                                                           NO. 5-07-0285
                        N O T IC E

 Decision filed 07/22/08. The text of
                                                              IN THE
 this dec ision m ay b e changed or

 corrected prior to the              filing of a
                                                   APPELLATE COURT OF ILLINOIS
 P e t i ti o n   for     Re hea ring   or   the

 disposition of the same.
                            FIFTH DISTRICT
________________________________________________________________________
UNITED STATES STEEL CORPORATION, )                                     Petition on Review of the Order
                                  )                                    of the Illinois Pollution Control
     Petitioner,                  )                                    Board.
                                  )
v.                                )                                    PCB 06-171
                                  )
ILLINOIS POLLUTION CONTROL BOARD, )
ILLINOIS ENVIRONMENTAL            )
PROTECTION AGENCY, and AMERICAN )
BOTTOM CONSERVANCY,               )
                                  )
      Respondents.                      )
__________________________________________________________________________

                  JUSTICE WELCH delivered the opinion of the court:

                  This is a direct administrative review of a decision of the Illinois Pollution Control

Board (Board) that invalidated a renewed National Pollutant Discharge Elimination System

(NPDES) permit issued to United States Steel Corp. (U.S. Steel) by the Illinois

Environmental Protection Agency (Agency). The Board invalidated the permit solely on the

basis that despite a "significant degree of public interest in the proposed permit" the Agency

had failed to hold a public hearing on the issuance of the permit. For reasons that follow, we

vacate the decision of the Board and remand this cause to the Board for further proceedings.

                  On October 17, 2002, the Agency received an application from National Steel Corp.

for the renewal of its permit for its Granite City steel-making facility to discharge industrial

process wastewater into Horseshoe Lake, which is a part of Horseshoe Lake State Park. The

application was subsequently amended to reflect U.S. Steel's acquisition of the Granite City

facility.

                  On December 14, 2002, the Agency issued a public notice soliciting public comment

                                                                1
on the proposed permit. The Agency received only three comment letters, one from U.S.

Steel, which did not request a public hearing on the proposed permit. The second comment

letter was from an organization entitled Health & Environmental Justice–St. Louis, which

requested a public hearing on the proposed permit. A third comment letter was received

from American Bottom Conservancy, Health & Environmental Justice–St. Louis,

Neighborhood Law Office of East St. Louis, the Sierra Club, and the Webster Groves Nature

Study Society. This letter also requested a public hearing. The Agency considered the

matters raised in the comment letters, declined to hold a public hearing, sent written

responses to the organizations that had sent the comment letters, and issued a final permit to

U.S. Steel on March 31, 2006.

       On May 8, 2006, American Bottom Conservancy (ABC) filed with the Board a third-

party petition for review of the permit, properly raising only the issue of whether the Agency

had improperly denied the request for a public hearing. After hearing evidence and receiving

posthearing briefs, the Board held that the Agency had improperly denied the request for a

public hearing and that the Agency's decision not to hold a public hearing invalidated the

issued permit. The Board concluded that the Agency's decision not to hold a public hearing

prior to the issuance of the U.S. Steel permit violated section 309.115(a) of the Board's

regulations (35 Ill. Adm. Code §309.115(a) (1996)). Accordingly, the Board ruled that the

permit as issued violated the Environmental Protection Act (415 ILCS 5/1 et seq. (West

2006)) and the regulations and was invalid. The Board invalidated the permit solely on the

basis that the Agency had erred in failing to hold a public hearing on the proposed permit,

and it did not otherwise address any issues relating to the proposed permit.

       The Agency and U.S. Steel filed motions for reconsideration, which were denied by

the Board. The Agency and U.S. Steel (hereinafter referred to as the appellants) seek the

direct administrative review of the Board's decision in this court pursuant to section 41 of the


                                               2
Environmental Protection Act (Act) (415 ILCS 5/41 (West 2006)) and Illinois Supreme

Court Rule 335 (155 Ill. 2d R. 335). We review pursuant to the Administrative Review Law

(735 ILCS 5/3-101 et seq. (West 2006)). The Board and ABC filed answer briefs, and an

amicus curiae brief was filed in support of the appellants' position by the Illinois

Environmental Regulatory Group, a not-for-profit corporation affiliated with the Illinois

State Chamber of Commerce.

       We have ordered taken with the case the Agency's motion for leave to cite

supplemental authority and the objections thereto of the Board and ABC. We hereby grant

the motion to cite supplemental authority.

       The appellants argue on appeal that the Board applied the wrong standard of review

in determining whether the Agency erred in deciding not to hold a public hearing on the

proposed permit.    While in its analysis the Board acknowledged, "[T]he Agency has

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

NPDES permit," it also held as follows: "In reviewing the Agency's decision not to hold a

public hearing, the Board applies the standard applicable to all reviews of an Agency's permit

decision–whether or not the issuance of the permit violated the Act or Board regulations.

Thus, the Board does not apply an 'abuse of discretion' standard." The appellants argue that

the Board erred as a matter of law in applying a de novo standard of review to the Agency's

decision not to hold a public hearing instead of reviewing the Agency's decision for an abuse

of discretion. We agree and vacate the Board's decision.

       Noting that the parties do not agree on the standard of review which this court should

apply to its review of the Board's decision, and because the issue presented to us for review

concerns the appropriate standard of review applicable by the Board to the Agency's decision

not to hold a public hearing, we begin with a general discussion of standards of review. In

our view, the determination of the appropriate standard of review turns primarily upon the


                                              3
type of question or issue presented for review. See Joel R. v. Board of Education of

Mannheim School District 83, 292 Ill. App. 3d 607, 612 (1997). This is equally true when

reviewing the decision of an administrative agency. LaSalle National Bank v. City of

Highland Park, 344 Ill. App. 3d 259, 265-66 (2003).

       When we review a lower tribunal's factual determinations, those determinations will

not be reversed on appeal unless they are contrary to the manifest weight of the evidence.

Joel R., 292 Ill. App. 3d at 613. A factual finding is contrary to the manifest weight of the

evidence when, upon a review of all the evidence in the light most favorable to the prevailing

party, the opposite conclusion is clearly apparent or the fact finder's finding is palpably

erroneous and wholly unwarranted, is clearly the result of passion or prejudice, or appears

to be arbitrary and unsubstantiated by the evidence. Joel R., 292 Ill. App. 3d at 613. The

manifest-weight-of-the-evidence standard of review applies only to factual determinations

of the lower tribunal.

       When we review a lower tribunal's exercise of its discretion, the lower tribunal's

determination will not be reversed unless that tribunal has clearly abused its discretion. A

tribunal abuses its discretion when it makes an arbitrary decision, without using

conscientious judgment, or when, in view of all the circumstances, the lower tribunal

oversteps the bounds of reason, ignores the law, and thereby causes substantial prejudice.

In re Marriage of Munger, 339 Ill. App. 3d 1104, 1107 (2003). The question is not whether

the reviewing court would have made the same decision if it were the lower tribunal. In re

Marriage of Munger, 339 Ill. App. 3d at 1107. This standard of review is traditionally used

in reviewing decisions made by a trial judge overseeing his courtroom or in maintaining the

progress of a trial. In re D.T., 212 Ill. 2d 347, 356 (2004). If a lower tribunal's ruling is a

matter of judicial discretion, then it is reviewable only for an abuse of that discretion. In re

D.T., 212 Ill. 2d at 356.


                                               4
       Finally, when reviewing a lower tribunal's disposition of a question of law, our review

of the lower tribunal's decision is de novo. Arthur v. Catour, 216 Ill. 2d 72, 78 (2005); Joel

R., 292 Ill. App. 3d at 613. This standard of review is completely independent of the lower

tribunal's judgment. Arthur, 216 Ill. 2d at 78.

       Of these standards of review, de novo review is the least deferential to the lower

tribunal (Arthur, 216 Ill. 2d at 78), while the abuse-of-discretion standard is the most

deferential to the lower tribunal. In re D.T., 212 Ill. 2d at 356.

       The issue presented to us for our review is whether the Board applied the correct

standard of review in reviewing the Agency's decision not to hold a public hearing on the

proposed permit. The Agency's obligation to hold a public hearing is governed by section

309.115(a) of Title 35 of the Illinois Administrative Code, which provides as follows:

              "(1) The Agency shall hold a public hearing on the issuance or denial of the

       an [sic] NPDES Permit or group of permits whenever the Agency determines that

       there exists a significant degree of public interest in the proposed permit or group of

       permits (instances of doubt shall be resolved in favor of holding the hearing), to

       warrant the holding of such a hearing.

              (2) Any person, including the applicant, may submit to the Agency a request

       for a public hearing or a request to be a party at such a hearing to consider the

       proposed permit or group of permits. Any such request for public hearing shall be

       filed with [sic] the 30-day public comment period and shall indicate the interest of the

       part [sic] filing such a request and the reasons why a hearing is warranted." 35 Ill.

       Adm. Code §309.115(a) (1996).

The correct interpretation of this regulatory provision is a question of law, which we review

de novo. Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 144 (2006).

       The Board argues that the Act itself provides that this court's review of the Board's


                                               5
decision use the manifest-weight-of-the-evidence standard (415 ILCS 5/41 (West 2006)) and

that the Illinois Supreme Court has adopted this standard of review in Environmental

Protection Agency v. Pollution Control Board, 115 Ill. 2d 65, 70-71 (1986). As we have

stated, the manifest-weight-of-the-evidence standard of review applies to factual

determinations and is the correct standard of review when the Board invalidates the permit

on the basis of facts in evidence. Our review of an administrative agency's findings of fact

is performed under a manifest-weight-of-the-evidence standard of review. Christian County

Board of Review v. Property Tax Appeal Board, 368 Ill. App. 3d 792, 794 (2006). But where

the issue before us is whether the Board erred as a matter of law, we review the issue de

novo. The only issue before us on appeal is whether the Board erred as a matter of law in

applying the incorrect standard of review in deciding that the Agency erred in failing to hold

a public hearing. This presents a question of law, which we review de novo. Arthur, 216 Ill.

2d at 78.

       Rules and regulations promulgated by the Board have the force and effect of law and

will be construed by the same standards used to construe statutes. Granite City Division of

National Steel Co. v. Illinois Pollution Control Board, 155 Ill. 2d 149, 162 (1993). We give

statutory language its plain and ordinary meaning, and where a statute is clear and

unambiguous, it must be enforced as written without resort to further aids of statutory

construction. Town & Country Utilities, Inc. v. Illinois Pollution Control Board, 225 Ill. 2d

103, 117 (2007). This court may not depart from the statute's plain language by reading into

it exceptions, limitations, or conditions not expressed therein. Town & Country Utilities,

Inc., 225 Ill. 2d at 117.

       The unambiguous and plain language of section 309.115(a) vests discretion in the

Agency to hold a public hearing whenever it determines that there exists a significant degree

of public interest in the proposed permit. The regulation does not state that the Agency must


                                              6
hold a hearing whenever there is a significant degree of public interest. It states that the

Agency must hold a public hearing whenever it determines that there is a significant degree

of public interest in the permit. This language can be read no way other than vesting

discretion in the Agency to determine when and if there is a significant degree of public

interest in a proposed permit. If the Agency determines, in its discretion, that there is a

significant degree of public interest in a proposed permit, based on requests for a public

hearing that are filed within the public comment period and that indicate the party's interest

and why a hearing is warranted, then a public hearing must be held. Indeed, the Board

acknowledged this in its order invalidating the permit, when it stated, "[T]he Agency has

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

NPDES permit."

       Furthermore, in a case involving language equivalent to that in section 309.115, the

appellate court has recognized that the decision of w hether to hold a public hearing is a

discretionary one to be made by the Agency. Borg-Warner Corp. v. Mauzy, 100 Ill. App. 3d

862, 867 (1981). The party requesting the hearing has the burden of showing why it is

warranted. Borg-Warner Corp., 100 Ill. App. 3d at 867. As the appellate court stated,

"Certainly, Agency action on a decision [whether to hold a public hearing] 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." Borg-

Warner Corp., 100 Ill. App. 3d at 867. That a public hearing on a proposed NPDES permit

is discretionary with the Agency was also recognized in Village of Sauget v. Pollution

Control Board, 207 Ill. App. 3d 974, 981 (1990).

       Finally, the Board itself has ruled that it cannot order the Agency to hold a public

hearing on an NPDES permit application in the absence of the Agency's abuse of its

discretion in failing to hold one. In its own decision in Marathon Oil Co. v. Illinois


                                              7
Environmental Protection Agency, Illinois Pollution Control Bd. Op. 92-166, opinion &

order at 10 (March 31, 1994), the Board held as follows: "Whether an Agency hearing is to

be held in an NPDES permit review is discretionary with the Agency ***. Marathon presents

no argument that would allow this Board to conclude that the Agency abused this discretion

***." As we have stated, if the decision of a lower tribunal, in this case the Agency, is a

matter of discretion, then it is reviewable only for an abuse of that discretion. See In re D.T.,

212 Ill. 2d at 356.

       Despite this clear grant of discretion to the Agency to determine whether there is

sufficient public interest in a proposed permit to warrant a public hearing thereon, the Board

did not review the Agency's decision on whether to hold a public hearing to determine

whether the Agency had abused its discretion, but the Board reviewed the Agency's decision

not to hold the hearing using a de novo standard of review. The Board examined the public

comment letters received and concluded that they evidenced a significant degree of public

interest in the proposed permit. The Board gave no deference to the Agency's decision but

reviewed the public comments independently and made its own determination that there was

significant public interest to warrant a public hearing.

       The Board argues that it need not give deference to the Agency's decision on whether

to issue the permit because the procedures before the Agency do not include hearing

requirements and have none of the characteristics of an adversary proceeding. While this

may be true with regard to factual or evidentiary issues before the Agency, it is not true

where the Agency's determination is discretionary and relates to a procedural issue, as in the

case at bar. Where the regulation clearly grants the Agency discretion to determine when a

public hearing is required, its determination in this regard must be reviewed only for an abuse

of that discretion. In re D.T., 212 Ill. 2d at 356.

       Under the Act, the Board has the power to invalidate a permit that violates the Act or


                                               8
regulations promulgated thereunder. Prairie Rivers Network v. Illinois Pollution Control

Board, 335 Ill. App. 3d 391, 401 (2002). Section 309.115(a) of the regulations gives the

Agency discretion to determine when to hold a public hearing. Therefore, a permit that is

issued without a public hearing violates section 309.115(a)–and is invalid–only when the

Agency abuses its discretion in deciding not to hold a hearing. But if the Agency properly

exercises its discretion, then the permit does not violate section 309.115(a), even if the Board

might have made a different decision in the first instance.

       The Board erred as a matter of law in applying the incorrect standard of review to the

Agency's decision not to hold a public hearing. Accordingly, we vacate the final order of the

Board invalidating the NPDES permit issued to U.S. Steel and remand this cause to the

Board for review using the correct standard of review. In determining whether the permit

as issued violates the Act or regulations because the Agency did not hold a public hearing,

the Board must use an abuse-of-discretion standard. It must review the Agency's decision

not to hold a public hearing to determine whether the agency made an arbitrary decision,

without using conscientious judgment, or if, in view of all the circumstances, the Agency

overstepped the bounds of reason, ignored the law, and thereby caused substantial prejudice.

In re Marriage of Munger, 339 Ill. App. 3d 1104, 1107 (2003). Only if the Agency abused

its discretion in failing to hold a public hearing would the permit as issued violate the Act or

regulations.

       For the foregoing reasons, the final order of the Board is vacated, and this cause is

remanded to the Board for further proceedings not inconsistent with this opinion.



       Motion granted; order vacated; cause remanded.



       SPOMER and WEXSTTEN, JJ., concur.


                                               9
                                          NO. 5-07-0285

                                              IN THE

                               APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      UNITED STATES STEEL CORPORATION, )               Petition on Review of the Order
                                        )              of the Illinois Pollution Control
           Petitioner,                  )              Board.
                                        )
      v.                                )              PCB 06-171
                                        )
      ILLINOIS POLLUTION CONTROL BOARD, )
      ILLINOIS ENVIRONMENTAL            )
      PROTECTION AGENCY, and AMERICAN )
      BOTTOM CONSERVANCY,               )
                                        )
           Respondents.                 )
___________________________________________________________________________________

Opinion Filed:        July 22, 2008
___________________________________________________________________________________

Justices:           Honorable Thomas M. Welch, J.

                 Honorable Stephen L. Spomer, J., and
                 Honorable James M. Wexstten, J.,
                 Concur
___________________________________________________________________________________

Attorneys        David T. Ballard, Carolyn S. Hesse, Barnes & Thornburg, LLP, One North Wacker
for              Drive, Suite 4400, Chicago, IL 60606 (for United States Steel Corp.); Lisa Madigan,
Appellants       Attorney General, State of Illinois, Rachel Hoover, Assistant Attorney General, 100
                 West Randolph Street, 12th Floor, Chicago, IL 60601 (for Illinois Environmental
                 Protection Agency)
___________________________________________________________________________________

Attorneys        Marie E. Tipsord, Special Assistant Attorney General, Illinois Pollution Control
for              Board, 100 West Randolph, Suite 11-500, Chicago, IL 60601 (for Illinois Pollution
Appellees        Control Board); Maxine I. Lipeles, Megan A. Wright, Elizabeth J. Hubertz, Heather
                 B. Navarro, Washington University School of Law, Interdisciplinary Environmental
                 Clinic, One Brookings Drive, Campus Box 1120, St. Louis, M O 63130 (for American
                 Bottom Conservancy); Katherine D. Hodge, Gale W. Newton, Hodge, Dwyer, Zeman,
                 3150 Roland Avenue, P.O. Box 5776, Springfield, IL 62705-5776 (Amicus Curiae
                 brief for Illinois Environmental Regulatory Group)
___________________________________________________________________________________
