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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AMERICAN BOTTOM CONSERVANCY, )
)
Petitioner,
)
)
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 THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’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
Illinois Environmental Protection Agency (“IEPA”).
INTRODUCTION
The U.S. Steel-Granite City Works facility 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”) ¶¶ 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 ¶ 8.
Since 1998, IEPA has listed Horseshoe Lake as impaired under § 303(d) of the Clean Water Act,
33 U.S.C. § 1313(d), because it is polluted in excess of water quality standards for several
pollutants. Petition ¶ 10.
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Granite City Works 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 ¶ 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 ¶¶ 13-15 and Ex. C attached thereto; Record at 533-539. After being told by IEPA staff
that no decision had been made on the permit, ABC retained the Interdisciplinary Environmental
Clinic at Washington University and submitted two additional comment letters that highlighted
technical and legal flaws in the draft permit. Petition ¶¶16-17 and Ex’s D and E attached thereto;
Record at 607-624. ABC’s final two comment letters were submitted to IEPA in October and
December 2005, more than five and three months, respectively, before IEPA made its decision
on the final permit. 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
IEPA’s 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 §
309.148;
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•
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 § 302.212(e); and
•
IEPA failed to set discharge limits and/or monitoring requirements for several pollutants
discharged by Granite City Works into Horseshoe Lake.
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.
IEPA initially issued a permit to Granite City Works on March 8, 2006. Record at 635-
36. However, IEPA issued this initial permit before responding to any of the public comments
that had been submitted. After ABC pointed out that federal law requires such a response,
1
IEPA
rescinded the March 8
th
permit and reissued the permit on March 31, 2006. Record at 644.
Nonetheless, IEPA responded to only one of ABC’s three comment letters before reissuing the
permit, waiting until a week later to respond to ABC’s other comments.
2
Moreover, IEPA has
never provided a response of any kind to ABC’s multiple requests for a public hearing. This
appeal was timely filed after IEPA reissued the permit.
In its Motion to Dismiss, IEPA seeks to dismiss ABC’s substantive challenges to the
erroneous permit limit calculations on the ground that these points were not raised during the
first 30 days after IEPA published the draft permit. IEPA also seeks to dismiss ABC’s challenge
to its failure to hold a public hearing by arguing that ABC did not raise “meaningful” issues in its
1
See
Exhibit E to ABC’s Motion to Supplement the Record (filed July 14, 2006). IEPA does not
object to including this March 24, 2006, letter from ABC to IEPA in the Record, but Granite City Works
does.
2
See
Exhibit A to ABC’s Motion to Supplement the Record (filed July 14, 2006). Both Granite
City Works and IEPA have objected to including the agency’s response to comments dated April 8, 2006,
in the Record.
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comments, and that ABC has not presented any evidence to show that IEPA abused its discretion
in not holding a public hearing. IEPA’s 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 IEPA 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.
Id
.
II.
ABC’s Substantive Technical Claims Should Not Be Dismissed Because They Were
Submitted To IEPA More Than Three Months 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’s failure to include required effluent limits and/or monitoring requirements for
other pollutants. ABC presented all of the substantive claims in the Petition to IEPA by early
December 2005 – some three-and-one-half months (over 100 days) before IEPA made its final
permit decision.
IEPA seeks to dismiss ABC’s claims addressing the substantive flaws in the permit 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.
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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 415 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, ABC’s substantive technical comments
would have been submitted to IEPA at the hearing.
Moreover, IEPA may extend the comment period beyond the initial 30-day period. 35
Ill. Adm. § 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.
Id
.
IEPA’s actions during the 14 months following ABC’s first comment letter (i.e., from the
January 2005 comment letter to the March 31, 2006 permit reissuance) 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 in October and December of
2005. Record at 607-624. 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. ABC submitted its October and
December 2005 letters only after communicating with IEPA staff to determine that no permit
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decision had been made. Petition ¶¶ 16-17. Moreover, IEPA has conceded by putting all three
of ABC’s comment letters in the Record that they were before the agency at the time it made its
decision on the permit. Record at 607-623.
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).
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 date of the last Granite City
Works submission, which was one month after ABC submitted its technical comments and two-
and-one-half months before IEPA issued the final permit. IEPA did not issue the final permit
until three-and-one-half months after receiving ABC’s final comment letter in December 2005,
which identified several technical flaws in the calculation of permit limits that could have been
corrected by IEPA prior to issuing the 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 415 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
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information to IEPA after the public comment period. As noted above, Granite City Works
made at least three additional submissions to IEPA after the initial 30-day comment period.
Moreover, ABC checked with the agency before submitting its last two comment letters to
ensure that the decision was still pending.
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, and
ensuring that no decision had been made, 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. IEPA has even
conceded by putting all of ABC’s comment letters in the record that they were before the agency
when it made its decision on the permit. In sum, ABC’s appeal raises no new issues that were
not presented to IEPA well before it made its permit decision, thereby complying with the
purpose of the procedural provisions of the Illinois Environmental Protection Act.
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III.
ABC’s Public Hearing Claim Is Not Subject To Dismissal.
Board regulations state that IEPA “shall” 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. § 309.115(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.”
Id
.
4
3
This case therefore differs materially from
Brazas v. Magnussen
, PCB No. 06-131, 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.
4
The presumption in the Board’s regulation favoring public hearings is consistent with federal law.
The U.S. Supreme Court has noted that, while public hearings are not required when not requested, public
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A.
IEPA Failed to Respond to the Multiple Requests for a Public Hearing and
Cannot Now Rely on Post Hoc Rationales for its Erroneous Decision.
IEPA asks the Board to dismiss ABC’s public hearing claim, arguing that ABC did not
raise any “relevant and meaningful” issues in its comments and that there was a “lack of
significant public interest.” IEPA’s motion asserts that it decided not to hold a public hearing for
these reasons. In fact, IEPA never responded to the requests for a public hearing from several
significant environmental organizations. Instead, the agency’s counsel has developed a classic
post-hoc rationale for an erroneous agency action that went unexplained during the
administrative process.
It is a well established principle of administrative law that an agency’s decision can only
be upheld based on rationales actually offered by the agency at the time of its decision, and not
on the basis of post-hoc rationalizations offered by counsel.
See SEC v. Chenery Corp.
, 332 U.S.
194, 196 (1947)(“simple but fundamental rule of administrative law” is that court must evaluate
an administrative action “solely by the grounds invoked by the agency”);
Motor Vehicle
Manufacturers Assn v. State Farm Mutual Auto. Ins. Co.
, 463 U.S. 29, 50 (1983)(“an agency’s
action must be upheld, if at all, on the basis articulated by the agency itself”).
The public’s ability to exercise its right to challenge administrative decisions – and the
regard it holds for such decisions – is greatly diminished where agencies fail to provide a
response to requests or justification for their actions. At least one other state’s environmental
review board, in overturning a denial of a public hearing request, has noted the importance of
being responsive to public interest.
See Queen v. Div. Env. Prot’n.
, Appeal No. 621, 1996 WL
participation is an “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, p.72 (1971)).
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738740 (W.Va. Env. Quality Bd. Aug. 13, 1996)(holding that the state agency improperly denied
a request for a public hearing on a NPDES permit).
IEPA’s motion to dismiss ABC’s public hearing claim must fail because it offered no
response to the multiple requests for a public hearing and cannot rely on post hoc rationales
crafted by its counsel.
B. ABC Has Pled Facts Demonstrating the Need for a Public Hearing.
IEPA also argues that ABC has “failed to present any evidence” to support its claim that
a public hearing should have been held. IEPA thus misconstrues the burden on ABC at this stage
of the proceedings. All well-pled allegations in the Petition are deemed true for purposes of
evaluating motions to dismiss and such motions must be denied unless it is clear that no set of
facts would entitle the petitioner to relief.
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).
ABC’s Petition alleges facts demonstrating that IEPA abused its limited discretion by 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 ¶¶ 13-15.
•
These requests were 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 ¶¶ 13-19.
•
Granite City Works discharges its polluted wastewater into Horseshoe Lake,
which is part of Horseshoe Lake State Park. Petition ¶¶ 5, 7.
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•
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 ¶ 8.
•
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 ¶ 9.
•
Horseshoe Lake is not meeting the state’s water quality standards for several of
the pollutants discharged by Granite City Works. Petition ¶¶ 10-11.
•
That all of the above facts – comments on the permit, requests for a public
hearing, public use of Horseshoe Lake, and the polluted condition of the Lake –
clearly demonstrate a significant degree of public interest in the Permit. Petition ¶
20.
In sum, ABC pled facts demonstrating that the public has a significant stake in ensuring
that Granite City Works’ water pollution discharge complies with applicable law and that the
Permit should 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 ABC’s public hearing claim.
CONCLUSION
American Bottom Conservancy respectfully requests that the Pollution Control Board
deny the Motion to Dismiss submitted by IEPA.
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