V .
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
AMERICAN BOTTOM CONSERVANCY,
Petitioner,
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY, and UNITED STATES STEEL
CORPORATION - GRANITE CITY WORKS
Respondents .
To: Sanjay K . Sofat
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O
. Box 19274
Springfield, IL 62794-9274
PLEASE TAKE NOTICE that on February 22, 2007 there was filed with the Clerk of
the Illinois Pollution Control Board of the State of Illinois an original and executed copies of
the
United States Steel Corporation's Motion to Reconsider Order of January
26, 2007
and United States Steel Corporation's Memorandum in Support of Motion to Reconsider
Order of January
26, 2007, copies of which is herewith served upon you .
Dated
: February 22, 2007
Carolyn S. Hesse
David T . Ballard
Barnes & Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
By :
NOTICE OF FILING
Respectfully submitted,
One of Its Attorneys
RECEIVED
CLERK'S
OFFICE
FEB 2 2 2007
STATE OF ILLINOIS
Pollution Control Board
Case No. PCB 2006-171
(NPDES Permit Appeal)
Edward J . Heisel
Interdisciplinary Environmental Clinic
Washington University School of Law
One Brookings Drive
Campus Box 1120
St
. Louis, MO 63130-4899
United States Steel Corporation - Granite
City Works,
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
AMERICAN BOTTOM CONSERVANCY, )
Petitioner,
)
ILLINOIS ENVIRONMENTAL )
PROTECTION AGENCY, and UNITED
)
STATES STEEL CORPORATION - )
GRANITE CITY WORKS,
)
Respondents.
)
PCB No. 2006-171
(NPDES Permit Appeal)
UNITED STATES STEEL CORPORATION'S MOTION
TO RECONSIDER ORDER OF JANUARY26, 2007
Respondent, United States Steel Corporation - Granite City Works ("U
. S
. Steel"),
pursuant to 35 111 . Adm. Code §§ 101 .520 and 101 .902, moves the Board to reconsider its
January 26, 2007 Order with respect to the Board's invalidation of the final NPDES permit
issued to U
. S
. Steel's Granite City Works facility ("Granite City Works") on March 8, 2006 (the
"Final Permit") . In support of its Motion, U
. S
. Steel states as follows:
1 .
On May 4, 2006, the American Bottom Conservancy ("ABC") filed a third-party
appeal of the Final Permit, alleging that IEPA violated its administrative duties by denying
ABC's request for a public hearing on the proposed permit .
2.
On January 26, 2007, the Board entered an Opinion and Order (the "Board's
Order") in favor of ABC and found that IEPA should have held a public hearing before issuing
the Final Permit
.
Because of IEPA's purported failure to hold a public hearing, the Board
invalidated the Final Permit .
3 .
U. S
. Steel now moves to reconsider only the portion of the Board's Order that
invalidated the current NPDES permit because the Board misapplied existing law
. Specifically,
RECEIVED
CLERK'S OFFICE
FEB 2 2 2007
STATE OF ILLINOIS
Pollution Control Board
[This filing submitted on recycled paper as defined in 35 111 . Adm . Code 101 .202]
the Board should reconsider its invalidation of the Final Permit because ABC did not present any
evidence to support such an invalidation .
4 .
Section 39(a) of the Illinois Environmental Protection Act, 415 ILCS
5/1, et seq .
(the "Act") provides that it "shall be the duty of' IEPA to issue an NPDES permit where an
applicant shows that its facility's operations will not cause a violation of the Act, or its attendant
water quality standards or regulations.
5.
Although the Board found that IEPA failed to hold a public hearing, ABC
presented no evidence demonstrating that Granite City Works operations and discharges under
the Final Permit violate the Act or any water quality standards or related regulations .
6.
In the absence of any such violation, and considering the prejudice to U
. S
. Steel
if the Final Permit is vacated, the Board should instead allow U
. S . Steel to continue operating
under the Final Permit pending the outcome of the public hearing ordered by the Board . After
such hearing is conducted, IEPA can determine whether any modification of the Final Permit is
necessary.
7.
U. S . Steel hereby incorporates its Memorandum in Support of Motion to
Reconsider January 26, 2007 Order file currently herewith .
2
[This filing submitted on recycled paper as defined in 35 111 . Adm. Code 101 .202]
WHEREFORE, U
. S
. Steel requests that the Board reconsider its January 26, 2007 Order,
reverse its invalidation of the current NPDES permit for the U
. S
. Steel Granite City Works
facility, order IEPA to hold a public hearing on the Final Permit and make modifications to the
Final Permit, if necessary, based on the public comments, and grant all relief it deems fair and
just.
Dated
: February 22, 2007
Carolyn S . Hesse
Erika K
. Powers
David T. Ballard
Barnes & Thornburg LLP
One North Wacker Drive - Suite 4400
Chicago, Illinois 60606
(312) 357-1313
382007v1
By:
Respectfully submitted,
U. S
.
Steel Corporation - Granite City Works
One of Its
flyU~Attorneys
3
[This tiling submitted on recycled paper as defined in 35 111 . Adm. Code 101
.2021
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, and UNITED
STATES STEEL CORPORATION -
GRANITE CITY WORKS,
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
AMERICAN BOTTOM CONSERVANCY, )
Petitioner,
)
v.
)
PCB No. 2006-171
Respondents.
)
(NPDES Permit Appeal)
UNITED STATES STEEL CORPORATION'S MEMORANDUM IN SUPPORT OF
MOTION TO RECONSIDER ORDER OF JANUARY 26, 2007
Respondent, United States Steel Corporation - Granite City Works ("U. S . Steel"),
pursuant to 35 Ill . Adm . Code §§ 101 .520 and 101 .902, moves the Board to reconsider its
January 26, 2007 Order with respect to the Board's invalidation of the final NPDES permit
issued to U
. S
. Steel's Granite City Works facility ("Granite City Works") on March 8, 2006 (the
"Final Permit") . In support of its Motion, U . S . Steel states as follows :
INTRODUCTION
The American Bottom Conservancy ("ABC") filed a third-party appeal of the Final
Permit, alleging that IEPA violated its administrative duties by denying ABC's request for a
public hearing on the proposed permit . On January 26, 2007, the Board entered an Opinion and
Order (the "Board's Order") in favor of ABC and found that IEPA should have held a public
hearing before issuing the Final Permit
. Because of IEPA's purported failure to hold a public
hearing, the Board invalidated the Final Permit . U. S . Steel now moves to reconsider only the
portion of the Board's Order that invalidated the current NPDES permit .
[This filing submitted on recycled paper as defined in 35 111 . Adm. Code 101 .2021
REC
CLERK'S
'SFFQ
FEB 2 2 2007
Pollution
OF
control
ILLINOIS
Board
The Board should reconsider its invalidation of the Final Permit because ABC did not
present any evidence to support such an invalidation
. Section 39(a) of the Illinois Environmental
Protection Act, 415 ILCS 5/1, et seq .
(the "Act") provides that it "shall be the duty of' IEPA to
issue an NPDES permit where an applicant shows that its facility's operations will not cause a
violation of the Act, or its attendant water quality standards or regulations
. Although the Board
found that IEPA failed to hold a public hearing, ABC presented no evidence demonstrating that
Granite City Works operations and discharges under the Final Permit violate the Act or any
water quality standards or related regulations
. In the absence of any such violation, and
considering the prejudice to U
. S . Steel if the Final Permit is vacated, the Board should instead
allow U. S
. Steel to continue operating under the Final Permit pending the outcome of the public
hearing ordered by the Board
. After such hearing is conducted, IEPA can assess whether any
modification of the Final Permit is necessary .'
BACKGROUND FACTS
1 .
On October 14, 2002, U . S
. Steel submitted an application to renew its NPDES
permit to IEPA for its Granite City Works facility located in Granite City, Illinois . R. 135 2 This
facility has had NPDES permits ever since such permits have been required . R. 554
. After
conducting a thorough analysis of the facility and its discharges into Horseshoe Lake, on
December 19, 2004, IEPA issued a proposed NPDES permit for the Granite City facility (the
"Proposed Permit"), which would allow the facility to continue to discharge into Horseshoe Lake
in compliance with Illinois water quality standards
. R. 518 .
In requesting reconsideration only of the portion of the Board's Order invalidating U . S . Steel's permit, U . S .
Steel does not waive any other issues in the Order that may be raised on appeal
. Such a reservation for appealing
other issues in the Order is proper under the Board's rules because U . S . Steel is not required to file a motion to
reconsider a particular issue in order to appeal such issue
. 35 Ill . Adm . Code § 101 .904(0 ("A motion for
reconsideration of a final Board order is not a prerequisite for the appeal of that final Board order .")
z Citations of "R .
,"
will be to the Administrative Record.
2
[This filing submitted on recycled paper as defined in 35 Ill .
Adm. Code 101 .202]
2.
On January 17, 2005, Kathleen Logan Smith submitted a comment to IEPA on
behalf of the Health & Environmental Justice
- St. Louis
("HEJ") . R. 532
. That letter requested
that IEPA hold a public hearing related to the Proposed Permit "because it impacts directly a
recreational body of water promoted by the Illinois Department of Natural Resources for boating,
fishing, bird watching, and waterfowl hunting
." R
. 532
. The letter also asserted that the
Proposed Permit would allow lead to be discharged into Horseshoe Lake, which "would add up
to hundreds of pounds and may have a serious detrimental effect on organisms living in the
lake." R. 532 . 3
The letter did not state or describe any evidence to support this assertion
. The
letter did not identify any regulations or sections of the Act that would be violated if the
Proposed Permit was issued
. R. 532 .
3 .
On January 18, 2005, Katherine Andria and four other individuals submitted
comments on behalf of ABC, HEJ, Neighborhood Law Office (East St
. Louis), Sierra Club, and
Webster Groves Nature Study Society
. R. 537-539
. That letter requested that IEPA hold a
public hearing on the Proposed Permit
. R. 537
. The January 18, 2006 letter commented that
Horseshoe Lake is impaired for PCBs, pH, suspended solids, excessive algal growth, ammonia
(unionized), nutrients, phosphorus, total and ammonia-N, and that "[w]e
have seen fish caught at
Horseshoe Lake with melanoma ." R. 537.4
The letter stated that Professor Richard Brugam at
Southern Illinois University at Edwardsville showed that the testing of sediments in Horseshoe
Lake shows high concentrations of lead, although the letter did not provide a copy of any study
from Professor Brugam . R. 537. The letter also stated
:
a
It should be noted that U . S
. Steel does not use lead in its processes . R. 601 . The increased limits that appear on
Cpaper
.F.Rare
. 420
due
. Id
to
.
production changes and are is consistent with effluent limitation guidelines and federal rules at
40
° The fish advisory in effect for Horseshoe Lake is for
PCBs, which U. S . Steel does not discharge
. R . 554 .
3
[This filing submitted on recycled paper as defined in 35 Ill
. Adm . Code 101 .2021
Granite City Steel in this permit would be allowed to put additional
lead into the lake
. It would be allowed to put additional ammonia
into the lake
. That appears to be contrary to the Clean Water Act
and to the Bureau of Water's stated mission to ensure that Illinois'
rivers, streams and lakes will support all uses for which they are
designated including protection of aquatic life and recreation
.
R. 537
. The letter also provided information purportedly from a U
.S
. EPA Enforcement &
Compliance History Online (ECHO) report containing the facility's compliance history
. R
. 537-
38
. ABC's letter did not identify any provisions of the Act or regulatory standards for the
protection of water quality that would be violated if the Proposed Permit was issued as drafted
.
R. 537-539
.
4 .
On March 8, 2006, IEPA issued the Final Permit for U
. S. Steel's Granite City
Works facility . R
. 637 .
5.
On March 31, 2006, IEPA reissued the Final Permit to coincide with its issuance
of the responses to the comments it received
. R
. 645, 648, 651-657 .
6 .
On May 4, 2006, ABC filed by mail its Petition for Review alleging, among other
things, that IEPA improperly denied ABC's request for a public hearing
. Petition for Review,
¶¶ 27-29
.
7.
On November 20, 2006, a hearing was held before the Board Hearing Officer on
whether IEPA improperly denied ABC's request for a public hearing
.
8 .
On January 26, 2007, the Board issued an Order finding that IEPA's decision not
to hold a public hearing prior to the issuance of the Final Permit violated section 309
.115(a) of
the Board's regulations
. See Jan
. 26, 2007 Order, p. 14
. Specifically, the Board found "that the
two public comments filed in this case [i.e.,
the January 17 and 18, 2005 letters] evidence a
significant degree of public interest in the proposed permit ."
Id. Based on its ruling that IEPA
improperly failed to hold a public hearing, the Board found that "the permit issued by the
4
[This filing submitted on recycled paper as defined in 35 111
. Adm
. Code 101 .202]
Agency on March 31, 2006, to U .S
. Steel for its steelmaking facility at 20` 0 and State Streets, in
Granite City, Madison County is invalid."
Id.'
ARGUMENT
I.
Standard of review for motion to reconsider.
Under the standard for a motion to reconsider, the Board should reconsider its decision to
invalidate the Final Permit as an error in the application of existing law under the Act
. A party
can file a motion to reconsider "to bring to the [Board's] attention newly discovered evidence
which was not available at the time of the hearing, changes in the law or
errors in the [Board's]
previous application of existing law
." People v . Community Landfill Co, Inc.,
PCB No. 03-
191, 2006 Ill . Env. LEXIS 323, *2-3 (June 1, 2006) (emphasis added)
. Moreover, a "motion to
reconsider may specify `facts in the record which were overlooked
. "' Id. (quoting Wei
Enterprises v. IEPA, PCB No. 04-23, slip
op. at 5 (Feb. 19, 2004).
II.
The Board should reconsider its invalidation of the Final Permit because there is no
evidence that U. S. Steel's operation of the Granite City facility under the Final
Permit will cause a violation of the Act or its regulations .
Under section 39(a) of the Act, "[w]hen the Board has by regulation required a permit for
the construction, installation, or operation of any type of facility . . . , the applicant shall apply to
the Agency for such permit and it
shall be the duty of the Agency to issue such a permit upon
proof by the applicant that the facility
. . . will not cause a violation of this Act or of regulations
hereunder
." 415 ILCS 5/39(a) (emphasis added) . Under this section, U . S . Steel timely filed an
application with IEPA for an NPDES permit and met its burden for the issuance of such a permit .
Accordingly, IEPA was required to issue an NPDES permit to Granite City Works because the
discharges from the facility will not cause a violation of the Act or its regulations .
5 According to 35 111 . Adm . Code § 101 .520(a), "Any motion for reconsideration . . . of a final Board order must be
filed within 35 days after the receipt of the order ." U
. S
. Steel received a copy of the Board's Order on February 5,
2007 . Because the deadline for filing a motion to reconsider is March 12, 2007, this Motion is timely filed .
5
[This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101 .2021
Despite U. S
. Steel's compliance with section 39(a), the Board's Order invalidated the
Final Permit
. That invalidation should be reconsidered and reversed . At the hearing of this case,
ABC did not present any evidence that any issue in the January 17, 2005 or January 18, 2005
comments would demonstrate that the operation of the Granite City facility would cause a
violation of the Act or its regulations thereunder . See R
. 532, 537-539 .6 Specifically, neither the
January 17, 2005 nor January 18, 2005 letters raise any issues alleging that there is a potential for
the regulated discharge to exceed established water quality standards if the Proposed Permit was
issued as drafted
. Instead, the comments discussed issues unrelated to the Granite City facility's
operations under the Proposed Permit
. For instance, the January 17, 2005 comment states that
discharges of lead from the Granite City Works facility over a period of years "would add up to
hundreds of pounds and may have a serious detrimental effect on organisms living in the lake."
R. 532
. HEJ, however, was unable to state that the alleged lead discharges would violate any
water quality standard or other regulation . Contrary to the implications contained in the
comments, U . S. Steel does not use lead as an additive in its processes (R
. 601),7 and HEJ failed
to provide evidence to support its contention concerning lead discharges to the Lake . In other
words, the comment may involve an issue with regard to Horseshoe Lake generally, but it did not
show that any particular provision in the Proposed Permit or the operation of Granite City Works
would cause a violation of the Act or its regulations .
Similarly, the January 18, 2005 letter states that Horseshoe Lake is impaired for various
pollutants
. That issue, however, is properly addressed through the process related to impaired
6
In its Order, the Board properly found that the only evidence that could be considered was the January 17 and 18,
2005 letters because those were the only documents submitted to IEPA during the public comment period
. See Jan.
26, 2007 Order, pp . 12-13 ; see also
415 ILCS 5/40(e)(2) (a third-party petition "shall include . . . a demonstration
that the petitioner raised the issues contained within the petition during the public notice period or during the public
on the NPDES permit application, if a public hearing was held ; . . .") .
'
Specifically, IEPA found that "The facility does not use Lead, and the increased load limits are due to increased
production ." R . 601 .
6
[This filing submitted on recycled paper as defined in 35111 .
Adm. Code 101 .2021
waters and the development of total maximum daily loads under section 303(d) of the federal
Clean Water Act, and is irrelevant to whether the issuance of a permit may allow a facility to
violate a provision of the Act or its regulations . The January 18, 2005 letter also raises the
compliance history of Granite City Works with its permit limits by citing information from an
U.S . EPA Enforcement and Compliance Online (ECHO) report . That, however, is not a
permitting issue, but involves IEPA's enforcement of permit limits and was being addressed
under relevant enforcement mechanisms. R. 604. ("The IEPA and US EPA have monitored the
compliance and have taken appropriate actions in response to permit exceedences.") This
enforcement information is irrelevant to whether a permit should be issued under section 39(a) of
the Act.8
In addition, ABC alleged that fish with melanoma were caught with melanoma in
Horseshoe Lake . R. at 537. Assuming arguendo that the allegation is true, ABC presented no
evidence that Granite City Works discharges cause such melanoma, or that discharges under the
Final Permit would violate the Act or its regulations . ABC did not establish an increased rate of
melanoma in Horseshoe Lake that could be connected to potential discharges under the Proposed
Permit . Accordingly, the Final Permit should not have been invalidated on the basis of ABC's
comment involving melanoma .
ABC's comment letter also charged that "Canteen Lake, which is part of the same lake,
but privately owned, tested high in cadmium ." R. 537 . Again, this comment is irrelevant to the
issuance of the Final Permit
; cadmium was not detected by the facility in its effluent samples,
"nor was any [cadmium] in 19 Agency samples ." R. 342 . IEPA concluded "that no regulation
'
In addition, the information in the ECHO report can be misleading, because a single exceedance in a grab sample
or 24-hour composite sample during a quarter appears in the ECHO report as a violation for the quarter
. R. 556, 604 .
A person who is not familiar with the report or does not investigate further could erroneously conclude that a facility
with a violation in a single sample for a single parameter was out of compliance for the whole quarter .
7
[This filing submitted on recycled paper as defined in 35111 . Adm
. Code 101 .202]
of cadmium is necessary and that no monitoring beyond the routine requirements is needed ." Id.
This lack of connection between ABC's comments and the Final Permit -further demonstrates
that the Final Permit should not be invalidated .9
Because there was no evidence presented by ABC that the Granite City facility's
operation under the Final Permit would cause a violation of the Act or its regulations, the Final
Permit should not be invalidated
. Instead, the Board should reconsider its Order and allow
Granite City Works facility to continue operating under the Final Permit pending the outcome of
a public hearing
. After it holds the public hearing, IEPA can determine whether the Final Permit
needs to be modified as the result of any comments or issues raised at the public hearing
. Such a
remedy is not only legally proper under section 39(a) of the Act, but it is also a necessary
practical solution for addressing the permitted discharge at Granite City Works . Granite City
Works has been operating under the Final Permit for almost a year, and has made modifications
to its facility and operations as a result of the requirements contained in the Final Permit . Unless
the Board reconsiders its Order and allows Granite City Works to continue operating under the
Final Permit pending the outcome of a public hearing, U
. S
. Steel will now have to undo such
modifications to comply with its previous NPDES permit until IEPA issues a new permit after
the public hearing .
If IEPA decides to issue a permit with the same provisions as the Final
s The Final Permit limits for lead, zinc and ammonia increased because the limits for lead and zinc are based on the
federal categorical limits at 40 C .F.R. 420, which are production-based, and because the ammonia water quality
standard in Horseshoe Lake changed since the prior permit was issued
. R. 601 . It should also be noted that the
concentration-based limits were set to meet the water quality standards for Horseshoe Lake . See Correspondence
from Alan Keller at IEPA, dated April 10, 2006 (as attached to ABC's First Motion to Supplement the Record), p . 3
("the Agency has concluded that the NPDES permit issued March 31, 2006 is protective of water quality . . ."); see
also, id., pp . 2-5 .
8
[This filing submitted on recycled paper as defined in 35 111 .
Adm. Code 101
.2021
Permit, U
. S . Steel will then have to again implement modifications to address the new permit
. 1°
The Board's invalidation of the Final Permit should be reconsidered and reversed.
CONCLUSION
For the foregoing reasons, U . S . Steel requests that the Board reconsider its January 26,
2007 Order, reverse its invalidation of the current NPDES permit for the U
. S . Steel Granite City
Works facility, order IEPA to hold a public hearing on the Final Permit and make modifications
to the Final Permit, if necessary, based on the public comments, and grant all relief it deems fair
and just.
Dated: February 22, 2007
Respectfully submitted,
U Steel orporation - Granite City Works
By :
Carolyn S . Hesse
Erika K. Powers
David T. Ballard
Barnes & Thornburg LLP
One North Wacker Drive - Suite 4400
Chicago, Illinois 60606
(312) 357-1313
382004v1
One of Its Attorneys
10 For example, U . S . Steel has been able to treat its landfill leachate through piping that was constructed in reliance
on the issuance of the Final Permit, which allowed for a new outfall . If the Final Permit is invalidated, U . S . Steel
will be forced to deconstruct the piping, and treat the leachate by transporting it with vehicles, as U . S . Steel was
doing under its prior permit . If IEPA then issues a new permit with new outfall back in place, U . S . Steel will have
to re-construct the piping .
9
[This filing submitted on recycled paper as defined in 35 III . Adm . Code 101 .202]
CERTIFICATE OF SERVICE
I, the undersigned, a non-attorney, certify, under penalties pursuant to 735 ILCS 5/1-109,
that I caused to be served the attached,
United States Steel Corporation's Motion to
Reconsider Order of January 26, 2007 and United States
Steel Corporation's
Memorandum in Support of Motion to Reconsider Order of January
26, 2007, by U .S .
Mail, postage prepaid, from One North Wacker Drive, Suite 4400, Chicago, Illinois 60606, on
this 22nd day of February, 2007, upon the following :
Sanjay K . Sofat
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
sanjay.sofat@epa .state.il.us
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, IL 62794-9274
webbc@ipcb
.state.il.us
CHDSOI DTB 370790v1
THIS FILING IS SUBMITTED ON RECYCLED PAPER
2
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
