Electronic Filing, Received, Clerk's Office, March 23, 2007
1
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
AMERICAN BOTTOM CONSERVANCY
)
)
Petitioner,
)
PCB No. 2006-171
)
(NPDES Permit Appeal)
v.
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY, and UNITED
)
STATES STEEL CORPORATION –
)
GRANITE CITY WORKS
)
)
Respondents.
)
)
AMERICAN BOTTOM CONSERVANCY'S RESPONSE TO
UNITED STATES STEEL CORPORATION'S AMENDED
MOTION TO RECONSIDER
Petitioner, American Bottom Conservancy ("ABC"), respectfully asks the Illinois
Pollution Control Board ("Board") to deny United States Steel Corporation's ("U.S.
Steel") Amended Motion to Reconsider. In support of its Response, ABC states as
follows:
I.
INTRODUCTION
On January 26, 2007, the Board entered an Opinion and Order ("Board Order")
holding that the Illinois Environmental Protection Agency's ("IEPA") failure to hold a
public hearing prior to issuing a NPDES permit for U.S. Steel's Granite City Works
violated the Board's regulations. The Board concluded that the record demonstrated
significant public interest in the subject permit and that its regulations required that a
public hearing be held. Therefore, the Board invalidated the permit pending a public
hearing.
Electronic Filing, Received, Clerk's Office, March 23, 2007
2
The Board did not misapply the law in issuing its Order as U.S. Steel argues in its
Amended Motion to Reconsider. The Board has authority pursuant to the Illinois
Environmental Protection Act (the "Act") to hear permit appeals and to grant appropriate
remedies. To suggest, as U.S. Steel does, that the Board does not have the power to
invalidate permits after finding a violation of applicable regulations is to render
meaningless the Board's quasi-judicial functions. U.S. Steel also argues that the Board
should have applied a deferential "abuse of discretion" standard of review when it
reviewed IEPA's decision to forego a public hearing. However, neither the Act nor
applicable judicial authority require the Board to accord such deference to IEPA's
decisions. In fact, the Illinois Supreme Court has expressly held that the Board does not
owe such deference to IEPA's decisions.
Finally, U.S. Steel argues that ABC did not prove the existence of a significant
degree of public interest in the permit. But if ever there were a situation deserving of a
public hearing, the permit for U.S. Steel's Granite City Works is it. The permit authorizes
a major industrial discharge into a lake located within a state park that is visited by
hundreds of thousands of people each year. The permit literally authorizes U.S. Steel to
discharge hundreds of tons of pollutants each year into Horseshoe Lake, a lake that is
already listed as "impaired." These facts, combined with requests for a public hearing
from organizations representing thousands of members, leave no doubt that a hearing
should have been held.
Electronic Filing, Received, Clerk's Office, March 23, 2007
3
II.
BACKGROUND FACTS
On December 19, 2004, IEPA put on public notice a proposed NPDES permit for
U.S. Steel's Granite City Works. (AR 518-28).
1
The proposed permit attached to the
public notice (AR 524-28) and the final permit that was issued some fourteen months
later (AR 651-57) both allowed for hundreds of tons of pollutants to be discharged into
Horseshoe Lake each year.
2
During the thirty-day comment period that ran from December 19, 2004, through
January 18, 2005, five organizations submitted written comments. One of the letters was
submitted by the organization Health & Environmental Justice-St. Louis (AR 532) and
the other was jointly submitted by five organizations, including ABC, the Sierra Club,
Webster Groves Nature Study Society, Health & Environmental Justice-St. Louis, and the
Neighborhood Law Office. (AR 537-39). The comment letters requested a public
hearing, asked for an extension of the comment period, and raised numerous concerns
about the proposed permit. Specifically, the letters cited "discharges of toxic heavy
metals known to accumulate in biological organisms," the fact that the Lake is already
listed as "impaired" by several pollutants, that academic studies had shown high levels of
metals in the Lake's sediment, and that U.S. Steel has a history of non-compliance. The
letters also pointed out that the Lake is used heavily for recreation, including for bird
watching, hunting, and fishing and that many people consume fish from the Lake, some
for subsistence purposes.
1
The designation "AR" refers to the administrative record for this appeal. The designation "Tr." refers to
the transcript from the November 20, 2006, hearing in this appeal.
2
There were only two changes made to the final permit, both of which were in response to comments
submitted by U.S. Steel. (AR 635).
Electronic Filing, Received, Clerk's Office, March 23, 2007
4
There was no apparent action by IEPA on the permit for nearly ten months after
the organizations submitted their comments. ABC took this opportunity to engage the
Washington University Interdisciplinary Environmental Clinic ("IEC") to conduct a
further review of the proposed permit. The IEC thereafter submitted comment letters on
October 3, 2005, and December 9, 2005, on behalf of ABC. (AR 607-09, 611-23).
These letters reiterated the request for a public hearing and identified in a greater level of
detail numerous concerns with the draft permit, including that it would allow U.S. Steel
to discharge pollutants for which the Lake was already impaired, that the effluent limit
for cyanide was double that recommended by IEPA's own permit writer, and that the
permit would allow an unlawfully high level of ammonia in the discharge. (AR 611-23).
IEPA initially issued the permit to U.S. Steel on March 8, 2006, more than a year
after the public comment period had closed. (AR 635-43). Despite this lengthy period of
time, IEPA failed to respond to the comments prior to issuing the permit – an oversight
that it acknowledged was inconsistent with applicable regulations after ABC inquired –
and it subsequently reissued the permit on March 31, 2006. (AR 648, 651-57). IEPA did
not amend the draft permit in any respect in response to the public comment letters, nor
did it ever provide an explanation to the commentors as to why it decided not to hold a
public hearing. (AR 649-50).
On May 8, 2006, ABC filed its Petition for Review, which sought the Board's
review of various effluent limits in the permit and of IEPA's decision to forego a public
hearing. By Order dated September 21, 2006, the Board dismissed ABC's claims
challenging the effluent limits in the permit because the claims were not based on
comments submitted during the initial thirty-day comment period. A Board hearing was
Electronic Filing, Received, Clerk's Office, March 23, 2007
5
held on November 20, 2006, at which testimony was heard on the remaining issue of
whether IEPA's decision not to hold a public hearing complied with the Board's
regulations.
On January 26, 2007, the Board entered its Order holding that the decision of the
IEPA not to hold a public hearing prior to issuing the permit to U.S. Steel was error.
Board Order, p.14. The Board invalidated the permit and ordered a public hearing.
Id
.
On March 9, 2007, U.S. Steel filed its Amended Motion to Reconsider.
III.
ARGUMENT
A.
Standard of Review for Motions to Reconsider
For U.S. Steel to prevail on its Amended Motion to Reconsider, it must "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) (citations omitted).
See also
35 Ill. Adm. Code § 101.902 ("In
ruling upon a motion for reconsideration, the Board will consider factors including new
evidence, or a change in the law, to conclude that the Board's decision was in error.").
Further, "[r]econsideration is not warranted unless the newly discovered evidence is of
such conclusive or decisive character so as to make it probably [
sic
] that a different
judgment would be reached."
Community Landfill
at 3 (citation omitted).
U.S. Steel has come forward with no newly discovered evidence or changes in the
law. Therefore, the only issue before the Board is whether it misapplied the law. U.S.
Steel has not met its burden of showing that the Board misapplied any laws. Therefore
the Board should deny U.S. Steel's motion.
Electronic Filing, Received, Clerk's Office, March 23, 2007
6
B.
The Board Has the Authority to Grant Meaningful Remedies,
Including Invalidation of a Permit.
The Act gives the Board the power to hear third-party appeals of NPDES permits,
415 ILCS § 5/40(e)(1), and to "enter such final order, or make such final determination,
as it shall deem appropriate under the circumstances." 415 ILCS § 5/33(a).
3
The Board
therefore has the authority to invalidate permits that have been issued in violation of the
Act or applicable regulations. U.S. Steel's suggestion that the Board does not have this
power threatens to render meaningless the Board's quasi-judicial functions. The power to
hear appeals is only significant if there is a concomitant power to remedy violations
proven in the course of such appeals.
Well-established principles of administrative law support the Board's authority to
grant meaningful remedies in permit appeal proceedings. Administrative agencies such
as the Board have those powers expressly delegated by statute as well as those "found, by
fair implication and intendment, to be incident-to and included in the authority expressly
conferred for the purpose of carrying out and accomplishing the objectives for which the
agency was created."
Illinois Dep't of Public Aid v. Brazziel
, 377 N.E.2d 1119, 1121-22
(1
st
Dist. 1978) (citation omitted).
In
Brazziel
, the First District Appellate Court upheld the validity of a section of
the Rules of the Civil Service Commission relating to state employees against an
argument that such rules were not expressly authorized by statute.
Id.
at 1120. The
Court held that the section was valid because "on its face [it] aids the Commission in
accomplishing the objectives for which it was created, which is the protection of the
3
The statutory authority of the Board to grant "appropriate" remedies, while located in the enforcement
title of the Act, is incorporated by reference into the Act's permit appeal provisions.
See
415 ILCS §§
5/40(e)(3)(i) and 5/40(a)(1).
Electronic Filing, Received, Clerk's Office, March 23, 2007
7
public and in carrying out that purpose the protection of civil service employees."
Id
. at
1122 (citation omitted).
Here, the Board has statutory authority to hear permit appeals and to grant
"appropriate" remedies. The power to invalidate unlawfully issued permits is also
necessary for it to carry out its purpose of ensuring that NPDES permits comply with the
Act. Allowing the permit to stand while IEPA holds a public hearing, as suggested by
U.S. Steel, would not provide an adequate remedy for the agency's unlawful failure to
hold a public hearing in the first instance. Not only would the unlawful permit stay in
existence for some undetermined length of time while pollutants continued to impact
Horseshoe Lake, but the IEPA's decision whether to issue the permit could well be
prejudiced by the fact that it remains in effect at the same time that public testimony is
being accepted. That is, it is easier to prevent a faulty permit from being issued than it is
to have the bureaucratic machinery re-open and modify an existing permit.
The Illinois Supreme Court has held that when a public hearing is required the
public hearing must occur
before
a permit is issued and the IEPA must consider the
evidence presented at the public hearing before issuing the permit.
Pioneer Processing,
Inc. v. EPA
, 464 N.E.2d 238 (Ill. 1984). In
Pioneer
, the IEPA considered evidence
submitted by Pioneer before and after the public hearing – thus the parties challenging the
permit had no opportunity to examine this evidence. The IEPA argued that this was of no
consequence because its "decision to grant or deny a permit precedes the public hearing."
Id
. at 248. The Illinois Supreme Court held that this was improper:
We believe that if the Agency were to make its decision regarding the
issuance of a permit prior to conducting the public hearing,
then the public
hearing would serve no purpose
. Certainly, the legislature did not intend
to require a public hearing simply to create the illusion that the Agency
Electronic Filing, Received, Clerk's Office, March 23, 2007
8
was considering the evidence admitted during that hearing in making its
decision.
Id
. (emphasis added).
Pioneer
dealt with a different statute in that it involved a permit for hazardous
waste, which required a public hearing in all circumstances without a showing of a
significant degree of public interest.
4
Nevertheless, the reasoning of the Supreme Court
applies equally to the present case where a public hearing was required due to a finding
of significant public interest. The statutory requirement for a public hearing would be
neutered were the permit to stand. To give the public hearing requirement meaning, the
hearing must logically come before the permit is issued such that evidence submitted at
the hearing can inform the IEPA's decision. Otherwise, the public hearing is no more
than a charade to create the "illusion that the Agency was considering the evidence
admitted during that hearing in making its decision."
Pioneer,
464 N.E.2d at 248. The
Board therefore acted appropriately, and within its statutory authority, when it invalidated
the illegally issued permit.
5
C.
U.S. Steel's Equitable Arguments Do Not Warrant Reconsideration of
the Board's Order
"A motion to reconsider may be brought to bring to the [Board's] attention newly
discovered evidence which was not available at the time of the hearing, changes in the
4
When
Pioneer
was decided, the applicable statute was § 39(c) of the Environmental Protection Act. That
section has been amended, and 415 ILCS § 5/39.3(c)(i) now provides that the IEPA must hold a public
hearing after issuing a preliminary decision on whether to issue or deny a hazardous waste permit. Its final
decision still must reflect the evidence presented at the public hearing.
5
U.S. Steel spends considerable time arguing that ABC failed to prove that the permit would result in a
violation of water quality standards or effluent limitations. This argument misses the mark. The very
purpose of the public hearing is to solicit evidence on this issue and ABC will show during the public
hearing why the permit should not have been issued as proposed. Moreover, ABC has already submitted to
IEPA information showing that many of the permit's limits were incorrect. (AR 611-23). This evidence
was excluded from consideration by IEPA because it was submitted after the initial 30-day public comment
period.
Electronic Filing, Received, Clerk's Office, March 23, 2007
9
law or errors in the [Board's] previous application of existing law."
Community Landfill
,
2006 Ill. Env. LEXIS 323 at 2-3.
See also
35 Ill. Adm. Code § 101.902 ("In ruling upon
a motion for reconsideration, the Board will consider factors including new evidence, or a
change in the law, to conclude that the Board's decision was in error").
U.S. Steel alleges in its Amended Motion to Reconsider that it has "made
modifications to its facility and operations as a result of the requirements contained in the
Final Permit." U.S. Steel Memo in Support, p.10. It also alleges that unless the Board
reconsiders its Order it "would have to deconstruct certain modifications to comply with
its previous NPDES permit until IEPA issues a new permit after the public hearing."
Id
.
U.S. Steel references only one modification it allegedly made in reliance on the permit –
piping that was constructed to treat landfill leachate.
Id
. at 11, footnote 8.
This argument is irrelevant as equitable arguments are not a valid basis on which
to urge the Board to reconsider its Order. The fact that U.S. Steel relied on an unlawful
permit is not newly discovered evidence, a change in the law, or a misapplication of
existing law, and is therefore not a basis for reconsideration.
Moreover, the hardship this imposes on U.S. Steel is far from clear. U.S. Steel
has not identified the costs involved with the alleged modification, nor has it stated why it
would have to deconstruct the pipes installed to handle the leachate. Prior to issuance of
the permit, U.S. Steel apparently trucked this potentially hazardous waste to off-site
disposal locations. (AR 292). There is no indication why this practice could not be
employed again until this and other issues can be fully considered through a public
hearing.
Electronic Filing, Received, Clerk's Office, March 23, 2007
10
D.
The Board is Not Required to Apply an "Abuse of Discretion"
Standard of Review When Reviewing IEPA's Decision Not to Hold a
Public Hearing.
U.S. Steel argues that the Board is required to give considerable deference to
IEPA's decision not to hold a public hearing. It suggests that the Board is obliged to
apply the deferential "abuse of discretion" standard of review. This narrowing of the
Board's quasi-judicial role – and concomitant expansion of IEPA's power over permitting
decisions – is not warranted by the Act, the Board's regulations, nor governing judicial
authority.
The Illinois Supreme Court rejected a nearly identical argument twenty-one years
ago in
IEPA v. IPCB,
503 N.E.2d 343 (Ill. 1986). The Supreme Court held that when the
Board acts in its quasi-judicial role in relation to permits issued by IEPA it is not
constrained by a narrow standard of review.
Id.
at 345. Only in situations where the
underlying decision was made as part of a more rigorous adversarial proceeding might
the Board owe deference to the decisionmaker.
Id.
6
Like the situation in
IEPA v. IPCB
,
IEPA's decision to deny the requests for a public hearing for the U.S. Steel permit was
made without an adversarial proceeding below. In fact, IEPA never even provided ABC
or other commentors with an explanation of why it decided not to hold a hearing. The
unexplained decision by IEPA to not hold a public hearing on the U.S. Steel permit
should not be accorded a deferential standard of review.
U.S. Steel relies extensively upon the Third District's decision in
Borg-Warner v.
Mauzy,
427 N.E.2d 415 (3
rd
Dist. 1981), to argue that the Board must apply an abuse of
discretion standard of review. That case is distinguishable in that the plaintiff company
6
At the time
IEPA v. IPCB
was decided, only permit applicants were authorized by the Act to appeal
IEPA's permitting decisions. The Supreme Court's reasoning applies equally to the subsequently
authorized third-party appeals of NPDES permits.
Electronic Filing, Received, Clerk's Office, March 23, 2007
11
filed suit directly in the circuit court, arguing that it was entitled under the Illinois
Administrative Procedure Act to an "adjudicatory hearing" before IEPA made a decision
on its permit application.
Id.
at 417. The Third District's commentary about the Board's
public hearing regulation was thus made in the context of
judicial
review and the court
did not hold that the
Board
must defer to IEPA's decision on whether or not a public
hearing is required.
Id.
at 417. In fact, the court noted that the Board applies
de novo
review in permit appeals.
Id.
at 420. As acknowledged by the Supreme Court in
IEPA v.
IPCB
, courts and the Board apply different standards of review.
IEPA v. IPCB,
503
N.E.2d at 345-46.
It would be illogical, as U.S. Steel urges the Board to do, to treat decisions made
under the public hearing regulation differently than decisions made under other sections
of the Act or regulations. For example, Section 39(b) of the Act states that IEPA "may
issue NPDES permits." 415 ILCS 5/39(b). The fact that the Act assigns this duty
initially to IEPA, and that it uses the word "may," does not render such decisions immune
from Board review, nor insulate IEPA's decision with a deferential standard of review.
See IEPA v. IPCB,
503 N.E.2d at 345. Similarly, the Board's regulations contain an anti-
degradation policy that requires site-specific application of relatively broad regulatory
terms.
See
35 Ill. Admin. Code § 302.105(c). Application of these terms to specific
permits is no different from determining whether the standard of "significant degree of
public interest" has been met. In sum, there is no legal or logical rationale for treating
IEPA's decision on public hearing requests differently from other decisions made as part
of the permitting process.
See also Prairie Rivers Network v. IPCB,
781 N.E.2d 372,
Electronic Filing, Received, Clerk's Office, March 23, 2007
12
379-80 (4
th
Dist. 2002) (finding that identical burden of proof applied to substantive and
procedural challenges to NPDES permit).
The Board's regulation governing public hearings cannot be brushed aside by U.S.
Steel as it would apparently like to do. The Board has broad authority under the Act to
adopt regulations to "implement" the environmental standards of Illinois. 415 ILCS §
5/5(b). It is also within the Board's authority to ensure that these regulations are
complied with through its quasi-judicial powers.
Id.
§ 5/40. There is nothing in these
provisions that require the Board to defer to IEPA's determination not to hold a public
hearing. The Board's expertise in the environmental field and its responsibilities under
the Act support use of the
de novo
standard of review applied in this appeal.
E.
The Board's Findings Would Satisfy the Abuse of Discretion Standard
of Review.
Even if the Board applied an abuse of discretion standard of review, ABC would
still prevail. The Board found in its Order that "the decision that there was not a
significant degree of public interest was
clearly incorrect
." Board Order, p.14 (emphasis
added). "Clearly incorrect" is nearly synonymous with "clearly against logic," one of the
interpretations given to the abuse of discretion standard by Illinois courts.
Deen v.
Lustig
, 785 N.E.2d 521, 529 (4
th
Dist. 2003). Webster's Dictionary defines "incorrect" as
"not true" and "logical" as "formally true or valid."
Merriam Webster's Collegiate
Dictionary
, 589, 685 (10
th
ed. 1993). Thus, to say something is "clearly incorrect," as the
Board said about IEPA's decision to forego a public hearing, is to find that it is clearly
untrue, or "clearly against logic." The findings in the Board's Order would survive an
abuse of discretion standard of review if one were applied.
Electronic Filing, Received, Clerk's Office, March 23, 2007
13
F.
There Was a Significant Degree of Public Interest in the U.S. Steel
Permit.
Finally, U.S. Steel rehashes in its Amended Motion to Reconsider the arguments
considered at the November hearing on the merits and set forth in the post-hearing briefs.
Specifically, it argues that the record does not demonstrate a significant degree of public
interest in the permit. This argument lacks merit, as the Board already concluded in its
January 26, 2007, Order.
1.
Horseshoe Lake is Used Heavily by the Public.
It is hard to imagine a permit more deserving of a public hearing than one for a
major industrial discharge into an impaired lake, located within a popular state park,
where people fish and eat their catch. (AR 532, 537). That is the exact situation here.
Horseshoe Lake is located within a state park that is used heavily for birdwatching,
fishing, hunting, and other forms of outdoor recreation. (AR 532, 537-39). IDNR's
website touts the fishing opportunities at Horseshoe Lake for species such as "channel
catfish, bass, crappie, bluegill, carp, and buffalo." (AR 532).
At the hearing on this appeal, representatives of organizations that submitted
comment letters offered testimony that elaborated upon the issues raised in the letters.
Kathy Andria is President of ABC and uses the Lake about once per week for
birdwatching and other outdoor recreation. (Tr. 25:11-24). She testified that Horseshoe
Lake is a "spectacular" place to birdwatch (Tr. 26:3-12) and that she has observed large
numbers of people at the Lake engaged in fishing, picnicking, running and biking. (Tr.
26:18-24). On some days there may be 1,000 or more people at the Lake, and total
attendance at the state park in 2005 was 358,000. (Tr. 49:20-50:5). She also explained
the basis of her written comments about consumption of fish from the Lake, noting that
Electronic Filing, Received, Clerk's Office, March 23, 2007
14
she sees people with fish on stringers or in coolers (Tr. 50:6-51:15) and has seen people
eat fish from the Lake. (Tr. 65:21-24).
Yvonne Homeyer was President and Conservation Chair of the Webster Groves
Nature Study Society (WGNSS) at the time the joint comment letter was submitted (Tr.
109:15-18; 110:12-20). She testified about her use of the Lake (Tr. 112:21-113:5), as
well as its use by other WGNSS members. She testified that WGNSS members visit the
Lake almost daily because it is considered "one of the most outstanding areas in the St.
Louis area for birds." (Tr. 111:14-22).
See also
Tr. 115:9-16. More bird species have
been seen at Horseshoe Lake than at any other place in the St. Louis region, 308 species
in total. (Tr. 113:12-114:3). WGNSS members use the Lake both as individuals and as
participants in WGNSS-sponsored outings. (Tr. 111:14-22). There are three weekly
birdwatching group outings led by WGNSS members that collectively visit the Lake on a
regular basis. (Tr. 112:6-20). Two members of WGNSS maintain an official list of "all
the bird species that have been seen at the Lake". (Tr. 113:8-11). In addition to
birdwatching, WGNSS members use the Lake and surrounding state park to observe
butterflies. (111:23-112:5; 114:19-115:8).
Representatives of both the Sierra Club and Health & Environmental Justice-St.
Louis also testified at the hearing. Christine Favilla is on staff with the Illinois Chapter
of the Sierra Club. (Tr. 130:14-15). In this capacity, she has organized cleanups at
Horseshoe Lake to remove debris that washes in from surrounding areas. The cleanups
are held on an annual or semi-annual basis and attract approximately thirty participants.
(Tr. 125:16-126:23). Kathleen Logan Smith also offered brief testimony about Health &
Environmental Justice's comment on the Permit. (Tr. 144:5-24).
Electronic Filing, Received, Clerk's Office, March 23, 2007
15
In addition to these formal witnesses, three members of the public provided oral
comments at the hearing. Robert Johnson is an environmental consultant from
Collinsville who has worked for a duck club that owns Canteen Lake, which adjoins
Horseshoe Lake. He indicated that members of the duck club would be interested in
participating in a public hearing on the U.S. Steel permit. Mr. Johnson also testified that
he regularly uses Horseshoe Lake and would be interested in such a public hearing
himself. (Tr. 101:17-107:9). Cathy Copley is a resident of Madison County who uses
Horseshoe Lake. She testified that she supports holding a public hearing now that she
knows the Lake is used as a discharge point for U.S. Steel's waste. (Tr. 107:17-108:12).
Finally, Jason Warner, a Sierra Club volunteer and a user of the trails around Horseshoe
Lake, offered comments on behalf of the Sierra Club about the importance of public
participation in the permitting process. (Tr. 140:21-143:12).
2.
The Organizations that Submitted Written Comment Letters Have
a Sincere Interest in the Health of Horseshoe Lake and Collectively
Represent Thousands of Members.
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. (AR 537-39). The organizations signing on to the joint letter
included the American Bottom Conservancy, Sierra Club, Webster Groves Nature Study
Society, Health & Environmental Justice-St. Louis, and the Neighborhood Law Office.
Health & Environmental Justice-St. Louis also submitted a comment letter of its own.
(AR 532).
ABC is an organization that works to protect the natural and cultural resources of
the American Bottom, which is that part of the Mississippi River floodplain that extends
Electronic Filing, Received, Clerk's Office, March 23, 2007
16
from just below Alton, Illinois, south to the Kaskaskia River. (Tr. 23:17-24:1; 24:13-18).
ABC monitors and participates in government decisions that might affect the American
Bottom, including decisions of IEPA, IDNR, and local entities. (Tr. 24:2-12). It also
works with neighborhood organizations to address local issues. (Tr. 24:8-9). ABC has
approximately 100 members. (Tr. 24:22-24).
WGNSS has over 400 members and has been in existence since 1920. (Tr. 110:3-
11). It is primarily an organization dedicated to nature study, but it gets involved in
permitting actions that impact wildlife habitat. (Tr. 110:24-111:4). Its members
regularly use the Lake and surrounding state park as described above. Its Conservation
Chair, Yvonne Homeyer, testified that the organization has an interest in U.S. Steel's
permit because any discharge that affects wildlife would affect the activities of WGNSS's
members. (Tr. 116:2-17). Based on these interests, Ms. Homeyer testified that WGNSS
members would have attended a public hearing on the U.S. Steel permit had there been
one. (Tr. 116:18-21).
The Sierra Club, which has 26,000 members in Illinois and 650 members in the
area around Horseshoe Lake, was also a signatory to the joint comment letter. (AR 539;
Tr. 126:24-127:3). The Sierra Club engages in cleanups at Horseshoe Lake and has an
interest in its overall health. Health & Environmental Justice, an organization that has
approximately 500 members and works on environmental justice issues in the St. Louis
metropolitan region, also signed on to the joint comment letter and submitted a comment
letter of its own. (AR 532; Tr. 144:9-24).
Collectively, these organizations represent thousands of members. The
organizations chose to express their interest in the U.S. Steel permit by submitting group
Electronic Filing, Received, Clerk's Office, March 23, 2007
17
comment letters rather than asking their members to send in numerous individual
comments. A public hearing would have allowed the organizations' members to provide
IEPA information about Horseshoe Lake and to ask questions about the terms of the
permit.
3.
The Comment Letters Raised Significant Concerns About the Draft
Permit, Which IEPA Made Little Effort to Address
.
The need for a public hearing is demonstrated further by the significant issues
raised in the public comment letters, which IEPA almost completely failed to investigate
before issuing the permit. The joint comment letter raised at least two issues that could
have – one of which definitely should have – affected the terms of the Permit. First, the
letter pointed out that a Southern Illinois University at Edwardsville (SIUE) professor had
conducted studies of the bottom sediment in Horseshoe Lake and had found high levels
of heavy metals, including zinc and lead. IEPA's permit writer noted in her records that
obtaining a copy of these studies would be "beneficial," yet the Agency never even took
that meager step. Second, the letter brought to IEPA's attention reports of fish being
caught from Horseshoe Lake with melanoma. Again, the Agency noted that "[m]ore
information is needed," but it never took any action to determine whether pollution might
be causing diseased fish in the Lake.
The January 18, 2005 joint comment letter pointed out to IEPA that Professor
Richard Brugam at SIUE had studied the bottom sediments at Horseshoe Lake. (AR
537). The letter indicated that the studies had been obtained only recently and had not
been reviewed thoroughly by the commentors. (AR 539). Copies of the studies were not
submitted, but the letter suggested that IEPA hold a public hearing to address this issue.
Id.
The comment letters also raised a concern about heavy metals in the U.S. Steel
Electronic Filing, Received, Clerk's Office, March 23, 2007
18
discharge (AR 532, 537) and mentioned that Horseshoe Lake was already impaired for a
number of pollutants.
7
(AR 537).
Despite the fact that the joint comment letter raised this concern, IEPA took
virtually no action to investigate whether U.S. Steel's discharge was contributing to the
contamination of bottom sediments. The IEPA permit writer's notes state: "A copy of
the SIU-E study would be beneficial to determine its relevance in this matter." (AR 603).
Further, the notes state: "The commentors did not provide a copy of the study, and thus it
is not possible to know the nature of the study." (AR 604).
Although IEPA did not visit a library to obtain the study, nor apparently pick up a
phone and talk with Professor Brugam, it did download an abstract of the study from the
Internet. (AR 604). That abstract only served to highlight the relevance of the issue and
should have spurred further inquiry by IEPA. The abstract, which is in the record, states:
"A record of metal contamination exists in the sediment of Horseshoe Lake . . . . Lead,
cadmium and zinc concentrations increased in the sediment after the 1940's. This
increase in heavy metals is probably related either to increased input to the lake from
local industrial activities or the use of lead shot by local waterfowl hunters." (AR 604-
05).
IEPA's failure to investigate the contamination of Horseshoe Lake sediments is
troubling because U.S. Steel discharges significant quantities of two of the pollutants –
zinc and lead – identified in the abstract of the SIUE study. The load limits in the permit
7
The IEPA public notice erroneously omitted zinc from the list of pollutants causing
impairment. (AR 519). Zinc was identified on both the 2004 and 2006 303(d) lists as a potential
cause of impairment.
Electronic Filing, Received, Clerk's Office, March 23, 2007
19
allow U.S. Steel to discharge up to 4,380 pounds of zinc and 2,044 pounds of lead into
the Lake each year.
8
(AR 652).
The unanswered questions relating to contaminated sediments show that
substantial issues were raised in the joint comment letter that should have been
investigated by IEPA through a public hearing. IEPA has a legal duty to ensure that
NPDES permits comply with both numeric and narrative water quality standards. 35 Ill.
Admin. Code § 309.143(a) (2005). Although Illinois has no numeric criteria for heavy
metals in sediment, the narrative criteria prohibit "bottom deposits" that are of "other than
natural origin." 35 Ill. Admin. Code § 302.203 (2005). IEPA did nothing to ensure that
U.S. Steel's discharge is not causing or contributing to high levels of heavy metals in the
bottom of Horseshoe Lake, despite substantial indications that a problem exists. IEPA
could have gathered information on the subject if it had held a public hearing.
The joint comment letter also raised a concern about fish with melanoma being
caught in Horseshoe Lake. (AR 537). Again, the IEPA permit writer suggests that the
Agency should investigate this issue, stating:
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?
(AR 603). IEPA did not follow up on this question.
The health of resident fish populations is of heightened importance due to the fact
that many people consume fish from Horseshoe Lake, some for subsistence purposes, and
that the Lake is already impaired by numerous pollutants. (AR 532, 537; Tr. 50:8-51:20).
8
These figures are calculated using the permit's 30-day average for the daily load limit.
(AR 652). For zinc, 12 pounds per day X 365 days = 4,380 pounds per year. For lead, 5.6
pounds per day X 365 days = 2,044 pounds per year.
Electronic Filing, Received, Clerk's Office, March 23, 2007
20
IEPA, however, may have doubted whether people eat fish from Horseshoe Lake (AR
561), despite the fact that its sister agency IDNR publicizes fishing opportunities on its
website. (AR 532). IEPA could have found out more about public uses of the Lake like
fishing if it had held a public hearing on the permit.
IEPA never followed up with ABC or anyone else to investigate the seriousness
of fish diseases at Horseshoe Lake nor to determine the extent to which people eat the
fish from the Lake and how much fish is consumed by those fishing for subsistence
purposes. (Tr. 39:19-21). These are exactly the types of issues that could have generated
important information through a public hearing.
9
IV.
Conclusion
The Board was correct to invalidate the permit as a remedy for IEPA's unlawful
failure to hold a public hearing. In order to prevail on its Amended Motion to
Reconsider, U.S. Steel has to identify newly discovered evidence or changes in the law,
or show that the Board misapplied the law. U.S. Steel has come forward with no new
evidence or changes in the law, and has not met its burden of proving that the Board
misapplied the law.
For the foregoing reasons, ABC requests that the Board deny U.S. Steel's Motion
to Reconsider.
9
There were numerous other concerns with the proposed permit raised in ABC's
subsequent comment letters and the Petition for Review that could have been addressed at a
public hearing. For example, IEPA staff recommended a monthly average effluent limit for
WAD cyanide of 0.0052 mg/L (AR 475-76), whereas the limit in the final permit is 0.01 mg/L,
nearly double the recommended value. (AR 652). Curiously, the permit writer's notes
acknowledge that the actual amount of cyanide in U.S. Steel's discharge in recent years is higher
than the recommended limit of 0.0052 mg/L. (AR 475). In addition, U.S. Steel was granted a
higher ammonia limit for the month of March. Similar to the situation with cyanide, the ammonia
limit for March was weakened only after U.S. Steel indicated that its discharge would violate the
limit in an early draft of the permit that was shared with the company. (AR 507).
Electronic Filing, Received, Clerk's Office, March 23, 2007
Electronic Filing, Received, Clerk's Office, March 23, 2007
Electronic Filing, Received, Clerk's Office, March 23, 2007
