ILLINOIS POLLUTION CONTROL BOARD
    June 21, 2007
    AMERICAN BOTTOM CONSERVANCY,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY and UNITED
    STATES STEEL CORPORATION -
    GRANITE CITY WORKS,
    Respondents.
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    PCB 06-171
    (Third-Party NPDES Permit Appeal)
    ORDER OF THE BOARD (by T.E. Johnson):
    This order denies a contested May 30, 2007 motion to stay the Board’s orders of January
    26, 2007 and May 3, 2007, pending appellate review of those orders.
    On January 27, 2007, the Board issued a final opinion and order concerning the petition
    timely filed on May 8, 2006, by American Bottom Conservancy (American Bottom) contesting
    the May 31, 2006 issuance of a National Pollutant Discharge Elimination System (NPDES)
    permit. The Illinois Environmental Protection Agency (Agency) on March 31, 2006, issued the
    permit to the United States Steel Corporation Granite City Works (U.S. Steel) for its steelmaking
    facility at 20th and State Streets, in Granite City, Madison County.
    The sole issue properly raised on appeal was American Bottom’s assertion that the
    Agency improperly denied American Bottom’s request for a public hearing prior to issuing the
    permit, since the record before the Agency demonstrated the existence of “a significant degree
    of public interest in the proposed permit,” within the meaning of Section 309.115(a)(1) of the
    Board’s rules for NPDES permit issuance (35 Ill. Adm. Code 309.115(a)(1)). The Board found
    that American Bottom had demonstrated that the Agency improperly denied the permit, noting
    that the rule provides in pertinent part that “instances of doubt shall be resolved in favor of
    holding the hearing.” The Board invalidated the permit.
    By order of May 3, 2007, the Board denied motions to reconsider separately filed by U.S.
    Steel on March 9, 2007, and the Agency on March 12, 2007.
    On May 30, 2007, U.S. Steel moved the Board to stay the orders of January 26, 2007 and
    May 3, 2007. On June 18, 2007, American Bottom filed a response in opposition.
    In support of its motion, U.S. Steel asserts that on May 25, 2007, U.S. Steel filed a
    Petition for Review of the Board Orders to the Appellate Court for the Fifth District.
    Accordingly, U.S. Steel now moves to stay the Board orders pending appellate review. Mot. at 2.
    2
    In support of its motion, U.S. Steel argues that the Board should take guidance from the
    decision of the Illinois Supreme Court in Stacke v. Bates, 138 Ill. 2d 295, 567 N.E.2d 192
    (1990). Mot. at 3. In that case, the court characterized the determination as “a balancing
    process”. Stacke, 138 Ill. 2d at 309. The factors that can be considered are “whether a stay is
    necessary to secure the fruits of the appeal in the event the movant is successful,” “the movant’s
    likelihood of success on the merits,” and “the likelihood the movant will suffer hardship . . . .”
    Id
    . at 305-307. U.S. Steel cites with approval the Stacke court’s statement that:
    We believe that in all cases, the movant, although not required to show a
    probability of success on the merits, must, nonetheless, present a substantial case
    on the merits and show that the balance of the equitable factors weighs in favor of
    granting the stay. If the balance of the equitable factors does not strongly favor
    movant, then there must be a more substantial showing of a likelihood of success
    on the merits. Thus a strong showing of the likelihood of success on the merits
    may offset other equitable factors favoring the other party.
    Id
    . at 309.
    The entirety of U.S. Steel’s arguments concerning these Stacke stay factors are that:
    A stay is necessary to secure the fruits of U.S. Steel’s appeal, which would be lost
    if the Board orders are immediately imposed; there is a reasonable likelihood of
    success for U.S. Steel’s appeal; and U. S. Steel will suffer substantial and
    irreparable harm if a stay is not granted. Furthermore, even if the appellate court
    rules that a public hearing should be held on U. S. Steel’s permit, it is likely that
    the new permit would contain the same conditions as the permit that the Board
    invalidated. Mot. at 3.
    In its June 18, 2007 response in opposition, American Bottom urges the Board to deny
    U.S. Steel’s stay request. In summary, American Bottom contends:
    A stay is not warranted in this case because U.S Steel has not shown a likehood of
    success on the merits. U. S. Steel makes only one argument as to its likelihood of
    success: that the Board applied an incorrect standard of review when it decided
    ABC’s appeal. This argument was previously rejected when the Board denied
    U.S Steel’s motion to reconsider. The Illinois Supreme Court has held that the
    Board is not constrained by the narrow, deferential [arbitrary] standard of review
    suggested by U.S Steel when reviewing decisions of the IEPA. IEPA v. IPCB,
    503 N.E.2d 343, 345 (Ill. 1986).
    Granting a stay would also harm the interests of [American Bottom] because the
    new permit allows illegally high levels of various pollutants to be discharged to
    Horseshoe Lake. Maintaining this status quo might prejudice IEPA’s decision
    when the permit is reconsidered after a public hearing. Generally, U. S. Steel has
    not provided concrete evidence of the harm it would suffer if a stay is not granted.
    The affidavit offered by the company does not tie specific actions or costs to the
    Board’s invalidation of the new permit. Response at 2
    3
    The Board denies the motion for stay. U.S. Steel fails to argue facts supporting its
    analysis of the stay factors, providing the Board only with summary conclusions. The motion is
    particularly unpersuasive on the issue of U.S. Steel’s likelihood of success on the merits in this
    appeal. Again, the sole issue in this case is whether, despite the receipt of two organizations’
    public comments requesting a public hearing on behalf of their membership prior to permit
    issuance, the Agency lawfully issued the permit absent hearing. As the Board outlined in its
    January 26, 2007 opinion and order, the groups requesting hearing each have hundreds of
    members in the affected area, recent policy developed by the United States Environmental
    Protection Agency would require a hearing, and the Board rule at issue specifically provides that:
    Instances of doubt shall be resolved in favor of holding the hearing.
    See
    35 Ill.
    Adm. Code 309.115(a). This caveat coupled with the strong showing of public
    interest in the draft permit, renders the Agency’s decision in violation of Section
    309.115(a). American Bottom Conservancy v. IEPA and United States Steel
    Corporation - Granite City Works, PCB 06-171, slip op. at 14 (Jan. 26, 2007).
    Again, the motion for stay is denied.
    IT IS SO ORDERED.
    I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
    the Board adopted the above order on June 21, 2007, by a vote of 4-0.
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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