BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AMERICAN BOTTOM CONSERVANCY
Petitioner,
v.
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY and UNITED STATES STEEL
CORPORATION - GRANITE CITY WORKS,
Respondents.
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)
)
)
)
)
)
)
)
)
)
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PCB 06-171
(3'd Party NPDES Permit
Appeal)
NOTICE OF FILING
Maxine
I.
Lipeles
Edward J. Heisel
Interdisciplinary Environmental Clinic
Washington University School
of Law
One Brookings Drive - Campus Box 1120
St. Louis,
MO 63130-4899
milipele@wulaw.wustl.edu
ejheisel@wulaw.wust1.edu
Carol Webb
Hearing Officer
Il1inois Pollution Control Board
1021 N. Grand Ave. East
P.O. Box 19274
Springfield,
II.
62794-9274
webbc@ipcb.state.i1.us
Carolyn S. Hesse
David T. Ballard
Barnes
&
Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago,
II.
60606
Carolvn.Hesse@btlaw.com
David.Ballard@btlaw.com
t Attorney General
Bj'O.
=;::;~~
...
oO«..--"-.....:....,-="'-!L.lt----
Jason
R.
Boltz
Assistant Counsel
&
Special
Division
of Legal Counsel
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
Pollution Control Board an original
of the Agency Response Brief on Remand of the Il1inois
Environme
Protec .on
ency, a copy
of which is herewith served upon you.
ILLINOIS
Dated: November 26, 2008
Il1inois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Il1inois 62794-9276
Jason.Boltz@I1linois.gov
Electronic Filing - Received, Clerk's Office, November 26, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AMERICAN BOTTOM CONSERVANCY
Petitioner,
v.
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY and UNITED STATES STEEL
CORPORATION - GRANlTE CITY WORKS,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
PCB 06-171
or
d
Party NPDES
Permit Appeal)
RESPONSE BRIEF
OF THE
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
ON REMAND
NOW COMES the Respondent, lllinois Environmental Protection Agency
("lllinois EPA"
or "Agency") by and through its attorney, Jason
R.
Boltz, Assistant
Counsel and Special Assistant Attorney General, pursuant to the Hearing Officer Order
dated October 14, 2008, hereby submits this Brief, in Response to American Bottom
Conservancy (hereinafter
"ABC" or "Petitioner's")Briefon Remand from the Appellate
Court
of the Fifth District oflllinois ("Appellate Court").
Pursuant to Section 40(e)
of the Illinois Environmental Protection Act ("Act"),
ABC has the burden
of proof. As stated and ruled by the Appellate Court, the Agency's
decision to not hold a hearing under 309.115
of the lllinois Pollution Control Board
("Board") regulations was discretionary. As a result, ABC must prove that substantial
evidence existed to show that the Agency abused its discretion in its determination that a
significant degree
ofpublic interest did not exist in the proposed permit based upon the
2
Electronic Filing - Received, Clerk's Office, November 26, 2008
properly and timely filed requests for hearing. Moreover, ABC must prove that the
Agency'sdecision to not grant a hearing in this case was an abuse
of discretion or clearly
erroneous.
In
support thereof, the Agency submits the following:
I.
RELEVANT FACTS
On October 17,2002, the Agency received United States Steel City Works' ("US
Steel") request to renew its NPDES permit that was expiring on April 30, 2003. (Agency
Record hereinafter "Record" at 135-155.) Subsequent to various Agency actions
concerning US Steel's application seeking a permit, the Agency put the draft US Steel
NPDES permit on a 30-day public notice beginning on December 19,2004. The public
comment period ended on January 18, 2005.
Record
at 518. At the close ofthe comment
period on January 18, 2005, the Agency received two written comment letters that
requested a public hearing
be held, dated January 17 and 18, 2005. ("Requests for
Hearing") Kathleen Logan-Smith
of the Health
&
Environmental Justice- St. Louis first
submitted a Request for Hearing to the Agency, dated January 17, 2005, requesting a
public hearing. Various issues were raised in the letter including concerns
ofthe
discharge oflead and the impacts on the lake's recreational uses.
Record
at 532.
The second Request for Hearing (and only other Request for Hearing received
during the comment period) was dated January 18,2005 from the ABC and other
environmental groups. ABC presented general concerns that Horseshoe Lake is
impaired, and thus has a negative impact on the community that utilizes the Lake for
recreation and for a food source. Specifically, ABC raised the following issues:
3
Electronic Filing - Received, Clerk's Office, November 26, 2008
1) Allowing US Steel to put additional lead and anuuonia into
Horseshoe Lake would be contrary to the federal Clean Water Act and
the Illinois Bureau of Water's mission;
2) US Steel should be added to a list of potential contributors to the
impairment
of Horseshoe Lake;
3) US Steel had violated ammonia and "other" limits in the past;
4) Requested the Agency hold a public hearing; and
5) Asked for a 30-day extension
ofthe public comment period .ifthe
Agency denied its request for a public hearing.
Record at 533-539.
On
May 20,2005, Ms. Burkard responded to comments received during the
public comment period.
(Record
at 601-605) On February 8, 2006, Mr. Toby Frevert of
the Agency submitted to Marcia Wilhite a memorandum outlining his recommendations
that no public hearing be granted based upon the Requests for Hearing comment letters.
(Board's Administrative Record, hereinafter "C_", at C286) On March 30, 2006, the
Agency granted the NPDES permit to U.S. Steel, and amongst other discretionary
decisions, decided
to not hold a public hearing based upon the Request for Hearing
comment letters submitted during the public comment period.
(Record
at 637-643) On
April 10,2006, the Agency, through Mr. Al Keller sent a letter to the Washington
University School
of Law addressing various concerns and comments presented to the
Agency concerning the previously issued NPDES permit.
On May
8, 2006, pursuant to Section 40(e)(I) of the Act, ABC filed its Third-
party Petition seeking the Board'sreview ofthe Agency's issuance of the US Steel's
NPDES permit, and specific to the case at bar, identified the Agency's decision to not
hold a public hearing pursuant to their request as objectionable.
On September 21, 2006, the Board directed the hearing officer to proceed to
hearing on the issue of a request for a public hearing by ABC. A Board hearing was held
on November 20,2006, at which testimony was heard on the issue
of whether the
4
Electronic Filing - Received, Clerk's Office, November 26, 2008
Agency'sdecision to hold a public hearing complied with the Board'sregulations, 35
Ill.
Adm. Code § 309.1 15(a)(I). On January 26,2007, the Board issued an Order wherein it
concluded that the
Agency'sdecision to not hold a public hearing violated Section
309.115(a)
ofthe Board's regulations, and as a result, the Board invalidated the permit as
issued by the Agency.
Pursuant to Section
41 of the Environmental Protection Act and Supreme Court
Rule 335, the Agency and U.S. Steel sought,direct administrative review
of the Board's
Order to the Appellate Court. The Appellate Court ruled to vacate and remand the
decision
of the Board with respect to the Agency's decision to not hold a public hearing.
The Appellate Court ruled that the Board must use an abuse-of-discretion standard in
evaluating the
Agency'sdecision to not grant a public hearing.
II.
STANDARD OF REVIEW
In the Appellate Court'sOrder of September 5
th
, 2008, it ruled that the Board
must use an
abuse ofdiscretion
standard. United States Steel Corp. v. Illinois Pollution
control Board, 384 IlI.App.3d 457, 892 N.E.2d 606
(111. App. 2008) (hereinafter "U.S.
Steel"). The Appellate Court further ruled that the Board must evaluate the Agency's
decision to determine "whether the Agency made an arbitrary decision, without using
conscientious judgment, or if, in view
of all the circumstances, the Agency overstepped
the bounds
ofreason, ignored the law, and thereby caused substantial prejudice." Id.
citing
In re Marriage of Munger, 339 IlI.App. 3d 1104, 1107
(Ill.
App. 2003).
5
Electronic Filing - Received, Clerk's Office, November 26, 2008
Section 3-110 of the Administrative Review Law, 75 ILCS 5/3-110
et seq.,
sets
forth the narrow standard
ofjudicial review of an administrative decision. This section
provides in part:
The hearing and determination shall extend to all questions
oflaw and of
facts presented by the entire record before the court. No new or additional
evidence in support
of or in opposition to any finding, order,
determination,
or decision of the administrative agency shall be heard by
the court. The findings and conclusions ofthe administrative agency on
questions
of fact shall be held to be
primafacie
true and correct.
735 ILCS 5/3-110 (West 2000).
See also,
East Saint Louis School District v. Hayes, 237
Ill.
App. 3d 638, 646 (Ill. App. 1992).
Illinois courts have repeatedly defined the review standard as one where courts
should not interfere with the discretionary authority
of an administrative agency unless
the agency has exercised its power in an arbitrary or capricious manner or
the agency's
action is contrary to the manifest weight
of the evidence. Hanrahan v. Williams, et aI.,
174 Ill.2d 268,
271 (1996). Illinois appellate courts, like the Fifth District Appellate
Court, have stated that in order for a reviewing tribunal to find an administrative decision
to be against the manifest weight
of the evidence, the reviewing tribunal must determine,
after reviewing the evidence in the light most favorable to the agency, that no rational
trier
of fact could have agreed with the administrative agency's decision. Agans v. Edgar,
142 Ill. App. 3d 1087,1094 (Ill. App. 1986). Furthermore,
"ifthere is any evidence in
the record that supports administrative agency's decision, that decision is not contrary to
the manifest weight
of the evidence and must be sustained in judicial review." Leong v.
Village of Schaumburg, 194
Ill.
App. 3d 60 (111. App. 1990). Ifthe Agency'sdecision is
not against the manifest weight
of the evidence, it can only be reversed if it is arbitrary or
unreasonable. Kappel v. Police Bd.
of City of Chicago,
220
Ill.
App. 3d
580 (1991).
6
Electronic Filing - Received, Clerk's Office, November 26, 2008
The criteria for holding a public hearing set forth in the Board'sregulations at 35
Ill. Adm. Code 309.1 15(a) is identical to the criteria stated in the federal regulations at 40
C.F.R. §124.12(a). Now, two Illinois courts, including the Appellate Court in U.S. Steel,
and several Environmental Appeals Board ("EAB") cases have repeatedly concluded that
the Agency'sdecision to hold a public hearing is a discretionary one.
"The unambiguous and plain language
of section 309.1 15(a) vests discretion in
the Agency to hold a public hearing
whenever
it
determines
that there exists a significant
degree
ofpublic interest in the proposed permit." (emphasis added by Appellate Court)
U.S. SteeL 384 Il1.App.3d 457, at 463 (Ill. App. 2008). The decision to hold a public
hearing lies within the discretion
ofthe Agency. Borg-Warner
Com
v. Mauzy, 100
Ill.
App. 862, 867,427 N.E. 2d 415, 419 (3
rd
Dist. 1981). (The decision to hold a public
hearing "is a discretionary decision to be made by the Agency").
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
Forth 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). Also, in
In Re: Weber # 4-8, Underground Injection ControL 2003 WL 23177505
(December 11, 2003), the EAB held that,
"we do not reach that issue, notwithstanding the
broad discretion afforded to the "shall hold a public hearing whenever [it] finds, on the
basis
of requests, a significant degree ofpublic interest in a draft permit(s)."); In re City
of Fort Worth, 6 E.A.D, 392,407 (EAB 1996); In re Avery Lake Prop. Assoc., 4 E.A.D.
251, 252
&
n.2 (EAB 1992)," Further, in In the matter of: Osage, 4 E.A.D. 395 (EAB
7
Electronic Filing - Received, Clerk's Office, November 26, 2008
1992), the EAB held that, "[i]n this type ofpennit proceeding, the Region'sdecision to
hold a public hearing is largely discretionary."
Consequently, the Agency'sdecision to grant or not grant a request for a public
hearing under Section 309.1 15(a)
of the Board regulations is clearly a discretionary
decision. As stated
by the Appellate Court, the discretion whether to hold a public
hearing is left for the Agency,
"whenever
it
determines
that exists a significant degree of
public interest in the proposed pennit." (emphasis added by Appellate Court) U.S.
Steel, at 463.
III.
STATUTORY
&
REGULATORY AUTHORITY
The Petitioner'ssole statutory authority for purposes of this action, and
specifically referenced
in their Petition for Review filed on May 8, 2008, is provided
under Section 40(e)(1)
of the Act which provides the following:
If the Agency
grants or denies a permit
under subsection (b) of Section 39
of this Act, a third party, other than the pennit applicant or Agency, may
petitioner the Board within 35 days from the date of issuance of the
Agency'sdecision, for a hearing to contest the decision
ofthe Agency.
(Emphasis added)
415 ILCS 5/40(e)(1) (2004)
Section 39(a)
of the Act provides that the Agency has a duty to issue a pennit upon proof
that the facility will not cause a violation ofthe Act or Board regulations.
See
415 ILCS
5/39(a) (2004).
(a) When the Board has
by regulation required a pennit ... the
applicant shall apply to the Agency for such
pennit and it
shall be the
duty
ofthe Agency to issue such a permit upon proofby the applicant
that thefacility
...will not cause a violation ofthe Act or of regulations
hereunder. ..
(Emphasis added)
415 ILCS 5/39(a) (2004)
8
Electronic Filing - Received, Clerk's Office, November 26, 2008
As only
part
of the Agency'sfinal decision to issue the NPDES pennit, includes the
Agency'sdiscretionary duty to evaluate
whether a significant degree ofpublic interest
existed
for purposes ofdeciding whether to hold a public informational hearing.
The
Board'sregulations at
35 Ill. Adm. Code 309.115 set forth the standard governing the
Agency's detennination on whether
to hold a public hearing on an NPDES pennit.
Section 309.1l5(a) provides:
The Agency shall hold a public hearing on the issuance
of denial of an
NPDES Pennit or group of pennits whenever the
Agency determines that
there exists a significant degree
ofpublic interest
in the proposed pennit
or group
ofpennits (instances of doubt shall be resolved in favor of
holding the hearing), to warrant the holding of such a hearing.
(emphasis
added)
35
Ill.
Adm. Code 309.115(a)(I) (2005)
The Code of Federal Regulations provides relevant guidance regarding the meaning and
intent concerning "a significant degree ofpublic interest." As such, the following is also
cited:
40
C.F.R. § 124.l2(a) Public hearings.
(I
)"The Director
shall
hold a public hearing whenever he or she finds, on the
basis ofrequests,
a significant degree ofpublic interest
in a draft pennit(s)."
(emphasis added)
IV.
ARGUMENT
A.
The Agency Utilized Its Discretion In Determining That the Requests
for Hearing Filed With the Agency During the Comment Period Did
Not Indicate
That a Significant Degree of Public Interest Existed In the
Draft Permit
9
Electronic Filing - Received, Clerk's Office, November 26, 2008
The Appellate Court in U.S. Steel ruled that only Requests for Hearing filed
within the public comment period would provide the Agency a basis to make a
discretional determination as to whether a significant degree
of public interest in a
proposed permit is present. U.S. Steel, 384 1ll.App.3d 457, at 463 (Ill. App. 2008)The
Appellate Court stated this rule clearly and unambiguously
in
the following manner:
"Ifthe Agency determines,
in its discretion,
that there is a
significant
degree of public interest in a proposed permit,
based on requests
for a
public hearing that are filed
within the public comment period and that indicate the
party's interest and why a hearing is warranted,
then a
public hearing must be held." (emphasis added) U.S. Steel
at.. ..(U.S. Steel at 463)
The Appellate Court'sorder clearly placed the emphasis not on another court'sor
tribunal's determination of this interest, but solely on the Agency's discretion and
determination of this issue. Furthermore, the Appellate Court determined that only the
Requests for Hearing that (1) are filed
within
the public comment period that indicate a
party'sinterest, and (2) express
why
a hearing is warranted, should properly be
considered by the Agency. Moreover, the Appellate Court made clear that that the
Agency need not evaluate whether a significant degree
ofpublic interest is otherwise
identifiable or provable
outside the written contents
of properly and timely filed requests
for hearing. The Appellate Court in U.S. Steel articulated this important explanation by
stating that, "the regulation does not state that the Agency must hold a hearing
whenever
there
is
a significant degree ofpublic interest."
(Emphasis added by Appellate Court) rd.
The Appellate further noted the clarity on this issue by ruling that the determination of
10
Electronic Filing - Received, Clerk's Office, November 26, 2008
the Agency ofthe public interest evaluation is
based
on the timely filed requests for
hearings.
Id.
The Appellate Court, as well as Section 309.1 I 5(a)(2) of the Board regulations,
places the burden on the party requesting a public hearing to show through their filed
requests for hearing why a hearing is warranted. Id.;
35
Ill.
Adm. Code 309.1 I5(a)(2)
(2006). The Board regulation specifically requires that the request for a hearing shall be
filed within the 30-day comment period and shall indicate the interest
of the party, and
the reasons why a hearing is warranted.
35
Ill.
Adm. Code 309.115(a)(2) (2006).
In this case, at the close of the comment period on January 18, 2005, the Agency
received only two written comment letters that requested hearings, dated January
17 and
18,2005. ("Requests for Hearing"). The Record reflects through various memoranda and
correspondence that the Agency reviewed the Requests for Hearing to determine whether
a significant degree
ofpublic interest existed in this proposed permit. The Agency found
that the nature and extent
of comments received during the comment period were general
in nature and failed to establish a significant degree
ofpublic interest. Specific Agency
documents within the Record, specifically a memorandum dated February 8, 2006 from
Toby Frevert to Marcia Willhite ("Frevert Memo")
as well as a May 20, 2005
memoranda
by Beth Burkard from the Agency ("Burkard Memos"), and the Agency's
summary Response to Comments letter, dated April 10, 2006 ("Keller Letter"), all
indicate and show considerable thought, consideration, and reasonable evaluation took
place
specific
to the facts presented to the Agency in the Requests for Hearing.
The Requests for Hearing were non-significant in that they did not provide any
specific or additional information that the Agency could have used in drafting the permit.
II
Electronic Filing - Received, Clerk's Office, November 26, 2008
And furthermore, the Requests for Hearing's general concerns and discussion regarding
general recreational issues presented in each letter all were previously and appropriately
acknowledged and addressed. The Frevert Memo, Burkard Memos, and the Keller Letter
presented much
of the Agency'sclear rationale concerning the public uses of Horseshoe
Lake. For example, the Frevert Memo referenced the contents within the 303(d) report
for purposes
of the Agency'sunderstanding and evaluation of Horseshoe Lake for
purposes
of the NPDES permit review. (C286) Furthermore, the Keller Letter stated in a
response
to an inquiry regarding recreational concerns on page five (5) that, "Horseshoe
Lake is regulated as a General use water, and as such, the water quality criteria used to
derive permit limits are deemed protective." And finally, the Burkard memos reasoned
that since the 303(d) report did not reference Industrial Point Sources as a source
of
impairment, the concern relative to the recreational uses was not significant for purposes
of the NPDES permit.
(Record
at 601-603) Clearly, the Agency provided sufficient
rationale and justification for purposes
of addressing the general concerns raised in the
Requests for Hearing with respect to the recreational and public uses
of Horseshoe Lake
as they relate to the NPDES permit review process.
The comments in the Requests for Hearing also failed to meet the requirements
of
Section 309.1 15(a). Moreover, the comments did not present any beneficial or unknown
information to the Agency that would demonstrate a significant degree
of public interest
in a public hearing. To illustrate, the January
l7'h Request for Hearing stated that the US
Steel's permit "impacts directly a recreational body
of water;" "would allow additional
discharges
of toxic heavy metals;" orland "would add several other toxin to their body
burden."(Record
at 532) The January 18
th
Request for Hearing stated that, the permit
12
Electronic Filing - Received, Clerk's Office, November 26, 2008
"would allow additional lead" and "would allow additional
ammonia."(Record
at 537-
539) These are simple statements
of fact of which the Agency was already aware, and
again, fully considered as demonstrated through the Frevert Memo, the Burkard Memos,
the Keller Letter, and other documents in the Record. As stated in the Frevert Memo,
"the comments do not provide any additional information ..." (C286) As stated in the
Burkard Memos, "Horseshoe Lake is not impaired for Lead or heavy metals; Industrial
Point Sources is
not
a source of impairment."
(Record
at 601) As a result, not only did
those statements fail to present any information relevant to the Agency concerning the
degree
of public interest, the information posed in the Requests for Hearing further failed
to provide the Agency a showing that a significant degree
ofpublic interest in the
proposed permit.
The Agency also found various other comments
in the Requests for Hearing not
relevant to activities authorized or within the jurisdiction
of the proposed NPDES permit.
As a result, certain comments within the Requests for Hearing that were not germane and
applicable to issues that could be addressed in a NPDES public hearing, and as such,
were not considered. To illustrate, the January
17
th
Request for Hearing referred to
"excessive levels
of PCBs from fish consumption." In addition, the January 18
th
Request
for Hearing stated that, "Horseshoe Lake is impaired;" "we believe that industrial effluent
from Granite City Steel should be added to the list;" "Granite City is also in significant
non-compliance with Clean Air Act and RCRA."
(Record
at 532) These aforementioned
issues raised in these comments in the Requests for Hearing are outside the scope
of an
NPDES permit public hearing. For example, the Agency does not consider addition or
deletion
of sources or causes of impairment of a water body such as Horseshoe Lake at an
13
Electronic Filing - Received, Clerk's Office, November 26, 2008
NPDES permit public hearing. Consideration of impairments in bodies of water by the
Agency is instead governed by Sections 305(b) and 303(d)
of the Clean Water
Act("CAA"), and a separate process is prescribed by these sections to address the listing
of impairments to bodies of water within the State of Illinois. Nor does (he Agency
consider a discharger's noncompliance with CAA or RCRA issues at an NPDES permit
public hearing.
The Petitioner, however, continues to ignore the Appellate Court'sruling in U.S.
Steel and ignore the law that has been unequivocally
Clarified and stated. On page 9 of
the Petitioner'sBrief, the Petitioner stated that, "the governing regulation makes Clear
that when there is a significant public interest in a permit, !EPA 'shall'hold a public
hearing." (Petitioner'sBrief,
P. 9) This blanket conditional statement ignores the
Appellate Court'sruling in U.S. Steel. The statement by itself, that
if "there is a
significant public interest, the !EPA 'shall'hold a public hearing" without properly
referencing the necessary conditions in U.S. Steel that (1) require properly and timely
filed requests for hearing, (2) for the requests for hearing to indicate a party'sinterest,
and (3) for the requests for hearing to indicate why a hearing is warranted, shows the
Petitioner'sdisregard for the Appellate Court'sruling and the governing regulations.
Section 40(e)(2)(a)
of the Act, states that the 3
Td
party Petitioner shall demonstrate
that
it raised the issues within the petitioner during the public notice period or during the
public hearing. Section 40(e)(3)(ii) states that the Board shall decide exclusively based
on the Record before the Agency. To the extent that the petitioner raises and argues
information outside
of the Record and its timely comments, it is irrelevant to the
Agency'sdecision, including the denial
ofthe public hearing and the decision now before
14
Electronic Filing - Received, Clerk's Office, November 26, 2008
the Board. The Agency would not have been privy to evidence which includes testimony
in the November 20, 2006 Board hearing at the time it made its decision to not hold a
public hearing, and furthermore, any consideration
of that evidence would be contrary to
the applicable law as well as the Order
in U.S. Steel.
As stated by the Appellate Court and Section 309.115(a) of the Board's
regulations, the Agency'sdetermination with respect to evaluating whether a significant
degree
ofpublic interest existed in a public hearing is
based solely
upon the Requests for
Hearing filed within the comment period. As a result, the Agency did not consider
information that was not provided within the Requests for Hearing, did not consider
testimony in the Board Hearing on November 20, 2006, and did not consider facts and
comments presented outside
of the comment period, all evidence that the Petitioner
argues should be considered for purposes
of evaluating the degree ofpublic interest
within its Brief. The Record contains various memorandums and correspondence
of the
Agency that clearly and unequivocally show that the Agency did, however, properly
consider all
of the facts and comments submitted within the Requests for Hearing in
making its discretionary determination not to hold a public hearing based upon its finding
that a significant degree
of public interest did not exist in the proposed hearing.
B.
ABC Has Failed to Meet its Burden to Prove that the Agency Abused
Its Discretion
in Not Granting a Public Hearing
15
Electronic Filing - Received, Clerk's Office, November 26, 2008
Since the Agency'sdecision under Section 309.1 15(a) to grant or not grant a
request for a public hearing is a discretionary one, ABC must show that the Agency's
detennination
ofnot finding a significant degree of public interest in this case was clearly
erroneous
or that the Agency'sdecision was arbitrary and unreasonable given the facts of
the case. And as the Appellate Court has also stated, "the party requesting the hearing
has the burden
of showing why it is warranted." U.S. Steel
citing
Borg-Warner Corp. v.
Mauzy, 100 IIl.App.3d 862,867 (1981). Moreover, under Section 40(e) of the Act,
Petitioner has the burden to prove that the Agency Record at the time
of the close of the
public comment period contained substantial evidence to show that a significant degree
of public interest in the proposed pennit existed, and that the Agency'sdecision to not
hold the hearing amounted to an abuse
of discretion. To satisfy this burden, Petitioner
must demonstrate that the Agency abused its discretion in detennining that the Requests
for Hearing failed to provide a basis that a significant degree
of public interest existed in
the proposed pennit, and thus the Agency'sdecision was clearly erroneous, and not a
"poor decision."
The Petitioner can not 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."
In
support
of its case, ABC provides the following arguments: (l) ABC believes that a significant
degree
ofpublic interest existed because Horseshoe Lake is used by the public, and (2)
that various organizations
of sizeable membership asked the Agency to hold a public
hearing in this case. The Agency believes that the use
of Horseshoe Lake by the public
and requests for a hearing from the interested groups are relevant factors in detennining
16
Electronic Filing - Received, Clerk's Office, November 26, 2008
whether a significant degree of public interest exist in this case; however, these two
factors alone are not sufficient to satisfy the criteria described in Section
309.ll5(a) of
the Board regulations.
The Petitioner has argued in its Briefthat based upon the number
of members
within each group that the public interest component
is satisfied. This argument is
misplaced and inadequate. While the Petitioner and other various groups who requested
a hearing, such as the Sierra Club which has allegedly 26,000 members, may have a large
number
of members within its organization, that rationale by itselfdoes not satisfY a
significant degree
of public interest in a public hearing. Analogously to City of Fort
Worth, the EAB ruled that petitioner, City
of Arlington, was not entitled to a public
hearing based solely on the "eighty thousand citizens
of Arlington" that are within the
City
of Arlington and are part of that "organization." In Re: City of Fort Worth, 6 E.A.D
392 (April 5, 1996) While the petitioner, City
of Arlington, further argued similarly to the
Petitioner ABC that thousands
ofpeople of the City depend upon and publicly use the
water at subject in the contested permit action, the EAB ruled that the City
ofArlington
must meet its burden
of showing a clear error and abuse of discretion "on the basis of the
requests" that are filed. Id.
If the Agency is required to hold a public hearing purely based on circumstantial
facts regarding the public use
of a water body and a request from a group with a large
number
ofmembers, it may have to hold approximately 300 NPDES permit public
hearings each year, each
of which would add approximately six (6) to nine (9) months of
time to the permitting process. This result is neither intended by the Clean Water Act nor
by the federal or Board regulations. Moreover, the membership size
of an entity does
17
Electronic Filing - Received, Clerk's Office, November 26, 2008
not by itselfestablish a significant degree ofpublic interest. Obviously in such a
scenario,
it would be impossible for the Agency to issue more than a couple ofNPDES
permit in a year and deem the applicable regulations of309.115(a) as well as the
Agency's discretionary role in determining the significance
of public interest as
meaningless. The Petitioner thusly has failed
to demonstrate any clear error or abuse of
discretion in the Agency's decision not to hold a public hearing in this case.
Consequently, the Petitioner has failed
to meet its burden of proof under Section 40(e) of
the Act.
C.
An Abuse of Discretion Must Amount to the Agency Overstepping the
Bounds of Reason
For the Agency to have abused its discretion in its review of the Requests for
Hearing for purposes
of examining the degree ofpublic interest in the proposed permit, it
must have abused its clear grant
of discretion. The Appellate Court in U.S. Steel
articulated the meaning
of the abuse of discretion in the following manner:
"A tribunal abuses its discretion when it makes an arbitrary
decision, without using conscientious judgment, or when,
in view of all the circumstances, the lower tribunal
oversteps the bounds of reason, ignores the law, and
thereby causes substantial prej udice." (emphasis added)
U.S. Steel citing In
Re Marriage of Munger, 339 111. App. 3d
1104, 11 07 (2003).
18
Electronic Filing - Received, Clerk's Office, November 26, 2008
The Appellate Court further stated that, "The question is not whether the
reviewing court would have made the same decision
ifit were the lower tribunal." Id. As
such, the analysis for the case at bar is not whether the Board, another court,
or another
tribunal may have decided things differently, after being provided the same Requests for
Hearings that the Agency possessed on January 18, 2005, but whether the Agency
utilized conscientious judgment, or when, in light
of all of the circumstances and facts
available, the Agency overstepped the bounds ofreason, ignored the law, and caused
substantial prejudice.
The courts have required the moving party to show that the lower court made
more than a "poor decision." First Nat. Bank
of Crosby v. Bjorgen, 398 N.W.2d 789
(N.D. 1986) (the moving party must also show more than that the lower court made a
"poor" decision, but that it positively abused the discretion
it has in administering the
rule.)(quoting Bender
v. Liebelt, 303 N.W.2d 316, 318 (N.D. 1981). In determining the
abuse
ofdiscretion standard, the courts have viewed the evidence in the "light most
favorable to the action
ofthe court below." Parks v. U.S. Home Corp., 652 S.W.2d 479,
485(Tex.App.-Houston[l
st
Dis!.] 1983, writ dism'd).
The EAB has also required that an abuse
of discretion must be present in order for
it to set aside the EPA'sdecision under 30 C.F.R. Part 124.
In
re: Dominion Energy
Brayton Point, L.L.C., (February 1, 2006) ("The Board'sstandard
ofreview where we
are reviewing the permit under part 124 is whether the permit issuer based the permit on a
clearly erroneous finding
of fact or conclusion of law."). Similarly, in In the matter of:
Osage (November 24,1992), the EAB applied the same standard
ofreview. ("The
19
Electronic Filing - Received, Clerk's Office, November 26, 2008
Region did not commit error or abuse its discretion by not granting Petitioner's request
for an administrative hearing.")
In
order for the Board to find that the Agency abused its discretion, the Petitioner
must show that the Agency'sdecision was clearly erroneous and against both logic and
facts, that overstepped the bounds
ofreason. Further, the Board should view the
inferences
of the facts in the light most favorable to the Agency.
1. The Agency Did Not Overstep the Bounds of Reason by Evaluating Whether
a Significant Degree of Public Interest Existed in the Proposed Permit
Through Reviewing the Properly Filed Requests for Hearing
The Frevert Memo clearly reveals that the Agency utilized proper rationale in
reviewing the Requests for Hearing for purposes
of determining whether a significant
degree
ofpublic interest existed. The Agency was limited to the content of the two
Requests for Hearing in deciding whether a significant degree
ofpublic interest existed.
The Frevert Memo incorporated that issue succinctly, appropriately, and consistent with
the law when it stated that "only comments received prior to the close
of Public Notice
can be considered in determining the merits for granting a Public Hearing
..."(C286) And,
consistent with the ruling in U.S. Steel, the Agency must determine in its discretion
whether a significant degree
of public interest was present, " based on requests for a
public hearing that are filed within the public comment period " U.S. Steel, at 643.
While the Petitioner seeks to diminish the thought and analysis in the Frevert
Memo through their argument that it did not include
(I) a speculative discussion of
"public interest" for facts not provided in the Requests for Hearing and (2) an evaluation
20
Electronic Filing - Received, Clerk's Office, November 26, 2008
of issues not presented within the Request for Hearing, the Petitioner at the same time,
shows its failure to accurately characterize the applicable law and the ruling in U.S. Steel.
Id. As a result, the Petitioner argues that since it failed to present to the Agency facts and
concerns that demonstrated a significant degree
ofpublic interest in the proposed pennit,
the Petitioner would otherwise require and argue that the Agency should have assumed
and considered outside sources, documentation, and testimony not otherwise
properly
and timelyfiled
in the Requests for Hearing.
The Petitioner first evidences this misunderstanding
of the law through its
argument that the Frevert Memo fails to "ask whether there
is a significant public
interest." (Petitioner's Brief, P. 8) The Petitioner exemplifies this argument
by quoting
Frevert Memo excerpts, "the issues raised are 'easilyanswered' and '[t]hecomments do
not provide additional infonnation'
of benefit to IEPA in issuing the pennit."
(Petitioner's Brief, P. 8 citing C 286) The Petitioner'scriticisms
ofthese appropriate
references show that the Petitioner again misapprehends the necessary focus
of the
309.115(a) analysis.
As a result
of that rationale, the Petitioner amplifies its failure in recognizing and
acknowledging that the Frevert Memo, in fact, correctly addressed only what it should
have evaluated in accordance with the law: the Requests for Hearing'sindication
of
interest and explanation of why a hearing is warranted. For the Agency to consider facts
outside the content
of the Requests for Hearing, or to assume facts not before it for
purposes
of detennining whether a significant degree of public interest was present for
purposes
of a public hearing, would be contrary to Appellate Court's Order in U.S. Steel,
21
Electronic Filing - Received, Clerk's Office, November 26, 2008
the plain language oflaw and the governing regulations the Agency is mandated to
uphold.
The Petitioner also wrongly reasons its justification for granting a public hearing
through its misapplication
of the regulations concerning the
purpose
of the public hearing
for the purposes
ofholding a public hearing. While the Agency agrees with the
Petitioner that the purpose for the public hearings "provide opportunity for the public to
understand and comment on proposed actions
of the Illinois Environmental Protection
Agency (Agency)," the law
first
requires and conditions that a showing be made to the
Agency by the public to demonstrate their interest in the permit and why a public hearing
is warranted. 35 Ill. Adm. Code 164.101 (a). As such, the Appellate Court and
governing regulations have set forth that unless the Agency
first
determines that a
significant public interest exists, a public hearing need not occur that would otherwise
require the Agency and the interested public to meet the above stated purpose. Moreover,
the Agency properly only considered the level
of significance of public interest through
the submission
ofproperly and timely filed Requests for Hearing.
2. The Agency Did Not Overstep the Bounds of Reason by Referencing
Available Section "303(d) Discussions
and Hearings" Proceedings in its
Rationale
The Petitioner misapplied language in the Frevert Memo in an attempt to argue
that since separate 303(d) hearing opportunities were available to the public, the Agency
somehow rationalized that no such hearing under Section 309.115(a) would be necessary
22
Electronic Filing - Received, Clerk's Office, November 26, 2008
or required. And as a result ofthat misinterpretation, the Petitioner then formulates
another irrational deduction through its argument that since the Agency'sreferenced such
303(d) discussions and hearings, the Agency somehow acknowledged that a significant
degree
of public interest existed in the proposed permit. Those conclusions are
assumedly reached through the Frevert Memo's following statement: "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."
(C286)
It
is
obvious from this statement that the Frevert Memo was addressing statements in the
Requests for Hearing concerning
water quality concerns
for Horseshoe Lake, and
nowhere within the Frevert Memo is any remark that suggests the 303(
d) proceeding is a
substitute opportunity for a public hearing.
The differences in an NPDES permit review process from Section 303(d)
proceedings
of the Clean Water Act are as clear as the Petitioner'smisapplication of the
reference to Section 303(d) proceedings in the context
oftheir argument. While an
NPDES permit addresses the
allowable limits for discharges ofa facility
into Horseshoe
Lake and a NPDES permitting process may properly consider and evaluate information
that could be available through the Section 303 proceedings, a 303(d) regulatory process
independently and specifically addresses
water quality standards
and implementation
plans
of Horseshoe Lake. Section 303 of the Clean Water Act is titled "Water Quality
Standards and Implementation Plans." Within Section
303'snecessary implementation
of water quality standards also includes Section 303(c)(I) which
requires
the Agency to
hold "public hearings for the purpose
ofreviewing applicable water quality standards
and,
as appropriate, modifying and adopting standards."
Clean Water Act,
Section
23
Electronic Filing - Received, Clerk's Office, November 26, 2008
303(c)(1).
In
addition, for purposes of holding a Section 303(c)(l) public hearing, no
initial requirement or showing relative to any degree
ofpublic interest is necessary nor is
any filing
of any requests for hearing required. Such Section 303(c)(l) hearings occur
regardless
of any public interest showing or public participation. And as stated by the
Frevert Memo, a Section 303 public hearing would provide
an opportunity for members
of the public to discuss and raise concerns regarding
water quality standards
specific to
Horseshoe Lake and any other water bodies within the State
of Illinois. (C286)
Most
of the comments contained within the Requests for Hearing were statements
that focused on the
water quality
and the
impairments
of Horseshoe Lake and the affects
on individuals who utilize the lake, instead
of the actual discharge limits ofD.S. Steel's
proposed facility as more specifically addressed through the NPDES permit. As such,
some
of the concerns that only related specifically to impairments and water quality
without any discharge-related discussion may more rationally
be addressed through the
Section 303(d) process. For instance,
ABC's Request for Hearing, dated January 18,
2005, repeatedly refers
to Horseshoe Lake as "impaired" and then provides significant
discussion regarding the various pollutants within Horseshoe Lake.
(Record at
537)
However, the impairments,
by themselves, specifically ofHorseshoe Lake are not
necessarily relevant or properly addressed through an NPDES public hearing or its
accompanying permit.
As a result, a focused discussion of the identified impairments as
raised in the Requests for Hearing as well as relative water quality standards of
Horseshoe Lake could appropriately be addressed and discussed through a Section 303
CWA public hearing.
24
Electronic Filing - Received, Clerk's Office, November 26, 2008
Therefore, the Frevert Memo'sreference to Section 303(d) discussions and
hearings were completely appropriate and applicable, and certainly not an
acknowledgment
of any degree of public interest in the NPDES permit, nor was the
reference any sort
of attempt to substitute the Section 303 public hearing opportunity for
a discretionary evaluation concerning the degree
of public interest in a NPDES public
hearing. Additionally, the comments regarding the general impairments and water
quality concerns Horseshoe Lake (without any relationship to the permit-specific
discharges) in the Requests for Hearing failed to relate to the proposed NPDES draft
permit. Finally, the Agency did not overstep the bounds
of reason nor abused its
discretion in its evaluation
of public hearing interest through referencing the opportunity
to discuss the Request for Hearing'sreferences to "impairments" and water quality
standards in a Section 303 public hearing.
3. Members of the Public May Address Their Issues and Concerns Through
Properly Filed Written Comments Instead
of Orally Commenting Through a
Public Hearing
The Petitioner argues for the justification of a Section 309.1 I5(a) public hearing
within its Briefthat, "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 hearings." (Petitioner's Brief,
P. 9) The Petitioner's argument is
flawed. While the public may only provide oral comments in such a public hearing, the
25
Electronic Filing - Received, Clerk's Office, November 26, 2008
remainder of this statement is simply not true. The public can provide comments, ask
questions, and create a record for a possible appeal through written comments. 35
III
Adm. Code 309.1 09(b) provides that any interested persons may submit "written
comments" and letters to the Agency and Applicant and such comments "shall
be
retained by the Agency and considered in the formulation of its final determinations with
respect
to the NPDES application." The Act also states that creating a record for a
possible appeal may be made through
"a demonstration that the petitioner raised the
issues contained within the petition during the public notice period
or
during public
hearing..."(emphasis added) 5 ILCS 40(e)(2)(A) (2006). As such, the plain language
of
the Act and applicable regulations clearly allows for the opportunity of the public to be
involved for purposes of raising issues, comments, concerns, questions, and preserving its
opportunity for appeal through written comment letters. Additionally, this argument
raised
by the Petitioner fails to relate to the proposed NPDES draft permit. And finally,
while the reference to the applicable law that includes the opportunities and purposes for
public participation, the applicable law also still requires an initial showing
ofpublic
interest through properly and timely filed requests for hearing for proper Agency
evaluation.
Therefore, the Agency correctly and appropriately followed the governing
regulation
of309.1l5(a) and the Appellate Court'sOrder in U.S. Steel. Since the Agency
reviewed all
of the comments and issued raised in the Requests for Hearing and utilized
its discretion
in
examining the Requests for Hearing to determine whether or not a
significant degree
of public interest was presented for purposes of holding a public
26
Electronic Filing - Received, Clerk's Office, November 26, 2008
hearing, the Agency did not abuse its discretion, did properly utilize conscientious
judgment, and, in light
of all of the circwnstances and facts available, the Agency stayed
within the bounds
ofreason, adhered with the law, and did not cause substantial
prejudice.
D.
A Significant Degree of Public Interest Finding Requires More Than a
Mere Interest
in the Permit
A public hearing is required only if a significant degree of interest is present in
the proposed permit.
In
Re: City of Los Angeles, 1997 WL 28253 (E.P.A.) (October 8,
1977), ("In any permit modification proceeding, an opportunity for public hearing must
be provided, but a hearing must be held only ifthe Regional Administrator finds that
there is a significant degree
ofpublic interest in the permit modification").
Recently the United States Environmental Protection
Agency ("USEPA" or
"EPA") provided a better test to decide when to hold a hearing. In a press release, EPA
stated that, "[a] request for a public hearing must be in writing and state the nature of the
issues proposed to
be raised during the hearing. EPA will hold a public hearing if it
decides there is a significant degree
of public interest in the draft permit, or if the
comment raises an issue that
EPA believes is important."
2005 WL
1685556
(E.P.A.)
(July
20, 2005).
In In the matter of: Avery Lake Property Owners Assc., 4 E.A.D. 251 (September
15,1992), the EAB did not find that a significant degree of public interest existed as the
comment letter "did not focus
on any specific permit conditions in the draft permit,
27
Electronic Filing - Received, Clerk's Office, November 26, 2008
instead it expressed general concerns over the risks that the type of activity might pose to
water resources in the area."
In In the matter of: Terra Energy LTD., 4 E.A.D. I59(August 5, 1992), the
request for a hearing only expressed generalized concerns about the potential input
of the
well on the "environment and property values." Based on these facts, the Region found
that there was not a significant degree
ofpublic interest. Instead, the Region chose to
respond to each comment letter individually. The EAB held that, "the judgment
ofthe
Region in this respect has not been shown to be erroneous."
Id.
In In the matter of Spokane Regional Waste-to-Energy Project. 3 E.A.D. 68
(January 2, 1990), the Record showed that there was public interest in the permit.
Nevertheless, Washington State Department
of Ecology ("Ecology") decided not to hold
a public hearing because it found that "there was little expression
of interest in the
specific issue raised by the remand." Instead, Ecology prepared a response to the public
comments and issued its revised final permit determination. The EAB held that,
"[u]nder
the circumstances, no clear error is apparent from Ecology'sdecision not to hold a public
hearing."
Id.
Similarly, in In the matter of: Osage, 4 E.A.D. 395 (November 24, J992), during
the public comment period, comments were provided only
by the permittee and
petitioner. The petitioner'srequest for a public hearing was the only request received by
the Region. The Region decided to deny a public hearing on the draft permit. Instead a
.meeting was held with petitioner. The Region addressed the petitioner'scomments in the
formal response to comments. The EAB noted that petitioner was given ample
opportunity for participation
in the permit process. Thus, the EAB held that "Petitioner
28
Electronic Filing - Received, Clerk's Office, November 26, 2008
has failed to show that the Region'sdecision not to hold a public hearing was clearly
erroneous
or an important exercise of discretion that warrants review." Id.
In
order for ABC to establish that the Agency Record at the time of the close of
the comment period showed a significant degree of public interest in the proposed pennit,
it must show that the comment letters had more than general statements
of environmental
concerns over the risks the
US Steel'sNPDES pennit pose to Horseshoe Lake, instead
ABC and must clearly articulate problems with the specific pennit conditions in the draft
pennit. Further, ABC must show that comments were directly related to the NPDES
pennit issues, and not the Clean Air Act, the Resource Conservation and Recovery Act
issues, nor impainnent discussions more applicably addressed in Section 303
proceedings.
E.
A Section 309.115(a) Public Hearing is Not a Dispositional Matter and
the Decision To Not Hold A Public Hearing at the Request
of a Third
Party Did Not Require
an Articulated Decision Specific Only to the
Request for Hearing
The Petitioner has argued that the Agency'sdecision to not hold a public hearing
required an articulated decision. However, the Petitioner fails to understand that the
Agency'sresponsibility pertaining to the decision whether to hold a public hearing was
one responsibility amongst many for purposes
of the NPDES pennit review process.
Amongst the many regulatory requirements
of the Agency regarding the NPDES pennit
29
Electronic Filing - Received, Clerk's Office, November 26, 2008
review process within Title 35, Chapter I, Subpart A, Part 309, includes reviewing the
written application, providing necessary public notice, preparing a fact sheet, providing
notice to other governmental agencies, receiving and reviewing written comments,
evaluating and issuing various tenns and conditions within the pennit, establishing
schedules
of compliance, and finally, the decision to hold a public hearing pursuant to
Section 309.115(a). All of the above-stated are part of the Agency'sNPDES permit
review responsibilities. The Section 309 public hearing process is described in Sections
309.115 through 309.119. Section 309.117 describes the substance and nature
of the
Agency hearing in the following:
Section 309.117 Agency
Hearing
The applicant or any person shall be pennitted to
submit oral or written
statements and data concerning the proposedpermit or group
ofpermits.
The
Chainnan shall have authority to fix reasonable limits upon the time allowed for
oral statements, and may require statements in writing. (emphasis added)
Additional procedures for such public hearings are set forth within 35
Ill.
Adm. Code 164
et seq. Moreover, Section 164.101 describes the purpose of such hearings in the
following:
Section 164.101
Purpose
These procedures are intended:
a)
To provide opportunity for the public to understand and comment
on proposed actions of the Illinois Environmental Protection
Agency (Agency);
b)
To establish procedures by which the Agency consults interested
or affected members
of the public;
c)
To enable the Agency to fully consider and respond to public
concerns;
30
Electronic Filing - Received, Clerk's Office, November 26, 2008
d)
To encourage cooperation between the Agency and other
governmental bodies charged with protecting the environment; and
e)
To foster openness among the Agency, other governmental bodies,
and the public.
As indicated from the above-stated regulations, the hearing at issue is an
opportunity and conduit for the public to provide information to the Agency through
dialogue through comments and questions concerning the Agency's decision to issue an
NPDES permit. The same opportunity to provide information and comments to the
Agency is also made available through Section 309.109 wherein all members
of the
public can submit questions and comments in a written form. Moreover, a public hearing
is not an adversarial proceeding, nor is it a contested hearing where an identifiable
property right is at stake. At the conclusion
of a public hearing, no decision is rendered,
no fmdings
of fact are issued, and no conclusions of law are reached. No dispositional
right or penalty is decided, denied, conferred, or rewarded. The only outcome would
include the Agency creating a summary
of the questions, comments, and statements that
were provided by the public and consideration
of that information for purposes of its
eventual decision regarding the issuance
ofa permit. 35
Ill.
Adm. Code 309.118 (2006)
But for purposes relating to the dispositional outcome
of the NPDES permit, the public
hearing,
by itself, merely provides the Agency with a conduit to receive additional
information for its consideration.
Clearly, the Petitioner misunderstands the concept
of a public hearing through
their argument that an articulated decision and a rational explanation should have been
provided relative to the Agency's decision not to hold a public hearing similar to an
administrative adversarial hearing wherein a final decision is rendered. (See Petitioner's
31
Electronic Filing - Received, Clerk's Office, November 26, 2008
Brief, pages 5,12) The Petitioner cites Lewis v. Hayes for purposes of this argument.
Lewis v. Hayes, 152
I11.App. 3d 1020, at 1024 (App. 3,d Dist. 1987).
In
Lewis, the plaintiffset forth a civil rights action against a defendant
municipality concerning his application for a police officer position. The plaintiff alleged
various improprieties against the defendant in failing to adhere to their internal hiring
procedures. The hiring procedures in Lewis were governed
by the Board of Police and
Fire Commissioners. The Third District Appellate Court in Lewis ruled that the plaintiff
had a protectable property interest in the police officer position he had applied for, and as
such, should have been afforded due process protections through a hearing.
Id. at 1024.
The court further ruled that the Board was required to examine facts and articulate a
sufficient explanation for its action and decision.
rd.
The case in Lewis and the case at bar are clearly distinguishable. First and
foremost, the decision
by the board in Lewis that vested standing in the plaintiff affected
an identifiable property right to be awarded
or denied through an "articulated decision" in
an administrative hearing. The Petitioner ABC had no property right to be awarded or
denied in any proposed outcome in the requested public hearing.
In
fact, no entity,
including U.S. Steel, fellow Respondent and the applicant for the NPDES permit, would
have any property right
or dispositional right directly affected in the requested Section
309.115(a) public hearing. Furthermore, pursuant to Section 40(e)
of the Act (as
referenced for purpose
of standing in the Petitioner'sopening statement within their May
8,2006, Petition for Review), the Petitioner's appeal right to proceed in this matter is
solely vested
in the Agency'sfinal decision regarding the issuance the permit, not with
respect to the decision to not hold a public hearing.
32
Electronic Filing - Received, Clerk's Office, November 26, 2008
The cases are further distinguishable.
In
Lewis, through the hearing process, the
Board would have adjudicated a final decision concerning that
plaintiffs property right in
the police officer position contrary to this matter wherein the Agency held no authority to
adjudicate any decision in the Section 309.115(a) public hearing.
In
Lewis, two different
sides would have presented adversarial arguments to the relevant and appropriate board
through a hearing.
In
the requested public hearing pursuant to Section 309.115(a), no
such adversarial proceeding would occur. And finally, and most importantly, the purpose
of the mandatory hearing in Lewis as opposed to the purpose ofthe discretionary hearing
in this matter is significantly distinct.
In
Lewis, the required hearing would
determine
the
outcome
ofthe plaintiffs property right in the police officer position.
In
the case at bar,
the requested hearing'spurpose would provide no final decision
or determination of any
party. The requested hearing would generally provide the public
an opportunity and a
conduit to present information and commentary to the Agency to assist in the decision to
grant or deny a permit. As a result, the Agency'sdiscretionary decision, by itself, to not
hold a public hearing, nor the conceptual "outcome" or conclusion
of such a public
hearing held pursuant to Section 309.115(a), would not otherwise require,
in any
circumstance, that an articulated decision be issued to anyone. Furthermore,
nowhere
within the Act, nor the regulations, is a requirement for an articulated decision set forth
regarding the decision to not hold, or alternatively, hold a public hearing pursuant to
Section 309.l15(a).
In
addition, neither the Administrative Review Law, nor the Act, provides any
standing to any direct party
or third party regarding the independent decision to not hold
a public hearing. The final decision that provides standing to a third party is derived
33
Electronic Filing - Received, Clerk's Office, November 26, 2008
from the decision to grant or deny an NPDES permit under Section 40(e) ofthe Act and
the Administrative Review Law. Therefore, the Agency's decision not to hold a public
hearing, and its rationale, must be read together circumstantially with all documents in
the Record.
IV. CONCLUSION
The Petitioner ABC has failed to demonstrate an abuse of discretion or any clear
error in the Agency's decision not to hold a public hearing in this matter, based upon the
Requests for Hearing filed within the commend period. ABC has thus failed to meet the
requisite burden under Section 40(e)
of the Act. The Agency respectfully requests that
the Board
DENY
the ABC'srequest for relief in this case.
Jason
R.
Boltz
Assistant Counsel
e .
al Assistant Attorney General
Division
of Legal Counsel
Illinois Environmental Protection Agency
1021 N. Grand Avenue East
Springfield,
lL 62794-9276
217.782.5544 (tel.); 217.782-9807 (fax)
Jason.Boltz@Illinois.gov
Attorney for Respondent Illinois Environmental Protection Agency
34
Electronic Filing - Received, Clerk's Office, November 26, 2008
CERTIFICATE OF SERVICE
I, the undersigned, certify that on this 26
th
day of November 2008, one copy of the
foregoing was sent via electronic communication to the following:
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 N. Grand Ave. East
P.O. Box 19274
Springfield, IL 62794-9274
webbc@ipcb.state.iJ.us
Maxinel Lipe1es
Edward
1. Heisel
Interdisciplinary Environmental Clinic
Washington University School
of Law
One Brookings Drive - Campus Box 1120
St. Louis,
MO 63130-4899
milipele@wulaw.wustl.edu
ej heisel@wulaw.wustl.edu
Carolyn
S. Hesse
Erika
K.
Powers
David T. Ballard
Barnes
&
Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, IL 60606
Carolvn;Hesse@btlaw.com
David.Ballard@btlaw.com
Jason
R. Boltz
Division of Legal Coun
Illinois Envirorunental Prote
THIS FILING PRINTED ON RECYCLED PAPER
35
Electronic Filing - Received, Clerk's Office, November 26, 2008
