ORIGI~I~L
4
RECEIVED
EFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'S OFFICE
JAN
1
72007
AMERICAN BOTTOM CONSERVANCY
)
STATE
OnControl
Board
Petitioner,
V .
)
PCB 06-171
(3 d Party NPDES Permit
Appeal)
Respondents .
)
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY and UNITED STATES STEEL
CORPORATION
- GRANITE CITY WORKS,
NOTICE OF FILING
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R
. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 N . Grand Ave . East
P
.O . Box 19274
Springfield, IL 62794-9274
w ebbc@ipcb.state .il .us
PLEASE TAKE NOTICE
that I have today filed with the Office of the Clerk of the
Pollution Control Board an original of the
Motion For LeaveTo File Post-Hearing Brief
Instanter and Post-Hearing Brief
of the Illinois Environmental Protection Agency, a copy of
which is herewith served upon you .
ILLINOIS ENVIRONME
TATPROTECTION
AGENCY
BySanjay
: K
. Sofat
%-
aL
Assistant Counsel
Division of Legal Counsel
Dated : January 12, 2007
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
s anjay .sofat@illinois .gov
Edward J . Heisel
Interdisciplinary Environmental Clinic
Washington University School of Law
One Brookings Drive, Campus Box 1120
St. Louis, MO 63130-4899
eiheisel@wulaw .wustl.edu
Carolyn S . Hesse
Erika K. Powers
David T. Ballard
Barnes & Thomburg LLP
One North Wacker Drive, Suite 4400
Chicago, IL 60606
carolyn .hesse@btlaw .co m
THIS FILING PRINTED ON RECYCLED PAPER
I
BEFORE
OR
THE
IGINAL
ILLINOIS POLLUTION CONTROL BOA
RECEIVED
'S OFFICE
JAN 1 7 200?
AMERICAN BOTTOM CONSERVANCY
)
Pollution
STATE OFControl
ILLINOIS
Board
Petitioner,
)
v.
)
PC13 06-171
(3rd Party NPDES
Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and UNITED STATES STEEL
)
CORPORATION
-
GRANITE CITY WORKS,
)
Respondents .
)
MOTION FOR LEAVE TO FILE AGENCY'S BRIEF INSTANTER
NOW COMES the Respondent, Illinois Environmental Protection Agency
("Illinois EPA" or "Agency") by and through its attorney, Sanjay K
. Sofat, Assistant
Counsel and Special Assistant Attorney General, moves the Illinois Pollution Control
Board ("Illinois PCB") to allow the filing of the Agency's Post-Hearing brief in the
above matter
. In support thereof, the Illinois EPA states as follows :
1 .
In the November 22, 2006 order, the Hearing Officer Carol Webb directed
that Respondents' briefs are due on December 18, 2006 .
2 .
On December 18, 2006, the Agency filed its Post-Hearing brief via
electronic mail with the Hearing Officer, American Bottom Conservancy,
and United States Steel Corporation - Granite City Works . See
Attachment I .
3 .
The undersigned attorney misunderstood the Hearing Officer's
instructions at the Board hearing and did not file the Agency brief with the
Clerk.
4.
On January 11, 2007, the assigned attorney was apprised that the
Agency's Post-Hearing brief is not on the Board's docket file
.
2
5.
On January 11, 2007, the undersigned attorney contacted the attorneys for
American Bottom Conservancy and United States Steel Corporation .
6.
Both attorneys stated that they have no objection to the Agency's motion
for leave to file Post-Hearing brief instanter .
7.
No harm will result to American Bottom Conservancy or United States
Steel Corporation as, via electronic mail, they have received the Agency's
Post-hearing brief on the due date, December 18, 2006 .
Therefore, the Illinois EPA moves the Board to allow the filing of the Agency's Post-
Hearing brief instanter .
Respectfully Submitted
Dated : January 12, 2007
Illinois Environmental Protection Agency
1021 N . Grand Ave . East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
Sanjav.sofatgillinois .gov
Sanjay K . Sofat
Assistant Counsel
Division of Legal Counsel
3
Attachment I
Mail Envelope Properties
(45872765 .BB3 : 23 : 62072)
Subject :
Re
: PCB 06-171, ABC v IEPA and USS - Post-Hearing Brief
Creation Date
12/18/2006 5
:42 :29 PM
From:
Sanjay Sofat
Created By :
Saniay.Sofat(c4illinois.gov
Recipients
Action
btlaw.com
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CAROLYN.HESSE
CC (CAROLYN .HESSE(a-),btlaw .com)
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&
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12/18/2006 5 :43:34
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ipcb .state.il
.us
PM
sudmanc (Carol Webb)
wulaw .wustl .edu
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Post Office
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O R i J
1 I v
46RE THE ILLINOIS POLLUTION CONTROL BOARS ELEcEIVEOFFICE
AMERICAN BOTTOM CONSERVANCY
Petitioner,
V .
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY and UNITED STATES STEEL
CORPORATION - GRANITE CITY WORKS,
Respondents .
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
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 N . Grand Ave . East
P.O. Box 19274
Springfield, IL 62794-9274
webbc@ipcb.state.il.us
Carolyn S
. Hesse
Erika K. Powers
David T. Ballard
Barnes & Thornburg LLP
One North Wacker Drive, Suite 4400
Chicago, IL 60606
carolyn.hesse@btlaw.com
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
Pollution Control Board an original of the Post-HearingBrief of the Illinois Environmental
Protection Agency, a copy of which is herewith served upon you .
ILLINOIS ENVIIt_~~ON AGENCY
By:
Sanjay K
. Sofat
Assistant Counsel
Division of Legal Counsel
NOTICE OF FILING
Dated December 18, 2006
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
sanjay
.sofatAillinois
.gov
THIS FILING PRINTED ON RECYCLED PAPER
JAN 1 7 2007
Pollution
STATE OF
Control
ILLINOISBoard
PCB 06-171
(3'a
Party NPDES Permit
Appeal)
I
I
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AMERICAN BOTTOM CONSERVANCY
)
Petitioner,
)
v.
)
PCB 06-171
(3rd Party NPPES
Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and UNITED STATES STEEL
)
CORPORATION - GRANITE CITY WORKS,
)
i
Respondents .
)
POST-HEARING BRIEF IN SUPPORT OF AGENCY'S RESPONSE $O
PETITIONERS' THIRD-PARTY PERMIT APPEAL
NOW COMES the Respondent, Illinois Environmental Protection Agency
("Illinois EPA" or "Agency") by and through its attorney, Sanjay K
. Sofat, Assistant
Counsel and Special Assistant Attorney General, pursuant to the Hearing OffcerlOrder
dated November 22, 2006, hereby submits this brief in response to American Botitom
Conservancy (hereinafter "ABC" or "Petitioners") third party National Pollution!
I
Discharge Elimination System ("NPDES") permit appealt
t
Pursuant to Section 40(e) of the Illinois Environmental Protection Act
("Act"),
i
ABC has the burden of proof
. ABC thus must prove that at the close of the comment
period on January 18, 2005, the Agency record contained substantial evidence toy show
that a significant degree of public interest existed in the proposed permit
. As the,
Agency's decision to hold a hearing under Section 309
.115 (35 111
. Adm. Code 3;09.115)
of the Illinois Pollution Control Board (`Board") regulations is discretionary, ABC also
2
I
must prove that the Agency's decision to not grant a hearing in this case was clearly
erroneous or was an abuse of discretion
. In support, the Agency argues the following
:
I. RELEVANT FACTS
On October 17, 2002, the Agency received United States Steel City Works' ("US
Steel") request to renew its NPDES permit that was expiring on April 30, 2003 . (Agency
Record hereinafter "Record" at 135-155.)
On May 23, 2003, permit engineer UkannoI
Foxworth began the review of US Steel's renewal application
. From May 23, 2003-
December 17, 2003, Mr
. Foxworth requested additional information from the app}icant as
well as
a water quality standards evaluation from the Standards Unit at the Agency
.
Record at 261-271
; 371-373
. In February 2004, permit engineer Mr
. Foxworth left the
Bureau of Water.
i
In July of 2004, permit engineer Beth Burkard was assigned to work on U$
Steel's renewal application
. From July- November 2004, Ms . Burkard met with
II S Steel
to discuss permit renewal issues, conducted a site visit, prepared permit review n Ites,
responded to US Steel's NPDES permit renewal issues, and evaluated the draft p Irmit
.
Record
at 423 ; 431 ; 433-440; 477
; and 489-491 .
On November 4, 2004, the Agency issued a 15-day notice to US Steel on draft
I
NPDES permit. Record
at 495
. US Steel provided timely comments on the draft INPDES
permit on November 16, 2004.
Record at 507
. After the 15-day notice to US Steel, next
the Agency ordered a public notice to Granite City Press
.
Record at 512-513 . On
December 14, 2004, Agency sent draft permit to Municipal Clerk, Granite City
; .JI .S. Fish
3
& Wildlife Service, Rock Island Field Office ; Missouri Department of Natural
Resources ; and US Steel.
Record
at 514-528 .
The Agency put the draft US Steel NPDES permit on a 30-day public notice
beginning on December 19, 2004
. The public comment period ended on January
I18,
2005.
Record at 518. During the comment period, the Agency received comments from
US Steel, the Health & Environmental Justice-St . Louis, and a group letter from ABC
and other environmental groups
. Record at 530-531 ; 532; and 533-539 . The first letter
received was dated January 17, 2005, from Kathleen Logan-Smith of the Health
i
Environmental Justice- St. Louis, requesting a public hearing and a three-week extension
to public comment period . Other issues were also raised in the letter include concerns
I
of
the discharge of lead. Record at 532
.
The second letter (and only other letter received during the comment period) was
dated January 18, 2005 from the ABC and other environmental groups
. ABC's pi~esented
a concern that Horseshoe Lake is impaired, and thus has a negative impact on the
I
community that utilizes the Lake for recreation and for a food source . Specifically, ABC
raised the following issues:
I
1) Allowing US Steel to put additional lead and ammonia into
Horseshoe Lake would be contrary to the federal Clean WateriAct and
the Illinois Bureau of Water's mission
;
2) US Steel should be added to a list of potential contributorsi to the
impairment of Horseshoe Lake ;
3) US Steel had violated ammonia and `other" limits in the past
;
4) Requested the Agency hold a public hearing ; and
5) Asked for a 30-day extension of the public comment period if the
Agency denied its request for a public hearing
.
Record at 533-539 .
On January 22-January 31, 2005, permit engineer Beth Burkard composed 30-day
I
Public Notice Review Notes . Record at 549-552
. In a letter dated April 25, 2005 from
US Steel, it stated that, "the comments submitted to IEPA are largely irrelevant
." Record
at 553-557
. On May 13, 2005, the US Steel requested meeting with Agency staff to
provide additional comments regarding public comment period
.
On May 20, 2005 Ms .
Burkard responded to comments received during the public comment period
. Record at
1
560-563 and 602-605
. On November 10, 2005, permit engineer Beth Burkard left the
Agency, after committing 15 months to the US Steel's NPDES renewal
.application.
The delay in issuance of the US Steel's NPDES permit until March 2006 was due
to the fact that two of the permit engineers working on the permit left the Bureau luring
this time
. The Final NPDES Permit N
. 1L0000329 was re-issued to US Steel Corporation
on March 31, 2006
.
Then on May 8, 2006 ABC filed its Petition seeking the Board's review otthe
i
Agency's issuance of the US Steel's NPDES permit
. ABC appealed on the grounds that :
1)
The Agency erred in setting various effluent limitations Yn the
permit and granted exemptions not allowed by law
;
2)
The permit would allow discharges that violate water quality
standards and effluent limitations
;
3)
The permit would fail to require adequate pollutant monitoring
;
4)
The permit does not include a compliance schedule to aildress a
history of non-compliance ;
5)
The permit does not establish effluent limitations on they
discharge of pollutants present in
the facility's effluent
discharges
; and
6)
The Agency issued the permit without first addressing public
comments and holding a requested public hearing
.
On September 21, 2006, the Board ruled on various motions filed by parties
including motions to dismiss
. The Board granted the motions to dismiss in part 4nd
denied them in part, and further directed the hearing officer to proceed to hearing
i
on the
t
issue of a request for a public hearing
.
5
A Board hearing was held on November 20, 2006, at which testimony was !heard
on the issue of whether the Agency's decision to hold a public hearing complied with the
Board's regulations .
I
II
. APPLICABLE STAUTORITY AND REGULAOTRY PROVISIONSi
Statutory Authority
Petitioners bring the permit appeal pursuant to Section 40(e) of the Act. This
section allows a third party to appeal the Agency's decision of an NPDES permit io the
Board. Section 40(e)(3) of the Act further provides :
I
If the Board determines that the petition is not duplicitous or frivolbus and
contains a satisfactory demonstration under subdivision (2) of this!
subsection, the Board shall hear the petition
. . . (ii) exclusively on the
basis of the record before the Agency .
The burden of proof shall bFi on the
petitioner. . ..
415 ILCS 5/40(e) (2004) (emphasis added)
Section 39(a) of the Act provides that the Agency has a duty to issue a perfnit
upon proof that the facility will not cause
a violation of the Act or Board regulations. See .
415 ILLS 5/39(a) (2004) .
(a) When the Board has by regulation require a permit . . . the applicant
shall apply to the Agency for such permit and is 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 Act or of regulations
hereunder. . .
. 415 ILCS 5/39(a) (2004) (Emphasis added)
Applicable Board Regulations
The Board's regulations at 35 Ill . Adm. Code 309 .115 set forth the standard
governing the Agency's determination on whether to hold a public hearing on an NPDES
permit. Section 309.115(a) provides:
i
The Agency shall hold a public hearing on the issuance of denial df an
NPDES Permit or group of permits whenever the
Agency determines that
6
there exists a significant degree of public interest in the proposed permit
or
group of permits (instances of doubt shall be resolved in favor of holding
the hearing), to warrant the holding of such a hearing
. 35 I11. Admi Code
309.115(a)(1) (2005)
(emphasis added) .
Any person, including the applicant, may submit to the Agency a request
for a public hearing or a request to be a party at such a hearing to consider
the proposed permit or group.of
permits .
Any such request for public
hearing shall be filed within the 30-day public comment period and shall
indicate the interest of the part filing such a request and the reasons why a
.
hearing is warranted . 35 Ill . Adm
. Code 309.115(a)(2) (2005)
(emphasis
added).
Section 302
.203
Offensive Conditions
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
. The allowed mixing provisions of Section 302
.102 shall not be usTd to
comply with the provisions of this' Section
.
r∎*
40 C.F.R
. § 124.12(a) Public hearings
.
(1)"The Director shall hold a public hearing whenever he or she finds, on'
1the
basis of requests, a significant degree of public interest in a draft permit(s)
.
Ill.
STANDARD AND SCOPE OF REVIEW
A. Section 309.115(a)
Presents Mixed Questions of Fact and Law
"Whether a finding is an ultimate fact or conclusion of law depends uponiwhether
it is reached by natural reasoning or by the application of fixed rules of law
." Weyauwega
v. Industrial Commission, 180 Wis
. 168,
192 N.W. 452, 452 (Wis
. 1923). "Whefe
ultimate conclusions can be determined only by applying rules of law, result rea4hed
embodies `conclusion of law,' not `findings of fact
."' Mallinger v
. Webster City! Oil Co.
et al.,
211 Iowa 847, 234 N.W
. 254, 256, Supreme Court of Iowa (1931)
. The question
7
of whether the facts in a particular case fulfill a particular legal standard is a question of
law
. See Hennekens v. River Falls Pol
. & Fire Comm., 124 Wis
.2d 413, 424, 369
N.W.2d 670 (1985) .
"And administrative agency's findings and conclusions on questions of fadt are
deemed to be primafacie
true and correct ." City
of Belvidere v. Illinois State Labor
Relations Board,
181111 .2d 191,2004, 229111.Dec
. 522,692 N .E.2d
295, 302 (1998) ; 735
ILCS 5/3-110 (West 1994)
.
On the other hand, mixed questions of law and fact concern the application of the
rule to the facts and the consequent determination whether the rule is satisfied
. Crocker
National Bank v. City &
County of San Francisco, 49
Cal.3d 881,888, 782 P.2d 2,78 (Cal
.
1989); (See generally
People v. Louis
(1986) 42 Cal.3d 969,985-987, 232 Ca1.Rprt
. 110,
728 P.2d
180.)
A mixed question of law and fact is present "when there is a dispute both
as to the
inferences drawn from the raw facts and the meaning of a statutory term
." Korte,v.
Employment Sec. Dept., 47 Wash
.App. 296, 300, 734 P .2d 939 (Wash.App.Div.1
1987)
(quoting from
Vergeyle v. Department ofEmpl
. Sec., 28 Wash .App. 399,623 P
.2d 736
(1981).
When a court reviews an agency's decision involving a mixed question
of law and
fact, the court determines the law independently and applies it to the facts as found by the
i
agency unless the findings are clearly erroneous
. Korte v
. Employment Sec. Dept., 47
Wash.App
. 296, 300, 734 P .2d 939 (Wash .App.Div
. 11987) (quoting
Renton Educ. Ass 'n
v. Public EmpL Relations Comm 'n, 101
Wash.2d
435, 441, 680 P
.2d 40 (1984)).!
Section 309.115(a)
of the Board regulations directs that the Agency to ho
;ld a
I
8
public hearing only when it finds that there is a "significant degree of public interest in a
draft permit
." This involves a two step process . The first step requires the Agency to
review and evaluate the facts presented by the interest groups during the connnenf period .
The second step requires the Agency to apply the significant degree of public interest
standard to the facts to determine if the standard is satisfied
.
Under Section 309.115(a),
what constitutes a
"significant degree of public interest in the draft permit" is a question
of law; whereas, inference of facts contained in the comments received during the
comment period involve a question of fact. The Board independently determines the
meaning of the phrase "significant public interest in the draft permit," as it is a question
of law, however, the Board must apply this meaning of the phrase to the facts as found by
the Agency, unless it finds the findings as clearly erroneous .
B
. The Agency's Decision Under Section 309 .115(a) Is Discretionary
The criteria for holding a public hearing set forth in the Board's regulations at 35
Ill. Adm
. Code 309.115(a) is identical to the criteria stated in the federal regulations at 40
C.F.R. § 124.12(a)
. One Illinois court and several the Environmental Appeals Board
C'EAB") cases have repeatedly concluded that the Agency's decision to hold a public
hearing is a discretionary one .
The decision to hold a public hearing lies within the discretion of the Agency.
Borg-Warner Corp v. Mauzy, 100111. App. 862, 867,427 N.E. 2d 415, 419 (3,a Disti .
1981)
. (The decision to hold a public hearing "is a discretionary decision to be made by
the Agency") .
9
In In
re
: Sunoco Partners Marketing & Terminals, LP 2006 WL 1806987, (June
2, 2006), the EAB held that,
"[a]s we have expressed on many occasions, the Region's
I
decision to hold a pubic hearing is a largely discretionary one ." See, e.g., In re City of
Forth Worth, 6 E.A.D. 392, 407 (EAB, 1996) ; In re Avery Lake Prop. Owners Ass'n, 4
E.A.D . 251, 252 (EAB 1992)
; hi re Osage (Pawhuska, Okla .), 4 E.A.D. 395, 399 (EAB
1992).
Also, in In re: Weber # 4-8, Underground Injection Control 2003 WL 23177505
(December 11, 2003), the EAB held that, "we do not reach that issue, notwithstanding the
broad discretion afforded to the "shall hold a public hearing whenever [it] finds, on the
basis of requests, a significant degree of public interest in a draft permit(s)."); In re City
ofFan
Worth,
6 E.A.D
. 392, 407 (EAB 1996) ; In re Avery Lake Prop. Assoc.,
4 E.A.D
.
251, 252 & n.2 (EAB 1992)."
Further, in In the matter of Osage, 4 E.A.D. 395 (November 24, 1992), tl}e EAB
held that, "[i]n this type of permit proceeding, the Region's decision to hold a public
hearing is largely discretionary ."
Consequently, the Agency's decision to grant or not grant a request for a public
hearing under Section 309 .115(a) of the Board regulations is discretionary ;
C
. Abuse of Discretion Is Not An Error of Judgment, It Must Amount to An AMtrary
and Unreasonable Action by the Agency
' ABC cites to a case Queen v. Scott, 1996 WL 738740 (W.Va. Env. Quality Bd.) (August 13, 19 6)
holding that the Agency's decision to hold a hearing is not discretionary . The Board in this case held that
the agency's decision in this case was not discretionary . The Agency argues that this two-board member
holding is inapplicable, as well as, not persuasive as it is contrary to the applicable holdings of one Illinois
case and several EAB's decisions .
10
The courts have long held that it is only the alleged abuse of discretion, not
discretion itself that is reviewable on appeal . McFarlan V
. Fowler Bank City Trust Co.,
214 Ind. 10, 14, 12 N.E.2d 752 (Ind. 1938).
The courts have interpreted the phrase, an "abuse of discretion," in various
manners
; however, have maintained the focus on the same central inquiry . Some courts
have defined the phrase as "[a]n abuse of discretion is an erroneous conclusion and
judgment, only clear against the logic and effect of the facts and circumstances ." Id.
Other courts have defined the same phrase as,
"[a]n abuse of discretion is defined
by an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court ."
First Nat
. Bank of Crosby v. Bjorgen, 398 N. W.2d 789, 794 (N.D. 1986) (quoting Dvorak
v. Dvorak, 329 N.W.2d
at 870 (N.D. 1983); Avco Financial Services v. Schroeder, 318
N.W.2d 910,912 (N.D
. 1982).
And other courts have defined it as, "abuse of discretion connotes more than an
error of judgment, rather, it implies a decision that is without a reasonable basis and is
clearly wrong." 35 Ohio App .3d 121, 122, 519 N.E.2d
868, 869 (Court of Appeals, 10th
Dist., 1987) ; also see
Landry v. Travelers Insurance Company, 458 S.W.2d 649, ¢51
(Tex.1970).
The courts have regularly required that in order for an abuse of discretion to be
present, it must amount to more than an error ofjudgment and that the decision i
arbitrary and unreasonable, or is clearly wrong
. The Agency thus asserts that th1 Board
applies the same legal principle in the case at hand
. Further, the appropriate test ;'for
abuse of discretion is whether the Agency exceeded the bounds of reason
. Nestle v. City
of Santa Monica, 6 Cal.3d 920, 101 Cal.Rptr . 568,496 P
.2d 480 (Cal. 1972).
11
An abuse of discretion is not shown by the mere fact that one or more of the
judges of this court would have exercised the discretion differently if sitting as a trial
court. Halliday v. Diehm, 11 Ohio App .398 (1919) . The courts have required the roving
party to show that the lower court made more than a "poor decision ." First Nat. Bank of
Crosby v. Bjorgen, 398 N.W.2d 789 (N.D. 1986) (the moving party must also show more
than that the lower court made a "poor" decision, but that it positively abused the
discretion it has in administering the rule.) (quoting Bender v. Liebelt, 303 N.W.2d 316,
318 (N.D
.
1981)
. In determining the abuse of discretion standard, the courts have viewed
the evidence in the "light most favorable to the action of the court below ." -Parks v. US.
Home Corp., 652 S.W.2d 479, 485(Tex .App.-Houston(1" Dist.] 1983, writ dism'd)
.
The EAB has also required that an abuse of discretion must be present in order for
it to set aside the EPA's decision under Part 124 . In re: Dominion Energy Brayton Point,
L.L.C. (February 1, 2006) ("The Board's standard of review where we are reviesing the
permit under part 124 is whether the permit issuer based the permit on a clearly erroneous
fording of fact or conclusion of law."). Similarly, in In the matter of Osage (November
24, 1992), the EAB applied the same standard of review .. ("The Region did not cpmmit
error or abuse its discretion by not granting Petitioner's request for an administrative
hearing.")
Clearly, the phrase "abuse of discretion" contemplates a reasoning process
consisting of considering the facts in record and leading to a conclusion that a rei}sonable
person would reach. The Agency thus asserts that the Board's review is limited
determining whether there has been an abuse of discretion . In order for the Board to find
that the Agency abused its discretion, there must have been a clearly erroneous
12
conclusion that is against both logic and facts in the Agency record at the time of the
close of the comment period on January 18, 2005
. Further, the Board should view the
inferences of the facts in the light most favorable to the Agency .
D. A Significant Degree of Public Interest finding Requires More than A Mere Interest
In the Permit
A public hearing is required only if the significant degree of interest is present in
the proposed permit . In re City ofLos Angeles, 1997 WL 28253 (E.P.A.) (October 8,
1977), ("In any permit modification proceeding an opportunity for public hearing' must be
provided, but a hearing must be held only if the Regional Administrator finds that there is
a significant degree of public interest in the permit modification") .
Recently the United States Environmental Protection Agency ("USEPA" or
"EPA") provided a better test to decide when to hold a hearing .
In a press release', EPA
stated that, "[a] request for a public hearing must be in writing and state the nature ; of the
issues proposed to be raised during the hearing . EPA will hold a public hearing if it
decides there is a significant degree of public interest in the draft permit, or if the .
comment raises an issue that EPA believes is important."
2005 WL 1685556 (E.P.A)
(July 20, 2005) .
In In the matter of Avery Lake Property Owners Assc ., 4 E.A.D. 251 (September
15, 1992), the EAB did not find that a significant degree of public interest existed as the
comment letter "did not focus on any specific permit conditions in the draft permit,
instead it expressed general concerns over the risks that the type of activity might pose to
water resources in the area ."
13
In In the matter
off Terra Energy LTD., 4 E.A.D. 159(August 5, 1992), the
request for a hearing only expressed only generalized concerns about the potential input
of the well on the environment and property values ." Based on these facts, the Region
found that there was not a significant degree of public interest . Instead, the Region chose
to respond to each comment letter individually
. The EAB held that, "the judgment of the
Region in this respect has not been shown to be erroneous ." Id.
In In the matter of Spokane Regional Waste-to-Energy Project,
3 E.A.D. 68
(January 2, 1990), the record showed that there was public interest in the permit
.
Nevertheless, Washington State Department of Ecology (`Ecology")
decided not to hold
a public hearing because it found that "there was little expression of interest in the
specific issue raised by the remand." Instead, Ecology prepared a response to the public
comments and issued its revised final permit determination . The EAB held that, "[u]nder
the circumstances, no clear error is apparent from Ecology's decision not to hold a public
hearing." Id.
Similarly, in
In the matter of Osage, 4 E.A.D. 395 (November 24, 1992),' during
the public comment period, comments were provided only by the permittee and
petitioner. The petitioner's request for a public hearing was the only request received by
the Region
. The Region decided to deny a public hearing on the draft permit . Instead a
meeting was held with petitioner . The Region addressed the petitioner's comments in the
formal response to comments . The EAB noted that petitioner was given ample ;
opportunity for participation in the permit process. Thus, the EAB held that "Pet[toner
has failed to show that the Region's decision not to hold a public hearing was clearly
erroneous or an important exercise of discretion that warrants review ."
Id.
14
In order for ABC to establish that the Agency record at the time of the close of the
comment period showed a significant degree of public interest in the proposed permit, it
must show that the comment letters had more than general statements of environmental
concerns over the risks the US Steel's NPDES permit pose to Horseshoe Lake, instead
ABC and must clearly articulate problems with the specific permit conditions' in the draft
permit
. Further, ABC must show that comments were directly related to the NPDES
permit issues, and not Clean Air Act or Resource Conservation and Recovery Act issues .
IV.ARGUMENTS
Section 402 (b)(3)
of the Clean Water Act provides only that the public "receive
notice of each application for a permit and
. . . an opportunity for a public hearing before a
ruling on each application . . . "
33 U.S.C. § 1342 (emphasis added)
.
Both the federal and Board regulations provide a process to ensure that this intent
of the Clean Water Act is fully
met. "we conclude that the regulations the EPA has
promulgated to implement this congressional policy are fully
consistent with the
legislative purpose, and are valid." Castle v. Pacific Legal Foundation,
445 U.S
. 198,
100 S.Ct. 1095 (1980). Fundamentally, the process of determining terms and conditions
for NPDES permits is an information-gathering and fact-finding process
. See 35 Ill.
Adm. Code Part 309 and Part 166.
The process begins with the submission of
information and data by the applicant
. Thereafter, the applicant and the public are
provided several opportunities to participate in the administrative process and thereby
protect their interests . The Board regulations require that public notice be given of the
proposed issuance of each permit, setting forth Agency's tentative determinations
. See
35 Ill. Adm. Code 309.107-309
.119
.
Interested persons may submit written comments concerning the Agency's
tentative determinations and may request a public hearing . The written comments must
be considered by the Agency in making its final determinations
. If it is determined that a
significant degree of public interest regarding a proposed permit exists or that a public
hearing would provide useful information, the Agency may hold a public hearing after
due notice. At the hearing, any person may submit oral or written statements and . the
information provided must be considered by the Agency in making its final
determinations
. If the applicant or a third-party is still dissatisfied with the terms and
conditions of the final permit, he or she may request a review by the Board
. Also, see, In
the Matter ofMarathon Oil Company, Union Oil Company, Atlantic Richfield Company,
and Mobil Oil Corporation, I E.A.D. 83 (September 25,1975) .
In this case, though a public hearing' was not granted, but by responding ~o the
comment letters received at the close of the comment period, the Agency met thepublic
participation requirements of the Clean Water Act .
A. ABC Has the Burden of Proof Under Section 40(e) Of the Act
. And The Act Does
Not Allow ABC To Shift That Burden
2
The Record
clearly shows that Kenneth Page, Illinois EPA, Office of Compliance Assistance ahd
Environmental Justice, correspondence with Kathy Andria of ABC offered a chance to discuss isfues
related to the topics of subsistence fishing, PCBs, Horseshoe Lake quality, and environmental justice
. See
Record at 630-31, 633-34
. The Agency never asserted that the Environmental Justice meeting with the
Agency was in lieu of or was a substitute for a public hearing on the US Steel NPDES draft permit . This
meeting was simply scheduled to address the ABC's non-NPDES permit related issues
.
16
ABC brought this third party NPDES permit appeal under Section 40(e) of the
Act
. 415 ILCS 5/40(e)(1) (2006) . Section 40(e)(3) of the Act specifically states that the
burden of proof shall be on the petitioner. See 4151LCS 5/40(e)(3) (emphasis added).
hi Village ofLake Barrington et al.,
v
. Illinois EPA and Village of Wauconda,
PCB 05-55 (April 21, 2005), the Board addressed the burden of proof issue in a third-
party NPDES permit appeal . The Board noted that, "[t]he distinction between the two
types of NPDES permit appeals is which party bears the burden of proof ." Id. at 5 .
Under Section 40(a)(1) of the Act, if the permittee appeals the permit, the burden of proof
is on the permit applicant . Id The Board, consistent with the holding of the court in
Prairie Rivers, held that, "[u]nder Section 40(e)(3) of the Act, in a third party NPDES
permit appeal, the burden of proof is on the third party ."
Id.
at
5 ;
Prairie Rivers,
781
N.E. 2d 372, 380 (emphasis added).
On the burden of proof issue, the Board in Des Plaines River Watershed Alliance
v. Illinois EPA, PCB 04-88 (2005), held that, "IEPA's decision to issue the permit in this
instance must be supported by substantial evidence. This does not, however, shift the
burden away from the petitioner, who alone bears the burden of proof in this matter
."
Des Plaines River Watershed Alliance at 7 (emphasis added) .
Thus, in a third party permit appeal, the burden never shifts away from
Petitioners
. Here, ABC challenged the Agency's decision to not grant a request ~or
i
a
public hearing on the draft NPDES permit . Pursuant to Section 40(e)(3) of the Act and
the Board's ruling in
Village ofLake Barrington and Des Plaines River Watershed
Alliance, ABC must prove that the Agency's record at the close of the comment period'
' 309.115(a)(2)
specifically requires that the ABC has the burden to show that a hearing should bie granted .
This section requires that this request must be filed within the comment period . Therefore, this section
17
contained substantial evidence to show that a "significant degree of public interest existed
in the proposed permit," and that the Agency clearly erred or abused its discretion in not
granting the ABC's request to hold a hearing on the basis of the information before it at
the close of the comment period .
B
. ABC Has Failed To Establish That A Significant Degree of Public Interest Existed In
The Draft Permit
Section 309
.115(a)(2) of the Board regulations places the burden on the party
requesting a public hearing why a hearing is warranted . See 35111. Adm. Code
309.115(a)(2). The Board regulation specifically requires that the request for a hearing
shall be filed with the 30-day comment period and shall indicated the interest of the party,
and the reasons why a hearing is warranted . Id.
Neither the Clean Water Act nor the Board regulations require that the Agency
must hold a public hearing every time a request is made to the Agency
. The Agency is
required to grant a request for public hearing only when a significant degree of public
interest is present in the proposed permit . Further, neither the Act nor the Board
regulations define what constitutes a significant degree of public interest
. The Agency is
left with the task to determine whether the facts present in a given case satisfy the
significant degree of public interest standard. In evaluating the degree of public interest
in an NPDES permit, the Agency considers the following prior to responding to a request
prohibits ABC from introducing new evidence in the form of documents or the testimony of its witnesses at
the Board hearing . At the hearing, the Agency made several objections to ensure that the record teflects the
Agency's general position on this issue . In this case, the Agency's decision to not grant a public earing
was entirely based on the two comment letters received prior to the close of the comment . period.!
Therefore, to meet the burden under Section 40(e) of the Act, ABC must prove that the Agency's decision
to not grant a hearing in this case was either clearly erroneous or was arbitrary and unreasonable
.;
18
for a public hearing: 1) whether a high degree of public interest exists, whether it be in
the form of letters from individuals or letters from groups of interested citizens ; 2) the
nature and extent of comments received during the public comment period; and 3) the
relevance of comments to activities authorized under the proposed permit. The Agency
has found these factors to provide a perfect balance between ensuring genuine public
participation in an NPDES draft permit and ensuring that enough resources are available
to undertake requests for a public hearing .
In this case, at the close of the comment period on January 18, 2005, the Agency
received two comment letters dated January 17 and 18, 2005 requesting that a public
hearing be held
. The Agency reviewed the comments based on the factors outlined above
to determine if a significant degree of public interest exists in this case . The Agency
found that the nature and extent of comments received during the comment period were
general in nature. The comments were non-significant in that they did not provide any
specific or additional information that the Agency could have used in drafting the.permit
.
To illustrate, the January 17t' comment letter states that, the US Steel's permit "impacts
directly a recreational body of water," " would allow additional discharges of toxic heavy
metals;" or/and "would add several other toxin to their body burden ." To further
illustrate, the January 18th comment letter states that, the permit "would allow additional
lead;" "would allow additional ammonia." These are simple statements of facts of which
the Agency is already aware
. Thus, these comments alone do not satisfy the significant
degree of public interest in the draft permit standard .
The Agency further found that there were comments in these two letters ~at were
not relevant to activities authorized under the US Steel's proposed permit . The
19
comments were related to issues that could have not been addressed in an NPDES public
hearing
. To illustrate, the January 17 comment letter states that, "excessive levels of
PCBs from fish consumption
." To further illustrate, the January 18"comment letters
states that, "Horseshoe Lake is impaired
;" "we believe that industrial effluent from
Granite City Steel should be added to the list;"
"Granite City is also in significant non-
compliance with Clean Air Act and RCRA
." The issues raised in these comments are
outside the scope of an NPDES permit public hearing
. For example, the Agency does not
consider addition or deletion of sources or causes of impairment at an NPDES permit
public hearing
. That action of the Agency is governed by Sections 305(b) and 303(d) of
the Clean Water Act, and a separate process is prescribed by these sections to address the
listing of impaired waters
. Nor does the Agency consider a discharger's noncompliance
with CAA or RCRA issues at an NPDES permit hearing
.
Contrary to ABC's assertion, the Agency's decision to not grant the ABC's
request for a public hearing is detailed in the February 8, 2006 memorandum
4 from Toby
Frevert to Marcia Willhite
. This memorandum describes in detail the Agency's findings
of the facts in this case.
C
. ABC Has Failed to Prove that the Agency Abused Its Discretion in Not Granting A
Public Hearing
As the Agency's decision under Section 309
.115(a) to grant or not grant a request
for a public hearing is a discretionary one, ABC must show that the Agency's
determination of not finding a significant degree of public interest in this case was clearly
This document is part of the record
. It was introduced by ABC in its motion to the Board, and the
Hearing Officer granted that motion as there was no objection from Respondents
.
20
erroneous or that the Agency's decision was arbitrary and unreasonable given the facts of
the case
. ABC can not meet the burden of proof outlined in Section 40(e) of the Act by
simply arguing that two or more inferences are possible from the facts . Nor can ABC
meet this burden by showing that the Agency made a "poor decision ."
In support of its case, ABC provides the following arguments . ABC believes that
a significant degree of public interest existed because Horseshoe Lake is used by the
public, and that various organizations asked the Agency to hold a public hearing in this
case.
Under Section 40(e) of the Act, ABC has the burden to prove that the Agency
record at the time of the close of the public comment period contained substantial
evidence to show that a significant degree of public interest in the proposed permit
existed, and that the Agency's decision to not hold the hearing amounted to an abuse of
discretion
. To satisfy this burden, ABC must show that facts contained in the comment
letters alone were sufficient to establish a significant degree of public interest in this case,
and thus the Agency's decision was clearly erroneous, and not a "poor decision ." The
Agency believes that the use of Horseshoe Lake by the public and requests for a hearing
from the interested groups are relevant factors in determining whether a significant
degree of public interest exist in this case ; however, these two factors alone are not
sufficient to satisfy the criteria described in Section 309.115(a) of the Board regulations .
If the Agency is required to hold a public hearing purely based on the public use of a
waterbody and a request from a group, it may have to hold approximately 3005 NPDES
permit public hearings each year. This result is neither intended by the Clean Wfter Act
'
Based on the Agency's estimates that it issued approximately 300 NPDES permits in 2005 .
21
nor by the federal or Board regulations
. Obviously, it would be impossible for the
Agency to issue more than a couple of NPDES permit in a year. ABC thus has failed to
demonstrate any clear error or abuse of discretion in the Agency's decision not to hold a
public hearing in this case
. Consequently, ABC has failed to meet its burden of proof
under Section 40(e) of the Act
.
1
. ABC Has Failed to Show That Its Comments Regarding Heavy Metals in
Horseshoe Lake Sediments Amounted to A Significant Degree of Public Interest
in the Proposed Permit
ABC next argues that the comment letters filed during the close of the comment
period raised two significant issues
as
at least one of the issues should have affected the
terms of the US Steel's NPDES permit .
ABC argues that the Agency erred by not seeking additional information on
studies conducted by Professor Brugam of the Southern Illinois University at
Edwardsville. In support of this argument, ABC cites to the engineer's notes indicating
that obtaining a copy of these studies would be "beneficial ." ABC believes that these
studies were relevant information for the Agency to consider establishing the proper
limits for zinc and leading in the US Steel's NPDES permit .
The Agency asserts that ABC's argument is flawed in many ways . First, the
Agency did download an abstract of the study to determine its relevance to the
US
Steel's
NPDES permit. Upon review of the abstract, the Agency determined that the scope of
the studies was on contamination of sediments in Horseshoe Lake from heavy metals . As
the permit limits for heavy metals in this case were either at or below the Board's water
22
quality standards, the findings of these studies were not relevant for an NPDES permit
proceeding .
However, the same studies would be of significant relevance when the Agency
conducts a total maximum daily load ("TMDL") on Horseshoe Lake
. During the
development of TMDL for Horseshoe Lake, the Agency would determine sources and
causes of impairment of Horseshoe Lake and would assign load allocations to various
point as well as non point sources
. Before a final TMDL is established for Horseshoe
Lake, the Agency would conduct a public hearing and several public meetings to apprise
the public regarding its findings
. At the public meetings and hearing, the Agency would
request the public to submit any site-specific information that the Agency has not
considered in developing this TMDL
. The Agency would then consider incorporating
appropriate source reduction practices including such measures as sediment remediation
and possible load allocations into individual NPDES permit
. However, an NPDES
permit public hearing is not the proper forum to discuss the impaired water related issues .
Second, as the lead and zinc limits in the US Steel's NPDES permit are well
below the acute or chronic water quality standards, the Agency has applied the most
stringent permit limit
. The US Steel permit allows discharge of lead because lead is a
parameter that must be regulated under the federal categorical regulations irrespective of
whether a facility actually has lead in its manufacturing process .
Thus, ABC's assertion
that the permit allows 2,044 pounds of lead into the Lake each year is misleading
. Lead
has often not been detected in the Agency or facility generated effluent results . The
source water for the US Steel process comes from the Mississippi River
. The Agency's
sample results between March 2000 and December 2003 show that total lead was not
23
detected in all samples except one . This one sample had a lead concentration of 0 .0096
mg/L. This source water data corresponds to the effluent data, which also usually shows
no detectable amount of lead . The data showed average lead concentration of 0
.0059
mg/L, whereas, the most stringent applicable water quality standard is 0
.88 mg/L
. Thus,
contrary to ABC's belief, the concentrations of lead are well below the acute or chronic
water quality standards
. Additionally, the loading of lead in pounds per year basedd on
this average is 308 .8 pounds per year, not 2,044 pounds .
Similarly, the 30-day average zinc load limit in the US Steel's permit is based on
the 30 day average concentration limit for zinc6
. This permit limit is based on the chronic
water quality standard for dissolved zinc . The 30 day average load limit for zinc of 12
pounds per day is calculated from the 0 .17 mg/L concentration limit, which is equivalent
to 0.0586 mg/L of dissolved zinc, the chronic water quality standard . The load limit for
zinc is lower than the 15
.05 pounds per day limit in the previous permit
. On average, the
loading of zinc in Horseshoe Lake will be reduced under this permit . The daily
maximum amount of zinc is based on the Federal categorical limits because it was
determined that no reasonable potential to exceed the acute water quality standard exists .
The Agency, thus, concluded that the zinc limits in the US Steel's permit do not allow an
increase in loading of zinc in Horseshoe Lake .
ABC also argues that the Agency erred in granting the US Steel an exemption
from Central Treatment. In the October 17, 2002 Federal Register (volume 67, No
. 201),
the USEPA granted the Central Treatment Exemption upon the determination that US
6 Contrary to ABC's belief, the Agency did not erroneously emit zinc from the list of pollutants causing
impairment
. At the time of public notice, zinc was not listed in the 303(d) impaired water list as a cause of
impairment in Horseshoe Lake sediments . However, the Agency record shows that the Agency raid
consider this fact prior to the issuance of the final permit .
i
24
Steel with an exemption for zinc would still meet the cost model criteria to come into
compliance with 40 CFR 420 standards
. Prior to the granting of this exemption,
however, the USEPA public noticed its decision and no comments were received in
support of removing the exemption
.
Even though ABC accepts/agrees that the Board regulations do not have numeric
criteria for heavy metals in sediments, it still asserts that the Agency failed to ensure that
the US Steel's discharge is not causing or contributing to high levels of heavy metals in
the bottom of Horseshoe Lake
. ABC's assertion is without any merits
. The permit limits
for heavy metals in the US Steel's NPDES permit are based on either the federal
categorical standards or Board's water quality standards
. The ABC's assertion that these
duly adopted standards are causing bottom deposit is totally absurd.
The fact that the
sediments in Horseshoe Lake have high concentrations of heavy metals alone does not
establish that the US Steel's discharge is causing these bottom deposits
. These deposits
of heavy metals in Horseshoe Lake sediments could be from sources that operator prior to
the adoption of the Clean Water Act
. Further, if the TMDL for Horseshoe Lake indicated
that existing sources are contributing to the impairment of Horseshoe Lake, the Agency,
at that time, may consider incorporating more stringent limits in these permits
.
Under Section 40(e) of the Act, ABC has the burden to prove that the Agency
record at the time of the close of the public comment period contained substantial
evidence to show that a significant degree of public interest in the proposed permit
existed, and that the Agency's decision to not hold the hearing amounted to an abuse of
discretion
. To satisfy this burden, ABC must show that facts contained in the comment
letters alone were sufficient to establish a significant degree of public interest in this case,
25
and that the Agency's decision was thus clearly erroneous, and not simply a "poor
decision
." The Agency did consider the relevance of studies performed by Professor
Burgam, but found that these studies are more relevant for assessing and listing
waterbodies under Sections 305(b) and 303(d) process, rather than an NPDES permit
proceeding
. At the public hearing, the best answer the Agency could have given is that
"please provide your comments and concerns to the Watershed Unit of the Agency so
that the relevant information from these studies can be used in assessing and listing as
well as developing the TMDL for Horseshoe Lake
." ABC, thus, has failed to
demonstrate any clear error or abuse of discretion in the Agency's decision . not to hold a
public hearing in this case. Consequently, ABC has failed to meet its burden of proof
under Section 40(e) of the Act
.
2. ABC Has Failed to Show That Its Comments Regarding Diseased Fish Caught
in Horseshoe Lake Sediments Amounted to A Significant Degree of Public
Interest in the Proposed permit
ABC next argues that the Agency also erred by not addressing questions raised in
the comment letters about diseased fish being caught in Horseshoe Lake .
ABC's argument misunderstands the role of water quality standards in protecting
designated uses of a waterbody . The State and federal water quality standards for metals
are based solely on aquatic life toxicity rather than human health concerns . The absence
of human health standards for heavy metals signifies their low risk to human heath
. The
basic premise behind the development of the State and federal water quality standards for
heavy metals is that if concentrations of these substances do not exceed aquatic life
standards, then these concentrations will not harm other designated uses of the
waterbody
. Essentially, the aquatic life standards for heavy metals also serve to protect
other uses such as fish consumption
.
Further, the kind of information necessary to address the issue raised by ABC is
obtained from the Illinois Department of Natural Resources ("IDNR"),
not from the
public
. IDNR, given that many of its employees are professional fisheries biologist,
would make the first evaluation of the problem
. The Agency has a long standing working
agreement with IDNR to jointly investigate fish kills .
Thus, an incident of fish disease
would be handled similarly
. The public usually would make IDNR aware of the problem
of fish disease
. The IDNR personnel would investigate the problem
. In case a water
quality problem is suspected, the personnel would get in touch with the local IEPA
regional office, and would share the report with the Agency's field inspector
. The
Agency would then investigate the problem by visiting the site, taking water samples,
investigating point source discharge activity, etc . Then each agency would file a report
after sharing data
. A link between the fish disease or abnormality outbreak and an
NPDES or other discharge would be pursued by the Agency just as the source of a fish
kill would be pursued.
Also, in its brief, ABC makes several statements regarding the inadequacy of
permit limits or statements alleging that the Agency has failed to show that the permit
meets the applicable provisions of the Act or Board regulations, The Agency objects to
the ABC's assertions in this brief, as these specific issues are not before the Board for
review
. The Board has already dismissed the ABC's arguments concerning the adequacy
of these permit limits
. The sole issue before the Board is whether the Agency's record
27
contained substantial evidence at the time of the close of the comment period and
whether the Agency abused its discretion by not granting the hearing in this case .
Under Section 40(e) of the Act, ABC has the burden to prove that the Agency
record at the time of the close of the public comment period contained substantial
evidence to show that a significant degree of public interest in the proposed permit
existed, and that the Agency's decision to not hold the hearing in this case amounted to
an abuse of discretion . To satisfy this burden, ABC must show that the facts contained in
the comment letters alone were sufficient to establish a significant degree of public
interest in this case, and that the Agency's decision was thus clearly erroneous, and was
not simply a "poor decision." The Agency did consider the information related to
diseased fish, however, there was no incident cited or recorded by either IDNR or the
Agency. ABC thus has failed to demonstrate any clear error or abuse of discretion in the
Agency's decision not to hold a public hearing in this case . Consequently, ABC has
failed to meet its burden of proof under Section 40(e) of the Act .
V. CONCLUSION
ABC has failed to demonstrate any clear error or abuse of discretion in the
Agency's decision not to hold a public hearing in this matter . ABC has thus failed to
meet the requisite burden under Section 40(e) of the Act . The Agency respectfully
requests that the Board DENY the ABC's request for relief in this case .
28
OR IG!\AL
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 N. Grand Ave. East
P.O
. Box 19274
Springfield, IL 62794-9274
webbc@ipcb.state.il.us
CERTIFICATE OF SERVICE
I, the undersigned, certify that on this 18"' day of December 2006, one copy of the
foregoing was sent via electronic communication to the following :
Edward J . Heisel
Maxine L Lipeles
Interdisciplinary Environmental Clinic
Washington University School of Law
One Brookings Drive -Campus Box 1120
St. Louis, MO 63130-4899
ejheisel@wulaw .wustl.edu
Carolyn S . Hesse
Erika K. Powers
David T. Ballard
Barnes & Thomburg LLP
One North Wacker Drive
Suite 4400
Chicago, IL 60606
carolyn.hesse@btlaw.com
Sanjay K. Sofat
THIS FILING PRINTED ON RECYCLED PAPER
CLERK'S
ate' •
OFFICE
8 Y' IL.ir9
JAN 1 ?
2007
STATE OF ILLINOIS
Pollution Control Board
29
STATE OF ILLINOIS
COUNTY OF SANGAMON
SS
I, the undersigned, on oath state that I have served the attached Motion For Leave
To File Post-Hearing Brief Instanter and Post-Hearing Brief upon the person to whom it
is directed:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 N. Grand Ave . East
P.O. Box 19274
Springfield, IL 62794-9274
webbc@ipcb .state .il.us
and mailing it from Springfield, Illinois on January 12, 2007, with sufficient postage
affixed as indicated above.
SUBSCRIBED AND SWORN TO BEFORE ME
this day of January 12, 2007 .
Notary Public
THIS FILING PRINTED ON RECYCLED PAPER
Edward J . Heisel
Interdisciplinary Environmental Clinic
Washington University School of Law
One Brookings Drive, Campus Box 1120
St
. Louis, MO 63130-4899
ejheisel(cilwulaw.wustl.edu
Carolyn S. Hesse
Erika K. Powers
David T. Ballard
Barnes & Thornburg LLP
One North Wacker Drive, Suite 4400
Chicago, IL 60606
carolyn .hesse@btlaw .com
y+~44p4~N004?d0'08G4vq^q :; v!. : ,
BRENDA
OFFICIAL
BOEHNER
SEAL
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 11-3-2009
4
