BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

AMERICAN BOTTOM CONSERVANCY,

1

1

Petitioner,

)

)

Case No. PCB 2006-171

)

(3rd Party NPDES Permit Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY, and UNITED STATES STEEL

)

CORPORATION

-

GRANITE CITY WORKS

)

1

Respondents.

1

NOTICE OF FILING

PLEASE TAKE NOTICE that on November 6,2006, I filed with the Office of the

Clerk of the Pollution Control Board the American Bottoms Conservancy's Motion to

Compel Discovery Responses from IEPA.

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

Saniav.Sofatfi~e~a.state.il.us,

and Carolyn Hesse, counsel for respondent United States Steel Corporation

-

Granite

City Works, at

Carolvn.Hesse@BTLaw.com.

Interdisciplinary Environmental Clinic

Washington University School of Law

One Brookings Dr., Campus Box 1120

St. Louis, MO

63130-4899

(314) 935-8760; Fax: (314) 935-5171

eiheisel@wulaw.wustl.edu

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

---

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

AMERICAN BOTTOM CONSERVANCY

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY, and UNITED

STATES STEEL CORPORATION

-

GRANITE CITY WORKS

Respondents.

PCB No. 2006-171

1

(NPDES Permit Appeal)

)

)

1

1

AMERICAN BOTTOM CONSERVANCY'S MOTION TO COMPEL

DISCOVERY RESPONSES FROM IEPA

Petitioner American Bottom Conservancy (ABC) hereby moves to compel

discovery responses from the Illinois Environmental Protection Agency (IEPA).

ABC

propounded discovery on IEPA on October 23,2006. LEPA objected andlor provided

incomplete responses to a number of ABC's discovery requests on October 30,2006.

Exh. A.'

ABC attempted to resolve this dispute through email correspondence dated

November 2,2006, which identified ABC's specific concerns and requested that IEPA

provide complete responses to its discovery. Exh.

B. IEPA has committed to providing

unspecified "amended" responses to

ABC's discovery, but not until after the agreed upon

discovery motion deadline of November 6,2006.

Exh. C. ABC must therefore file this

motion to protect its right to seek complete responses from IEPA.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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ABC hereby seeks an order from the Hearing Officer pursuant to 35 111. Adm.

Code

$

101.610(g) compelling complete responses to the discovery requests identified

below

I.

IEPA Provided an Incomplete Response to Request to Admit No.

4.

ABC's Request to Admit No. 4 stated as follows:

Admit that on March 3

1, 2006, IEPA was aware that the organizations that

submitted comment letters relating to the Permit had collectively at least several

thousand members.

IEPA's response to this request was as follows:

Partially Admit. On January 17 and 18,2006, the Agency received comment

letters from Kathleen Logan-Smith and ABC. Neither the Permit Section nor

Standards' Unit has specific knowledge that the above-mentioned organizations

have at least several thousand members.

Exh.

A

IEPA appears to have misread the question or the comment letters that were

submitted in that it identifies only ABC and Kathleen Logan Smith as submitting

comments.

In fact, the comment letters submitted were on behalf of ABC, the Sierra

Club, Health

&

Environmental Justice-St. Louis, the Webster Groves Nature Study

Society, and the Neighborhood Law Office.

See AR 532-36. ABC seeks an order from

the Hearing Officer compelling IEPA to provide a complete answer to ABC's Request to

Admit No.

4.

11.

IEPA Objected and Provided No Responses to Requests to Admit Nos.

5,6,7

and 8 Relating to U.S. Steel's Discharge of Zinc into Horseshoe Lake.

ABC asked IEPA to admit a number of facts relating to U.S. Steel's discharge of

zinc into Horseshoe Lake and the impairment of the Lake due to already excessive levels

of zinc in its bottom sediment.

See

Exh. A (requests to admit nos. 5 through 8). IEPA

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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objected to each of these requests on the ground that "this issue was not raised in the

comment letters filed within the public comment period".

Id.

(IEPA's responses).

In fact, ABC and other organizations clearly raised the issue of the "impairment"

of Horseshoe Lake in their joint comment letter. AR

533. Horseshoe Lake was

considered impaired due to excessive levels of several pollutants, including zinc, in both

the 2004 and 2006 list of impaired waters prepared by IEPA. Exhs.

D and E (excerpts of

2004 and 2006 list of impaired waters showing zinc to be among the pollutants causing

the impairments). The joint comment letter thus raised the issue of U.S. Steel's discharge

of zinc into Horseshoe Lake by expressing concern over the proposed addition of

pollutants into the Lake for which it was already considered impaired.

To the extent that IEPA will argue that the joint comment letter did not identify

zinc specifically, the blame lies squarely with IEPA's failure to provide an accurate

public notice for the U.S. Steel permit. IEPA erroneously failed to identify zinc as one of

the pollutants impairing Horseshoe Lake in the public notice for the U.S. Steel permit.

AR

497. ABC should not be penalized for failing to specifically identify zinc in its

comment letter when IEPA led the public astray by erroneously omitting that pollutant

from the list of those impairing Horseshoe Lake. Regardless of this error by IEPA,

ABC's identification of the impairment of the Lake was sufficient to raise a concern

about U.S. Steel's discharge of zinc because zinc was one of the pollutants causing the

impairment.

The scope of discovery is broad. Any "relevant information and information

calculated to lead to relevant information" is discoverable.

35 Ill. Adm. Code

5

101.616.

ABC's requests for admission relating to IEPA's permitting U.S. Steel to discharge zinc

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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into a lake that is already impaired due to excess levels of that pollutant is clearly relevant

to whether sufficient public interest existed to warrant a public hearing.

111.

IEPA Provided Incomplete Responses to Requests to Admit Nos. 9 and 10

Relating to U.S. Steel's Discharge of Lead into Horseshoe Lake.

ABC asked IEPA to admit simple facts relating to U.S. Steel's discharge of lead

into Horseshoe Lake.

See

Exh. A (requests to admit nos. 9 and 10). Request to Admit

No.

9 stated:

Admit that the Permit allows for USS to discharge more than 2,000 pounds of

lead per year into Horseshoe Lake.

IEPA stated in response:

Partially Admit. The NPDES permit contains limits and monitoring for lead

pursuant to the Federal Categorical regulatory requirements. Further, no

reasonable potential exists to exceed water quality standards for lead.

Exh. A

IEPA's response to Request to Admit No.

9 is vague and non-responsive. This

Request asked LEPA to admit a simple fact -how much lead the permit allows U.S. Steel

to discharge into Horseshoe Lake each year. It is impossible to determine from

IEPA's

response whether it admits that U.S. Steel is allowed to discharge more than 2,000

pounds of lead into the Lake each year. ABC therefore seeks

an order from the Hearing

Officer requiring IEPA to provide a clear and complete response to Request to Admit No.

ABC's Request to Admit No. 10 stated:

Admit that USS discharges lead into Horseshoe Lake

IEPA's response stated:

Partially Admit. The NPDES Permit

IL0000329 allows USS to discharge only

background concentrations of lead in the raw water. USS does not use lead in its

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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process or as a raw material, thus USS does not add to existing concentrations of

lead in the intake water.

Exh. A

Again, IEPA provides

a vague and incomplete answer to a simple question. IEPA

attempts to confuse the issue by making assertions about what the permit allows and

where lead might come from. It is impossible to determine whether IEPA admits that

U.S. Steel discharges lead into Horseshoe Lake. ABC therefore seeks an order from the

Hearing Officer requiring IEPA to provide a clear and complete response to Request to

Admit No.

10.

IV.

IEPA Failed to Provide a Meaningful Response to Interrogatory No. 10.

ABC asked IEPA to state all facts that support its denial of any of ABC's requests

to admit.

In response, IEPA stated: "See the Agency Record and Attachment

Exh.

A.

Supreme Court Rule

213(e) does allow a party to respond to an interrogatory by

producing documents that would answer the question. However, Rule

213(e) does not

permit a party to simply identify mass amounts of documents, some of which might be

responsive to the interrogatory. The administrative record in this matter and the

documents produced by IEPA contain approximately

700 pages. It is not sufficient to

send ABC on a scavenger hunt through the record to determine which specific documents

might support

IEPA's denial of various requests to admit.

ABC seeks an order from the Hearing Officer requiring IEPA to either provide a

written response to Interrogatory No.

10 or to identify specific documents from which

2

Attachment I is a compilation of documents IEPA produced in response to ABC's requests for

production of documents.

5

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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ABC

could glean a response. ABC seeks such a response with regard to requests to

admit

4, 5, 6, 7, 8, 9 and 10.

V.

Conclusion

For the reasons provided above, ABC requests that the Hearing Officer issue an

order compelling IEPA to provide further responses to

ABC's discovery requests

identified above.

Respectfully submitted,

Interdisciplinary Environmental

Clinic

Washington University School of Law

One Brookings Drive -Campus Box

1120

St. Louis, MO 63130-4899

314.935.8760

Counsel

for

American Bottom Conservancy

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

---

CERTIFICATE OF SERVICE

I, the undersigned, certify that on this 6th day of November 2006, one copy of the

foregoing was sent via electronic communication to the following:

Sanjay

K. Sofat

Carolyn S. Hesse

Division of Legal Counsel

Barnes

&

Thomburg L.L.P.

Illinois Environmental Protection Agency

One North Wacker Drive

1021 North Grand Avenue East

Suite 4400

P.O. Box 19276

Chicago,

IL 60606

Springfield, IL 62794-9276

carolyn.hesse@btlaw.com

sanjay.sofat@epa.state.il.us

Carol Webb, Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue East

P.O. Box 19274

Springfield, IL 62794-9274

webbc@ipcb.state.il.us

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

AMERICAN BOTTOM CONSERVANCY,

1

Petitioner,

)

Case No. PCB 2006-171

)

(3rd

Party NPDES Permit Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY, and UNITED STATES STEEL

1

CORPORATION

-

GRANITE CITY WORKS

)

Respondents.

1

DECLARATION OF EDWARD J. HEISEL

1.

My name is Edward

J. Heisel.

2.

1 am an attorney in this matter for Petitioner American Bottom

Conservancy

3.

I am employed by the Washington University School of Law in its

Interdisciplinary Environmental Clinic.

4.

I am over the age of 18 and am competent to testify as to the matters set

forth herein and would so testify if called upon to do so

5.

I have personal knowledge of all of the matters set forth herein, except

statements of my understanding based upon information and belief, which matters

I

believe to be true.

6.

This declaration and the attached documents are submitted in support

of

American Bottom Conservancy's Motion to Compel Discovery Responses from IEPA.

7.

Attached hereto as

Exhibit A

is a true and correct copy of Illinois EPA's

Response to American Bottom Conservancy's Request for Admissions, Production of

Documents, and Interrogatories

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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8.

Attached hereto as

Exhibit

B is a true and correct copy of an email I

transmitted to opposing counsel on November 2,2006, relating to IEPA's failure to

completely respond to

ABC's discovery requests.

9.

Attached hereto as

Exhibit C

is a true and correct copy of an email

transmitted to me by counsel for IEPA on November 3,2006, relating to IEPA's

discovery responses.

10.

Attached hereto as

Exhibit

D is a true and correct copy of excerpts from

the Illinois 2004 Section

303(d) List, which I downloaded from IEPA's website.

11.

Attached hereto as

Exhibit

E is a true and correct copy of excerpts from

the Illinois Integrated Water Quality Report and Section

303(d) List

-

2006, which I

downloaded from IEPA's

website.

I declare under penalty of perjury that the foregoing is true and correct. Executed

on November 6,2006.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

AMERICAN BOTTOM CONSERVANCY

1

Petitioner,

1

V.

PCB 06- 171

)

(3rd Party NF'DES Permit

Appeal)

ILLINOIS, ENVIRONMENTAL PROTECTION

AGENCY and UNITED STATES STEEL

)

CORPORATION

-

GRANITE CITY WORKS,

)

)

Respondents.

)

ILLINOIS EPA'S RESPONSE TO AMERICAN BOTTOM CONSERVANCY'S

REQUEST FOR ADMISSIONS, PRODUCTION OF DOCUMENTS, AND

INTERROGATORIES

NOW COlMES 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 the Illinois Pollution Control Board

("Illinois

I'CB"

or "Board") Regulations at 35 Ill. Adm. Code 101.614, 101.616, 101.618,

101.620,

105.202(a)-(b), and 105.204(b), the Illinois Code of Civil Procedures, the

Illinois

S~preme Court Rules, hereby responds to the American Bottom Conservancy's

("Petitione:r" or "ABC") request to produce documents, request to admit, and

interrogatclries with regard to this proceeding and the issuance of NF'DES permit

IL0000325~.

GENERAL OBJECTIONS

The Illinois EPA objects to each of the Petitioner's request to produce documents,

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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request to admit, interrogatories, definitions, and instructions to the extent that,

individually or cumulatively, they purport to impose upon the Illinois EPA duties or

obligations which exceed or are different

fiom those imposed upon the Illinois EPA by

the

Illinoi:; Environmental Protection Act, Illinois Administrative Code, and Illinois Code

of Civil Procedure.

The Illinois EPA further objects to each of the Petitioner's request to produce

document:;, request to admit, interrogatories, definitions, and instructions to the extent

that they call for attorney-client communications between or among Illinois

EPA's

counsel, attorney work product, or any other privileged matters.

AGEIVCY'S RESPONSES TO AMERICAN BOTTOM CONSERVANCY'S

REOUESTS FOR ADMISSION

ARE IN BOLD LETTERS:

The name of the Illinois EPA

employee(s) responding to the question is provided at the

end of response. A Verification from each of the respondents is enclosed.

ADMISSION NO.

1: Admit that on March 31,2006, IEPA was aware that persons

consume fish caught from Horseshoe Lake.

Partially Admit. As Horseshoe Lake is a General Use waterbody under the Board

regulatior~s, it is protected for aquatic life use, including fish consumption.

However, neither the Permit Section nor the Standards Unit has specific knowledge

that

persalns consume fish caught from Horseshoe Lake. Blaine Kinsley and Bob

Mosher.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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ADM1SSI:ON NO. 2: Admit that on March 31,2006, IEPA was aware that persons

cons'ume ~~aterfowl

that are taken at or near Horseshoe Lake.

Partially Admit. As Horseshoe Lake is a General Use waterbody under the Board

regulatioes, it is protected for wildlife life use. However, neither the Permit Section

nor the

Sllandards' Unit has specific knowledge that persons consume waterfowl

that are

t:aken at or near Horseshoe Lake. Blaine Kinsley and Bob Mosher.

ADMISSION NO.

3:

Admit that on March 31,2006, IEPA was aware that a significant

portion of Horseshoe Lake was included in

a state park used by the public for recreational

activities, including fishing, bird watching,

hilung, hunting, and boating.

Admit. Bob Mosher.

ADMISSION NO. 4: Admit that on March 31,2006, IEPA was aware that the

organizations that submitted comment letters relating to the Permit had collectively

at

least several thousand members.

Partially Admit. On January 17 and 18,2006, the Agency received comment letters

from Kathleen Logan-Smith and

ABC. Neither the Permit Section nor Standards'

Unit has specific knowledge that the above-mentioned organizations have at least

several thousand members. Blaine Kinsley and Bob Mosher.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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ADMISSION NO. 5: Admit that on March 31,2006, Horseshoe Lake was considered to

be impaired under section

303(d) of the federal Clean Water Act due to excessive levels

of zinc.

Objection, this issue was not raised in the comment letters filed within the public

comment period that ended on January 18,2005. Thus, the question is outside the

scope of

tlhe Board hearing.

ADMISSI'ON NO. 6: Adm~t that zinc concentrations in the bottom sediment of

Horseshoe Lake are "highly elevated" (as stated in

IEPA's September 2006 response to

ABC's connments on the Stage 1 TMDL report for the Cahokia Canal/Horseshoe Lake

watershed:,.

Objection, this issue was not raised in the comment letters filed within the public

comment period that ended on January 18,2005. Thus, the question is outside the

scope of

the Board hearing. Further, the term "highly elevated" is ambiguous.

ADMISSION NO. 7: Admit that the Permit allows for USS to discharge more than 4,000

pounds of :zinc per year into Horseshoe Lake.

Objection, this issue was not raised in the comment letters filed within the public

comment

]period that ended on January 18,2005. Thus, the question is outside the

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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scope of the Board hearing.

ADMISS1:ON NO. 8: Admit that USS discharges zinc into Horseshoe Lake.

objection^, this issue was not raised in the comment letters filed within the public

comment period that ended on January 18,2005. Thus, the question is outside the

scope of the Board hearing.

ADMISSION NO.

9: Admit that the Permit allows for USS to discharge more than 2,000

pounds of lead per year into Horseshoe Lake.

Partially Admit. The NPDES permit contains limits and monitoring for lead

pursuant to the Federal Categorical regulatory requirements. Further, no

reasonable potential exists to exceed water quality standards for lead. Blaine

Kinsley and Bob Mosher.

ADMISSIlON NO. 10: Admit that USS discharges lead into Horseshoe Lake,

Partially Admit. The NPDES Permit IL0000329 allows USS to discharge only

backgrou~od concentrations of lead in the raw water. USS does not use lead in its

process or as a raw material, thus USS, does not add to existing

concentrations of

lead in the intake water. Blaine Kinsley and Bob Mosher.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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AGElNCY'S RESPONSES TO AMERICAN BOTTOM CONSERVANCY'S

REQUE:ST FOR PRODUCTION OF DOCUMENTS ARE IN BOLD LETTERS:

The

answa:rs to ABC's request for production of documents are made by Blaine Kinsley,

Unit Manager, Bureau of Water, Illinois EPA, in accordance with his Verification below.

The objections to the request are made by the Illinois

EPA's attorney, Sanjay K. Sofat.

REQUEST NO. 1: All documents evidencing a communication between IEPA and USS

relating to the Permit during the period

from December 19,2004, through March 3 1,

2006. This request does not include documents included within the administrative record

filed in this matter.

See the Agency Record and Attachment

I. Blaine Kinsley.

Objection,: Section

40(e) of the Illinois Environmental Protection Act requires the

Board to lbase its decision "exclusively on the record before the Agency." 415 ILCS

5/4O(e) (2006).

REQUEST NO. 2: All documents relating to correspondence dated October 3,2005, and

'December 12,2005, from the Washington University Interdisciplinary Environmental

Clinic to IEPA. This request does not include documents included within the

administrative record filed in this matter.

See the Agency Record and Attachment I. Blaine Kinsley.

Objection: Section

40(e) of the Illinois Environmental Protection Act requires the

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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Board to base its decision "exclusively on the record before the Agency." 415 ILCS

5/40(e) (2006).

REQUEST NO. 3: All documents relating to IEPA's decision on the issue of whether to

hold a public hearing for the Permit. This request does not cover documents included

within the administrative record filed in this matter.

See the

A,gency Record and Attachment I. Blaine Kinsley.

objection^: Section 40(e) of the Illinois Environmental Protection Act requires the

Board to base its decision "exclusively on the record before the Agency." 415 ILCS

5/40(e) (2006).

REQUEST NO. 4: All documents relating to the Permit that were created between

December

19,2004 and March 31,2006. This request does not cover documents

included

in. the administrative record filed in ths matter.

See the Agency Record and Attachment I. Blaine Kinsley.

Objection: Section

40(e) of the Illinois Environmental Protection Act requires the

Board to lbase its decision

LLexclusively

on the record before the Agency." 415 ILCS

5/40(e) (2006).

REQUEST NO. 5: All documents IEPA uses as guidance when determining whether to

hold

a public hearing on a NPDES permit. This request includes generally applicable

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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policy guidance and memoranda, not factual information relating to any particular permit.

See the Agency Record and Attachment I. Blaine Kinsley.

objection^: Section 40(e) of the Illinois Environmental Protection Act requires the

Board to base its decision

'cexclusively on the record before the Agency." 415 ILCS

5/40(e) (21D06).

REQUEST NO.

6:

All documents-created by IEPA explaining the reasons why IEPA

decided not to hold a public hearing when such a hearing was requested in regard to any

NPDES permit issued in the last three years.

See the Agency Record and Attachment I. Blaine Kinsley.

Objection: Overly broad. Further, Section

40(e) of the Illinois Environmental

Protection Act requires the Board to base its decision "exclusively on the record

before the Agency." 415 ILCS

5/40(e) (2006).

REQUEST NO.

7:

All documents that IEPA intends to use as an exhibit at the hearing in

this matter..

In lieu of producing documents already in the administrative record, IEPA

may provide the page numbers in the record for such documents.

See the Agency record, including pages 532-539, and Attachment I. Blaine Kinsley.

REQUEST NO. 8: All documents identified, mentioned, or referred to in your answers

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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to American Bottom Conservancy's First Set of Interrogatories or relied upon by your

attorneys :in responding to those interrogatories.

In lieu of producing documents already

in the administrative record, IEPA may provide the page numbers in the record for such

docurnent;s.

See the Agency Record and Attachment I. Blaine Kinsley.

Objectios: Section

40(e) of the Illinois Environmental Protection Act requires the

Board to base its decision "exclusively on the record before the Agency." 415 ILCS

5/40(e) (2006).

-

AGEIVCY'S RESPONSES TO AMERlCAN BOTTOM CONSERVANCY'S

INTERROGATORIES ARE IN BOLD LETTERS

The answers to the request to produce are made by Blaine Kinsley, Unit Manager, Bureau

of Water, Illinois EPA, in accordance with his Verification below. The objections to the

request to produce are made by the Illinois

EPA's attorney, Sanjay K. Sofat.

INTERROGATORY NO. 1

:

State with specificity the process IEPA undertakes when

deciding whether to grant a public hearing on a NPDES permit.

A general outline of the process used to review a request for a public bearing is as

follows:

1. The NI'DES permit'is placed on public notice for a period of 30 days.

2. The Agency receives comments on the NPDES permit from interested parties.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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3. Those comments are reviewed first by the review engineer assigned to that

NPDES permit.

4. If any of the comments are significant and require a change in the NPDES

permit,

those changes are incorporated into the permit.

5. If there is also a request to hold a public hearing, the request is evaluated by the

review engineer based on the factors listed in the answer to Interrogatory No.

2

below.

6. The re,quest to hold a hearing is then discussed with supervisory personnel based

on interest and comments received during the comment period.

7. A final recommendation to hold or not hold a hearing is prepared for the

Director's review. Blaine Kinsley.

INTERROGATORY NO. 2: Identify all factors IEPA considers when deciding whether

to grant a lmblic hearing on a NPDES

permit.

The Agency reviews all of the comments received during the public notice period

and evaluates the request to hold or not hold a hearing on the following factors:

1. A significant degree of public interest, whether it be in the form of letters from

individualls, or letters from groups of interested citizens.

2. Nature and extent of comments received during the public comment period.

3. Relevance of the comments to activities authorized under the proposed permit.

Blaine Kinsley.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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INTERROGATORY NO. 3: Identify the persons who participated in the decision

whether to grant a public hearing for the Permit.

Beth Burkard, Blaine Kinsley,

A1

Keller, Toby Frevert, Marcia Willhite, Doug

Scott. Blaine Kinsley

INTERROGATORY NO.

4: Explain the rationale for why IEPA did not grant a public

hearing for the Permit, including, but not limited to, the factors that were relevant in

making this decision.

ABC's comments received during the comment period were either non-significant in

that the

c~omments did not provide any additional information the Agency would

have used in drafting the permit or that the comments were on non-NPDES permit

related issues. The Agency thus concluded that

ABC's comments did not amount to

the significant degree of public interest in the proposed draft permit. Blaine

Kinsley.

INTERRClGATORY NO. 5: State the number of public hearings held by lEPA on

NPDES permits each year for the last three years.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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2006

1 as of October 26,2006

INTERROGATORY NO. 6: State the number of requests for public hearings on NPDES

permits that IEPA denied each year for the last three

The Agency does not keep any record of the number of public hearings requests

denied each year. However, a count for the years 2005 and 2006 is provided based

on Mr. K~eller's personal knowledge.

2005

1

2006

3 as of October 30,2006

INTERROGATORY NO. 7: Identify all persons within IEPA who participated in the

issuance of the Permit between October 17,2002

and March 31,2006. Include the date

range(s) that each person worked on the Permit.

Ukanno Fbxworth

Beth Burltard

Blaine

Ki~osley

A1 Keller

Toby Frevert

Marcia

W'illhite

~oug

scort

October 2002

-

February 2004

February 2004

-

November 2005

November 2005

-

March 2006

November 2005- March 2006

2006

2006

2006

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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INTERROGATORY NO. 8: Identify any policy guide, internal memoranda, or other

guidance IEPA uses when deciding whether to hold a public hearing on a NPDES permit.

See the

Board's regulations at

35

111. Adm. Code

309.115.

Blaine Kinsley.

INTERROGATORY NO.

9: Identify all documents in the administrative record filed in

this matte]: that evidence IEPA's rationale for not granting a public hearing on the Permit.

See the Agency Record and Attachment

I. Blaine Kinsley.

INTERROGATORYNO. 10: For each request in American Bottom Conservancy's First

Request

for Admissions that IEPA denies in whole or in part, state the facts that support

such

denial.

See the Agency Record and Attachment I. Blaine Kinsley.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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Respectfully submitted,

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY

Y

By:

Saniay

-.

K. Sofat

Special Assistant Attorney General

Date: October 30,2006

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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STATE C)F ILLINOIS

)

)

COUNTY OF SANGAMON

)

VERIFICATION

Blaine Kinsley, being duly sworn, states that he is the Unit Manager of Water Pollution

Control

Program, Illinois EPA; that he is duly authorized to provide the foregoing

answers to request to produce documents, request to admit, and interrogatories on behalf

of Illinois Environmental Protection Agency; and that he makes said answers based upon

his personal knowledge, his review of documents that he reasonably believes to be

accurate,

and information provided to him by other section units that he reasonably

believes to be accurate.

Blaine Kinsley

Subscribed and sworn to before me,

a notary public in and for said County and

State, this

-

day of October 2006.

Notary Public

My Commission Expires:

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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STATE

OF

ILLINOIS

)

)

COUNTY OF SANGAMON

)

VERIFICATION

Bob Mosher, being duly sworn, states that he is the Manager of the Water Quality

Standards Section within Water Pollution Control Program, Illinois EPA; that he is duly

authorized to provide the foregoing answers to request to produce documents, request to

admit, and interrogatories on behalf of Illinois Environmental Protection Agency; and

that he makes said answers based upon his personal knowledge, his review of documents

that he reasonably believes to be accurate, and

information provided to him by other

section

umts that he reasonably believes to be accurate.

Bob Mosher

Sul,scribed and sworn to before me, a notary public in and for said County and

State, this

,-

day of October 2006.

Notary Public

My Commission Expires:

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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STATE

OF

ILLlNOIS

)

1

SS

COUNTY OF

SANGAMON

)

VERIFICATION

A1 Keller, being duly swom, states that he is the Manager of Water Pollution Control

Program, Illinois EPA; that he is duly authonzed to provide the foregoing answers to

request to produce documents, request to admit, and interrogatories on behalf of Illinois

Environmental Protection Agency; and that he makes said answers based upon his

personal knowledge, his review of documents that he reasonably believes to be accurate,

and

infomiation provided to him by other section units that he reasonably believes to be

accurate.

A1 Keller

Subscribed and swom to before me, a notary public in and for said County and

State, this

_-

day of October 2006.

Notary Public

My Commission Expires:

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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STATE OIF ILLINOIS

)

1

COUNTY OF SANGAMON

)

PROOF OF SERVICE

I, the undersigned, on oath state that on 30Ih of October 2006, I have sent a copy

of the

AGENCY'S RESPONSE TO AMERICAN BOTTOM CONSERVANCY'S

REQUEST FOR ADMISSIONS. PRODUCTION OF DOCUMENTS, AND

INTERRO'GATORIES

upon the following persons via electronic cornmuiication:

Ted Heisel

Int(:rdisciplinary 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

Banes

&

Thornburg LLP

One North Wacker Drive

Suite 44000

Chicago,

IL 60606

Sanjay K. Sofat

r

-

THIS

FILING

PRINTED ON RECYCLED PAPER

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

---

Edward J. Heisel

You forwarded this message on 11/2/2006 4:17 PM.

Sanjay (and Carolyn for purposes of the last item) –

This is an attempt to resolve various concerns we have with IEPA's responses to ABC's discovery and

over the completeness of the administrative record in this matter. I am hopeful that we can informally

resolve these issues. The summaries of the propounded discovery given below are not intended to

limit their scope, but are given only to reference the relevant issue.

Request to Admit 4

: This request asked IEPA to admit that the organizations that submitted comments on the permit had

collectively "several thousand members." IEPA stated "partially admit" in its response and then identifies only some of the groups

that submitted comments. IEPA appears to have misread the question or the comments that were submitted in that it identifies only

ABC and Kathleen Logan Smith as submitting comments. In fact, the comment letters submitted were on behalf of ABC, the Sierra

Club, Health & Environmental Justice-St. Louis, the Webster Groves Nature Study Society, and the Neighborhood Law Office. ABC

asks that IEPA provide a complete answer to this request.

Request to Admit 5

: This request asked IEPA to admit that Horseshoe Lake was listed as impaired for zinc at the time the

permit was issued. IEPA objected on the ground that the "issue was not raised in the comment letters filed within the public

comment period". Contrary to this assertion, ABC did raise as an issue the impairment of Horseshoe Lake in each of its comment

letters, including the one submitted on January 18, 2005. Zinc was identified as a cause of impairment for Horseshoe Lake in both

the 2004 and 2006 303(d) lists. ABC asserts that the impairment of Horseshoe Lake by zinc is relevant to determining whether

there was sufficient public interest to warrant a public hearing. ABC therefore asks IEPA to provide a response to this request.

Request to Admit 6

. This request asked IEPA to admit that zinc concentrations in the bottom sediment of Horseshoe Lake are

"highly elevated" as IEPA has stated in other contexts. IEPA objected to this request. ABC asserts that this request is relevant for

the same reasons identified for Request to Admit 5 above. ABC therefore asks IEPA to provide a response to this request.

Request to Admit 7

. This request asked IEPA to admit that the permit allows U.S. Steel to discharge more than 4,000 pounds

of zinc into Horseshoe Lake each year. IEPA objected to this request. ABC asserts that this is relevant for the same reasons

identified for Request to Admit 5 above. ABC therefore asks IEPA to provide a response to this request.

Request to Admit 8

. This request asks IEPA to admit that U.S. Steel actually discharges zinc into Horseshoe Lake, a fact that

IEPA should know due to various reporting requirements. IEPA objected to this request. ABC asserts that this is relevant for the

same reasons identified for Request to Admit 5 above. ABC therefore asks IEPA to provide a response to this request.

From:

Edward J. Heisel

Sent:

Thu 11/2/2006 4:14 PM

To:

'Sanjay Sofat'; 'Carolyn Hesse'; David Ballard; Erika Powers

Cc:

Elizabeth Mushill

Subject:

ABC v IEPA - Letter to IEPA re Discovery Responses

Attachments:

Page 1 of 3

https://webmail.law.wustl.edu/exchange/ejheisel/Sent%20Items/ABC%20v%20IEPA%20-... 11/5/2006

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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Request to Admit 9

. This request asks IEPA to admit that the permit allows U.S. Steel to discharge more than 2,000 pounds

of lead into Horseshoe Lake each year. IEPA's response stated "partially admit" and then provided the purported rationale for the

permit limits for lead. ABC does not feel that IEPA provided a complete response to this simple question. The permit either does or

does not allow U.S. Steel to discharge more than 2,000 pounds of lead into Horseshoe Lake each year. It is thus unclear what

"partially admit" means in this context. ABC seeks a complete response to this request.

Request to Admit 10

. This request asks IEPA to admit that U.S. Steel discharges lead into Horseshoe Lake. IEPA's response,

again, was "partially admit", along with a purported explanation of where the lead in U.S. Steel's discharge comes from. ABC does

not feel that IEPA provided a complete response to this simple question. U.S. Steel either does or does not discharge lead into

Horseshoe Lake and IEPA should have the knowledge to answer this question based upon various reporting requirements.

Interrogatory No. 10

. This interrogatory asks IEPA to provide the facts to support any partial or complete denial of a request

to admit. IEPA's response to this interrogatory simply cited the administrative record and documents it produced in response to

other discovery requests. Citing to over 600 pages of documents in a general way is not a sufficient answer to this interrogatory.

ABC seeks a complete response to this interrogatory with regard to requests to admit 4, 5, 6, 7, 8, 9 and 10.

Completeness of the Record

. In response to ABC's document requests, IEPA produced 37 pages of documents that were

generated prior to issuance of the permit. The documents relate to the permit and should have been included in the administrative

record. ABC seeks agreement from the parties that these documents should be included within the administrative record.

ABC intends to file a motion to compel on these subjects if we are not able to work out a resolution on

or before Monday, Nov. 6

th

.

Please let me know at your earliest convenience whether IEPA will provide complete responses to

ABC's discovery.

Thank you,

Ted Heisel

Edward J. Heisel

Clinic Attorney

Page 2 of 3

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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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Washington University School of Law

Interdisciplinary Environmental Clinic

Campus Box 1120

Anheuser-Busch Hall

One Brookings Drive

St. Louis, MO 63130-4899

314.935.8760

314.935.5171 (fax)

314.401.6218 (cell)

ejheisel@wulaw.wustl.edu

Page 3 of 3

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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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Edward J. Heisel

Ted,

The Agency will file its amended response on November 8, 2006.

The Agency agrees with amending the record suggestion.

Thank you,

Sanjay K. Sofat

This e-mail, and any documents attached or included hereto, is a

confidential attorney-client, attorney work product and/or

pre-decisional FOIA-exempt document intended solely for the use of the

individual to whom it is addressed, and should be handled accordingly.

If you are not the intended recipient, be advised that you have

received this e-mail in error and that any use, dissemination,

forwarding, printing or copying of this e-mail is strictly prohibited.

If you have received this e-mail in error, please notify:

Sanjay Sofat

Assistant Counsel

Illinois EPA

1021 N. Grand Ave. East

P.O. Box 19276

Springfield, IL 62794-9276

(217) 782-5544

(217) 782-9807 (Fax)

E-mail address: Sanjay.Sofat@epa.state.il.us

>>> "Edward J. Heisel" <ejheisel@wulaw.wustl.edu> 11/2/2006 4:14 PM

>>>

Sanjay (and Carolyn for purposes of the last item) -

This is an attempt to resolve various concerns we have with IEPA's

responses to ABC's discovery and over the completeness of the

administrative record in this matter. I am hopeful that we can

informally resolve these issues. The summaries of the propounded

discovery given below are not intended to limit their scope, but are

given only to reference the relevant issue.

Request to Admit 4: This request asked IEPA to admit that the

From:

Sanjay Sofat [Sanjay.Sofat@epa.state.il.us]

Sent:

Fri 11/3/2006 1:39 PM

To:

CAROLYN.HESSE@BTLaw.com; David.Ballard@BTLaw.com; erika.powers@BTLaw.com; Edward J. Heisel

Cc:

Elizabeth Mushill

Subject:

Re: ABC v IEPA - Letter to IEPA re Discovery Responses

Attachments:

Page 1 of 4

https://webmail.law.wustl.edu/exchange/ejheisel/Inbox/Re:%20ABC%20v%20IEPA%20-... 11/5/2006

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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organizations that submitted comments on the permit had collectively

"several thousand members." IEPA stated "partially admit" in its

response and then identifies only some of the groups that submitted

comments. IEPA appears to have misread the question or the comments

that were submitted in that it identifies only ABC and Kathleen Logan

Smith as submitting comments. In fact, the comment letters submitted

were on behalf of ABC, the Sierra Club, Health & Environmental

Justice-St. Louis, the Webster Groves Nature Study Society, and the

Neighborhood Law Office. ABC asks that IEPA provide a complete answer

to this request.

Request to Admit 5: This request asked IEPA to admit that Horseshoe

Lake was listed as impaired for zinc at the time the permit was

issued.

IEPA objected on the ground that the "issue was not raised in the

comment letters filed within the public comment period". Contrary to

this assertion, ABC did raise as an issue the impairment of Horseshoe

Lake in each of its comment letters, including the one submitted on

January 18, 2005. Zinc was identified as a cause of impairment for

Horseshoe Lake in both the 2004 and 2006 303(d) lists. ABC asserts

that

the impairment of Horseshoe Lake by zinc is relevant to determining

whether there was sufficient public interest to warrant a public

hearing. ABC therefore asks IEPA to provide a response to this

request.

Request to Admit 6. This request asked IEPA to admit that zinc

concentrations in the bottom sediment of Horseshoe Lake are "highly

elevated" as IEPA has stated in other contexts. IEPA objected to this

request. ABC asserts that this request is relevant for the same

reasons

identified for Request to Admit 5 above. ABC therefore asks IEPA to

provide a response to this request.

Request to Admit 7. This request asked IEPA to admit that the permit

allows U.S. Steel to discharge more than 4,000 pounds of zinc into

Horseshoe Lake each year. IEPA objected to this request. ABC asserts

that this is relevant for the same reasons identified for Request to

Admit 5 above. ABC therefore asks IEPA to provide a response to this

request.

Request to Admit 8. This request asks IEPA to admit that U.S. Steel

actually discharges zinc into Horseshoe Lake, a fact that IEPA should

know due to various reporting requirements. IEPA objected to this

request. ABC asserts that this is relevant for the same reasons

identified for Request to Admit 5 above. ABC therefore asks IEPA to

Page 2 of 4

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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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provide a response to this request.

Request to Admit 9. This request asks IEPA to admit that the permit

allows U.S. Steel to discharge more than 2,000 pounds of lead into

Horseshoe Lake each year. IEPA's response stated "partially admit"

and

then provided the purported rationale for the permit limits for lead.

ABC does not feel that IEPA provided a complete response to this

simple

question. The permit either does or does not allow U.S. Steel to

discharge more than 2,000 pounds of lead into Horseshoe Lake each

year.

It is thus unclear what "partially admit" means in this context. ABC

seeks a complete response to this request.

Request to Admit 10. This request asks IEPA to admit that U.S. Steel

discharges lead into Horseshoe Lake. IEPA's response, again, was

"partially admit", along with a purported explanation of where the

lead

in U.S. Steel's discharge comes from. ABC does not feel that IEPA

provided a complete response to this simple question. U.S. Steel

either

does or does not discharge lead into Horseshoe Lake and IEPA should

have

the knowledge to answer this question based upon various reporting

requirements.

Interrogatory No. 10. This interrogatory asks IEPA to provide the

facts

to support any partial or complete denial of a request to admit.

IEPA's

response to this interrogatory simply cited the administrative record

and documents it produced in response to other discovery requests.

Citing to over 600 pages of documents in a general way is not a

sufficient answer to this interrogatory. ABC seeks a complete

response

to this interrogatory with regard to requests to admit 4, 5, 6, 7, 8,

9

and 10.

Completeness of the Record. In response to ABC's document requests,

IEPA produced 37 pages of documents that were generated prior to

issuance of the permit. The documents relate to the permit and should

have been included in the administrative record. ABC seeks agreement

from the parties that these documents should be included within the

administrative record.

Page 3 of 4

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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

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ABC intends to file a motion to compel on these subjects if we are not

able to work out a resolution on or before Monday, Nov. 6th.

Please let me know at your earliest convenience whether IEPA will

provide complete responses to ABC's discovery.

Thank you,

Ted Heisel

Edward J. Heisel

Clinic Attorney

Washington University School of Law

Interdisciplinary Environmental Clinic

Campus Box 1120

Anheuser-Busch Hall

One Brookings Drive

St. Louis, MO 63130-4899

314.935.8760

314.935.5171 (fax)

314.401.6218 (cell)

ejheisel@wulaw.wustl.edu

Page 4 of 4

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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 6, 2006

---