The letters also pointed
out that Horseshoe Lake is located within a popular state park and is used heavily for
recreation, including for bird watching, hunting, and fishing and that many people
consume fish from the Lake, some for subsistence purposes.
Id.
More than 14 months passed between the end of the written comment period and
IEPA’s issuance of the final permit. Despite this lengthy period of time, IEPA neither
provided a public hearing, nor performed an evaluation of whether there was public
interest in the permit, nor explained its basis for denying the public hearing request.
ABC timely filed a Petition for Review, seeking the Board’s review of various
effluent limits in the permit and of IEPA’s denial of a public hearing. By Order dated
September 21, 2006, the Board dismissed ABC’s claims challenging the effluent limits
because the claims were not based on comments submitted during the initial thirty-day
public comment period, but rather were based on supplemental comments ABC had
submitted during the more than one-year period between the public notice and permit
issuance. The Board’s Order, however, stated that ABC’s petition had “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.” The Board held an evidentiary hearing on
November 20, 2006, regarding whether IEPA’s denial of the public hearing request
complied with the Board’s public hearing regulation, 35 Ill. Admin. Code §
309.115(a)(1).
On January 26, 2007, the Board issued its Order on the merits and found that
“there is a significant degree of public interest in this case.” The permit was thus held
Electronic Filing - Received, Clerk's Office, November 5, 2008
4
invalid, for IEPA had “violate[d] Section 309.115(a) of the Board’s regulations” when it
made the “clearly incorrect” decision not to hold a public hearing.
U.S. Steel and IEPA appealed to the Fifth District Appellate Court. The Court
vacated the Board’s Order and remanded the case to the Board with limited instructions
to review IEPA’s decision based on an abuse of discretion standard of review.
United
States Steel Corp. v. Illinois Pollution Control Board
, 384 Ill.App.3d 457, 892 N.E.2d
606, 611-613 (Ill. App. 2008) (“
U.S. Steel
”).
III.
APPLICABLE REGLATIONS AND STANDARD OF REVIEW
The Board’s regulations require IEPA to hold a public hearing on an NPDES
permit when IEPA determines there is significant public interest in the permit:
The Agency shall hold a public hearing on the issuance or denial of an
NPDES Permit or group of permits whenever the Agency determines that
there exists a significant degree of public interest in the proposed permit or
group of permits (
instances of doubt shall be resolved in favor of holding
the hearing
), to warrant the holding of such a hearing.
35 Ill. Admin. Code § 309.115(a)(1) (2005) (emphasis added) (“§ 309.115”).
While the public hearing regulation grants some discretion to IEPA in
determining whether to hold a public hearing, the regulation hems in that discretion in
three critical respects. First, the regulation directs IEPA to consider one and only one
factor – the public interest in the permit – in deciding whether to hold a public hearing.
Second, the regulation directs IEPA to resolve instances of doubt in favor of holding the
hearing. Third, the regulation states that IEPA “shall” – not “may” – hold a public
hearing when there is significant public interest in the permit.
Even under the federal Clean Water Act, which does not so heavily weight the
scales in favor of public hearings as the Illinois regulation, public participation is an
Electronic Filing - Received, Clerk's Office, November 5, 2008
5
“essential element” of the NPDES program and Congress intended for the public to have
a “genuine opportunity to speak on the issue of protection of its waters.”
Costle v.
Pacific Legal Foundation
, 445 U.S. 198, 216 (1980) (
quoting
S. Rep. No. 92-414, at 72
(1971)).
IEPA’s decision not to hold a public hearing is reviewed under an abuse of
discretion standard. The Board must evaluate “whether the agency made an arbitrary
decision, without using conscientious judgment, or if, in view of all the circumstances,
the Agency overstepped the bounds of reason, ignored the law, and thereby caused
substantial prejudice.”
U.S. Steel
, 892 N.E.2d at 613 (
citing In re Marriage of Munger
,
339 Ill. App. 3d 1104, 1107 (App. 4
th
Dist. 2003)).
This review focuses on IEPA’s record, which “must [i]nclude any information the
Agency relied upon in making its final decision.” 35 Ill. Adm. Code § 105.212(b)(5)
(2008). The record should contain a rational explanation of how IEPA decided not to
hold a public hearing.
See Lewis v. Hayes
, 152 Ill. App. 3d 1020, 1024 (App. 3
rd
Dist.
1987).
IV.
ARGUMENT
IEPA abused its discretion from start to finish in handling the public hearing
requests in this case. The Agency never evaluated the degree of public interest – the sole
criterion to be considered – and acted as if it had unfettered discretion to deny the
requests for no reason or any reason, without regard for the public interest. Moreover,
while the Agency implicitly acknowledged the public interest in the permit, it denied the
hearing requests anyway.
Electronic Filing - Received, Clerk's Office, November 5, 2008
6
It is hard to imagine a permit more deserving of a public hearing than the U.S.
Steel permit in this case. The permit authorizes a massive industrial discharge into an
already-polluted lake that is the centerpiece of a popular state park where people fish and
eat their catch. Five organizations representing some 27,000 members requested a public
hearing.
A.
IEPA Unlawfully Acted as if it had Unfettered Discretion in Rejecting the
Public Hearing Request.
1.
IEPA Failed to Evaluate the Degree of Public Interest in the
Permit.
Throughout its review of the draft U.S. Steel permit, IEPA acted as though it had
unfettered discretion to grant or deny a public hearing request. In its public notice
regarding the draft permit, the Agency stated: “If written comments or requests indicate a
significant degree of public interest in the draft permit, the permitting authority
may, at
its discretion
, hold a public hearing.” (AR 518, 522) (emphasis added). This notice
contained two key errors. First, it tellingly omitted the sole criterion by which IEPA is
required to assess hearing requests – the public interest in the permit. Second, it
substantially overstated the scope of the Agency’s discretion by indicating, without
qualification, that the IEPA “may, at its discretion” hold a hearing rather than, as the
regulation requires, the IEPA “shall” hold a public hearing if it finds a significant degree
of public interest in the permit.
See
35 Ill. Adm. Code § 309.115(a)(1) (2005). These two
errors reflect more than sloppy draftsmanship; they foreshadow the fatal flaws in IEPA’s
handling of the public hearing requests – i.e., its failure to evaluate the public interest in
the permit, and its rejection of the hearing requests on the assumption that it could do so
for any reason or no reason.
Electronic Filing - Received, Clerk's Office, November 5, 2008
7
IEPA’s first action regarding the comment letters requesting a public hearing was
to consider U.S. Steel’s response to them. On April 25, 2005, IEPA received a letter from
U.S. Steel that provided its technical responses to the organizations’ concerns and
concluded: “USS believes the comments submitted to IEPA are largely irrelevant to the
permit, and are adequately addressed in this correspondence. Therefore a public hearing
is unjustified and further delay in the reissuance of [the permit] is unwarranted.” (AR
553-557). Not that doing so would have relieved the IEPA of its obligation to assess the
public hearing request from the perspective of the regulatory agency – not the regulated
entity, U.S. Steel provided no analysis of the public interest in the permit. Although U.S.
Steel had already informed IEPA that the company did not favor a public hearing, IEPA
met with U.S. Steel “to discuss the Public Hearing issue” on May 13, 2005. (AR 601).
An internal memo briefly mentions that the Agency’s permit writer and Industrial Unit
Manager met with three representatives from U.S. Steel for that purpose.
Ibid
. Nothing
in the memo mentions the public interest in the permit.
Ibid.
After that meeting, IEPA appears to have ignored the public hearing requests for
the next nine months, until it was almost ready to issue the permit. The next mention of
the public hearing requests appears in a February 8, 2006 memorandum from Toby
Frevert, the Manager of the Division of Water Pollution Control, to Marcia Willhite, the
Chief of the Bureau of Water (the “Frevert memo”) (C 286). This one-page
memorandum constitutes the Agency’s only analysis of the public hearing requests
during the 14-month period between its receipt of the comment letters and its issuance of
the final permit. Nowhere does the memorandum evaluate the public interest in the
permit. Rather, the memorandum opens with the recommendation to issue the permit
Electronic Filing - Received, Clerk's Office, November 5, 2008
8
“without further delay” and then discusses several reasons why a public hearing would
not be of interest to IEPA. Absent from the memorandum is any discussion of the only
relevant question – whether a hearing would be of interest to the public.
The Frevert memo supports its recommendation to forego a public hearing with
two points. First, it states that the issues raised are “easily answered” and “[t]he
comments do not provide any additional information” of benefit to IEPA in issuing the
permit. (C 286). In short, IEPA should not hold a public hearing because the hearing
would not be of benefit to the Agency in issuing the permit. That analysis entirely misses
the point of the governing regulation, which asks whether there is significant public
interest – not IEPA interest and not permittee interest – in a public hearing. 35 Ill. Admin.
Code § 309.115(a)(1).
In addition to providing information to the Agency, public hearings are also held
“to provide opportunity for the public to understand and comment on the permit.” 35 Ill.
Admin. Code § 106.111(b) (2005). Although Mr. Frevert acknowledged that the permit
conditions were “confusing to citizens and advocacy groups,” he neglected to note the
potential value of a public hearing in explaining to the public why the apparent increases
in discharge limits for harmful pollutants such as lead and ammonia should not be of
concern to them. (C 286). Public hearings provide the public its only opportunity to ask
questions of and seek clarification from the IEPA regarding the “confusing” aspects of
technically complex permits. In addition, the opportunity for give-and-take at a public
hearing creates the possibility that community concerns may prompt the Agency to look
more closely at some of the issues raised.
Electronic Filing - Received, Clerk's Office, November 5, 2008
9
Furthermore, public hearings provide an opportunity for some of the people most
directly affected by the permit, such as subsistence fishermen, to learn more about the
permit and U.S. Steel’s industrial discharge into Horseshoe Lake. Subsistence fishermen
are not likely to have the time or expertise to work through a “confusing” and technical
permit, but they should nonetheless have an opportunity to ask questions of and express
concerns to IEPA in the more informal setting of a public hearing. If IEPA had taken the
public interest into account, it would likely have considered such factors.
Second, the Frevert memo advises against holding a public hearing regarding the
U.S. Steel permit authorizing wastewater discharges into Horseshoe Lake because the
commenters have an opportunity for a public hearing regarding Horseshoe Lake in a
separate proceeding, under section 303(d) of the Clean Water Act. This essentially
acknowledges that there is public interest in U.S. Steel’s discharge into Horseshoe Lake
worthy of a public hearing, and suggests that the 303(d) hearing substitute for a separate
hearing regarding U.S. Steel’s NPDES permit. The governing regulation, however, does
not provide an exception for NPDES public hearings where other hearings are available
regarding the receiving water. Rather, the governing regulation makes clear that when
there is significant public interest in a permit, IEPA “shall” hold a public hearing. The
only forum where the public can provide oral comment on a proposed permit, ask
questions regarding permit limits for a major industrial discharger, and create a record for
a possible appeal of the adequacy of such permit limits, is an NPDES permit public
hearing.
Wesley Brazas v. IEPA
, PCB 06-131 slip op. at 3-4 (May 4, 2006); 415 ILCS
5/40(e)(2) (2004). No comment provided during a 303(d) hearing can be used as a basis
for an NPDES appeal. Denying a public hearing in favor of a 303(d) hearing causes
Electronic Filing - Received, Clerk's Office, November 5, 2008
10
substantial prejudice to organizations concerned about the adequacy of the terms and
conditions in an NPDES permit.
Following the Frevert memo, the only other IEPA document mentioning the
comment letters prior to the permit’s issuance was a brief February 27, 2006 e-mail from
Ms. Willhite to Doug Scott, the IEPA Director (“Willhite e-mail”) (C 288). This
communication also did not evaluate the public interest. Rather, Ms. Willhite
recommended to Mr. Scott that he deny the request on two bases. One was time:
Doug, we received a hearing request on the renewal of this permit last
year. Regrettably, due to staff losses, a year has passed since we public
noticed the permit. Yet this request is still outstanding. We would like to
move forward to issue the permit and recommend that a meeting with the
environmental group be held instead of a hearing.
Ibid
. The other is misconstrued authority. This final communication mentioning the
comment letters ends with: “
Since hearings are held at the discretion of the Director
, I’m
asking if you would be comfortable with us denying the hearing request, but having a
meeting and issuing the permit as quickly as possible.”
Ibid.
(emphasis added). This
makes clear that IEPA based its public hearing denial on the erroneous belief that it could
do so for any reason or no reason, and without evaluating the public interest in the permit,
contrary to the constraints of the governing regulation.
See
35 Ill. Adm. Code § 309.115.
IEPA then issued the permit to U.S. Steel without responding to the commenting
organizations in any fashion. (AR 644). Only after ABC inquired about procedural
irregularities did IEPA mail out cursory responses. (AR 645-57). The responses to the
two comment letters were identical (AR 646-47, 649-50), although the letters raised
different issues (AR 532-36). This too suggests that IEPA paid little attention to the
content of the comment letters. As with the internal communications, the responses
Electronic Filing - Received, Clerk's Office, November 5, 2008
11
contained no mention, let alone evaluation, of the public interest governing public
hearings. (AR 646-47, 649-50). Most significantly, the letters neither acknowledged the
organizations’ requests for a public hearing nor offered any explanation for denying the
hearing requests.
The Agency never evaluated the only criterion within its discretion – public
interest in the proposed permit – before deciding not to hold a public hearing. This
cannot be attributed to a lack of ample time in which to do so: More than fourteen
months passed from the time of the public comment period until IEPA issued the permit.
(AR 518, 648). Yet
nothing
in the administrative record covering this period documents
that IEPA ever considered the comment letters for indications of the public interest in the
permit.
IEPA thus abused its discretion by never evaluating the degree of public interest
and by acting as though it had the discretion to deny the public hearing for any reason or
no reason at all. IEPA accordingly made its hearing denial decision outside of the bounds
of the governing regulation. The decision is an abuse of the limited discretion provided
to the Agency under 35 Ill. Adm. Code § 309.115(a)(1). “[T]he use of the word
‘judgment’ is not a roving license to ignore the statutory text. It is but a direction to
exercise discretion within defined statutory limits.”
Massachusetts v. EPA
, 549 U.S. 497,
127 S.Ct. 1438, 1462 (2007). Here, IEPA never acted within the defined limits of §
309.115 and actually only acted outside of them.
In addition, IEPA abused its discretion by failing to offer a legally sufficient
rationale for its decision. “[A]n administrative agency is required to examine relevant
facts and articulate a sufficient explanation for its action…. There must be a rational
Electronic Filing - Received, Clerk's Office, November 5, 2008
12
connection between the facts considered and the decision made.”
Lewis v. Hayes, supra,
152 Ill. App. 3d at 1024. Here, 35 Ill. Admin. Code § 309.115 defines the scope of the
only “sufficient explanation” for a decision not to hold a public hearing – a finding that
there is not a significant degree of public interest in the permit. IEPA never considered,
let alone based its decision on, the public interest in the U.S. Steel permit.
2.
IEPA Implicitly Acknowledged That There Was Significant Public
Interest in the Permit.
IEPA also abused its discretion by implicitly acknowledging that there was public
interest in the permit yet denying the public hearing. As discussed above, the Frevert
memo reflected a belief that a public hearing was unnecessary because 303(d) hearings
were available regarding water quality concerns about Horseshoe Lake. However, in
doing so, IEPA acknowledged that the public interest was significant enough to require a
place for “concerns about Horseshoe Lake” to be discussed and heard in a public forum.
Frevert memo (C 286).
The Willhite e-mail also recognizes that there was considerable public interest in
the permit, but suggests that a meeting be held “instead of a public hearing” because the
Agency wants to “issu[e] the permit as quickly as possible.” (C 288). This essentially
conceded that there was sufficient public interest to justify a public hearing, but
suggested denying the hearing request in the interest of issuing the permit as soon as
possible – notwithstanding the 15-month delay between the receipt of the hearing
requests and the issuance of the permit. This acknowledgment of significant public
interest in the U.S. Steel permit should also have triggered a decision to hold a public
hearing under 35 Ill. Admin. Code § 309.115(a)(1). A private meeting with IEPA is not a
public hearing on the NPDES permit that is required by such a finding. A private meeting
Electronic Filing - Received, Clerk's Office, November 5, 2008
13
is not open to the public – such as subsistence fishermen. Nor does it provide an
opportunity for members of the public to learn from one another’s questions and
comments and from the IEPA’s responses. It also effectively disenfranchises those who
are not invited or do not know such a meeting is occurring, as well as those who do not
have the ability to travel to Springfield during a business day to attend such a meeting –
rather than attend a public hearing in the evening at a location near the U.S. Steel
discharge. Just as the regulation provides no exception for an NPDES public hearing
when public hearings are available in other for a, neither does it provide an exception
when public meetings are offered in lieu of public hearings.
IEPA thus abused its discretion by acknowledging that public interest was
significant enough to warrant a public forum, but refusing to grant the proper forum
under § 309.115. Again, the Agency ignored the regulatory standard and acted outside of
its scope of discretion under 35 Ill. Admin. Code § 309.115(a)(1).
B.
The Comment Letters Demonstrated Significant Public Interest in the
Permit.
Five organizations, representing some 27,000 members, requested a public
hearing in comment letters that noted heavy public use of Horseshoe Lake and raised
concerns about a permit allowing 25 million gallons of industrial discharge into it per
day. (AR 532-36). The letters stated that the permit allowed U.S. Steel to discharge
additional bioaccumulative toxins for which the Lake was already listed as impaired.
This was a particular concern, the letters went on, because some subsistence fishermen
eat their catch from the Lake and an IDNR fish biologist had already confirmed the
existence of fish with melanoma there.
Id
. It is clear that there exists significant public
interest in the permit, and IEPA abused its discretion by not holding a public hearing.
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14
1.
Horseshoe Lake is Located Within a Popular State Park and is
Used Heavily by the Public.
It is hard to imagine a permit more deserving of a public hearing than one for a
major industrial discharge into an impaired lake, located within a popular state park,
where people fish and eat their catch. (AR 532-33). Yet that is the exact situation here,
as the comment letters point out.
Ibid
. Horseshoe Lake is located within a state park that
is used heavily for bird watching, fishing, hunting, and other forms of outdoor recreation.
(AR 532-35). The Illinois Department of Natural Resources’ website touts the fishing
opportunities at Horseshoe Lake for species such as “channel catfish, bass, crappie,
bluegill, carp, and buffalo.” (AR 532).
At the hearing on this appeal, representatives of organizations that submitted
comment letters offered testimony that elaborated upon the issues raised in the letters.
Kathy Andria is President of ABC and primary author of the organizations’ joint
comment letter. (Tr. 25:1-3; 29:10-13). Ms. Andria stated that she uses the Lake about
once per week for bird watching and other outdoor recreation. (Tr. 25:11-24). She
testified that Horseshoe Lake is a “spectacular place” to birdwatch and that some birds
found at the Lake are considered endangered. (Tr. 25:11-24). Ms. Andria also stated
that she has observed large numbers of people at the Lake engaged in fishing, picnicking,
running, and biking. (Tr. 26:18-24). On some days there may be 1,000 or more people at
the Lake and total attendance at the state park in 2005 was 358,000. (Tr. 49:20-50:5).
She also explained the basis of her written comments about consumption of fish from the
Lake, saying that she sees people with fish on stringers or in coolers (Tr. 50.6-51:15) and
has seen people eat fish from the Lake. (Tr. 65:21-24). In light of all this public use, Ms.
Andria testified that she believes members of the public, including ABC’s constituency,
Electronic Filing - Received, Clerk's Office, November 5, 2008
15
are concerned about Horseshoe Lake and would have attended a public hearing on the
U.S. Steel permit (Tr. 57:16-20; 58:9-18; 61:10-17).
Yvonne Homeyer was President and Conservation Chair of the Webster Groves
Nature Study Society (WGNSS) at the time the joint comment letter was submitted. (Tr.
109:15-18; 110:12-20). She testified about her use of the Lake (Tr. 112:21-113:5), as
well as its use by other WGNSS members. She testified that WGNSS members visit the
Lake “almost daily” because it is considered “one of the most outstanding areas in the St.
Louis area for birds.” (Tr. 111:14-22).
See also
Tr. 115:9-16. More bird species have
been seen at Horseshoe Lake than at any other place in the St. Louis region, 308 species
in total. (Tr. 112:6-20). Two members of WGNSS maintain an official list of “All the
bird species that have been seen at the Lake.” (Tr. 113:8-11). In addition to bird
watching, WGNSS members use the Lake and surrounding state park to observe
butterflies. (Tr. 111:23-112:5; 114:19-115:8).
Representatives of both the Sierra Club and Health & Environmental Justice-St.
Louis also testified at the hearing. Christine Favilla is on staff with the Illinois Chapter
of the Sierra Club. (Tr. 130:14-15). In this capacity, she has organized cleanups at
Horseshoe Lake to remove debris that washes in from surrounding areas. The cleanups
are held on an annual or semi-annual basis and attract approximately thirty participants.
(Tr. 125:16-126:23). Kathleen Logan Smith also offered brief testimony about Health &
Environmental Justice’s comment on the Permit. (Tr. 114:5-24).
In addition, three members of the public provided oral comments at the hearing.
Robert Johnson is an environmental consultant from Collinsville who has worked for a
duck club that owns Canteen Lake, which adjoins Horseshoe Lake. He indicated that
Electronic Filing - Received, Clerk's Office, November 5, 2008
16
members of the duck club would be interested in participating in a public hearing on the
U.S. Steel permit. Mr. Johnson also testified that he regularly uses Horseshoe Lake and
would be interested in such a public hearing himself. (Tr. 101:17-107:9). Cathy Copley
is a resident of Madison County who uses Horseshoe Lake. She testified that she
supports holding a public hearing now that she knows the Lake is used as a discharge
point for U.S. Steel’s waste. (Tr. 107:17-108:12). Finally, Jason Warner, a Sierra Club
volunteer and a user of the trails around Horseshoe Lake, offered comments on behalf of
the Sierra Club about the importance of public participation in the permitting process.
(Tr. 140:21-143:12).
2.
The Commenters Represent Thousands of Members Interested in
Horseshoe Lake.
The organizations that submitted comment letters requesting a public hearing
have a concrete interest in the health of Horseshoe Lake and collectively represent
thousands of members. (AR 537-39).
ABC is an organization that works to protect the natural and cultural resources of
the American Bottom, which is that part of the Mississippi River floodplain that extends
south from just below Alton, Illinois to the Kaskaskia River. (Tr. 23: 17-24:1; 24:13-18).
ABC monitors and participates in government decisions that might affect the American
Bottom, including decisions of IEPA, IDNR, and local entities. (Tr. 24:2-12). It also
works with neighborhood organizations to address local issues. (Tr. 24:8-9). ABC has
approximately 100 members. (TR. 24:22-24).
WGNSS has over 400 members and has been in existence since 1920. (Tr. 110:3-
11). It is primarily an organization dedicated to nature study, but also gets involved in
permitting actions that impact wildlife habitat. (Tr. 110:24-111:4). Its members
Electronic Filing - Received, Clerk's Office, November 5, 2008
17
regularly use the Lake and surrounding state park as described above. Its Conservation
Chair, Yvonne Homeyer, testified that WGNSS members would have attended a public
hearing on the U.S. Steel permit had there been one. (Tr. 116:18-21).
The Sierra Club, which has 26,000 members in Illinois and 650 members in the
area around Horseshoe Lake, was also a signatory to the joint comment letter. (AR 536;
Tr. 126:24-127:3). The Sierra Club engages in cleanups at Horseshoe Lake and has an
interest in its overall health. Health & Environmental Justice, an organization that has
approximately 500 members and works on environmental justice issues in the St. Louis
metropolitan region, also signed on to the joint comment letter and submitted a comment
letter of its own (AR 532; Tr. 144:9-24)
3. The Comment Letters Raised Significant Concerns about U.S. Steel’s
Discharge of Pollution into the Lake.
The joint comment letter raised at least two issues that could have affected the
terms of the permit. First, the letter pointed out that a Southern Illinois University at
Edwardsville (“SIUE”) professor had conducted studies of bottom sediment in Horseshoe
Lake and had found high levels of heavy metals, including zinc and lead. IEPA’s permit
writer noted in her records that obtaining a copy of these studies would be “beneficial,”
yet the Agency neglected to do so. Second, the letter brought to IEPA’s attention reports
of fish being caught from Horseshoe Lake with melanoma. Again, the Agency noted that
“[m]ore information is needed,” but it never took any action to determine whether
pollution might be causing diseased fish in the Lake.
a.
IEPA failed to address concerns raised in the comment
letters about heavy metal contamination of Horseshoe
Lake sediments.
Electronic Filing - Received, Clerk's Office, November 5, 2008
18
The January 18, 2005 joint comment letter pointed out to IEPA that Professor
Richard Brugam at SIUE had studied the bottom sediments at Horseshoe Lake. (AR
537). The letter indicated that studies had been obtained only recently and had not been
reviewed thoroughly by commentators. (AR 533, 535). Copies of the study were not
submitted, but the letter suggested that IEPA hold a public hearing to address the issue.
Id.
The comment letters also raised a concern about heavy metals in the U.S. Steel
discharge (AR 532-33) and mentioned that Horseshoe Lake was already impaired for a
number of pollutants. (AR 537). For example, zinc was identified on both the 2004 and
2006 “impaired waters” list developed by IEPA, and the 2006 list identifies an “industrial
point source discharge” as a cause of the “contaminated sediments.”
See
http://www.epa.state.il.us/water/tmdl/303-appendix/appendix-a.pdf
. IEPA’s public
notice for the U.S. Steel permit erroneously omitted zinc from the list of pollutants it
identified as causing impairment. (AR 519).
Despite the fact that the joint comment letter raised this concern, IEPA took
virtually no action to investigate whether U.S. Steel’s discharge was contributing to the
contamination of bottom sediments. The IEPA permit writer’s notes state: “A copy of
the SIU-E study would be beneficial to determine its relevance in this matter.” (AR 603).
Although IEPA did not seek or obtain a copy of the study, it downloaded an
abstract of the study from the Internet. (AR 604). That abstract only served to highlight
the relevance of the issue and should have spurred further inquiry by IEPA. The abstract,
which is in the record, states:
"A record of metal contamination exists in the sediment of Horseshoe Lake....
Lead, cadmium and zinc concentrations increased in the sediment after the 1940's.
This increase in heavy metals is probably related either to increased input to the
lake from local industrial activities or the use of lead shot by local waterfowl
Electronic Filing - Received, Clerk's Office, November 5, 2008
19
hunters."
(R.604).
IEPA's failure to investigate the contamination of Horseshoe Lake sediment is
troubling because U.S. Steel discharges significant quantities of two of the pollutants –
zinc and lead – identified in the abstract of the SIUE study. The load limits in the permit
allow U.S. Steel to discharge up to 4,380 pounds of zinc and 2,044 pounds of lead into
the Lake each year. (AR 652).
3
The unanswered questions relating to contaminated sediments show that
substantial issues were raised in the joint comment letter that should have been
investigated by IEPA through a public hearing. IEPA has a legal duty to ensure that
NPDES permits comply with both numeric and narrative water quality standards. 35 Ill.
Admin. Code § 309.143(a) (2005). Although Illinois has no numeric criteria for heavy
metals in sediment, the narrative criteria prohibit "bottom deposits" that are of "other than
natural origin." 35 Ill. Admin. Code § 302.203 (2005);
See also Des Plaines River
Watershed Alliance v. IEPA,
2007 WL 1266926, at *44 (Ill. Poll. Control Bd., April 19,
2007) (remanding permit to IEPA for evaluation of whether discharge would violate
narrative water quality standards). This clearly was a concern relating to the
permit
and
not a general grievance to be addressed in other forums. Moreover it was a concern
about which IEPA could have gathered more information if it had held a public hearing.
b.
IEPA failed to address questions raised in the joint
comment letter about diseased fish being caught in
Horseshoe Lake.
The joint comment letter also raised a concern about fish with melanoma, or
3
These figures are calculated using the permit's 30-day average for the daily load limit. (AR 652).
For zinc, 12 pounds per day X 365 days = 4,380 pounds per year. For lead, 5.6 pounds per day X 365 days
= 2,044 pounds per year.
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20
unusual skin pigment, being caught in Horseshoe Lake. (AR 537). Again, the IEPA
permit writer suggests that the agency should investigate this issue, stating: “More
information is needed on the fish with melanoma issue-was this reported as part of an
IDNR study, or did one fish appear with melanoma, and was confirmed by an IDNR fish
biologist?” (AR 603). IEPA did not follow up on this question.
The health of resident fish populations is of heightened importance due to the fact
that many people consume fish from Horseshoe Lake, some for subsistence purposes, and
that the Lake is already impaired by numerous pollutants. (AR 532, 537; Tr. 50:8 -51:20).
If IEPA had doubts about whether people eat fish from Horseshoe Lake (AR 561),
despite the fact that its sister agency IDNR publicizes fishing opportunities on its website,
(AR 532). IEPA could have found out more about public uses of the Lake through a
public hearing on the permit.
Moreover, the record shows that U.S. Steel's effluent has failed chronic toxicity
tests in the past. (AR 158, 168). Early drafts of the U.S. Steel permit contained chronic
toxicity testing requirements (AR 396), perhaps in light of the earlier indications of a
problem, but the final permit eliminated this requirement. (AR 651-57). The permit
writer noted that this removal of human health and chronic toxicity requirements from the
final permit "significantly reduces the burden of toxicity testing". (AR 478-79). The
removal of this testing requirement also runs counter to concerns raised in the comment
letters about the U.S. Steel facility's history of non-compliance with its permit. (AR 537-
39).
V.
CONCLUSION
As the Board appropriately found, in its Opinion and Order of January 26, 2007 in
this case, “the two public comments filed in this case evidence a significant degree of
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21
public interest in the proposed permit.” Opinion and Order at 14. IEPA abused its
discretion by failing to consider the public interest in the permit, and by denying the
hearing requests in the face of apparent public interest in the permit.
For the foregoing reasons, ABC respectfully requests that the Board vacate the
U.S. Steel permit as issued and direct IEPA not to re-issue the permit without first
holding a public hearing thereon.
Respectfully submitted,
/s/
Maxine I. Lipeles, Director
Kevin J. Moore (Senior Law Student Per Ill. Sup. Ct. Rule 711)
Interdisciplinary Environmental Clinic
Washington University School of Law
One Brookings Drive – CB 1120
St. Louis, MO 63130
314-935-5837 (telephone); 314-9335-5171 (fax)
milipele@wulaw.wustl.edu
Attorneys for Petitioner American Bottom Conservancy
CERTIFICATE OF SERVICE
I, the undersigned, certify that on this 5
th
day of November 2008, one copy of the
foregoing was sent via electronic communication to the following:
Jason R. Boltz
David T. Ballard
Division of Legal Counsel
Barnes & Thornburg L.L.P.
Illinois Environmental Protection Agency
One North Wacker Drive
1021 North Grand Avenue East
Suite 4400
P.O. Box 19276
Chicago, IL 60606
Springfield, IL 62794-9276
david.ballard@btlaw.com
jason.boltz@illinois.gov
Carol Webb, Hearing Officer
Carolyn S. Hesse
Illinois Pollution Control Board
Barnes & Thornburg, L.L.P.
1021 North Grand Avenue East
One North Wacker Drive
P.O. Box 19274
Suite 4400
Springfield, IL 62794-9274
Chicago, IL 60606
webbc@ipcb.state.il.us
carolyn.hesse@btlaw.com
Electronic Filing - Received, Clerk's Office, November 5, 2008
22
___/s/_____________________
Maxine I. Lipeles
Electronic Filing - Received, Clerk's Office, November 5, 2008