BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AMERICAN BOTTOM CONSERVANCY
)
1
Petitioner
1
1
v.
)
)
PCB 06-171
ILLINOIS ENVIRONMENTAL PROTECTION
)
(NPDES Permit Appeal)
AGENCY and UNITED STATES STEEL
)
CORPORATION
-
GRANITE CITY WORKS
)
)
Respondents
)
NOTICE OF FILING
PLEASE TAKE NOTICE that on June 16,2006, I filed with the Office of the
Clerk of the Pollution Control Board the following document: MEMORANDUM OF
AMERICAN BOTTOM CONSERVANCY IN OPPOSITION TO UNITED STATES
STEEL CORPORATION'S MOTION TO DISMISS.
I filed the above document electronically with the Clerk of the Pollution Control
Board and with Carol Webb, Hearing Officer, at
webbc@,ipcb.state.il.us.
-
In addition, I
served copies of the foregoing electronically upon Sanjay K.
Sofat, counsel for
respondent Illinois Environmental Protection Agency, at
Saniay.Sofat@,e~a.state.il.us,
and Erika K. Powers, counsel for respondent United States Steel Corporation
-
Granite
City Works, at epowers@,btlaw.com.
pq
,&L~+Q,
Maxine I. Lipeles,
ro
Hac Vice
Counsel for Petitioner American Bottom Conservancy
Interdisciplinary Environmental Clinic
Washington University School of Law
One Brookings Drive
-
Campus Box 1 120
St. Louis, MO
63
130-4899
(314) 935-5837 (phone); (314) 935-5171 (fax)
milipele@,wulaw.wustl.edu
June 16,2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 16, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AMERICAN BOTTOM CONSERVANCY,
Petitioner,
1
)
v.
Case No. PCB 06-171
)
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY, and UNITED STATES STEEL
CORPORATION
-
GRANITE CITY WORKS
)
)
Respondents.
MEMORANDUM OF AMERICAN BOTTOM CONSERVANCY
IN OPPOSITION TO UNITED STATES STEEL CORPORATION'S MOTION TO
DISMISS
Pursuant to 35
Ill.
Adm. Code
101.500(d), petitioner American Bottom Conservancy
("ABC") files this Memorandum in Opposition to the Motion to Dismiss filed by respondent
U.S. Steel
-
Granite City Works ("Granite City Works").
INTRODUCTION
Granite City Works is a large steel mill located in Granite City that discharges its process
wastewater into Horseshoe Lake, which is part of Horseshoe Lake State Park. Petition for
Review ("Petition")
77
4, 5, and 7 and Ex. A attached thereto. Area residents use Horseshoe
Lake and Horseshoe Lake State Park for recreation including fishing, hunting, boating, bird
watching, hiking, nature walks, camping, and picnicking. Petition
7
8. Since 1998, the Illinois
Environmental Protection Agency ("IEPA") has listed Horseshoe Lake under
8
303(d)
of the
Clean Water Act, 33 U.S.C.
ยง
1313(d),
because it is polluted in excess
ofwater quality standards
for several pollutants. Petition
7
10.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 16, 2006
U.S. Steel submitted a National Pollution Discharge Elimination System ("NPDES")
permit renewal application to IEPA on October 17,2002. Record at 136-155. In mid-December
2004, IEPA published a draft renewal NPDES permit for public notice and comment. Petition
f
12; Record at 512
-
529. On three occasions thereafter,
ABC submitted comments on the draft
permit. ABC submitted its first comment letter during the initial 30-day public comment period.
Petition
77
13-15 and Ex. C attached thereto; Record at 533-539. After retaining the
Interdisciplinary Environmental Clinic to assist with its evaluation of technical and legal aspects
of the permit, and several months before the IEPA made its decision on the final permit, ABC
submitted its second and third comment letters in October and December
2005. Petition
771
6-
17
and Ex's D and E attached thereto; Record at 607-624. In its December 2005 letter,
ABC
pointed out several technical flaws in the draft permit, including:
IEPA calculated monthly load limits by using maximum daily flow, rather than highest
monthly average flow, as is required. The result is illegally-high permit limits;
IEPA set the permit limit for cyanide nearly twice as high as the limit calculated by
IEPAYs
permit writer;
IEPA failed to include a compliance schedule to redress Granite City Works' history of
noncompliance with its cyanide discharge limit, as required by 35
Ill. Adm. Code
5
309.148;
IEPA set an ammonia discharge limit for the month of March at a level higher than that
allowed by governing regulations, 35
Ill. Adm. Code
5
302.212(e);
and
IEPA failed to set discharge limits
andlor monitoring requirements for several pollutants
discharged by Granite City works into Horseshoe Lake.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 16, 2006
In each of its three submissions,
ABC requested a public hearing. In ABC's first
comment letter, it also requested that, if IEPA did not hold a public hearing, it should at least
extend the public comment period. Without holding a public hearing or explaining why it was
not doing so, IEPA ultimately issued the final permit on March 3
1,2006. This appeal was timely
filed thereafter.
In its Motion to Dismiss, Granite City Works seeks to dismiss ABC's substantive
challenges to IEPA's erroneous permit limit calculations on the ground that these points were not
raised during the first 30 days after IEPA published the draft permit. Granite City Works also
seeks to dismiss ABC
7
s challenge to IEPA's failure to hold a public hearing by arguing that the
facts alleged in the Petition do not demonstrate that IEPA abused its discretion in not holding a
public hearing. Granite City Works' motion is misplaced, and should be denied.
ARGUMENT
I.
Standard for Motions to Dismiss
A party moving to dismiss a petition bears a heavy burden. As Granite City Works
acknowledges in its memorandum, all well-pled allegations in the Petition are deemed true for
purposes of evaluating this motion.
People of the State of Illinois
v.
Stein Steel Mills Services,
Inc.,
PCB No 02-1,2001
Ill. Env. LEXIS 539
(Ill. Pollution Control Bd., Nov. 15,2001).
Moreover, the motion must be denied unless it is clear that no set of facts could be proved that
would entitle
ABC to relief.
Ibid.
11.
ABC's
Substantive Technical Claims Should Not Be Dismissed Because They Were
Submitted To IEPA Well Before It Made Its Permit Decision.
The Petition in this case highlights several substantive flaws in IEPA's calculation of
permit limits for numerous pollutants discharged by Granite City Works into Horseshoe Lake, as
well as IEPA
7
s failure to include required effluent limits and/or monitoring requirements for
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 16, 2006
other pollutants.
AI3C presented all of the substantive claims in the Petition to IEPA by
December 2005
-
some three-and-one-half months (over
100 days) before IEPA made its final
permit decision.
Granite City works seeks to dismiss the claims alleging substantive flaws by invoking
415 ILCS
5/40(e)(2)(A), which requires a petitioner to demonstrate that its claims were
previously presented to IEPA "during the public notice period or during the public hearing on the
NPDES permit application, if a public hearing was held." In this case, both the letter and the
spirit of the statute were satisfied.
A. IEPA In Effect Extended The Comment Period.
There is no requirement that a third party commenter raise all objections to a draft permit
within the first 30 days after the permit is published for public comment. Indeed, as reflected in
the text of 41 5 ILCS
5/40(e)(2)(A), any additional comments subsequently submitted at a public
hearing may also form the basis for a permit appeal. In this case, IEPA abused its discretion in
not holding a public hearing. Had it held a hearing,
DC's
substantive technical comments
would have been submitted to the IEPA at the hearing.
Moreover, IEPA may extend the comment period beyond the initial 30-day period. 35
Ill.
Adm.
fj
309.109(b).
In this case,
ABC's first comment letter, submitted within the 30 day-
window, requested that IEPA extend the comment period if it did not hold a public hearing: "If
you deny this request for a hearing, we ask for a meeting with you and your staff, followed by a
30-day extension of the public comment period." Ex.
C attached to Petition; Record at 533-539.
ABC was joined in this request to extend the public comment period by several other
organizations: Sierra Club; Health
&
Environmental Justice
-
St. Louis; Neighborhood Law
Office; and Webster Groves Nature Study Society. Ibid.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 16, 2006
IEPA's
actions during the 14 months following ABC's first comment letter
(i.e., from the
January 2005 comment letter to the March 2006 permit issuance) constitute a de facto extension
of the comment period. Throughout this period, IEPA continued to receive comments not only
from
ABC, but also from Granite City Works. IEPA received two additional comment letters
from
ABC. Record at 607-624
(AI3C letters of October and December 2005).
AI3C submitted its
October and December 2005 letters after communicating with IEPA staff and determining that
no permit decision had been made. Petition
77
16-17. IEPA did not issue the final permit until
three-and-one-half months after receiving
ABC's December 2005 letter, which identified several
technical flaws in the calculation of permit limits that could readily have been corrected by IEPA
prior to issuing the permit.
During this 14-month timeframe between the initial 30-day comment period and the
issuance of the permit, IEPA also received three submittals from Granite City Works. Record at
553-558 (Granite City Works letter of April
2005), 565-600 (Granite City Works letter of May
2005 and attachments), and 625-627 (Granite City works fax of January 2006 and attachment).
At no time did IEPA indicate to ABC or to the public that it was no longer receiving
input regarding the Granite City Works permit.
Ultimately,
after issuing the permit, IEPA responded to
BC's
substantive technical
comments. Petition
7
25 and Exhibit
K attached thereto. Moreover, IEPA conceded the
relevance of
mC's later-filed comments by including them in the Record filed herein. Record at
533-539
and 607-624.
The cumulative effect of its actions throughout the period indicate that, in effect, IEPA
extended the comment period until at least January 13,2006
-
the last Granite City Works
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 16, 2006
submission, which was one month after ABC submitted its technical comments and
two-and-
one-half months before IEPA issued the final permit.
B.
ABC Satisfied the Statutory Purpose.
The clear purpose of
415 ILCS
5/40(e)(2) is to require parties to raise concerns about a
draft permit directly with IEPA so that IEPA can address those concerns and thereby avert a
potential appeal proceeding. In short, issues not presented to IEPA before it makes its permit
decision may not be raised for the first time on appeal.
The most structured opportunities for public input on a proposed NPDES permit are
during the formal 30-day public comment period and at public hearings, as reflected in 41 5 ILCS
5/40
(e)(2). However, nothing precludes IEPA from considering comments submitted after the
public comment period. Indeed, it is not uncommon for permit applicants to submit additional
information to IEPA after the public comment period. In this case, as noted above, Granite City
Works made at least three additional submissions to IEPA after the initial 30-day comment
period.
In this case, ABC initially raised a few technical issues and requested a public hearing or,
at least, an extension of the comment period. After obtaining legal and technical assistance,
ABC noted significant flaws in the calculation of permit limits and communicated with IEPA on
several occasions, including the submission of written comments on October 3 and December 9,
2005. Thus,
ABC clearly raised the technical claims in this appeal with IEPA well before the
agency made its permit decision. Put differently, the appeal raises no new issues that were not
presented to IEPA well before it made its permit decision.'
I
This case therefore differs materially
from
Brazas
v.
Magnussen,
PCB No. 06-13 1,2006
Ill. Env. LEXIS 265
(Ill.
Pollution Control Bd., May 4,
2006), where the Board granted
IEPA's unopposed motion to dismiss claims that
petitioner attempted to raise for the first time on appeal.
6
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 16, 2006
111.
ABC's Public Hearing Claim Is Not Subject To Dismissal.
Granite City Works asks the Board to dismiss
ABC's claim challenging
IEPA's failure to
hold a public hearing prior to issuing the Permit. Granite City Works claims that
ABC has not
alleged sufficient facts to support its claim. That claim is wrong, both on the facts and on the
law.
The governing regulation authorizes IEPA to hold a public hearing where there exists "a
significant degree of public interest in the proposed permit to warrant the holding of such a
hearing." 35
Ill.
Adm.
5
395.1
15(a)(1). Furthermore, although IEPA has some discretion in the
matter, the regulation significantly limits the exercise of that discretion by directing that
"instances of doubt shall be resolved in favor of holding the hearing."
Ibid.
ABC's Petition alleges facts sufficient to demonstrate that IEPA abused its limited
discretion in not holding a public hearing in this case:
ABC, as well as Sierra Club, Health
&
Environmental Justice
-
St. Louis,
Neighborhood Law Office, and Webster Groves Nature Study Society, requested
a public hearing. Petition
77
1
3-
1 5.
That request was made during the initial 30-day comment period, and then
reiterated by
ABC on numerous occasions, including in
ABC's October and
December 2005 comment letters. Petition
yy
13-
19.
Granite City Works discharges its polluted wastewater into Horseshoe Lake,
which is part of Horseshoe Lake State Park. Petition
77
5, 7.
The public actively uses Horseshoe Lake and Horseshoe Lake State Park for
recreation, including fishing, hunting, boating, bird watching, hiking and nature
walks, camping, and picnicking. Petition
7
8.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 16, 2006
A portion of Horseshoe Lake State Park is a designated Waterfowl Management
Area managed by the Illinois Department of Natural Resources. The Waterfowl
Management Area provides nesting sites and habitat for more than 300 species of
birds. Petition
7
9.
Horseshoe Lake is not meeting the state's water quality standards for several of
the pollutants discharged by Granite City Works. Petition
77
10-1 1.
In sum, ABC pled sufficient facts to demonstrate that the public has a significant stake in
ensuring that Granite City Works' water pollution discharge complies with applicable law, and
that the Permit does not allow any pollution beyond applicable limits. Moreover,
ABC's Petition
demonstrates that several organizations
-
including the Sierra Club, a large membership
organization
-
requested a public hearing in this case. Because on motions to dismiss all well-
pled facts are considered true, People v. Stein Steel Mills Services,
Inc., supra, there is no basis
for dismissing
ABC7s
public hearing claim.
CONCLUSION
American Bottom Conservancy respectfully requests that the Pollution Control Board
deny the Motion to Dismiss submitted by Granite City Works.
Respectfully submitted,
rn
?ycy
J+)
$L&--&
Maxine I.
'~ipeles,
~
r
d
Hac
Vice
Director,
Int&disciplinary Environmental Clinic
Washington University School of Law
One Brookings Drive
-
Campus Box 1 120
St. Louis, MO 63130-4899
(3
14) 935-5837 (telephone)
(3
14) 935-5171 (telefax)
milipele@wulaw.wustl.edu
Attorneys for Petitioner American Bottom Conservancy
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 16, 2006
Certificate of Service
I, Maxine I. Lipeles, certify that on June 16,2006, I filed the above MEMORANDUM OF
AMERICAN BOTTOM CONSERVANCY IN OPPOSITION TO UNITED STATES STEEL
CORPORATION'S MOTION TO DISMISS electronically with the Clerk of the Pollution
Control Board and with Carol Webb, Hearing Officer, at
webbc@,ipcb.state.il.us. In addition, I
served copies of the foregoing electronically upon
Sanjay K.
Sofat, counsel for respondent
Illinois Environmental Protection Agency, at
Sanjay.Sofat@epa.state.il.us,
and Erika K. Powers,
counsel for respondent United States Steel Corporation
-
Granite City Works, at
~axine'~.
Lipeles
Counsel for Petitioners
Interdisciplinary Environmental Clinic
Washington University School of Law
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 16, 2006
