Microsoft Word - PCB 06-171 hearing transcript 112006.txt

ILLINOIS POLLUTION CONTROL BOARD

AMERICAN BOTTOMS CONSERVANCY,

Petitioner,

vs.

PCB 06-171

(Third Party NPDES

Permit Appeal)

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY and UNITED STATES STEEL

CORPORATION and GRANITE CITY WORKS,

Respondents.

Proceedings held on November 20th,

2006, at 1 p.m. at the Madison County

Administration Building, County Board Room 203,

Edwardsville, Illinois, before Carol Webb, Chief

Hearing Officer.

Reporter: Beverly S. Hopkins, RPR

IL CSR No. 084-004316, MO C.C.R. No. 968

reporter@keefereporting.com

618-277-0190 1-800-244-0190

11 North 44th Street, Belleville, Illinois 62226

APPEARANCES

ILLINOIS POLLUTION CONTROL BOARD

Ms. Carol Webb

1021 North Grand Avenue East

Springfield, Illinois 62794

Phone: (217) 524-8509

AMERICAN BOTTOMS CONSERVANCY

Washington University in St. Louis

School of Law

Mr. Edward J. Heisel

Ms. Elizabeth A. Mushill

Campus Box 1120

One Brookings Drive

St. Louis, Missouri 63130

Phone: (314) 935-5837

US STEEL-GRANITE CITY WORKS

Barnes & Thornburg, LLP

Ms. Carolyn S. Hesse

Mr. David T. Ballard

Suite 4400

One North Wacker Drive

Chicago, Illinois 60606

Phone: (312) 357-1313

UNITED STATES STEEL CORPORATION

Mr. C. Daniel Baker

600 Grant Street-Room1500

Pittsburgh, Pennsylvania 15219

Phone: (412) 433-2801

INTERROGATION INDEX

MS. MUSHILL

23, 109, 125, 144

MR. HEISEL

99, 123

MS. HESSE

62, 100, 117

MR. BALLARD

103, 129, 145

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HEARING OFFICER WEBB: Good afternoon.

My name is Carol Webb. I'm a hearing officer

with the Pollution Control Board. This is PCB

06-171, American Bottom Conservancy v. IEPA and

US Steel-Granite City Works.

It is November 20th, 2006. We are

beginning at 1 p.m. At issue in this case is

whether the Agency improperly denied the request

for public hearing before issuing an NPDES permit

to US Steel for it's steelmaking facility in

Granite City, Madison County. The decision

deadline is January 18th, 2007.

You should know that it is the

Pollution Control Board and not me that will make

the final decision in this case. My purpose is

to conduct the hearing in a neutral and orderly

manner so that we have a clear record of the

proceedings. I will also assess the credibility

of any witnesses on the record at the end of the

hearing.

I will note for the record that there

are some members of public present. If there is

time at the end of this hearing, I will allow

members of the public to give comments or

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testimony. If we run out of time, you may still

submit written comments to the Board, and I will

be happy to answer any questions about this

during a break or after the hearing. And I do

understand that petitioners are agreeable to

allowing some public comment today.

This hearing was noticed pursuant to

the Act and the Board's rules and will be

conducted pursuant to Section 101.600 through

101.632 of the Board's procedural rules.

At this time I'd like to ask the

parties to please make their appearance on the

record, beginning with petitioner, please.

MR. HEISEL: Edward J. Heisel for

petitioner, American Bottoms Conservancy.

MS. MUSHILL: Elizabeth A. Mushill for

petitioner, American Bottoms Conservancy.

MR. SOFAT: Sanjay Sofat for Illinois

EPA.

MS. HESSE: Carolyn Hesse for US

Steel-Granite City Works.

MR. BAKER: C. Daniel Baker, US Steel.

MR. BALLARD: David Ballard, US Steel.

HEARING OFFICER WEBB: Thank you very

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much. We do have some preliminary matters to

discuss. First, would the petitioner like to

withdraw the Motion to Compel filed on November

6th?

MR. HEISEL: Yes, we are agreeable to

withdraw that.

HEARING OFFICER WEBB: Okay. Great.

Also, on November 6th the petitioner filed a

second motion to supplement the record and

respondents have no objection; is that correct?

MR. SOFAT: Yes.

HEARING OFFICER WEBB: All right.

Okay, then that motion is granted. Would

petitioner like to make an opening statement?

MS. MUSHILL: Yes, we would. The

Pollution Control Board regulation on public

hearings provides that a public hearing on NPDES

permits shall be held when the IEPA determines

that there is a significant degree of public

interest. Further, if the IEPA has any doubt

that a significant degree of public interest

exists, again it shall hold the public hearing.

Today American Bottoms Conservancy

will present testimony from five witnesses, each

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of whom will describe their personal interests in

Horseshoe Lake and the NPDES permit at issue

here. Also, based on their knowledge of

Horseshoe Lake, they will describe a significant

interest of the public at large.

ABC will show today that the record

before the IEPA reflected this significant public

interest. Through the materials and the record,

ABC will show that, one, the IEPA had knowledge

that Horseshoe Lake is used recreationally by

many individuals and that many people consume

fish from the lake as part of their daily diet.

Two, the IEPA had knowledge that several large

organizations expressed an interest in the US

Steel permit and the long-term health of

Horseshoe Lake. Three, the IEPA had knowledge

that there was substantive problems with the

permit that the agency had the ability to

correct, and the IEPA neither followed up on the

issue raised nor held a public hearing in which

it could have acquired more information. And

four, lastly, the IEPA had knowledge that the

public had serious questions and concerns about

the permit that they would have like to have

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addressed in the public forum.

ABC's witness here will describe

Horseshoe Lake is a place that they, and the

members of the organizations they represent, care

deeply about. Each of the witnesses will

describe their own experiences at Horseshoe Lake

and each will describe what they do to conserve

and protect it.

All of the witnesses, each of them a

member of the public, will express their

significant interests in Horseshoe Lake and the

permit that allows pollutants to be discharged

into it. It will be the testimony today ABC

presents a factual basis why a public hearing is

necessary here. And we reserve our legal

arguments for our brief. Thank you.

HEARING OFFICER WEBB: Thank you.

Would the Agency like to make an opening

statement?

MR. SOFAT: Yes. Good afternoon, I am

Sanjay Sofat. I represent the Illinois

Environmental Agency in the American Bottoms

Conservancy vs. Illinois EPA and US Steel, PCB

06-171.

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The sole issue before the Board is

whether the written comments received prior to

the close of the comment period on January 18,

2005, constituted "a significant degree of public

interest in the draft permit" as required by

Section 309.115 of the Board of the regulations.

Petitioner, American Bottoms

Conservancy (ABC), brought this suit under

Section 40(e) of the Act. Under Section 40(e) of

the Act, ABC has the burden of proof. Thus, ABC

must prove that the Agency record as of January

18, 2005, contained substantial evidence to show

that a "significant degree of public interest

existed in the proposed permit" and that Agency

clearly erred or abused its discretion in

deciding not to hold a public hearing "on the

basis of the requests" it received during the

comment period.

At the close of the comment period on

January 18, 2005, the Agency had received two

comment letters dated January 17 and 18 of 2005.

The contents of these two letters alone

constitute all of the information the Agency had

before it to decide whether or not to hold a

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public hearing in this case. The contents of

these letters thus must constitute a significant

degree of public interest in the proposed permit.

Any issues or information raised in these comment

letters that do not pertain to the proposed

permit are thus irrelevant and are not part of

the determination regarding whether a significant

degree of public interest existed in the proposed

permit.

The decision to hold a hearing under

Section 309.115 of the Board regulations is

"largely discretionary." The Agency's decision

to not hold a public hearing was based on the two

letters dated January 17 and 18th of 2005 and not

based on what is being said -- may be said here

today.

In this case, the Agency found that

there was not a significant degree of public

interest in the proposed permit and instead chose

to respond to the comment letters in writing. As

the Agency's decision to not hold a public

hearing is consistent with the requirements of

309.115, the Agency requests the Board to affirm

the Agency's decision. Thank you.

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HEARING OFFICER WEBB: Thank you.

MS. HESSE: Carolyn Hesse for US

Steel. First of all, I'd like to concur with the

Agency's comments and add some additional

comments of our own.

Under Section 39(a) of the Illinois

Environmental Protection Act, when an operating

permit is required for a facility, the applicant,

in this case US Steel, must apply to the Agency

for the permit, "and it shall be the duty of the

Agency to issue such a permit upon proof by the

applicant that the facility will not cause a

violation of the Illinois Environmental

Protection Act or regulations hereunder."

US Steel-Granite City Works timely

filed for a permit in Madison County.

Accordingly, the Agency was required under

Section 39(a) to issue the permit because the

permit it discharges would not cause a violation

of the Act for regulations.

During the public comment period on

the draft permit, a total of three letters were

submitted to the Agency providing comments on the

draft permit. One was from US Steel, and it did

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not request a hearing. One letter was from a

single environmental organization, that's the

January 17th letter. It did not appeal the

Agency's decision. The third letter was

allegedly from several environmental

organizations but only one of them, ABC, was

interested enough to appeal the permit under

Section 40(e) of the Act.

At this point there is only one

remaining issue in this case, whether the Agency

abused its discretion by not holding a public

hearing before issuing the permit. The decision

whether to hold a hearing is within the Agency's

discretion. And there are two elements to this

question. One, is whether there's significant

degree of public interest; and two, whether the

interest is in the proposed permit.

ABC is the party challenging the

Agency's discretionary decision and has the

burden of proof that there was a significant

degree of public interest in the permit to

warrant a hearing. Further, that this must be

evident to IEPA when the Agency decided to issue

the permit and at the close of the public comment

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period, which was January of 2005.

Pursuant to Section 40(e)(2)(a), only

public comments received during the public

comment period, which ended on January 18th,

2005, may be considered by the Board when

reviewing the Agency's decision to issue the

permit without holding a public hearing. As I

mentioned, there are two parts to the question,

one, is what is the public interest.

There is no case law interpreting what

exactly public interest means so the regulation

should be applied according to explain terms.

Merriam-Websters dictionary defines "public" as

meaning "of, relating to, or affecting all the

people or the whole area of a nation or state."

So the question is whether ABC sufficiently

demonstrated at the time that the Agency

determined that it would proceed to issue the

permit based on the information at the close of

the public comment period that, one, there was a

significant degree of interest in the permit from

the whole body of people who use or live near

Horseshoe Lake; two, whether the interest was

evident to IEPA officials responsible for issuing

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the permit; and three, whether IEPA misjudged the

degree of interest in the permit and on that

basis abused its discretion by failing to hold a

public hearing on the permit.

Under the Act and regulations the

Agency has discretion over whether a public

hearing is held or not because the Board is

reviewing a discretionary decision by the Agency,

the Board is constrained to give deference to the

Agency and uphold the Agency decision unless ABC

proves that the Agency abused its discretion.

Clearly the Board should refrain from

substituting its judgment for the Agency. The

abuse of discretion requires that ABC demonstrate

by compelling evidence that the Agency made the

wrong choice.

What we believe the evidence will show

is that there's basis of appeal of essentially

one letter from ABC dated January 18th, 2005.

You're likely to hear from witnesses during this

hearing that are going to testify about use of

Horseshoe Lake and some of them in the comment

letter did not even see the letter until a few

weeks before this hearing.

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The second prong of this is the

interest has to be in the proposed permit. As

mentioned before, there are two elements that ABC

must prove, not only must ABC show there's a

public interest, ABC must show that that interest

is specifically in the proposed permit.

The letter of January 18 does not list

one individual or organization who will be

adversely affected by the Granite City Works'

discharge permit. The letter does not claim or

allege that any water quality standards will be

violated by issuing the permit. Rather, the

letter only states there is concern for Horseshoe

Lake, that Horseshoe Lake is impaired for certain

pollutants and that there may have been some

non-compliance issues with the previous permit.

Issues related to impairment of

Horseshoe Lake are properly addressed through the

Clean Water Act Section 303(d) process and Ms.

Andria and ABC properly participated in that

process. Any non-compliance issues are properly

addressed through a different forum which is the

Agency's enforcement procedures and the

procedures under the Act, neither of these issues

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are relevant to whether this permit should have

been issued, but there's no demonstration that

there was any interest in proposed permit for

Granite City Works.

In the end, ABC's evidence will be

insufficient to demonstrate that IEPA abused its

discretion proceeding to issue the permit without

conceding to Ms. Andria's request for a public

hearing. Thank you.

HEARING OFFICER WEBB: Thank you.

Petitioner may call its first witness.

MR. BALLARD: Before we call

witnesses, US Steel would move to exclude any

non-party witnesses from Ms. Andria's testimony

of other witnesses.

HEARING OFFICER WEBB: Why?

MR. BALLARD: Well, on the basis that

the other witnesses will -- will see the

testimony, involve the other witnesses and will

testify consistently with that. US Steel and

IEPA are entitled to testimony that is not

changed or altered by witnesses here observing

the other witness's testimony.

HEARING OFFICER WEBB: We -- we don't

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do that because of the public nature of these

proceedings and generally what they entail. So

I'm not going to, you know, I'm not -- I'm going

to allow the witnesses to remain in the room, if

they so cheese.

MR. BALLARD: Okay.

MR. HEISEL: If we could deal with one

evidentiary matter beforehand, we would like to

submit as evidence IEPA's response to our

discovery request into the record.

HEARING OFFICER WEBB: Is that -- is

there any objection to that?

MR. SOFAT: No.

HEARING OFFICER WEBB: Have you seen

it?

MR. HEISEL: I have copies. They were

served on all the parties.

MR. BAKER: Can we have an opportunity

to examine those before we proceed?

HEARING OFFICER WEBB: Absolutely.

MR. BAKER: If we could take a brief

break to do that.

HEARING OFFICER WEBB: We can go off

the record for a few minutes, but I'd rather not

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lose the people quite yet.

MR. BAKER: Thank you.

HEARING OFFICER WEBB: Okay. We'll go

off the record.

(A discussion was held off the

record.)

HEARING OFFICER WEBB: We're back on

the record. We just had gone off the record to

give all the parties a chance to examine some

exhibits.

MS. HESSE: We object to supplementing

the record with these documents for the reason

that, first of all, this is discovery

information. The scope of discovery, as you

know, is beyond the scope of what can be allowed

at hearing. Furthermore, there's names of Agency

employees in here that there's not going to be an

opportunity to question them or cross-examine

them or give further clarification of what some

of the responses to the questions are.

The purpose of this is discovery to

get information. If ABC had wanted this

information from the employees at IEPA, they

could have called them as adverse witnesses.

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They did not do so. So we object to including

these in the record. And further, there's no

foundation for providing these documents since

it's ABC that wants to include them.

HEARING OFFICER WEBB: May I see a

copy of what we're talking about?

MR. HEISEL: Certainly. These are the

originals and there were two amended responses

which are these. I think that's my only other

copy so --

HEARING OFFICER WEBB: Okay.

MS. HESSE: Furthermore, because the

people aren't here, this would be considered

hearsay.

HEARING OFFICER WEBB: Do you have any

response to their objection?

MR. HEISEL: Well, these responses

were provided in the due course of discovery

pursuant to our discovery schedule that was

agreed on here. We would contend that they are

admissions of the party opponents and, therefore,

are admissible here. The purpose of some of

these discovery requests, for example, the

request to admit, is actually to narrow the

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issues that could be brought up in this hearing.

In terms of the record, you know, at

one point the Agency did not object to these

answers on the grounds -- or they stated their

objections. They didn't object to many of them

on the grounds that these were not relevant to

the record. In fact, they objected to that at

one point and then changed their answers later

after we had moved to compel. And so apparently

it's the Agency's position now that these are

sort of items that are in the record and these

are statements to clarify what is in the record,

and they are admissions on behalf of IEPA.

MS. HESSE: We further, in the

response to the comments, is that if we were

going to come in and say we want to add

additional information to the record and here's

our affidavit, we don't think that would be

proper -- a proper thing to do. The record on

this matter is closed and has been closed, and

all that is relevant here is whether IEPA should

have held a hearing, and the only information

relevant to that is anything that was submitted

to IEPA before January 18, 2005. So we --

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there's a lot of information in here that is

relevant. I'm not sure there is anything in here

that is relevant to the issue of this hearing.

HEARING OFFICER WEBB: Well, I --

looking at this, you're right. I can't tell if

it's relevant or if it includes evidence that's

already part of the record or should be part of

the record. I'm not going to admit it, but if

you'd like me to take it as an offer of proof,

I'm willing to do that, and you can make an

argument to the board that it should be admitted.

MR. HEISEL: Yes, we would like to

reserve that right based upon the statement

that's in thus far.

HEARING OFFICER WEBB: Okay.

MR. SOFAT: Can I make a general

objection? I stated in my opening statement that

the Agency decision was based on what we had

before us, that was the 17 and 18th letters,

January of 2005. Anything that may be said today

or anything that witnesses or any of the parties

may try to bring in today, was not before us. So

we, the Agency, I would like to say, state a

general objection to any of that.

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HEARING OFFICER WEBB: Okay. Well, I

-- you're right. Information that was not before

the Agency at the time they made this decision is

not admissible, but I haven't seen this document

so I'm not admitting it. I'm just taking it as

an offer of proof and they can make their

arguments to the Board.

MR. SOFAT: Yes.

HEARING OFFICER WEBB: Okay. Go

ahead.

MS. MUSHILL: American Bottoms

Conservancy would like to call Ms. Kathy Andria.

HEARING OFFICER WEBB: Ms. Andria, if

you would like to come have a seat up here.

MS. MUSHILL: And if it's all right,

I'd like to hand Ms. Andria some of the items

that are all in the record just for reference.

HEARING OFFICER WEBB: Ms. Andria,

would you -- oh, you can bring them up. You can

sit right here. And the court reporter will

swear you in.

MR. BALLARD: Are those exhibits?

HEARING OFFICER WEBB: Yeah, they're

part of -- these are documents that are in the

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record is my understanding.

MR. BAKER: We would like to see

copies of the reference -- exact copies of

references of things that are in the record,

please.

MS. MUSHILL: And, Ms. Webb, would you

like a copy as well?

HEARING OFFICER WEBB: Yeah. Please.

(The witness was sworn in by the

court reporter.)

MS. HESSE: Just a point of

clarification. Can we have a representation made

on the record that the documents that we're being

handed are exact and true copies of what is in

the record and what has been handed to the

witness?

MS. MUSHILL: Yes, they are all items

copied directly from the records provided to us

from the IEPA.

MR. HEISEL: Ms. Webb, if I could

briefly go back to the issue of the discovery

responses. To preserve our offer of proof, I

would either ask that they be somehow made

available to the Board or, you know, as exhibits

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that weren't entered evidence.

HEARING OFFICER WEBB: Yes, that's how

I did it.

MR. HEISEL: Okay. Thank you.

DIRECT EXAMINATION

BY MS. MUSHILL:

Q. Could you please pronounce and spell

your name for the record?

A. Kathy Andria, K-A-T-H-Y A-N-D-R-I-A.

Q. Ms. Andria, did you submit a public

comment letter to the NPDES permit at issue in

this case?

A. Yes, I did.

Q. And on behalf of what organization did

you personally submit this letter?

A. American Bottoms Conservancy.

Q. Can you describe to me what the

mission of American Bottoms Conservancy is?

A. To protect, preserve, enhance,

restore, and promote the natural and cultural

resources of the American Bottoms flood plains

and to educate the public as to the importance of

those resources. We also work on other areas in

Illinois, with a special concentration on the

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American Bottoms flood plains.

Q. What kind activities does ABC do to

promote this mission?

A. We monitor and participate in

committees and councils on air, water, land use

decisions in a growth group. We work with

various agencies, DNR, IEPA, regional councils.

We work with neighborhood organizations in

various locations. We monitor public notices in

the newspapers, and we review comment and make

comment on permits and, when necessary, the

NPDES.

Q. Where is the American Bottoms?

A. It's the flood plain along the

Mississippi River starting at the confluence with

the Missouri River just below Alton down to

Chester at the confluence with the Kaskaskia

River.

Q. Is Horseshoe Lake located within the

American Bottoms.

A. Yes, it is.

Q. How many members does American Bottoms

Conservancy have?

A. We have about 100.

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Q. Do you hold any special positions

within the organization?

A. I'm president.

Q. What do you do as the president of

ABC?

A. In consultation with the Board, I --

we set the agenda. I call meetings, when

necessary, for -- over the phone or in person.

We meet generally quarterly, and I preside over

the meetings.

Q. Ms. Andria, do you ever go to

Horseshoe Lake?

A. Yes, I do.

Q. And what do you do when you're at the

lake?

A. Sometimes I walk. Sometimes I drive

through, either on the main part or down Bend

Road. I watch the birds. I watch -- I look to

see who's there. I look at the water levels. I

look to see what -- what is happening generally,

but I really truly love the site for bird

watching.

Q. How often do you go to Horseshoe Lake?

A. Probably average once a week.

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Q. When was the last time you were there?

A. Last Wednesday or Thursday, I believe.

Q. You mentioned you enjoy looking at

birds at Horseshoe Lake. Why do you enjoy going

to Horseshoe Lake to do that?

A. They have really spectacular birds

there. There are the shore birds, the -- they've

egress and Great Blue Heron. They have Little

Blue Heron. They have endangered birds that are

on the endangered list. And you just really

can't see them other than going to the river, and

Horseshoe Lake you can.

Q. While you've been at Horseshoe Lake,

have you seen other members of the public using

the lake?

A. Yes. It's a State Park. I see public

there all the time.

Q. And what do you see them doing?

A. People fish. A lot -- most of the

time there are people fishing. They -- there are

people who picnic, people who play different

games, kids on -- walking along with their

parents along the lake. There's always runners

going through. People biking. It's -- it's a

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general-use lake. There's always fishing, even

in the rain and cold weather.

Q. How long have you been going to

Horseshoe Lake?

A. Since I was a child.

Q. Do you -- do you have concerns about

the discharge that goes into Horseshoe Lake?

A. Yes, I very much do.

Q. How have these concerns affected how

you use Horseshoe Lake?

A. Well, I -- I had to take -- taken in

the course of our work, I had taken children from

different schools in various places to -- for

wetlands observation and to Horseshoe Lake.

Since learning more about what is in the lake, I

no longer can do that. I -- I used to take kids

fishing there, and I no longer do that. I don't

fish there anymore, and I certainly don't eat the

fish from the lake.

Q. Ms. Andria, how often do you write

comment letters to the IEPA regarding permits?

A. Well, it's hard to say as a definite

thing. I -- On water permits, I haven't

commented very much. I think this might have

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been my first comment letter on the water front,

the -- and perhaps have done maybe five total.

I'm not sure of the exact number. On air

permits, I've commented much more. And -- and

then it, too, depends on how many -- how many

there are. I mean, as many as a dozen perhaps in

a year. It's really difficult to -- to say.

Q. Why did you decide to write a comment

letter on the NPDES permit issued here?

A. Because when I saw it, I knew that

Horseshoe Lake was -- was already contaminated,

and I was concerned about it. And it was an

opportunity to have input and I haven't seen it,

an opportunity to have input before. And it's --

there are various things in the -- the public

notice that came to my attention that I thought

really needed -- I needed to find more about, and

they were issues of concern.

Q. Could I have you look at the document

in front of you that is the record pages 537-539?

A. Yes.

Q. Could you tell me what this document

is?

A. This is the comment letter that we

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submitted on behalf of American Bottoms

Conservancy, Health & Environmental Justice-St.

Louis, Neighborhood Law Office, Sierra Club,

Webster Groves Nature Study Society. It's dated

January 18, 2005. It is to the Bureau of Water,

IEPA, on the US Steel permit. And its a request

for hearing extension and our comments.

Q. And if it is all right, I'd like to

refer, for convenience, this document, your

comment letter. Ms. Andria, what was your role

in the creation of this document?

A. I wrote it in conjunction with -- in

consultation with others.

Q. And if you look at page 539 of that

document, did you contact the individuals listed

on this page about submitting a public comment

letter?

A. Yes, I did.

Q. And do all of these individuals

approve the addition of their names to this

letter before you sent it?

A. Yes, they did.

Q. And did all of these individuals that

submitted this letter review it before you sent

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it to the IEPA?

A. I can't say that they all read it.

They -- I sent it to everyone after -- after I

got the final copy. I know that two of them read

it. I couldn't say that others did or did not.

Q. Did they have any input in how the

letter was drafted?

A. Yes.

Q. Other than this group comment letter,

did American Bottoms Conservancy send any other

written comments to the IEPA in regards to this

permit?

A. Yes, we did.

Q. Could I have you look at the next two

documents in your pile which are record pages 607

through 609?

MR. SOFAT: Objection. These letters

were not received prior to the close of the

comment period.

HEARING OFFICER WEBB: Are they part

of the record?

MR. SOFAT: Yes. But the issue here

is whether or not the Agency should have had a

hearing which is based on what we received prior

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to the close of the comment period.

MS. HESSE: We would also like to add

we object as well. The Board has already ruled

that any issues raised after the close of the

public comment period are outside of the scope of

this petition in this appeal.

MS. MUSHILL: One reason these

documents are relevant in this appeal is to show

that Ms. Andria did have an interest enough that

she continued to follow-up and continued to seek

advice on this permit.

HEARING OFFICER WEBB: Well, since

this document is already part of the record, I'm

-- I'll let her finish her line of questioning on

it.

Q. (By Ms. Mushill) Again, these

documents are marked record pages 607 through 609

and 611 through 623. And it's IEPA Exhibit 77 in

the record. Ms. Andria, could you tell me what

these documents are?

A. The first one is a letter that was

submitted by the Washington University School of

Law Interdisciplinary Environmental Clinic to

IEPA on behalf of the American Bottoms

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Conservancy on this, the US Steel permit. And it

said that it reiterated our request for a public

hearing. It -- it had additional information

that is submitted why we thought we -- there was

a problem and why we needed a public hearing.

And it says, again, that it requested a public

hearing, that we request a public hearing, and

talks about the Horseshoe Lake and it says that

-- that we are preparing additional comment,

technical comment based -- that the Wash U. Law

Clinic would prepare with their engineers.

The second -- the second is dated

December 9th, 2005. It's from the same

Washington University Clinic, the IEC. It's

submitted, the technical comment on our -- from

us, on our behalf, American Bottoms Conservancy.

It gives specific items that it finds flaws with

the permit and it, again, asks for a public

hearing and talks about the reasons and including

subsistence fishing and the -- the environmental

justice issues and why it's in the public

interest to have a public hearing.

Q. Ms. Andria, does the Interdisciplinary

Environmental Clinic have technical advisors on

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staff?

A. Yes, they have engineers on staff.

Q. Why did you decide to send these

additional comments?

A. IEPA had not made its decision, and we

were told we could continue to send in comments.

MS. HESSE: I'm going to continue to

object to the inclusion of these two letters that

were sent outside the public comment period as

being beyond what the Board can consider under

the terms of the Illinois Environmental

Protection Act, Section 40(d).

MR. SOFAT: Th Agency agrees.

HEARING OFFICER WEBB: And I'm going

to overrule that objection for the time being.

MS. HESSE: I'm also going to object

in that she's presenting hearsay testimony as to

what she is claiming people said to her, after

the close of the public comment period on January

18, 2005.

HEARING OFFICER WEBB: Oh, okay. I

have to admit -- I wasn't -- I didn't notice

that, but let's try not to include hearsay

testimony. But you may proceed with your

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questioning.

Q. (By Ms. Mushill) Ms. Andria, let's go

ahead and move on, if we may. If you could look

at the document in front of you that is page

numbered 518 through 528. Do you know what this

is?

A. This is the public notice that was

issued by IEPA dated December 19th, 2004, on the

NPDES.

Q. Did you look over this before you

drafted the group comment letter?

A. Yes, of course I did.

Q. And when you read over this permit,

what information jumped out at you?

A. Number one, that there were only a

couple of days before it was due when I finally

saw it. It was -- it was issued Christmas week

of 2004, and it was very close to the deadline

when I did see -- I did see it. I knew that

Granite City Steel had had violations before and

with regard to their water permit. I knew that

Horseshoe Lake was contaminated. The public

notice says that you may submit comment and/or

requests for public hearing. It says that --

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that if they indicate a significant degree of

public interest, the permitting authority may, at

its discretion, hold a public hearing.

I noticed that there was some

information about landfills, and I knew there

were some problems with the landfills at the

Horseshoe Lake -- I mean, at Granite City Steel.

I looked at the -- what the pollutants were that

contributed to the impairment for being listed on

the 303(d) list of impaired waters. I saw that

the potential contributors did not include

industrial discharge, and this was for a

discharge into Horseshoe Lake. I looked at the

things that were going into the -- the lake from

the process wastewater. I noticed heavy metals

including lead, zinc. I noticed cyanide. I

noticed ammonia. And I know that at a previous

time I had submitted some comment when I -- when

Granite City Steel, many years ago, was seeking a

variance on ammonia. So I know that this been a

problem. And I saw that also included was

Naphthalene, Benzo(a)pyrene, Tetrachloroethylene

and Naphthalene, which I knew to be carcinogenic.

And I -- and I knew I needed help quickly. And

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it says significant degree of public interest.

And since it was a State park, I -- I knew that

there would be interest. And I also thought it

would help to have other organizations sign onto

a letter or send letters to request the public

hearing.

Q. Ms. Andria, if you could look at the

group comment letter again.

A. Yes.

Q. And could you please read me the first

sentence of your second paragraph?

A. Horseshoe Lake is impaired.

Q. And what substances did you say that

Horseshoe Lake is impaired for?

A. PCBs, pH, suspended solids, excessive

algal growth, ammonia (unionized), nutrients,

phosphorus, total ammonia-N.

Q. Where did you get this list from?

A. That was the exact list of pollutants

on the IEPA public notice. I just copied them

straight from the public notice.

Q. So if -- if the list -- if the list

had included other pollutants that caused

contaminants, would you have listed those as

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well?

A. Of course.

Q. Have you subsequently learned that

Horseshoe Lake is impaired for substances that

were not on list?

A. I've learned it's also impaired for

zinc which they -- the permit allows them, I

think, to -- to discharge some 3,000 pounds or so

of zinc, and I would have listed that definitely.

Q. What do you mean when you say that

Horseshoe Lake is impaired?

A. Well, impaired is a technical term and

it's also a term that the layperson uses.

Impaired means it doesn't meet the federal water

quality standards for a given -- a given entity.

Q. Could you now read me the second to

last paragraph on the bottom of this page,

please?

A. You list as potential contributors to

the impairment of the lake: agriculture,

crop-related sources, non-irrigated crop

production, habitat modification, stream bank

modification/destabilization.

Q. Could you read the next sentence,

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please?

A. We believe industrial effluent from

Granite City Steel should be added to the list.

Q. Where did you get this list of sources

from?

A. The sources is directly copied from

the IEPA public notice.

Q. And have you subsequently learned that

industrial effluent has been listed as a

potential contributor?

A. Yes.

Q. Continuing to look at the group

comment letter, did you reference any scientific

studies?

A. I -- I said that Professor Richard

Brugam, and his students at Southern Illinois

University at Edwardsville, have done testing of

the sediment of Horseshoe Lake which is showing

high concentrations of lead and that Canteen

Lake, which is part of the same lake but

privately owned, has tested high in cadmium.

Q. Did IEPA ever contact you to get more

information about Professor Brugam's studies?

A. No.

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Q. Again, looking at the group comment

letter, would you please read the third and

fourth sentences of the second paragraph?

A. We have seen fish caught at Horseshoe

Lake with melanoma and IDNR fish biologists

confirmed fish with melanoma at Horseshoe.

Q. Have you seen melanoma spots on fish

caught at Horseshoe Lake?

A. I have seen fish with shots. I am not

a scientist. I am not a biologist. But they are

consistent with pictures I have seen of fish with

melanoma.

Q. Why are you concerned with fish caught

with melanoma?

A. Well, for several reasons. One, it's

not good for fish. It's bad for the wildlife;

but two, and the greater concern, I'm afraid, is

that people are eating them.

Q. Did IEPA ever contact you to discuss

your concerns with fish or fish melanoma?

A. No.

Q. Do you know when IEPA issued the

permit?

A. When they issued the permit? March 30

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-- well, the first time was March 8th, I think,

2006.

Q. Did IEPA respond to your comments

before March 8th?

A. Not --

Q. Written, I'm sorry. Did IEPA respond

to your comments in writing before that time?

A. No, they did not.

Q. And do you know if the permit has been

subsequently reissued?

A. Yes. They -- they did not -- they did

not issue the response of the summary, which I

think is required when they issued the permit,

and the clinic brought it to their attention on

behalf of ABC. And they withdraw it and they

reissued it and I think that was then reissued on

March 31st.

Q. If you could look at the document in

front of you that is page numbers 649 through

650. Do you know what this document is?

MR. SOFAT: The Agency objects.

MS. HESSE: We second the Agency's

objection.

HEARING OFFICER WEBB: Do I have this?

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MS. MUSHILL: Sorry. You should.

HEARING OFFICER WEBB: I don't have a

copy of that one.

MR. SOFAT: It's March 24th.

MS. MUSHILL: Ms. Webb, this document

goes to show how the Agency responded to the

publics repeated request for a public hearing.

This is again part of the record.

MR. BAKER: What are we looking at

again, please?

MS. MUSHILL: Pages 649 through 650.

MR. BAKER: Thank you.

HEARING OFFICER WEBB: You're

objecting on relevance grounds? What was your

objection?

MR. SOFAT: My objection is the same,

that this was not before the Agency. We have one

issue only in this hearing, and that is whether

or not we incorrectly didn't -- not rule hearing,

and these comments were after the date generated,

January 18, 2005.

MS. MUSHILL: These documents are the

IEPA's only response for the request for the

public hearing, and we would like to discuss how

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the Agency responded.

HEARING OFFICER WEBB: No, I -- this

is part of the record and I think it's relevant.

Go ahead.

Q. (By Ms. Mushill) Ms. Andria, do you

know what this document is?

A. Yes. It's a letter from IEPA to the

five organizations that requested the public

hearing, and it's a response to our comment.

It's dated March 24th, 2006, and addressed to me.

Q. Could you please read the first

heading of the responses?

A. Horseshoe Lake impairment and concern

over discharges of lead and ammonia by Granite

City Works.

Q. In your comment letter, Ms. Andria,

the group comment letter, did you mention any

substances other than lead and ammonia that

contribute to the impairment of Horseshoe Lake?

A. Yes, I did.

Q. And does this letter respond to those

issues that you brought up?

A. No, it does not.

Q. Were you satisfied with that answer

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that was given to you?

A. No.

Q. Could you read the second heading,

please?

A. Compliance history of GCW.

Q. And why don't you just go ahead and

read their response, please.

A. Response. The Agency is aware of the

compliance history of the GCW facility. The

Agency has taken, and will continue to take, all

necessary and appropriate action regarding

compliance issues with this facility.

Q. And does this response satisfy your

concerns that it was addressing the issues you

brought up?

A. Absolutely not.

Q. If there had been a public hearing on

this permit, do you believe that you would have

been able to provide the IEPA with more

information about the issues you raised in your

comment letter?

A. Yes, I believe that we would --

MR. SOFAT: Objection.

HEARING OFFICER WEBB: Overruled. Go

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ahead. You can finish your answer.

A. Yes, I believe we would have been able

to -- to supply more information and also get

more information.

MS. HESSE: I'm going to object to

this line of questioning in that the two issues

that are being discussed are -- do not address

the issue of US Steel-Granite City Works permits.

One goes to the nature of whether Horseshoe Lake

is impaired or not, and the other deals with

compliance issues which is not the same issue as

whether the permit, the draft permit, would cause

a violation of water quality standards.

MS. MUSHILL: Again, the relevance of

all this is to how the IEPA responded to issues

brought up in the group comment letter.

MR. SOFAT: And that is part of the

record. The Board can look at it. Any kind of

question -- and answers to those questions is

going to add to the record that it should not be.

The Board is supposed to look at whether or not

the letters of 17 and 18 constitute a significant

degree of injustice, not what the petitioners or

the respondent find out later on.

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MS. MUSHILL: Well, the Board also

needs to consider what information IEPA had

before it and that they fully considered the

issues raised in the group comment letter. These

letters are going to show that the Agency did not

consider all the issues that were brought up.

MR. SOFAT: Agency just wants to make

a general objection to all this line and any kind

of document that is not before the Agency through

on that issue whether --

HEARING OFFICER WEBB: Would you like

to make a standing objection?

MR. SOFAT: Yes. Regarding the

documents that are filed after January 18, 2005,

or any questioning related to those.

HEARING OFFICER WEBB: So you have a

standing objection to any document filed after

the close of the public hearing?

MR. SOFAT: And any question. Yes,

and any questioning that may be coming from those

documents.

HEARING OFFICER WEBB: Would you like

to make the same objection?

MS. HESSE: Yes, yes. And further to

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expand on that slightly, with respect to any line

of questioning going beyond the issue of whether

there was a public interest in the permit, that I

object to any line of questioning that goes

beyond whether there was an interest in the

comment.

HEARING OFFICER WEBB: Well, I'm going

to give the petitioner some leeway because I

think it's relevant. It may, you know,

ultimately thwart the issue. I can't say that

it's definitely not relevant to the arguments

they're planning to make with respect to the

public hearing. And as to the documents not

being during public comment period, the Board may

consider anything that was part of the

administrative record or anything that was, you

know, done before the final permit was issued.

So I will allow the petitioner some leeway with

this line of questioning. You can go ahead.

Q. (By Ms. Mushill) We're actually going

to move on though. Ms. Andria, if you could look

at the group comment letter again. And could you

just tell me why you believe that US Steel was

frequently non-compliant with its previous

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permit?

A. The information I have came from

USEPA. I put that the ECHO site, it was updated

today, and they're still in -- still having

compliance issues. And I knew that from general

information from the Agency people on -- that

I've heard at meetings.

Q. And I just want to go over the pages

-- the page two here and the information.

A. I'm sorry?

Q. Sorry. I'd just like to go over the

information on page two of the group comment

letter. Could you explain to me what this

information is?

A. This is information that I got from

the ECHO site on -- that's Enforcement Compliance

History Online, USEPA. I also got a scorecard

information at the time, and I copied the

non-compliance and from the site I just put

copied and pasted into our letter. And it's got

the -- the different effluent violations and the

issues under which they violated the permit and

whether they were compliant in quarters.

Q. And could you just describe to me what

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these percentages mean? For example, what does

29% mean after solid total suspended?

A. It's the -- the ECHO site says that

their effluent violations as the highest

percentage by which the permit limit was

proceeded for the quarter, so that under whatever

quarter it was listed --

MS. HESSE: I object to the

characterization of that answer in that I don't

believe Ms. Andria is been properly qualified to

interpret what an ECHO report says, and I also

believe she is, in fact, mischaracterizing what

is actually behind the data that went into this

report.

A. I'm sorry. I was reading from --

directly from the paper that was the ECHO site.

It was not my characterization.

MS. HESSE: I continue to object in

the way that she's reading the information is a

mischaracterization of what the data actually

shows.

HEARING OFFICER WEBB: Well, I -- can

we let this document stand on itself. I really

don't want to -- I'd rather not go through

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testimony on each.

MS. MUSHILL: We'll move on.

Q. (By Ms. Mushill) Ms. Andria, could

you turn back to the first page of the group

comment letter? And could you read the third

sentence, please, from the first paragraph?

A. The third sentence of the first

paragraph?

Q. Correct.

A. The lake is used recreationally by

outdoor enthusiasts, bird watchers, nature

lovers, fishers, hunters and families.

Q. Ms. Andria, again, how do you know

Horseshoe Lake is used by outdoor enthusiasts,

bird watchers, nature lovers, fishers, hunters,

and families?

A. Both from personal observations and

from IDNR, Illinois Department of Natural

Resources, printed information and their Website.

Q. From your observation from being out

at the lake as often as you are, could you give

me estimates of how many people are at the lake

on a given day?

A. It can range from a few dozen, maybe

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three or four, to well over a thousand. I think

there -- last year they got 358,000 people

attending. That's like a thousand a day. So I'm

sure some days there are fewer and some days

less. It depends on the weather.

Q. Could you now, please, read the fourth

sentence of the first paragraph?

A. It is also used by low income and

minority folks for subsistence fishing.

Q. How do you know that low income and

minority individuals use the lake or eat the fish

as part of their daily diet?

A. I have visited with people fishing and

talked with them, and I have worked with students

who have done surveys of people who fish at the

lake, and that's both from personal observation

and from the surveys that the students have

taken.

Q. Have you seen people who look like

they're taking their fish home with them?

A. Oh, yes, they have. And some of them

are out there every day and they have the

stringers or they have little coolers that they

put them in. There are different ways. But

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there are definitely people who fish, and there

are definitely people who are eating that fish.

Q. Why did you mention this in your

comment letter?

A. Because it's a concern, especially

with heavy metals, that can bioaccumulate. In

fish, it's with the melanoma. I've talked to

people who are eating the fish and asked them if

they saw fish with spots and bad places, what

they do. Some people throw them back in. Some

people cut them -- cut the bad parts out. It

depends on whether they have enough -- have

caught enough fish that day and that's a concern.

And people who do subsistence fishing, that's

their main source of protein.

Q. Did the IEPA ever contact you to get

more information on these two issues that you

raised?

A. On the -- on the letter, not with

regard to the permit.

Q. In your opinion, and from your

observations of people using the lake, do you

believe that there's a significant public

interest in Horseshoe Lake?

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A. Absolutely.

Q. Why do you think that?

A. Because it's used by thousands of

people. People are taking their children there.

People go there for recreational purposes. I

think that they would be very interested to know

that the lake is being discharged into and I

think they would -- there would be significant

interests in what's in the lake.

I don't think there's been much

opportunity for them to find out about it, and

there are no signs posting -- posted warning

people about fish consumption.

Q. Could you please read the very first

sentence of your comment letter?

A. Our organizations request that the

Agency hold a public hearing for the above

entitled permit.

Q. And do you reiterate this request

anywhere else in the group comment letter?

A. I think it's at the end. We ask that

you hold a public hearing in order to allow

citizens to ask questions -- questions and

present information and testimony.

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Q. Before the permit was issued, did

anyone at IEPA ever tell you whether a public

hearing would be held?

A. They -- before --

MS. HESSE: Objection, hearsay.

MR. SOFAT: Same objection.

HEARING OFFICER WEBB: Sustained.

Q. (By Ms. Mushill) Ms. Andria, before

the permit was issued, did you believe there

would be a public hearing?

A. Before it was issued, did I believe

there would be a public hearing? Yes, I did. I

really had hoped there would be a public hearing.

I couldn't understand why it would be denied.

Q. And could we look back at IEPA's

response to your comment letter which, again, is

page 649 through 650? If I --

A. Excuse me, again.

Q. Page 649 through 650. And if you

could -- Once you find that document. Sorry.

A. Yes.

Q. If you could look through that

document and could you tell me whether the IEPA

explained in its response why it did not hold a

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public hearing?

MS. HESSE: Objection, hearsay.

MS. MUSHILL: She can look at the

letter.

HEARING OFFICER WEBB: If she reads

from the letter, is that --

A. Why they --

HEARING OFFICER WEBB: She can

summarize, I mean, or you can rephrase the

question so that it avoids the hearsay.

MS. HESSE: The document speaks for

itself. It's already in the record.

Q. (By Ms. Mushill) Ms. Andria, after

the permit was issued, did you ever learn why

there was not a public hearing on this issue?

A. No.

Q. And does this letter give you a

reason?

A. No.

Q. Did the IEPA ever offer to meet with

you before this permit was issued?

A. The first time? No. The second time,

I mean, the reissued, they -- yes, they offered a

meeting.

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Q. What was your understanding of what

this meeting was about?

A. It was issued by the environmental

justice office -- officer and it was a meeting on

subsistence fishing and --

MS. HESSE: Objection, hearsay.

Q. (By Ms. Mushill) Ms. Andria, what was

your understanding of what this meeting was

about?

A. About subsistence fishing and

environmental justice issues.

Q. Did you attend this meeting?

A. No. It was offered in Springfield and

it was -- I talked to the other people involved

in the permit and people who would be interested

in having a meeting, and it was just a week

notice. And we thought that a meeting should be

a public meeting, that people who would be

affected, stakeholders, should be allowed to come

to and it should be a public meeting and it

should be down in Granite City or somewhere near

Horseshoe Lake rather than -- or Frank Holten

because it's -- it was supposed to be on

subsistence fishing. And so it should have been

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down here. And it should have been open to the

public. And it should not have been trying to

supplement -- not supplement, to take the place

of a public hearing. And that's what it seemed

to be trying to do.

Q. Ms. Andria, in your opinion, do you

believe a private meeting with the IEPA should

have replaced the public hearing on this permit?

A. No.

Q. Have you attended any other public

hearings or meetings in regard to Horseshoe Lake

in the last two years?

A. Yes.

Q. And what were these meetings about?

A. I attended a meeting in Springfield on

the 2006 impaired waters report in -- which

Horseshoe Lake was on the impaired list, so it

was included in that. And then I attended a

meeting that was held in Collinsville on the -- a

TMDL that was being developed by IEPA for

Horseshoe Lake.

Q. In your opinion --

A. Total maximum daily load, I'm sorry.

Q. That's all right. In your opinion,

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did these meetings adequately replace a hearing

that could have been healed on this NPDES permit?

A. No, they were -- they were other kinds

of meetings. They weren't on a permit at all.

The one was the annual -- I mean, the bi-annual

report -- report of the impaired waters list, and

it dealt with all waters in the state, and that

certainly would not replace it, plus it was in

Springfield during the day. And then the other

one was a very narrow focus on the watershed, the

entire watershed in the Horseshoe Lake -- I mean,

excuse me, in Cahokia Canal and the -- it also

included the other watershed with -- that

included Frank Holten State Park. And they were

not specific to Horseshoe Lake.

Q. Ms. Andria, in your opinion, do you

think that members of the public would have

attended a public hearing that concerned the

permit?

A. Yes, I do. If they -- if they there

was a public --

MS. HESSE: Objection, speculation.

HEARING OFFICER WEBB: Well, she is

the head of the American Bottoms Conservancy.

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I'll allow her to give her opinion as to the

degree that there might have been public interest

in this.

A. Yes.

MS. HESSE: Could you explain the

basis of her opinion?

HEARING OFFICER WEBB: Okay. Yeah,

why don't you do that.

A. In our -- in part -- as part of our

work, when there's a public hearing that we think

is of importance to the public, or that the

public might have an interest in, we try to help

publicize it. We send out press releases. We

contact appropriate community groups and people

who would be -- who might be impacted by some

things. And we would certainly have helped

publicize this meeting that it was available for

people to come and --

MS. HESSE: I continue my objection.

A. -- always some people learn about it

and come to meetings.

MS. HESSE: I'm going to make an

objection on the basis of speculation.

MS. MUSHILL: May I ask a question

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please?

HEARING OFFICER WEBB: (Nods head.)

Q. (By Ms. Mushill) Ms. Andria, are you

speaking --

A. I'm sorry.

Q. Ms. Andria, have you spoken to people

who go to the lake?

A. Yes.

Q. And have you spoken to them about

issues that concern the lake?

A. Yes.

Q. And have they expressed concern about

the lake?

A. Yes.

Q. And this is part of the basis of your

opinion?

MS. HESSE: Objection, hearsay.

MS. MUSHILL: She's saying what forms

the basis of her opinion.

HEARING OFFICER WEBB: Yeah. No, I'll

just allow her answer to stand.

Q. (By Ms. Mushill) Ms. Andria, again,

do you believe that people who use the lake would

have attended a public hearing?

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A. I don't think that --

MS. HESSE: Objection, hearsay.

A. I started to say I don't think I have

finished my answer yet.

HEARING OFFICER WEBB: I think it's

more speculation than hearsay. But in her

professional opinion, I'll allow you to give your

opinion on that.

MR. BAKER: Ms. Hearing Officer, I

believe this line of testimony is being offered

to prove the truth of what she claims people told

her about their use. That's clearly hearsay.

It's inadmissible.

MS. MUSHILL: That's not where we're

going. Ms. Andria is saying what she believes

what happened and that is based on her own

observation.

HEARING OFFICER WEBB: I thought she

had asked --

MR. BAKER: We disagree.

HEARING OFFICER WEBB: -- in her

opinion did she think people would have.

MR. BAKER: We disagree. The issue

before this was whether or not there, in fact,

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was significant degree of public interest, not

whether or not Ms. Andria thought there might be

a significant degree of public interest. We have

to get to the truth of this, not speculation.

HEARING OFFICER WEBB: I'm going to

allow her to give her opinion and you may address

that issue on your cross-examination.

A. Could you ask your question again,

please?

Q. (By Ms. Mushill) Ms. Andria, in your

opinion, do you believe that members of the

public who use Horseshoe Lake would have attended

a public hearing on this permit?

A. I believe that some members of the

public who use Horseshoe Lake would have attended

a hearing had they known about a public hearing,

yes.

Q. And lastly, Ms. Andria, do you believe

that a public hearing should have been held on

the NPDES permit at issue here?

A. Do I believe a public hearing should

have been held? Absolutely.

MS. MUSHILL: That's all we have for

Ms. Andria. Thank you.

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HEARING OFFICER WEBB: Do you object

to taking about a five-minute recess?

MS. HESSE: No.

(A short break was taken.)

HEARING OFFICER WEBB: Okay. Does the

Agency have any cross-examination for this

witness?

MR. SOFAT: No.

HEARING OFFICER WEBB: Okay. Ms.

Hesse?

CROSS-EXAMINATION

BY MS. HESSE:

Q. Ms. Andria, where do you live?

A. I live in Illinois.

Q. Can you be more specific?

A. I have chosen not to give my address,

my home address for various safety issues.

Q. Ms. Andria, if you're not willing to

give your address, how can the Board know if

where you live is situated within the proximity

to Horseshoe Lake or not?

MR. HEISEL: Ms. Webb, can we maybe

talk about this off the record?

HEARING OFFICER WEBB: This is a first

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for me so, yes, let's discuss it off the record.

(A discussion was held off the

record.)

HEARING OFFICER WEBB: We've just had

an off-the-record discussion, which I've not had

before as a hearing officer with the Board, but

we have a witness who has some concerns regarding

disclosing any specific information pertaining to

her residential area. And I'm not going to

require that she disclose any specific

information regarding her location. And I'll --

we did discuss some perimeters that the

respondents could address with respect to that

issue, but I won't require her to disclose

specifically where she lives.

MS. HESSE: Also, for the record we

want to comment that Ms. Andria has mentioned she

has safety issues. We have no idea what kind of

safety issues she's talking about. It's not an

area that we've explored with her. We really

have no understanding of what these safety issues

are, so we continue to object in her refusal to

answer the question.

HEARING OFFICER WEBB: Okay. Duly

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noted.

MS. HESSE: Did she answer on the

record?

HEARING OFFICER WEBB: No.

Q. (By Ms. Hesse) Will you give us the

name of the area where you live, Ms. Andria?

A. Yes. I live in the Metro East.

Q. And can you be more specific than

that?

A. The Illinois side of the Mississippi

River. The Mississippi River-Illinois side. The

Metro East.

Q. Ms. Andria, earlier you testified that

you prepared a letter dated January 18, 2005?

A. Correct.

Q. Now in that letter you allege that

individuals boated in Horseshoe Lake?

A. I'm sorry?

Q. In that letter you allege individuals

boat in Horseshoe Lake; is that correct?

A. Correct.

Q. But you did not identify any

particular individuals who boat there, did you?

A. No, I did not.

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Q. You mentioned you saw people who

fished in Horseshoe Lake; correct?

A. Correct.

Q. But you did not identify by name any

individuals who fished there, did you?

A. I did not.

Q. Your -- in your letter you mentioned

that people -- let me find the letter -- you also

allege that the lake was used by "low income and

minority folks for subsistence fishing?"

A. Correct.

Q. But you did not identify any of these

individuals who eat fish from Horseshoe Lake, did

you?

A. That's correct.

Q. So you really don't know if they use

it for subsistence fishing, do you?

A. No, I do know that they do. Because I

didn't put their names in doesn't mean they don't

exist.

Q. But you did not -- you have not

witnessed any people eating fish from Horseshoe

Lake, have you?

A. Yes, I have.

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Q. In your letters of October 2005 and

December 2005, you did not identify --

A. Excuse me. Would you tell me which

letters you're referring to? I didn't hear the

date.

Q. In the letters dated October 3, 2005,

by Washington University in St. Louis that was

sent on behalf of ABC --

A. Yes.

Q. -- that letter did not identify any

individuals who used Horseshoe Lake, did it?

A. I don't believe so.

Q. And the letter of December 9, 2005, by

Washington University sent on behalf of ABC to

Illinois EPA, that letter likewise did not

identify any individuals that used Horseshoe

Lake, did it?

A. I don't believe so.

Q. Going back to your January 18, 2005,

letter, did you review the permit before you sent

this letter?

A. I'm sorry?

Q. Did you review the draft permit before

you sent this letter to Illinois EPA?

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A. I reviewed the notice, the public

notice and the fact sheet, the attachment. I

don't remember what all it was called. I

reviewed what was on the Website, that I could

download off the Website, I believe.

Q. Do you know if the concentration limit

set in the draft permit for lead percent is equal

to the water quality standards?

A. Do I know that now? Do I know --

Would you rephrase your question?

Q. The draft permit contains

concentration based limits for lead?

A. Okay. And that's on page two, is that

what you're talking about?

Q. It's on the second page. It's 519 of

the record.

A. Okay.

Q. Do you know if those concentration --

concentration based limits are based on water

quality standards for Horseshoe Lake?

A. I do not know that. I see there's a

reference to it, but I have not personally

checked that.

Q. You see that there's a 30-day average

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concentration based limit for zinc?

A. In that same place where the lead was?

Q. Yes.

A. I see numbers. I'm not an engineer.

I'm not a technical expert. And that's why I

needed -- I needed help with this. I see that

there's something listed under 30-day average,

and I see there's something listed under daily

maximum average.

Q. Did you get help reviewing the draft

permit before you sent the January 18, 2005,

letter?

A. There wasn't time.

Q. Do you know if the zinc concentration

based limit of the permit is equal to the water

quality standard for zinc in Horseshoe Lake?

A. My understanding is that there's a

special zinc central treatment exemption, which

only this one company has in the whole country,

and it was only supposed to have been for one

year and they've been using it for 20 some odd

years. So I don't think it's -- it's based on

federal standards. I think there's some sort of

special treatment that they're getting and

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because there's -- it's impaired for zinc, I

think it's wrong.

Q. But isn't it true that that is

something that if there is a central treatment

exemption, that is issued by USEPA?

A. Would you rephrase your question? Is

it true that that was issued by EPA?

Q. With EPA and it was subject to public

notice and comment on the federal hearing -- I'm

sorry, during the federal comment period on that?

A. I think my understanding is that --

that USEPA didn't know that anyone was still

using it, but it doesn't -- and maybe USEPA

doesn't know that the body is impaired for zinc,

Horseshoe Lake is impaired for zinc.

Q. Are you speculating on USEPA, you

believe USEPA thinks rather than your knowledge

what USEPA may have considered?

A. I'm trying to answer your questions

with my limited engineering expertise and what I

know of -- of what the lake is impaired for and

what the perimeters are, and I know that heavy

metals is a problem. So if I'm not answering

precisely, I apologize, but I'm trying to answer

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with what I know about zinc and Horseshoe Lake

and what is allowed by the permit. But that is

one of the things we think is wrong of the

permit.

Q. In your January 18 comment letter, did

you identify in the January 18 comment letter any

water quality standards that would be violated by

issuing the permit?

A. I identified what it was impaired for

as listed by USEPA on their fact sheet. I did

not go to the law and cite anything. I --

Q. Could you just, please, answer the

question.

A. Okay. Would you ask the question

again?

Q. Because it seems like it's a pretty

simple question that you can answer yes or no.

In your January 18, 2005, letter, did you

identify any water quality standards that would

be violated by issuing the permit as it was

drafted?

A. I say that there -- that --

MR. HEISEL: I'm going to object

actually. She's calling for a sort of a legal

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opinion about what a water quality standard is.

She hasn't identified or established that Ms.

Andria has expertise relating to these issue.

MS. HESSE: Excuse me, but Ms. Andria

is presenting quite a bit of testimony related to

her opinion and her ability to comment on a draft

permit that was issued.

MR. HEISEL: And I believe --

MS. HESSE: And accordingly, I do

believe that she knows what a water quality

standard is and should be able to identify

whether she identified any in her letter.

HEARING OFFICER WEBB: I'll allow the

questioning. You can answer.

A. Could you repeat your question,

please?

MS. HESSE: Could you read it back,

please?

(The Reporter read from the record as

follows: In your January 18 comment

letter, did you identify in the

January 18 comment letter any water

quality standards that would be

violated by issuing the permit?)

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A. I did not refer to numbers. I

referred to -- to constituents, like ammonia.

Q. (By Ms. Hesse) Ms. Andria, just

please answer the question. Did you identify any

water quality standards that would be violated if

the permit were issued?

A. I don't know the answer to your

question because I don't know -- I don't

understand. Are you asking me about numbers, is

that the question?

Q. It could be about numbers.

A. I did not identify numbers other than

in my comment letter other than what it was

impaired for and what it was being added to. I

did not identify any numbers as exceedances other

than the violations that were listed on the ECHO

site.

Q. So the answer to my question then is

no, in your letter you did not identify any water

quality standards that would be violated if the

permit were issued; correct?

A. If that's what my answer said, then

that's what it is. I don't know that I said this

is the water quality standard. This was my very

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first NPDES permit that I had looked at. I, at

the time, did not know all of the numbers, how to

do it. I since tried to educate myself. And I'm

answering as best as I could with my knowledge at

the time of what I had and what I could do with

it. And that's why we needed a public hearing to

be able to -- to -- to address these issues.

Q. As you sit here today, Ms. Andria, can

you identify any water quality standards as of

today that would be violated by this permit

having been issued?

A. I think -- I think, yes. I think that

there are the water quality standards that we put

in our comments that the engineering people at

Washington U. They are much more knowledgeable

than I and I think those are the things that

would violate water quality standards. And

you're talking about a lake that's already

impaired.

MS. HESSE: I'm going to object to

this answer because it calls for speculation in

documents that are not before the Board.

MR. HEISEL: She asked for her current

opinion, and that's what she got.

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HEARING OFFICER WEBB: Well, I'll

sustain the objection. It wasn't entirely

responsive.

MS. HESSE: I'm sorry?

HEARING OFFICER WEBB: Sustained.

MS. HESSE: Can we back up a second?

HEARING OFFICER WEBB: Sorry.

MS. HESSE: You sustained his

objection or mine?

HEARING OFFICER WEBB: Yours.

MS. HESSE: Okay.

A. She objected to her question, her own

question or to my answer?

HEARING OFFICER WEBB: To your answer.

A. Okay.

Q. (By Ms. Hesse) Ms. Andria, I believe

you testified that you wanted a public hearing so

that you could ask questions about the permit,

about the draft permit; correct?

A. Among other things, yes.

Q. Okay. I'm going to ask you to look at

the first page, page 518 of the record, first

page, the cover sheet for the permit and the

third full paragraph.

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A. I'm sorry?

Q. And the third full paragraph.

A. Full paragraph.

Q. Full paragraph on that page. If you

could read those last two sentences.

A. Public notice will be given 45 days

before a public hearing. Responses to comments

will be provided when the final permit is issued.

For further information, call -- please call Beth

M. Burkard at the phone number. Is that what you

wanted me to read?

Q. Yes.

A. Okay.

Q. So in the notice, Illinois EPA did

give you a name and a phone number for someone

you could contact if you had questions regarding

the permit; correct?

A. That's correct.

Q. Ms. Andria, in your January 18, 2005,

letter, you provided extensive comments on

Horseshoe Lake being impaired; correct?

A. Extensive comments?

Q. Well, you provided comments. I'll

rephrase my question.

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A. I provided comment on Horseshoe Lake

being impaired, yes.

Q. You also mentioned that you knew of

some studies by Professor Brugam; correct?

A. Professor Brugam, yes.

Q. Have you read those studies at any

time?

A. I skimmed them. I don't know that I

read them completely through.

Q. Isn't it true that Professor Brugam

concludes that the major source of Horseshoe --

of lead in Horseshoe Lake is from an NL

Industries also called Taracorp?

MR. HEISEL: I'm going to object to

this. It's calling for information outside the

record. If they want to put in information

outside the record, we can do that and we can all

put in information. But Ms. Hesse is trying to

get information about the Brugam studies which

are not in the record and only do that piecemeal

through this witness.

HEARING OFFICER WEBB: Do you have a

response to that?

MS. HESSE: Yes. In -- in Ms.

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Andria's letter, she references Brugam studies.

She references that the studies have shown high

concentrations of lead. She's trying to imply

that's related to US Steel. Professor Brugam's

studies clearly attribute the high concentration

to NL Industries such as the lead smelters and it

has been located --

MR. HEISEL: Yeah, I'm going object to

this. Counsel is testifying about what these

studies contain.

HEARING OFFICER WEBB: I'm looking at

the letter quickly here.

MR. HEISEL: And I would ask that be

struck from the record.

HEARING OFFICER WEBB: Well, I'm going

to allow it in, that she does reference this

material in her letter that refers to the request

for hearing. So I think it -- it's relevant to

the background of what -- what you may have been

considering at that time. So go ahead.

Q. (By Ms. Hesse) Ms. Andria, isn't it

true that Professor Brugam concluded that the

major source of lead into Horseshoe Lake were the

lead smelters located in the area of Horseshoe

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Lake?

A. I don't know that Professor Brugam --

and I don't believe he concluded that entirely.

I think that there was still open. I think he

was still studying it. And I know that one of

the spots that he -- he said that it was

declining in other areas, but the area that was

closest to the Granite City Steel discharge is

not getting less than it was as the other sites

were, so National Lead has been closed for a long

time and not contributing. I don't know why that

spot would then not lessen. So I think that the

study is not definitive. I don't think that

there's -- I think -- That's it.

Q. But you cited for a specific purpose

in your letter about lead in Horseshoe Lake. And

isn't it true that NL Industries, also called

Taracorp, is a Superfund site in Granite City?

A. Are you asking me if National Lead is

-- Taracorp was a Superfund site, yes.

Q. And wasn't it because it was a

Superfund site because of lead contamination?

MR. HEISEL: Objection. Can I just

have a running objection to all of these

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questions?

HEARING OFFICER WEBB: Yes. You want

me to issue a standing objection at this time?

MR. HEISEL: Yeah, it's outside the

record. She's trying to introduce bits and

pieces of these studies, which are not in the

record, through this witness and, therefore,

potentially mischaracterizing these studies which

are not before the Board.

HEARING OFFICER WEBB: Okay. Well,

I'm going to allow it because the letter may

give, one, the implication that this study

pertained to this permit in question. So I think

it -- she's somewhat opened the door to this line

of questioning by referencing the study. So I'll

let you finish your line.

Q. (By Ms. Hesse) Do you believe, Ms.

Andria, when I deposed you and I had you read a

conclusion of one of Professor Brugam's studies?

A. I recall when you deposed me and that

you had me read some things. I don't know that

it was the conclusion.

MR. HEISEL: I would ask that I be

provided a copy of anything Ms. Hesse is

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providing with regard to the deposition. These

were taken two weeks ago. I might point out,

just for the record, I don't believe Ms. Andria

had a chance to read hers yet. I don't know

there's anything wrong in it, but I would just

like to ask that be reflected in the record.

HEARING OFFICER WEBB: Okay.

Q. (By Ms. Hesse) Okay. Ms. Andria --

If I may approach her?

HEARING OFFICER WEBB: Please.

Q. (By Ms. Hesse) I'm afraid we only

have one copy. We have to share. Do you

remember I had you read from one of Professor

Brugam's papers, from a couple of his papers

during your deposition?

A. Yes.

Q. And did I not ask you to read an

excerpt from one of the pages in his papers and

ask you to read in the answer -- the question,

which if you wish to read more to be comfortable

with it, I was having you read from one of his

papers.

A. There is a sentence that you asked me

to -- to read that I read. But without the

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document and not being familiar with the studies,

I have no idea what I'm supposed to be saying

that I'm reading, or that I read at the time.

And since I didn't have familiarity enough with

the documents and I'm not an engineer, it's

unfair for you to imply that I was saying

something that was expert testimony.

Q. All I asked you to do was read two

sentences from this paper. That's all I'm asking

you to do now, is to read those two sentences

again.

MR. HEISEL: Yeah, I just continue to

object to this. You know, they're taking bits

and pieces now from a deposition transcript of

these studies. There are actually three studies,

voluminous studies. They have numerous

conclusions. And trying to introduce, you know,

bits and pieces that they may feel help them with

the witness. She hasn't tried to use this to

impeach this witness or she hasn't stated that's

what she's doing with this transcript. So I

don't -- it's just very prejudicial to us to

introduce bits and pieces without the entire

study.

KEEFE REPORTING COMPANY

MS. HESSE: I'm trying to refresh her

memory by showing her her previous deposition

testimony which was taken under sworn oath.

HEARING OFFICER WEBB: I don't have a

problem with that, and I do want to give you some

leeway. I have to say at this point I'm not sure

where this is all going. I just don't want to

get too far off track. If you promise me we're

not going to get too far off track, I'll let you

continue.

MS. HESSE: I'm not planning to get

too far off track.

HEARING OFFICER WEBB: Okay, okay.

A. Okay. What I'm reading is from the

deposition page 11, you've got circled or

indicated that I am to read the question from you

is, yes, could you read the first two sentences,

please. And my answer, I assume this is mine, it

is clear that most of the lead in the sediment

from 1900 to the present represents anthropogenic

input. We believe that the major source of this

lead was the National Lead Industry smelter in

Granite City. And I can say this -- the end of

that, that I am saying, all that is is you asked

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me to read one little part of a big study.

Q. (By Ms. Hesse) But yet in your

comment letter, you're relying on Professor

Brugam's studies to make one of your points, so

it's only fair that we have you look at the whole

issue and not to present misleading information

in your comment letter.

MR. HEISEL: Yeah, I'm going to object

to that characterization. Her comment letter did

not say that. It points out that Professor

Brugam has done these studies and that IEPA

should probably look into it.

HEARING OFFICER WEBB: Well, I'd like

to -- we'll try to save all characterizations for

our closing briefs or closing arguments or

post-hearing briefs, but -- but does that

conclude your questioning on that line or --

MS. HESSE: On this line. Not all --

all my questions.

HEARING OFFICER WEBB: Pardon me?

MS. HESSE: Not all my questions. But

this line of questioning.

HEARING OFFICER WEBB: Okay.

Q. (By Ms. Hesse) Going back to your

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January 18 letter, you mentioned that Horseshoe

Lake is impaired?

A. Yes.

Q. You also testified earlier that you

participated in the 303(d) public hearing and

comment period for impaired waters; correct?

A. That's correct.

Q. So you had that forum to deal with the

issues of Horseshoe Lake impairment; correct?

A. No. No, that was -- that was the

whole -- I mean, are you talking about just

impairments or all of these issues? It was a big

hearing on all the waters.

Q. But it included Horseshoe Lake, did it

not?

A. Yes, it did.

Q. But you had an opportunity in that

forum to comment and give information to the

Agency on impairment of Horseshoe Lake; correct?

MR. HEISEL: I'm going to object

again. Just to be consistent, I mean, we've

heard lots of objections about the relevant time

frames, and once again, they're seeking to get

information that's later in time. We might be

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okay with putting lots of stuff in the record

about what happened later but it doesn't appear

we're going to do that and here we have more

testimony about things that happened later.

HEARING OFFICER WEBB: What was the

date of the hearing you're talking about?

MS. HESSE: The public meeting on the

impaired waters was on June 29, 2006.

MR. HEISEL: After the permit was

issued.

HEARING OFFICER WEBB: Could you ask

your question again.

MS. HESSE: Sure.

Q. (By Ms. Hesse) Ms. Andria, in your

January 18, 2005, comment letter you make comment

on Horseshoe Lake being impaired; correct?

A. Correct.

Q. There was another forum presented for

you to provide comments on impairment of

Horseshoe Lake; correct? That being the public

meeting in 2006?

A. There was an opportunity to present

comment on Horseshoe Lake impairment at that

meeting, is that your question?

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Q. Yes.

A. Yes.

Q. And you did participate and provide

comments; correct?

A. Yes.

Q. So you did have a forum provided to

you to discuss impairment of Horseshoe Lake;

correct?

HEARING OFFICER WEBB: This is after

the permit was issued; is that correct? Am I

understanding that correctly? Yeah, I don't

think that's relevant to this proceeding, the

comments that she made on Horseshoe Lake after

the permit was issued. Sorry, it took me a while

to get those time frames together.

MS. HESSE: Ms. Hearing Officer, I

understand your concerns about relevant time

frame, but it's relevant to the extent that it

shows that there was a forum and a proper forum

for discussing impairment of Horseshoe Lake, if

that was Ms. Andria's concern. That the proper

forum for discussing the impairment of Horseshoe

Lake is not in the context of US Steel's permit.

It's something that is separate from the context

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of whether the permit should have been issued or

not. There is a number of potential causes and a

number of potential sources for impairment into

Horseshoe Lake. They were identified. And our

position is that, including that within the

context of US Steel's draft permit, was not

relevant to the draft permit and whether the

draft permit would violate water quality

standards.

HEARING OFFICER WEBB: Well, I'm still

going to sustain their objection on that because

I think that I'm just not sure it's relevant with

respect to this request for public hearing

because the meeting occurred after the -- after

the hearing -- after the permit was issued.

MS. HESSE: Well, the reason we're

here today is to -- to determine whether a public

hearing should have been held on the permit. And

one of my questions is: If ABC prevails today?

What is the remedy? What is the remedy they

would seek? If the remedy they would seek would

be a hearing, a public hearing on the permit that

has already been issued, then the issues she's

raised with respect to the impairment, she's

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already had a forum on and it was last June.

MR. HEISEL: Yeah. And I'll continue

my previous objection and say that if they want

to make some legal argument about the relevance

of the use of the permit, they are free to do

that in a brief.

HEARING OFFICER WEBB: I will allow

you to make an offer of proof. How's that?

MS. HESSE: Can we go off the record a

second?

HEARING OFFICER WEBB: Sure.

(A discussion was held off the

record.)

HEARING OFFICER WEBB: Let's go back

on the record.

Q. (By Ms. Hesse) Ms. Andria, at the

public meeting last June you had the opportunity

to raise all your issues and concerns with

respect to -- or raise issues and concerns --

rephrase the question -- with respect to the

impairment of Horseshoe Lake?

MR. HEISEL: I'll object again on the

grounds of relevance and outside the record.

HEARING OFFICER WEBB: Well, I'll see

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where you're going.

Q. (By Ms. Hesse) You may answer the

question. This is part of the offer of proof.

HEARING OFFICER WEBB: Okay. If this

is part of the offer -- if this is an offer of

proof, then go ahead. You can answer the

question.

A. Did we have an opportunity to raise

all our issues, no. Did we raise some of our

issues, yes, to a very limited extent. But it

was a big hearing, I mean, it was covering a lot

of issues. It was not specific to Horseshoe

Lake.

Q. (By Ms. Hesse) Isn't it true that

written comments were submitted on behalf of ABC

with respect to Horseshoe Lake?

A. That's correct.

Q. Isn't it true that those comments were

submitted at your request or on behalf of ABC?

A. They were submitted on behalf of ABC

and they were very narrowly limited.

Q. Was the limitation on your ability to

comment placed upon you by the Agency?

A. No. I don't know -- understand

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exactly what you mean.

Q. You're saying -- you said that there

was a limitation placed on your ability to

comment.

A. No, I didn't say there was a

limitation on our ability. I'm saying that the

scope of our comment was narrow. It did not

address all of the things that might have been --

had been commented on had it been about Horseshoe

Lake and been specific to Horseshoe Lake, and it

hadn't been addressed with regard to our finding

out and asking questions on the specific permit

that we're here for.

Q. When you were giving the comments on

Horseshoe Lake -- I mean, the hearing did cover

Horseshoe Lake, right, the 2006? Horseshoe Lake

was --

A. Was among the -- the impaired waters,

yes.

MR. HEISEL: I'm going to object. I'm

not sure they're talking about the same hearing

or meeting here to be honest. We had one --

HEARING OFFICER WEBB: Okay. Can we

clarify?

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MS. HESSE: Yes.

Q. (By Ms. Hesse) On January 29, 2006 --

MR. BAKER: June.

Q. (By Ms. Hesse) I'm sorry, June. June

29, 2006, did you attend a public meeting in

Collinsville to discuss the Cahokia

Canal-Horseshoe Lake watershed?

A. You're talking about a totally

different meeting? I've been answering --

Q. Did you --

A. Excuse me --

Q. Did you attend that meeting?

A. I've been answering questions assuming

you were asking about the impaired waters hearing

in Springfield so --

Q. And I understand that, those are two

separate ones. Did you attend the June 29, 2006,

meeting?

A. Yes. I don't know the specific date

that I attended the meeting that was held at IDOT

in Collinsville on the TMDL.

Q. Did you also attend a public hearing

on impaired waters?

A. Yes, I did.

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Q. And when was that?

MR. HEISEL: Is this still the offer

of proof?

HEARING OFFICER WEBB: Yes.

Q. (By Ms. Hesse) And where was that

located?

A. The TM --

Q. The TMDL hearing?

A. The TMDL was not a hearing. No -- no

record was taken, that I know of, because we

tried to -- to look at it. And that was held in

IDOT in Collinsville. The impaired waters has a

transcript, and that was held in Springfield and

that was on all the waters. The other one was

just on watersheds in this area, not specific to

Horseshoe Lake.

Q. Okay. At the meeting in Springfield,

when there was a transcript, you attended;

correct?

A. Yes.

Q. You asked questions; correct?

A. Yes.

Q. You had an opportunity to ask

questions regarding the impairment of Horseshoe

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Lake; correct?

A. Did I ask --

Q. No, did you have --

A. Did I have an opportunity --

Q. Did you have opportunity to ask

questions?

A. To ask questions about Horseshoe Lake,

yes.

Q. So there was a forum provided for you

in terms of both the meeting in Collinsville as

well as the public hearing in Springfield to

discuss your concerns with respect to the

impairment of the Horseshoe Lake; correct?

A. There was an opportunity, but it was

-- they weren't -- it wasn't all about Horseshoe

Lake so you had to --

Q. I don't care if it wasn't all about

Horseshoe Lake. Did you have the opportunity to

discuss Horseshoe Lake?

A. Yes. And I -- there was also a

problem with regard to getting answers and having

people talk because we had -- we were apparently

in an adversarial position having requested the

public hearing. There were -- it was not a

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Horseshoe Lake meeting in Springfield. And it

could not, did not, would not ever could not take

the place of a public hearing on this specific

Horseshoe Lake and the people's right to know

about Horseshoe Lake and comment on the permit.

Q. Ms. Andria, I'm confused by your

answer because you just said that you attended a

meeting in Collinsville, you attended a hearing

in Springfield. You had an opportunity to

provide comment on the impairment of Horseshoe

Lake. So there is a forum and was a forum

available for you to deal with the impairment

issues raised in your January 18, 2005, letter;

correct?

A. I do not feel that that was the

appropriate place and I -- there was an

opportunity to talk about certain issues, but

this was not a substitute. It couldn't be used

as a substitute. And I really don't think that

the way you're characterizing it is fair.

MR. HEISEL: How long are we going to

go on with this?

HEARING OFFICER WEBB: How much more

do you have?

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Q. (By Ms. Hesse) Ms. Andria, you

mentioned a few minutes ago that you felt like

there were some kind of limitations on your

ability to submit comments?

HEARING OFFICER WEBB: Is -- is this

still part of your offer?

MS. HESSE: This is still part of the

offer of proof.

Q. (By Ms. Hesse) -- to submit comment

with respect to the 2006 meeting and 2006 hearing

on the impairment of Horseshoe Lake; is that

correct?

A. I don't think I said that -- that

exactly. I said that that there were certain --

I didn't feel that we could -- we could have an

honest and open discussion about the permit, and

I didn't feel that we could address all of the

issues that were of concern to us at that time.

Q. But you did have an opportunity to

discuss the issues for which Horseshoe Lake was

listed as impaired, for example, reading from

your letter PCB, pH, suspended solids, excessive

algal growth, etc.; correct?

A. I did have -- I'm sorry. I -- your

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question is: Did I have an opportunity to talk

about those issues?

Q. Yes.

A. Yes.

Q. Was there any limitations placed upon

you in terms of written comments that you could

have submitted with respect to the hearing or the

meeting on the impairment of Horseshoe Lake?

A. I don't know that there were. I

assume that we had to go by what was the forum,

which was the impaired waters list, what was

listed and what needed to be changed. And I

thought that was what -- what we were talking

about, not -- I mean, I thought that was a very

limited scope of what we -- what the public

comment period was about, I mean, what the public

comment on that was.

MS. HESSE: That's all we needed to do

on the offer of proof.

HEARING OFFICER WEBB: That concludes

the offer of proof. Do you have further

questions?

MS. HESSE: Hopefully just a few.

HEARING OFFICER WEBB: Okay.

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Q. (By Ms. Hesse) In your January 18,

2005, letter there's four names listed in

addition to your name?

A. Yes.

Q. Which of those individuals, if any of

them, assisted you in drafting the letter?

A. I talked to Kathleen Logan-Smith,

Kathleen O'Keefe, Jack Norman and Yvonne Homeyer.

I believe that all of them, except Ms. Homeyer,

made comments on what we should talk about in the

comment letter in asking for a public hearing.

Q. Of those individuals, are any of them

members of ABC?

A. All but Mrs. Homeyer is a member of

ABC.

Q. Of the organizations listed there,

health & Environmental Justice-St. Louis did not

join ABC in appealing the permit, did they?

A. No.

Q. Neighborhood Law Office did not join

ABC in appealing the permit?

A. No.

Q. The Sierra Club did not join ABC in

appealing the permit, did it?

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A. No.

Q. Webster Groves Nature Society did not

join ABC in appealing the permit?

A. No.

Q. Ms. Andria Smith --

A. I'm sorry.

Q. Ms. Andria, Illinois EPA offered to

meet with you; correct?

A. Yes.

Q. But you declined to meet with them;

correct?

A. We declined to -- to meet with them at

-- at that time for the purposes of this permit.

MS. HESSE: Okay. No further

questions.

HEARING OFFICER WEBB: Redirect?

MR. HEISEL: Can we have just two

minutes?

HEARING OFFICER WEBB: Sure. Go off

the record for two minutes.

(A discussion was held off the

record.)

HEARING OFFICER WEBB: All right.

We'll go back on the record. Petitioner may

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redirect the witness.

REDIRECT EXAMINATION

BY MR. HEISEL:

Q. Ms. Andria, Ms. Hesse referred to the

Richard Brugam studies in her examination of you

just a moment ago. Are you generally familiar

with those studies?

A. I'm somewhat familiar.

Q. Do you know if the Brugam studies

ruled out any sources of the contaminants in the

sediment in Horseshoe Lake?

A. Ruled out? No, I don't believe they

did.

Q. Did the Brugam studies identify other

pollutants --

A. I'm sorry. You have to speak louder.

Q. Did the Brugam studies identify other

pollutants beyond lead in the sediment of

Horseshoe Lake?

A. I think they refer to several other

metals, including zinc.

Q. Do you know if the Brugam studies

identified the source of these other pollutants

in the sediment at Horseshoe Lake?

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A. I know that he had -- I -- I don't.

My brain is getting very foggy right now.

MR. HEISEL: Okay. That's all I have.

HEARING OFFICER WEBB: Recross?

RECROSS-EXAMINATION

BY MS. HESSE:

Q. Ms. Andria, isn't it true that the

Brugam studies focused on the sediments in

Horseshoe Lake and not on the quality of water?

A. That's my understanding, yes.

MS. HESSE: Thank you. We would like

to reserve the right to call Ms. Andria for

further questions after the other witnesses have

testified in this hearing.

HEARING OFFICER WEBB: Okay. There's

no further questions?

MR. HEISEL: No.

HEARING OFFICER WEBB: Thank you. Ms.

Andria, you may step down. We may need you later

at the hearing.

MR. HEISEL: There's two members of

the public who have very brief comments.

HEARING OFFICER WEBB: Do you need to

take a break?

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MS. HESSE: We would like a

five-minute break.

HEARING OFFICER WEBB: We'll take a

five-minute break.

(A short break was taken.)

HEARING OFFICER WEBB: We'll go back

on the record. We are taking some public comment

between witnesses because I understand we have a

couple of people here who would like to give

public comment and will not be able to attend

tomorrow. So all parties agree this acceptable.

We have a gentleman here, Mr. Robert Johnson, and

he would like to give sworn testimony. So the

court reporter will swear you in.

(The witness was sworn in by the

court reporter.)

MR. JOHNSON: My name is Robert

Johnson. I'm a senior environmental consultant.

I have my own business, Johnson Consulting. One

of my clients is Canteen Lake Duck Club

Incorporated. They were the entity that bought

Canteen Lake about three years ago. I haven't

spoken to them since that time. However, just

recently Kathy Andria sent me some information

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regarding this hearing. And I indicated to her,

that based on the information I had, that I

thought that the Duck Club would be very

interested in participating in a public hearing,

but that since I wasn't aware of it, I doubt they

would.

The Duck Club is actually -- has their

offices outside of Staunton, Illinois. So what I

would do, now that I have this information, I

would give him a call and see if he was

interested. And I think he would be, in that the

Canteen Lake is adjoining to Horseshoe Lake, and

they're very interested as to what's going into

the Horseshoe Lake. So I think a special offer

needs to be made that a hearing be made open to

the public, especially people who have property

adjoining Horseshoe Lake.

HEARING OFFICER WEBB: Are you

finished?

MR. JOHNSON: That's my comment.

HEARING OFFICER WEBB: Any questions

for the witness?

MS. MUSHILL: Petitioner has no

questions of this witness.

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HEARING OFFICER WEBB: Agency?

MR. SOFAT: No.

MR. BALLARD: US Steel has questions.

HEARING OFFICER WEBB: Okay.

CROSS-EXAMINATION

BY MR. BALLARD:

Q. Mr. Johnson, you stated that you were

contacted by Ms. Andria --

A. That's correct.

Q. -- with regards to this? Did you talk

with Ms. Andria about what you would be doing

today?

A. She asked me if I would interested in

coming to this meeting. I said I would.

Q. Okay. And did you talk with her at

all about what you would say at the hearing

today?

A. Not particularly, no.

Q. Okay. Did you talk with any attorneys

about what you would say today?

A. No.

Q. Did you talk with anybody at American

Bottoms Conservancy regarding what you would say

today?

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A. No.

Q. Okay. Did you talk with anybody at

any -- well, did you talk with anybody in

preparation for today's hearing?

A. I just spoke to Kathy. And I

indicated that I was -- when I got the

information from her, I indicated that I was

aware of the -- of the Canteen Lake situation.

And I told her that I had knowledge about it and

I thought that the owner would be interested in a

public hearing. That's about as far as it went.

Q. Okay. And would you yourself be

interested in a public hearing on Horseshoe Lake?

A. Yes.

Q. When did you have that conversation

with Ms. Andria?

A. It would have been just yesterday or

the day before.

Q. Okay. And obviously you didn't submit

any comments on the rulemaking for the permit for

Granite City Works?

A. No, this is the first I've heard of

any type of permit actually.

Q. And can you tell me where you can be

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contacted? How can you be contacted about any

comments you might have about this permit?

A. Address or --

Q. What's the name of your company, the

address and contact phone number?

A. My company is Johnson Consulting.

It's at 8 Cypress Point, Collinsville, Illinois,

62234. And telephone number there is

(618) 530-6604.

Q. And you stated earlier that, sorry, I

didn't make notes quick enough, but there was --

was there another -- not Johnson Consultation --

Consultants --

A. Johnson Consulting?

Q. Yes, consulting. Yeah, there was

another entity named duck something, what was the

name of that?

A. The owner of the Canteen Lake that

adjoins Horseshoe Lake, the owner of that is

Canteen Lake Duck Club Incorporated.

Q. Okay. And you stated that you think

they would be interested in commenting at the

public hearing on the Granite City Works?

A. I would think they would be

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interested, yes.

Q. Did you talk with them about that?

A. No, I haven't had time to.

Q. So you haven't actually had a

conversation with someone that said I would be

interested in a public hearing on the Granite

City Works hearing?

A. That's correct.

MR. BALLARD: I have nothing further.

A. I would like to add just one more

thing to my comment, that I use the park

regularly as a -- I use the bike trail that runs

through the discharge over from Granite City

Steel. Whether I have concerns, I would be

interested to see what's in that discharge. As

an environmental consultant, I would be

interested as to what -- why it's open to the

public now. I'm not sure too many people really

understand what's going on there. I would be

interested just from a curiosity standpoint as to

what's going on there.

MR. BALLARD: Can I follow-up on that

just real quick?

HEARING OFFICER WEBB: Uh-huh.

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Q. (By Mr. Ballard) Have you seen the

proposed -- proposed permit or -- I guess it

would be a proposed permit for the Granite City

Works?

A. Only very briefly.

Q. Did you see whether there was a

contact number for somebody at IEPA who would be

contacted about questions regarding the --

A. I didn't look at it that close yet.

MR. BALLARD: That's all I have.

HEARING OFFICER WEBB: Do you have any

questions?

MR. HEISEL: No.

HEARING OFFICER WEBB: Okay. Thank

you, Mr. Johnson. Would our next individual

please come down.

MS. COPLEY: Yes. And I would like to

make a public comment, please.

HEARING OFFICER WEBB: Okay.

MS. COPLEY: My name is Cathy Copley.

I'm a resident of Madison County. I'm a visitor

to the lake.

HEARING OFFICER WEBB: Why don't you

come -- would you mind sitting here and spell --

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if you could spell your name, please.

MS. COPLEY: Cathy, C-A-T-H-Y, Copley,

C-O-P-L-E-Y. I'm a resident of Madison County.

I'm a visitor to the lake that now I understand

is used as an outfall. I know of others who

visit the lake. I want to thank Ms. Webb, IEPA

and all the attendees here for my opportunity to

state my interest in the lake, the NPDES permit

now and earlier in 2005. I stand in support of a

future public hearing. And I would respectfully

encourage everyone's reconsideration. Thank you

very much.

MS. HESSE: Can we have the

opportunity to ask questions?

MR. BAKER: She gave public comment.

HEARING OFFICER WEBB: Yeah, she just

gave public comment. There is no one further who

would like to give a public comment today; is

that correct?

MS. MUSHILL: Not here currently.

HEARING OFFICER WEBB: Well, let's

continue with petitioner's case, please.

MS. MUSHILL: Petitioner calls Ms.

Yvonne Homeyer. Petitioner is giving Ms. Homeyer

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108

a copy of the group comment letter which, again,

is pages 537 and 539 in the administrative

record.

HEARING OFFICER WEBB: Can we swear

the witness, please.

(The witness was sworn in by the

court reporter.)

DIRECT EXAMINATION

BY MS. MUSHILL:

Q. Hi, Ms. Homeyer.

A. Hello.

Q. Did you include your name on a public

comment letter for the NPDES permit at issue in

this case?

A. Yes. I was president and conservation

chair of Webster Grove Nature Study Society. And

I gave Kathy Andria permission to sign Webster

Grove Nature Study Society onto the letter.

Q. And for convenience sake, while we're

talking about this, is there a way to shorten the

pronunciation of Webster Grove Nature Study

Society?

A. Yes. We pronounce it WGNSS,

W-G-N-S-S, with no periods. Just capital

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letters, W-G-N-S-S. Webster Grove Nature Study

Society, WGNSS,

Q. And, Ms. Homyer, how many members does

WGNSS have?

A. We over 400 member. We have

individual and family members. And we don't

track the number of people in the family, but we

have about 400 family addresses on our mailing

newsletter list.

Q. How long has WGNSS been around?

A. Continuously since 1920.

Q. And if you don't mind stating again,

do you hold any special positions within WGNSS

currently?

A. Yes. Now I am conservation chair.

Q. And in 2005, when you signed this

comment letter, what position did you hold at

that time?

A. I continue to hold conservation chair,

and I was also the presidents.

Q. Does WGNSS submit public comment

letters on environmental permits?

A. Yes, we have.

Q. And, in general, what kinds of

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situations does WGNSS send public comment

letters?

A. If there is an issue related to

habitat.

Q. If I could have you look at the

document that we handed to you, which is a group

comment letter.

A. Yes.

Q. And do you recognize this?

A. Yes.

Q. And you did -- did you agree to have

your name and WGNSS's included on this letter?

A. Yes, I did.

Q. Ms. Homeyer, what is WGNSS's interest

in Horseshoe Lake and this NPDES permit?

A. Our members go to Horseshoe Lake

almost daily. And sometimes it's an individual

who's there, sometimes it's a group, but as far

as the birding people in WGNSS, the bird watching

people, Horseshoe Lake is considered one of the

most outstanding areas in the St. Louis area for

birds.

Q. And are there members of WGNSS that go

to Horseshoe Lake for reasons other than bird

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watching?

A. Yes, some of us are also in interested

in butterflies. And several people will be over

there from time to time throughout the summer

when the butterflies are flying.

Q. How often do the WGNSS bird groups go

to Horseshoe Lake?

A. We have three birding groups every

week. The Thursday group is led by Jackie Chain,

and the Thursday birding group has there been 23

times in about the last 15 months. The Saturday

group is led by David Becher between September

and May of every year. I don't know how many

times in the last year they've been there, but

they do stop in frequently during the fall and

winter for ducks and in the spring for shore

birds and gulls too in the winter. And the

Sunday bird walking -- bird watching walks are on

a less frequent basis and maybe they might go

there twice a year.

Q. Do you personally go to Horseshoe

Lake?

A. I go there quite a lot.

Q. And what do you do when you go to

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Horseshoe Lake?

A. Sometimes I'm there just for the

birds, if it's winter and there aren't any

butterflies. Other times I'm there primarily for

butterflies, but I'm also looking at the birds.

Q. Could you describe WGNSS's role in

cataloging the birds at Horseshoe Lake?

A. Yes. Two of our members Jim Ziebol

and Frank Holmes maintain an official list of all

the bird species that have been seen at Horseshoe

Lake?

Q. Why -- why do WGNSS members go to

Horseshoe Lake so often for bird watching?

A. More bird species have shown up at

Horseshoe Lake than at any other location in the

St. Louis area. It is a fantastic place for all

different types of birds because it has a variety

of habitat. 308 species of birds have been

reported at Horseshoe Lake. The lake itself

attracts gulls, terns, ducks and shore birds.

And the presence of wetlands the open fields

attract different kinds of birds and then the

woods there attract even more birds. So it's the

diversity of habitat. Also, it's extremely easy

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to get to. It's got roads throughout it. It's

got the 203 side. It's got the 111 side. And

it's just easy to negotiate and navigate.

Q. And you've mentioned you've been to

Horseshoe Lake to look at butterflies. Why is

Horseshoe Lake a good place to look at

butterflies?

A. It's a good place to look at

butterflies, for the same reason it's got a

diversity of habitat, and it has some unusual

butterfly species there that are not found

frequently or even at all at other locations.

And part of that reason is because it's -- it's

not been used or developed, and I would call it

old habitat. It just hasn't been -- it hasn't

been used and it's pretty much in the same state

it has been for a long time. So the butterflies

haven't been disturbed.

Q. What do you mean when you say that

there are butterflies at Horseshoe Lake that

haven't been seen anywhere at all?

A. Well, this June we found a colony of

Broad-winged Skippers. It's a type of butterfly.

Q. Why is that a rare thing to see?

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A. Well, we never knew Broad-winged

Skippers were in the St. Louis area, but it's

host plant is at Horseshoe Lake. And this year

we just happened to be there at the right time at

the right place and we saw several of them

flying. And we went back to confirm on several

other days that there were a number of them

there. So we know it's a breeding colony.

Q. Do you know of any member of WGNSS

that go to Horseshoe Lake more often than the

WGNSS organized trips go there?

A. Yes. One of them our members, Frank

Holmes, lives in Granite City and he is there, if

not daily, then almost every day throughout the

year. Jim Ziebol lives in South St. Louis. Jim

is there several times a week.

Q. Ms. Homeyer, why do you believe that

Horseshoe Lake is such an important habitat?

A. It's an important habitat because

we're losing so much habitat, and Horseshoe Lake

is a large area. It has a number of bird

species, a number of butterfly species and it's

the diversity of habitat and the fact that it's

in close proximity to a lot of people living in

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the bi-state metropolitan St. Louis area.

Q. In your opinion, do you believe that

the discharge into the Horseshoe Lake affects

this habitat?

A. Certainly. The discharge into the

water is affecting the birds. The birds eat food

that is in the lake. It might be grasses. It

might be fish. It might be amphibians. It might

be reptiles. It might be small crustaceans, but

the birds are definitely feeding on whatever is

in the water. And what is in the water is

affecting the quality of the food that these

birds are consuming.

Q. Would you say then that WGNSS has an

interest in any permit that affects the discharge

into Horseshoe Lake?

A. We do.

Q. And if there had been a public hearing

on this NPDES permit, do you think members of

WGNSS would have attended?

A. Definitely.

MS. MUSHILL: Thank you. Nothing

else.

HEARING OFFICER WEBB: Thank you.

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Does the Agency have any questions?

MR. SOFAT: No questions.

HEARING OFFICER WEBB: Ms. Hesse?

MS. HESSE: We have a few questions.

CROSS-EXAMINATION

BY MS. HESSE:

Q. WGNSS did not appeal -- join with ABC

in appealing the NPDES permit, did it?

A. We are not a party to the appeal.

Q. And just for clarification, Webster

Groves -- Webster Groves Nature Study, Webster

Groves is in Missouri, isn't it?

A. Webster Groves is a suburb of

Missouri, but our members live throughout the

metropolitan bi-state region both in Missouri and

Illinois. We have members in 12 other states

too.

Q. Did you review the draft permit that

-- before January 18, 2005?

A. I've never seen the permit.

Q. Do you know if one of the -- you had

testified a few minutes ago about Horseshoe Lake

being a unique location because there really had

not been habitat destruction and things like

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that. Do you know if the NPDES permit had

anything to do with proposing to destroy habitat

at Horseshoe Lake?

A. I don't think it has anything to do

with destroying habitat. I think it's about

water discharge into the lake.

Q. You also mentioned in your testimony

that there are numerous species of wildlife that

inhabit the lake and, in fact, some unique

species of butterflies and things like that.

A. Uh-huh.

Q. Is that not an indication that habitat

there is healthy?

A. Well, it's not completely healthy.

Every location has stresses on it. It's -- it's

a good location for what it is. But, of course,

there are issues there.

Q. But isn't it true that the

biodiversity that is there is an indication that

that the habitat there is healthy for those

species for it --

A. No, it's not completely healthy. It's

the fact that they're hanging on, that's what's

happening. As other habitat gets destroyed, this

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is like an oasis or an island of habitat that's

left, and we're interested in doing whatever it

takes to preserve that.

Q. So your main concern is minimizing

habitat destruction; correct?

A. Well, the lake is part of that

habitat. It's not just destruction. It's

preservation of the habitat. The lake is an

integral piece of the habitat at Horseshoe Lake.

Q. Did you participate in drafting the

January 18, 2005, letter?

A. No.

Q. Did you review that letter before it

was sent to Illinois EPA?

A. I reviewed it before I told Kathy

Andria that WGNSS would sign onto it.

Q. Do you have any independent knowledge

of the substance of the comment in the January

18, 2005, letter?

A. Not about the water issues.

Q. Your participation was essentially

that Kathy Andria asked you if she could add your

name to the letter and you agreed?

A. Our participation is that we think a

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public hearing is necessary to develop a full

record before the IEPA makes a decision about

this permit.

Q. Okay. I believe my question was with

respect to your participation in drafting the

letter of January 18?

A. I didn't participate in drafting it.

I signed onto it. We signed onto the request for

public hearing. We think it's very important and

critical that the public hearing be held on this

permit.

Q. In the comment letter that you signed

onto, the comment letter does not allege that you

or anyone else's ability to use Horseshoe Lake

would be prevented by the permit being issued; is

that correct?

A. I don't think the permit is trying to

keep us from using it. I think the question is

quality of the water from the discharge that

Horseshoe -- that the Granite City Steel wants to

discharge into the lake.

Q. Do you have any independent

information with respect to the quality of the

water to be discharged into Horseshoe Lake under

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the terms of the permit?

A. No.

Q. Do you know whether the limits place

concentration based limits or any other limits

written into the permit for the US Steel-Granite

City Works are based on water quality standards

or other regulation?

A. I don't know.

Q. So as you sit here, even though you're

objecting to the quality of the water being

discharged into the Horseshoe Lake, you do not

know whether that water meets water quality

standards for Horseshoe Lake or not, do you?

A. I think the issue is whether there

should be a public hearing to determine what's

best for the lake and develop a further record

before the IEPA makes its decision.

Q. Okay. You just commented about a

hearing for what's best for Horseshoe Lake. Did

you participate in the 303(d) process for

impaired waters with respect to Horseshoe Lake?

MR. HEISEL: I'll object to that also

as outside the record. Same objection as the

other witnesses.

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HEARING OFFICER WEBB: Was that the

2006 hearing?

MS. HESSE: That's the 2006 hearing.

The witness just testified, and you can please

read back her testimony, that she was interested

in the water quality of the Horseshoe Lake. And

the purpose of the question is to ask if she took

the opportunity to participate in the procedure

that's set up to address water quality of

Horseshoe Lake from whatever sources.

HEARING OFFICER WEBB: Is that the

only question you're going to ask on that, or is

there a line?

MS. HESSE: I hope it's the only one.

HEARING OFFICER WEBB: Then I'll allow

you to answer that, if you participated in any

of --

A. I wasn't aware of it.

MS. HESSE: No further questions.

HEARING OFFICER WEBB: Redirect?

MR. HEISEL: Just a couple.

REDIRECT EXAMINATION

BY MR. HEISEL:

Q. Ms. Homeyer, of the bird species that

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you observed at Horseshoe Lake, do you know are

any of those migratory birds?

A. Quite a number are.

Q. So just roughly how long would any of

those birds spend at Horseshoe Lake?

A. Well, spring migration and fall

migration go on for months, and the migration

pattern for each species is different. So some

species overlap their migration and others are

first, others are middle, others are end. So

between the spring and the fall there is quite a

-- quite a lot of time when some species are

migrating through. Is that what you meant?

Q. For any given species, roughly how

long would a migratory bird spend at the lake?

A. An individual bird?

Q. Sure.

A. Well, an individual bird might just

spend one night, feed the next day and take off

the following night. Sometimes some birds will a

hang around for a couple of days. But if it's

migration and there's a good bird there, you're

best to get there the day you hear about it.

MR. HEISEL: That's all I have.

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MS. HESSE: No further questions.

HEARING OFFICER WEBB: Thank you, Ms.

Homeyer.

MS. MUSHILL: Any other parties plan

to call Ms. Homeyer? Again, she needs to leave.

MS. HESSE: No.

MR. SOFAT: No.

HEARING OFFICER WEBB: You may be

excused. I will let you call your next witness

obviously, but I just want to let you know, if

you're right in the middle of something, it is

very likely we will be kicked out at 4:30. So

with that, you may call your next witness.

MS. MUSHILL: Petitioner would like to

call Ms. Christine Favilla.

HEARING OFFICER WEBB: Is this

somebody on your witness list?

MS. MUSHILL: She has been added. We

amended our witness list.

HEARING OFFICER WEBB: Oh, okay. So

you were aware of that?

MR. BALLARD: No objection.

(The witness was sworn in by the

court reporter.)

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DIRECT EXAMINATION

BY MS. MUSHILL:

Q. Hi, Ms. Favilla. Could you tell me

who your employer is?

A. I work for the Sierra Club.

Q. What is your position with the Sierra

Club?

A. I'm the three rivers project

coordinator.

Q. How long have you been working for the

Sierra Club in this position?

A. Five and-a-half years.

Q. And in the course of working with the

Sierra Club, have you been to Horseshoe Lake?

A. Yes, I have.

Q. What kind of activities do you

participate in at Horseshoe Lake?

A. We do cleanups, litter and debris

cleanups at the lake.

Q. Could you describe these cleanups to

me, please?

A. Yes. On average we have about 30

participants in an annual and sometimes

semiannual cleanup. We work with the Department

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of Natural Resources and Madison County Storm

Water Office, and often the sheriff's work

alterative program as volunteers. We clean out

canals that lead into the lake and we also clean

up around the lake. We clean up camp sites near

the lake and the roads that lead to the lake.

Q. When was the most recent cleanup?

A. We had one October 20th of this year.

Q. And how long have you been conducting

these cleanups?

A. For two and-a-half possibly three

years.

Q. Why did Sierra Club choose Horseshoe

Lake as a place to do these cleanups?

A. There is a -- an overflow discharge

area for several communities that actually leads

back to the lake. So on high water times debris

and litter from these communities floats into

this area. And when the water lowers, it leaves

it behind in the wooded area. And so not only is

litter and debris highly prevalent, but we -- we

enjoy the habitat and we feel this is an area

that definitely needs to be taken care of.

Q. How many members does your branch of

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the Sierra Club have?

A. We have 26,000 in Illinois. And my

group has roughly 650 members.

Q. And how many members does Sierra Club

have nationwide?

A. 750,000.

MS. MUSHILL: No further questions.

Thank you.

HEARING OFFICER WEBB: Thank you.

MR. SOFAT: The Agency has no

questions.

HEARING OFFICER WEBB: Okay.

MR. BALLARD: I would move to -- I

would object and move to strike the entire

testimony. That was entirely outside of the

administrative record, entirely outside of the

January 18, 2005, letter or any letter to the

administrative record. I don't see it has any

relevance to this case.

MR. HEISEL: Sierra Club signed onto

the letter. Her testimony is like the other

testimony we heard today in that it expounds on

or illustrates that the interest of the

organization signed onto the letter.

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MR. SOFAT: The Agency agrees with US

Steel.

MR. BALLARD: Except for the fact that

Ms. Favilla did not sign the letter. She did not

contribute to the letter. They haven't said that

she did anything to the letter. Everybody who

has testified so far today has signed the letter,

has said they put input into what the letter was

and that is in the administrative record. Here

we hear about nothing relating to what's in the

administrative records before IEPA.

MR. HEISEL: They can ask those

questions on cross. I mean, she said what she

said. If they want to clarify her involvement in

the permit, they can follow-up.

HEARING OFFICER WEBB: Would you like

to do any cross-examination regarding her

involvement?

MR. BALLARD: If it's going to be

overruled, I'll definitely cross-examine her.

HEARING OFFICER WEBB: Yes.

MR. BALLARD: Okay.

HEARING OFFICER WEBB: Please do.

CROSS-EXAMINATION

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BY MR. BALLARD:

Q. You're aware that a letter was

submitted on behalf of Sierra Club in this case

during the public comment period?

A. Yes, I am.

Q. And that was on January 18th?

A. Of 2005, yes.

Q. And the Sierra Club is part -- as part

of that letter, there was a request for public

hearing; correct?

A. Correct.

Q. And that -- and as alleged by ABC and

Sierra Club, that request was never granted;

correct?

A. Correct.

Q. Sierra Club did not appeal that denial

of the public hearing request; is that correct?

A. That's correct.

Q. And Sierra Club is not a party to this

litigation?

A. Correct.

Q. And do you -- you don't know whether

Sierra Club actually filed a petition for

administrative review in this case, do you?

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A. I'm not aware of that.

Q. And in the January 18, 2005, letter

Jack Norman was the signer on behalf of Sierra

Club?

A. Yes, he was.

Q. Okay. And you did not sign the

letter; is that correct?

A. Correct.

Q. And Jack Norman is a member of the

Kaskaskia; is that right?

A. Kaskaskia.

Q. Kaskaskia, excuse me, group of the

Sierra Club; is that correct?

A. Yes. And of the Illinois chapter,

which I work for.

Q. Okay. And that group is part of --

that handles the southern region of Illinois; is

that correct?

A. They handle St. Clair County and below

we handle Madison County. And we have eight

counties. I don't know how many Kaskaskia has.

Q. Is Jack Norman on the executive

committee of the Sierra Club?

A. I'm not aware right now that he is.

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Q. So you don't know whether he's on the

executive committee?

A. No, I do not.

Q. And you're not on the executive

committee; is that correct?

A. Staff persons cannot be.

Q. Okay. And you've been substituted in

this case as a procedural matter along the way,

you were substituted for Mr. Norman; is that

correct?

A. Yes, it is.

Q. And Mr. Norman -- you were substituted

because Mr. Norman couldn't appear at his

deposition; is that correct?

A. I do not know the reason.

Q. Okay. And he didn't appear at his

deposition; is that correct?

MR. HEISEL: I'll object to that.

There was no deposition noticed -- well, either

there was no deposition of Mr. Norman noticed or

it was substituted by agreement of the parties.

So I just don't want an implication that he

didn't show.

HEARING OFFICER WEBB: Thank you for

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the clarification.

Q. (By Mr. Ballard) Mr. Norman will not

be testifying in this case; is that correct?

A. I do not know.

Q. Okay. And you don't know whether he

will be testifying about comments that he made in

the January 18th letter?

A. I do not know.

Q. Okay. And you were not involved in

drafting the January 18th letter; is that

correct?

A. That is correct.

Q. Okay. The first time you actually saw

the letter was the week before your deposition,

which was taken on November 6 of 2006; is that

correct?

A. Yes.

Q. And the first time you read the letter

was in preparation for testifying in this case a

week before November 6th; is that correct?

A. Correct.

Q. And in the -- in the January 18th

letter, you have reviewed that letter; correct?

A. Yes.

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Q. Okay. And in that letter it

identifies that the lake is used by outdoor

enthusiasts, bird watchers, nature lovers,

fishers, hunters, and families, do you recall

that?

A. Yes.

Q. Okay. And it also states that it is

used by low income and minority folks for

subsistence fishing?

A. Yes.

Q. The letter does not identify any

outdoor enthusiasts by name; is that correct?

A. That's correct.

Q. It does not identify any bird watchers

by name?

A. Correct.

Q. The letter does not identify any

nature lovers, fishers, hunters, or families by

name; is that correct?

A. Yes.

Q. It doesn't identify by name any of

those outdoor enthusiasts, bird watchers, nature

lovers, fishers, hunters, or families, it doesn't

identify any of those that would be interested in

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public hearing; is that correct.

A. It does not state by name who would

show up at public hearing, no.

Q. Okay. And the letter also doesn't

identify any low income or minority folks who use

Horseshoe Lake for subsistence fishing; is that

correct?

A. Correct.

Q. The letter does not identify any

individual by name who would be adversely

affected by the NPDES permit being issued to

Granite City Works; is that correct?

A. It is signed by several persons, but I

don't know how it was stated in the letter --

Q. Okay.

A. -- that they would be adversely

affected.

Q. Would you like to look at the letter?

A. Yes. Is this the letter?

Q. Yes.

A. Thank you.

Q. The is letter 537, page 537, at the

bottom.

A. Okay.

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Q. In the letter, as you're looking at

it, it doesn't identify by name any individuals

who would be adversely affected by an NPDES

permit being issued for Horseshoe Lake; is that

correct?

A. Just a moment. Correct.

Q. Okay. And you testify in this case,

you do not know much about the Sierra Club's

interest in Granite City Works' discharge of

pollutants in Horseshoe Lake; is that correct?

A. Other than we would like to have a

public hearing on it, no.

Q. And other than the fact that Sierra

Club was involved in the letter -- comment letter

of January 18, there's nothing else you can tell

me about the Sierra Club's interest in Granite

City Works' discharge of pollutants in the

Horseshoe Lake; is that correct?

A. Other than our concerns represented in

the letter, no.

Q. Other than reading over the January

18, 2005, letter and looking over the NPDES

permit for Granite City Works, you do not have

any knowledge as to the need of a public hearing;

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is that correct?

A. We believe that if there are permits

that are looking at projecting to -- if there are

permits that are going to project effluents into

a body of water up through 2011, we believe a

public hearing should be called, yes.

Q. Okay. So you're stating here today

that more so he than the January 18, 2005,

letter, are you stating that in addition to the

comments in the January 18th letter, you're

testifying today there is more concern that you

have for a public hearing on the permit?

A. Could you rephrase the question? I

didn't understand it.

Q. I asked you earlier, other than

reading the January 18th letter and looking over

the permit for Granite City Works, you do not

have any knowledge as to the need for a public

hearing and you stated -- it seems to me you were

stating that was incorrect, you had more

knowledge than that than just looking at the

permit and just looking at the letter?

A. Right. Well, with our activities out

at the lake with Sierra Club led bike trips

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through the trails around the lake, we do

definitely have a concern about the habitat and

water quality of the lake. That may not have

been represented within the letter.

Q. Okay. Do you recall me taking your

deposition in this case on November 6?

A. Yes.

Q. And you were sworn under oath to tell

the truth?

A. Yes.

Q. You did tell the truth?

A. Yes.

Q. Do you recall me asking you questions,

you giving the answer of: What can you tell me

on behalf of Sierra Club? What is the need for a

public hearing in this case? And you answered:

Other than reading the letter and looking over

the permit, I do not have any further knowledge

of that. Do you recall giving that answer?

A. No. But if I said it, then I don't

have any further knowledge of the effluents that

are put into the lake -- I don't have any extra

knowledge of any effluents that are put into the

lake. I only have knowledge that we would like

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to have a public hearing.

Q. And looking at the January 18, 2005,

letter, that letter does not state that issuing a

permit will cause a violation of any statute,

regulation or law; is that correct?

A. It does not state --

MR. HEISEL: I'll object the letter

speaks for itself. I don't know what it helps to

have her characterize what it says.

HEARING OFFICER WEBB: I'll sustain

that.

Q. (By Mr. Ballard) The January 18

letter does not state that any water quality

standards will be violated by issuing the permit;

is that correct?

MR. HEISEL: Same objection.

HEARING OFFICER WEBB: Well --

MR. BALLARD: I mean, we've had people

testifying to this letter all day.

HEARING OFFICER WEBB: You're right.

We have, we have. I'm going to allow it as to

her understanding of the letter that was

submitted in part of the Sierra Club. So you may

repeat your question.

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MR. BALLARD: Can I repeat the last

question?

HEARING OFFICER WEBB: Yes.

Q. (By Mr. Ballard) The January 18

letter does not state that issuing a permit would

cause a violation of any statute, regulation or

law; is that correct?

A. That's correct.

Q. And the January 18 letter does not

state that any water quality standard would be

violated by issuing the permit; is that correct?

A. It does not state that, no.

MR. BALLARD: That's all I have.

HEARING OFFICER WEBB: Anything

further?

MR. HEISEL: We have no questions.

HEARING OFFICER WEBB: Okay. All

right. Thank you very much. Do you want to

start another witness, or do you want to wait?

MR. HEISEL: I understand there's

another member of the public here --

HEARING OFFICER WEBB: All right.

MR. HEISEL: -- If we can fit him in.

HEARING OFFICER WEBB: Okay. Let's

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take one more public comment. Who? You, okay.

Did you hear my earlier description of the

difference between public comment and sworn

testimony?

MR. WARNER: No, I wasn't here

earlier.

HEARING OFFICER WEBB: You may either

give sworn testimony, which is subject to

cross-examination by the attorneys here, or you

may make a public comment, which is not subject

to any questioning by the attorneys. The

difference would be just as to the weight of the

evidence, but the Board certainly does consider

public comment important as well. Why don't you

come down here so we can all hear you and take a

seat over here. Would you like to give sworn

testimony or public comment?

MR. WARNER: Just public comment.

HEARING OFFICER WEBB: Public comment.

You may begin.

MR. WARNER: Hi, my name is Jason

Warner. I'm with the Sierra Club. And I'm an

avid bike rider who uses the trails along the

Horseshoe Lake.

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The Sierra Club is a not-for-profit

organization with 25,000 members in the State of

Illinois. Sierra Club members are very concerned

about water quality and believe, as Congress

believed when it passed the Clean Water Act, that

discharges of pollutants should be minimized to

the extent possible and eventually eliminated.

We urge that Illinois Pollution

Control Board to assure that members of the

public be able to fully participate in the

National Pollutant Discharge Elimination System

permits process. Opportunity for active public

participation in the process is required by the

Clean Water Act and is necessary for the system

to work properly.

The Board should require that the

Agency hold a hearing, whenever organizations

with numerous members that may be affected by a

discharge, request one. The time frame now

allowed for public comments is not long and

requests for time extensions are often denied.

The decision to request a public hearing almost

always must be made with very limited information

being available to the public. It cannot

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reasonably be expected that comment letters and

requests for public hearing will articulate all

of the issues potentially raised by the permit or

will articulate problems perfectly.

Further, it is not good policy to

force people who have only received the initial

public notice to generate large numbers of

objection letters and requests for a hearing if a

hearing is to be held. By doing this, the Agency

is practically ordering people who care about the

environment to send out mass alerts and go to the

press without having had a real opportunity to

determine the extent to which the proposed action

will affect human health or other parts of the

environment.

There may be dischargers and Agency

officials who think that forcing environmental

groups and neighborhood organizations to react

quickly with little information saves time and

resources. In a few cases it will be possible

this way -- possible this way to slam through a

permit that might otherwise have required more

debate. However, the people who want to slam

through permits without giving people a realistic

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chance to learn about them may learn that the

results of forcing people to act in a few days on

the basis of very limited information are not

good in the long run.

If the Board and the Agency wish to

serve the interests of the environment and

effective government, they should assure members

of the public that they will have an opportunity

to learn about proposed permits and will be able

to object later if the explanations offered by

the discharger and the Agency are not

satisfactory.

HEARING OFFICER WEBB: Thank you. Any

more public comments today? Okay. Well, it's

4:15. Would you like to start -- How many more

witnesses are you calling in the whole case?

MR. HEISEL: I realize we only have

14, but can we have a minute or two to confer?

HEARING OFFICER WEBB: Yeah, yeah.

Sure.

MS. MUSHILL: Kathleen Logan-Smith is

who we're calling.

HEARING OFFICER WEBB: Okay. The

court reporter will swear you in.

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(The witness was sworn in by the

court reporter.)

DIRECT EXAMINATION

BY MS. MUSHILL:

Q. Hi, Ms. Logan. What is your current

job position?

A. I'm the executive director of the

Missouri Coalition for the environment.

Q. Did you submit any public comment

letters for the NPDES permit at issue in this

case?

A. Yes, way back when.

Q. And on behalf of what organization did

you submit a comment letter?

A. From Health & Environmental

Justice-St. Louis.

Q. What is Health & Environmental

Justice's mission?

A. Health & Environmental Justice is

committed to environmental justice issues in the

metro region.

Q. How many members does Health &

Environment Justice have?

A. Our mailing list is 400 or 500.

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MS. MUSHILL: That's all we'd like to

ask this witness at this time.

HEARING OFFICER WEBB: Okay.

MR. SOFAT: Agency has no questions.

HEARING OFFICER WEBB: US Steel?

MR. BALLARD: Yeah, we have questions.

CROSS-EXAMINATION

BY MR. BALLARD:

Q. Ms. Logan-Smith, you submitted a

letter -- you, in fact, submitted two letters?

A. We submitted one letter and signed

onto another one.

Q. And the letter that you submitted was

the January 17 letter on behalf of HEJ?

A. Correct.

Q. In that letter you -- you stated that

a public hearing would give the citizens an

opportunity to ask questions about the permit,

voice concerns or hear explanations, do you

recall that letter stating that?

A. Correct.

Q. And the letter does not identify any

individual citizens who would voice concerns, ask

about the permit or hear explanations; is that

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correct?

A. Correct.

Q. And the January 17th letter didn't

identify any individuals by name who have been

adversely affected by Granite City Works' permit

being an issue; is that correct?

A. Correct. Those people would have come

to a hearing.

Q. And the January 18th letter, you did

not draft that letter?

A. No, I didn't draft it.

Q. And you did not draft any portion of

that letter?

A. No. I submitted my letter and --

first.

Q. And other than putting your name on

the January 18th letter on the signature line on

behalf of HEJ, you did not contribute anything to

the January 18th letter; is that correct?

A. Well, I had already submitted my

letter. So Kathy had seen my letter. So she

knew what my concern -- my chief concerns were

based on my knowledge.

Q. But as to the January 18th concern --

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as to your concern -- strike that.

A. So Kathy wrote it with my input

because she had gotten my other letter.

Q. Okay. HEJ made a request for public

hearing in the January 18th and January 17th

letter; is that correct?

A. Correct. There are a lot of people

who would comment on something like this at a

public hearing that are intimidated by the

process of writing a letter to the Agency.

Q. Okay. But HEJ does not appeal the

denial -- what it thinks its denial was at a

public hearing request; is that correct?

A. Correct.

Q. HEJ did not file a petition for

administrative review in this case?

A. Correct.

Q. The January 17th letter did not state

that issuing a permit would cause a violation of

any statute, regulation or law; is that correct?

A. It wasn't that level of detailed

analysis.

Q. But it doesn't state that there were

any violations; is that correct?

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A. Correct. But it asked for a public

hearing because we could ask that question

directly then.

MR. BALLARD: Nothing further.

HEARING OFFICER WEBB: Anything

further?

MR. HEISEL: No.

HEARING OFFICER WEBB: Thank you, Ms.

Logan-Smith.

MR. HEISEL: We'll rest our case.

HEARING OFFICER WEBB: Oh, you're

resting now?

MR. HEISEL: Yes.

HEARING OFFICER WEBB: Okay. Are we

still coming back tomorrow? Do you have any --

Are you still planning to call --

MS. HESSE: Do they have any other

witnesses?

MR. BAKER: They rested.

MR. HEISEL: We rest.

MR. BALLARD: If we are going to call

any other witnesses, we're not going to do it

today, so can we use the last five minutes to

discuss it?

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HEARING OFFICER WEBB: Sure, sure.

(A discussion was held off the

record.)

MS. HESSE: We're finished.

HEARING OFFICER WEBB: Okay. You're

sure? We got the room booked for tomorrow if

anybody -- I guess we won't need it.

MS. HESSE: I think we're concluding

the hearing now.

HEARING OFFICER WEBB: Both parties

have rested their case. We're reserving -- is

everyone reserving their closing argument for the

post-hearing brief?

MS. HESSE: Yes.

MR. SOFAT: Yes.

MR. HEISEL: Yes, yes.

HEARING OFFICER WEBB: Or did anyone

want to make a closing argument. All right. Let

me read into the record the briefing schedule

that we've already discussed. The expedited

transcript of these proceedings will be available

from the court reporter by November 28th and will

be posted on the Board's website. The public

comment deadline will be December 18th. Public

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comment must be filed in accordance with Section

101.628 of the Board's procedural rule. The

petitioner's brief is due by December 8th,

respondents' briefs are due by December 18th.

The mailbox rule will not apply, although I think

you're all filing electronically at this point,

which is good.

At this time I will ask again if there

are any members of public who want to make a

comment? And seeing none, I will proceed to make

a statement as to the credibility of witnesses

testifying during this hearing. Based on my

legal judgment and experience, I find all of the

witnesses testifying to be credible. At this

time I will conclude the proceedings. We stand

adjourned, and I thank you all for your

participation.

KEEFE REPORTING COMPANY

150

STATE OF ILLINOIS

COUNTY OF FAYETTE

C E R T I F I C A T E

I, BEVERLY S. HOPKINS, a Notary Public

in and for the County of Fayette, State of

Illinois, DO HEREBY CERTIFY that the foregoing

150 pages comprise a true, complete and correct

transcript of the proceedings held on November

20th, 2006, at the Madison County Administration

Building, County Board Room 203, Edwardsville,

Illinois, Illinois, in the case of American

Bottoms Conservancy versus IEPA and United States

Steel Corporation and Granite City Works, in

proceedings held before Hearing Officer Carol

Webb, and recorded in machine shorthand by me.

IN WITNESS WHEREOF I have hereunto set

my hand and affixed by Notarial Seal this 21st

day of November, 2006.

_____________________________

Beverly S. Hopkins, CSR, RPR

CSR License No. 084-004316

KEEFE REPORTING COMPANY

151