AMERICAN BOTTOM CONSERVANCY,
Petitioner,
V .
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY, and UNITED STATES STEEL
CORPORATION - GRANITE CITY WORKS
Respondents .
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
RECEIVED
CLERKS OFFICE
Dated: March 9, 2007
Carolyn S . Hesse
David T. Ballard
Barnes
& Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
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 March 9, 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 Amended Motion to Reconsider Order of January 26,
2007 and United States Steel Corporation's Memorandum in Support of Amended Motion
to Reconsider Order of January
26, 2007, copies of which is herewith served upon you
.
NOTICE OF FILING
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
MAR 0 9 2007
STATE OF ILLINOIS
Pollution Control Board
Respectfully submitted,
United States Steel Corporation -
Granite City
Works,
By
:
One
Q
of
P~-J
Its
Attorn s
"~~~
THIS FILING IS SUBMITTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
I, the undersigned, an attorney, certify that I caused to be served the attached,
United
States Steel Corporation's Amended Motion to Reconsider Order of January
26, 2007
and United States Steel Corporation's Memorandum in Support of Amended 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 9 t Day of March, upon the
following:
Sanjay K . Sofat
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P
.O
. Box 19276
Springfield, IL 62794-9276
sanjay.sofat@epa. state . il. us
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P
.O
. Box 19274
Springfield, IL 62794-9274
webbc@ipcb .state .il.us
Edward J . Heisel
Interdisciplinary Environmental Clinic
Washington University School of Law
One Brookings Drive
Campus Box 1120
St. Louis, MO 63130-4899
ejheisel@wulaw.wustl .edu
n
(I
j IY «A ~~
Carolyn S . He se
381992v1
THIS FILING IS SUBMITTED ON RECYCLED PAPER
2
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
RECEIVED
CLERK
:S
OFFICE
AMERICAN BOTTOM CONSERVANCY,
)
MAR 0 9
2007
Petitioner,
)
Pollution
STATE OF
Control
ILLINOIS
Board
v.
)
PCB No. 2006-171
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY, and UNITED
)
STATES STEEL CORPORATION -
)
GRANITE CITY WORKS,
)
Respondents .
)
UNITED STATES STEEL CORPORATION'S AMENDED MOTION
TO RECONSIDER ORDER OF JANUARY 26, 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
.' In support of its Amended Motion, U
. S. Steel states as follows
:
I .
On May 4, 2006, the American Bottom Conservancy
("ABC") filed a third-party
appeal 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"), 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 .
On February 22, 2007, U . S
. Steel filed a Motion to Reconsider, By the filing of this Amended Motion to
Reconsider, U . S
. Steel withdraws its previously-filed Motion
.
[This tiling submitted on recycled paper
as defined in 35 111 . Adm. Code 101
.2021
3 .
U. S
. Steel now moves the Board to reconsider its Order because the Board
misapplied existing law .
4 .
As an initial matter, the Board should reconsider its invalidation of the Final
Permit because ABC did not present any evidence to support such an invalidation, and did not
meet its burden of proof to show that the permit should be invalidated
. 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 . IEPA met that duty.
5
.
Although the Board found that IEPA violated Section 309
.115(a) because IEPA
failed to hold a public hearing as ABC requested, ABC presented no evidence and did not meet
its burden to demonstrate that Granite City Works facility's operations and permitted discharges
under the Final Permit would violate the Act or any water quality standards or related
regulations .
6.
In the absence of any such violation by the facility, and considering the prejudice
to U . S
. Steel if the Final Permit is invalidated, the Board should instead allow U
. S. Steel to
continue operating under the Final Permit pending the outcome of the issue related to the public
hearing ordered by the Board
. After such hearing is conducted, if any is conducted, IEPA can
determine whether any modification of the Final Permit is necessary
.
7 .
In addition, the Board should reconsider its Order because it applied an incorrect
standard of review, and should have applied an abuse of discretion standard to evaluate whether
IEPA violated Section 309 .115(a)
. Applying the proper abuse of discretion standard, the Board
should find that IEPA did not abuse its discretion in finding that there was not a significant
2
[This filing submitted on recycled paper as defined in 35 111
. Adm . Code 101 .202]
degree of public interest in U .S
. Steel's permit to warrant a public hearing and, thus, IEPA was
justified in deciding not to hold a public hearing .
8.
Moreover, applying either the abuse of discretion standard or the standard used in
the Board Order, ABC did not satisfy its burden of showing facts and circumstances available to
the Agency, at the time of its decision on whether to hold a hearing, demonstrated that there was
a significant degree of public interest in the draft permit, such that IEPA should have held a
public hearing
. The Board should reconsider its Order to address this misapplication of existing
law.
9
.
U
. S
. Steel hereby incorporates its Memorandum in Support of Amended Motion
to Reconsider Order of January 26, 2007 filed currently herewith
.
WHEREFORE, U . S
. Steel requests that the Board reconsider its January 26, 2007 Order
and grant all relief it deems fair and just .
Dated
: March 9, 2007
Respectfully submitted,
U . S. Steel Corporation -
Granite City Works
By: One
of Its Alto ys
~-JJ pa
Carolyn S
. Hesse
Erika K. Powers
David T. Ballard
Barnes & Thornburg LLP
One North Wacker Drive - Suite 4400
Chicago, Illinois 60606
(312) 357-1313
CHDS01 DTB 383468v 1
3
[This filing submitted on recycled paper as defined in 35 111 . Adm . Code 101 .2021
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)
RECEIVED
CLERK'S
OFFICE
MAR 0 3 2007
Pollution
STATE OFControl
ILLINOISBoard
UNITED STATES STEEL CORPORATION'S MEMORANDUM IN SUPPORT OF
AMENDED 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
. In support of its Motion, U . S
. Steel states as follows :
INTRODUCTION
The American Bottom Conservancy ("ABC")
filed a third-party appeal of the Illinois
Environmental Protection Agency's ("IEPA" or the "Agency") IEPA's issuance 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")
. ABC appealed the terms of the permit and alleged that
IEPA violated its administrative duties by denying ABC's request for a public hearing on the
proposed permit
. On September 21, 2006, the Board dismissed all substantive issues raised in
ABC's petition except the request for a public hearing
. On January 26, 2007, the Board entered
an Opinion and Order (the "Board 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
.
[This riling submitted on
recycled paper as
defined in 35 Ill . 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 and the Board's decision was erroneous
.
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 a NPDES permit where an applicant shows
that its facility
will not cause a violation of the Act, or its attendant water quality standards or
regulations
. Even though ABC presented no evidence and failed to meet its burden of proof that
Granite City Works' operations and discharges under the Final Permit violate the Act or any
water quality standards, the Board found that
IEPA
violated Section 309
.115(a) of the Board's
regulations because the Agency failed to hold a public hearing
. The Board did not conclude that
Granite City Works' operations and discharges under the Final Permit would cause a violation or
that U.S
. Steel had violated the Act or any regulation
. In the absence of any such violation by
U.S
. Steel's Granite City Works operations, and considering the prejudice to Granite City Works
if the Final Permit is invalidated, the Board should allow Granite City Works to continue
operating under the Final Permit pending the outcome of the public hearing ordered by the
Board, if the Board's substantive decision of January 26, 2007 is upheld
. If a public hearing on
the permit is conducted, IEPA can then assess whether any modification of the Final Permit is
necessary in light of information obtained at the hearing
.
In addition, the Board should reconsider its ruling that IEPA should have held a public
hearing as requested by ABC because the Board applied the wrong standard of review in
assessing ABC's claim for a public hearing
. Specifically, the Board found that the standard of
review was whether the issuance of the Final Permit without a public hearing will cause a
violation of the Act or Board regulations
. That standard, however, was incorrectly applied
. If
the standard were correctly applied to Section 309
.115(a), the Board would first consider
2
[This riling submitted on recycled paper as defined in 35 Ill
. Adm . Code 101 .202]
whether IEPA considered the timely filed comments and made a decision on whether to hold a
hearing
. The Record shows that IEPA did consider the comments and whether to hold a public
hearing and decided to not hold a hearing. SR. X, XII, and XIII. 1
Because the Agency decision
on whether to hold a hearing is discretionary, the Board should consider whether IEPA's
decision to not hold a hearing was an abuse of discretion . As provided by the Appellate Courts,
the proper standard of review for determining whether a public hearing should have been held is
whether IEPA abused its discretion in assessing whether there was a significant degree of public
interest in the proposed NPDES permit to warrant holding a hearing
.
The Board should
reconsider its Order based on its application of the improper standard of review, and find that
IEPA did not abuse its discretion in deciding to issue the Final Permit without a public hearing .
In addition, under either an abuse of discretion standard or the standard applied in the Board
Order, ABC did not satisfy its burden of proof to show that facts and circumstances available to
the Agency at the time of its decision on whether to hold a hearing demonstrated there was a
significant degree of public interest in the proposed permit for Granite City Works to warrant
holding a public hearing. Accordingly, the Board should reconsider its January 26, 2007 Order .2
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. 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
1 Citations of "R . _," will be to the Administrative Record, "SR .
will be to ABC's Second Supplement to
the Administrative Record, and "Trans . ,"
will be to the Transcript from the November 20, 2006 hearing before
the Chief Administrative Officer .
2 On February 22, 2007, U . S . Steel filed a Motion to Reconsider . By the filing of its Amended Motion to
Reconsider, U . S . Steel withdraws its previously-filed Motion
.
3
[This filing submitted on recycled paper as defined in 35 III
. Adm . Code 101 .2021
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.
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
. The letter raised a
question about the permit allowing lead to be discharged into Horseshoe Lake . However, U .S.
Steel does not use lead in its processes
. R
. 601 . The increased limits that appear on paper are
due to production changes and are consistent with calculations of allowable discharges under the
effluent limitation guidelines and federal rules at 40 C .F.R. 420 . Id. The letter did not identify
any regulations or sections of the Act that would be violated if the Proposed Permit were 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 .
The January 18, 2006 letter provided
numerous comments on issues that are unrelated to whether Granite City Work's permit, if
issued, would result in a violation of the Act or water regulations
. 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 .
4
(This riling submitted on recycled paper as defined in 35111 . Adm . Code 101 .2021
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 September 21, 2006, the Board dismissed all issues raised in ABC's Petition
except for ABC's request for a public hearing
. ABC did not seek to amend its Petition to include
the issues it raised in its timely filed comment letter
.
8 .
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
.
9.
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 .
Based on its ruling that ]EPA
improperly failed to hold a public hearing, the Board found that "the permit issued by the
Agency on March 31, 2006, to U
.S
. Steel for its steelmaking facility at 20`
h
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 the rulings in
its Order as errors 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 .
3
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 Amended Motion is timely
filed
.
5
[This filing
submitted on recycled paper as
defined in 35111 . Adm . Code 101
.202]
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).
11 . 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 the Final Permit to Granite City Works because the
permitted discharges from the facility will not cause a violation of the Act or its regulations
.
IEPA met its duty and issued the Final Permit .
The standard that applies to whether the Agency is required to issue a permit is whether
the
facility will cause a violation of the Act or applicable regulations
.
See
415 ILCS 5/39(a) .
The Board misread Section 39(a) and stated in its Order on page 12 that "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
." While the Board correctly noted that Petitioner has the
burden of proof, the Board incorrectly applied that burden to how the permit was issued by
IEPA. The Board then erroneously concluded 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, . . . the permit as issued would violate the Act and Board
6
[This filing submitted on recycled paper as defined in 35 Ill . Adm . Code 101 .202]
Regulations . . . ." Jan
. 26, 2007 Order, P . 14
. (emphasis added) The Board's misreading of the
plain language of Section 39(a) of the Act is in error
. See People v
. Whitney, 188 Ill. 2d 91, 97,
720 N.E.2d
225, 228 (Ill
. 1999) ("The language of a statute is the best means of determining
legislative intent .
The statutory language should be given its plain and ordinary meaning
.")
(citation omitted).
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 because the Board's
decision was predicated on the Board's view that IEPA violated section 309
.115(a) and, thus, the
permit violated the Board's regulations
. 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
.4
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 were issued as
drafted.
Instead, the comments discussed issues unrelated to Granite City Work'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
"
In its Order, the Board properly found that as a third-party petitioner ABC was required to show that it raised the
issues contained in the petition during the public comment period
. Thus, the only evidence from ABC 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 5140(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 hearing on the NPDES permit application, if a public hearing was held
;
7
[This filing submitted on
recycled paper as defined in 35 III
. Adm. Code 101 .202]
does not use lead as an additive in its processes (R . 601),5 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
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. ,)6
In addition, ABC alleged that fish 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 . As a
5
Specifically, IEPA found that "The facility does not use lead, and the increased load limits are due to increased
production
." R
. 601 .
6 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 .
8
[This filing submitted on recycled paper as defined in 35 111 . Adm . Code 101 .2021
third party challenging the Final Permit, under Section 40
(e)(3) of the Act, ABC had the burden
of demonstrating such a causal relationship and ABC failed to meet that burden . Accordingly,
these comments did not demonstrate a need for a hearing and the Final Permit should not have
been invalidated .
ABC's comment letter 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
of cadmium is necessary and that no monitoring beyond the routine requirements is needed ."
Id.
ABC's comment letter raised the issue of lead in the sediments of Horseshoe Lake and
referred to a study by Professor Richard Brugam . However, ABC did not provide a copy of the
study of Horseshoe Lake sediments and failed to meet its burden as a third party challenging the
Final Permit. Further, as mentioned above, Granite City Works does not use lead in its process
and the lead concentrations listed in the permit are based on the applicable regulatory provisions
.
ABC also commented on ammonia discharges to Horseshoe lake and again failed to
demonstrate that the permitted discharges would cause a violation of water quality standards . In
fact, the ammonia discharge limits reflected water quality criteria that were used to develop
standards. SR. X. Further, part of the reason the discharge levels changed from the prior permit
is that the Board revised the ammonia water quality standards for Horseshoe Lake .
Id.
The lack of connection between ABC's comments and the Final Permit, and the failure of
ABC to demonstrate that the facility would violate the Act or regulations demonstrates that ABC
did not meet its burden of proof ? Because there was no evidence presented by ABC that the
' The Final Permit load limits for some parameters changed : lead, zinc (daily maximum) 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
9
[This filing submitted on
recycled paper as defined
in 35111
. Adm
. Code 101
.202]
permitted discharges from Granite City Works' facility would cause a violation of the Act or its
regulations, the Final Permit should not be invalidated
. Instead, the Board should reconsider its
Order invalidating the Final Permit and allow Granite City Works to continue operating under
the Final Permit pending resolution of all motions to reconsider and appeals, if any are taken, or
the outcome of a public hearing if the Board's January 26, 2007 decision is upheld
.
If a public hearing is ultimately held, IEPA can then 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 have to operate under its
old permit, which would be administratively continued
. See
415 ILCS 5/12(f), 40 CFR 122 .6(d).
The Final Permit contains a number of improvements over the old permit and if U
. S. Steel had
to go back to the old permit, U . S
. Steel would have to deconstruct certain modifications to
comply with its previous NPDES permit until IEPA issues a new permit after the public hearing
.
If IEPA decides to reissue a permit with the same provisions as the Final Permit, U
. S
. Steel will
production-based, and because the ammonia water quality standard in Horseshoe Lake changed since the prior
permit was issued . R
. 601, However, the 30-day average load limit for zinc decreased
. It should also be noted that
the concentration-based limits were set at levels that took into account meeting 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
. For example, the Final Permit contains a new 30-day
average concentration limit for zinc which is 0
.17 ppm, whereas, the old permit had instead a daily maximum limit
of 1.0 ppm for zinc
.
10
[This filing submitted on recycled paper as defined in 35111
. Adm. Code 101 .2021
then have to construct the modifications again to address the new permit s The Final Permit also
specifies use of a method to test for cyanide that is more accurate than the test method specified
in the prior permit . If U . S. Steel were forced to go back to the previous permit, it would have to
use the less accurate test method . The Board's invalidation of the Final Permit should be
reconsidered and reversed
.
III. The Board Order applied the wrong standard of review for determining whether
IEPA should have held a public hearing .
In its Order, the Board held that the standard of review was that "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
." Jan. 26, 2007 Order, p . 13 . Further, the
Board held that "the Board does not apply an `abuse of discretion' standard as advocated by U
.S.
Steel ." Id. Both holdings were improper and should be reconsidered
.
Under 35 111 . Adm . Code 309 .115(a)(1),
IEPA determines whether a party has
demonstrated a significant degree of public interest sufficient to warrant the holding of a public
hearing
. IEPA's decision to hold a public hearing "is a discretionary decision to be made by the
Agency." Borg-Warner Corp. v
. Mauzy, 100 Ill. App . 3d 862, 867, 427 N .E.2d
415, 419 (3d
Dist. 1981)
. The Borg-Warner
Court further explained the standard for demonstrating that IEPA
should allow a public hearing, stating that 35 111
. Adm. Code 309 .115 :
establishes that the party requesting a public hearing has the
burden of showing why it is warranted. Certainly, agency action
s For example, U . S
. Steel constructed piping to transport landfill leachate to its treatment system
. This piping was
constructed in reliance on the issuance of the Final Permit, which includes a new internal monitoring point
. If the
Final Permit is invalidated, U. S
. Steel will be forced to deconstruct the piping, and transport the leachate with
vehicles to the treatment system, as occurred under the prior permit . SR
. I and II, R . 302
. If IEPA then issues a
new permit with the internal monitoring point back in place, U . S
. Steel will have to re-construct the piping . All of
these activities would have to be done at a safety risk to U
. S
. Steel contractors who would be doing the de-
construction and re-construction in a confined space and at a cost to the company
. Further, the change in how the
leachate arrives at the treatment plant does not affect the quality of U . S
. Steel's discharges to Horseshoe Lake . The
treatment system has been accepting the landfill leachate for years . See R. 302 .
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on a decision is reviewable, subject to an abuse of discretion
standard, but the availability of review over the determination does
not alter the essentially discretionary nature of the determination
.
Id. ; Marathon Oil Co . v. JEPA,
PCB No . 92-166, 1994 Ill
. ENV. LEXIS 488, *18-19 (IPCB,
March 31, 1994) ("Whether an Agency hearing is to be held in an NPDES permit review is
discretionary with the Agency, as has been declared by the
[Borg-Warner]
court.")9
Accordingly, IEPA's decision to not grant ABC's request for a public hearing should have been
reviewed by the Board for an abuse of discretion .
Under the abuse of discretion standard, an agency abuses its discretion when it makes a
decision "without employing conscientious judgment or when the decision is clearly against
logic ." Deen v
. Lustig, 337 Ill. App. 3d 294, 302, 785 N
.E.2d 521, 529 (4th Dist . 2003) (citing
Bodine Electric of Champaign v
. City of Champaign, 305 Ill App
. 3d 431, 435, 711 N .E.2d 471,
474 (4th Dist . 1999) ("the question is whether
. . . the court exceeded the bounds of reason and
ignored recognized principles of law so that substantial prejudice resulted
.")) ;
see also Whirlpool
Corp
. v. Certain Underwriters at Lloyd's London,
295 111, App
. 3d 828, 839, 692 N .E.2d 1229,
1237 (1st Dist
. 1998); Modine Manufacturing Co
. v. PCB, 192 III. App
. 3d 511, 519, 548 N.E.2d
1145, 1150 (2d Dist
. 1989) (no abuse of discretion unless the agency acted "unreasonably or
arbitrarily.")
Applying the proper abuse of discretion standard as set forth by the Appellate Courts, the
Board should find that IEPA did not abuse its discretion in finding that there was not a
significant degree of public interest in the Proposed Permit, and, thus, IEPA properly decided not
to hold a public hearing on the Proposed Permit
.
Further, the language in the
9 The Borg-Warner Court
interpreted former Water Rule 909(a), the language of which was identical to 35 Ill
.
Adm . Code 309 .115(a)
. Accordingly, the Court was aware of the word "shall" in the regulation, upon which ABC
heavily relies in arguing for a nondiscretionary standard of review
. Despite the "shall" in the regulation, the Court
still ruled that IEPA's decision to hold a public hearing is reviewed for an abuse of discretion
.
Borg-Warner, 100
Ill. App . 3d at 867, 427 N .E.2d at 419
. Not surprisingly, ABC wholly ignores the Borg- Warner
case .
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Section 309 .115(a)(1) upon which ABC appears to rely is the parenthetical phrase "instances of
doubt shall be resolved in favor of holding the hearing ."
Yet, ABC failed to point to any
information in the record that indicates any doubt on the Agency's part regarding whether a
hearing should be held
. Rather, the record supports the fact that the Agency considered ABC's
timely filed comments and concluded that, because those comments did not raised issues that
would lead to changes in the draft permit, no changes were needed in the Proposed Permit
. SR.
X. Accordingly, the Agency correctly determined that a hearing on the Proposed Permit was not
necessary because no information would be gained that would result in a change in the permit
.
"The comments do not provide any additional information the Agency would use for inclusion in
the reissued permit ." Id.
IEPA also determined that "the issues raised by the environmental
groups regarding permit limits and past violations are easily answered, and the overall concerns
for Horseshoe Lake have been and continue to be addressed in 303(d) discussions and hearings
that have opportunity for public participation ."
Id.
Thus, the Final Permit should be issued
without holding a public hearing. Id.
Further, the record supports the fact that the Agency planned to meet with ABC and that
ABC cancelled the meeting at the last minute . See
SR. XII, XIII, XV, and XXII
. Offering to
meeting with ABC satisfied ABC's request for a meeting if the hearing request was denied
. See
R. 535
. Because ABC's comment letter gave the alternative of a meeting if no hearing was held,
the Agency did not abuse its discretion by deciding to not hold a hearing
.
IV.
ABC did not prove that there was a significant degree of public interest in the
Proposed Permit .
Applying either the abuse of discretion standard or the standard used in the Board Order,
ABC did not satisfy its burden of showing that there was a significant degree of public interest in
the Proposed Permit, such that ]EPA should have held a public hearing
. The regulations at 35 111
.
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Adm. Code 309.115(a)(1)
provide that IEPA "shall hold a public hearing on the issuance . . . of
an NPDES Permit . . . whenever the Agency determines
that there exists a significant degree of
public interest in the proposed permit . . .to
warrant the holding of such a hearing ." (emphasis
added .) Section 309 .115(a)(2) provides that
: "Any such request for a 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
." In other words, IEPA's
determination of whether a request for public hearing is warranted is limited to the information
contained any public hearing requests the Agency receives during the public comment period
.
As the Board correctly noted, on page 5 of its Order, "review of permit appeals is limited to
information before the Agency during the Agency's statutory review period
."
Order p. 5 .
Accordingly, ABC was required to demonstrate during the public comment period that the public
interest is not generally in Horseshoe Lake or some other aspect of IEPA's regulation of
discharges to Horseshoe Lake, but the interest must be specific to the Proposed Permit
.
Information submitted after the close of the public comment period should not be considered in
IEPA discretionary determination of whether a public hearing is warranted and under Section
40(e)(2) of the Act, is not properly before the Board in its review of IEPA's decision
.
A .
The evidence presented by ABC did not demonstrate a significant degree of
public interest specific to the Proposed Permit
.
In the January 17, 2005 and January 18, 2005 comments at issue, there is no evidence
that the issuance of a NPDES permit to U
. S
. Steel would be improper or in violation of the Act
or any applicable regulatory standards
. Instead, the comments discuss issues unrelated to the
Proposed Permit .
As mentioned above, the January 17, 2005 and January 18, 2005 letters
comment on permitted discharges of lead from Granite City Works
. Neither letter stated that the
lead discharges would violate any water quality standard or other regulation, such that the
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discharges under the Proposed Permit limits would be illegal . Contrary to the implications of the
comments and as discussed elsewhere, U
. S. Steel does not use lead in its processes . R. 601 .
Neither comment letter provided evidence to support their contentions about lead discharges to
the Lake and neither identified any such evidence that could reasonably be expected if a public
hearing were held .
Similarly, the January 18, 2005 letter from ABC states that Horseshoe Lake is impaired
for various pollutants
. That issue, however, is properly addressed through the process related to
impaired waters and the development of a total maximum daily load under section 303(d) of the
federal Clean Water Act, and not during the NPDES permitting process for individual permits
. It
should be noted that ABC was aware of and did participate in the public hearings that were held
on this issue. Trans
. 84-86
. The January 18, 2005 letter also raises the compliance history of the
Granite City Works facility with its permit limits by citing information from an U
.S . EPA
Enforcement and Compliance Online (ECHO) report
. This issue, however, is not a permitting
issue, but involves 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
.")
In addition and as mentioned above, the January 18, 2005 letter commented that "We
have seen fish caught at Horseshoe Lake with melanoma
. An IDNR fish biologist confirmed fish
with melanoma at Horseshoe
." R. 537 . U. S
. Steel provided a comment on this issue, which
IEPA considered . R
. 603 ("US Steel feels the fish with melanoma statement to be anecdotal
.")
IEPA then analyzed the issue, but found ABC's statement to be inconclusive
. Id. ("More
information is needed on the fish with melanoma issue
-
was this reported as part of an IDNR
study, or did one fish appear with melanoma, and was confirmed by
an IDNR fish biologist?")
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. Adm . Code 101 .2021
IEPA's response to ABC's vague comment was entirely appropriate because there was no
evidence that the comment regarding fish with melanoma was connected to Granite City Works
discharges under its NPDES permit
. No expert or scientific testimony was submitted by ABC
during the public comment period that would make such a connection
. ABC failed to submit any
evidence that could reasonably be expected to be presented if a public hearing were held that (1)
fish in Horseshoe Lake have a higher incidence of melanoma than other fish or (2) there is any
connection between the alleged melanoma in fish and U
. S. Steel's effluent. ABC's
unsubstantiated comments and failure to connect those comments to Granite City Works
proposed permit were not sufficient to demonstrate that IEPA should have held a public hearing
on the Proposed Permit.
ABC's comment letter also charged that "Canteen Lake, which is part of the same lake,
but privately owned, tested high in cadmium."
R. 537
. Again, this comment would not have
affected the issuance of U
. S
. Steel's permit as cadmium was not detected by the facility in its
effluent samples, "nor was any [cadmium] in 19 Agency samples
." R
. 342 . Because U
.S . Steel
is not a source of cadmium, the Agency properly concluded "that no regulation of cadmium is
necessary and that no monitoring beyond the routine requirements is needed
." Id. This lack of
connection between ABC's comments and U
. S
. Steel's permit further documents that IEPA
properly declined to hold a public hearing on the Proposed Permit
. Simply put, the timely filed
comments did not raise issues related to the Proposed Permit
. Accordingly, the Board should
reconsider its Order .
B .
ABC did not demonstrate a significant degree of public interest
.
Again, according to 35 111 . Adm. Code 309.115(a)(1),
IEPA will hold a public hearing if
it determines "that there is a significant degree of public interest in the proposed permit
. . ."
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Only two requests were made for a public hearing. The first was in HEJ's January 17, 2005
comment. R. 532 . Although it submitted a public hearing request in that comment, HEJ did not
deem its interest sufficiently significant to file a Petition for Review of IEPA's denial of HEJ's
public hearing request. Trans
. at 147. Moreover, the January 17, 2005 letter does not identify
one person from the public who would potentially desire to be involved in a public hearing, but
only speculates that a public hearing would give unnamed "citizens an opportunity to ask
questions about the permit, voice concerns, and hear explanations
." R
. 532
.
The other public hearing request of January 18, 2005 was purportedly submitted on
behalf of multiple organizations
. R
. 537-539. However, the January 18, 2005 letter appears to
have been written by Kathy Andria, with representatives of other organizations only commenting
on Ms . Andria's letter and allowing their names to be added to the signature block
. Trans .
97-98 ; Trans. 145 (Representative of HEJ "submitted" January 17, 2005 letter and only "signed
onto" January 18, 2005 letter) ; Trans. 119 (Representative of Webster Groves Nature Study
Society did not participate in the drafting of the January 18, 2005 letter and did not have any
independent knowledge of the water issues in the letter)
. Indeed, the Sierra Club's representative
at the November 20, 2006 hearing did not even read the January 18, 2005 letter until a week
before her deposition was taken on November 6, 2006
. Trans. 132. 10 Two of the individuals
whose names appear on the January 18, 2005 letter (Kathleen O'Keefe and Jack Norman) did not
even testify at the November 20, 2006 hearing as to their participation preparing the letter
.
Moreover, only ABC deemed IEPA's denial of the public hearing request sufficiently important
1° Three members of the public testified at the hearing on November 20, 2006 : Robert Johnson (Trans . 101-107) ;
Cathy Copley (Trans . 107-108), and Jason Warner (Trans . 140-143) . None of these individuals, however, submitted
comments or information to IEPA during the public notice period from December 19, 2004 to January 18, 2005 .
Trans . 104 (Mr . Johnson admitted that be did not submit any comments on the Proposed or Final Permit .)
Accordingly, none of their comments or testimony can be used to support ABC's claim that a public hearing should
have been held .
17
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. Code 101 .2021
to appeal IEPA's denial of the public hearing request, with HEJ, Neighborhood Law Office, East
St
. Louis, Sierra Club, and Webster Groves Nature Study Society all declining to file Petitions
for Review.
In the end, ABC did not present sufficient evidence to demonstrate that IEPA abused its
discretion or violated the Act or its regulations in denying ABC's public hearing request, and,
thus, the Board should reconsider its Order .
CONCLUSION
For the foregoing reasons, U . S
. Steel requests that the Board reconsider its January 26,
2007 Order and grant all relief it deems fair and just
.
Dated : March 9, 2007
Respectfully submitted,
U. S.
Steel Corporation -
Granite City Works
By: \t
~, I r (-Q~
One of Its Att eys
Carolyn S . Hesse
Erika K
. Powers
David T. Ballard
Barnes &
Thornburg LLP
One North Wacker Drive -
Suite 4400
Chicago, Illinois
60606
(312) 357-1313
383306v1
18
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paper as defined in 35 Ill . Adm .
Code 101 .202]
