AMERICAN BOTTOM CONSERVANCY,
Petitioner,
V .
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY, and UNITED STATES STEEL
CORPORATION - GRANITE CITY WORKS
Dated: December 18, 2006
Carolyn S . Hesse
David T. Ballard
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
A STti rF
z 200 ,
Case No. PCB 2006-
(NPDES Permit Appeal)
Cn
rCt%Ba~a
Respondents .
)
NOTICE OF FILING
To : Sanjay K . Sofat
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, IL 62794-9274
PLEASE TAKE NOTICE
that on December 18, 2006 there was filed with the Clerk of
the Illinois Pollution Control Board of the State of Illinois an original and executed copies of the
United States Steel Corporation's Post-Hearing Brief,
a copy of which is herewith served
upon you.
Edward J. Heisel
Interdisciplinary Environmental Clinic
Washington University School of Law
One Brookings Drive
Campus Box 1120
St
. Louis, MO 63130-4899
By:
Respectfully submitted,
United States Steel Corporation -
Granite City Works,
One of Its Attorneys
THIS FILING IS SUBMITTED ON RECYCLED PAPER
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, and UNITED
STATES STEEL CORPORATION -
GRANITE CITY WORKS,
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
AMERICAN BOTTOM CONSERVANCY, )
Petitioner,
)
v.
)
PCB No . 2006-171
Respondents.
)
(NPDES Permit Appeal)
R'c ,r e
CLERK'S
OFFICE
I
{JC:~
1
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ins
Pollution
STATE OF
Control
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.IiJBo-.
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UNITED STATES STEEL CORPORATION'S POST-HEARING BRIEF
Respondent, United States Steel Corporation - Granite City Works ("U.
S . Steel"),
submits its Post-Hearing Brief and requests that Petitioner American Bottom Conservancy's
("ABC") Petition for Review of a Decision by the Illinois Environmental Protection Agency
("Petition for Review") and request for a public hearing to the Illinois Environmental Protection
Agency ("IEPA") be denied . In support of its Brief, U . S. Steel states as follows :
INTRODUCTION
ABC filed a third-party appeal of an NPDES permit that IEPA issued to U . S. Steel's
Granite City Works
. The sole issue before the Board is whether IEPA abused its discretion by
denying ABC's request for a public hearing on the proposed permit . As a review of the
Administrative Record and relevant law shows, IEPA did not abuse its discretion in denying
ABC's request
. ABC's Petition for Review and Post-Hearing Brief are attempts to circumvent
the relevant standards for determining whether IEPA should have held a public hearing regarding
the proposed NPDES permit for U . S . Steel's Granite City facility
. Specifically, in its Post-
Hearing Brief, ABC raises a litany of issues that were not raised in any comments to IEPA
[This filing submitted on recycled paper as defined in 35 III . Adm . Code 101 .2021
during the public notice period (also referred to as a "public comment period") for the proposed
permit. Such a strategy ignores the rule that the Board cannot consider any issues that were not
raised during the public notice period. See 415 ILCS 5/40(e)(2)(A) . ABC also raises numerous
issues that may be relevant to Horseshoe Lake in a general manner, but ABC fails to establish
any connection between such issues and the NPDES permit that was issued to U
. S
. Steel. Such
a failure to connect ABC's complaints to U . S. Steel's permit is fatal to ABC's claim, as ABC
must demonstrate that there was a significant degree of public interest in the proposed permit
to warrant a hearing .
See 35 Ill
. Adm
. Code 309 .115
.
Further, ABC has repeatedly said that it wanted a hearing to ask questions about the
proposed permit. IEPA, however, did provide ABC with opportunities for ABC to ask questions
and obtain more information about the proposed permit, in that IEPA provided the name and
telephone number of IEPA's permit engineer to contact with questions, and IEPA offered to
meet with ABC . In its brief and at hearing, ABC completely glossed over the fact that its letter
filed within the public notice period gave IEPA the option of meeting with ABC if IEPA decided
not to hold a public hearing on the permit . IEPA's offer to meet with ABC satisfied this request .
Moreover, ABC had an opportunity and did participate in public meetings and hearings on the
impairment status of Horseshoe Lake, which is one of the issues ABC discussed in its comments
.
In addition, ABC makes numerous factually inaccurate and misleading assertions about
issues that are outside the Board's jurisdiction in this appeal. Without waiving any arguments
related to jurisdiction, U . S. Steel addresses each of ABC's flawed arguments below . Lastly,
ABC ignores binding and long-established case law that holds that IEPA's decision to hold a
public hearing is reviewed for an abuse of discretion, with the burden of proof resting on the
party challenging the decision . As the relevant law, Administrative Record, and other evidence
2
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35 III . Adm. Code 101.202]
shows, IEPA did not abuse its discretion in denying ABC's request for a public hearing
.
Accordingly, ABC's Petition for Review and request for a public hearing should be denied.
BACKGROUND FACTS
1 .
On October 14, 2002, U . S. Steel submitted an application to renew its NPDES
permit to IEPA for its Granite City Works facility located in Granite City, Illinois . R. 135. 1 This
facility has had NPDES permits ever since such permits have been required . R. 554 . After
conducting a thorough analysis of U . S
. Steel's Granite City Works facility and its discharges
into Horseshoe Lake, on December 19, 2004, IEPA issued a proposed NPDES permit for the
Granite City Works facility (the "Proposed Permit"), that would allow the facility to discharge
into Horseshoe Lake in compliance with Illinois water quality standards . R
. 518
.
2.
The Proposed Permit stated that the public notice period started on December 19,
2004 and ended on January 18, 2005. R. 518 . The Notice for Proposed Permit stated that "If
written comments or requests indicate a significant degree of public interest in the draft permit,
the permitting authority may, at is discretion, hold a public hearing . . .
. For further information,
please call Beth M . Burkard [at IEPA] ." R. 518. The Proposed Permit further provided:
Any interested person may submit written request for a public
hearing on the draft permit, stating their name and address, the
nature of the issues proposed to be raised and the evidence
proposed to be presented with regards to these issues in the
hearing. Such requests must be received by the Agency not later
than 30 days from the date of this publication .
If written comments and/or requests indicate a significant degree
of public interest in the draft permit, the permitting authority may,
at its discretion, hold a public hearing .
R. 522 (emphasis added) .
Citations of "R . ,"
will be to the Administrative Record, "SR. _," will be to ABC's Second Supplement to
the Administrative Record, and "Trans . ," will be to the Transcript from the November 20, 2006 hearing before
the Chief Administrative Officer .
3
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3 .
On January 17, 2005, Kathleen Logan Smith submitted a comment to IEPA on
behalf of the Health & Environmental Justice - St. Louis ("HEJ") . R. 532 . That letter stated the
following to IEPA:
Please hold a public hearing on the US Steel Corp
. NPDES permit
referenced above and extend the comment period for three weeks
on the above referenced permit. This permit warrants public
involvement because it impacts directly a recreational body of
water promoted by the Illinois Department of Natural Resources
for boating, fishing, bird watching, and waterfowl hunting .
R. 532 . The letter also asserted that the Proposed Permit would allow lead to be discharged into
Horseshoe Lake, which "would add up to hundreds of pounds and may have a serious
detrimental effect on organisms living in the lake ." R. 532 2 The letter did not state or describe
any evidence to support this assertion, nor did it indicate that such evidence could reasonably be
expected to be presented if a public hearing on the Permit were held . The letter further stated "A
public hearing would give citizens an opportunity to ask questions about the permit, voice
concerns, and hear explanations ." R
. 532
. The letter did not identify any regulations or sections
of the Illinois Environmental Protection Act (the "Act") that would be violated if the permit were
issued as it was drafted
. R
. 532.
4.
On January 18, 2005, Katherine Andria and four other individuals submitted
comments on behalf of ABC, HEJ, Neighborhood Law Office (East St
. Louis), Sierra Club, and
Webster Groves Nature Study Society . R. 537-539 . That letter provided
:
2 It should be noted that U .S
. Steel does not use lead in its processes . R. 601 . The increased load limits that appear
on paper are due to production changes and the load limit is consistent with effluent limitation guidelines and federal
rules at 40 C .F.R . 420 . Id.
4
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35 III . Adm. Code 101 .2021
Our organizations request that the Agency hold a public hearing
for the above-entitled permit
. The receiving waters for this permit
is Horseshoe Lake at Horseshoe Lake State Park in Madison
County. The lake is used recreationally by outdoor enthusiasts,
bird watchers, nature lovers, fishers, hunters and families . It is
also used by low-income and minority folks for subsistence
fishing.
R. 537
. The letter did not indicate what, if any, evidence might be presented regarding this
assertion that subsistence fishing occurred at the Lake .3
The January 18, 2006 letter commented
that Horseshoe Lake is impaired for PCBs, pH, suspended solids, excessive algal growth,
ammonia (unionized), nutrients, phosphorus, total and ammonia-N, and that "[w]e have seen fish
caught at Horseshoe Lake with melanoma." R. 537 . The letter stated that Professor Richard
Brugam at Southern Illinois University at Edwardsville showed that the testing of sediments in
Horseshoe Lake shows high concentrations of lead, although the letter did not provide a copy of
any study from Professor Brugam. R. 537 . The letter also stated
:
Granite City Steel in this permit would be allowed to put additional
lead into the lake
. It would be allowed to put additional ammonia
into the lake . That appears to be contrary to the Clean Water Act
and to the Bureau of Water's stated mission to ensure that Illinois'
rivers, streams and lakes will support all uses for which they are
designated including protection of aquatic life and recreation .
R. 537
. The letter also provided information purportedly from a U .S. EPA Enforcement &
Compliance History Online (ECHO) report that showed U . S
. Steel's Granite City facility's
compliance history . R. 537-38 . Finally, the letter stated "We ask that you hold a public hearing
in order to allow citizens to ask questions and present information and testimony . We have just
recently received the SIUE reports and have not had time to review them or to get technical
guidance as
to their meaning ." R. 539
. ABC and the other organizations involved with the letter
never provided a copy of any report or study from Professor Brugam to IEPA
. Most
The fish advisory in effect for Horseshoe Lake is for PCBs, which U . S
. Steel does not discharge . R. 554 .
5
[This filing submitted on recycled paper as defined in 35111. Adm . Code 101
.2021
significantly, ABC's letter failed to identify any provisions of the Act or regulatory standards for
the protection of water quality that would be violated if the permit were issued as drafted . R.
537-539 . The letter concludes by stating that "If you deny this request for a hearing, we ask for a
meeting with you and your staff, . . ." R
. 539
.
5.
On March 8, 2006, IEPA issued a final NPDES permit for U . S . Steel's Granite
City Works facility (the "Final Permit") . R. 637 .
6.
On March 31, 2006, IEPA reissued the permit to coincide with its issuance of the
responses to the comments it received . R. 645, 648, 651-657 .
7.
On May 4, 2006, ABC filed by mail its Petition for Review alleging, among other
things, that IEPA improperly denied ABC's request for a public hearing. Petition for Review,
¶¶ 27-29. The Clerk's Office received the Petition on May 8, 2006 . HEJ, Neighborhood Law
Office, East St . Louis, Sierra Club, and Webster Groves Nature Study Society did not appeal
IEPA's denial of their public hearing request.
8 .
On September 21, 2006, the Board granted U
. S
. Steel's and IEPA's Motions to
Dismiss all counts of ABC's Petition for Review, with the exception of the issue involving
ABC's public hearing request .
9.
On November 20, 2006, a hearing was held before the Board Hearing Officer on
whether IEPA improperly denied ABC's request for a public hearing .
ARGUMENT
I.
Standard of review.
A.
The standard of review for IEPA's decision to deny a public hearing is abuse
of discretion.
Under 35 Ill. Adm. Code 309
.115(a)(1), IEPA determines whether a party has
demonstrated a significant degree of public interest sufficient to warrant the holding of a public
6
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.2021
hearing. IEPA's decision to hold a public hearing "is a discretionary decision to be made by the
Agency." Borg-Warner Corp . v. Mauzy, 100 Ill . App. 3d 862, 867, 427 N .E.2d 415, 419 (3d
Dist. 1981). The Borg-Warner Court further explained the standard for demonstrating that IEPA
should allow a public hearing, stating that 35 Ill. Adm. Code 309 .115 :
establishes that the party requesting a public hearing has the
burden of showing why it is warranted . Certainly, agency action
on a decision is reviewable, subject to an abuse of discretion
standard, but the availability of review over the determination does
not alter the essentially discretionary nature of the determination .
Id
; Marathon Oil Co . v. IEPA, PCB No
. 92-166,1994 Ill
. ENV. LEXIS 488, * 18-19 (IPCB,
March 31, 1994) ("Whether an Agency hearing is to be held in an NPDES permit review is
discretionary with the Agency, as has been declared by the [Borg-Warner] court.")4
Accordingly, IEPA's decision to not grant ABC's request for a public hearing is reviewed for an
abuse of discretion
.
Under the abuse of discretion standard, an agency abuses its discretion when it makes a
decision "without employing conscientious judgment or when the decision is clearly against
logic ." Deen v. Lustig,
337 Ill
. App. 3d 294, 302, 785 N .E.2d
521, 529 (4th Dist . 2003) (citing
Bodine Electric of Champaign v . City of Champaign, 305 Ill App. 3d 431, 435, 711 N .E.2d
471,
474 (4th Dist. 1999) ("the question is whether .
. .
the court exceeded the bounds of reason and
ignored recognized principles of law so that substantial prejudice resulted .")) ; see also Whirlpool
Corp. v . Certain Underwriters at Lloyd's London, 295 Ill. App. 3d 828, 839, 692 N
.E.2d 1229,
1237 (1st Dist . 1998)
;
Modine Manufacturing Co. v. PCB, 192 Ill. App. 3d 511, 519, 548
4 The
Borg-Warner Court interpreted former Water Rule 909(a), the language of which was identical to 35 III
.
Adm
. Code 309 .115(a) . Accordingly, the Court was aware of the word "shall" in the regulation, upon which ABC
heavily relies in arguing for a nondiscretionary standard of review
. Despite the "shall" in the regulation, the Court
still ruled that IEPA's decision to hold a public hearing is reviewed for an abuse of discretion .
Borg-Warner, 100
III
. App . 3d at 867, 427 N .E.2d at 419
. Not surprisingly, ABC wholly ignores the Borg-Warner case .
7
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. Adm . Code 101 .2021
N .E.2d 1145, 1150 (2d Dist . 1989) (no abuse of discretion unless the agency acted "unreasonably
or arbitrarily .")
In an attempt to avoid the abuse of discretion standard of review, ABC completely
ignores the holding by the Borg-Warner Court. Instead, ABC relies on cases that do not even
involve a public hearing request, with the exception of one administrative case from West
Virginia (that is addressed separately below in section III) . Instead, the cases cited by ABC
address the standard of review for an agency's decision to issue a permit
. See Des Plaines River
Watershed Alliance v
. Illinois EPA, PCB No
. 04-88,2005 Ill
. ENV LEXIS 622, * 15 (IPCB, Nov
.
17, 2005) (applying the "substantial evidence" standard of review to agency's decision on
motion for summary judgment) . In fact, in an apparent oversight in reviewing their case law,
ABC actually cites a case from the Illinois Appellate Court that directly rejects their argument
that a substantial evidence standard of review is appropriate in this case .
See Finnerty v
.
Personnel Board of the City of Chicago, 303 Ill. App. 3d 1, 9-11, 707 N.E .2d 600, 606-08 (1
s`
Dist. 1999) (citing Basketfield v . Police Board, 56111. 2d 351, 358 (1974)) . Specifically, the
Finnerty Court held that the Illinois Supreme Court in Basketfield rejected the substantial
evidence standard of review for reviewing administrative decisions, and, therefore, the
Finnerty
Court found that it also had to reject such a standard of review. Id
. None of the cases cited by
ABC apply to this case or overcome the abuse of discretion standard that is clearly set forth in
Borg-Warner
and that governs the Board's review of IEPA's denial of ABC's public hearing
request.
B.
The relevant time period for reviewing IEPA's decision is limited to only the
comments submitted during the public notice period .
The Act provides that only issues raised during the public notice period for a proposed
NPDES permit can be the basis for a third party appeal of IEPA's issuance of a NPDES permit,
8
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. Adm . Code 101 .2021
and requires a third party petitioner to make "a demonstration that the petitioner raised the issues
contained within the petition during the public notice period . . ." 415 ILCS 5/40(e)(1)(A).
Moreover, 35 Ill . Adm. Code 309
.115(a)(2) provides that a request for a public hearing "shall be
filed with[in] the 30-day public comment period . . ." Under these two provisions, the only
issues that ABC can raise in this appeal are the issues that were stated during the public notice
period from December 19, 2004 to January 18, 2005 . R. 518
. Thus, the only issues that can be
raised on appeal are issues raised in two letters, the January 17, 2005 and January 18, 2005
comments, from five individuals who claim to represent the various organizations
. However,
except for the request for a public hearing, ABC did not raise in its Petition the other issues it
raised in its comments dated January 18, 2006, and those issues are not properly before the
Board.
As asserted in its Post-Hearing Brief, ABC not only submitted comments on January 18,
2005, but also submitted comments on October 3, 2005 and December 9, 2005
. These
comments, however, were received outside of the public notice period for the Proposed Permit
that ended on January 18, 2005 . R. 518 . Accordingly, IEPA justifiably disregarded these
comments under 415 ILCS 5/40(e) and 35 111 . Adm
. Code 309 .115(a)(2) . In fact, the Board has
already ruled on the issue of the scope of review for ABC's Petition, and dismissed all issues that
ABC did not raise during the public comment period . ABC v. IEPA, et al ., PCB 06-17 1, p
. 2
(Sept
. 21, 2006) (in ruling on ABC's Motion to Dismiss, the Board held that because the only
issue raised in the comment and contained in ABC's petition is the request for a public hearing,
"the issues contained in the petition, other than the issue concerning the request for a public
hearing, are improperly before the Board, and will be dismissed .")
. As a result, the ultimate
9
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. Code 101 .2021
inquiry on review is whether IEPA abused its discretion in denying ABC's public hearing
request based only on the issues raised in the January 17, 2005 and January 18, 2005 comments . s
II.
A public hearing will not affect IEPA's proper issuance of the Final Permit to
U. S.
Steel.
A.
There is no evidence that IEPA's issuance of the Final Permit fails to comply
with the Act or its attendant regulations
.
Under section 39(a) of the Act, "[w]hen the Board has by regulation required a permit for
the construction, installation, or operation of any type of facility . . . , the applicant shall apply to
the Agency for such 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 this Act or of regulations
hereunder ." 415 ILCS 5/39(a) . Under this section, U . S . Steel timely filed for a NPDES permit
and met its burden for the issuance of such a permit . Accordingly, IEPA was required to issue a
NPDES permit to U . S. Steel's Granite City Works facility because the discharges from the
facility would not cause a violation of the Act or its regulations .
ABC has failed to demonstrate that it would present any evidence at a requested public
hearing or that it raised any issue in the January 17, 2005 or January 18, 2005 comments that
would affect IEPA's issuance of the Final Permit to U . S. Steel. Neither the January 17, 2005
nor January 18, 2005 letters raise any issues alleging that any provision of the Act or any of its
attendant regulations would be violated if the proposed permit were issued, nor did the letter
assert that a public hearing was necessary to discuss even a potential for the regulated discharge
to exceed established water quality standards if the Final Permit were issued
. Instead, ABC only
stated that a public hearing should be ordered by IEPA "in order to allow citizens to ask
s It is for this reason that the extensively quoted testimony from the November 20, 2006 hearing on pages 6-8 of
Petitioner's Post-Hearing Brief, as well as numerous other factual assertions identified throughout the brief that are
inconsistent with the January 17, 2005 and January 18, 2005 comments should be disregarded in determining
whether IEPA abused its discretion in denying ABC's public hearing request
. In other words, [EPA did not have the
information presented at the November 20, 2006 hearing when IEPA made its decision
.
10
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. Adm . Code 101 .2021
questions and present information and testimony
." R. 539 ;
see also, R.
532 (HEJ comment only
states that "A public hearing would give citizens an opportunity to ask questions about the
permit, voice concerns, and hear explanations
.") Indeed, as was stated at the November 20, 2006
hearing, Horseshoe Lake has substantial diversity of wildlife as would indicate a satisfactory
habitat to support life . Trans
. 113-114
. That bio-diversity has apparently co-existed with the
Granite City steel mill for decades
. The permit in question is a renewal of a discharge permit for
U. S
. Steel's Granite City facility . R
. 135 .
Further, the January 18, 2005 letter clearly asks IEPA for the option of a public hearing
or a meeting with Agency staff
. R. 539
. Yet, ABC did not take advantage of two opportunities
it had to ask IEPA questions about the permit
. By not taking advantage of these opportunities to
be heard, ABC failed to demonstrate that a significant degree of public interest in the permit
existed, and that apparent lack of conviction supported IEPA's conclusion that it was not
reasonable to expect significant additional comments would be obtained if a hearing were held
.
There is no information in the record that ABC contacted Ms
. Burkard at IEPA to ask questions
about the permit, even though Ms
. Burkard's name and telephone number were on the Notice for
the Proposed Permit as the person to contact for further information
. R. 496, 518
. Additionally,
as discussed in more detail below, ABC cancelled a meeting that IEPA scheduled to discuss at
least the subsistence fishing issues that ABC raised in its comment
letter. SR. XX-XXIV
. ABC
could have asked that its other comments to be included
in that meeting and, indeed, ABC asked
that Frank Holten State Park be included on the meeting agenda
. R. 633, SR . XX
. In the end,
ABC has failed to show that IEPA abused is discretion in denying ABC's public hearing request
.
11
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. Adm
. Code 101 .2021
B.
ABC improperly raises issues for the first time in its post hearing
brief that
were not raised in either its comments or in its Petition for Review
.
ABC argues for the first time in its Post-Hearing Brief (Pet . Br., p. 14) that IEPA failed to
ensure that U. S
. Steel's discharges are in compliance with the narrative water quality standard
that provides that "Waters of the State shall be free from sludge or bottom deposits, floating
debris, visible oil, odor, plant or algal growth, color or turbidity of other than natural origin ." 35
Ill
. Adm. Code 302 .203 . This argument should be disregarded because it was not raised in either
the January 17, 2005 or January 18, 2005 comments during the public comment period . R. 532,
537-539. Nor was the issue raised in ABC's Petition . Thus, according to the Board's earlier
decision on U . S . Steel's and IEPA's Motions to Dismiss on September 21, 2006, because issues
involving narrative water quality standards were not raised during the public notice period, they
cannot be asserted now as part of ABC's Petition . See 415 ILCS 5/40(e); see also § Argument,
I .B., supra .
ABC also argues in its brief for the first time that U
. S
. Steel's Granite City facility
operates under a "central treatment exemption" that "allows it to discharge more zinc into
Horseshoe Lake than would otherwise be permitted by federal effluent guidelines
." Pet. Br., p.
13 . Again, this issue should be disregarded under 415 ILCS 5/40(e)
. Even if the issue were
properly raised during the public notice period, 6 ABC does not understand the central treatment
provision . This provision was approved in 1982 by the U .S. Environmental Protection Agency
("U.S. EPA") to exempt certain facilities from the technology based categorical treatment
requirements established for certain operations at steel mills . R. 627
. In 2002, U .S. EPA revised
its technology based effluent limitations guidelines and standards for wastewater discharges from
A
Also, this is not the proper forum for challenging this federal rule . 33 U .S
.C . § 1369 . Under Section 509 of the
federal Clean Water Act, 33 U .S.C . § 1369, appeals of effluent limitations guidelines and standards must be filed
with the federal Circuit Court of Appeals within 120 days of the effective date of the rule, which in this case was
November 18, 2002 . R. 626 .
12
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. Code 101 .2021
the iron and steel manufacturing category . As part of that rulemaking, U .S
. EPA decided to
continue this central treatment waiver provision for zinc
. R. 626-627. Although this waiver
provision does not require Granite City Works to follow the technology-based requirements in
40 C.F .R. 420 for zinc discharges, the provision does not allow U . S. Steel to violate water
quality standards . The concentration-based limit for zinc in U. S. Steel's permit is based on the
zinc water quality standard for Horseshoe Lake . R. 314, 341
.
ABC also argues in its brief that it is "troubling" that IEPA did not investigate Horseshoe
Lake sediments because the Proposed Permit allowed U . S. Steel "to discharge up to 4,380
pounds of zinc and 2,044 pounds of lead into the Lake each year ." Pet. Br.,
p . 12
. There are
critical flaws with ABC's arguments. First, like the narrative water quality standard and central
treatment provision arguments, ABC did not raise these issues in its January 18, 2005 letter, nor
did HEJ raise the issues in the January 17, 2005 letter . In fact, neither letter raised any concerns
with zinc, and to the extent any issues were raised in the Petition related to zinc or lead
discharges, the Board dismissed such issues on September 21, 2006 . Thus, the arguments related
to zinc are not properly raised now pursuant to 415 ILCS 5/40(e)(2), as zinc issues were never
before IEPA during the public notice period . R. 532, 537-539 . With respect to lead, ABC's
arguments, even if they had been properly raised, are without merit as U . S
. Steel does not use
lead in its process and the loading limits that appear on paper in the permit are calculated from
allowable levels in the federal standards at 40 C .F.R. 420 that apply to U. S . Steel's operations
.
R. 601 . Further, merely stating the total amount that a permit would allow to be discharged over
the course of a year does not address the central issue of whether U . S. Steel's discharges under
the Proposed and Final Permits violate water quality standards
. Again, ABC has not submitted
any evidence that shows that IEPA's issuance of the Final Permit will cause a violation of the
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. Code 101 .2021
Act or any regulation . ABC has not met its burden to prove that the Final Permit should not have
been issued
. Accordingly, IEPA's denial of ABC's public hearing request and issuance of the
Final Permit was not an abuse of discretion .
In addition, ABC charges for the first time in its brief that because U . S. Steel allegedly
failed chronic toxicity tests in the past, and because IEPA removed toxicity testing requirements
from the Proposed Permit before it issued the Final Permit, there is somehow a concern that
justifies a public hearing . Pet. Br., p. 15 . As with numerous other issues raised in its brief, this
issue was not raised during the public notice period, is not properly before the Board, and, thus,
should be disregarded. 415 ILCS 5140(e)(2). Assuming arguendo
that it is properly before the
Board, ABC's argument is factually incorrect . Numerous results of whole effluent toxicity tests
are in the record. See R. 1-3, R . 65-89, R. 156-252, R
. 272-273 . Of the eight acute toxicity tests
that were performed, none of them determined that the effluent was toxic, even at 100% effluent
concentrations . Id. The chronic test that ABC is referring to was a study that compared the
growth rate of green algae (selenastrum capricornutum) in Granite City Works' effluent to its
growth in water from Horseshoe Lake . R. 156
. Initially, this study found that the algae did not
grow
as well in the effluent as it did in water from Horseshoe Lake. R. 157, 158, 168
. Given
that Horseshoe Lake is impaired for nutrients and excessive algae growth (R
. 519) the possibility
exists that the difference in growth rates was attributable to higher nutrient levels in the lake
water. Further, a repeat of this test determined that "The effluent sample was not chronically
toxic to [green algae] at all concentrations tested ." R. 158 . ABC failed to mention in its brief
that the same report included chronic toxicity tests on daphnia
(Ceriodaphnia dubia) and fathead
' ABC also raises in its comment letter that "Granite City Steel
. . . would be allowed to put additional ammonia
into the lake ." R. 537 . However, the record is clear that the limits for ammonia were set at levels protective of the
new water quality standards for Horseshoe Lake . R
. 545, 508-509 . Further, ammonia degrades in the environment .
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minnows, and concluded that "The effluent samples were not chronically toxic to
Ceriodaphnia
dubia through the 100 percent concentration ." R
. 158 . In addition, "The effluent samples were
not chronically toxic to fathead minnows through the 100 percent concentration
." R. 158, 170 .
However, the growth rate of fathead minnows was reduced at the 100 percent effluent
concentration level, but was not significantly reduced at the other effluent contractions tested. R.
157. When reviewing the permit application, IEPA analyzed the tests of the effluent toxicity and
found that "A review of recent whole effluent toxicity test results found that no acute toxicity
was present in the effluent ." R. 478 . Thus, IEPA concluded that "This significantly reduced the
burden of toxicity testing," and only required Acute Toxicity Screening for
Ceriodaphnia and
fathead minnow . R. 478-479. Accordingly, this issue was properly considered by IEPA, and
resulted in the testing being taken out of the Final Permit .
ABC has not been able to point to any evidence that suggests that IEPA violated the Act
or its regulations in issuing the Final Permit, or that a public hearing could reasonably be
expected to assist IEPA in identifying, evaluating or resolving any such potential violation .
Accordingly, IEPA did not abuse its discretion in denying ABC's public hearing request
.
C.
ABC failed to present any evidence of public interest specific to the Proposed
Permit.
The regulations at 35 Ill . Adm. Code 309 .115(a)(1) provide that IEPA "shall hold a
public hearing on the issuance . . . of an NPDES Permit . . . whenever the Agency determines
that there exists a significant degree of public interest
in the proposed permit . . ." (emphasis
added) . In other words, ABC must demonstrate that the public interest is not generally in
Horseshoe Lake or some other aspect of IEPA's regulation of discharges to Horseshoe Lake, but
the interest must be specific to the NPDES permit proposed by IEPA to be issued to U . S
. Steel's
Granite City Works.
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Again, in the January 17, 2005 and January 18, 2005 comments, there is no evidence that
the issuance of a NPDES permit to U . S
. Steel would be improper or in violation of the Act or
any applicable regulatory standards . Instead, the comments discuss issues unrelated to the
Proposed Permit. For instance, the January 17, 2005 comment states that discharges of lead from
the Granite City Works facility over a period of years "would add up to hundreds of pounds and
may have a serious detrimental effect on organisms living in the lake ." R. 532 . HEJ, however,
was unable to state that the alleged lead discharges would violate any water quality standard or
other regulation, such that the discharges under the Proposed Permit limits would be illegal
.
Contrary to the implications of the comments and as noted elsewhere, U . S. Steel does not use
lead in its processes . R. 601 . HEJ failed to provide evidence to support its contention about lead
discharges to the Lake and failed to identify any such evidence that could reasonably be expected
if a public hearing were held. In other words, the comment may involve an issue with regard to
Horseshoe Lake generally, but it does not address any particular provision in the Proposed
Permit, or indicate that a hearing on the subject could reasonably be expected to illicit relevant
information
. Accordingly, ABC cannot demonstrate that the January 17, 2005 comment shows
that there was a public interest that was particularly connected to the Proposed Permit
. Thus,
IEPA did not abuse its discretion by failing to provide a public hearing on this issue .
At the hearing and in its brief, ABC and its witnesses spent a considerable amount of
time testifying that many people use Horseshoe Lake State Park and that the ecosystem has a
diversity of habitat . Trans. 113-114 . ("It is a fantastic place for all different types of birds
because it has a variety of habitat. . . . It's a good place to look at butterflies, for the same reason
it's got a diversity of habitat.")
Yet ABC ignores the fact that the steel mill now owned by U . S .
Steel has operated under previous NPDES permits and that the NPDES permit at issue is merely
16
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a renewal of an existing permit that essentially maintains the status quo . R. 135 . 8 In fact, the
water discharged by Granite City Works helps to keep the lake from drying up during periods of
drought and thus, helps maintain critical habitat. R . 600. ("The Department [of Conservation]
finds the discharge beneficial ; it sustains a constant normal pool for the lake
. Without it, this
would not be the case. . . .")
Similarly, the January 18, 2005 letter states that Horseshoe Lake is impaired for various
pollutants . That issue, however, is properly addressed through the section 303(d) process related
to impaired waters and the development of a total maximum daily load under section 303(d) of
the federal Clean Water Act, and not during the NPDES permitting process for individual
permits
. ABC is aware of that fact, as Ms . Andria from ABC was actively involved in the
section 303(d) listing process for Horseshoe Lake, and attended a public hearing regarding
303(d) listed water bodies that addressed the impairment of Horseshoe Lake . Trans
. 56, 84 ; SR.
X
. ("As a final note, it should be mentioned that the American Bottom Conservancy did
participate in a recent hearing regarding 303(d) listed water bodies and did make specific
comments regarding Horseshoe Lake
.") As stated in section V, infra, ABC had numerous
opportunities for their concerns to be heard by IEPA, yet it was ABC that failed to take
advantage of those opportunities .
The January 18, 2005 letter also raises the compliance history of the Granite City Works
facility with its permit limits by citing information from an U .S
. EPA Enforcement and
Compliance Online (ECHO) report
. This issue, however, is not a permitting issue, but involves
e The permit limits in the renewal permit increased for lead, zinc and ammonia because the load limits for lead and
zinc are based on the federal categorical limits at 40 C
.F.R. 420, which are production-based and because the
ammonia water quality standard in Horseshoe Lake changed . R. 601
. It should also be noted that the concentration-
based limits were set to meet the water quality standards for Horseshoe Lake
. See Correspondence from Alan Keller
at IEPA, dated April 10, 2006 (as attached to ABC's First Motion to Supplement the Record), p
. 3 ("the Agency has
concluded that the NPDES permit issued March 31, 2006 is protective of water quality
. . .") ; see also, id., pp . 2-5 .
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IEPA's enforcement of permit limits and was being addressed under relevant enforcement
mechanisms . R. 604
. ("The IEPA and US EPA have monitored the compliance and have taken
appropriate actions in response to permit exceedences
.") Further, the information in the ECHO
report can be misleading because a single exceedence in a grab sample or 24-hour composite
sample during a quarter appears in the ECHO report as a violation for the quarter
. R. 556, 604 .
A person who is not familiar with the report or does not investigate further could end up with the
misimpression that a facility with a violation in a single sample for a single parameter was out of
compliance for the whole quarter . If ABC has an issue with IEPA's enforcement of NPDES
permit limits, such an issue should be taken up with IEPA's enforcement division, and not
IEPA's NPDES permit writer .
In addition, ABC argues that IEPA should have held a public hearing because fish were
allegedly caught with melanoma in Horseshoe Lake . Pet . Br., p. 14-15 . This argument should
be rejected because it is based on speculation, not admissible evidence
. Specifically, the January
18, 2005. letter stated that "We have seen fish caught at Horseshoe Lake with melanoma . An
IDNR fish biologist confirmed fish with melanoma at Horseshoe ." R. 537 . U. S . Steel provided
a comment on this issue, which IEPA considered
. R
. 603 ("US Steel feels the fish with
melanoma statement to be anecdotal .") IEPA then analyzed the issue, but found ABC's
statement to be inconclusive
. Id.
("More information is needed on the fish with melanoma issue
- was this reported as part of an IDNR study, or did one fish appear with melanoma, and was
confirmed by an IDNR fish biologist?") IEPA's response to ABC's vague comment was entirely
appropriate, and IEPA did not abuse its discretion in not using ABC's comment to hold a public
hearing. There is no evidence in the record of any specific finding of fish . in Horseshoe Lake
with melanoma . More importantly, there is no evidence that U . S . Steel's discharges cause
18
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101 .2021
melanoma in fish in Horseshoe Lake . No expert or scientific testimony was submitted during the
public comment period or at the November 20, 2006 hearing that would make such a connection .
ABC's argument is based on nothing other than conjecture that U . S
. Steel is responsible for a
problem that may or may not exist in the fish in Horseshoe Lake . In other words, ABC failed to
submit any evidence that could reasonably be expected to be presented if a public hearing were
held that (1) fish in Horseshoe Lake have a higher incidence of melanoma than other fish or (2)
there is any connection between the alleged melanoma in fish and U . S . Steel's effluent
. ABC's
unsubstantiated comments are not sufficient to determine that IEPA should have held a public
hearing to receive comments on the issue
. Because ABC did not establish that there was an
increased rate of melanoma in Horseshoe Lake and could not connect its alleged observations of
melanoma with the Proposed Permit, IEPA did not abuse its discretion in finding that there was
no significant public interest specific to the Proposed Permit
.
ABC's comment letter also charged that "Canteen Lake, which is part of the same lake,
but privately owned, tested high in cadmium ." R. 537. Again, this comment would not have
affected the issuance of U . S
. Steel's permit as cadmium was not detected by the facility in its
effluent samples, "nor was any [cadmium] in 19 Agency samples
." R. 342 . The Agency
concluded "that no regulation of cadmium is necessary and that no monitoring beyond the
routine requirements is needed ." Id. This lack of connection between ABC's comments and U
.
S. Steel's permit further documents that IEPA did not abuse its discretion by not holding a public
hearing on the draft permit .
D.
ABC improperly attempts to shift the burden of proof for establishing a
significant degree of public interest .
ABC argues that because it stated in the January 18, 2005 letter that Professor Brugam
had studied bottom sediments in Horseshoe Lake, and because IEPA did not sufficiently
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investigate Brugam's studies, IEPA was required to hold a public hearing to resolve the issue .
Pet. Br ., p. 11 . This argument is wrong
. First, ABC implies that it was IEPA's burden to
analyze Brugam's studies, and that TEPA failed to "visit a library to obtain the study . . ." or
"pick up a phone and talk with Professor Brugam
." Id. As the Borg-Warner case clearly states,
"the party requesting a public hearing has the burden of showing why it is warranted
." Borg-
Warner, 100 Ill . App . 3d at 867, 427 N .E.2d at 419 . Thus, it was ABC's burden to visit a library
to obtain Brugam's study to send to TEPA, or to communicate the substance of Brugam's study
to TEPA . ABC even admitted in its January 18, 2005 letter "that the studies had been obtained
only recently and had not been reviewed thoroughly by the commentors ." Pet. Br., p. 11
(emphasis added). This begs the question, why did ABC withhold the Brugam studies instead of
simply submitting them to IEPA if they were critical to addressing the Proposed Permit? ABC
does not have an answer for that question, and instead tries to pawn its error off on IEPA, who in
fact attempted to analyze the study by downloading an abstract of a study from the Internet, even
though "The commentors did not provide a copy of the study, and thus it is not possible to know
the nature of the study ." R. 604.9 IEPA properly analyzed the issue with the information that
was provided to it during the public notice period . Any lack of information that was not before
IEPA was ABC's own doing . Perhaps the reason that ABC did not provide a copy of the study is
that ABC knew that Brugam concluded that the source of the lead sediments was the lead
smelters in the area and particularly NL Industries . Indeed, during the hearing Ms
. Andria stated
ABC also argues that U. S . Steel's use of the Brugam studies "was a clear attempt to distort the record
." Pet . Br.,
p . 12, fn. 4 . Tellingly, ABC does not explain why U . S . Steel's use of the Brugam studies
is a distortion of the
record
. ABC ignores that it was the party that raised the issues of Brugam's studies in its public comments in the
first place. R. 537 . By opening the door to a discussion on Brugam's studies, U . S
. Steel inquired at the
November 20, 2006 hearing about some of the particulars of the studies
. Trans. 77-83 . Merely asking ABC's
representative, Kathy Andria, questions about the finding in the studies that ABC referenced in the January
18, 2005
letter can hardly be characterized as a distortion of the record . Instead, U . S
. Steel was making an appropriate
inquiry into relevant evidence .
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"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 ." Trans
. 82
. NL Industries is a Superfund site due to lead
contamination . Trans . 78 . Accordingly, IEPA did not abuse its discretion in not holding a public
hearing as a result of any information that ABC submitted in its January 18, 2005 letter regarding
Professor Brugam's studies .
III.
ABC failed to demonstrate a significant degree of public interest
.
Again, according to 35 Ill . Adm. Code 309 .115(a)(1), IEPA will hold a public hearing if
it determines "that there is a significant degree of public interest in the proposed permit . . ." In
determining the statutory meaning of the words "significant degree of public interest," the words
are to be applied according to their plain and ordinary meaning . People v. Whitney, 188 Ill . 2d
91, 97, 720 N.E.2d 225, 228 (I11. 1999) ("The language of a statute is the best means of
determining legislative intent . The statutory language should be given its plain and ordinary
meaning.") (citation omitted) . The plain meaning of the word "public" is "of, relating to, or
affecting all the people or the whole area of a nation or state ." Merriam-Webster Online
Dictionary, <http ://www.m-w.com/dictionary/publi c> (as of Dec. 12, 2006) . ABC has not made
the required showing that there was a significant interest from all the people that use Horseshoe
Lake, such that IEPA abused its discretion in denying ABC's request .
Only two requests were made for a public hearing
. The first was in HEJ's January 17,
2005 comment. R. 532 . Although it submitted a public hearing request in that comment, HEJ
did not deem its interest sufficiently significant to file a Petition for Review of IEPA's denial of
HEJ's public hearing request. Trans. at 147
. Moreover, the January 17, 2005 letter does not
identify one person from the public who would potentially desire to be involved in a public
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hearing, but only speculates that a public hearing would give unnamed "citizens an opportunity
to ask questions about the permit, voice concerns, and hear explanations ." R. 532 .
The other public hearing request of January 18, 2005 was purportedly submitted on
behalf of multiple organizations . R. 537-539
. However, the January 18, 2005 letter appears to
have been written by Kathy Andria, with representatives of other organizations only commenting
on Ms
. Andria's letter and allowing their names to be added to the signature block . Trans . 97-
98 ; Trans. 145 (Representative of HEJ "submitted" January 17, 2005 letter and only "signed
onto" January 18, 2005 letter) ; Trans. 119 (Representative of Webster Groves Nature Study
Society did not participate in the drafting of the January 18, 2005 letter and did not have any
independent knowledge of the water issues in the letter) . Indeed, the Sierra Club's representative
at the November 20, 2006 hearing did not even read the January 18, 2005 letter until a week
before her deposition was taken on November 6, 2006 . Trans. 132 . 10 Two of the individuals
whose names appear on the January 18, 2005 letter (Kathleen O'Keefe and Jack Norman) did not
even testify at the November 20, 2006 hearing as to their participation preparing the letter
.
Moreover, only ABC deemed IEPA's denial of the public hearing request sufficiently important
to appeal IEPA's denial of the public hearing request, with HEJ, Neighborhood Law Office, East
St
. Louis, Sierra Club, and Webster Groves Nature Study Society all declining to file Petitions
for Review.
In support of its argument that it demonstrated a significant degree of public interest,
ABC cites the West Virginia case of Queen v. Div. of Envtl. Prot.,
Appeal No. 621, 1996 W . Va.
ENV LEXIS 23 (WVEQB, Aug . 13, 1996). A review of the Queen
case outlines the substantial
10
Three members of the public testified at the hearing on November 20, 2006
: Robert Johnson (Trans . 101-107);
Cathy Copley (Trans . 107-108), and Jason Warner (Trans . 140-143)
. None of these individuals, however, submitted
comments or information to IEPA during the public notice period from December 19, 2004 to January 18, 2005
.
Trans . 104 (Mr
. Johnson admitted that he did not submit any comments on the Proposed or Final Permit
.)
Accordingly, none of the comments can be used to support ABC's claim for a public hearing
.
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burden that ABC faces in this case. In the Queen case, in stark contrast to the two requests for a
public hearing in the instant case, the appellant presented evidence that an overwhelming number
of 57 requests for a public hearing were submitted, as well as evidence of procedural deficiencies
by the agency in failing to notify interested persons of the opportunity for a public hearing and
carrying out the requests . Queen, 1996 W. Va. ENV LEXIS 23, at *5-6 . Here, there is no
evidence that IEPA failed to comply with its procedural obligations in giving notice of the
Proposed Permit or that the public could request a public hearing . Moreover, the Queen case
stated that "when there are large numbers of requests for a public hearing, the Chief should be
cognizant that there may be a real need for a hearing ." Id
at *6. In the case at bar, there were
not numerous requests for a public hearing
. There were only two requests for a public hearing,
making it well within IEPA's discretion to find that there was not a significant degree of public
interest .
ABC attempts to avoid its lack of evidence of public interest by stating that ABC and the
other organizations that allegedly signed"t the January 18, 2005 letter represent "thousands of
members." Pet
. Br., pp . 8-10. This argument is misleading . First, none of the information stated
in pages 8-10 regarding the number of members of the organizations was provided to IEPA
during the public notice period in the January 17, 2006 or January 18, 2006 comments
. Because
the information was never properly before IEPA, it should be disregarded by the Board
. See 415
ILCS 5/40(e)(2)
. Moreover, ABC ignores the fact that only five individual representatives were
listed on the January 18, 2005 letter, and that no other individual members of the organizations
were identified or submitted separate public hearing requests . Secondly, ABC did not present
"
Although ABC has argued that the January 18, 2005 letter was signed by ABC, Sierra Club, Webster Groves
Nature Study Society, HEJ, and the Neighborhood
Law Office, no letter was ever submitted to IEPA that was
actually signed by a representative of any of the organizations
.
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. Adm. Code 101 .2021
any evidence that it asked its membership whether members were interested in a public hearing
.
More tellingly, not one member of the public, independent of any private organization, submitted
a comment, or was identified in the organizations' comments as wanting to attend a potential
public hearing . R
. 532, 537-539
. In addition, even if the Board accepts ABC's analysis that all
of the members of the organizations can be counted as making a request for a public hearing (i
.e.,
approximately 27,000 members requested a public hearing), then it follows that only
"approximately 100" of those members (ABC's members) deemed the denial of the public
hearing request sufficiently important to appeal to the Board
. Pet . Br.,
pp. 9-10. In other words,
less than one percent (0
.4%) of the members whose public hearing requests were denied actually
deemed the denial sufficiently important to file an appeal of IEPA's decision
.
Finally, ABC argues that "The organizations chose to express their interest in the U
. S
.
Steel permit by submitting group comment letters rather than asking their members to send in
numerous individual comments ." Pet
. Br., p. 10
. This statement should be ignored, as ABC fails
to cite the Administrative Record, the transcript from the November 20, 2006 hearing, or any
other evidence in support of this statement
. Without any evidentiary support, such a factual
assertion cannot be properly made, and that lack of support requires that such an unfounded
statement be ignored.
In the end, ABC has failed to demonstrate that IEPA abused its discretion in denying
ABC's public hearing request
. At the November 20, 2006 hearing, multiple witnesses admitted
that the January 17, 2005 and January 18, 2005 comments did not identify any individual of the
public who would be adversely affected by U
. S
. Steel's Permit . Trans. 135, 146
. Nor do either
of the comments identify any individual of the public that would have an interest in attending a
public hearing
. R. 532, 537-539
. ABC has only been able to demonstrate that it alone would be
24
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. Code 101 .2021
interested in a public hearing, which is insufficient to show that IEPA abused its discretion in
denying ABC's public hearing request .
IV.
IEPA did not commit any procedural error and did not abuse its discretion in
denying ABC's public hearing request .
ABC argues that "IEPA's failure to provide an explanation for its decision not to hold a
public hearing violates administrative law principles requiring agencies to offer a rationale for
their decisions ." Pet. Br., p . 16
. This argument is incorrect and should be denied . 12 In assessing
whether it should hold a public hearing, as it did in this case, IEPA can only assess one criteria :
whether "there exists a significant degree of public interest in the proposed permit
. . . to warrant
the holding of such a hearing ." 35 Ill . Adm. Code 309 .115(a)(1) . If IEPA decides to hold a
public hearing, it follows that IEPA found a significant degree of public interest during the
public notice period
. If IEPA decides not to hold a public hearing, as it did in this case, there is
only one reason why it could have made such a decision
: it did not find that a significant degree
of public interest in the permit was demonstrated during the public notice period . Under the
singularly-focused inquiry under 35 Ill. Adm. Code 309
.115(a)(1), IEPA could not have denied a
public hearing for any other reason than the fact that it did not find there was a significant degree
of public interest . For ABC to now claim that it does not know the reason why its public hearing
request was denied is disingenuous and ignores the straightforward analysis that IEPA is
obligated to apply under 35 Ill . Adm. Code 309 .115(a)(1)
. As a result, ABC is well aware that
the explanation for why IEPA denied its public hearing request is that IEPA did not find that a
12
In this same vein, ABC also argues that "IEPA badly misconstrued the standard for a public hearing in the public
notice for the permit" as an abuse of discretion because "The regulation actually states that IEPA `shall' hold a
public hearing if it finds a significant degree of public interest
." Pet. Br., p. 18. As stated in § Argument, LA .,
supra, the Borg-Warner Court has foreclosed any interpretation of the standard
of review of IEPA's decisions under
35 Ill . Adm. Code 309 .115(a)(1) is anything other than an abuse
of discretion . Accordingly, IEPA did not
misconstrue the standard for assessing whether to hold a public hearing .
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101 .202
significant degree of public interest in the permit was demonstrated during the public notice
period. IEPA did not abuse its discretion in denying the ABC's request for a public hearing
. 13
V .
ABC was not denied a forum for resolving its concerns with Horseshoe Lake
.
ABC did not take advantage of the numerous opportunities it had to ask IEPA questions
about the Proposed and Final Permits . In its January 18, 2005 letter, ABC stated that IEPA
should hold a public hearing for the purpose of allowing "citizens to ask questions and present
information and testimony
." R
. 539
. Although IEPA denied that request for a public hearing,
ABC had numerous opportunities to raise the issues that were stated in its January 18, 2005 letter
to IEPA. As an initial matter, the Notice for the Proposed Permit provided the name and
telephone number of an IEPA employee who could be contacted with questions
. The Proposed
Permit provided "For further information, please call Beth M . Burkard [at IEPA]" R . 518 . This
opportunity for asking questions was not limited to the 30-day public notice period, and ABC
could have called Ms . Burkard at any time prior to the issuance of the Final Permit
. Id.
However, there is nothing in the Record to show that Ms . Andria attempted to reach Ms
.
Burkard.
Moreover, IEPA considered ABC's comments where it requested a public hearing or, in
the alternative, a meeting with ABC and IEPA, and decided to schedule a meeting with ABC to
address its January 18, 2005 comments . This decision was entirely consistent with ABC's
request which stated, "If [IEPA denies] this request for a hearing, we ask for a meeting with you
and your staff. . ." R. 539. Specifically, on February 27, 2006, IEPA stated in an email from
Marcia Wilhite, Director of IEPA's Bureau of Water, to Doug Scott, Director of IEPA, that the
13 If the Board is inclined to accept ABC's argument regarding IEPA's purported lack of explanation for its denial of
ABC's public hearing request, the proper remedy is only to remand for IEPA to provide a written explanation of its
denial, as that is the only procedural defect that ABC complains is lacking .
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. Code 101 .202[
Agency had received ABC's public hearing request and that it "would like to move forward to
issue the permit and recommend that a meeting with the environmental group be held instead of
a public hearing ." SR
. XII. IEPA further provided in the email that
American Bottoms [sic] Conservancy (Kathy Andria, principal)
requested the hearing due to concerns about increased loading of
pollutants to Horseshoe Lake . There will be no actual increase in
loading--the limits in the draft renewal permit are different than the
previous permit for reasons that are easily explained
.
Since hearings are held at the discretion of the Director, I'm asking
if you would be comfortable with us denying the hearing request,
but having a meeting and issuing the permit as quickly as possible .
Id. The IEPA Director subsequently decided to issue the Final Permit and meet with Ms . Andria
.
SR. XIII . IEPA then scheduled a meeting with ABC through Kathy Andria for March 15, 2006 .
SR
. XV ("There will be a meeting at the Agency on March 15 th with Kathy Andria to discuss
Horseshoe Lake, Frank Holten State Park and issues regarding the Granite City Steel NPDES
permit .") The Interdisciplinary Environmental Clinic at Washington University in St
. Louis,
who is representing ABC in this appeal, then confirmed that the meeting would be going forward
with one of their representatives being
present
. SR
. XVIII. On March 14, 2006, however, Kathy
Andria unilaterally cancelled the March 15, 2006 meeting with IEPA. SR. XX-XXIV
. That
meeting was never rescheduled . Since ABC's letter of January 18, 2006 asked for a meeting if a
hearing was not held, ABC waived its right to either a hearing or a meeting when its
representatives cancelled the meeting .
Finally, IEPA also found that "it should be mentioned that the American Bottoms [sic]
Conservancy did participate in a recent hearing regarding 303(d) listed water bodies and did
make specific comments regarding Horseshoe Lake ." SR. X. At the November 20, 2006
hearing, Ms
. Andria confirmed that ABC participated in a meeting regarding the 303(d) list that
involved the impairment of Horseshoe Lake . Trans . 84. Again, ABC had a forum for addressing
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. Code 101 .2021
the same issues that it presented in its January 18, 2005 letter at a meeting involving Horseshoe
Lake as a 303(d) listed water body
. R. 537 ("Horseshoe Lake is impaired
.") Because of the
numerous opportunities for ABC to present its concerns about Horseshoe Lake, IEPA did not
abuse its discretion in denying ABC's public hearing request .
CONCLUSION
For the foregoing reasons, U . S
. Steel requests that ABC's Petition for Review and
request for a public hearing to IEPA be denied, and that the Board grant all relief it deems fair
and just.
Dated: December 18, 2006
Respectfully submitted,
U.S. Steel Corporation - Granite City Works
Carolyn S . Hesse
David T. Ballard
Barnes & Thornburg LLP
One North Wacker Drive - Suite 4400
Chicago, Illinois 60606
(312) 357-1313
CHD501 DTB 366966W
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. Adm . Code 101 .2021
CHD501 DTB 370790v1
THIS FILING IS SUBMITTED ON RECYCLED PAPER
2
CERTIFICATE OF SERVICE
I, the undersigned, anon-attorney, certify, under penalties pursuant to 735 ILCS 5/1-109,
that I caused to be served the attached,
UNITED STATES STEEL CORPORATION'S
POST-HEARING BRIEF, via electronic transmission, on this 18th day of December, 2006,
upon the following :
Sanjay K . Sofat
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P .O. Box 19276
Springfield, IL 62794-9276
sanjay.sofat@epa .state .il
.us
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, IL 62794-9274
webbc@ipcb.state.il .us
Edward J. Heisel
Interdisciplinary Environmental Clinic
Washington University School of Law
One Brookings Drive
Campus Box 1120
St. Louis, MO 63130-4899
ejheisel@wulaw.wustl .edu
