ILLINOIS POLLUTION CONTROL BOARD

December 20, 1989

OLD BEN COAL COMPANY,

Petitioner

v.

)

PCB 89—41

PCB 89—42

ILLINOIS ENVIRONMENTAL

)

(Permit Appeal)

PROTECTION AGENCY,

Respondent.

JEFFREY

C.

CONRAD, APPEARED ON BEHALF OF THE PETITIONER; AND

RICHARD C. WARRINGTON,

STAFF ATTORNEY, APPEARED ON BEHALF OF THE

RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by J. Anderson):

This matter

conies before the Board on two permit appeal

petitions of Old

Ben

Coal Company

(Old Ben),

filed on February

24,

1989 and February

27, 1989 respectively, the filing fee for

both having been paid on April

20,

1989.

In both appeals, Old

Ben contests the same permit condition imposed by the Illinois

Environmental Protection Agency (Agency)

in its reissued NPDES

Permit No. 1L0000078 for its Mine No.

26

(PCB 89—41) and in its

reissued NPDES Permit No. 0049271 for its Mine No.

25

(PCB 89—

42)

Hearing was held on August

24,

1989.

No members of the

public were present.

By agreement of the parties,

a consolidated

hearing was held for PCB 89—41 and PCB 89-42.

The only

testimony,

by the manager of the Agency’s Mine Pollution Control

program,

identified the Board

rules which were the basis for

imposing the condition at issue in both permits.

The Agency

filed a single brief

for the two proceedings on October

6,

1989,

and

in similar manner filed a

reply brief on October

16,

1989.

Old Ben filed two briefs on October

16,

1989, and two response

briefs on October

19,

1989.

Because both appeals involve the same issues,

the Board

hereby consolidates both appeals and will issue a single Opinion

and Order.

Old Ben contests the following permit limitation.

“In addition

to

the above

base

flow sampling

requirements,

a grab

sample

of

each discharge

1

1)(r-4fl~)

---

—2—

caused by

the following precipitation event(s)

shall

be taken

(for

the

following

parameters)

during

at

least

3

separate

events

e~.ch

quarter.

For quarters

in whIch there are less

than

3

such precipitation events

resulting

in

discharges,

a

grab

sample

of

the

discharge

shall

be

required whenever

such precipitation

event(s) occur(s).

(Agency Brief,

p.2)

Background:

There are no a~suesof

fact in this case.

The

dispute

revolves around

the

construction of regulatory amendments

to the

Board’s mine regulations

in P84—29, effective July

27,

1987 and

tit’ed

In the Natter

of:

Protosed Amendments

to Title

35,

Subtitle D: Mine Related Water Pollution,

Chapter

1,

Parts

402

and 406.

The

principal language

in dispute is contained in

35

Ill. Mm. Code Part 406.*

Some history

of the development

of the mine regulations

should help clarify the dispute.

Prior

to the amendments

in P84—

29, Old Ben’s facility was exempt from the effluent limitations

in 406.106(b)

during precipitation

(or equivalent snowmelt)

events.

Section 406.106 had become effective on July 16,

1984,

pursuant

to amendments adopted at that time.

This Section had

allowed,

in the

now

deleted

language at 406.106(b)(3),

a specific

precipitation exemption to the effluent standards as long as

(paraphrasing) the ponds were of sufficient size to contain a 10

year,

24 hour storm.

It

is

not disputed that Old Ben’s ponds

were of sufficient size to qualify, and that the Agency had not

been requiring,

in Old Ben’s prior permit,

sampling and

monitoring during precipitation events, but

rather only under

base flow (essentially dry weather)

conditions.

In P84—29,

the Board deleted the exemption language

in

406.106(b) and instead imposed alternate effluent standards to

those in 406.106(b) during precipitation events

(406.110).

The

new 406.110 effluent standards controlled only two parameters,

as

opposed to the nine parameters in 406.110(b).

In addition to the

SS standard in 406.ll0~the same pH standard is imposed as in

406.106(b).

One essential difference between the 406.106(b)

and

the 406.110 standards

is

that the latter

effluent standard allows

for compliance with settleable solids during precipitation events

(SS), which is less stringent than the total suspended solids

standard

(TSS)

for those ponds

of insufficient size to qualify

for the prior 406.106(b)(3) exemption.

Basically,

it was

compliance with the TSS standard during precipitation events,

when sediments were churning, that created the need for larger

sedimentation ponds than would otherwise be necessary.

In its

*

For ease of reading, generally only the numbers of the various

sections and subsections will be used instead of repeating the

formal

35 Ill. Adm. Code or section or subsection prefixes.

106—410

---

—3—

final Opinion in P84-29

(we hereby incorporate by reference the

Board’s final Opinion and Order of June

25,

1987),

the Board

stated:

It

is agreed by all participants that adoption

of the new regulations would cause an increase

in

the

amount

of

sediment

released

from coal

mine

sedimentation

ponds.

This

agreement

stems from an agreed assumption

that new ponds

would be sized smaller,

and therefore that

the

trapping

efficiency

of

the new ponds

would

be

somewhat less than

the trapping efficiency

of

ponds

constructed

under

the

existing

regulations.

P84—29 Opinion,

p.

19.

The Board also noted

that

the

Economic

Impact Study prepared

by the Department

of

Energy and Natural Resources estimated that

about 430 of

the 492 coal mining discharges

in Illinois would be

affected and that the size of the settling ponds would decrease

57

as compared

to the size required by the then existing rule.

(P84—29 Opinion,

p.14).

It should also be noted here that both the old and new

existing, precipitation event requirements were adopted to

maintain ongoing consistency with changing federal regulations

related to the NPDES program under the Clean Water Act.

Argument:

There

is

no dispute that the TSS effluent standards now

apply during base flow periods and that the

SS standards apply

during precipitation events.

At issue is whether the Agency improperly

imposed

requirements

in the NPDES permit

to take at each outfall both the

24 hour base flow composite samples plus the up to

3 additional

samples per quarter during precipitation events

in the same

month.

Old Ben argues that

there is nothing

in the Part 406

regulations

that requires base flow sampling and reporting

in any

month where sampling and reporting of the discharges during

precipitation events

takes place.

Old Ben quotes

two

provisions

in the regulations

in support

of its argument:

1.

Subsection

(a)

of Section

406.101 Averaging

Compliance with the numerical standards of

this part

shall be determined on the basis of

24—hour composite

samples averaged over any calendar month.

In addition,

no single 24—hour

composite sample shall exceed

two

times

the numerical standards prescribed

in this part

nor shall any grab sample taken individually or

as an

11)6—41

1

---

aliquot of

any

ccirpcrire

sano~e

exceed five times

the

numerical stan~arlprescribei.

in

this part.

(We note that the lancuage of 4C6.10i~including the language

quoted above,

was not anended

in

the

P64—29 rulemaking except

for

the addition of 406.101(c)

anc~ ~),

;:hich prohibited averaging of

the SS and pH standards, respe:tive’

2.

Subsection

(d) of Section

4C’i.102 Samplinq, Reporting and

Monitoring

At

a

reasonable

frecue~.cvtc

be determined

by

the

Agency,

the percittee

sha~ report the actual

concentration or lev?~ of any parameter identified

in

the state or

NPDJLS oE~r:;.~. Each report

subriitted

pursuant

to this subsec:ion

shall

include at least three

samples taken fron eacn

pond

discharae during three

separate periods

occurring

durinc that

reporting period

in which the

alternate Imitations

for

precipitation

events of Sectioi:

4DE.~0~

and

406.110

were

in effect.

If such alternate limitations

are

in effect

on fewer

than three senarate

occasions

during

a reporting period,

one sample

shall

be

taken

of each pond discharge during

each occasion in that

period when

the alternate

limitations are in effect.

The operator shall have the

burden of proof

that the discharge

or increase

in

discharge was caused

by

the applicable precipitation

event.

(We note that,

except for the first sentence,

406.102(d)

was new

language added

in P84-29).

The Agency requires quarterly reporting,

so the disputed

permit condition requires that over

a

3 month period a maximum

total of six samples per pond would be required

(3 base flow

+

3

precipitation).

Old Ben argues that Section 406.101(a)

does not govern base

flow sampling;

this section relates

to averaging,

rather

than

prescribing sampling requirements

or sampling frequency

(Pet.

Br.

p.

4).

Old

Ben argues

that: Section 402.102(d)

governs

all

sampling under Part 406,

as

is indicated

by

its

title

(Pet.

Br.

p.4)

Old Ben then parses Section 402.102(d).

It agrees

that the

first sentence allows the Agency to require sampling and

reporting at reasonable frecuencies,

in this case once/month

composite sampling and reportinc quarterly.

Old Ben agrees that

the second sentence clearly empowers the Agency to require

sampling

of at least

three p:scipitatiun event discharges and

reporting quarterly.

It

is the third sentence that creates Old Ben’s dispute.

Old Ben acknowledges that

if

a precipitation event does not occur

106—612

---

—5—

during any particular month,

then it would have

to sample for and

report base flow results during that month.

However,

Old Ben

asserts that neither

in 406.102(d)

nor anywhere else

in Part 406

is

it required that

a permittee sample and report base flow

discharges

if during

that month it samples and reports

precipitation event discharges.

Thus,

it argues,

the Agency had

no regulatory authority to impose conditions requiring both.

The Agency argues that 406.101(a)

“Averaging” cannot be

ignored.

That subsection requires composite samples

to be

averaged over

a calendar month,

just as 406.101(b)

requires grab

samples to be averaged over

a calendar month

for permittees

electing

to use

this methodology.

The Agency asserts

that these

provisions obviously refer

to monthly performance during base

flow conditions,

unless Old Ben’s mine operations are

subject to

unusual and unreported continual rainfall, and that this

assertion

is supported by

the

very definition o

bar~e flow at

402.101, which by its terms excludes precipitation.

The Agency

asserts

that,

when the Board substituted the alternate effluent

limitations

for those of

406.106(b),

it

is clear that those

alternate limitations

apply only during

the limited time periods

caused by precipitation.

The Agency asserts that,

while Old Ben

admits that 406.101(a)

explains how to prove compliance with the

effluent standards of Part 406, Old Ben omits the long existing

effluent. standards of 406.106(b), and such an omission cannot

repeal them.

In actuality,

the Board did not

repeal the

406.106(b)

standards;

it added 406.110, which contains different

standards (settleable

solids)

for precipitation events.

Nor did

the Board repeal 406.101;

it added

three samples of the increased

discharge

for precipitation events per reporting period of

406.102(d).

In effect,

the Agency argues,

the Board substituted

effluent limitations, and that Old Ben

is instead trying to make

one believe that the Board substituted sampling,

not effluent

limitations, and

in the process repealed 406.106(b).

(Agency

Reply Br. pp.1,2)

The Agency asserts that the rules on their face provide base

flow limitations at

406.106(b)

with sample averaging

at 406.101,

and provide for precipitation event limitations at 406.110 with

sampling at 406.102(d).

In P 84—29,

there

is no mention of

substituting samples,

but only effluent standards.

The

rulemaking added

3 samples

of precipitation events per quarterly

reporting in

406.102(d)

and deleted the prior exemption

in old

subparagraph 406.106

(b)(3).

The Board did not repeal

406.101 or

406.102 or add any language providing

for substitution of

samples.

The Agency argues that Old Ben’s “substituted” samples

argument

is even less credible, considering

that the

samples

to

be taken are for total suspended solids under 406.101 and 406.106

and for settleable solids under

the newly provided language

in

406.102(d)

and 406.110.(Agency Reply Br.p.3).

The Agency also makes

the following points.

The Chapter

of Subtitle

D:

Mine Related Water Pollution,

which includes Part

406, were initially promulgated and amended under

the authority

11)6-413

---

of the Board since 1980 and Agency vetbatim application of these

rules

is not a rulemakinc.

Next the Agency

notes

its permissive

authority under

Section

39

of the Act

to include NPDES

limitations derived from federal and state

regulations.

The

Agency then notes

that the USEPA has added,

at

40 CFR 434.63,

the

alternate e~f1uentlimitatic•ns which

the Board has followed

in

adopting

P. 84—29;

thus

ihs. Act

allows

the Agency

to incorporate

into NPDES permits

bot~ sets

of standards.

(Agency Reply

Br.

pp.

4,5)

Finally,

the

AOF:uy

argues

that consolidation

of the

sampling schedules

wou:d

1e~v~no proof

that the discharge is

in

compliance

with the other parameter

for any month;

the purpose of

monitoring

is

to demonstrate continued compliance, and prompt

notice of

need for corrective action could be absent

for months.

Board

Conclusions:

At

the outset,

the Board finds

that

the Agency properly

implemented

t:he

Board reguations

at

issue here

in establishing

Old Ben’s

permit conditions, and

generally

agrees with the

Agency’s reasons for construing

the regulations as

it did.

The Board

finds nothing

in

the case

law

cited by Old Ben

regarding Agency or Board authority

(See Pet. Br. pp.7—li and

Pet. Resp.

Br.

2,3)

or

in the Act

or

in the regulations

themselves

that support Old Ben’s challenge.

At no point

in the

Board’s Opinion

in

P.

84—29 enunciating

the history of

the

rulemaking,

from initial proposal

by the Illincis Coal

As~Tociationthrough First Notice and the Agency’s alternate

p~~posa1s and the Economic Impact Study,

and through Second

Notice and Final adoption,

is there any indication that the new

standards, sam~lingprotocols and reporting requirements for

precipitation events

was

intended to supplant

the existing

standards,

sampling protocols and reporting requirements for

non-

precipitation events.

The language changes that were not made,

as well as

those that were made,

in that proceeding make this

quite clear.

Old Ben’s arguments basically rest on two concepts, both

unacceptable.

Old Ben first attempts to rely on section titles

to supersede what these sections actually say.

Even though the

section titled “Averaging” explicitly states that, where

averaging

is allowed,

it

is

to be averaged over any calendar

month

for compliance purposes,

it has been rendered nonexistent

under Old Ben’s reasoning because that language

is not included

under the section titled “Sampling, Reporting and Monitoring”.

The monthly composite and grab sample averaging provisions

apply only to the list of effluent standards in Section

406.106(b)

(except

for pH).

The two precipitation event

parar;~cte:s

in 40C.llO, pH and 55 cannot

be averaged.

For all

practicable purposes, this means that all those 406.102(b)

parameter limits, not just

the total suspended solids limits,

would no longer be enforceable on a monthly basis,

since the

permittee need not demonstrate

compliance, weather permitting.

106—4 14

---

—7—

Thus,

the enforceability of those dry weather effluent limits

would depend completely on a meteorological Act

of God.

This

also means

that all permittees would have different compliance

demonstration requirements

in any month, depending on how lucky

or unlucky they are with the weather patterns and amounts of

rainfall

in the area of the State where they are located.

This

is an absurd result.

Old Ben puts forth another concept

to buttress its

contention.

It essentially asserts

that,

as long as the

regulations don’t say this can’t be done,

it can.

On the

contrary,

unless

the regulations explicitly say this can be done,

it can’t.

Old Ben ignores the fact that no language changes were

made to the existing

language in 406.102 except as related to

precipitation events.

The precipitation language was added at

the same time the precipitation standard was removed from

406.106,

a new standard was added

at

406.110,

and the “no

averaging’

provisions were added

to 406.101

as regards settleable

solids and pH (see 406.101(c)

and

(d).

Ironically,

at First

Notice, 406.102

(d)

did not contain any added language.

A newly

proposed provision at

406.102(1) would have required one sample

to be taken from each pond during each precipitation event,

without limit.

The Board was persuaded by the Illinois Coal

Association that this requirement may be an onerous burden,

so

the

Board

deleted 406.102(i)

and added

the “no more than three”

sampling requirement language to 406.102(d),

thus linking the

less stringent frequency of the precipitation sampling

requirements to the quarterly reporting requirements established

by the Agency, pursuant

to the Agency’s authority in the

unamended first sentence to establish reporting frequencies as

a

permit condition.(R84—29 Opinion p.

25,26)

If the Board had

intended to alter

the reporting requirements of the calendar

month sampling and averaging directives

in Section 406.101,

it

would have had to explicitly add such “exception” language,

in

order

to restrict the Agency’s authority, as

it did for

precipitation events.

Finally,

Old Ben offered two ancillary arguments.

One

is that the contested permit requirement

is not

necessary

to accomplish the purpose of the Environmental

Protection Act because the Agency,

during

the P.84—29 rulemaking,

entered an alternate proposal that all ponds provide

24 hours of

detention

for

a

10 year—24 hour precipitation event, with no

monitoring and reporting required;

thus,

since Old Ben’s ponds

allegedly are of

the proposed size,

the

“EPA does not require

sampling and monitoring of ~

discharges from these ponds.’

(Pet.

Resp.

Br.

p.4) Needless to say,

the Agency’s option was not

adopted,

so any construction of the Board’s regulation based on

this argument would tend to run counter

to Old Ben’s.

The second

is

that,

from the time that 406.102(d)

became

effective

in July,

1987, until February

24,

1989,

the effective

date of

the permit, Old Ben did not submit samples of base flow

106—415

---

—8—

and precipitation event dischargers,

and that the Agency never

ThTcrmed Old Ben that its NPDES permit sampling

or monitoring

reports were in violation of

406.102(d).

(Pet.

Resp.

Br.

p.

4)

Thus,

for reasons similar

to those

in the preceding paragraph,

Old Ben asserts that

the contested permit condition

is

imposed

unreasonably.

Old Ben

seems to

be arguing that,

because the

Agency did

not

make Old Ben comply fast enough, Old Ben

should

not

ever have

to

comply.

We have the following observations.

The possession of

a permit.

is

not

a defense

to a violation of

a

Board regulation

(Landfill,

Inc.

v.

IPCE)

387 N.E.2d

258

(1978)

Illinois Supreme Court, and the burden

is on the permittee to

comply with those regulations.

In any event,

we reject any

argument that construction of

a Board regulation

is

in

any way

related to the pace of Agency permit

or enforcement activities,

or

to the manner

in which

a permittee decides

to react

to the

regulation.

This constitutes the Board’s findings

of

fact and

conclusions of law

in this matter.

ORDER

The Board hereby affirms the contested condition imposed by

the Illinois Environmental Protection Agency

in reissuing NPDES

Permit Nos. 1L0000078 and IL004927l

to Old Ben Coal Company.

Section 41 of

the Environmental Protection Act,

Ill. Rev.

Stat.

1987 ch.

lii 1/2, par.

1041, provides for appeal

of Final

Orders of the Board within

35 days.

The Rules of

the Supreme

Court of

Illinois establish filing requirements.

IT IS SO ORDERED.

I, Dorothy M. Gunn,

Clerk

of the Illinois Pollution Control

Board, hereby certify that

the above Opinion and Order was

adopted on the

~‘~‘~-

day of

~

,

1989, by a vote

of

7—so

~

~.

/~

Dorothy M. ~nn,

Clerk

Illinois P~1ution Control Board