4

comment period should be extended 30 days if the Agency denied the request for a public

hearing. Agency Rec. at 532-39.

On May 13, 2005, US Steel requested a meeting with Agency staff to provide additional

comments regarding the public comment period. On May 20, 2005 Agency engineer Beth

Burkard responded to comments received during the public comment period. Agency Rec. at

560-63; 602-05. American Bottom sent supplemental technical comments to the Agency in

October 2005, and on December 9, 2005. Agency Rec. at 607-609, 611-623.

On March 8, 2006, the Agency issued a NPDES permit to U.S. Steel. Agency Rec. at

635-43. The Agency reissued the NPDES permit on March 31, 2006, after responding to the

American Bottom comments filed after the comment period. Agency Rec. at 648-57.

APPLICABLE LAW

The Act and the Board’s rules allow for third-party appeals in an NPDES permit

proceeding (415 ILCS 5/40(e)(1); 35 Ill. Adm. Code 105.102). Section 40(e)(1) of the Act (415

ILCS 5/40(e)(1) (2004)) allows certain third parties to appeal Agency determinations to grant

NPDES permits. The third party’s petition to the Board must contain:

[A] demonstration that the petitioner raised the issues contained within the

petition during the public notice period or during the public hearing on the

NPDES permit application, if a public hearing was held; and

[A] demonstration that the petitioner is so situated as to be affected by the

permitted facility. 415 ILCS 5/40(e)(2) (2004);

see also

35 Ill. Adm. Code

105.210(d).

American Bottom has demonstrated participation during the public notice period.

Therefore, pursuant to the Act and Board procedural rules, American Bottom has standing to

appeal the Agency’s decision.

Section 309.115(a)(1) of the Board’s regulations provide, in part, that:

The Agency shall hold a public hearing on the issuance or denial of an NPDES

permit or group of permits whenever the Agency determines that 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.

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

party filing such a request and the reasons why a hearing is warranted. 35 Ill.

Adm. Code 309.115(a)(1),(2) (2004).

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5

STANDARD OF REVIEW

Section 39(a) of the Act (415 ILCS 5/39(a) (2004)) provides that the Agency has a duty

to issue a permit upon proof that the facility will not cause a violation of the Act or Board

regulations. Section 39(a) further provides that “[i]n making determinations on permit

applications . . . the Agency may consider prior adjudications of noncompliance” with the Act.

415 ILCS 4/39(a) (2004)

The Board’s scope of review and standard of review are the same whether a permit

applicant or a third party brings a petition for review of an NPDES permit. Prairie Rivers

Network v. PCB

et al

., 335 Ill. App. 3d 391, 401; 781 N.E.2d 372, 380 (4th Dist. 2002) and

Joliet Sand & Gravel Co. v. PCB, 163 Ill. App. 3d 830, 833, 516 N.E.2d 955, 958 (3rd Dist.

1987), citing

IEPA v. PCB, 118 Ill. App. 3d 772, 455 N.E.2d 189 (1st Dist. 1983). The

distinction between the two types of NPDES permit appeals is which party bears the burden of

proof. Under Section 40(e)(3) of the Act, in a third party NPDES permit appeal, the burden of

proof is on the third party. 415 ILCS 5/40(e)(3) (2004);

Prairie Rivers, 335 Ill. App. 3d 391,

401; 781 N.E.2d 372, 380. Under Section 40(a)(1) of the Act, if the permit applicant appeals the

permit, the burden of proof is on the permit applicant. 415 ILCS 5/40(a)(1) (2004).

The question before the Board in permit appeal proceedings is: (1) whether the applicant

proves that the application, as submitted to the Agency, demonstrated that no violation of the Act

would have occurred if the requested permit had been issued; or (2) whether the third party

proves that the permit as issued will violate the Act or Board regulations. Joliet Sand & Gravel,

163 Ill. App. 3d 830, 833, 516 N.E.2d 955, 958; Prairie Rivers, 335 Ill. App. 3d at 401; 781

N.E.2d at 380. The Agency’s denial letter frames the issues on appeal and the burden of proof is

on the petitioner. ESG Watts, Inc. v. PCB, 286 Ill. App. 3d 325, 676 N.E.2d 299 (3rd Dist.

1997).

The Board’s review of permit appeals is limited to information before the Agency during

the Agency’s statutory review period, and is not based on information developed by the permit

applicant, or the Agency, after the Agency’s decision.

Prairie Rivers Network v. IEPA and

Black Beauty Coal Company, PCB 01-112 (Aug. 9, 2001)

aff’d

at 335 Ill. App. 3d 391, 401; 781

N.E.2d 372, 380 (4th Dist. 2002);

Alton Packaging Corp. v. PCB, 162 Ill. App. 3d 731, 738, 516

N.E.2d 275, 280 (5th Dist. 1987).

ISSUES

American Bottom raised several issues for Board decision in this proceeding, however as

noted above, only one issue remains – whether the Agency’s decision not to hold a public

hearing at the underlying level invalidates the issued permit.

AMERICAN BOTTOM’S ARGUMENTS

American bottom argues that the U.S. Supreme Court has noted that, although a public

hearing is not required when a party does not request one, public participation is an “essential

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6

element” of the NPDES program and Congress intended for the public to have a “genuine

opportunity to speak on the issue of protection of its waters.” Costle v. Pacific Legal

Foundation

,

445 U.S. 198, 216 (1980) (quoting S. Rep. No. 92-414, at 72 (1971)). Pet. Br. at 4.

American Bottom argues that the decision to issue the permit without a public hearing

must be “supportable by substantial evidence.” Des Plaines River Watershed Alliance v. IEPA,

PCB 04-88, 2005 WL 3270426, at *15 (Nov. 17, 2005) (quoting Prairie Rivers Network v. IEPA

and Black Beauty Coal Co., PCB 01-112, 2001 WL 950017, , at 7 (Aug. 9, 2001)). The

substantial evidence standard requires “more than a mere scintilla” of evidence and demands

“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Finnerty v. Personnel Bd. of the City of Chicago, 303 Ill. App. 3d 1, 11, 70 N.E.2d 600, 608 (Ill.

App. 1st Dist. 1999) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Pet. Br. at 5.

American Bottom asserts that a public hearing was required for the U.S. Steel permit

because there was clearly a significant degree of public interest in the permit, and comment

letters from organizations representing thousands of members cited heavy public use of

Horseshoe Lake and raised serious concerns about the draft permit. Pet. Br. at 5. Thus, argues

American Bottom, the Agency’s decision to forego a public hearing is not supported by

substantial evidence and the permit should, therefore, be remanded to the Agency with

instructions to hold a public hearing and modify the permit as warranted by the information that

is gathered. Pet. Br. at 5-6.

American Bottom argues that Horseshoe Lake is heavily used by the public and that it is

hard to imagine a permit more deserving of a public hearing than this one concerning major

industrial discharge into an impaired lake, located within a popular state park, where people fish

and eat their catch. Pet. Br. at 6.

American Bottom cites to testimony at hearing wherein witnesses discussed the use of

and need for the lake. Pet. Br. at 6-7. American Bottom notes that three members of the public

provided comment indicating how they would attend a public hearing on the NPDES permit.

Pet. Br. at 7. American Bottom asserts that the organizations that submitted comment letters

requesting a public hearing have a concrete interest in the health of Horseshoe Lake and

collectively represent thousands of members. Pet. Br. at 8. American Bottom contends that a

public hearing would have allowed the organizations' members to provide the Agency

information about Horseshoe Lake and to ask questions about the terms of the permit. Pet. Br. at

10.

American Bottom argues that the need for a public hearing is demonstrated further by the

significant issues raised in the public comment letters, which the Agency almost completely

failed to investigate before issuing the permit. Pet. Br. at 10. American Bottom argues that the

Agency’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.

at 16.

American Bottom contends that in the absence of any stated Agency rationale, effective

review by the Board is hindered severely as it is difficult if not impossible to determine whether

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7

the Agency's decision was carefully reasoned and based on the evidence. Pet. Br. at 17. Further,

American Bottom asserts that it is a well-established principle of administrative law that an

agency's decision can only be upheld based on rationales actually offered by the agency at the

time of its decision and not on the basis of post-hoc rationales offered by counsel.

Id.

American

Bottom stresses that other forums cannot substitute for a public hearing on the permit. Pet. Br. at

18.

American Bottom concludes that the Agency’s decision to forgo a public hearing on the

U.S. Steel Permit is not supported by substantial evidence in the record and asserts that the

Agency did not provide any rationale for the decision to those requesting the hearing. Pet. Br. at

19. American Bottom asks the Board to remand the U.S. Steel permit to the Agency with

instructions to hold a hearing and make changes warranted by the information obtained.

Id

.

U.S. STEEL’S ARGUMENTS

U.S. Steel argues that the sole issue before the Board is whether the Agency abused its

discretion by denying American Bottom’s request for a public hearing on the proposed permit.

Resp. Br. at 1. U.S. Steel asserts that the administrative record and relevant law show that the

Agency did not abuse its discretion in denying the request.

Id.

U.S. Steel asserts that American Bottom raises a litany of issues that were not raised in

any comments to the Agency during the public notice comment period for the proposed permit,

and that such a strategy ignores the rule that the Board cannot consider any issues that were not

raised during the public notice period. Resp. Br. at 1-2. U.S. Steel argues that American Bottom

must demonstrate that there was a significant degree of public interest in the proposed permit to

warrant a hearing. Resp. Br. at 2.

U.S. Steel asserts that the Agency did provide American Bottom with opportunities to ask

questions and obtain more information about the proposed permit, in that the Agency provided

the name and telephone number of its permit engineer to contact with questions, and offered to

meet with American Bottom. Resp. Br. at 2.

U.S. Steel contends that American Bottom ignores binding and long-established case law

holding that the Agency’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. Resp. Br. at 2.

U.S. Steel stresses that the decision to hold a public hearing is a discretionary decision to be

made by the Agency. Resp. Br. at 7.

U.S. Steel argues that 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.” Resp. Br. at 7 citing Deen v. Lustig, 337 Ill . App. 3d 294,

302, 785 N.E.2d 521, 529 (4th Dist. 2003). U.S. Steel argues that the cases cited by American

Bottom to address standard of review deal with review for an agency's decision to issue a permit,

not the decision regarding a public hearing. Resp. Br. at 8.

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8

Further, U.S. Steel contends that 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 the

Agency’s issuance of a NPDES permit 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. Resp. Br. at 8-9. U.S. Steel asserts that it timely filed for a NPDES permit and

met its burden for the issuance of such a permit. Resp. Br. at 10. Accordingly, posits U.S. Steel,

the Agency 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

.

Id

. U.S. Steel argues that American Bottom has failed to demonstrate that it would present any

evidence at a requested public hearing or that it raised any issues in the January 17 or 18, 2005

comments that would affect the issuance of the final permit to U.S. Steel. Resp. Br. at 10.

U.S. Steel contends that American Bottom 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. Resp.

Br. at 12. U.S. Steel asserts that because these issues were not raised during the public notice

period, they cannot now be asserted as part of American Bottom’s petition. Resp. Br. at 12.

In addition, U.S. Steel asserts that American Bottom did not demonstrate that the public

interest is not generally in Horseshoe Lake or some other aspect pertaining to the regulation of

discharges to Horseshoe Lake, and that the interest must be specific to the NPDES permit

proposed by the Agency to be issued to U.S. Steel’s Granite City Works. Resp. Br. at 15. U.S.

Steel argues that the statutory language should be given its plain and ordinary meaning, and that

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.” Resp. Br. at 21 citing Merriam-Webster Online Dictionary,

http://www.m-w.com/dictionary/public

. U.S. Steel asserts that American Bottom has not made

the required showing that there was a significant interest from all the people that use Horseshoe

Lake, such that the Agency abused its discretion in denying the request for a public hearing.

Id

.

U.S. Steel asserts that only two requests for a public hearing were made. Resp. Br. at 21.

According to U.S. Steel, the first request was in HEJ’s January 17, 2005 comment, and 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 the Agency’s denial of HEJ’s public hearing request.

Id

. U.S. Steel argues that the other public hearing request of January 18, 2005, was purportedly

submitted on behalf of multiple organizations, but that 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. Resp. Br. at

22.

In the case at bar, argues U.S. Steel, there were not numerous requests for a public

hearing, only two requests making it well within the Agency’s discretion to find that there was

not a significant degree of public interest. Resp. Br. at 23. U.S. Steel asserts that American

Bottom 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.

Id.

U.S. Steel contends that American Bottom did

not present any evidence that it asked its membership whether members were interested in a

public hearing. Resp. Br. at 24.

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9

More tellingly, suggests U.S. Steel, 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. Resp. Br. at 24. U.S. Steel asserts that even if the

Board accepts American Bottom’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 American Bottom

Members deemed the denial of the public hearing request sufficiently important to appeal to the

Board.

Id.

U.S. Steel calculates that 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 the Agency’s decision

. Id.

U.S. Steel asserts that at the November 20, 2006 Board 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. Resp. Br. at 24,

citing Tr. at 135, 146. U.S. Steel argues that neither of the comments identifies any individual of

the public that would have an interest in attending a public hearing. Resp. Br. at 24.

U.S. Steel contends that the Agency did not commit any procedural error and did not

abuse its discretion in denying American Bottom’s public hearing request. Resp. Br. at 25.

Further, U.S. Steel argues that American Bottom was not denied a forum for resolving its

concerns with Horseshoe Lake in that although the Agency denied the request for a public

hearing American Bottom had numerous opportunities to raise the issues that were stated in its

January 18, 2005 letter to the Agency. Resp. Br. at 26.

Moreover, U.S. Steel argues, the Agency considered American Bottom’s comments

where it requested a public hearing or, in the alternative, a meeting with the Agency, and decided

to schedule a meeting with American Bottom to address its January 18, 2005 comments. Resp.

Br. at 26. U.S. Steel contends that this decision was entirely consistent with American Bottom’s

request, which stated, “[If] the Agency denies this request for a hearing, we ask for a meeting

with you and your staff.” Resp. Br. at 26.

U.S. Steel asserts that since American Bottom’s letter of January 18, 2006, asked for a

meeting if a hearing was not held, American Bottom waived its right to either a hearing or a

meeting when its representatives failed to follow through with any meeting with the Agency.

Resp. Br. at 27.

THE AGENCY’S ARGUMENTS

The Agency asserts that an administrative agency’s findings and conclusions on

questions of fact are deemed to be prima facie true and correct. Ag. Br. at 8, citing City of

Belvidere v. Illinois State Labor Relations Board, 18 Ill. 2d 191, 2004, 229 Ill. Dec. 522, 692

N.E.2d 295, 302 (1998). The Agency contends that 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, and that when a court reviews an agency’s decision involving a mixed question of

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10

law and fact, the court determines the law independently and applies it to the facts as found by

the agency unless the findings are clearly erroneous. Ag. Br. at 8.

The Agency argues that Section 309.115(a) of the Board regulations directs the Agency

to hold a public hearing only when it finds that there is a “significant degree of public interest in

a draft permit.” Ag. Br. at 8. The Agency views this as a two step process: the first step

requiring the Agency to review and evaluate the facts presented by the interest groups during the

comment period, and the second step requiring the Agency to apply the significant degree of

public interest standard to the facts to determine if the standard is satisfied. Ag. Br. at 8-9.

Under Section 309.115(a), asserts the Agency, 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. Ag. Br. at 9. The

Agency argues that 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.

Id.

The Agency contends that the decision to hold a public hearing lies within the discretion

of the Agency. Ag. Br. at 9. Further, argues the Agency, the courts have long held that it is only

the alleged abuse of discretion, not discretion itself that is reviewable on appeal. Ag. Br. at 11,

citing McFarlan v. Fowler Bank City Trust Co., 214 Ind. 10, 14, 12 N.E.2d 752 (Ind. 1938). The

Agency asserts that the courts have regularly required that in order for an abuse of discretion to

be present, it must amount to more than an error of judgment and that the decision is arbitrary

and unreasonable, or is clearly wrong, and that further, the appropriate test for abuse of

discretion is whether the Agency exceeded the bounds of reason. Ag. Br. at 11, citing Nestle v.

City of Santa Monica, 6 Cal.3d 920, 101 Cal.Rptr. 568, 496 P.2d 480 (Cal. 1972).

An abuse of discretion, argues the Agency, is not shown by the mere fact that one or

more of the judges of a court would have exercised the discretion differently if sitting as a trial

court. Ag. Br. at 12, citing

Halliday v. Diehm, 11 Ohio App. 398 (1919). The Agency notes that

the Environmental Appeals Board (EAB) has also required that an abuse of discretion must be

present in order for it to set aside an EPA decision under Part 124. Ag. Br. at 12, citing

Dominion Energy Brayton Point, L.L.C. (Feb. 1, 2006).

Thus, the Agency argues, in order for the Board to find that the Agency abused its

discretion, there must have been a clearly erroneous 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,

and the Board should view the inferences of the facts in the light most favorable to the Agency.

Ag. Br. at 12-13.

The Agency argues that a public hearing is required only if the significant degree of

interest is present in the proposed permit, and that the USEPA recently provided a better test to

decide when to hold a hearing. Ag. Br. at 13. The Agency states that in a press release the

USEPA provided 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. [USEPA] will hold a public hearing if it

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11

decides there is a significant degree of public interest in the draft permit, or if the comment raises

an issue that the USEPA believes is important.” Ag. Br. at 13, citing 2005 WL 1685556 (E.P.A.)

(July 20, 2005).

In order for American Bottom 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, the

Agency believes, it must show that the comment letters had more than general statements of

environmental concerns over the risks that U.S. Steel’s NPDES permit poses to Horseshoe Lake.

Ag. Br. at 15. Instead, the Agency continues, American Bottom must clearly articulate problems

with the specific permit conditions in the draft permit, and must further show that comments

were directly related to the NPDES permit issues, and not the Clean Air Act or Resource

Conservation and Recovery Act issues.

Id.

The Agency asserts that interested persons may submit written comments concerning the

Agency’s tentative determinations and may request a public hearing, and that the written

comments must be considered by the Agency in making its final determinations. Ag. Br. at 16.

If, the Agency contends, 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.

Id.

In this case, the Agency argues, though a public hearing was not granted by responding to

the comment letters received at the close of the comment period, the Agency met the public

participation requirements of the Clean Water Act. Ag. Br. at 16.

The Agency asserts that the Board, consistent with the holding of the court in Prairie

Rivers, has held that under Section 40(e)(3) of the Act, in a third party NPDES permit appeal, the

burden of proof is on the third party. Ag. Br. at 16, citing Prairie Rivers, 781 N.E.2d 372, 380.

The Agency emphasizes that American Bottom must prove that the Agency’s record at the close

of the comment period 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 request to hold a hearing on the basis of the information before it at

the close of the comment period. Ag. Br. at 17-18.

The Agency argues that American Bottom has failed to establish that a significant degree

of public interest existed in the draft permit. Ag. Br. at 18. The Agency contends that in order to

see if a public hearing should be held it considers: (1) whether a high degree of public interest

exists, either 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. Ag. Br. at 19. 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.

Id.

The Agency declares that in reviewing the comments in this case, the Agency found that

the nature and extent of comments received during the comment period were general in nature,

and were non-significant in that they did not provide any specific or additional information that

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12

the Agency could have used in drafting the permit. Ag. Br. at 19. Further, the Agency claims

that the comments contained facts the Agency already knew, or issues not pertaining to the

permit. Ag. Br. at 19-20.

The Agency argues that in order to satisfy its burden in this case American Bottom 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 that the Agency’s decision was clearly erroneous,

and not a “poor” decision. Ag. Br. at 21.

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, but that these two factors alone are not sufficient to

satisfy the criteria described in Section 309.115(a) of the Board regulations. Ag. Br. at 21. The

Agency stresses that if it were required to hold a public hearing purely based on the public use of

a waterbody and a request from a group, it would have to hold approximately 300 NPDES permit

public hearings each year; a result not intended by the Clean Water Act.

Id.

The Agency argues that American Bottom 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. Ag. Br. at 22. Such comments, contends the Agency, would be of

significant relevance were the Agency conducting a total maximum daily load (TMDL) on

Horseshoe Lake, and 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, and would, in fact, conduct a public

hearing and several public meetings before a final TMDL would be established for Horseshoe

Lake. Ag. Br. at 22-23.

The Agency argues that American Bottom has failed to show that its comments regarding

diseased fish caught in Horseshoe Lake sediments amounted to a significant degree of public

interest. Ag. Br. at 26. Further, the Agency stress that the Board has already dismissed

American Bottom’s arguments concerning the adequacy of the permit limits, and that the sole

issue before the Board is whether the Agency’s record contained substantial evidence at the time

of the close of the comment period, that the Agency abused its discretion by not granting the

hearing in this case. Ag. Br. at 27-28.

DISCUSSION

The Board has consistently held that to have standing in an NPDES permit appeal as a

third-party petitioner under Section 40(e)(2) of the Act, a petitioner must show that he raised the

issues contained in the petition during the public comment period. Wesley Brazas v. IEPA, PCB

06-131 slip op at 3-4 (May 4, 2006),. 415 ILCS 5/40(e)(2) (2004). The record shows that

American Bottom did submit a timely public comment raising the request for a public hearing.

Agency Rec. at 518.

A petitioner in a third party NPDES permit appeal bears the burden of establishing that

the permit as issued would violate the Act or Board regulations. In this case, the Board finds that

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13

American Bottom must establish that the permit issued to U.S. Steel will violate the Act or Board

regulations in order for the Board to find for American Bottom in this matter.

Section 309.115 of the Board’s regulations provides that the Agency shall hold a public

hearing on the issuance of a NPDES permit whenever the Agency determines that there exists a

significant degree of public interest in the proposed permit or group of permits. 35 Ill. Adm.

Code 309.115(a). The section further provides that instances of doubt shall be resolved in favor

of holding the hearing

. Id.

As both the Agency and U.S. Steel have argued, the Agency has

discretion in determining whether or not to hold a public hearing prior to the issuance of an

NPDES permit. Marathon Oil Co. v. IEPA, PCB No. 92-166 (Mar. 31, 1994), citing Borg-

Warner Corp v. Mauzy, 100 Ill. App. 862, 867, 427 N.E.2d 415, 419 (3rd Dist. 1981).

In Marathon Oil, the issue regarding the Agency’s failure to hold a hearing was not

properly before the Board. However, the Board stated that “[a]ssuming arguendo that the matter

of the hearing was properly before the Board in this permit appeal, the Board could not find

favor with Marathon’s request for the Agency to now be ordered to hold a hearing.” Marathon

Oil, PCB 92-166, slip op. at 10. The Board continued that Marathon had failed to present any

argument that would allow the Board to conclude that the Agency abused its discretion or

otherwise failed to comport with the requirements pertaining to NPDES hearings was presented.

Marathon Oil, PCB 92-166, slip op. at 10.

In the instant case, American Bottom has presented such an argument, and the issue of

whether or not the Agency abused its discretion in deciding not to hold a hearing is squarely

before the Board. In reviewing the Agency’s decision not to hold a public hearing, the Board

applies the standard applicable to all reviews of an Agency’s permit decision - whether or not the

issuance of the permit violates the Act or Board regulations. Thus, the Board does not apply an

“abuse of discretion” standard as advocated by U.S. Steel. The regulation at issue is Section

309.115(a), which requires the Agency to hold a public hearing if the Agency determines that

there is significant public interest.

As stated earlier, the Board’s review of permit appeals is limited to information before

the Agency during the Agency’s statutory review period, and is not based on information

developed by the permit applicant, or the Agency, after the Agency’s decision. Prairie Rivers

Network v. IEPA and Black Beauty Coal Company, PCB 01-112 (Aug. 9, 2001)

aff’d

at 335 Ill.

App. 3d 391, 401; 781 N.E.2d 372, 380 (4th Dist. 2002).

The record shows that two public comments requesting a hearing were before the Agency

prior to the close of the underlying public comment period. The first comment was filed by HEJ

and asked the Agency to hold a public hearing on the U.S. Steel NPDES permit, noting that the

permit warrants public involvement because it impacts directly a recreational body of water

promoted by the DNR for boating, fishing, bird watching, and waterfowl hunting. AR at 532.

The second comment was filed by American Bottom along with the Sierra Club, Webster Groves

Nature Study Society, HEJ, and the Neighborhood Law Office. That stated that the named

organizations request that the Agency hold a public hearing for the U.S. Steel NPDES in order to

allow citizens to ask questions and present information and testimony, noting that the

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organizations had recently received certain reports and had not had time to review them or to get

technical guidance as to their meaning. Agency Rec. at 539.

The Board finds that the two public comments filed in this case evidence a significant

degree of public interest in the proposed permit. Each comment expressly asks for a public

hearing citing the wide use of the lake as well as concerns with the permit itself. American

Bottom has a membership of approximately 100 people. Tr. at 24. The Sierra Club, has

approximately 26,000 members in Illinois and 650 members in the area around Horseshoe Lake.

Tr. at 126. Webster Groves Nature Study Society has over 400 members, and HEJ has

approximately 500 members. Tr. 100, 144.

The Board is not convinced by U.S. Steel’s argument that no individual members of the

public, independent of any private organization, submitted a comment is somehow indicative of

a general lack of interest in the permit. Citizens become members of environmental (and other)

organizations of like-minded people in no small part because the collective voice is louder than

that of the individual. To penalize such individuals for relying on the organization to make

comments on their behalf seems counter-intuitive. In addition, the fact that, as asserted by U.S.

Steel, multiple witnesses admitted that the January 17 and 18, 2005 comments did not identify

any individual of the public who would be adversely affected by U.S. Steel’s permit, is not

persuasive. The standard for deciding whether or not to hold a public hearing, simply does not

require one to be adversely affected.

Further, even the standard the Agency asserts has recently been developed by the USEPA

mandates a hearing in this case. In the standard, the USEPA 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 the USEPA believes is important. As the Board has found that there is a significant

degree of public interest in this case, the USEPA standard supports the need for a hearing.

Again, based on the Agency’s record at the close of the comment period, the decision that there

was not a significant degree of public interest was clearly incorrect.

Finally, the Board notes that the regulation itself expressly provides that instances of

doubt shall be resolved in favor of holding the hearing.

See

35 Ill. Adm. Code 309.115(a). This

caveat coupled with the strong showing of public interest in the draft permit, renders the

Agency’s decision in violation of Section 309.115(a). Thus, the permit as issued violates Section

309.115(a) of the Board’s regulations.

CONCLUSION

The Board finds that the Agency’s decision not to hold a public hearing prior to the

issuance of the U.S. Steel permit violates Section 309.115(a) of the Board’s regulations..

Accordingly, American Bottom has established that the permit as issued would violate the Act

and Board regulations, and the Board finds the permit issued by the Agency on March 31, 2006,

to U.S. Steel for its steelmaking facility at 20th and State Streets, in Granite City, Madison

County is invalid.

IT IS SO ORDERED.

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Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2004);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above opinion and order on January 26, 2007, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board