BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AMERICAN BOTTOM CONSERVANCY
Petitioner,
V
.
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY and UNITED STATES STEEL
CORPORATION - GRANITE CITY WORKS,
Respondents .
Dorothy Gunn, Clerk
Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 N. Grand Ave. East
P.O. Box 19274
Springfield, IL 62794-9274
NOTICE OF FILING
RECEIVED
CLERK'S OFFICE
JUL 2 8 2006
PCB 06-171
(3'd Party NPDES Permit
Appeal)
Ted Heisel
Interdisciplinary Environmental Clinic
Washington University School of Law
One Brookings Drive -Campus Box 1120
St. Louis, MO 63130-4899
Carolyn S. Hesse
Erika K. Powers
David T . Ballard
Barnes & Thornburg LLP
One North Wacker Drive
Suite 44000
Chicago, IL 60606
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
Pollution Control Board an original and four (4) copies the AGENCY'S RESPONSE TO
PETITIONER's MOTION TO SUPPLEMENT THE RECORD
of the Illinois
Environmental Protection Agency, a copy of which is herewith served upon you
.
ILLINOIS ENVIRONM
TECTION AGENCY
By : °--
~~
Sanjay K. Sofas
Assistant Counsel
Division of Legal Counsel
Dated: July 26, 2006
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
(217) 782-5544
THIS FILING PRINTED ON RECYCLED PAPER
STATE OF ILLINOIS
Pollution Control Board
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'S OFFICE
JUL 2 8 2006
STATE OF ILLINOIS
AMERICAN BOTTOM CONSERVANCY
)
Pollution Control Board
Petitioner,
)
V .
)
PCB 06-171
(3rd Party NPDES
Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and UNITED STATES STEEL
)
CORPORATION - GRANITE CITY WORKS,
)
Respondents
.
)
AGENCY'S RESPONSE TO PETITIONER's MOTION TO SUPPLEMENT THE
RECORD
NOW COMES the Respondent, the ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY ("Illinois EPA" or "Agency"), by one of its attorneys, Sanjay
K. Sofat, Assistant Counsel, and Special Assistant Attorney General, and, pursuant to 35
111. Adm. Code 101.500, hereby requests that the Illinois Pollution Control Board
("Board") Partially Grant the Petitioner American Bottom Conservancy's ("ABC")
request to amend the record . The Agency opposes the inclusion of Exhibit A and B in the
record. In support of this motion, the Agency states as follows
:
1 . On May 18, 2006, the Board issued an order accepting ABC's appeal of a
National Pollutant Discharge Elimination System ("NPDES") permit issued by
the Agency on March 31, 2006, to United States Steel Corporation, Granite City
Works ("US Steel")
.
2. On June 5, 2006, the Agency filed the record
.
3
.
On June 22, 2006, the Agency filed a motion for leave to amend the record to
include: correspondence from Alan Keller to C. Daniel Baker, Jr., U.S. Steel Law
Department (dated March 31, 2006), correspondence from Alan Keller to
Kathleen Logan Smith (dated March 31, 2006), and correspondence from Alan
Keller to ABC (dated March 31, 2006)
.
4. On June 27, 2006, during the status conference call, ABC raised concerns
regarding the five documents it believes should be included in the record
.
5. On July 11, 2006, the Agency responded to ABC's request to amend the record
.
The Agency objected to the inclusion of two of the five documents . Specifically,
the Agency objects to the inclusion of Exhibits A and B, but agrees with the
inclusion of Exhibits C, D, and E
.
6. On June 28, 2006, the Hearing Officer directed ABC to file any motion to
supplement the record with the Board, if the issue could not be resolved
informally between the parties
.
7. The Agency objects to the following documents
i. Correspondence dated April 10, 2006, from the Agency to counsel for
ABC (Exhibit A)
ii. Correspondence dated April 5, 2006, from Director Douglass Scott to
counsel for ABC (Exhibit B)
.
8. The Agency issued the US Steel NPDES permit on March 31, 2006, pursuant to
Section 39 (a) of the Illinois Environmental Protection Act ("Act")
. 415 ILCS
5/39 (2004) .
9 .
ABC challenged the Agency's decision to issue the US Steel NPDES permit
under 40(e) .
10. Section 40(e) of the Act, specifically provides that "the Board shall hear the
petition
.
.
. exclusively on the basis of the record before the Agency ." 415 ILCS
5/40(e)(3)
(emphasis added)
.
11. Section 40(e)(3) of the Act directs the Board to consider the petition "exclusively
on the basis of the record before the Agency ." 415 ILCS 5/40(e)(3) (2004) . The
Board has long held that in permit appeals, its review is limited to the record that
was before the Agency at the time the permitting decision was made
.
See
Community Landfill Company v. IEPA,
PCB 01-48, PCB 01-49 (consolidated)
(April 5, 2001) ;
Panhandle Eastern Pipe Line Company v. IEPA,
PCB 98-102
(January 21, 1999)
.
12. Thus, all correspondence documents that were received after March 31, 2006,
when the permit was issued, were not before the Agency at the time of the final
NPDES permit decision . Therefore, these documents should not be included in
the record. Consequently, the Agency objects to the inclusion of Exhibits A and
B as part of the Agency record
.
13. ABC's desire to include the two documents directly conflicts with the mandate of
Section 40(e) and Board's long held position . Moreover, the Agency fails to
understand the ABC's purpose to include these documents if the documents were
not before the Agency at the time of the Agency's final decision . These
documents and their content could not have been used to meaningfully impact the
Agency's decision to issue or not issue the NPDES permit, as they were created
after the disputed decision .
14. Citing 35 Ill . Adm. Code 105 .212(b)(2), ABC contends that Exhibits A and B
should be included in the record . Section 105.212(b)(2) states
that,"[c]orrespondence with the petitioner and any documents or materials
submitted by the petitioner to the Agency related to the permit application ." 35
Ill. Adm. Code 105 .212(b)(2). However, ABC should read Section 105 .212(b)(2)
in conjunction with Section 105.212(b)(5), which states that, "any other
information the Agency relied upon in making its final decision ."
35 Ill. Adm .
Code 105.212(b)(2)
(emphasis added)
.
Clearly, only information the Agency
"relied upon in making its final decision" should be included in the record .
Exhibits A and B were not before the Agency upon making it final decision, and
therefore, should not be included in the record
.
15. The Agency does not object to the inclusion of Exhibits C, D, and E because they
are dated before the issuance of the permit on March 31, 2006 . These three
documents are
:
i. Correspondence dated March 7, 2006 from ABC to Agency
.
See
Exhibit
C
.
ii. E-mail correspondences dated March 7, 2006, and March 14, 2006,
between the Agency and ABC .
See
Exhibit D .
iii. Correspondence dated March 24, 2006, from ABC's counsel to the
Agency.
See
Exhibit E .
16. In summary, since ABC challenged the Agency's decision to issue the US Steel
NPDES permit under 40(e), the Board shall "shall hear the petition
.
.
exclusively on the basis of the record before the Agency ." 415 ILSC 5140(e)(3)
.
Furthermore, based on the Board's long held position in permit appeals, its review
is limited to the record that was before the Agency
at the time the permitting
decision was made
.
See
Community Landfill Company v. IEPA,
PCB 01-48
(consolidated) (April 5, 2001)
;
Panhandle Eastern Pipe Line Company v. IEPA,
PCB 98-102 (January 21, 1999) . Thus the Agency requests that Exhibits A and B
be excluded from the record as they were not considered by the Agency in its
final decision to issue the US Steel's NPDES permit .
WHEREFORE, the Agency respectfully requests that the Board Partially Grant
Petitioner's motion to supplement the record .
DATED: July 26, 2006
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
By :
t~
w
Sanjay K. Sofat
Assistant Counsel
Division of Legal Counsel
THIS FILING PRINTED ON RECYCLED PAPER
STATE OF ILLINOIS
COUNTY OF SANGAMON
SUBSCRIBED AND SWORN TO BEFORE ME
this day of July 26, 2006
.
Notary Public
SS
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the attached AGENCY'S
RESPONSE TO PETITIONER's MOTION TO SUPPLEMENT THE RECORD
upon the persons to whom it is directed, by placing a copy in an envelope addressed to :
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 N. Grand Ave. East
P.O. Box 19274
Springfield, IL 62794-9274
Ted Heisel
Maxine I. Lipeles
Interdisciplinary Environmental Clinic
Washington University School of Law
One Brookings Drive - Campus Box 1120
St. Louis, MO 63130-4899
Carolyn S. Hesse
Erika K. Powers
David T. Ballard
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, IL 60606
and mailing it from Springfield, Illinois on July 26, 2006, with sufficient postage affixed
as indicated above
.
THIS FILING PRINTED ON RECYCLED PAPER
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