Vermilion Coal Company
An Iron Carbide Technologies Company
~ ~ A~IED
1979 Johns Drive
Glenview IL
OFFICE
Tel: 847.832.9007
1
Fax: 847.832VOY10 9 2001
ay 25, 2001
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 W. Randolph Street
Street Suite 11-500
Chicago IL 60601
Dear Ms. Gunn :
The original and one copy of the above captioned amended public comments are
transmitted herewith . I left nine copies of the same documents with the receptionist this
morning. Please date stamp one copy and return it to Vermilion Coal company in the
stamped, self-addressed envelope also enclosed herewith
.
Fred L. Hubbard, counsel for Vermilion Coal Company, will submit a motion to
retract the (much lengthier) copies submitted on May 14s' .
Sincerely,
Re: PCB 01-112; Prairie Rivers Network v
IEPA and Black Beauty Coal Company
Amended Public Comments
Frederick D. Keady, Presiden
Vermilion Coal Company
STATE OF IWNOIS
Pollution Control Board
KLcL t
CLERK'S OFFICE
MAY 2 9 2001
STATE OF ILLINOIS
Vermilon Coal Company
Pollution Control Board
Public Comments & Exhibits
Before the Illinois Pollution Control Board,
Case PCBO1-112; Prairie Rivers Network v
IEPA and Black Beauty Coal Company
SRIGGNAL
May 14, 2001
(Amended May 24, 2001)
Vermilion Coal Company
1979 Johns Drive
Glenview IL 60025
Tel: 847.832.9007
Fax: 847.832.9010
May 14, 2001
Amended May 24, 2001
Illinois Pollution Control Board
c/o Dorothy Gunn, Clerk
100 W. Randolph St
.
Street Suite 11-500
Chicago IL 60601
Re: PCB 01-112; Prairie Rivers Network v
IEPA and Black Beauty Coal Company
Public Comments by Vermilion Coal Company
Ladies and Gentlemen
:
Vermilion Coal Company makes these comments pursuant to the rules regarding
public comment following the hearing on appeal in this matter
.
Prairie Rivers Network ("Appellant") has appealed as a third-party the issuance of
an NPDES ("Permit") to Black Beauty Coal Company ("Permittee") for the occasional
discharge of treated storm water into an unnamed tributary of the Little Vermilion River
("River") from the surface area of Permittee's new Vermilion Grove Mine ("Mine") an
underground coal mine, by the Illinois EPA ("IEPA") . Frederick Keady, President of
Vermilion Coal Company ("Vermilion") provided public and written comments at one or
more of the public hearings during the processing of Permittee's application . Vermilion
sought standing as a party in this matter, which was denied . Vermilion was given the
opportunity to submit this public comment and intends to file an
amicus curiae
brief in
accordance with the briefing schedule in this matter
.
The Permit Has Significant Environmental Benefits
:
The
Mine
will have
significant environmental benefits . Production and use of more than 40 million tons of coal
from the proposed mine will avoid the emission of an estimated 1,600,000 tons of sulfur
dioxide, relative to typical 3 .5% sulfur Illinois coal
.
The proposed coal mining and processing complex is a paragon of enlightened
environmental engineering. Underground mining operations and coal preparation, storage
and shipping will be conducted in accordance with the strictest environmental standards
.
Treated storm water would be infrequently discharged pursuant to the Permit (and only
due to heavy storms, when large quantities of storm water from other sources ensures
substantial dilution)
.
Petitioner has contended that storm water discharged pursuant to the Permit would
degrade the quality of the River. Petitioner is urging standards based on NO degradation
of any kind. Such a position is not the rule applicable to this Permit . The River is known
to suffer from high nitrates and sediments as a result of sustained uncontrolled agricultural
Printed on Recycled Paper
1
a
runoff, and questions have been raised about phosphates and pesticide residues. The
relatively small and intermittent discharges authorized pursuant to the Permit will not
contain any of these substances, and are certain to be cleaner in certain respects and
smaller in quantity than the runoff from the previous land use or the surrounding lands
.
The Permit Has Significant Energy Benefits
:
The coal to be produced by Permittee
will be used to produce more than 100 billion kilowatt-hours of electric energy, at less
than one-fifth the fuel cost of natural gas. The unprecedented uptake of natural gas for
electric power generation has crowded out consumers and resulted in a serious natural gas
price shock. Natural gas is primarily a space-heating fuel for homes and commercial
buildings, and supplies are inadequate to service a major part of the electric utility
industry's fuels requirement . Recent uptake of natural gas by electric utilities has crowded
out city-gate uses of natural gas and resulted in prices exceeding $10 .00/mcf. Electric
energy shortages here during the past few summers are ample evidence that Illinois is
precariously close to an electric energy crisis like California is now suffering
.
Vermilion's Property Rights Would be Adversely Affected
: Vermilion is the owner of
the coal and mineral to be mined under lease by Permittee . Vermilion also owns 32 acres
of fee land whose surface comprises most of the north bank of Lake Georgetown, and
whose coal is included in Permittee's lease. Virtually all of the coal leased by Permittee
from Vermilion is within the watershed of the Little Vermilion River. Production of
Vermilion's coal will require one or more NPDES permits to be issued to Permittee for
storm water discharge into the River or its tributaries, regardless of where Permittee's
surface facilities are sited. Accordingly, denial or significant impairment of Permittee's
permit is constitutes a taking of Vermilion's property.
Vermilion's Property Is Very Valuable : The coal to be mined at the Mine includes at
least 40 million saleable tons of Vermilion's coal. Vermilion has a contractual and business
expectation of receiving an estimated $1 .00 per ton in earned royalties in regard of this
coal, in addition to additional revenues as minimum royalties and wheelage fees . This
income is expected to accrue at the rate of $250,000 per month from the time the Mine
reaches its capacity until the coal is exhausted
.
The coal lands to be mined by Permittee are part of one of the largest low-sulfur
coal reserves in the State of Illinois. Vermilion and its predecessors have owned these
lands since 1920. More than 80 million tons of low-sulfur coal was produced between
1920 and 1972, and a similar quantity remains to be produced
.
Vermilion and its
predecessors have paid millions of dollars in property taxes to the Vermilion County, the
State of Illinois, and various other taxing bodies. Proceeds arising from the lease between
it and Permittee are Vermilion's principal source of revenue
.
Vermilion Has Made Substantial
Financial Commitments :
Vermilion has an
investment of $20 million in its property. The property is secured by a $4,425,000 deed of
trust mortgage from a local bank. The balance of the investment was provided by
predecessor companies and by borrowings and equity investments of shareholders of Iron
Printed on Recycled Paper
2
Carbide Technologies Inc ., Vermilion's parent corporation. These corporations are not
publicly traded and constitute a substantial part of the assets of their investors
.
In addition to investment, these coal interests are assessed as real estate and pay
substantial real estate taxes to the taxing bodies of Vermilion County, Illinois, including
schools, aid to the poor, roads, bridges, fire protection and general local government
.
Denial of the permit will not only substantially injure the owners, but it will have a material
adverse impact on the value of the coal and the real estate tax due from it
.
Vermilion Has Relied On Existing Regulations:
Vermilion made its financial
commitments in express reliance upon the established permitting rules and regulations of
the IEPA, USEPA, IL PCB, Illinois Department of Natural Resources ("IDNR"), and US
Office of Surface Mining; and for the express purpose of making available substantial
quantities of coal that would permit electric utilities to comply with the acid rain
provisions of the Clean Air Act Amendments of 1991 . The Permit should not be judged be
standards not yet adopted or effective
.
Vermilion Mav Have Been Denied Its Right to Due Process
:
The facts set forth in
this letter are well documented and would have been placed into evidence if Vermilion had
been granted status as a party in the above captioned case. Vermilion made all reasonable
efforts to obtain party status in the case and to participate pursuant to applicable rules
.
The only way in which Vermilion can express its interests and concerns is through the
public comment process. Vermilion remains ready, able and willing to prove these facts .
IEPA Acted Properly : It is Vermilion's position that the IEPA lawfully and properly
issued the Permit; and that IEPA relied on the rules and regulations of the State of Illinois
and the United States Government, its own experience and a vast body of scientific and
engineering know-how. IEPA acted within its reasonable discretion. The USEPA
expressly consented to issuance of the Permit . From a practical standpoint, the issuance of
the Permit will have a beneficial effect on the Little Vermilion River and the public in
general by monitoring presently unmonitored runoff, generating needed electricity with
lower sulfur emissions, creating jobs, contributing to the coal industry in Illinois, and
contributing to the financial health of the State of Illinois, Vermilion County, and local
political subdivisions
.
Any Errors Or Omissions By IEPA Were Immaterial And The Permit Should
Remain in Force : Appellant alleged procedural errors by IEPA, and insists that it be
given a greater role in the permitting process for NPDES and similar permits . Appellant
claims it was disadvantaged by IEPA's reliance on its substantial expertise in water quality
matters because that expertise is not documented in the record . If every thought process
and knowledge were strictly documented, the record would be unreadable. Prior
discussions in adopted rules and the professional judgment and background of the Agency
employees should be given credence in the absence of proof to the contrary. Excerpts of
prior IL PCB Rulemaking Proceedings are attached as Tabs 1 and 2 as documentation of
the expertise and intelligence incorporated in the determination of protective rules
Printed on Recycled Paper
3
consistent with property rights and human needs for goods services and the amenities of
our life style under the existing rules .
Permit Denial May BeAGovernmental Taking of Vermilion's Property : Denial or
impairment of the Permit will certainly result in a drastic loss of value of Vermilion's coal
property. Vermilion conducted extensive due diligence on Illinois and United States
environmental regulations, and relied upon those laws and regulations in undertaking to
commit its investment in its Vermilion County coal rights. Acceding to the demands of
Appellant would require arbitrary changes in the letter or the spirit of these laws and
regulations subsequent to the time of Permittee application .
Permit Denial Would Be Bad Public Policy
: Ironically, Vermilion's investment in these
coal lands was for the express purpose of increasing production of Illinois low-sulfur coal
in order to facilitate the efforts by Midwestern electric utilities to comply with the acid rain
provisions of the Clean Air Act Amendments of 1991 . If such supply-side investments are
perceived at risk of being nullified by arbitrary and unpredictable changes in regulatory
policy, producers of all forms of energy and environmental goods will invest elsewhere, or
will require higher returns to compensate for higher regulatory risks
.
The Governor and the legislature officially encourage coal mining in Illinois
.
The pending Mine is a source of employment, tax revenue, and fuel to generate electricity
for homes, schools, government entities and business
.
Mining History Along The River :
The River has maintained its qualities despite
continuous contact with the coal and mined lands . It flows naturally, as it always has,
through the coal seams that subcrop in Eastern Vermilion County . The area along the
River has been extensively mined over the last century, with little regulation or
reclamation, by slope, shaft and strip methods
.
The Herman nature preserve is within one-quarter mile of the former Sharon Coal
Brick and Tile Mine. The Babe Woodyard nature area was a former strip mine donated by
the Peabody Coal Company. The former Cherokee Hills Boy Scout Camp, now owned by
the Department of Natural Resources was owned and mined by the Cherokee Mining
Company. Kickapoo State Park includes parts of the Middlefork River which has been
designated a National Wild and Scenic River and is a highly rated river .
That park is
reclaimed coal strip mine property
.
The map attached as Tab 3 prepared from public mining records in Vermilion
County and the State of Illinois shows numerous old mines in the River's watershed
.
These former mine sites show that regulated storm water runoff pursuant to this Permit
should be more than adequate to protect the environment
.
Zoning History:
Elwood Township, in which the facility is located, overwhelmingly
defeated a motion for Township Zoning in August 2000 . A copy of the newspaper article
Printed on Recycled Paper
4
reporting that vote is attached as Tab 4 . Prairie Rivers represents only a small portion of
the affected residents .
Vermilion Coal Company respectfully requests that the appeal be denied .
Vermilion Coal Compan
Frederick D. Keady, President
Printed on Recycled Paper
5
Before the Illinois Pollution Control Board, Case PCBO1-112
Prairie Rivers Network v EPA and Black Beauty Coal Company
Exhibit List to Public Comments of Vermilion Coal Company
Tab 1
:
IL PCB Rulemaking Proceedings (1981)
Tab 2 :
IL PCB Rulemaking Proceedings (1983)
Tab 3 :
Little Vermilion Riverbed Map (dated 4-23-2001) prepared by Black
Beauty Coal Company Showing the Drainage Area of the Little Vermilion
River and Identifying the Location of Mining Activity in the Vicinity of that
River .
Tab 4 :
News item describing defeat of zoning measure in Elwood Township
This document is printed on recycled paper .
Printed on Recycled Paper
6
Exhibit 1
\J
APR .1`J .G
J i 1C
•4
(:'
LEXSEE 1980 211 .
ENV LEXIS 379
IN THE
MATTER OF: PROPOSED AMENDMENTS TO CHAPTER 4 OF THE
REGULATIONS OF THE ILLINOIS POLLUTION CONTROL BOARD
Nos . R76-20 ; 17-10
Illinois Pollution control Board
1980 111 . ENV L,BXIS 379
January 24, 1980
OPINIONPY:
[*1]
SATCHELL
OPINION: PROPOSED OPINION OF TEE
BOARD
(by Dr. Satchell) :
This' matter comes before the Board upon two proposals for regulatory change
.
On September 21, 1976 Ohio Power Company filed a petition for a change
in the
definition of mine storage facility, docketed R76-20 . On April 20, 1977 the
Environmental Protection Agency (Agency) filed a petition proposing to repeal
Chapter 4 : Mine Related Pollution and substitute a new version, docketed R77-10
.
On, August 18, 1977 the proceedings were consolidated on motion of Ohio Power
Company, The proposal in R76-20 was published in Environmental Register Number
135 on August 15, 1976, R77-10 was published in Environmental Register Number
146 on May 2, 1977 . Public hearings on the proposal were held
in Springfield on
October 31, 1977 and in Carbondale on November 2 and 3, 1977 . During the course
of these hearings, two amended proposals were presented by the Agency .
On November 21, 1978,the institute of Natural Resources (Institute), pursuant
to suggestion made by the Illinois Coal Association at the merit hearings, filed
with the Hoard a proposal for interim regulations (R . 141) . on December 14,
1978 the Board ordered the record in this [*2] proceeding held open to take
evidence on the proposal for an interim regulation concerning total dissolved
solids in mine discharge (Rule 605; 32 PCB 321)
.
An Economic Impact Study (ECIS) was prepared by the institute. Public
hearings on the
Eels
were held in Springfield on July 31 and in Carbondale on
August 2, 1979 . At these hearings evidence was also taken on the merits of the
institute's interim proposal. On September 5, 1979 the Agency filed a third
amended proposal . on October 2, 1979 the Illinois Coal Association filed A set
of comments. On October 4, 1979 Monterey Coal Company filed its comments. on
that same date the Illinois Mine Related Pollution Task Force filed a position
paper . On October 11, 1979 the Board received the comment of Directors Michael
Mauzy of the Agency and Brad Evilsizer of the Illinois Department of Mines and
Minerals
.
The hearings were attended
by
members of the public and representatives of
-various coal companies and the Illinois Coal Association (Coal Association)
.
Some of the latter were also members of the Task Force. The industry
representatives presented testimony and cross-examined witnesses
.
SUMMAXlY OF PROPOSED CHANGES
The Chapter [*3] 4 revisions, drafted on the Order dated December 13,, 1979,
are largely to accommodate the NPDES permit requirement. Currently mines
require two environmental permits in Illinois: they must have a Chapter 4 state
N
u
I
I
Hht
.1
•y
.O&11
1C4fl-
111 . 000
r . 0' OY
permit, and,
in most cases, an NPDES permit under Chapter 3 . The new Chapter 4
provides specifically for Chapter 4 NPDES permits . The Agency regards this
permit requirement as essentially duplicative., The new Chapter 4 will exempt
from the state permit requirement those mines hich hold an NPDES permit (Rule
402) .
The Proposal also contains a significant expansion of the scope of Chapter 4
to include coal transfer stations . This was the proposal of Ohio Power company
which was denominated R76-20 and consolidated with the Agency's proposal . This
will allow coal transfer and similar facilities to take advantage of the more
lenient effluent standards contained in Part VI of Chapter 4 (Rule 201 ; "Mining
Activities") . Since the inclusion of coal transfer facilities under Chapter 4
would represent a significant expansion of the permit requirement,
there
are
also provided exemptions from the permit requirement for smaller facilities
(Rule 403)
.
The Affluent limitations contained [*4] in Chapter 4 have been revised to
more closely follow the federal guidelines . The averaging rule has also been
changed to be similar to that found in federal guidelines and in the proposal
in
R76-21 (Rules 601,
606),
The present Chapter 4 requires an abandonment permit before a mine is
abandoned. The Agency has found these provisions to be unworkable, The new
Chapter 4 will provide for an abandonment plan which
is
filed with the permit
application and incorporated into the permit as a condition (Rule 509)
.
Most of the technical rules governing coal mining have been removed from
Chapter 4 . The remaining document is largely procedural . There is, however,
provisign for publication of an Agency guidance document which would contain
design criteria for coal mines and treatment works (Rule 501) . There is a
similar provision in the water rules (Water Pollution Rule 967)
.
Most of the controversy has controversy has centered around Rule 605 which
is
unchanged from the old Chapter 4 . This rule requires that coal mine effluents
not cause violation of the water quality standards contained in Chapter 3
.
Apparently most of the coal mines in the state cause such water quality
violations [*5] with respect to total dissolved solids (TDS), chloride and
sulfate. hate in the proceeding the Institute of Natural Resources and the
Agency proposed a temporary rule to exempt coal mines from Rule 605 into the
year 1981, at which time the Institute intends to propose an alternative to Rule
605 (32 PCB 321) . In the interim, compliance will be required with good
housekeeping practices contained in a code of good mining practices promulgated
by a joint government-industry task force
.
STATE OR NPDES PERMIT
Although elimination of duplicate permits and provision
•for exemption from
the state permit requirements will result in dollar savings to the Agency and to
the industry, it adds considerable complexity to Chapter 4 . A facility carrying
out mining activities may fall into one of the following categories :
1 . Combined Chapter 3 and Chapter 4 NPDES permit ;
2, chapter 4 NPDES permit ;
3. State permit ; or
4 . Exempt from state permit (and not required to have an NPDES permit),
The following outline determines into which permit category a facility will
fall
:
I
N-J
Hrx.19.cbbl
xc~'+rr
;
•
1
.
Does the applicant already possess a Chapter 4 state or
NPDES
permit for the
facility?
-- If So, is [*6] permit modification required under Rules 304(b) or 407?
2 . If not, does the applicant propose to carry out "mining activities" within
the meaning of Rule 201?
-- If the applicant does not propose to carry out mining activities a Chapter 4
permit is not required under Rule 401
.
3 . If the application proposes mining activities, then does
the
applicant
already possess a Chapter 3 NPDES permit for the facility (Rule 402(a)]?
-- If so, then the chapter 4 requirements will
be
written into
the
Chapter 3
NPDES permit (Rule 302)
.
4. It the applicant has no NPDES permit, then does the application propose a
discharge from a point source into navigable waters within the meaning of the
FWPCA (Rule 402)?
-- If so, then under Rules 300(a) and 302 the requirements of chapter 3 and
Chapter 4 will be written into one NPDES permit for the facility subject to the
standard for permit issuance contained in Rule 802
.
5. If an NPDES permit
is
neither
held
nor required, then does the facility
qualify for an exemption from the state permit requirement under Rule 403?
--
If npt, a state permit is required under Rule 401 .
6. If go, has the Agency notified the facility that a state [*7] permit is
nevertheless required under Rule 403(c)?
-- If
sq,
a state permit will be written pursuant to Rule 401, subject to the
general standard for permit issuance contained in Rule 502 ; otherwise, a Chapter
4 permit is not required, provided the operator notifies the Agency of the
location of the facility and claims exemption prior to the filing of an
enforcement action [Rule 403(b)]
.
There are also construction permits (Rule 401) and construction
authorizations (Rule 304)
.
These
are special, limited state and NPDES permits,
respectively. In the case of a facility which already has a chapter 4 permit,
their issuance will amount to a permit modification in the above outline. In
the case of a new Chapter 4 facility, the state or NPDES permit first issued
will ordinarily be a construction permit or authorization, although there is
flexibility on this point
.
ECONOMIC IMPACT STUDY
The Economic Impact Study was prepared for the Institute by Dr. William C .
Hood and Dr. Donald W. Lybecker, The study found few identifiable costs and
benefits and concluded that the economic impact of proposed changes would be
minimal. The specific findings will be discussed with the individual [*8]
sections which were found to have an economic impact
.
The transcripts of the two sets of hearings are not numbered
sequentially .
it is therefore
necessary
to distinguish page numbers . "E" refers to a page
Hr <. r
. CYJe11
1C'i~rl i
number in the economic impact hearings, while "R" refers to a page number in the
merit hearings
.
AGENCY PROPOSAL
At the hearings it was suggested that the Agency's proposal needed to be more
carefully drawn (R . 119) . It was further suggested that for clarity it was
desirable to separate the provisions applicable to : (1) NPOES permits, (2) state
permits and (3) both (R. 100) . The Agency's response to these criticisms was
three amended proposals which adjusted specific rules to meet specific
objections . The agency suggested that the editorial changes were up to the
Board (R. 120) . Accordingly, the Board has regrouped the provisions from the
arrangement in the Agency proposal. After the proposal had been rearranged it
became apparent that its lack of structure had hidden a number of circular
definitions and conflicting provisions . An effort has been made to eliminate
these difficulties, Specific alterations in the Agency's proposal will be
discussed with each section. [*9] To aid in cross referencing the proposed
Opinion and Order to the proposal and the old Chapter 4, the comparable section
numbers have been listed in parentheses after the heading of each rule in this
Opinion, For example, "P-305" refers to Rule 305 in the Agency proposal and "0-
605" is Rule 605 in the old Chapter 4
.
PART x: GENERAL PROVISIONS
101 Authority (P-101 ; 0-101)
Rule 101 sets forth the Board's authority to regulate mine related pollution
under 8 13 12 and 13 of the act which concern water pollution . The old Chapter
4 also listed A E 9, 21, and 22 of the Act which related to air pollution and
land pollution and refuse disposal. These have been omitted from the revision .
Mining activities are subject to these provisions of the Act and to the Board
regulations adopted under them -- Chapter 2 : Alt Pollution Control Regulations
and Chapter 7: solid Waste Rules and Regulations, as well as other Board
regulations (R . 43)
.
Mine refuse disposal is regulated by Chapter 4 pursuant to !3 12(d) c the
Act which concerns depositing contaminants upon the land so as to cause a water
pollution hazard. It is arguable that mine refuse is also "refuse" within the
meaning of 73 f3 21 and [*10] 22 . However, it is not the Board's intention that
disposal of mine refuse on a permitted Chapter 4 facility be subject to Chapter
7 as well as Chapter 4
.
Since chapter 3 and Chapter 4 both govern water pollution there must be
special rules establishing the respective jurisdictions . Chapter 4 governs
mining activities which include mine related facilities as defined by Rule 201
.
Part VI establishes effluent limits for mine discharges (Rule 600) . Other
discharges and facilities are regulated under Chapter 3
.
102 Policy (P-102; 0-102)
This is largely unchanged from the Agency proposal and the old Chapter 4
.
The wording has been changed to include the defined terms "mining activities"
and "mine related facility" (R . 201)
.
103 Purpose (P-103 ; 0-102)
This has been taken largely unchanged from the second paragraph of old Rule
102
.
A
HrX . i7. G'L'b1 1G''-+orn
104 Compliance with Other Laws Required (P-105 ; 0-701)
This has been changed to indicate required compliance with "The Surface Coal
Mining Land Conservation and Reclamation Act ." The title of the law passed in
1979 differs slightly from the old title (R. 43, 58, 67)
.
105 Validity Not Affected (P-106 ; 0-702)
This is unchanged .
106 Repealer [*119
This has been added to the Agency proposal. There is a proviso that if the
entire Chapter 4 is found invalid or it its enforcement is stayed, then the old
Chapter 4 will again come into effect. There is also a provision in Rule 704
which continues the abandonment permit requirements of old Rule 502 until
permits containing abandonment plans are issued
.
PART 11; DEFINLTIONS
200 Terrs Defined Elsewhere
This contains a listing of terms used in Chapter 4 which are defined in the
Act, Chapter 3 or the FWPCA
.
201 Definitions
Abandon : The definition of abandon has been enlarged to include "transfer of
ownership." An operator who sells a mine may be obliged to execute an
abandonment plan under Rule 509 . Under the old Chapter 4 persons attempted to
evade their responsibilities for properly closing
a
site by transfer to a party
with insufficient resources to close the site. This change seeks to remedy this
(R .
9, ; E. 41)
.
The Agency proposal included "fail to open" under the definition of
abandonment . This has been deleted on the Agency's motion. Failure to open
will not therefore require execution of the abandonment plan . However, any
construction activity related to [*12] preparation for mining amounts to
opening a mine. Therefore, execution of the abandonment plan will be required
unless the operator takes no action whatsoever preparatory to mining .
Acid-producing Material; The definition has been changed slightly to clarify
the relationship between pyrite, iron and sulfur . Pyritic compounds include
pyrite, marcasite and other compounds of iron and sulfur. These are acid-
producing. Other compounds of sulfur include sulfates and organic sulfur,
Sulfates are totally oxidized and hence do not, as such, produce acid. Organic
and
elemental
sulfur do not occur in large amounts in Illinois coal, but are
acid-producing. The definition has also been changed slightly to specify
consideration of the "quality of drainage produced by mining on sites with
similar soils." This is in recognition of the fact that little mining actually
.occurs, in the soil itself (R . B4)
.
Affected Land: The definition has been expanded to include all land owned,
controlled or used by the operator in connection with mining activities with the
exception of the surface area above underground mines. The old definition
included only the actual mined area, refuse area, etc, [*13) The definition
has also been altered to exclude land once it has been reclaimed and
abandoned
to the satisfaction of the .Agency
(R .
10) . Under Rule 513 the affected land
cannot be outside the permit area during the permit term .
Coal Transfer Facilities or Coal storage Yard: This is a new definition .
Transfer and storage facilities have been included
in the definitions of mining
activities and mine related facilities and have thus been brought under Chapter
4 regulation. These facilities have much in common with coal mines and often
are larger than small mines and pose a similar pollution threat . Effluents from
these facilities will now be regulated under Part
V1
rather than under Chapter
$ . Facilities which have NPDES permits will now fall under Part III rather than
the permitting provisions of Chapter 3 . Facilities which are not required to
have NPDES permits may he required to obtain a state permit under Part IV (R
.
10, 19, 60; E. 41, 45, 49, 61, 101) .
This modification potentially represents
a
large expansion of the permit
requirement. However, Rule 403 provides exemptions from the state permit
requirements for domestic retail sales yards and consumer stockpiles . [*141
Larger facilities are probably already required to have an NPDES permit,
in
which event Chapter 4 provisions will be written into the Chapter 3 permit
.
The Agency proposal specified that coal transfer facilities and coal storage
yards were included not only in the definition of "mining activity," but also in
"mining" and "mine area." This usage was in conflict with the general
definitions of these terms in the proposal and it is not clear what its purpose
was . These have therefore been deleted . However, the definition has been
expanded
to specify that transfer facilities and coal storage yards are "mine
related facilities ."
The Economic Impact study concluded that inclusion of coal transfer
facilities and storage yards under Chapter 4 would result both in costs and
benefits to the industry. They would have to prepare an abandonment plan at a
cost of a few hundred to a few thousand dollars . On the other hand, they will
not have to invest as much to construct larger treatment facilities to meet the
more stringent effluent standards of Chapter 3 (EOIS 35 ; E. 41, 45, 61) . The
looser effluent standards would have some negative effect on the environment,
However, most of these facilities (f5) are located near major rivers where
ample dilution
is
available
(EelS 17; E. 49, 101) .
Construction Authorization : Authorization under Rule 304 to prepare land for
mining activities or to construct mine related facilities . Construction
authorization is issued to a person who holds or
is
required to have an NPDES
permit (R. 11)
.
Construction Permit : A permit under Rule 401 allowing the operator to prepare to
carry out mining activities or to construct mine related facilities
(R.11). A
construction permit is a state permit issued to an operator who does not hold an
NPDES permit. Under Rule 304 it is possible to
issue a construction permit to a
person
who
may be required to apply for an NPDES permit . This will not affect
the. requirement to obtain an NPDES permit for operation, but may simplify
administration in case there is doubt as to which type of permit is required
.
Construction of mine related facilities is a mining activity . Construction
may
therefore be permitted by an operating permit as well as a construction
permit. The question is not what the title of the permit is but what the
.language of the permit allows . The construction permit is a special type of
[*16] operating permit which will usually be issued for a short period of time
to allow the operator to undertake something out of the ordinary routine of
mining. The construction permit contemplates eventual application for an
operating permit before daily operation is begun
.
It would be better
to
exclude from the definition of mining activities the
construction of mine related facilities . Mining could be Separated neatly into
two worl4s of construction and operation, each with its own permit . However,
H'K.i'j ae1 IcU4=1
such definition would be difficult because mining is essentially an ongoing
construction process. It is not the Board's intent to require operators to make
continuous application for construction permits or authorizations as mining
proceeds (Comments of coal Association)
.
Domestic Retail Sales Yard :
A
coal stockpile which supplies only homeowners,
businesses or small industries or other institutions for individual consumption
.
This dqes not include a sales yard located at a mine or mine related facility .
On the Agency's motion, a specific exclusion for sales yards which supply large
industrial, operations has been excluded from the proposal . The word "small" has
been inserted [*17] in front of industries in the first half of the definition
.
This does not change the meaning (R . 11, 28 ; E. 43)
.
Domestic retail sales yards are excluded from the state permit requirement by
Rule 403 . This does not, however, exempt such a facility from the requirement
of obtaining an NPDES permit if the facility is otherwise required to obtain
such a permit, in which case the coal pile will be permitted under Part III of
Chapter IV (E . 84)
.
Drainage Course: Definition unchanged .
Facility: This definition has been added to the Agency proposal . The term
was used in that proposal, although undefined, along with "mine," "mining
facility," and "operation." A facility is a contiguous area of land, including
all structures above or below ground, which
is
owned or controlled by one
person. Two permits are required if there are either two isolated
pieces
of
land with one operator or adjacent tracts with two operators
.
The definition of mining activity in the proposal specified "activities on
land owned or controlled by the operator .
" This has been changed to
"activities on a facility ." The implication that a permit is limited to one
operator on one site is now contained [*1B]
in the definition of facility
.
The one-site/one-operator limitation, although self-evident, is of central
importance deserving clarification in a separate definition. Furthermore, it is
logically remote from the definition of mining activity, except to the extent
that offaite activities are not mining activities within the meaning of chapter
4
The facility may be larger than the affected land . It may include
undisturbed land and contain within it facilities which are regulated under
Chapter 3 as well as mine related facilities. The permit area must be contained
within qne facility, but the permit area may be less than the entire facility
.
It iS the Board's intention that a site under control of one operator but
bisecte~ by a roadway or other easement should be one facility, In the event
there a e two closely related, but noncontiguous facilities under the control of
one operator, the Agency may allow a combined permit application and issue
combined permits, if it is convenient to do so. In the event there are separate
surface installations serving a single mine, there will be one facility
.
The phrase "owned or controlled" does not require permits of both the owner
of record [*19] title and, for instance, a lessee. However, in the event
control of mining activities is in dispute, the owner may be required to obtain
a permit also, Otherwise the permit will be required of the person in control
of the mining activities. The fact that two or more persons may be in control
of part pf the facility is irrelevant so long as only one controls mining
activities ;
e.g., utility easements or farm operations have no effect on
"control" for the purpose of determining the extent of the facility .
During the hearings the Agency sought to amend the proposed definition of
"operator" to specifically include co-op preparation plants (R. 12, 29 ; Agency
I
HYK.17.cbb1
1c ;47Yli
Amendment) . The argument had been made that, since there was no one operator,
Chapter 4 was not applicable to the co-op. However, "operator" has been
redefined to include any person who carries out mining activities . The question
centers not on the legal character of the person, but on whether he carries out
mining activities . Even if a co-op falls under no other characterization in the
definition of "person" in the Act, then it will probably be a partnership within
the meaning of Chapter 106 1/2, !3 6, Illinois Revised Statutes . [*20] if the
facility if physically separated, then multiple permits may be required
.
However, if one site is operated
by
several persons, the Agency may require them
to enter into a formal agreement fixing control prior to permit issuance
.
Mine,Area or Mined Area: Although the definition is largely unchanged, it has
been altered to exclude the unmined surface land directly above underground mine
workings that is not otherwise disturbed by mining activities. The changes in
wording more clearly state the definition (R . 91) .
Mine Discharge: Part Vt regulates mine discharges . The production of a mine
discharge is a mining activity. The AGency proposal did not include a
definition of mine discharge. This definition has been taken from Rule 60D (p-
301) . Since the definition is fairly long it was thought better to set it forth
in definitions and then simply use the term "mine discharge" in Part VI
.
The proposal brings preparation and milling plant effluents into Chapter 4
for the first time (R. 15) . The definition has also been expanded somewhat to
include discharge from affected land and runoff from land . The Agency
definition was somewhat more limited in scope . This [*21] may have been
inadvertently omitted from the Agency proposal since it is contained in the old
version of Chapter 4 [0-601(a), P-301(a)]
(R.
51)
.
Coal mining is closely connected with activities affecting the land. The
exclusion of runoff from part of the affected land from Chapter 4 regulation
could have unintended
results. it could be argued under the Agency proposal
that runoff from the affected land other than from the mining area or the mine
refuse area or processing plant, eta ., would be regulated by Chapter 3 . This
could
be
used to justify required segregation of waste streams where there was
no sound environmental reason for doing so . This is not intended, however, to
limit the Agency's power under Rule 604 to require segregation of waste streams,
A definition of other discharges
is
also included. These include sanitary
sewers and diseharges.from facilities and activities which are not directly
related to mining activities . other discharges are regulated under Chapter 3
.
If a facility with an NPDHS permit has both mine discharges and other
discharges, they will be regulated by Chapter 4 or Chapter 3 respectively,
although there will be one permit only (Rule 302) . [*22]
Mine Refuse: Definition unchanged (R . 48)
.
Mine Refuse Area : Definition unchanged
.
Mine Refuse Pile ; Definition unchanged
.
Mine pelated Facility: A portion of a facility which is related to mining
activities, This is a new definition taken from the Agency's amended proposal,
the rule on construction authorization (Rule 304 ; P-204) . That amendment
required a construction permit for "any facilities related to mining
activities ." This has been shortened
to
"mine related facility" and used
throughout. There may be several mine related facilities within a facility
.
There may also be other facilities, including facilities regulated under Chapter
3
.
Mining: The Agency proposal contained an exception from the definition of
mining for "dredging operations contained solely in natural bodies of water ." In
HYK.17.c
x,s
i
JrJYI'1
a letter to the Board dated September 26, 1917 the Illinois Department of
Conservation objected to this exemption . At the hearings the Agency was unable
to explain why this was excluded from the definition of mining (R . 97), This
exception has therefore been deleted from the proposal . These operations may,
however, be exempt from the state permit requirement under [*23]
Rule
403. An
example of a regulated dredging operation is found
in Votava v. Material Service
Corp., 2<d> District, 078-489 ( .)uly 19, 1979)
.
The wording of the definition has been somewhat changed to include the
surface and underground extraction or processing of natural deposits of coal,
clay, fluorspar, gravel, lead bearing ores, sand, stone, peat, zinc bearing ores
or other minerals. It was pointed out at the hearing that lead and zinc do not
occur in their native state in Illinois and that peat
is
mined in Illinois (R .
93)
1
Mining Activities : All activities on a facility which are directly in
furtherance of mining. This definition, together with the permit requirement of
Rule 40X„ defines the scope of chapter 4 (R. 11, 70) . The Agency's definition
has been essentially adopted. However, a listing of specific mining activities
mentioned in the proposal have been listed with the definition
.
The Agency proposal contained many permit requirements (P-200, 201, 204, 251,
256, 257, 259, 260, 261, 262, 263 and 265). All
of
these were in conflict with
the requirement of an operating permit to carry out mining activities. Many
also conflicted with other permit requirements
[*24] through the use of
different language to cover similar activities . These have been brought
together under the definition of mining activities . There is now only one
permit requirement, the state permits of Rule 401 . NPDES permits have been made
an exception to Rule 401 . This has eliminated conflicting language and provides
a simple statement of the scope of Chapter 4 .
The Agency's proposal contained several rules stating generally that a permit
was required to carry out mining activities or to carry out a special type of
mining activity. The proposed Chapter 4 contains several rules of the form: "Do
not do 4 or B," where A' is a subset of A . These have been retained for clarity
even thqugh they are redundant (Rules 304, 400, 401, 501, 502, 505) . it is
possiblq to interpret this
as
excluding the special type from the definition of
mining activity . Therefore the definition of mining activities has been altered
to make it clear that the special type is still a mining activity
.
Opening a Mine: Any construction activity related to the preparation for
mining on a facility. This is a new definition. Once a mine has been opened,
it cannot be abandoned without execution of the [*25] abandonment plan as
provided by Rule 510 (R. 11) . Outstanding permits for mines which have never
been opened expire on the effective date of this Chapter as provided by Rule
703 . Permits issued in the future will include a definite expiration date as
provided by Rules 301 and 409 .
The Agency proposal specified preparation for mining on "the affected land ."
This has been changed to dfacility" to avoid logical problems since the land
cannot b~ affected prior to opening a mine .
opening a mine is a mining activity and hence a state permit, construction or
operating, is required under Rule 401 . A construction permit is required by
that section to "Prepare to carry out mining activities or construct a mine
related facility which could generate refuse, result in a discharge or have the
potential to cause water pollution
" ordinarily a permit will be obtained
before the mine is opened . Whether a permit is required for construction
activity preliminary to that specified in Rule 441 depends on intent. Turning a
spadeful of earth or driving a nail with the intent of ultimately mining is
opening 0 mine, which is a mining activity requiring a state permit. However,
Hrrc .
.L
.CtCJl iC'QCrl
the question of [*26) intent vani§hes once it can be said that a mine related
facility has been constructed which could generate refuse, etc . In this case a
construction permit is required even if the operator has no intention of mining
.
Operating Permit : A state permit required of a person carrying out mining
activities as required by Rule 401 . An operating permit is not required for a
person holding an NPDES permit as provided by Rule 402 . Other exemptions from
state permit requirements are provided by Rule 403
.
Construction permits and operating permits are referred to jointly and
severally as state permits . Since mining activities include construction, an
operating permit may authorize construction . There is no legal significance to
the designation "operating permit" or "construction permit ." The language of the
permit controls what is permitted
.
Operator: A person who carries out mining activities . An operator must have
a state, permit under Rule 401 unless one of the exemptions of Rules 402 and 403
applies
.
The definition has been considerably shortened from the Agency proposal which
listed various sorts of persons. This list is quite similar to that found in
the definition of "person" [*27) found in the Act. This term has been
substituted for the list for clarity. It is doubtful the Board has the power to
regulate any person who falls outside the scope of the Act (R . 12)
.
The proposal specified "engages in mining or the generation or disposal of
mine refuse or the operation of any coal storage yard or stockpile area ." This
has been expanded to include all mining activities . The listed practices have
been moved to the definition of mining activities
.
Under the Agency proposal state permits were required of operators who
carried out mining activities (P-251, 256, 257) . Apparently there were two
tests: Was the person an operator ; and, (or?) was he carrying out mining
activities? This confusion has been eliminated by making the permit requirement
depend on the definition, of mining activity only
.
Permittee: A person who holds a state or NPDES permit . This is a new term
taken from the new Reclamation Law. The Agency proposal spoke of "persons" and
"operators." Where from the context a rule seems to apply only to permit holders
the term "permittee" has been substituted. A person who holds a combined
Chapter 3 and Chapter 4 NPDES permit will be a "permittee" since (*28) he will
hold an NPDES permit issued under Chapter 4
.
slurry: This definition has been somewhat changed and expanded to include
mill tailings .
Spoil ; This definition is unchanged, but has been clarified to include
"mineral seams or other deposits ." This is in recognition of the fact that some
minerals do not occur in seams, but occur in lenses or other formations (R . 99)
.
State Permit: A construction permit or operating permit .
Surface Drainage Control : This definition has been added to the original
proposal. An Agency amendment expanded the scope of Rule 505 beyond diversion
of surface water around the active mining area to include diversion around mine
refuse areas and diversion, redirection or impoundment of streams, At this
point it became simpler to define a term for use in the operative rule
.
Surface drainage control also includes flow augmentation and controlled
release cf effluents . These are suggested methods of avoiding violation of the
TDS water quality standards which involve stream diversion and/or impoundment
.
They will. require a permit under Rule 401,
.)
Surface Mining: Definition unchanged,
Consideration has been given to bringing this definition (*29) into line
with the similar definition in the Reclamation Act. However, that act refers
only tq coal mining, while chapter 4 covers mining activities in
general. it is
the board's intention to include "surface mining operations" as defined by J)
1.03(24) of the Reclamation Act within the definition of "surface mining" used
in chapter 4
.
Underground Mining: The definition has been changed slightly for
clarification (R . 12)
.
Underground Water Resources : Definition unchanged .
Use of Acid-producing Mine Refuse : This definition is derived from the
Agency's proposal (Rule 508 ; P-259) . Use of acid-producing mine refuse has been
included
in the definition of "mining activity" and the permit requirement, by
implication, moved to Rule 401 : State Permits
. . Under the
old
Chapter 4, use of
acid-producing mine refuse was illegal (0-404) . under the proposal, the Agency
may issge permits (R. 112)
.
PART IIp: NPDES PERMITS
300 Preamble (P-200)
The wording of the original proposal has been changed to clarify the
NPDES/state permit relationship, Part
III
applies to mining activities carried
out by qny person who holds an
NPDES
permit, regardless of whether he is
required to have [*30j an NPDES permit because of his mining activities . This
part does not seek to alter the law of who must obtain an NPDES permit
.
However, if a person must obtain an NPDES permit, the Chapter 4 requirements
will be written into that permit (R. 12, 19, 69, 100, 103, 167 ; E. 43, 82, 84)
.
Take, for example, a large mining operation which would not be subject to the
NPDES permit requirements except for a small sanitary waste facility. If the
sanitary. waste facility must have an NPDES permit, then the entire facility is
governed by Part III and any Chapter 4 requirements will be written into the
NPDES permit. The facility will be exempt from the requirement of obtaining a
state permit under Rule 402,
Part III also applies to mining activities carried out by persons required to
obtain ap NPDES permit. It will be a violation of Part
III
to carry out mining
activities without an NPDES permit if those activities are required to have such
a permit. In this case there will also be a violation of Part IV since the
exemption from obtaining a state permit
will
not be applicable if there is no
NPDES permit .
301'Incorporation of NPDES Water
Rules
(P-202)
Except to the extent contradicted [*31j in chapter 4, the rules contained in
subpart A of Part IX of Chapter 3 apply to Chapter 4 NPDES permits . This
incorporates Rules 901-916 of Chapter 3 into Chapter 4 . The permit requirement
of Rule 901 is identical to the permit requirement of Rule 302 . The application
requirement of Rule 902 has been supplanted by the requirements of Rule 504
.
Rule 903' is incorporated. Rules 904 through 909 set forth the permit
application procedure before the Agency, These are generally incorporated
except tq the extent they may be contradicted
.
Rule 910(a) on general conditions is included
in
Chapter 4 subject to the
special conditions and Agency guida4oe document provided by Rule 501. Rules
910(b), (c) and (d) concerning water quality standards, wasteload allocation,
HYM . 1
. G4 Ij1
12 b1Y19
I1LJ .tD
r
.
1
3
1
3
q
effluent limitations and new source standards of performance are included
.
Rules 910(e),
(f),
(g) and (h) concerning duration of permits, reporting and
monitoring, entry and inspection, schedules of inspection and compliance are
included. Rules 910(1) and (j) are generally incorporated . Rule 910 (k) on
maintenance and equipment
is
incorporated subject to the Agency guidance
document of Rule 501 . Rules 910(1) and (m) on [*32] toxic pollutants and deep
well disposal are incorporated. Rule 910(n) on authorization to construct is
supplanted by Rule 304 .
Rules 911 through 915 are generally included . These are appeal, authority to
suspend, modify or revoke, revision of scheduled compliance, variance and public
access to information. Rule 916, effective date, is not applicable
.
Rule 301 generally incorporates procedural rules applicable to NPDES permit
applications except to the extent that these are contradicted by the more
particular provisions applicable to mines . This is to be contrasted to Rule 600
which concerns the applicability of the effluent and water quality standards of
Parts 11, 111 and IV of Chapter 3 . The standards contained in chapter 3 are
generally inapplicable to mine discharges unless otherwise provided .
302 NPDNS Permit Required of Certain Discharges (P-201)
Rule 302 establishes the
requirement
of an NPDES permit for a Chapter 4
discharger, This merely repeats Rule 901 of Chapter 3 and the requirements of
section 301(a) of the FWPCA as applicable to mining activities
.
The Agency proposal also specified that an NPDES permit was required of all
discharges of pollutants or combination [*33] of pollutants from
all point
sources as defined in the FWPCA into navigable waters . The Board does not
disagree with this statement of the NPDES permit requirement . However, this
language has been omitted out of concern that it might be construed not as a
guideline to aid persons unfamiliar with the permit requirement but as a new
standard for the permit requirement. It is not the Board's intention to change
the NPDE$ requirements in this Chapter 4, whether the permit is required will
be judged solely by Chapter 3 and the FwPCA
.
303 Application (P-203)
Rule 303 requires a person to apply for an NPDES permit if he is to engage in
a mining' activity requiring such a permit. This rule contradicts the present
Rule 902(c) of chapter 3 .
303(b) makes it clear that a person who has applied for an NPDES permit need
not apply for a state permit . If a person is in doubt as to whether an NPDES or
state permit is required, he should first apply for an NPDES permit .
It the
Agency determines that a state permit is required, it will notify the person and
request ~im to apply for a state permit . There will be no penalty for
application for the wrong permit .
303(b) will also be applicable [*34] in the event the Agency loses NPDES
authority and notifies the permit holders that state permits are required as
provided by , Rule 402
.
304 Construction Authorization (P-204)
Rule $04(b) provides for modification of a mining activity or mine related
facility for which the operator already holds an NPDES permit . Modification can
be undertaken only pursuant to a construction authorization which will take the
form of a condition of a new or supplemental NPDES permit (R . 13, 68)
.
HVK.17
.000 . 1G Jln1
Rule 304(a) covers the more complicated case in which a person
:
1. Seeks to
open
a mine for which an NPDES permit will or may be required; or
2. Seeks to modify a facility in such a manner that an NPDES permit will be
required after the modification but was not before, either because it operated
under 4 state permit or was exempt ; or
3 . Seeks to modify a facility in such a manner as to bring part of it under
Chapter 4 where the facility prior to modification held an NPDES permit but was
regulated under chapter 3 .
Rule 304(b) covers the usual situation in which a
person,operating
under an
NPDES permit seeks to modify, This will be handled exclusively with a
construction authorization . However, [*35] flexibility is allowed in the less
common situation involving new construction which will bring a facility under
chapter 4 for the first time. These situations could result in confusion . They
may
be
handled either
by
construction authorization or state construction permit
as provided by Rule 401 . Rule 304(c) provides that application must be made at
least 180 days in advance . Rule 304(d) provides that a person seeking
construction authorization will proceed just as though he were applying for an
NPDES permit . The Agency may provide construction criteria in its guidance
document promulgated pursuant to Rule 501 .
The original proposal contained a requirement that the construction
authorization not cause a violation of the conditions of the NPDES permit. This
has been deleted. The standard for issuance of a construction authorization
will be the same as the standard for the issuance of a permit . The question
will be whether the modified facility will cause a violation of the Act or
Rules, if not, the conditions of the permit
will
be adjusted to allow the
modification . Similar requirements have
been
dropped from USEPA regulations [40
C.F.R. D 124.52(b) ; 44 Fed. Reg. 32,854, [*36] 32,899 (June 7, 1979)]
.
However, Rule 301 incorporates a similar provision from the present Rule 902(i)
of Chapter 3 . On December 13, 1979 the Board proposed to delete this in R79-13
.
The Agency proposal was also specifically conditioned on the validity of
existing permits . This has been deleted as unnecessary. The term permit always
means valid permit unless otherwise specified. Subsequent to the hearings the
Agency proposed an amended version of this rule
[P-204(a)) .
This amendment has
been substantially adopted in altered form .
Deleted (P-205)
The Agency proposal contained a rule listing the rules which were applicable
to NPDES permits (P-205) . This rule has been deleted since the chapter has been
restructured to make this clear (R, 101) .
PART IV; STATE PERMITS
400 Preamble (P-250 ; 0-203(a)]
Part IV governs in theory all mining activity and hence anything regulated
under Chapter 4. However, the exemptions for holders of NPDES permits and for
domestic retail sales yards, consumer stockpiles and some small mines will, as
things presently stand, relegate Part IV to a minor role (R. 69) . However, in
the event the Agency loses NPDES authority, this will become the (*37]
principal part of Chapter IV .
401 Construction and Operating Permits: State Permits (P-251, 256, 257) 0-201)
]IV. 0=
r .i-„„-
u
I
u
.J
Hti .17.CIOYJ7
1C
•t
' Mi
i7L'.oa0
r
. . .Ji .w
Rule 401 sets forth
the
requirements of state permits .
There are two types
of state permits
-- construction permits and operating permits. These are
referred to individually or collectively as state permits (R . 12) . Rule 401(c)
provides for a joint construction and operating permit to be issued whenever it
is not worth the administrative trouble to issue Separate permits
.
An operating permit is required for a person to carry out mining activities
.
The definition of mining activities includes construction activities . Therefore
an operating permit is sufficient for construction . However, Rule 401(a)
provides for a separate construction permit . There has been difficulty with the
old Chapter 4 in that it is not clear that construction is a mining
activity.
in some cases, coal has actually been removed from the ground and sold . Persons
have claimed that this was construction and not governed under Chapter 4
so
as
to require an operating permit ., A bonstruction permit
is
provided in order to
make this clear (R, 33) .
The separate construction permit
will
also allow [*38] the Agency to review
and inspect a facility prior to issuance of the operating permit . In some
instances this will provide more flexibility in the permitting process
.
it makes no legal difference whether a state permit is denominated a
construction permit or an operating permit . The language of the permit
will
determine what is permitted regardless of the name
.
The Agency's original proposal contained two separate rules for when a
construction permit was required (P-251, 256) . The standard adopted
is
from the
Agency's amended proposal
(A.P.-251)
.
The standard for issuance
of
a joint permit in the Agency's proposal was that
the activities were "sufficiently standard to obviate the need" for separate
construction and operating permits . This has been changed to allow a joint
permit "for administrative convenience." The Agency should issue a joint permit
not only when a standard design is involved, but also in the case of an
innovative design if it is more efficient to issue the joint permit . The Agency
may also require two permits even if the design is standard (P-251, 256)
.
The original proposal specified various mining activities for which a permit
was required. This has been (*39] changed to include all mining activities as
defined by Rule 201 . The specifics have been moved to the definition
of
mining
activities
.
402 Exemption from State Permit: NPDES Holder (P-252, 200)
Rule 402 provides that an operator who holds an NPDES permit for a facility
need not have a state permit for mining activities on the facility . Whatever
mining activities an NPDES permit holder engages in
will
be permitted under Part
III, (R. 12, 19, 69, 100, 167 ; E. 84) . The NPDES exemption will terminate when
and if the Agency ceases to administer the NPDES permit program . The Agency's
proposal set forth the requirements of the FWPCA and specified that the
exemption would not
apply
unless they were met . Even though the exemption and
the Agency's NPDES authority might be conditioned upon the same facts, this
construction would raise the possibility of an inconsistent determination of the
facts . The proposal has been changed to provide that the exemption ceases
whenever the Agency ceases to administer the program for any reason whatsoever
.
Rule 402(b) also provides for notice to the NPDES permit holders by the
Agency in the event the Agency ceases to administer the program . This (*40]
is the only way of guaranteeing that the permit holders will learn that a state
permit is required. The notification procedure also allows the Agency to
determine whether or not it has NPDES authority . The Agency need not give
notice until it is convinced it has actually lost the authority with sufficient
I
HYK. 17. C WJ1
1C DCrI'I
certainty to justify the inconvenience of processing a large number of state
applications . The wording has also been changed to give the Agency authority to
set dates upon which applications must be received for state permits . I£ the
Agency.deems it necessary, it may spread these dates out over a period for
administrative convenience,
The EeIS concluded that elimination of the present system of requiring
duplicate state and NPDES permits would result in an annual savings to the
Agency of $ 3000 to $ 5000 and $ 200 to $ 400 to the mines (E. 43) .
403 Exemption from State Permit, Coal Piles and Small Mines (P-252)
Rule 403 provides a further exemption from the state permit requirement for
some shall mines, domestic retail sales yards and consumer stockpiles located at
the consuming facility, The revision has increased the scope of Chapter IV by
including under the definition [*41) of mining activities coal transfer
facilities and coal storage facilities . These definitions would include
domestic retail sales yards and consumer stockpiles. They are also able to take
advantage of the more lenient discharge standards found in Part VI . However, it
would unduly burden retail sales yards to require them to obtain permits (R . 13,
20, 28, 104) . Although consumer stockpiles could include very large facilities,
it is expected that most of these will already have NPDES permits . This
provision does not create exemption from the NPDES permit requirement (R . 64; E .
84) . However, Chapter 4 requirements concerning, for example, a consumer
stockpile will be written into the NPDES permit . The Agency retains the right
to require a state permit in the event a non-NPDES facility threatens to cause
water pollution or violation of the regulations
.
Rule 403(a) (3) provides an exemption for any mine affecting less than ten
acres of land per year which is not a coal, fluorspar, lead or zinc mine . It is
contemplated that among other things, this will provide an exemption for small
sand and gravel operations . Since
there
is a large potential for abuse, the
Board has added to [*42) the Agency's proposal the requirement of notification
by a small mine. This will afford the Agency an opportunity to investigate and
will allow it to maintain an accurate list of mining operations in the state .
since the exemption will date only from the time the Agency is notified of
the claim of exemption, this provision will be of limited utility as a defense
to operation without a permit, For the exemption to apply, operators who have a
mine with a doubtful exemption will have to notify the Agency and submit
themselves to an inspection in advance of an enforcement proceeding .
Rule 403(c) sets forth the requirement that the Agency notify the operator
that a permit is required and that the exemption is found inapplicable. In the
event the operator promptly applies for a permit, he can continue operating
without being subject to an enforcement action for operating without a permit
.
404 Applications,-Deadline to Apply (P-253)
A person who is required to have a state permit must file the application at
least ninety days before the date on which the permit is required . This is
.
similar to rules found in chapter 3 (Rules 902 and 960) . Under the
Administrative Procedure Act,
[*43] if a timely permit application is made,
the old permit continues in effect after expiration until the new permit is
issued [Ill. Rev. Stat. ch 127, 3 1016 (1977)] . An applicant will not be able
to avail himself of this statute if the application is not filed ninety days
prior to expiration .
405 Permit Applications: Signatures and Authorizations Required (P-254)
I NV . bud
r.lbibu.
I
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Ilil .7C O
r
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•o
This rule is virtually identical with Rule 902(h) of Chapter 3 which is
applicable to NPDES permits
.
406 Permit Applications: Registered or Certified mail or Hand Delivery Required
(P-255)
,
This rule is similar to Rule 959 of Chapter 3
.
407
Supplemental
State Permits [P-251, 263 ; 0-203(b)]
Rule 407 sets forth the rule for when supplemental state permits are
required. Rule 407(a) specifies that an operator may apply for a new or
supplemental permit whenever circumstances arise such that there could be a
violation of the previous permit
.
The Agency's amended proposal specified that additional state permits are
required "whenever mine drainage, mining or mine refuse disposal enters an area
not covered by a previous permit or when the treatment or pollution control
plans ate modified in design or operation" (AP-251) . (*44] This provoked
comment from the Illinois Coal Association and Monterey Coal Company, They
objected to dropping the word "substantially" before "modified in design or
operation" and to the proposal to require a
supplemental
permit whenever the
mine entered any "area" as opposed to a "new drainage area ."
The supplemental permit requirement on entering a new drainage area is taken
from the old Chapter 4
[0-203(b)]
.
Under that rule an operator could mine for
an indefinite period at a given location once a permit was issued . The only "
limitation was a new permit when
a
new drainage area was entered . The new
Chapter 4 is different in that the permit can have a duration of not more than
five years . It is possible to project the progress of the mining with greater
specificity for a limited period of time. Therefore, Rule 513 has been added to
the Agency's proposal, This requires that a state or
NPDNS
permit specify a
permit area, the maximum, extent of the affected land during the permit term
.
From the coal operators' comments', this appears to make Chapter 4 more in
agreement with the Department of Mines and Minerals' permitting system .
The Agency's proposal contained a substantive (*45] rule requiring
supplemental permits
under
certain circumstances . However, application for
supplemental
permit is a defensive move on the part of an operator . Therefore,
a rule requiring a
supplemental
permit is unnecessary. Rule 407 has been
modified to make it clear that an operator may apply for a new or supplemental
permit whenever a change occurs such that there could be a violation of his
permit .
Under the Agency proposal, for example, an operator mining beyond the
permitted area would violate not only the rule requiring an additional permit,
but also the rule against violating a permit condition . The redundancy is
unnecessary. The permit should specify with some particularity what it permits .
If the operator goes outside the bounds of the permit it is a violation of the
permit condition. Me must either cease the activity or apply fox a supplemental
permit .
Inspection of Chapter 3 reveals no similar rule appl$ing to state permits, A
substantive rule requiring supplemental permits is not only unnecessary but is
'redundant and conflicts with the various permit requirements contained in Part V
of Chapter 4 . For instance, Rule 506 requires a supplemental permit before
implementation [*46] of a revised disposal plan. Retention of
a
rule requiring
supplemental state permits could also be used as a defense to a complaint
alleging operation in violation of a permit condition not specifically listed in
the rule requiring supplemental permits . An operator could contend that under
t'.1c . 17
. GC:G1
1c
•
,orI'I
his circumstances a supplemental permit was not required and therefore he could
change his method of operation without applying for a supplemental permit
.
The modified rule gives the Agency control by permit over the supplemental
permit requirement, For example, under Rule 501 the Agency is authorized to
impose special conditions, which could include details of the design and
operation of treatment or pollution Control plans, The Agency can be more or
less specific about these details in the permit . The degree of specificity will
determine the latitude within which the permittee can operate without making a
supplemental application .
408 Violation of conditions or standards in a Permit (P-270 ; 0-206)
Rule.408 requires operators to comply with conditions of their state permit
.
Rule 40a(b) provices for revocation of permits
.
The ,agency proposal merely stated that a permit could be revoked (*47]
without giving any standard for revocation, In the proposed order, four
circumstances warranting permit revocation are listed. These are taken in part
from Rule 912(b) of Chapter 3 and in part by analogy with case law developed in
connection with solid waste permits, (EPA V . Harold Broverman, et al., 28 PCB
123, November 10, 1977)
.
In connection with an enforcement action, the Board may revoke a state permit
if, because of existing geological conditions, an operator cannot carry out
mining activities so as not to cause a violation of the law ; or, the complainant
demonstrates a history of chronic disregard by the permittee of the mining
regulations ; or, the complainant demonstrates that the permit was obtained by
misrepresentation or failure to disclose fully all relevant facts ; or, the
complainant demonstrates affirmatively that the general standard for permit
issuancq contained in Rule 502 would not be met if a new application for permit
were made, This last circumstance is intended to be the converse for the
general standard for permit issuance,
409 State Permit Term [P-268 ; 0-203(a)]
Rule 409 provides that state permits shall be of a duration not to exceed
five yedrs [*48] as specified in the permit . The Agency may specify any
expiration date up to five years from the effective date of a state permit
(R.267) . The Agency proposal specified that permits had a duration of one to
five years . This has been changed to remove the requirement that the permit
have a duration of at least one year. Rule 910(e), Chapter 3 specifies that
NPDES permits be issued for specific terms not to exceed five years. In the
past the Agency has issued to coal mines NPDES permits expiring less than one
year after issuance. (See EPA v. Zeigler Coal Company,
PCB
79.123, order of
November 1, 1979) . The minimum requirement has been dropped in keeping with the
general policy of this revision of keeping the NPDES and state permits as
similar As possible
.
The Agency's proposal specified that operating permits, but not construction
permits, could have such duration except as provided in paragraph d of Section
-33 of the Act. That section establishes the Board's authority to revoke
permits . It is unclear why the Board should not have the authority to revoke
construction permits also. This exception has been dropped from the rule since
it is not only redundant, but appears [*49] to conflict with the general rule
on revocation of permits found in Rule 407
.
The agency proposal also contained a provision that all operating permits now
in
effect expire when the earliest NPDES permit expires, but not later than
three years after the effective date of this Chapter. This has been moved to
Hrrc .
17 .
e
~
CL
la-
,
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Part VIZ. Not
only
is this a temporary rule that doesn't belong with the body
of the chapter, but also it does not apply to state permits within the meaning
of Part IV. An Agency amendment to the rule on duration of permits which
specifies a 180 day period for abandonment plans after effective date of this
regulation has also been moved to Part VII
.
410 Permit No Defense to Certain Violations (P-269 ; 0-207)
Rula 410
provides
that possession of a state permit is not a defense except
to a complaint alleging mining activity without a permit. This is similar to
Rule 966 in chapter 3 and Rule 207 of
the
old Chapter 4 . In an amendment the
Agency also sought to expand this rule to cover NPDES permits, The Hoard
rejects this change. Rule 966 of chapter 3 is not applicable to NPDES permits
and there
is
no similar provision covering NPDES permits . Although the Board
has not (*50] so held, there
is
authority for the proposition that compliance
with the conditions of an NPDES permit
is
a defense to a complaint charging
violation of related regulations
.
on motion of the agency, language relating to abandonment plans has been
stricken. Under the original proposal, operator compliance with its abandonment
plan was a defense to abandonment violations . This language was vague and
unnecessary since abandonment plans are covered in Rule 509 (R . 53, 77) . The
Illinois Coal Association objected to this proposed modification . However, the
modification is in keeping with the
general
rule that Illinois permits are no
defense to complaints charging violation of the Act or rules .
411 Permit Review (P-272 ; 0-703)
This follows the general policy of the other Chapters that grant of a permit
with objectionable conditions is a permit denial under section 40 of the Act
allowing
the
applicant to appeal. This provision is substantially unchanged
from thq old Chapter 4, although the language has been altered from that and
from that of the Agency proposal . Language has been inserted providing that
Agency notification of modification or revocation of an existing permit is also
[*51]
d permit denial. Rule 503 covers permit modification when new
regulations are adopted . The added language will allow a permit appeal in the
event of Agency notification of modification in such a case . In some cases Rule
503 notification of modification could amount to revocation of the permit .'
Language has been added to make certain that there is a right to appeal in this
case also
.
PART V: $TATE AND NPDES PERMITS
500 Preamble
Part V governs mining activities and Issuance of permits to operators
regardless of whether they hold a state or NPDES permit
.
501 special Conditions ; Agency Guidance Document [P-261, 266 ; 0-205(c)]
Rule 501(a) allows the Agency to impose special conditions on
a
permit which
are consistent with the rules and necessary to accomplish the purposes of the
Act . This restates the Agency's authority under S 39 of the Act to translate
the body of water pollution law into specific requirements which a discharger
must meet
.
The Agency proposal with regard to special conditions has been reworded to
track the language of 0 39 of the Act (Rule 501(a), P-205(b) and P-266] . The
rimR
.
17. LOV 1 1G' JYrl -
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requirement found in 13 39(a) that permit conditions not be inconsistent with
the [*52] Board rules was not included in the Agency proposal and has been
added .
Section 39 of the Act sets forth the Agency's authority to impose special
conditions in permits . The wording is slightly different depending on whether
the permit is state or NPDES. Section 39(a), which applies to permits required
by Board regulations, reads as follows : "in granting permits the Agency may
impose such conditions as may be necessary to accomplish the purposes of this
Act, and as are not inconsistent with the regulations promulgated by the Board
hereunder." However, 13 39(b) of the Act sets forth that ; "All NPDES permits
shall contain those terms and conditions, including but not limited to schedules
of compliance, which may be required to accomplish the purposes and provisions
of this Act." Therefore, assumiflg 13 39(a) of the Act is inapplicable to NPDES
permits, the Act does not require NPDES permit conditions to be not inconsistent
with Board regulations . This does not necessarily imply that the Agency must
ignore Hoard rules in writing NPDES permit conditions . Section 39(a) provides
that the Agency "may impose" conditions necessary to accomplish the Act's
purpose which are not inconsistent (*53] with Board rules . However, !3 39(b)
provides that, in
the
case of NPDES permits, the Agency "shall impose"
eonditigns required to accomplish the Act's purposes . The Act is silent about
what additional conditions the Agency may impose in NPDES permits .
Rule 501(b) allows the Agency to adopt permitting procedures . These should
include rules of procedure and application forms . They shall be included in the
Agency guidance document provided for below .
Rule 501(c) allows the Agency to adopt engineering criteria which will be
published with the Agency guidance document. These should represent minimal
designs and practices which the Agency will accept for permit issuance,
Rule 501(e) has been added to the Agency proposal . Although 41 39 of the Act
confers authority on the Agency to adopt rules governing permit procedures, the
Agency has no authority to promulgate substantive rules pursuant to 13 13 12 and
13 of the Act. This authority is given to the Board and there is no authority
for subdelegation to the Agency
(E .
80) . Rule 501(e) has been added to clarify
the nature of the criteria which the Agency may promulgate .
The
Agency necessarily has the power to develop guidelines for [*54] permit
issuance to be used within the Agency. Rules 502(c) and (d) contemplate
publication of these guidelines as criteria. The criteria will represent a
formal statement of what the Agency will not challenge in a permit application .
The criteria are not rules and will not bind any party other than the Agency .
Although these are not rules in the usual sense of the word, they are rules
within the meaning of
the
Administrative Procedure Act, 511 . Rev. Stat. ch. 127,
13 1003 .09 :
"Rule" means each Agency statement
of
general applicability that implements,
applies, interprets, or prescribes law or policy, but does not include (a)
statements concerning only the internal management of an agency and not
affecting private rights or procedures available to persons or entities outside
the agency, (b) informal advisory rulings issued pursuant to Section 9,
(0)
intra-agency memoranda or (d) the prescription of standardized forms
.
The criteria will amount to an Agency statement that interprets law or
policy. They will be of general applicability and not informal advisory rulings
issued to individual petitioners as contemplated by h 1009 of ch . 127
.
Publication of the rules in conformity with (*55] the Administrative Practices
Act is therefore required (E . 82 ; Third Amended Proposal)
.
502 Stendard for Permit Issuance
or
Certification (P-267 ; 0-202)
Rule 502(a) sets forth the standard for permit issuance . This is the usual
standard for permit issuance that the operator
present
evidence to demonstrate
that there will not be a violation of the Act or rules (5 39 of the Act)
.
Rule 502(b) further sets forth the function of the Agency guidance document
.
Where the guidance document contains criteria with respect to some part-or
condition of the permit, then the applicant may demonstrate conformity with the
criteria of the guidance document in lieu of demonstrating that there
will
be no
violation of the Act or Rules . However, since the guidance document does not
constitute rulemaking, nonconformity with the criteria will not be grounds for
permit denial, provided the general standard fox issuance is met . For an Agency
interpretation
of the comparable Rule 967 of Chapter 3, see 3 111 . Reg. 36, p .
226 (September 7, 1979)
.
'
As an example of the function of the guidance document, consider that the
Agency
might
issue criteria to the effect that refuse piles shall have a slope
no [*56) greater than 10% . The permit applicant will be free to •offer evidence
that a slope of 12% under the circumstances will not cause a violation of the
Act or Chapter 4 . However, the Agency will not be allowed to argue that under
the circumstances a maximum slope of 8% is required .
The
function of the
guidance document is to provide guidance by permitting the Agency to set forth
minimal standards
.
An
applicant can assure himself of prompt permit issuance by
conforming to the criteria of the guidance document
.
The Agency's proposal required that as a condition for permit issuance the
applicant demonstrate that
he
had conformed with all conditions
in
the
construction permit. If such a requirement is
to
be imposed at all, it should
also be applicable to construction authorizations . However, it has been deleted
from the proposal altogether . The permit will be issued if it is shown that
no
violation will occur regardless of whether the applicant conformed to the
conditions of the construction permit . If the applicant breached the
construction permit this
will
be grounds for an enforcement action, but standing
alone it should not prevent issuance of an operating or NPDES permit if [*57]
the general standard for permit issuance is met . Revocation of the permit
could, however, be imposed as a sanction in the enforcement action in an
appropriate case under Rule 40B or under Rule 916 of Chapter 3
.
503 Permit Modifications When New Regulations Are Adopted (P-271)
Rule 503 provides that the Agency may issue a supplemental permit setting
forth affected terms and conditions in the event the Hoard adopts new
regulations (R . 116) . This has been completely changed from the Agency's
proposal which would have provided for modification of permits by operation of
law. Violation of permit conditions frequently carries more severe penalties
than violation of regulations . The more severe penalties are warranted
in
part
because the operator has been afforded notice of particular provisions
in
regulations by way of the permit and because regulations have been made more
specific when incorporated into the permit . Modification of the permit' by
operation of law would defeat these policies of the permit system . Rule 503 as
adopted conforms with the similar provision contained
in Rule
968 of Chapter 3
.
504 Permit Applications (P-258 ; 0-204)
Rule 504 sets forth what information [*58] must be provided in a permit
application. This is further specified in the sections which
follow (E . 26)
.
The Agency proposal specified that soil classification was to be according to
Grandt and Lang, Reclaiming Illinois Strip Coal Land with Legumes and Grasses
.
requirements the Hoard does not intend to disavow them . They are mining
practices which carry a risk of water pollution. The Agency may provide for
these matters in the Agency guidance document and may write specific
requirements into permits to prevent water pollution
.
Rules 505(b), (c) and (d)
set
forth substantive rules governing the conduct
of mining activities . Rule 504(b)(7) requires a plan for surface drainage
control as part of a permit application . This plan will be incorporated into
the permit as a condition, Rule 201 defines surface drainage control as control
of surface water on the affected land by a person who is engaged in mining
activities . Surface drainage control includes the practices governed by Rule
505(b), (c) and
(d)
.
in permitting surface drainage control, the Agency shall
consider not only whether compliance with the requirements of Rule 505 has been
shown, brat also whether the plan will avoid other violations of [*61] the Act
and chapter 4
.
~. !
The definition of surface drainage control has been expanded to include flow
augmentation and controlled release of effluents as a htethod of avoiding
violation of the TDS and related water quality standards. These practices may
HM'K. 17 . eVUI
1,f;J5ttI
IYV.000
r .1G.11
This book is out of print . The Ag6Aoy will reproduce it in the guidance
document (R. 106)
.
The Agency proposal specified that the application must comply with the
conditions of the Agency guidance document . This has been deleted. If the
Agency were empowered to specify conditions which had to be met, the result
would be an improper delegation of rulemaking authority . However, the agency
is
permitted to request more information or more particular information than that
listed in Rule 504, It may do this either through an application form, the
Agency guidance document or specific requests for information, However, failure
to comply with criteria of the guidance document or inability to supply all
information will not alone be grounds for permit denial absent a showing that
the criteria or information
is
necessary in the particular case. The Coal
Operato-s' comment that this is,°beyond the bounds of reason" is answered [*59]
by the requirement of °necessary information ."
Subsequent to the hearings the Agency specified certain additional
information, This has been rearranged and incorporated into Rule 504 . The Coal
Operators' comments are discussed in connection with Rule 505,
505 Surface Drainage Control (8-260 ; 0-301(a), 301(b)]
Rule 505 provides for control of surface drainage by permit . Surface
drainage must be diverted around or away from the active mining area. Other
mining activities and mine refuse disposal must be planned
to
minimize contact
with waters of the state if such contact could result in pollution . Stream
diversion is to be avoided .
~,
'L
The original proposal provided only for diversion around the active mining
area, An Agency amendment expanded the scope of Rule 505 to include diversion,
redirection or impoundment of streams and a rule requiring that mining
aotivitijes and deposition of spoil be conducted so as to avoid contact or
U
interference with waters of the state. These amendments have been incorporated
in altered form,
I
°
The Agency amendment sought to expand the scope of Rule 505 to afford the
Agency the level of control it presently has under old Rule 301 of Chapter 4 .
[*60] Apparently in its original proposal the Agency restricted its authority
inadvertently .
Some gpeoific requirements of old Rule 301 have been omitted . These include
certain mandatory diversion and impoundment provisions . In dropping these
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previously have been considered illegal, although this Opinion clarifies this
.
They will require a permit under Rule 401 since they will involve stream
diversion or impoundment. There is no special rule governing permit issuance in
this case other than the general standard of Rule 502 .
Rule 505(a) requires the Agency to impose a surface drainage plan as a permit
condition. The Coal Association objected to this and in general to the
incorporation of the specific rules on stream relocations . Their contention was
that this was provided in the Department of Mines and Minerals permit and
application form which was reviewable by the Agency . They also objected that
the Agency did not presently have control over the permitting of stream
relocations, however, inspection of the old Chapter 4 at Rule 301(a) and (b)
reveals that the
Agency
does presently have such control .
At the hearings the Agency indicated that the various state agencies [*62]
responsible for permitting coal mines would develop a single application form
which would be circulated. The Coal Association's objection that the surface
drainage control provisions would be burdensome is answered by their contention
that the application is already required by Mines and Minerals (R . 27)
.
The Coal Association's comments further infer that there is a legislative
intent in the Reclamation Act to exempt coal operators from the permit
requirements
of the Act . Of course the bulk of the coal mines are required to
have NPDES
permits and the state permit requirement will be inapplicable to
them. it is beyond the power of the state legislature to provide exemptions
from the NPDES permit requirement .
The Reclamation Act does, as the Coal Association contends, provide for
Agency input and commeht in the mines and minerals permitting procedure
.
However, a careful examination of the Reclamation Act indicates that the
Agency's function is advisory
.
There
is
no provision for a
.veto by the Agency
in permit
issuance
from Mines and Minerals . Purthermore, section 3 .20 of the "'
Reclamation Act provides that "all requirements of the Illinois Environmental
Protection Act and rules [*63] and regulations thereunder shall be complied
with fully at all times during mining, reclamation and after reclassification ."
The Board cannot find from this a legislative
intent
to exempt coal mines from
the state permit requirements .
506 Refuse Disposal (P-262 ; 0-401, 402)
Rule 506(a) requires that a state or NPDES permit contain a refuse disposal
plan . An applicant must submit a plan under Rule 504(b) (12), The plan will be
made a permit condition if it satisfies the standard for permit issuance
contained in Rule 502. The applicant must show that there will be no violation
of the Act or rules, including Rules 504(c), (d) and (e) which are substantive
rules governing mining, The Agency may promulgate mine refuse criteria under
Rule 501
.
Rule 506(0) provides that runoff, etc ., from the affected land must meet the
standards contained in Part VI . Note that runoff from the affected land is a
mine discharge under Rule 201 [0-401 (a) (1)] . Rule 506(d) provides that refuse
areas must not be located
in
an area of natural springs or aquifer recharge area
or intercept a drainage course without special protective measures [0-401(a)
(2)]
.
Rule 506(e) establishes rules on spreading [*64] and compacting. These are
reminiscent of the solid waste rules . The original proposal specified only that
acid producing solid mine refuse be . spread and compacted and
covered
when
necessary with "non-acid-producing material .",This has
been
modified to include
the word "suitable" before "non-acid-producing material ." Impermeable clay would
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be a suitable cover material in that it would prevent water and air from
reaching the-acid-producing material . However, the Agency may approve other
suitable materials. Rule 506(e) permits alternate refuse disposal methods at
the Agency's discretion (R. 15, 114) . These will be subject to Rule 502 .
Rule 506(f) and (g) govern revised refuse disposal plans . This establishes a
specia. rule on when a new or supplemental permit is required . A new permit is
required if the revised plan contains any change from the permitted plan. Rule
506(d) requires that a revised disposal plan result in a now permit application
which must be made prior to implementation of the revised plan, ninety days
before, fox a state permit and 180 days for an NPDE$ permit
.
The original proposal defined revised disposal plan as one with a
"substantial" change. on the Agency's [*65] motion and over the coal
Association's objections the word "substantial" has been deleted. A new permit
is required before there is any deviation from the permitted plan . of course
the Agency can be more or less specific in permit conditions as required to
assure that the standard of Rule 502 will, be met .
The original proposal also required application to be made ninety or 180 days
prior tp "completion" of the plan . The Agency recommended deletion of this
word, but the amended proposal could still have been interpreted to require
application ninety or 180 days prior to mere possession of the plan. This would
be difficult to administer since submission of a plan is a necessary condition
for the new application under Rule 504. The adopted rule specifies
"implementation" of the plan . Implementation will occur when the first action
is taken pursuant to the revised plan and contrary to the permitted plan .
507 Experimental Permits for Refuse Disposal (P-264; 0-403)
Rule-507 provides for experimental permits for refuse disposal . The standard
for issuance of experimental permit is not the same as usually applied to permit
issuances by Rule 502 . The experimental permit may issue (*66] if the operator
demonstrates a reasonable chance for compliance with the Act and Chapter 4 . The
rule sets forth special monitoring and reporting requirements . The procedure is
laid out for notice and termination of the experimental permit (R . 114) .
The original proposal required that the disposal area not be the "principal
area for disposal of acid-producing refuse unless approved by the Agency ." This
language has been deleted . It adds nothing to the proposal since no permit
would issue without Agency approval . It is not the Board's intention, however,
that experimental permits should often be issued for a principal disposal area .
508 Permit for Use of Acid-producing
Mine
Refuse (P-259; 0-404)
'Rule 508 requires that a state or
NPDES
permit include as a condition a plan
for the use of acid-producing mine refuse if the operator is to use such . The
definition of acid-producing mine refuse has been moved from its place in the
proposal to definitions . Use of acid-producing mine refuse is a mining activity
as defined by Rule 201 for which a permit is required under Rule 401 (R . 112)
.
The original proposal specified that use of acid-producing mine refuse was
restricted to holders [*67] of operating permits . On the Agency's motion, this
requirement has been deleted . There is no obvious reason Why this rule should
not also:be applicable to holders of NPDES and construction permits
.
Rule 504(b) (17) requires a plan for use of acid-producing mine refuse in a
permit application. The Agency may, set forth in an Agency guidance document
under Rule 501 criteria for the use of acid-producing mine refuse . The standard
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ow
for issuance
of a permit for use of acid-producing mine refuse is that contained
in Rule 502 .
Rule 404 of the old Chapter 4 contained an absolute proscription of use' or
offer of acid-producing mine refuse . This proposal would allow
such
use by
permit
.
509 Abandonment Plan (P-261 ; 0-502)
Rule' 509 provj,6ies that an application for a permit include an abandonment
plan. The permit will include an adequate plan as a condition . This represents
a drastic departure from the present chapter 4 which requires
an
abandonment
permit subsequent to abandonment of the mine. The Agency has had considerable
difficulty with enforcing the requirement of an abandonment permit . Requiring
the abandonment plan
will
force the operator to confront the problem prior to
abandonment [*68] and the operator will no longer be able to claim ignorance of
the requirement to take steps on abandonment
(R,
14, 20, 39, 54, 66, 78, 112)
.
The EcIS was able to quantify the economic costs of this, This represents
one of the few identifiable costs associated with this revision . An abandonment
plan
likely
volves an engineering fee of $ 1000 or more, This fee will have
to be paid prior to application for the permit, This requirement therefore
increases the capital investment required to open a mine and obtain a permit
.
The cost, of mining is increased somewhat by the cost of tying up this capital
for the period of time the mine is open (E, 42, 44, 99) .
Rule 509(b) defines an adequate abandonment plan . The plan must provide a
time schedule for completion of abandonment work within one year . Subsequent to
abandonment, however, the Agency may approve departures from the plan that would
allow far completion over a period of more than one year
.
Rule 509(c) provides that the Agency may further define an adequate
abandonment plan by means of the Agency guidance document . However, the Agency
must approve an abandonment plan upon a demonstration that it will provide
protection against [*69] violations regardless of whether it conforms with the
Agency guidance document .
Rules 509(d) and (e) provide for revised abandonment plans
.
.A revised
abandonment plan
is
one constituting a substantial change from the permitted
one. Substantial will be defined on a case by case
basis. it will be a
violation if an operator implements a revised abandonment plan without having
applied for a revised permit ninety days,prior to implementation (R . 166, 168)
.
510 Cessation; Suspension or Abandonment (P-261) 0-501(a)]
Rule 510 covers cessation, suspension or abandonment . The original proposal
covered the abandonment plan, permitting requirements and substantive rules on
abandonment in one rule. These have been separated into two rules
.
Rule 610(a) provides that the operator notify the Agency within thirty days
of abandonment, cessation or suspension of mining . The original proposal
provided that notification was unnecessary if abandonment was caused by a labor
dispute . The language has been clarified and the labor dispute section applies
only to cessation or suspension . The Agency must be notified of abandonment
regardless of the cause .
Rule 510(b) makes it clear that the operator (*70] must provide interim
impoundment,
etc. to avoid violations of the Act during cessation or suspension
of active mining. The operator will also he required to avoid violations during
excution,of the abandonment plan
.
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Rule
510(c)
sets forth the rule that the abandonment plan must be executed
upon abandonment. The definition of abandonment includes transfer of ownership .'
This
represents a substantial change from the existing Chapter 4 . In the past
operators have avoided their responsibilities for properly abandoning a mine by
transfer of ownership to an insolvent corporation
.
Such
a transfer will be an
abandonment under the new Chapter 4 and the transfer will not allow the operator
to escape responsibility for adequately closing the site (R. 14, 20, 39, 54, 66,
78, 112)
.
Rule 510(c) provides a defense to the requirement to execute the abandonment
plan in the event the operator demonstrates that the transfer of ownership was
to a responsible party. A responsible party is someone who has already obtained
.
permits to operate the same mine . if the mine is transferred to a party who
does not have
a
permit at the time of transfer but subsequently obtains one, the
transferor will be [*71] relieved of the obligation
.of further executing the
abandonment plan. Eowever, if the transferor has tailed to perform part of the
plan during the interim, there will have been a breach of the permit condition
which
will
not be excused .
It is assumed that a transferree who will be financially
unable
to execute an
abandonment plan will be unable to obtain the necessary permits to operate the
mine. In particular he will be unable to meet the banding
requirements
of the
Mine Reclamation Act,
511
Emergency
Procedures to Control Pollution [P-265 ; 0-205(a), 205(b)]
Rule 511 sets forth emergency procedures . The original proposal required
that the operator notify the Agency "immediately" of an emergency situation
.
The requirement of immediate notification has been changed to notification
within ?no hour. It is feared that immediate notification may be impossible and
hence would not be
enforced.
it appears that notification within one hour would
be in all events possible and hence enforceable (R . 114)
.
The
Agency
proposal was also limited to "sudden discharges ." This has been
changed to include any discharges caused or threatened by an emergency. The
Agency should be notified of [*72] any emergency that could result even in a
slow leak .
512 Mine Entrances [0-301(a) and (c)]
more holes, openings, drill holes, entrances to underground mines and auger
or punch mine entries must be plugged and sealed to the extent necessary to
avoid the threat of water pollution . This is taken from the old version of
Chapter 4, Rule 301, It has been added to the Agency proposal on the assumption
that it was inadvertently omitted in the revisions .
513 Permit Area (P-263; 0-203(b)]
Rule 513 requires that a state or NPDES permit specify a permit area. During
permit term no portion of the affected land may be outside the permit area
.
This is a new provision which was not in the Agency proposal . The term "permit
area" is taken from the Reclamation Act .
Subsequent to the hearing, the Agency sought to amend its proposal to specify
that additional state permits were required whenever mine drainage, mining
or
mine refuse disposal
entered
an area not covered by a previous permit . The Coal
Association
objected
to this and apparently construed it to mean a new
application was required each time a shovel took a bite out of a coal seam.
Consideration of this dispute led to the recognition [*73] that there was no
I
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provision
in the
Agency
proposal requiring that the permit specify a
geographical area. Accordingly, Rule 513 has been added to clarify this
.
Under Rule 504(b)(1) the permit applicant must specify the location of the
affected land and the maximum extent of the affected land during the term of the
requested permit. If there is some area in the proximity of the facility into
which mining
cannot proceed without violation of the general standard for permit
issuance under Rule 502, the Agency should exclude that area from the permit
area. Otherwise the Agency should grant a permit area which will be consonant
with the permit term .
PART VT : EFFLUENT AND WATER QUALITY STANDARDS [P-301 ; 0-601(x)]
600 Preamble
Part
VI
applies to mine discharges as defined by Rule 201 . If a mining
activity has both a mine discharge and another discharge, it will be subject to
both Chapter 3 and Chapter 4 . Chapter 4 will govern the mining activities,
including mine discharges . Chapter 3 will govern the other discharges (R . 15)
.
Rule 600(b) provides that except to the extent provided in Part Vi, Parts
II,
III, and IV of Chapter 3 are inapplicable to mine discharges . In particular
(*74] the effluent standards of Part IV are inapplicable to mine discharges and
are supplanted by the discharge limitations specified in Rule 606 . The old
Chapter 4 did not make this altogether clear . The parameters of Chapter 3 which
are not mentioned in Rule 606 are unregulated for. mine discharges (E . 56). The
water quality standards of Parts II and
III
are incorporated by Rule 605 which
provides for water quality related effluent standards . This is substantially
"
unchanged from the present chapter
4
.
Part
VI
applies to mine discharges from facilities even if they may be exempt
from trio state permit requirements under Rule 403 . Likewise Part VI applies to
any incidental mine discharge from a facility which possesses a Chapter 3 NPDES
permit
.
601 Averaging [P-301; 0-601(d)]
Rule 601 sets forth the averaging procedure . Compliance with the numerical
standards is determined by averaging 24-hour composite samples over a calendar
month, No 24-hour composite sample may exceed two times the numerical standard
and no grab sample may exceed five times the standard.
On motion of the Agency the period was changed from thirty
consecutive
days
to a calendar month. This is in line with [*75] federal rules and R76-21
where objection was voiced to the thirty day period. Although the calendar
month is somewhat arbitrary, it
is in line with other reporting requirements and
eliminates one degree of freedom in determining compliance (R . 15, 51 ; First
Amended Proposal)
.
This averaging rule is a substantial change from the averaging rule set forth
in Rule 601(d)(l) and (2) of the old Chapter 4 . The old rule made a distinction
as to whether treatment other than impoundment is provided, Where no other
treatment was provided, the discharge limits had to be met at all times, but
where treatment other than impoundment was provided, the standards were
determined on the basis of 24-hour composite samples with no grab sample over
five times . This has been eliminated .
In the Agency proposal the averaging rule was contained within the rule on
reporting and monitoring. It has been placed in a separate rule to emphasize
importance of averaging and to more clearly distinguish the difference between
u
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•
.
7rr"
averaging and reporting. Averaging is a substantive rule of evidence whereas
.
reporting and monitoring are rules relating to permits and permit conditions
.
In addition, placement of the [*76] averaging rule within the provision for
reduced monitoring and reporting after demonstration of sample reliability
implied that the averaging rule itself could be altered by permit . This is not
the
case .
602 Sampling, Reporting and Monitoring (P-301, 302 ; 0-601(b) and (c), 603, 604]
Rule 602 provides for sampling, reporting and monitoring. A similar
provision is Rule 501 of Chapter 3 . Rules 602(a) and (c) provide for sampling
points . Where treatment is provided, sampling is to be between final treatment
and mixture with waters of the state. Where treatment is not provided, samples
are to be taken at the nearest point of access, but again before mixture with
the waters. Rule 602(b) provides that the operator shall design and modify
structures so as to permit the taking of effluent samples . The Agency proposal
only required design and modification of "structures for discharging treated
wastes ." This has been changed to "structures" in general . It may be necessary
to design or modify structures other than the discharge facility itself in order
to provide access
.
Rule 602(4) provides that an operator report the actual concentration or
level of any parameter identified in the [*77] permit at a reasonable frequency
to be determined by the Agency. The reporting requirement will be specified in
the permit (R. 16) . Recent cases have challenged the authority of the Agency to
require monitoring and reporting of parameters other than those for which
effluent limits are specified in the permit, The intent of this section is that
the Agency may specify not only those parameters for which effluent limits are
set, but also parameters for which water quality levels are set by regulation or
any other parameter it deems necessary to have monitored .
Rule 602(e) sets forth that reporting and monitoring are presumptively on the
basis o7: 24-hour composite samples averaged over a calendar month. However, the
Agency may permit lesser reporting. Rule 602(f) provides for monitoring after
abandonment . Rule 602(g) incorporates the USEPA's current manual of practice
.
This was a separate section under the Agency proposal, but it has been included
since it logically relates to reporting and monitoring.
603 Background Concentration (P-303) 0-601(e)]
Rule 603 provides that the background level of contaminants in intake water
are not to be deducted in order to determine compliance (*7$] with the effluent
standards. This is the same as Rule 601(e) of the old Chapter 4 and is largely
the same as Rule 401(b) of Chapter 3 (R . 16) .
Because mining activity necessarily disturbs the land and the flow of water
over and through the land it is the intent of this Chapter to regulate certain
discharges which in other contexts might be deemed background concentrations .
As used in this Chapter, background concentration does not include contaminants
naturally occurring in underground waters which are brought to the surface as a
result of mining activity or which are pumped from one underground formation to
another, Also it does not include contaminants picked up by surface water as it
flows through
the
affected area .
604 Dilution (P-304; 0-602)
Rule 604 provides that dilution
of
effluents is not an acceptable
treatment
method. This is similar to Rule 602 of the present Chapter 4 and virtually
identical with Rule 401(a) of Chapter 3 (R. 17, 116) . Language relating to
place of sampling has been deleted from the Agency proposal, This language is
also contained in Rule 401(a) in Chapter 3 . It has been eliminated because it
is provided
in
and may conflict with the sampling [*79] point rules provided by
Rule 602
.
The dilution rule interacts with Rule 605 which provides that effluents may
not caqse a violation of water quality standards . In the hearings on this
proposal and in R76-7, concern was expressed that the dilution rule prevents
certain treatment methods for chlorides, sulfates and TDS. in particular it was
feared that controlled release of impounded water was proscribed by this rule
.
~ Controlled release of high TDS water during periods of naturally occurring high
~I
flow in streams is not dilution . In this case the mixing occurs at a point
after the discharge .
Another possible technique
of
avoiding a TDS water quality violation would be
impounding surface water during wet periods and augmenting the flow of the
receiving stream during dry periods to dilute effluents . This would-not
constitute a violation of the rule against dilution . However, it could
Constitute surface drainage diversion. A permit would be required under Rule
401,
I
605 Violation of Water Quality standards [P-305 ; 0-605(a))
Rule 605 incorporates the water quality standards contained in Parts II and
III of Chapter 3 into Chapter 4 . This is the same as Rule 605(a) of the present
[*80] Chapter 4 and is similar to Rule 402 of Chapter 3
.
The second sentence of Rule 605 provides that the Agency shall take
appropriate action under Section 31 or 39 of the Act . This is redundant because
under the remainder of Chapter 4 the Agency must take such action . However,
F`
certain operators have recently contended before the Board that incorporation of
water quality related effluent standards is not authorized by Hoard regulations
.
The second sentence is to make it clear that water quality related effluent
standards can be incorporated into permit conditions (R . 17),
605 .1 Temporary Exemption from Rule 605
This rule will allow the Agency to issue permits through July 1,,1981 to
authorize discharges which violate Rule 605 by causing water quality violations
of TDS, chloride, sulfate, iron and manganese . For the remainder of the
discussion of this rule only, these will sometimes be referred to collectively
as TDS. An operator desiring such exemption may
apply
for a new state or NPDF,S
permit containing the exemption. Rule 605 .1(c) sets a special standard for
permit issuance different from that contained in Rule 502 . The burden will be
on the Agency to demonstrate significant [*81] adverse effect on the
environment in and around the receiving water
in order to deny the permit . The
operator, however, will have to submit adequate proof that the discharge
will
not adversely affect any public water supply . In order to qualify for the
exemption the operator will have to adopt "good mining practices," housekeeping
measures designed to minimize TDS discharges .
Rule 605.1 was first proposed on November 21, 1978 by the Institute. This
was after merit hearings on the proposal were concluded. On December 14, 1978
the Board ordered the record in this case held open to take evidence on Rule
605 .1 . Merit hearings an the proposal were held at the same time as the
economic impact hearings . This proposal has generated the bulk of the
controversy in this proceeding
.
Mine discharges are often high in TDS . Much of this comes from water pumped
from mine areas or runoff from spoil banks . A substantial number of mines in
I
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r .- 11 _
the state produce mine discharges which cause water quality violations in the
receiving streams . Coal mines can seldom be located adjacent to large rivers,
but rather must be located where coal deposits are located . Their discharges
are frequently into [*82] intermittent streams so that the discharge comprises
the bulk of the flow of the stream. Therefore the discharge is limited, not by
the effluent standards of Rule 606, but by the more stringent water quality
standards referenced in from Chapter 3 (R . 129, 142, 151 ;
E .
6, 11)
.
In a related proceeding, R76-7 the Coal Association sought to exempt coal
mines from application of Rule 605 with respect-to TDS. Entry of a Final Order
in that proceeding has been stayed pending final resolution of this proceeding,
Presently relief from Rule 605 is available only through the variance
procedure. At the hearings, the Coal Association stated that a variance
application can cost as much as'$ 10,000 (E . 126) . There was discussion at the
hearings of a class action variance. However, this was rejected (E. 19, 80),
Under the auspices of the Institute a joint agency/industry group called the
Mine Related Pollution Task Force has been formed . The Task Force is conducting
a study
to
propose an eventual permanent replacement for Rule 605
.
It
expects
to present this proposal before July 1, 1981 (E. 106)
.
A large amount of earth must be disturbed during the process of coal mining .
Some of the [*83] TDS in the discharge results from direct leaching of soluble
minerals from the rock by groundwater or rainwater falling on spoil banks. This
is the source of chlorides, which is not generally the main problem in Illinois
.
Much of the Problem in Illinois is
sulfates. These are formed when air or
dissolved oxygen comes into contact with sulfur-containing minerals which have
been disturbed. Sulfuric acid is formed, producing acid mine drainage
.
Neutralization of that discharge
to
moat the pH requirements of Rule 606 may
further increase the TDS concentration of the discharge
.
The Economic Impact Study in R76-7 has been incorporated into this proceeding
by reference (E . 103 ; Economic Impact of Dissolved Solids Regulation upon the
Coal Mining Industry, Institute Document No, 77/28) . Although there is
treatment available to reduce the iron and manganese levels, treatment to reduce
the soluble components of TD,S is not economically available . Available
technology includes reverse osmosis and distillation . These are energy
intensive and very expensive on a scale that would be required to meet most mine
discharges . The Economic Impact Study in R76-7 concluded that for the mines in
[*84] the state
to
meet the present TDS water quality standard would involve a
capital investment of $ 138 .4 million and annual operating costs of $ 37 .4
million (E. 69)
.
The Task Force has promulgated, as an interim measure, a code of good mining
practices . The approach taken is not end-of-the-pipe treatment of the
discharge, but rather a series of housekeeping measures which are likely to
reduce the TDS concentration resulting from mining activities . These are
summarized on page 4 of Exhibit 4 . These involve practices which may minimize
water from coming in contact with disturbed areas, including bypass diversions,
slope and gradient reduction, stabilization, sealing of bore holes, introduction
of mine barriers, special steps for disposal of potential contaminant producing
materials and fracture zone sealing, There are also measures involving
retention and control of waters exposed to disturbed materials, including
erosion and sedimentation controls, reuse of discharges and minimization
of
exposure of water to disturbed materials. Other methods include a rerouting of
discharges to larger streams where the dilution would be provided, augmentation
of flow of receiving streams to provide [*85] dilution and controlled release
of effluents during times of high flow when there is ample dilution .
APR.19.z001
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r.alidq
Many of these practices are novel and reliable cost estimates are not
available, Therefore it
is
not possible at this time to do an actual economic
impact study evaluating the cost of requiring the code of good operating
practices. However, the Board incorporates the Boonomie impact Study in R76-7
as an economic impact study on Rule 605 .1. Although that study does not address
the code of good operating practices, it does conclude that enforcement of the
present standard by requiring end-of-the-pipe treatment would be very expensive
.
There is expert testimony in the record to substantiate that, although the costs
of good operating practices are unknown, they will be substantially less than
the cost of end-of-the pipe treatment (E . 146)
.
The eventual rule may include some combination of these good housekeeping
procedures together with the proposal to increase the water quality standard for
TDS in intermittent streams receiving coal drainage (E . 73, 110, 128)
.
The Board notes that none of the parties in these proceedings has addressed
the dilution rule (Rule 604) . Part of the [*86] rationale of the rule against
dilution of effluents goes to accumulation of toxic pollutants . Chlorides and
sulfates are generally soluble and should not accumulate under ordinary
circumstances
.
Furthermore,
they are not at all toxic below a certain
concentration. Therefore, the Board suggests the Task Force consider amending
Rule 604 to allow dilution of effluents by permit
where
good housekeeping
practices cannot
reduce
the TDS levels to an acceptable level. However,
dilution of effluents should not be permitted
where
groundwater must be used for
the dilution or where there
is
available only surface water which has more
valuable uses
.
.
Concern was expressed at the hearing that the Board was being asked to adopt
a rule requiring compliance with a code of good operating practices which had
.
not yet been promulgated (B . 111, 134) . Subsequent to the economic impact
hearings, the code was completed and submitted to the Board . Further concern
was expressed that the record was deficient
in that
there
was no technical
testimony to the effect that compliance with the code of good
operating
-
practices
would
in fact reduce water pollution (E . 17, 80, 144) . Control of
mining practices which [*87] are not
related
to the Board's statutory
jurisdiction would, of course, be beyond the Board's authority . Further
consideration of this problem led to the recognition that the proposed version
of Rule 605 .1 required compliance with the code and that this was an
unauthorized delegation of rulemaking authority to the Agency . The proposal has
therefore been rewritten to provide that the Agency issue the exemption if the
operator submits proof that he is utilizing good mining practices designed to
minimize, discharge of TDS. The Agency is authorized to promulgate the code of
good
mining practices . Compliance with the code will be deemed evidence that
the operator
is
utilizing good mining practices . However, should the Agency
deny the exemption due to non-compliance with the code, the operator will be
free on permit appeal to argue that his practices, though not conforming to the
code, are designed to minimize the discharge of TDS . With this construction,
the Board
is
not requiring compliance with the code and therefore technical
evidence to substantiate the code is not required . If provisions of the code
are not reasonably related to
prevention
of water pollution, this will be an
(*86] issue before the Board upon permit appeal
.
Rule 605 .1(b) has been added to the Agency proposal. This provides
specifically that the permittee requesting exemption must file a permit
application. The Agency indicated at the hearing that this was the case and it
has been added to the proposal for clarity (E . 26, 121)
.
The Agency proposal was vague
on
the question of the burden of proving
adverse effect on the environment. At the hearing the parties agreed that the
Agency should have the burden of demonstrating adverse effects . This is at
I
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1G:Syvm
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variance with the usual burden of proof in permit issuance. Section 39 of the
Act provides that it shall be the duty of the Agency to issue such a permit
"upon proof
. that the facility
. will not cause a violation of this Act
or regtlations hereunder ." The Board in this situation is by regulation
revers.,ng the burden of proof (E. 16, 30, 34, 37, 79, 81, 112, 118)
.
.
At the hearings there was a discussion of whether the intent of the proposal
was that the Agency fix an interim limitation on the TDB. The conclusion was
that under the proposal the Agency could not set such an interim limit . If the
Agency can demonstrate significant adverse [*89] effect on the environment,
then it must deny the exemption . In this case the applicant will have to
proceed by way of the variance route
(E .
74
1
78)
.
The original proposal specified "significant adverse effects on aquatic life
or existing recreational areas bf the receiving streams," This has been changed
to "effect on environment in and around the receiving water." The exemption
should be denied if there is significant adverse effect to riparian areas and in
general to the environment in and around the receiving water (E . 115)
.
606 Effluent Standards (P-306 ; 0-606)
Rule 606 sets effluent standards for mine discharges. Rule 606(a) has been
added to the Agency proposal . This makes it clear that the effluent limitations
contained in Part IV of Chapter 3 do not apply to mine discharges . This has
always been the law. However, it is not clearly set forth
in
the proposal or
the old Chapter 4 (E. 56) .
Compliance with the effluent standards other than acidity and pH is
determined by the averaging rule contained in Rule 601 . Compliance is based on
a thirty day average with no 24-hour composite exceeding two times the standard
and no grab sample exceeding five times the standard. [*90]
New Storet numbers have been specified for acidity, ammonia nitrogen, zinc
and fluoride. The old Pule 606 regulated nitrogen at 5 mg/l whereas the new
rule specifies ammonia nitrogen, measured as N
.
The standards for zinc, lead and acidity are unchanged except for the Storet
number. The pH range has been tightened from five to ten to six to nine (E. 45,
51) . The EcIS concluded that this would benefit the environment (EctS 277 B
.
52) . The cost will be minimal since only one additional mine will be out of
compliance with the new standard (Eels 6, 39)
.
The standard for iron has been decreased from 7 to 3 .5 mg/l and the standard
for total
suspended
solids (TSB) has been tightened from 50 to 35 mg/l (R . 46,
51, 53) . These changes are environmentally beneficial (EcIS 25, 31 ; E. 51, 53)
.
Under the averaging rule, these standards must be met on a thirty day average
.
They are doubled when measured on a daily composite. The new numbers are the
same as, federal guidelines
applicable
to coal mines under 40 CFR 434 . A recent
permit appeal to the Board revealed that there is some dispute as to whether the
federal or the existing Chapter 4 standards are more stringent (Peabody Coal
[*91)
Co .
v. EPA; PCB 78-296, September 20, 1979) . This is because the federal
standard, when coupled with the averaging rule and precipitation exception,
sometimes yields a higher number on. a 24-hour composite. However, the Board
concludes that it is more difficult to meet the lower thirty day average than
what the discharger must now meet and that this is a more stringent standard
(EatS 25) . The economic impact will be minimal since most mines subject to the
rule must meet the federal guidelines anyway (EelS 42)
.
Footnote 3 provides an exception for flows resulting from a 10-year, 24-hour
precipitation event. This exception applies only to a facility designed,
constructed and maintained to contain or treat discharge from less than a 10-
I
APR.19.ZFJJ 1
12 59PN
year, 24-hour precipitation event, but designed to bypass a larger precipitation
event., This exception is taken from the federal standards of 40 CPR 434
.
Federal mine safety regulations
mandate
that holding
ponds
be designed to bypass
such rainfall for safety reasons. This exception has been added in order to
bring
the
effluent standards into line with these other regulations (E . 47, 56,
124)
The original Agency proposal was unclear as to which (*92] parameters were
subject, to the exception in footnote 3 . During discussion of the EcIS it became
clear that the Agency's intent was that the 10-year, 24-hour footnote apply to
all parameters except pH and acidity (E . 124) . The federal guidelines
appare4tly except pH and acidity also . pH and acidity are not exempt under this
version of Rule 606 . However, one would not expect to see excursions with
respect to these parameters during overflows caused by a large rainfall . The
large rainfall should not result in increased production of acid in disturbed
materials. A large flux of water has some buffer capacity and should dilute the
acidity so as to moderate pH .
The Economic Impact Study found that it would cost $ 40,000 to $ 90,000 per
mine to construct holding basins to contain a 10-year, 24-hour storm (EelS 42=
E. 56, 124) . However, this conclusion may be affected by confusion in the
proposal concerning the extent of footnote 3 to Rule 606 . It has been argued by
the industry that the old Chapter 4 required construction
of
indefinitely large
holding basins and that 10-year/24-hour basins therefore represent a cost
savings over the present requirements of Chapter 4 (Peabody Coal (*93] Co
.
V .
EPA, op. cit .)
The fluoride standard has been increased from B mg/l to 15
mg/l .
In the
hearings evidence was presented to substantiate this relaxation of the standard
.
The old standard was based on experiments which were done in deionized water
containing fluoride . In water containing other ions of hardness equivalent to
typical Illinois mine drainage water, the fluoride is not nearly so toxic to
aquatic life as had
been
previously believed (R. 117 ; )4. 52) .
607 Offensive Discharges (P-307; 0-605(b)]
Rule'607 proscribes drainage containing settleable solids, floating debris,
visible oil, grease, scum or sludge solids . Color, odor and turbidity should be
reduced below obvious levels . This is Rule 605(b) of the present Chapter 4 and
Rule 40$ of Chapter 3 (R. 47, 51)
.
608 Delet
•
ed (P-308)
The Ag
•
ency proposal contained a rule to the effect that an operator shall
conduct mining activities so as not to violate the Act and chapter 4 . This has
been deleted. A number of substantive rules are Set forth
in
Chapter 4 and the
Act. It
is
unnecessary to make a rule against violating the other rules
.
Furthermore, a charge in a complaint that an operator had violated this [*94]
rule could be a violation of due process in that it would not adequately inform
him of what he had
done,
PART VII: COMPLIANCE AND EFPECTIVE DATES
Part VII contains transitional rules covering Situations which will arise
after the effective date of Chapter 4 . Rule 701 provides that the chapter will
become effective ten days after filing with the secretary of state . Rule 703
provides that the state permit requirement of Rule 401 becomes effective only on
expiration of outstanding permits . Outstanding permits will expire no later
NO.bBa
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F.-4/d4
than three years after the effective date or upon the first' expiration of an
NPDES permit held for the facility
.
Rule 702 provides that a person holding an outstanding permit may make
application
for
a new permit either before or after the effective date of this
Chapter . it is anticipated that operators of coal transfer and storage
facilities will want new permits . After the effective date the Agency may
require a new permit application on 180 days notice, Rule 703(d) provides for
expiration of the outstanding permit if the application
is
not made by this
date . Rule 703(c) provides for expiration upon issuance of a new state or NPDES
permit for the [*95] facility . If the Agency denies the new permit or takes no
action, the outstanding permit will remain effective for up to three years as
provided by Rule 703(x)
.
The NPDES permit requirement' of Rule 302 is the same as that found in Rule
901 of Chapter 3 . There is no need to stay enforcement of that rule since this
revision does not impose an NPDES permit requirement on any additional
facilities .
The provisions of Chapter 4, other than Rule 401 : State Permits, are
effective ten days after filing, At this time the other rules of Chapter 4
become immediately effective . This includes
all of Part VI, including the new
effluent standards of Rule 606. Holders of
outstanding
operating permits may be
subject to enforcement actions based
on
Rule 606 as provided by Rule 410 even if
their discharges conform with their old permit
conditions
.
Rule 704 provides the requirement of old Rule 502 of an abandonment permit
continues to apply to operators who have opened mines prior to the effective
date. This will continue
indefinitely
until the operator is issued for the
facility a state of NPDES permit
which
contains an abandonment plan. Such a
permit may be issued under the procedures of Rule [*96] 702 and 703
.
This Opinion, together with the Board Order of December 13, 1979, constitute
the Proposed Opinion and Order of the Board in this proceeding
.
Exhibit
R
:.id.CJ 1
lc~
iii f',
OPINIONBY :
[*1]
ANDERSON
OPINION ; PROPOSED RULE. FIRST NOTICE
PROPOSED OPINION OF TEE BOARD (by D . Anderson) :
On robruary 7, 1983 the Illinois Environmental Protection Agency (Agency) and
the Illinois Coal Association (ICA) proposed that the Board amend 35 111 . Adm .
Code 405 and 406 to add an effluent standard for manganese and to set a
permanent rule specifying the application of water quality standards to coal
mine discharges, Amended proposals were filed on May 27 and August 26, 1983
.
The proposal was the result of a joint industry/government group called the
Mine-Related Pollution Task Force (MRP)
.
On May 5, 1983 the Board designated this proposal as Docket A of 983-6
.
Docket B was utilized to extend the expiration date of Section 406 .201 beyond
July 1, 1983 (Final Order, Adopted Rule, October 6, 1983 ; 7 Ill .
Reg, 14515,
October 28, 1983)
.
Public hearings were held on May 12, 1903 at Springfield, and on May 27, 1983
at Ina. Since the pages are not numbered sequentially, Roman numerals will be
used to indicate the volume, Thus, (11-17) will refer to page 17 of the second
day of hearings .
On
July
5, 1983 the Department of Energy and Natural Resources notified the
Board that a negative declaration [*2] had been made. On August 26, 1983 the
Hearing Officer closed the record except for final comments (section 102 .163)
.
No comments were received during this period
.
Summary of the Proposal
The proposal will be discussed in detail in the order of sections affected
.
The following is a summary in a more informative order
.
The proposal adds an effluent standard of 2 .0 mg/i manganese, with a modified
pH standard where necessary for manganese treatment (Section 406 .106)
.
The proposal repeals the temporary exemption from the water quality standards
contained in section 406 .201. This is replaced with a permanent procedure
.
Mine discharges will have permit conditions based on the permanent procedure for
total dissolved solids (TDS), chloride and sulfate if :
1 . There is no impact on public water supplies
;
LEXSEE 1983 111. ENV LEXIS 72
114 THE MATTER Or
. PROPOSED AMENDMENTS TO TITLE 35, SUBTITLE
D: MINE RELATED WATER POLLUTION, CHAPTER I, PARTS 405 and
406
No. R83-6 (Docket A)
Illinois Pollution Control Board
1983 711
. ENV LRXZS 72
December 15, 1983
1`Iu,b'ic
r.c.o
2
.
The applicant utilizes "good mining practices" to reduce TDS production
;
and,
3, The discharge is less than 1,000 mg/l ghloride and 3,500 mg/l sulfate
.
if the discharge exceeds the numerical levels, the permittee will need to prove
no adverse effect to the receiving stream (Section 406 .203) .
Finally, the proposal extends the TDS water quality provisions to abandoned
mine [*3] impoundments and discharges (Sections 409 .109 and 409 .110)
.
Discussion of Proposed Amendments
Section 405.109 Abandonment Plan ,
Paragraphs (b)(3)
and (b)(4) have been added, and the old paragraphs with
these numbers moved down. These paragraphs specifically address the impact of
the special TDS provision of Section 406.203 on discharges from abandoned mines
and on waters remaining in impoundments at such mines . This point first arose
in a case decided during the process of adoption of new Chapter 4 (TEPA
V.
Material Service Corp . and Freeman United coal Mining Co., PCB 75-48B, 37 PCB
275, February 7, 1980)
(I-42) .
Strip mines frequently leave a final cut which fills with water after
abandonment; slurry ponds and other impoundments may also be left
(I-40)
.
Some
of these may have a surface water discharge . Paragraph
(b)(3)
addresses the
discharge, while paragraph (b)(4) addresses the waters in the lake or
impoundment
.
Discharges from abandoned impoundments will have to meet the effluent
standards of Section 406 .106 . If there was no TDS water quality condition
imposed under special procedures during active mining, the discharge will have
to avoid water quality violations. [*4] If there was such a TDS water quality
condition, the waters of the impoundment will have to meet the effluent
standards and make a part `of the showing required under the TDS water quality
Section 406.203(c)(1) and (c)(2)
(I-38i II-10, 14, 16)
.
Paragraph (b)(4) applies to the waters in the impoundments, which may not be
required to meet water quality standards during active mining, as for example,
treatment lagoons and settling basins . Impoundments which will not meet such
standards on abandonment will be required to meet the effluent standards after
abandonment, and to- make part of the showing under the TDS water quality Section
406 .203
(o)(1) and
(c)(2)
(11-21)
.
Section 406 .109(b)(4) applies the effluent standards as though they were
water quality standards (I-3B, aI-11, 14, 16) . This will be sufficient to
ensure that any discharge will at least meet the effluent standards
.
The second and third proposals limited the TDS procedure to impoundments
-
which did not meet the water quality standards during active mining . The Board
has deleted this requirement, since the water quality problems in a final cut
lake may not appear until after abandonment (I-40),
The Board has added paragraph [*5] (e) to the proposals this requires
conditions in ab'andonment,plans to assure continued application of the TDS water
quality procedure
(1-37)
.
Section 405.110 Cessation, Suspension or Abandonment
Paragraph (e)(2) has been added to specifically require a showing that
Sections 405.109(b)(3) and
(b)(4) have been met before a certificate of
"~'
3 .-c
r.azc
abandonment
is issued .
The permittee
Will
have to show that those sections will
be met to get approval of the abandonment plan, and also show that they were in
fact met before the certificate of abandonment is issued (5-37, 11-10, 15)
.
Section 406.104 Dilution
This section was taken from section 304 .102, which it tracks almost verbatim .
Paragraph (a) has been amended to make it clearer that the dilution rule refers
only to the effluent standards. This may have been lost when the language was
moved from, Part 304 to Part 406, Which deals with both effluent and water
quality standards . Section 302,102 allows dilution in a mixing zone before
application of the water quality standards
.
The Board does not construe Section 406 .104 as in any way limiting dilution
after tre~'tment in order to avoid, violation of water quality standards. This
dilution
Q'*6]
may take place prior to discharge to waters of the State, so long
as it dose not interfere with contaminant removal efficiency (1-62
(
61) . If
effluent doncentrations are measured beyond the dilution point, concentrations
would have to be corrected .
Section 406 .105 has been renumbered to 406 .202: the water quality rule and
special TDS procedure
Will
be placed together in a separate Subpart
.
Section 4Q6.106 Effluent Standards
An effluent standard of 2 .0 mg/1 manganese has been added to the table
.
Manganese is frequently regulated as an effluent parameter, and its omission
from the evised mine waste rules may have been an oversight caused by
the
ambiguity~as to whether the effluent standards table of old Chapter 4
supplemented or superseded the effluent standards of old Chapter 3
(1-55),
The
Board regulates manganese in effluents other than mine waste at 1 .0 mg/1
(section '304.124) . Federal regulations impose a limitation of 2 .0 mg/1 on
mining activities, including, for example,, the acid mine drainage category (40
CFR 434 .3]
(a)),
Treatment for manganese is similar to iron, involving addition of alkali to
cause pr pipitation, followed by sufficient detention to allow settling
. . (*7]
Unlike icon, manganese may be too soluble at pH 9 to precipitate sufficiently to
,,,pap1!'ttl 2,0 mg/1 standard. Effluents will be allowed to. go to pH 10 it
necessary to meet the manganese standard (1-36)
.
(For related discussion, see
Section 304 .125; R76-21, Opinion of September 24, 1981, 43 PCB 367, 6 111 . Reg
.
563)
.
The Board regulates manganese as a water quality standard at 1 .0 mg/l
(Section 302 .20E) . The standard was based on fish toxicity (R71-14, 3 PCB 755,
4 PCB 3, Mazch 7, 1972) . In hex study of several streams impacted by mine
discharges, which is discussed below, Dr . Allison Brigham found that manganese
was found to account for the greatest amount of variance of species diversity
and richness of several variables studied (11-31) .
The manganese effluent standard will not apply to mine discharges which are
associated with areas where no mining activities have taken place since May 13,
1976. This date is taken from Federal regulations regulating manganese
discharges from coal mining (1-36, 54; II-10, 12) .
Section 406.202 Violation of Water Quality Standards
This Section has been moved from Section 406 .105 . Subpart A of Part 406 will
deal only with effluent rules, (*8] while Subpart B will deal with water
quality rules .
The TbS procedure of the next Section will thus appear next to
the Section which it modifies .
Section 406 .203 Water Quality-based TDS Permit Conditions
TDS includes all material dissolved in water, as opposed to total suspended
solids. In Illinois coal mine discharges TDS consists mostly of chloride and
sulfate
(I-49)
.
Underground mines often have high chloride levels from saline
water encountered in mining. Surface mines often produce sulfuric acid from the
action of air and water on sulfur minerals exposed in mining . Neutralization of
the acid produces sulfate salts, and further increases the
TDS because of the
dissolved solids in the alkali which must be added
.
The problems with treating for TDS have been adequately addressed in prior
Board Opinions . The Board repealed the TDS effluent standard in R76-21, supra,
finding that the only treatment technologies involved large amounts of energy
consumption, and produced concentrated brines which still required ultimate
disposal. Regulation of TDS discharges was left to enforcement of water quality
standards of Section 302 .208
:
Chloride
500 mg/l
sulfate
500 mg/l
TDS
1000 mg/i
[*91
In R76-20, 77-10, the Board recognized that coal mines faced a special
problem With TDS in that they produced high TDS discharges, but were often
forced to locate upland, away from major rivers with dilution adequate to avoid
violation of water quality standards . In response, the Board adopted the
temporary exception procedure now found at Section 406 .201 (Opinion and Order of
July 24, 1980, 39 PCB 196, 260) .
The permanent TDS rule follows the temporary exemption in some respects ; the
applicant is required to demonstrate that he is utilizing "good mining
practices", and that there will be „ggJmpact,an public water supplies
(1-30)
.
However, un er the permanent'rure, the permittee, ratteFthah the 1~qe y, will
be required to demonstrate no impact on the receiving stream
.
The TDS procedure creates a presumption of no adverse impact on the stream if
discharge levels are less than 3500 mg/l sulfate and 1000 mg/l chloride
(I-3D) .
I£ levels are higher, the permittee will have to prove,
•,
nQ,edverse .im act. This
will involve actual stream studies
to
be"done by'the permittee, involving a
demonstration of the effect of the existing or proposed discharge levels on the
stream, not a showing [*10] of compliance with water quality standards (1-31,
46,61)
.
t ,1 1000, and 3,500 mg/l numbers are met, it is assumed that there is
qo
adverse impact on the recdiving"stream. This
is'
a'presumption which could be
rebutted by othi r"widenbe £ntraduced into the record in the permit proceeding
before the Agency .
If the water quality-based TDS condition is granted, the discharge will not
be subject to the water quality standards for sulfate, chloride and total
dissolved solids. The permit will contain conditions requiring monitoring for'
these parameters and limiting discharge concentrations (I-47, 11-17)
.
The proposal would have allowed exemption from the water quality standards
for iron and manganese, as well as the TDS related contaminants, The Board has
dropped this from the proposal . The logical relationship between the
presumptive sulfate and chloride levels and the iron and manganese levels is
tenuous at best. Furthermore, there exists a simple, relatively inexpensive way
to treat for iron and manganese . As noted above, manganese concentration was
The presumptive levels refer to concentration of sulfate and chloride, with
no TDS level specified, As a matter of experience, . TDS is mostly these two ions
(1-49)
.
Sulfate and chloride concentrations generally correlate better with
environmeAtal impacts than TDS (1-33 ; Ex. E, p . 29, 11-32) . Monitoring of TDS
will continue to provide a check for the possible presence of large
concentrations of some other material (1-47, 11-17)
.
Exhibit E is a study entitled "Acute Toxicity of Chlorides, Sulfates, and
Total Dissolved Solids to Some Fishes in Illinois" by Paula Reed and Ralph Evans
of the State Water Survey . They studied effects of TDS and constituents on
channel catfish fingerlings, large mouth bass fingerlings and blue gill
fingerlings . They found the following 96-hour median tolerance limits (1-33,
Ex . E, p . 29)
:
Sulfate
11,000 to 13,000 mg/i
Chloride 8,000 to 8,500 mg/l
TDS (sulfate)
14,000 to 17,500 mg/1
TDS (chloride)
13,000 to 15,000 mg/l
The presumptive values for sulfate are set at about one-third of the 96-hour
(*12] median tolerance limit; those for chloride at about one-eighth
(1-33) .
This is less stringent than the general practice of setting water quality
standards at one-tenth the median tolerance limit (Section 302 .210) ; however,
this departure is justified for these contaminants, which are highly soluble,
not toxic in the usual sense and not expected to accumulate or have any chronic
effect .
The presumptive levels are also well below the levels considered safe for
livestock watering (1-34)
.
If the discharge is above the presumptive levels, the operator could elect to
treat the 0ffluent, or to obtain a source of fresh water to dilute it to below
the presumptive levels (1-61, 67) . However, the thrust of the proposal is to
allow permittees to adopt operating practices designed to reduce TDS production,
rather than to require end-of-pipe treatment .
The Agency is to approve the water quality-based TDS condition only if the
permittee proves that it
is
utilizing "good mining practices" designed to
minimize TDS production . The Agency may promulgate a code of good operating
practices, in which case compliance with the code would be prima facie proof of
use of good mining practices . A "final" (*13] draft of the code has been
filed as Exhibit E. The Board has proposed Sections 406 .204 through 406 .208 as
a definition of "good mining practices" . These are taken from Exhibit H .
Section 406.204 defines "good mining practices." The Agency is to consider
whether the operator is utilizing the following practices
;
found to be adversely affecting stream conditions in sites affected by mine
discharges
.
These discharges will have to avoid causing (*11] water quality
violations
:
General Use
Effluent Std,
Water Quality Stds .
Iron
3.5 mg/1
1,0 mg/l
Manganese
2.0 mg/1
1,0 mg/l
1
.
Practices
which
may stop or minimize water from coming into contact with
disturbed areas,
2 . Retention and control within the site of waters exposed to disturbed
materials
.
3 . Control and treatment of waters discharged from the site
.
4. unconventional practices
.
These practices are each further defined in sections 406 .205 through 406 .208
.
These Sections are not intended to require that each of
these
practices be
carried out at each site; indeed, some of the practices would exclude the use of
others .
What the Board intends is that the Agency review each of these
practices to determine if the operator is doing all that is economically
reasonable at the site to prevent the production of TDS discharges or to
minimize their impact
.
The proposal is
in practice a modification to the Illinois NPDES program,
since all mines with point source surface discharges [*14] are presently
required to have NPDES permits . Section 302(b) of the Clean Water Act allows
the
State to establish procedures whereby dischargers can avoid application of
water quality standards where the discharger demonstrates at a public hearing
that "there is no reasonable relationship between the economic and social costs
and benefits to be obtained ." The procedures of Section 406 .203 will arise in
the context of
NPDES
permit modification. Hearings required by the Clean Watgr
Act will be provided pursuant to section 406 .203(a) .
Based on the record before it, the Board has determined that, for coal mine
discharges taken as a class, which have levels of chloride and sulfate less than
the presumptive levels, which are not upstream of public water supplies and
which are engaged in good mining practices, the cost of treatment outweighs the
value of any. improvement in stream quality by many orders of magnitude
.
Furthermore, the societal costs associated with the effective prohibition of
mining in much of Illinois would be enormous (R 50, 64) . The proposed
procedures allow the Agency to confirm this conclusion in particular cases, with
an opportunity for a public hearing. in the [*15] case of discharges which
exceed the presumptive level, the Agency will make a case-by-case determination
pursuant to permit application including actual stream studies conducted by the
applicant (Proposed Section 406 .203(c)(4)
.
in L7une, 1983 there were 45 active coal mines in Illinois, 19 surface and 26
underground. Of
these,
31 are operating under the current exemption
of
Section
406 .201, 14 surface and 17 underground (Agency comment of August 3, 1983 in R83--
6B)
.
The
remaining 14 are assumed to be able to meet the current water quality
standards and are not impacted at all by the permanent TDS procedure
.
The 31 mines operating under the temporary exemption should be able to easily
demonstrate that they are using good mining practices and that they are not
adversely impacting public water supplies, since these requirements are not
altered. The mines with less than 1000 mg/1 chloride and 3500 mg/1 sulfate will
qualify under the permanent procedure automatically . The main difference will
be the mines which are above the presumptive levels . They will be required to
demonstrate no adverse impact on the receiving stream . This could cost quite a
lot of money. If they are unable [*16] to make the showing, expensive
treatment may be required for continued operation
.
As noted, the 31 potentially affected mines include 14 surface and 17
underground mines. Sulfate should be the limiting factor for surface, chloride
i
I
I
for underground mines. It appears that at the time Exhibit C was prepared, no
surface mines exceeded the 3500 mg/l sulfate level, but that four underground
mines' exceeded the 1000 mg/l chloride level (11-52) . Thus
a
maximum of four
underground mines are expected to have to make stream studies. These are likely
to cost in excess of $ 10,000 each .
The cost of complying with the Part 302 water quality standards through
application of end-of-pipe treatment technology was discussed at 39 PCB 251 .
Updating these costs to the fourth quarter of 1982 infers construction costs of
$ 195 million and annual operating costs of $ 52 .8 million (11-56) . However,
the number of mines in the State has decreased, possibly reducing the aggregate
estimates . Any costs associated with compliance with the exemption procedure
must be judged as savings with respect to the cost of current regulations
.
Costs of various good mining practices are estimated in Exhibit C, although
[*17) it is diffioult to summa=ize these concisely. These costs are less than
the cost of treatment i5y orders of magnitude. The initial costs have already
been met under the temporary rule, although there may be continuing costs
associated with some practices .
The proposal creates a special TDS water quality rule for
a
category of
dischargers . The Board has proposed to treat these dischargers differently for
several reasons unique to this industry group . Section 2B of the Act allows the
soard'to make "different provisions as required by circumstances for different
contaminant sources and for different geographical areas"
.
At the outset, the Board notes that coal mines represent an easily defined
category of dischargers . It is the only industry group with high TOS discharges
which
has
made itself known to the Board by filing a general proposal . The
Board would consider granting special rules by industry category to any group
should that group propose rules to it (Section 28 of the Act and 35 111, Adm
.
Code 102.120)
.
Havipg defined a category of TDS dischargers, it is possible to be more
specific as to the identity of the TDS constituents : it is either primarily
chloride or sulfate, [*'18] and not often both . This allows the use of
chloride and sulfate toxicity data, which is better defined than
. for TDS in
general .
Since there is no economically reasonable treatment available for TDS
discharges, compliance with the water quality standards depends on process
changes and location close to large rivers with adequate dilution . Existing
facilities have the variance and site-specific rulemaking procedures to ease any
difficulties. $owever, it has proven possible to propose a general regulation
for
mines,
both new and existing .
The %ost unique feature of coal mines is their relative inability to locate
close to major rivers ; instead, they must locate where coal deposits are
located Thus choice of location is largely eliminated for this category of
dischargers .
Restricting consideration to a single industry group allows the Board to
adopt meaningful regulations taking account of the processes which produce the
TDS . It Would not be feasible to address such a problem for industry in
general
.
Conclusion
In a separate order the Board proposes to adopt the amendments to 35 211 .
Adm. Code 405 and 406 discussed above. The record will remain open
for
comment
for
a period (*19] of 45
days
after publication in the Illinois Register .
This Proposed Opinion supports the Board's Proposed order of this date .
I
PAGE
02
65124/2001
12:10
2174770573
,,,
iodaysstudents
•e
ven those
Ivfenuofferingsinanaverage
3
Matt Hubei/Ootnmarolal"News
FRED HUBBARD
in elementary sob
are
week could include submarine
n
Students from Northeast Elements
Magnet School eat demanding bett,ertas4 and
sandwiches izzasandchicken u
their lunch at the school, The .U.S . bdpartment'of Agricul- more nutkittous'schooilunches,
tenders -alllstudent favorite$
fr
Lure requires that school meals meet recommended dally' Brenda Demos, the Danville
and one "Sunday dinner-type
nutrition requirements
.
District 118 food service direr-
meal" on Wednesdays. Demos
. bi
A
Lf
+
I
.
*
4
Vi
P
reparing for
G
as and
S
team S
Zoning
opposed
inEXwOod
Township
By April Evans
Staff Writer
RIDGE FARM - Fiwood
Township voters made it clear
Wednesday night that they
don't want zoo
By a vote
of307-i1,
township
officials were told that the
Ridge Farm, Vermilion Grove
and Olivet areas do not want to
st be considered for zoning .
r , „R,
An effort to institute zoning
Gp
had
developed,
Township.
RusteeRogerKlinksat'c~ from
,
a group concerned about how a
roposed mine' near Vermilion
.
rove. would affect the Little
VermilionRiver.
But Rose
Elba';
representt
a group opposing the prop
mine, said her group
•o
pposea
zoning.
"
"No one haseversaidthatour
'up is kr zothng,° Ellis said, "I
. 11 vote by hand vote against
ajohing
.
I am not ashamed of
i$aatl believe."
Rick Knight a county board
.
Member from Indianola and
x
hang opponent said "zoning
causes landowners to lose con-
trpl of property, and that proper-
ty. can only be used for certain
purposes
•"
-
"How many people would
hand over their checkbook with
signed checks to someone you
didn't know?" Knight said
•"
Zon-
Ing does the same thing to your
property rights forever.,
He said he has spent the last
four years collecting data on
zoning.
lie said that if zoning is
enacted. Ridge Farm would be
under direct control of a zoning
board and taxes would increase,
H'eaisosaidthatzoningdoesnot
Please see
ZONING/Page
2,A
In the court
Areas In Vermilion
. ;,
County that. have
zqn*
ing. regulations
'
Laury
G
Norman Skinner works atop, a scaffold, setting new rafters on .a round barn at his farm near Perr
quilt in 11918, yeas moved to the farm from Alvin last year and is one of many historical farm iter
play during this weekend's Gas and Steam $how,,lobated three miles west of Perrysville on in
Is
-9
Gore to a ctaress nation to
The Associated Press
LOS ANGELES-Detnoo
ratic presidential nominee At
Gore, a political understudy no
more, is urging Americans to
reject Republicans who would
take them "back to the past,"
and promising to deliver pros-
perity, progress and positive
change if he wins the White
House
"Were the new guard," the
vice president said in a preview
of the nationally televised
address he delivers tonight at
vthe
enDemocratic Naccep Con-
Associated press
vention.
That
acceptance
Vice President Al Gore surprises his daughter, Karenna Gore
speehh savitalstepinhisau
t
Schllf. after
she
=nn4o
lore
"tha
yon
guy"'
real l
CY
day
-
blacl
frien
stres
politi
name
unopi
SF
Core'
convt
ticket
prog!
shipr
11
is
PCidy
71
PCidy
42
PCidy
19mn,
CIr
19
Fein
57
Rain
47
CIr
•
ca
5d
.01
Cl,
clay
71
PCidy
72
Cr
71
pain
72
OW
W
Pc1dy
51
.W
Roll
?4
Peky
~-
2
78
1
1
7e
PCwy
0
77
dy
POldy
7
72
May
i
75
72
.bPCldy
72
Rn
5s
Rain
57
.S
Cldy
70
Pcldy
u
75
PCidy
71
.5a
CIr
i9
.17
CIr
u
7
59
CIr
71
Or
~-
e5
en
72
PCidy
•
0Ir
71
air
I
11
02000 AttuW
oathot.
the .
As the s
east, rain
•
New Yo
down to W
tucky, and
Kansas, and
Showers
over the N
seaboard . M
Vermont an
forecast to
storms.
05/24/2001
12:10
2174770573 ,._
FRED HUBBARD
we lime ne
ent under the Yietnam
i
dozen upcom
a
can
n p ear
,
g
a ,'
ytess s id
V
lever the
sun .
.
. .
exposutewas,itwasove. _, teatsome
tihieiuthepasf.Buthe'stryingt9pre-
cdudeanjtbihginfhefutu&
. .
After
the
December
1993
vote. The purest form of govern-
ment is the grassroots movement
and that is what this is, The meet'
Ing served as an education medium
and as a basis to start further dis-
cussion ."
Truelove said there are about
1,100 registered In the township. It
appeared more than 400. people
attended Wednesday night's meet
•
ing, butonly382wereeligibletovote,
Truelove said.
Natlare1 Temperature Extremoe for
Wadueday
F Hlpl, l19
at
Comb
v¢Ilay
Ca
U LOW 20
at Trntkee
Go
Illinois numbers (Wednesday)
Pick Three-Midday: 3.3.9
Pick Three-Evening.8-0-0
Pick Four
Midday:9-7
.
0.5
Pick Four-Evening: 7-24-5
Little Lottci.18-2425-26-28
Lotto 1-3.420.36-48
Lotto Jackpot $3 million
Big Game: $21 million
(217) 446-1000
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ine
25t3year
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News(r1
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changes
to
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advisers s~
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f.-te still plans to cam-
sign Supilay for Ben. Mike
.Wkne,
•
R Ohio, one
of
the
four senators who"
s
orte
GOP presiden-
pp
.cans
extend the meeting to (Wednesday
night)."
Seventeen residents that night
voted to continue the meeting; 15
voted against it
"There were a whole bunch of us
who wanted more knowledge before
we voted" Township Supervisor Jan
ice Truelove said. "This week has
gives us time to
get
that. We needed
this week, You can see the difference
behveen 32 voters and 382 (the num.
unch,
Continued
from
Page lA
for a soda
A quick look in ahinch sack today
might reveal cheese and crackers,
chips
and salsa or fresh raw vegeta-
bles.
KolbyRiggle,thedirectoro£envi-
ronmental health at the Vermilion
County Health Department hcivev-
er
r, warns that there are some things
parents should avoid whilepacldnga
lunch - milk, eggs and non"
processedmeats, such as fried chick-
en and tuna salad. These foods spoil
too quickly and can causes . child to
getsick
Bologna, ham and most cheeses
are processed and, have a longer life
exoectance Riaole said
.
beginning and end of the school year,
even these precautions might not be
enough
s
On hot da s, it would be better to
end peanut butter and jelly if your
kids will eat it," Riggle said "Overall,
though, It is safer for most kids to buy
school lunches:'
The
8erifrps f-Iowrcrd
News Service contributed to
thisarti-
cle.
Pouveha ll
T
ednesday)
6-16-27-44-47
Sell' 14
Jackpot $10 million
Corrections
The Commercug-News will correct
errors occurring in
its
Ji share If
PAGE
03
Avenue .
NO
Take Off Pounds Sens
meeting following, senior citi
:
.∎ Danville AesntTeam I
EVE
noon, I
GIG
)age
pt
farmer
open
COVINGTON, Ind .: F
RIDGE FARM : I
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ende
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- 4:30-7:30 p.m .: Lions C
- .5-9 p.m . : Cruise in/car
7-10 p.m . : Class Reunik
-8 p.m . : Awards presen
Submit Items for the cal
Commercial-News, PO. Sc
WE -BULL
$34
For Only
Let your PEP
you the cash fl
any good purpos
Contact Kathy
in Danville 217 .1
PERS(
FIN)
ystem pushes
as predicted
est Virginia
across Into
northern
also were
ortheast
aine, New
d Massachusetts
bear the
Phoenix
rk and Pennsylvania,
and
brunt
110
Oklahoma.
over
and
63
Hampshire,
further
Missouri;
expected
Atlantic
east-
Ken-
were
of the
PCidy
tialcafnpaigp,
Those who havetalkedto McCain
or his wife. Cindy, said he was upbeat
"He has talked to lots of doctors,
he has a very good sense of where he
stands - or at least he thinks he
dues," said Sen.JohnKerry;D-Mar.,
who talked to Mrs, McCain on
Wednesday Kerry appeared on
CNN's
LarryKingLiva
"I can assure you he's in wonderful
spirits. Beyond that, I can't tell you
anythinsaid Deb Cnillett, a former
M:Camstaffer and longtime friend
melanoma surgery the records said
McCainregularlyhashadsuspicious
skin lesions or moles removed -
often basal cell carcinoma, the least
aggressive andmostcommontypeof
skin canter;
The. American Cancer Society
estimates 47,700 Americans will be
diagnosed with melanoma this year,
and7,700willdk
The more sunburns, particularly
early in life, the higher your risk .
Fair-skinned people, consequent) y,
arem at highest risk Also at high risk
Plliaburah
76
69
' PCidy
The news of McCaitfs cancer
are people with more than 20 moles
POrtknd.Malna79
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came on the third day of the Demoo-
scattered around their body,
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Rapid City
67
60
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Rem
97
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bee whovotxdWednesdaynighty'
1
Sacramento
07
99
69
59
CIr
air
oni
Township Trustee Roger Klink, a
ii Loud
at
77
mid,
zoning advocate and moderator of
Gait Lake Cory is
as
75
POldy
oCr
Continued from Page IA
the meeting, said those supporting
hen Antonio
San Clno
07
64
70
PCidy
restrict such enterprises as hog
zoning were intimidated.
59
Cl,
"There was no
to he
, :.Fnaedeaa79
SunJuen,P.R.09
77
65
PCidy
PCidy
farms and landfills from coming into
town.
purpose
served in becoming a target," said
6a-to,Pe
91
0t Ste Marie
04
57
Coy
Klink, who
for the special
petitioned
73
54
Or
Nome spoke on behalf of zoning .
Sealtlo,
Slmvu,p,t
SIWxF8116
tot
76
76
56
CIr
A5 0173y
A petition for a special meeting to
meeting.
The attempt to get zoning
Sp)k0n0
82
60
or
consider zoning was signed by the
installed is to
local communi-
protect
Syracude
76
64
.02PCldy
required 15 residents, and a meeting
ties, their citizens and environment .
Tempo
92
76
polo),
was conducted Aug. 9, with 32 pre-
Toooka
104
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P014,
People feel that they are going to
TPCOn
Tulsa
005
100
79
70
72
pi
Ploy
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sent
"It looked Iike they might pass
have their r2ghts taken away; rather
than strengthened, in my opinion." he
WManam,D.ca6
Wly7Ia
102
72
POW
zoning (on Aug. 9), Knight said.
salt
Wllkos-earte
70
61
7t
.07PCIdy
.02 CIr
"That was a reason why I pushed to
I am not disheartened by the
WIlmngln,Del .o6
Exhibit 3
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Exhibit 4
u
i
PAGE
02
05/2412001
12:10
2174770573
FRED HUBBARD
iociay students even those
Menuofferingsinanaverage
3
Matt Huberlcommerclai-News In elementary seh
are
week could include submarine n
Students from Northeast Elements
Magnet School eat demanding bettertasw4and sandwiches,Aizzasandchicken n
their luntih
at
the school. The .U.S . f*partment'of Agricul- more nutritious 'schoollunches, tenders-all student favorites fi
lure requires that school meals meet recommended daily' Brenda Demos, the Danville and one "Sunday dinner-type
nutrition requirements
.
District 118 food service d'uec- meal" on Wednesdays . Demos
. b,
IV ,
Preparing for Gas, and Steam S
Zoning
opposed
in Elwood
Township
By April Evanns
Staff Writer
RIDGE FARM - Elwood
Township voters made it clear
Wednesday night that they
don't want zoning.
By a vote of 307-11, township
officials were told that the
Ridge Farm, Vermilion Grove
and Olivet areas do not want to
.
U,
be considered for zoning.
r
,
O
?,
An effort to institute zoning
;had
developed,
Township
Trustee Roger Klink said, from
a group concerned about how a
{ i
roposed mine near Vermilion
.
rovee would affect the Little
.
Vermilion River
.
But Rose E<Ti9; representing
a group opposing the proposed
mine, said her group
•o
ppbses
zoning.
-,
"Noonehaseversaidthatour
upis for zoning,"Ellis said I
nv911 vote by hand vote against
coning .
I am not ashamed of
faat believe."
j)Ri'k Knight, a county board
.
To
tuber from Indianola and
$gnlng opponent said "zoning
causes landowners to lose con-
trol of property, and that
property
.can only be used far certain
purpose
.
How many people would
Gore to address nation to
hand over theircheckbookwith
signed checks to someone you
didn't know?" Knight said.'Zon-
lug does the same thing to your
property rights forever."
He said he has spent the last
four years collecting data on
zoning.
He said that if zoning is
enacted, Ridge Farm would be
under direct control of a zoning
board and taxes would increase.
He alsosaidthatzoningdoesnot
Please see ZONING/Page 2A
In the
couln,
Areas In
Vermilion :,
County
that
have
ing,reg'ulations
'
.
.
Laura+
G
Norman Skinner works atop, a scaffold, sehdng new rafters on,a round barn at his farm near Perr
quilt in
•1
918, Was moved to the farm from Alvin last year and is one of many historical farm iter
play during this weekend's Gas and Steam Show, located three miles west of Perrysville on In
The Associated Press
LOS ANGELES-Democ-
ratic presidential nominee At
Gore a political understudy no
more, is urging Americans to
reject RepubJicans who would
take them "back to the past"
and promising to deliver pros-
perity, progress and positive
change if he wins the White
House
"We're the new guard," the
vice president said in a preview
of the nationally televised
address he delivers tonight at
the Democratic National Con-
vention .
That
acceptance
speech isavital step in his west
AsaoCiatod
Press
Vice President Al Gore surprises his daughter, Karenna Gore
Schiff. after she
c ntro Anti n
"tha
you
guy,'
real I
[i
day
-
blacl
frien
stns
polio
Dams
unopl
Ss
Gore
Convt
tick&
progi
ships
11
TAL-NEWS
2
05/24/2001
12:10
Vu+r
a
7
-w
a20O
AOSIWeathegIne:
As the system pushes further
east, rain was predicted over east-
ern New York and Pennsylvania,
down to West Virginia and Ken-
tucky, and across Into Missouri;
Kansas, and northern Oklahoma
.
Showers also were expected
over the Northeast and Atlantic
seaboard. Maine, New Hampshire,
Vermont and Massachusetts were
forecast to bear the brunt of the
storms.
Illinois numbers (Wednesday)
Pick Three-Midday; 3.3.9
Pick Three-Evenine 8-0-0
Pick FourMidday : 4-7 .0.5
Pick Four-Evening: 7-24-5
Little Lotto 18.24-25-26-28
Lottcr.1.3-4-20-36.48
Lotto Jackpot $3 million
Big Game: $21 million
(217) 446-1000
'No,125,136tb year
.:iThaCommerciatNews(USP8048.680) la
"
p'u6lithwJ daily by Lisa Commarcial-New
1T9Irntldrtk St.. telephone (217) 44&1000.
Pet~7
postage paid In Danvllle.IL
;618321: : :
t?QSl'tyfASTPRSend address changes to
t,^,i
b
uj,.rc;ai.Newx, 17 W North St:
iilaannle.IL61832
Newspaper Holdings, Inc
.
commarcwh'wrewaby5pmweekdaysand7am .week-
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2174770573
_
FRED HUBBARD
campaign
'ap
p ear-
the
time lie spent unrler tile Vietnam
dozen upcoming
aft
with(
reessionalcandisrea
sun;: Bay}ass said . ."L1
rover the
advisers
sat
toe still plans to cam-
ikn Sup
o
r
a
n
ke
a
$
ih
-Ohio, one
ofthe
finer senators who
supportedmccain's GOP presiden-
tial campaign.
o
Those who have talked toMcCain
rhis wife, Cindy, said
he
was upbeat
"He has talked to lots of doctors,
he has a very good sense of where
he
stands- or at least he thinks he
dues," said Sen. John Kerry; D-Mass,
who talked to Mrs, McCain
off
Wednesday. Kerry -appeared on
CNN'sLarryKingLiv
I canassute you he's in wonderful
spirits, Beyond that, I can't tell you
anything," said Deb Gullets, a former
McCain staf
r
and longtime friend
The news of McCain's cancer
came on the third day of the Democ-
Zoning
Continued from Page 1 A
restrict such enterprises as hog
farms and landfills from coming into
town.
Nonce spoke onbehalf of zoning .
A petition for a special meeting to
consider zoning was signed by the
required 15 residents, and a meeting
was conducted Aug. 0, 'with 32 pre-
sent
It looked like they might pass
zoning (on Aug . 9) ;' Knight said .
"That was a reason why I pushed to
extend the meeting to (Wednesday
night)."
Seventeen residents that night
voted to continue the meeting; 15
voted against it
"There were a whole bunch of us
who wanted more knowledge before
we voted" Thwnship Supervisor Jan-
ice Truelove said. "This week has
given us time to get
that
We needed
this week. You can see the difference
between 32 voters and 382 (the num-
Lunch;
Continued
from
Page 1A
for a soda.
Aquicklookinalunchsack today
might reveal cheese and crackers,
chips and salsa or fresh raw vegeta-
bles.
KolbyRiggle,thedire~forofenvim
ronmental health at the Vermilion
County Health Department. howev-
er, warns that there are some things
parents should avoid while packing a
lunch
- milk, eggs and non-
processed meats, such as fried chick-
en and tuna salad. These foods spoil
too quickly and can cause a. child
to
got sick
Bologna, ham and most cheeses
are processed and, have a longer life
exnectanev. Rlo'
le
Raid.
exposurewasItwasove, , teat some
tiirie inthepast.Buth
gtgpre-
'eludean$tbgisthe future'
After
. :
:
the
December
1993
melanoma surgery, the records said,
MeCaint-egulauly has had suspicious
skin lesions or moles removed -
often basal cell carcinoma, the least
aggiessive and most common type of
skincancer.
The American Cancer Society
estimates 47,700 Americans will be
diagnosed with melanoma this year,
and7,700willdk
The more sunburns, particularly
early in life, the higher your risk .
Fair-skinned people, consequent)
ate at highest risk Also at high risk
are people with more than 20 moles
scattered around their body,
Corrections
berwhbvoted Wednesday night)"
Township Trustee Roger Klink, a
zoning advocate and moderator of
the meeting, said those supporting
zoningwere intimidated .
"There was no purpose to be
served in becoming a target," said
Klink who petitioned fort he special
meeting,'
"The attempt to get zoning
installed is to protect local communal-
ties, their citizens and environment .
People feel that they are going to
have their rights taken away, rather
thadnstrengthened,inmyopinion,"he
"I am not disheartened by the
vote. The purest form of govern-
ment is the grassroots movement
and that is what this is. The meet
•
ing served as an education medium
and as a basis to start farther dis-
cussion ."
Truelove said there are about
1,100 registered in the township. It
appeared more than 400 . people
attended Wednesday night's meet-
ing,butonly382wereeligibletovote,
Truelove said,
beginning and end of the school year,
even these precautions might not be
enough
'On hot days, it would be better to
send peanut butter and jelly if your
kids will eat it, Rigglesaid "Overall
though tis sakr for most kids to buy
school lunches." The Scripps Howard
News Service contributed to thisrarti-
cik.
Powerball
T
odnesday)
16-27-44-47
Bail- 14
Jackpot $10 million
The Commercfal-News will correct
errors
oceunina in its nave share. IF
PAGE
03
Avenue.
r Take Off Pounds Sons
meeting following, senior citi
:
∎ Dlinvllle Rent Team
I
EVE
DA
noon, I
Clf
lage
p1
farmer
open
COVINGTON, Ind . : F
RIDGE FARM : Hende
3 p.m .
: Crafts, flea ma
.
-4:30-7:30 p.m, ;
Lions C
-5-9 p.m . : Cruise in/cer
7-10 p.m . :Class Reunk
-8 p.m .
: Awards presen
Submit Items for the cal
Commercial-News, PO. &
Aug
.
$34
For Only
Let your PEP
you the cash #i
any good purpos
Contact Kathy
in ©anville 217-
(PERS(
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