Microsoft Word - Notice of Filing.doc

Microsoft Word - Notice of Filing
Petition for Review of a Decision by IEPA
Microsoft Word - CERTIFICATE OF SERVICE

DATED: January 5

, 2009

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PRAIRIE

PCB

(APPEAL FROM IEPA

)

DECISION GRANTING

)

NPDES PERMIT)

ILLINOIS ENVIRONMENTAL PROTECTION )

AGENCY and SUGAR CAMP ENERGY,

John Therriault, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph St., Suite 11-500

Chicago, IL 60601

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

Sugar Camp Energy, L.L.C.

430 Harper Park Drive

Beckley, WV 25801

PLEASE TAKE NOTICE that the attached

Petition for Review of a Decision by the Illinois

Environmental Protection Agency

was electronically filed today, January 5

, 2009, a copy of

which is herewith served upon you.

Respectfully Submitted,

Albert Ettinger (Reg. No. 3125045)

Bradley Klein (Reg. No. 6291701)

Counsel for Prairie Rivers Network and Sierra Club

Environmental Law and Policy Center

35 E. Wacker Dr. Suite 1300

Chicago, Illinois 60601

312 795 3707

Electronic Filing - Received, Clerk's Office, January 5, 2009

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PRAIRIE RIVERS NETWORK

PCB

(APPEAL FROM IEPA

)

DECISION GRANTING

)

NPDES PERMIT)

ILLINOIS ENVIRONMENTAL PROTECTION )

AGENCY and SUGAR CAMP ENERGY,

PETITION FOR REVIEW OF A DECISION BY THE ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY

Pursuant to 415 ILCS 5/40(e)(1) and 35 Ill. Adm. Code Section 105, Prairie

Rivers Network and the Sierra Club (collectively, “Petitioners”) hereby petition for

review of the December 2, 2008 decision of the Illinois Environmental Protection

Agency (“IEPA”) to grant a new National Pollutant Discharge Elimination System

(“NPDES”) permit (Permit No. IL 0078565) to Sugar Camp Energy, L.L.C. to discharge

pollutants from a coal mining site into Middle Fork Big Muddy River, two unnamed

tributaries of the Middle Fork, Akin Creek and three unnamed tributaries of Akin Creek

(See

Final Permit and Responsiveness Summary at http://www.epa.state.il.us/public-

notices/2008/sugar-camp-energy/final-permit.pdf ).

In support of their petition, Petitioners state:

Petitioners

Prairie Rivers Network is an Illinois not-for-profit corporation concerned

with river conservation and water quality issues in Illinois. It works with concerned

citizens throughout the state to address those issues that impact Illinois streams. Among

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Prairie Rivers Network members are those who live in the Big Muddy River watershed

and are concerned with pollution that would affect their ability to enjoy recreation

activities dependent on the ecological health of the Big Muddy watershed including

fishing, boating, canoeing, nature study and hiking. (See Transcript of Proceedings,

September

23,

2008,

http://www.epa.state.il.us/public-notices/2008/sugar-camp-

energy/hearing-transcript.pdf, p. 48; Joint Comment Letter of Prairie Rivers Network,

Sierra Club and American Bottom Conservancy, August 25, 2008, Ex. A; Post-Hearing

Comments of Prairie Rivers Network, Sierra Club and American Bottom Conservancy,

October 22, 2008, Ex. B).

The Sierra Club is a California not-for-profit corporation, which has

among its purposes to protect and restore the quality of the natural and human

environment. The Sierra Club has over 25,000 members residing in the State of Illinois

and has members who are adversely affected by any degradation of the Middle Fork of

the Big Muddy River, Akin Creek and tributaries thereto that could affect the uses of

those waters. Sierra Club members live in the Big Muddy River watershed, and many

Sierra Club members are concerned with pollution that would affect their ability to enjoy

recreational activities dependent on the ecological health of the Middle Fork of the Big

Muddy River, Akin Creek and tributaries of both of these rivers including fishing,

canoeing, kayaking, bird watching, nature study and hiking. Sierra Club members are

adversely affected by the unnecessary degradation of water quality that occurs as a result

of suspended solids, sediment, sulfates, chlorides, iron, manganese and other pollution

discharged

into the Middle Fork of the Big Muddy River, Akin Creek and their

tributaries. (See

Transcript and Exhibits A-C)

Electronic Filing - Received, Clerk's Office, January 5, 2009

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Members of the Petitioners, including Traci Barkley, Barb McKasson,

Becki Clayborn, Terri Treacy, and Joyce Blumenshine appeared at the hearing held in

this proceeding or submitted comments in opposition to the permit. They and other

members of Petitioners are so situated as to be affected by the permit and by violations of

water quality standards in the Middle Fork of the Big Muddy, Akin Creek and tributaries

of both rivers. (See

Transcript and Exhibits A-C).

The Middle Fork of the Big Muddy River and Akin Creek

The Middle Fork of the Big Muddy River and Akin Creek lie within the

Big Muddy River watershed. The entire watershed of the Middle Fork of the Big Muddy

has been identified as a Resource Rich Area (RRA) by the Illinois Department of Natural

Resources. Resource Rich Areas are those areas identified as being rich in biological

resources. Only thirty Resource Rich Areas have been so designated in the state. The

Middle Fork of the Big Muddy RRA is one of the few places in the state that still

contains large tracts of bottomland forests. The watershed provides habitat for the state-

threatened marsh rice rat, among other aquatic species dependent on an intact, healthy

riverine environment. (See

Inventory of Resource Rich Areas of Illinois: An Evaluation

of Ecological Resources, Ex. D).

The Middle Fork of the Big Muddy River has been identified as an

impaired water by IEPA. The river’s aquatic life uses are listed as impaired by

manganese, low dissolved oxygen, and sedimentation/siltation (See Responsiveness

Summary p. 21, 47).

Statement of Issues Raised

On July 25, 2008, IEPA gave notice that it had made a tentative decision

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to issue a new NPDES permit to Sugar Camp Energy, L.L.C. for discharges into the

Middle Fork of the Big Muddy River, Akin Creek and tributaries of both water bodies.

The new permit would allow Sugar Camp Energy to discharge mine drainage,

reclamation area drainage and stormwater runoff into these receiving streams. After

reviewing a copy of the draft permit, Petitioners submitted written comments on August

25, 2008, testified at a public hearing held on the draft permit on September 23, 2008,

and submitted post-hearing written comments on October 22, 2008 (See

Transcript and

Exhibits A-C).

In their written comments and testimony, Petitioners raised legal and scientific

issues regarding flaws in the draft permit and in IEPA’s consideration of the draft permit

and asked that all technically and economically reasonable measures to avoid or

minimize the extent of the proposed increase in pollutant loadings be incorporated into

the permit and that the permit be improved in a number of respects. These comments

requested that:

Proper identification and quantification of all pollutant loadings, analysis

of the potential impacts of those increases on the receiving streams, and assurance that

the permit would not allow discharges that could cause or contribute to violations of any

numeric or narrative water quality standard;

Completion of an appropriate biological study to assure that the discharge

would not adversely affect the existing uses of the receiving streams;

Separation of mine drainage treatment basins from stormwater basins in

order to improve treatment options and to decrease the likelihood that additional loadings

will contribute to a violation of water quality standards;

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Incorporation into the permit conditions of various best management

practices regarding the minimization of sulfate formation and chloride leaching.

Evaluation of the need for clay liners in sedimentation basins 002, 005,

006, 007, and 008.

Appropriate drainage control for an on-site soil stock pile in accordance

with Title 35 Ill. Administrative Code 406.108.

Incorporation of alternative treatment technologies for minimizing

increases in pollutant loadings (sulfate, chloride, iron, manganese, etc); and that

IEPA properly control discharges of sanitary waste from the site.

On December 2, 2008, Illinois EPA issued the permit that is the subject of

the current appeal. While substantial changes were made to the draft permit, the final

permit did not remedy many of the flaws discussed above that were raised by Petitioners

in oral and written comments.

Specifically with regard to issues that had been raised by Petitioners during the

hearing and public comment period:

Relating to the comment showing that the draft permit and supporting

documents did not comply with Illinois’ antidegradation rules requiring the IEPA to

identify and quantify proposed pollutant load increases and the potential impacts of those

increases on the affected waters, 35 Ill. Adm. Code Section 302.105 (f), IEPA initially

stated that underground mine pumpage was outside the scope of its NPDES permit

review. Upon objection by Petitioners, IEPA conceded that underground mine pumpage

is subject to regulation under the permit. The applicable sections, demonstrating that

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mine pumpage is within the scope of NPDES permit review, are noted below, with

emphasis in italics.

Title 35 Ill Adm. Code, Subtitle D Regulations:

401.403. Purpose

The purpose of this Subtitle D is to prevent pollution of water of Illinois caused

by the failure to plan proper environmental safeguards for the location, preparation,

operation and abandonment of

mining activities, mining

and mine refuse operations. A

permit system is established to control the multitude of contaminating point and non-

point source discharges, visible and hidden, continuous and fluctuating, which are

potentially present in mining activities, mining and mine refuse operations.

402.101. Definitions

“mine discharge”:

any point source discharge, whether natural or manmade, from

a mine related facility. Such discharges include but are not limited to

mechanical

pumpages

, pit overflows, spillways, drainage ditches, seepage from mine or mine refuse

areas, effluent from processing and milling or mineral preparation plants.

“mining activities”: all activities on a facility which are directly in furtherance of

mining, including mining activities before, during and after mining. The term includes,

but is not limited to, the following:

Preparation of land for mining activities;

Construction of mine related facilities which could

generate refuse, result in a discharge or have the

potential to cause water pollution;

Ownership or control of a mine related facility;

Ownership or control of a coal storage yard or transfer

facility;

Generation or disposal of mine refuse;

Mining;

Opening a mine;

Production of a mine discharge or non-point source

mine discharge;

Surface drainage control; and

Use of acid-producing mine refuse.

“mining”:

the surface or underground extraction or processing of natural deposits

of coal, clay, fluorspar, gravel, lead bearing ores, peat, sand, stone, zinc bearing ores or

other minerals by the use of any mechanical operation or process. The term also includes

the recovery or processing of the minerals from a mine refuse area.

405.100. Preamble

Part 405 governs the issuance of both state and NDPES permits and contains

substantive rules governing mining activities and construction of mine related facilities.

405.104. Permit Applications

(b) An application for a state or NPDES permit shall include:

(15) The location of all mine discharge points and non-point source mine

discharge sources, method or type of sediment basins, erosion control devices and

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wastewater treatment facilities for all mine related facilities including designation of

collection points for water

discharged from all mechanical pumping

or gravity flow

systems used for draining the mine and mine refuse area.

Despite this language, there is no evidence that IEPA considered the additional

pollutant loadings in its water quality modeling in development of the NPDES permit

parameters except that it appears that IEPA decided that the pumpage would not be

significant (Responsiveness Summary p. 61). However, based on experience at the Pond

Creek Mine, the applicant estimated that initial mine pumpage will average 360,000

gallons per day for the first longwall panel. It further estimated that additional pumpage

of 30,000-60,000 gallons per day may be required for each additional panel, proposed to

be mined at a rate of one panel per year. Because this water will be in contact with coal

fines and solids as well as with other rock material, it will carry both dissolved and

suspended solids when pumped to the surface sedimentation basins. These pollutants

have not been identified and quantified as required by 35 Ill. Adm. Code Section 302.105

(f).

With regard to the comment that the draft permit and supporting

documents did not comply with Illinois’ antidegradation rules requiring protection of the

existing uses of the receiving waters, 35 Ill. Adm. Code Section 302.105(a), IEPA failed

to consider the impact of suspended solids and sediment on existing uses. IEPA also

failed to consider the impact on existing uses of the additional pollutant loadings from

underground mine pumpage. Fish and invertebrate samples collected from stations in the

Middle Fork Big Muddy River and Akin in 2008 had not been fully analyzed at the time

the permit was issued (Responsiveness Summary at p. 43).

Despite Petitioner’s requests regarding the incorporation of appropriate

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best management practices into the permit conditions, IEPA failed to include special

conditions requiring minimization of sulfate formation and chloride leaching. IEPA also

failed to include a special condition requiring appropriate drainage control for non-point

source mine discharge in accordance with Title 35 Ill. Adm. Code 406.108, and to

evaluate the need for clay liners in five of the eight sedimentation ponds.

Despite Petitioners’ repeated urgings that IEPA take the steps necessary to

comply with 35 Ill. Adm. Code Section 302.105(c) by assuring that all technically and

economically reasonable measures to avoid or minimize the extent of the proposed

increase in pollutant loadings be incorporated into the permit and that IEPA perform the

required financial analyses regarding pollution control costs, IEPA never adequately

weighed pollution control alternatives and completely failed to determine both the costs

of the various alternatives and the impact of those costs on the viability of the proposed

project.

(i)

The IEPA dismissed pollution control alternatives (Responsiveness

Summary at p.45-46) presented by the Petitioners (See

Ex. A,B) stating “the alternative

treatment technology descriptions provided by the commenter have little information

connecting them to treatment of stormwater runoff at Illinois coal mines.” IEPA also

stated that “the supplemental information submitted, namely a memorandum date

October 15, 2008 from Carpenter Environmental Associates, Inc., (and the references

cited in this memorandum) does not serve to objectively evaluate conditions specific to

this permit” (Responsiveness Summary p. 49).

Finally, IEPA faults Petitioners for

failing to make cost estimates of the alternatives. However, it was not Petitioners’ duty

under the regulations to make cost estimates or even to provide alternatives. Petitioners

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provided information regarding possible alternative treatments to assist IEPA to perform

its duty to “assure…all technically feasible and economically reasonable measures to

avoid or minimize the extent of the proposed increase of pollutant loading [be]

incorporated into the proposed activity. 35 Ill. Adm. Code 302.105 (c) (2) (B) (iii).”

(ii)

Under the Board’s rules, the permit application must provide:

Assessments of alternatives to proposed increases in pollutant loading or activities

subject to Agency certification pursuant to Section 401 of the CWA that result in

less of a load increase, no load increase or minimal environmental degradation.

Such alternatives may include:

i) Additional treatment levels, including no discharge alternatives;

ii) Discharge of waste to alternate locations, including publicly-owned

treatment works and streams with greater assimilative capacity; or

iii) Manufacturing practices that incorporate pollution prevention

techniques.

35 Ill. Adm. Code 302.105 (f)(D). The permit application did not include such an

assessment and no proper assessment of this nature was ever provided by the applicant.

(iii)

While the IEPA did ask the mine company to perform an analysis of the

treatment technologies provided by the Petitioners, this report, entitled Sugar Camp

Mine, November 20, 2008, provides no real analysis of proposed alternatives. For

instance, a cost per gallon estimate ($3-10/1000 gallons treated) was provided for only

one of the alternatives. This estimate, moreover, provides no information about the total

cost of using the alternative because no figure is given as to how much water will be

treated.

Two alternatives (ion exchange and the CESR process) were described as having

some application but they were not actually explored. One was dismissed because it was

described as being directed to acidic mine drainage while the drainage from the subject

mine is “

expected

to be alkaline.” No information was provided that substantiated that

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the technology would not work for alkaline discharges. Another alternative was

dismissed because it was anticipated that field testing would be required but no showing

was made that field testing was impracticable. The other technologies presented by the

Petitioners were similarly based on little or no evidence.

Further, the mine company rejected alternatives on the basis that they would

require steady inflow rates, ignoring the fact that Petitioners had requested that the site

utilize separate treatment (sedimentation) and stormwater basins which would offer the

opportunity for more defined flows of internal discharges needing treatment, such as coal

processing wastewater. In addition, neither the applicant nor IEPA apparently ever

estimated the costs of building larger lagoon(s) that would be needed to make the

discharges more regular. The claim that increased lagoon sizes and better treatment

would use additional land is not supported by estimates of the amount of land that would

be needed or the value of the land that would be used. Indeed, perhaps such lagoons

could be placed to some extent in land areas that the applicant intends to destroy through

longwall subsidence.

Despite Petitioners’ comments that IEPA cannot properly issue a permit to

a new source that will cause or contribute to a violation of water quality standards, see

C.F.R. Section 122.4(i), 122.44(d), and the fact that the Middle Fork of the Big Muddy

River is impaired due to manganese and sedimentation/siltation (See Ex. E), the final

permit allows for additional loadings of both manganese and sediment, which will

contribute to the impairments by allowing pollution of water that currently serves to

dilute pollution from other sources. Further, although IEPA acknowledged the likelihood

of iron being associated with the coal (Responsiveness Summary p. 52), IEPA did not

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place a concentration or load limit on iron discharges (Responsiveness Summary p. 47).

Thus, the permit violates 35 Ill. Adm. Code 302.105 (c)(B), Ill. Adm. Code 304.105 and

35 Ill. Adm. Code 309.141.

IEPA decided not to limit discharges of the sanitary wastes to be generated

on the site, relying on regulation by the county health department (Responsiveness

Summary p. 33). However, such local regulation is an inadequate substitute for required

Clean Water Act regulation. There is no exception to the Clean Water Act for small

discharges. The permit, by failing to control what must be controlled under federal law,

violates applicable Board regulations. See

35 Ill. Adm. Code 309.141(d).

Members of Petitioners will be adversely affected when pollution

discharged under the permit causes unnecessary degradation of the water quality in the

Middle Fork of the Big Muddy River, Akin Creek and tributaries thereto. They will also

be adversely affected when permitted discharges cause or contribute to the degradation of

the existing uses of these receiving streams and otherwise injure the ecology of the

streams as a result of IEPA’s failure to require a proper antidegradation analysis.

WHEREFORE, Prairie Rivers Network and the Sierra Club ask that the Pollution

Control Board set aside the NPDES permit (No IL0078565) issued to Sugar Camp

Energy, L.L.C. as not sufficiently protective of the environment and not in accord with

law, and direct that the Agency reconsider the permit in order to establish conditions and

limits necessary to protect Illinois waters, assure protection of Illinois water quality

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standards, and comply with the Federal Water Pollution Control Act, 33 U.S.C. §1251 et

seq., and Illinois law.

____________________________

Albert Ettinger (Reg. No. 3125045)

Bradley Klein (Reg. No. 6291701)

Counsel for Prairie Rivers Network and Sierra Club

Environmental Law and Policy Center

35 E. Wacker Dr. Suite 1300

Chicago, Illinois 60601

312 795 3707

January 5, 2009

Electronic Filing - Received, Clerk's Office, January 5, 2009

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CERTIFICATE OF SERVICE

I, Albert E. Ettinger, the undersigned, hereby certify that I have served the attached

Petition for Review of a Decision by the Illinois Environmental Protection Agency

upon:

Mr. John T. Therriault

Assistant Clerk of the Board

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

via electronic filing on January 5

, 2009; and upon the attached service list by depositing said

documents in the United States Mail, postage prepaid, in Chicago, Illinois on January 5

, 2009.

Respectfully Submitted,

Albert Ettinger

Senior Attorney

Environmental Law and Policy Center

35 East Wacker Drive, Suite 1300

Chicago, IL 60622

312-673-6500

Electronic Filing - Received, Clerk's Office, January 5, 2009

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SERVICE LIST-

January 5

, 2009

John Theirrault, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph, Suite 11-500

Chicago, Illinois 60601

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

Sugar Camp Energy, L.L.C.

430 Harper Park Drive

Beckley, WV 25801

Sugar Camp Mine #1

11351 Thompsonville Road

Macedonia, IL 62862

Electronic Filing - Received, Clerk's Office, January 5, 2009

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Sent via regular mail and email to larry.crislip@illinois.gov and Kent.Mohr@Illinois.gov

August 25, 2008

Larry D. Crislip

Illinois Environmental Protection Agency

Bureau of Water, Division of Water Pollution Control

Permit Section

1021 North Grand Avenue East

Post Office Box 19276

Springfield, Illinois 62794-9276

Re:

NPDES Permit No. IL0078565, Notice No. 4953c, Sugar Camp Energy LLC, Sugar Camp Mine

Dear Mr. Crislip:

Prairie Rivers Network, the American Bottom Conservancy and the Illinois Chapter of Sierra Club object

to the draft NPDES permit planned to be issued to Sugar Camp Energy for discharges of alkaline mine

drainages from the proposed new Sugar Camp Mine to be located in eastern Franklin County, Illinois.

We appreciate that a public hearing has been scheduled for September 23, 2008 in West City, Illinois.

This letter contains issues we’d like to discuss at the public hearing and questions we would like

answered.

The proposal includes a mine permit boundary of approximately 1,264 acres located in sections 2, 3, 4, 9,

and 10 of Township 06 South, Range 04 East near the town of Macedonia and approximately 10,839

acres of mine shadow area which lie east and northeast of the proposed mine permit boundary. Members

of our groups live and recreate in Franklin County and depend on clean waters in streams and wetlands in

the Middle Fork Big Muddy River watershed for activities including fishing, boating, birdwatching and

other wildlife viewing.

The Illinois Dept. of Natural Resources has listed the entire watershed as one of only thirty Resource Rich

Areas found in the state (Critical Trends Assessment Phase II, Inventory of Resource Rich Areas in

Illinois: An Evaluation of Ecological Resources, Prepared for the Department of Natural Resources by

Liane Suloway, Mark Joselyn, and Patrick W. Brown, Center for Wildlife Ecology, Illinois Natural

History Survey, 1996

See Resource Rich Area Summary

. The state-threatened marsh rice rat, a semi-

aquatic

species, is found in the watershed.

The surface facilities at this underground mine (OMM Permit No. 382) contains the incline slope to reach

the coal seam, two vertical shafts, coal preparation plant, reclaim tunnels, rail loading loop, rail loadout,

parking lots, access roads, drainage control structures, office buildings, change rooms, assembly rooms,

warehousing facilities, administration building, storage facilities, elevator facilities, ventilation facilities,

refuse disposal areas, overland conveyors, screens, crusher, power distribution facilities, power lines,

water lines, parking lots, topsoil and subsoil stockpile areas. According to the draft 404 permit public

notice, two freshwater lakes will be constructed for water storage to support coal processing and cleaning.

Longwall mining will begin after the entries are completed for the first panel and will be the primary

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Sierra Club, Prairie Rivers Network on NPDES Permit No. IL0078565, Notice No. 4953c

page 2

method used for coal recovery. As mining operations progress beneath the shadow area, longwall mining

will allow for deep mining, complete coal extraction, and facilitate the subsidence of overburden material.

As this unique area will be greatly impacted by the proposed mine, we have already requested that the

Army Corps of Engineers hold a public hearing and prepare an Environmental Impact Statement be for

this project for the described activities (destruction of 5416 linear feet of stream tributary to Akin Creek

and the Middle Fork Big Muddy River and 7.92 acres of wetland within the proposed mine surface permit

boundary) requiring a 404 permit and undescribed impacts that will result from changes in hydrology in

the watershed due to projected land subsidence from underground mining activities.

We are equally concerned about the impacts on water quality in the watershed resulting from the proposed

surface facilities for the processing and storage of raw and clean coal and onsite coal refuse disposal.

Objections

As detailed below, we object to the issuance of this permit for the following reasons which are described

in further detail in the following paragraphs:

•

Issuance of the proposed NPDES permit will allow the development of surface facilities for

underground long wall mining, complete coal extraction and land subsidence whose impacts have

not been fully anticipated or addressed.

•

Because the composition of the discharge has not been studied adequately, the discharges allowed

by the permit may cause or contribute to a violation of state water quality standards in violation of

40 CFR §§122.4, 122.44(d) and 35 Ill. Adm. Code 302.105(c)(2)(B)(i),(ii), 304.105, 309.141(d)

and 309.142.

•

Illinois Antidegradation Rule, 35 Ill. Adm. Code 302.105 (c)(B)(iii) has also not been

satisfactorily addressed in that alternatives for minimizing increases in pollutant loadings (sulfate,

chloride, iron, manganese, etc) have not been fully explored.

The proposed NPDES permit inadequately captures the impacts of the proposed mining activity. The

proposed permit fails to address impacts to water quality likely to occur due to land subsidence caused by

proposed longwall mining activities.

Proposed Permit Does Not Minimize Increases in Pollutant Discharges

The Antidegradation Assessment asserts that ‘sedimentation ponds…are the only option available to

mines for controlling stormwater runoff’. At the public hearing we would like to discuss other options we

have become of aware of through our research on this issue as outlined below.

The proposed mining facility has failed to satisfy antidegradation regulations.

The state antidegradation regulations at 35 IAC 302.105(c) (2) require that all reasonable measures be

taken to avoid or minimize increased pollutant loading. The applicant has not considered alternatives to

the use of sedimentation ponds for treating runoff from raw and clean coal storage areas as well as other

areas on the mine site, including a coal refuse storage area. Alternatives to sedimentation exist that could

facilitate the avoidance or minimization of increased discharges of sulfates, chlorides, manganese, iron,

mercury and suspended solids. In practice, sedimentation ponds only address dissolved pollutants like

sulfates and chlorides by holding them until they can be discharged during a rain event when they can

take advantage of the dilution. A short survey of experts and consultants in the field of mine wastewater

treatment found the following opportunities to prevent unnecessary new pollution as our Tier 2

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Sierra Club, Prairie Rivers Network on NPDES Permit No. IL0078565, Notice No. 4953c

page 3

antidegradation policy requires. We request these alternatives be evaluated to “assure…all technically

feasible and economically reasonable pollutant loading [be] incorporated into the proposed activity.”

1) Filtration is a well-established method for removing suspended solids by passing wastewater

through a filter bed composed of granular material. Filtration may also take the form of

ultrafiltration or nanofiltration, in which a membrane or other semi-permeable device (such as

a ceramic filter) is used as the filter medium. Filtration is commonly used in treating mine

wastewater for the reduction of sediment, metals, sulfate, and cyanide, thallium and other

contaminants. Nanofiltration mechanisms, designed to remove sulfate, are being applied at the

Tyron copper mine in New Mexico

and have been developed cooperatively by Dow Chemical

Company

and Marathon Oil Company.

2) Bioremediation is a process in which microorganisms are used to treat pollutants.

Bioremediation is extensively used in the treatment of acidity, sulfate, nutrients and cyanide.

3) Reverse Osmosis uses a driving force or pressure across a membrane to cause water to flow

from the stronger solution to the weaker, effecting a separation of water from soluble

contaminants. It is highly effective for removing soluble metals, including low to medium

molecular weight ionic species, including nitrate, potassium, magnesium, chloride and sulfate.

Recent advances in operation and membrane maintenance have made RO effective on cyanide

and metals, including arsenic, cadmium, chromium, copper, iron, lead, mercury, nickel,

selenium, silver and zinc. RO has been used in the mining industry for the treatment of

discharges containing cyanide and metals resulting from heap leach operations and tailings

ponds, with removal efficiencies of greater than 95%.

4) Coagulation-Precipitation is a process by which coagulation removes ultra fine colloidal

particles and metal ions by causing the particles to come into contact with each other and bind

together, forming a precipitate of a size large enough for removal by filtration. In industrial

applications, coagulation-precipitation is routinely used for the treatment of total suspended

solids, and in specific cases can remove sulfate, nitrogen compounds, and metals, including

arsenic, chromium and mercury. It is used to treat mining wastewater for sulfate (heavy

density sludge) metal precipitates including arsenic, zinc and copper and also to treat

wastewater containing cyanide.

5) Ion exchange

removes unwanted ions from water by transferring them to a solid material,

called an ion exchanger, which accepts them while giving back an equivalent number of

desirable ions contained in the ion exchanger. In the simplest terms, water softening is a form

of ion exchange in which sodium, from salt, is exchanged with the calcium responsible for

water "hardness." Ion exchange has been used to treat mine wastewater for metals and nitrate

removal. An example of this method being utilized for sulfate removal is at the Sierrita copper

mine in Arizona.

6) The Cost Effective Sulfate Removal (CESR) process was developed to address the

shortcomings of other technologies used for sulfate removal. The CESR process is an

extension of wastewater treatment with lime in that it can meet more stringent requirements for

sulfate removal. Addition of the CESR reagent to lime-treated water precipitates sulfate as a

nearly insoluble calcium-alumina-sulfate compound known as ettringite. Ettringite formation

can also provide a polishing effect, allowing precipitation of difficult-to-remove metals such as

chromium, arsenic, selenium and cadmium, often below their respective analytical detection

limits. Boron, fluoride and up to 30 percent of the chloride and nitrate in water have also been

removed. Metals and other constituents which the ettringite removes are typically not

leachable, allowing disposal as a nonhazardous waste. Unlike treatment methods such as

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sodium aluminate addition, all of the chemicals added during the CESR process can be

precipitated. Water treated by the CESR process typically meets or exceeds recommended

drinking water standards for sulfate, metals and other parameters. The process produces a net

reduction in total dissolved solids (TDS). Additional information is available at:

http://www.wateronline.com/article.mvc/A-New-Process-For-Sulfate-Removal-From-Indust-

0001?VNETCOOKIE=NO

7) The Supervac

of Supervac Canada Inc. is a system of high density solids transfer pumps that

can recover collected solids from settling ponds and transfer them through a sealed pipeline up

to 3,000 feet away for permitting disposal. This can be an effective, low-cost operation to

lower the TSS in high solids content drainage water in typical mining operations.

Public Has Not had Opportunity to Assess Impacts on Threatened and Endangered Species

The Public Notice/Fact Sheet indicates that the public is being asked to comment on the impacts on

threatened and endangered species without the benefit of knowing concerns raised by the Illinois Dept. of

Natural Resources since the permit was placed on public notice before IDNR had completed its

consultation. This is a concern because of the presence of the state-threatened marsh rice rat in the

watershed. From our review of the IDNR Office of Mines and Mineral files, we know IDNR has

concerns about the impacts of this project. In IDNR letter ‘Modification to Permit No. 382’ dated Nov.

28, 2007 to Mr. Michael Beyer, Sugar Camp Energy, it is stated that IDNR ‘has several concerns

regarding endangered species and habitats of

unusually high value’

(emphasis added) and ‘The area of

the proposed drainage work [referring to ‘a large scale drainage project of the Middle Fork of the Big

Muddy River and Akin Creek as part of the subsidence mitigation plan.’] clearly includes habitats of

unusually high value, including wetlands, important streams and riparian areas.’

Questions

1. Has the Agency performed any review of the planned subsidence for Sugar Camp Mine within the

10,839 mine shadow area and its potential to change the discharge of pollutants in the waterways

draining the mine shadow area?

2. The Antidegradation Assessment states that ‘management practices for minimizing sulfate

formation and chloride leaching are available and will be encouraged’. What are these practices

and why aren’t they being required of the applicant in order to minimize pollutant loading?

3. How has the discharger and the agency determined exactly what metals and other pollutants will

be contained in the discharge?

4. Why is no monitoring of mercury required for Outfalls 002, 006 and 007?

5. Is there text missing from the second footnote on pages 4 and 5 of the draft permit?

6. What is the anticipated daily volume of mine pumpage? Is the volume anticipated to increase as

the underground mined area expands?

7. What is the volume of pond 001? How was the sizing of pond 001 determined?

8. Can the agency please provide a map which shows the ponds described in the public notice and

which outfalls they each drain to?

9. Given the documented impairment of the Middle Fork Big Muddy River due to

sedimentation/siltation, why does the draft permit require monitoring ‘only as a result of a

discharge due to precipitation events which exceed a predetermined 24-hour duration or snow melt

total’? Shouldn’t monitoring be required whenever there is a discharge?

10. Can the agency please describe how it classifies the groundwater underlying the mine permit

boundary area and the mine shadow area?

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11. Can the agency address how it plans to handle the review and permitting of the areas described as

‘future refuse disposal areas’ on the Surface Mining Operations Map from OMM permit

application #382

12. Can the agency show on a map the areas of the site that are not planned to drain to a sedimentation

pond and describe the anticipated quality of runoff from these areas?

13. Can the agency please describe the plans for onsite sanitary wastewater treatment system to be

permitted by the Illinois Dept. of Public Health?

14. How has the Agency addressed the issue of flooding, especially for areas within the permit area

which lie in the 100 year floodzone?

15. Can the agency please describe the makeup of the materials to be disposed in the proposed slurry

pit on the site and the longterm plans for this pit?

16. Can the agency please describe the makeup of materials to be disposed in the coarse refuse area?

17. Can the agency please describe the quantity, use and disposal of any water that is planned to be

pumped from the Middle Fork Big Muddy River for the proposed mining operations?

Requests

We ask that maps showing all surface operations, existing and proposed drainage patterns, sedimentation

ponds, other impoundments, existing wetlands and streams, locations of surface and groundwater

monitoring points within both the proposed mine permit boundary and mine shadow area be displayed at

the public hearing.

We request the Agency and applicant provide, present and discuss additional information at the scheduled

public hearing in answer to the issues and questions raised above so residents of Franklin County can

make sure that the water quality of the Resource-rich Middle Fork Big Muddy Creek is being protected.

Thank you for this opportunity to raise our concerns with the Agency.

Sincerely,

Cynthia L. Skrukrud, Ph.D.

Clean Water Advocate

Phone: 815-675-2594

Email: cindy.skrukrud@sierraclub.org

Cc: Sugar Camp Energy LLC

Attachments

Middle Fork Big Muddy River Resource Rich Area Summary, information taken from a web based

reproduction of the printed volume of Inventory of Resource Rich Areas in Illinois: An Evaluation of

Ecological Resources, IDNR/EEA-96/08 3M/1996 found at:

http://www.inhs.uiuc.edu/cwe/rra/site26.html

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Sierra Club, Prairie Rivers Network on NPDES Permit No. IL0078565, Notice No. 4953c

page 6

Water Treatment as a Mitigation Method for Pit Lakes, Southwest Hydrology, Sept./Oct. 2002

Sulfate Removal from Injected Water in Oilfield Operations (found at

http://www.dow.com/liquidseps/prod/sp_oil.htm

Sulphate removal demonstration plant using BioteQ's proprietary Sulf-IX ion-exchange technology

(

www.bioteq.ca

)

Mining Operations Map-Surface from OMM Permit No. 382 application

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Via email to Kent.Mohr@Illinois.gov

October 22, 2008

Hearing Officer Kent Mohr #21

Illinois Environmental Protection Agency

1021 North Grand Avenue East

PO Box 19276

Springfield, IL 62794-9276

RE:

Post-Hearing Comments on NPDES Permit No. IL0078565,

Sugar Camp Energy, LLC, Sugar Camp Mine No. 1

Dear Mr. Mohr:

On behalf of the Illinois Chapter of the Sierra Club (SC), American Bottom Conservancy (ABC)

and the Prairie Rivers Network (PRN), we provide post-hearing comments and recommendations

on the proposed NPDES permit to be issued to Sugar Camp Energy for discharges of alkaline

mine drainage from the planned Sugar Camp Mine No. 1 to be located in Franklin County, 8.5

miles northeast of Benton, Illinois. These comments are follow-up to the issues and questions

we raised in our initial request-for-hearing letter of August 25, 2008 on the draft NPDES permit

and the oral and written comments submitted at the public hearing held on September 23, 2008.

Prairie Rivers Network

is a statewide river conservation organization that works to

protect Illinois’ rivers and streams for people, fish and wildlife. The Illinois Chapter of the

Sierra Club is committed to the responsible use of the earth’s ecosystem and resources and has a

strong membership base of over 25,000 throughout Illinois with over 100 members in Franklin

and Hamilton counties. American Bottom Conservancy is an Illinois not-for-profit organization

working to protect the people and resources of Southern Illinois. Many of our organizations’

members live and recreate in the Big Muddy River watershed. They depend on clean waters in

the Big Muddy River and its tributaries for recreational activities including fishing, canoeing,

birdwatching and other wildlife viewing.

Our organizations object to the issuance of draft NPDES permit IL0078565 as it is

currently written. Facility operations would result in alkaline mine drainage and stormwater

runoff to the Middle Fork of the Big Muddy River, Akin Creek and their tributaries. Our

objections are as follows:

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Objections

•

Issuance of the proposed NPDES permit will allow the development of surface facilities

for underground long wall mining, complete coal extraction and land subsidence whose

impacts have not been fully anticipated or addressed.

•

Because the composition of the discharge has not been studied adequately, the discharges

allowed by the permit may cause or contribute to a violation of state water quality

standards in violation of 40 CFR §§122.4, 122.44(d) and 35 Ill. Adm. Code 302.105(c)

(2) (B) (i), (ii), 304.105, 309.141(d) and 309.142.

•

Illinois Antidegradation Rule, 35 Ill. Adm. Code 302.105 (c)(B)(iii) has also not been

satisfactory addressed in that alternatives for minimizing increases in pollutant loadings

(sulfate, chloride, iron, manganese, etc) have not been fully explored.

Concerns

The Middle Fork of the Big Muddy River Resource Rich Area needs to be protected.

The Illinois Department of Natural Resources has listed the entire watershed as one of only thirty

Resource Rich Areas found in the state (Critical Trends Assessment Phase II, Inventory of

Resource Rich Areas in Illinois: An Evaluation of Ecological Resources, Prepared for the

Department of Natural Resources by Liane Sulloway, Mark Joslyn, and Patrick W. Brown,

Center for Wildlife Ecology, Illinois Natural History Survey, 1996). See Resource Rich

Summary.

The state-threatened marsh rice rat, a semi-aquatic species, is found in the

watershed

. When consulted on the potential impacts of activities associated with the Sugar

Camp mining’s impact on aquatic resources, the Illinois DNR’s Office of Realty and

Environmental Planning cited

“adverse effects on fish and wildlife” including “destruction of

any instream habitat structure utilized by fish and invertebrates…loss of streamside

vegetation…increased siltation and turbidity...direct mortality to any mussel resource that may

be present…increased turbidity and blanketing (of) desirable substrates”. They further object to

issuance of the permit stating “Because the proposed activities will result in the alteration of

lengthy segments of two tributaries to the Big Muddy River and will permanently alter flow

conditions, sediment deposition patterns, and stream habitat, OREP does not support the issuance

of a permit.”

Source specific pollutants must be considered in protection of downstream surface waters.

Because of our concerns about preventing pollution of downstream waters which support

sensitive aquatic life and serve as drinking water sources from toxic constituents found in coal

(such as the bioaccumulative selenium for which USEPA's Current National Recommended

Water Quality Criterion (chronic) is 5 ug/L; whereas Illinois' current water quality standard is 1

mg/L, 2000 times higher and heavy metals like cadmium, lead and zinc.), we believe it is

important that the levels of such pollutants in the runoff from Sugar Camp be anticipated and

minimized. We wish to place the following documents into the hearing record as they provide

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information on the levels of such toxics in Illinois coal, specifically for the Herrin No. 6 coal

seam planned to be mined at Sugar Camp mine.

J. R. Hatch, R. H. Affolter, Resource Assessment of the Springfield, Herrin, Danville, and Baker Coals in

the Illinois Basin. U.S. Geological Survey Professional Paper 1625–D, Version 1.0, 2002.

Available at http://pubs.usgs.gov/pp/p1625d/.

Trace Elements in Coal: Occurrence and Distribution. Illinois State Geological Survey. Circular 499

1977. 154p.

Available at http://www.isgs.uiuc.edu/maps-data-pub/publications/coalpubs/quality.shtml

Mineral Matter and Trace Elements in the Herrin and Springfield Coals, Illinois Basin Coal Field. C/G

1983-4 EPA-600/7-84-036. 1983. 162p.

Available at http://www.isgs.uiuc.edu/maps-data-pub/publications/coalpubs/quality.shtml

With this information available, as well as in-practice examples of washing, preparing, holding,

settling and storing raw, clean and refuse coal at other facilities using coal from the Herrin No. 6

coal seam, we expect a more thorough analysis on the appropriateness of proposed activities

such as drainage controls and liner specifications. We request the Agency to provide a more

developed evaluation of the constituents of the Herrin No. 6 coal seam and their potential for

leaching through 1) the lined portions of the permit area including the slurry impoundment,

course refuse pile and sedimentation basins, and 2) the unlined portions of the permit area

including raw and clean coal storage piles and sedimentation basins. Information and leachate

potential analyses from other facilities with similar operations and coal source specifications will

suffice.

Drinking water resources must be protected

Both surface and groundwater drinking water supplies need to be protected from pollution

emanating from the proposed coal mining activity. The groundwater underlying the permit area

is classified as Class I: Potable Resource Groundwater. As part of the ongoing process to propose

upgraded groundwater quality standards to the Illinois Pollution Control Board (Case R08-18),

Rick Cobb, Deputy Manager for IEPA’s Division of Public Water Supplies, testified

iii

, to the

following

“In summary, the conclusions and facts, provided above, clearly provide the supporting

foundation for Standards, as follows:

• The original Act and regulations establish that no person shall discharge contaminants

that threaten, cause or allow contamination;

• The intent of this multi-tiered standard is to prevent degradation of the resource up to

the numerical standard;

• The Board clearly established that current and potential sources of potable resource

groundwater were to be protected;

• Section 12(a) of the Act is integrated with Board regulations to prohibit polluting up to

the numerical standards in such regulations;

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• The Board's opinions in the matters, quoted above, indicate that resource groundwater

should be protected such that a private water supply would be able to obtain clean

drinking water through ordinary treatment processes;

• The Board's opinion on Illinois' Groundwater Protection Plan is "...that unreasonable

waste and degradation of the resources be prohibited;"

• Public Act 85-863 indicates that waste and degradation of the resources be prevented

and includes this as a factor that the Board must consider in adopting comprehensive

groundwater quality standard regulations;

• The Illinois Supreme Court has upheld the Board's view that any contamination that

prevents the State's water resources from being usable would constitute pollution, thus

allowing the Board to protect those resources from unnecessary diminishment; and

• The Board's final opinion and order on groundwater quality standards indicates that

the numerical standard is not meant to be a level to pollute up to and included specific

preventive standards prohibiting contamination above detectable levels that threaten a

preclusion of use.”

When asked at the public hearing if the Agency reviewed whether other locations existed for the

slurry impoundment where the underlying groundwater reserves were of lower quality, Bill

Buscher of the IEPA Groundwater Section replied that “No, we looked at where they had

proposed it.” (Hearing Transcript, p.51) From the above-referenced testimony of Mr. Cobb,

Manager of the Groundwater Section of the Division of Public Water Supplies for the Illinois

EPA, “Groundwater resources should be utilized for beneficial and legitimate purposes; waste

and degradation of the resource should be prevented; and the underground water resources

should be managed to allow for maximum benefit of the State. Groundwater used as drinking

water is one of the highest beneficial uses of the groundwater resource.” We feel it would be

prudent to investigate whether alternative locations with lower permeability and thus less risk of

contamination of potable groundwater, exist for the slurry impoundment.

Further, groundwater monitoring data from wells MW-1 through MW-8 from Attachment

III.2B.2

, show elevated levels of pollutants including: antimony, beryllium, manganese,

arsenic

, lead, and sulfate. A review of this data is summarized in the following table. It is not

clear how the proposed activities at the Sugar Camp Mine will not further contribute to the

degradation of this Class I resource and violate the nondegradation provisions of the Illinois

Groundwater Protection Act(415 ILCS 55/8) (from Ch. 111 1/2, par. 7458).

Constituent

Class I WQS (mg/L)

# of exceedances in

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Concerns for protection of potable water supplies were raised at the public hearing by:

•

Danny Richardson, resident adjacent to Sugar Camp Mine who stated: “My house is

above the mine that’s about to come underneath me. And I’ve got a pipe well right now.

I’m not hooked onto city water. And I’m concerned about what’s gonna happen, ‘cause

my pipe well’s 347 feet deep, and it’s soft water, and it’s the best water I’ve ever had,

and I hate to lose it. So I’m a little concerned about that. And the mine coming over, or

under my house, and I’ve looked at the vein. I’m smack dab in the middle of the vein.”

(Transcript at p. 22)

•

Steven Sniderwin who stated “I own the property right here. I boundary the mine on the

south side and on the west sides. Four of your sediment ponds are gonna’ drain into Akin

Creek. Akin Creek runs right through the middle of my 120-acre farm. I got 80 acres of

prime farmland there. And my question is, if we have something go haywire, is there a

possibility my land could get contaminated by something from this coal mine? Let me

add to that. If it comes a three-inch rain, let’s say in an hour and a half, two hours, this

80 acres all floods. So if there’s gonna’ be something from this mine in this creek, it’s

gonna’ be spread out over my farmland. And there’s also other tributaries from the coal

mine property that drains onto my property.” (Transcript at p. 66-67)

In fact, from review of materials submitted in support of the IDNR mining permit

, it appears

that

twelve (12) homesteads located within and adjacent to the shadow area of the Sugar Camp

Mine No.1, rely on well water exclusively. An additional eight (8) homesteads have wells which

may supply water for livestock, pets, domestic gardens or agricultural fields, though are also

connected to the Akin public water supply. Here we would like to note that the impacts of land

subsidence in the Middle Fork of the Big Muddy River watershed on the quality and quantity of

the groundwater supply need to be addressed before the mine is granted any permits. In

particular, we would like to draw attention to the fact that natural gas and domestic water supply

pipelines cross through the permit and shadow area and may be affected by the longwall mining.

In addition, we note that at least one hog confinement unit is located within or adjacent to the

shadow area for which we expect a lagoon(s) is used for holding of hog waste and would pose a

threat to surface and groundwater quality if caused to leak.

In our Recommendations section below, we discuss additional treatment measures, ground and

surface monitoring requirements, groundwater protection measures and dust minimization

measures needed to address these concerns.

Impact of seismic events on liners under coal slurry area and sedimentation basins have not

been adequately considered.

Seismologists have provided us with an estimated probability of 40% to 60% for the occurrence

of a 6.5R earthquake happening in the New Madrid Fault (fault system extends 150 miles

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southward from Cairo, Illinois through New Madrid and Caruthersville, Missouri, down through

Blytheville, Arkansas to Marked Tree, Arkansas) within the next 15 years. Their probability

projections for the 6.5R earthquake are 93 % to 98 % within the next 50 years. Estimates for

6.5R earthquakes based on the actual seismic event occurrence are one to occur every 55 to 85

years. Looking at the last event in that range (6.2R) in 1895 and adding 85 years to that date,

6.5R activity should have presented itself during 1980. In fact, when members of the Future Gen

alliance chose Mattoon and Tuscola as finalists for the proposed clean coal power plant over

sites in Southern Illinois, they cited the relative lack of seismic activity in central Illinois.

It is unclear how, if at all, the Agency has taken into consideration what environmental damage

and threats to water quality will result from projected seismic activity. What controls and

specifications have been considered in the 1) location of the coal slurry area and the

sedimentation basins, and 2) the design of the liners for the coal slurry impoundment and

sedimentation basins? Considering that Class I

resources are located beneath the Sugar Camp

mine

permit area, we are concerned that should such a catastrophe take place, the potable

drinking water supply for thousands of residents would be forever contaminated and unavailable

for use. Please provide an explanation as to what anticipated consequences have been

considered and prevented or mitigated by the proposed permit requirements.

Water quality impacts have not been adequately anticipated for land subsidence, flooding,

and underground mine pumpage

Land subsidence.

Impacts to streams due to planned subsidence include water backup in existing

stream channels and over-the-bank backup into low lying areas. This is sure to introduce more

contaminants directly into waterways.

Flooding. Map shows lots of acreage in the 100yr floodzone, flooding of a magnitude that now

occurs more frequently than every 100 years. The soil resources map submitted to IDNR by

Sugar Camp Energy, LLC, shows three kinds of soil extensively present that were described as

“frequently flooded” = 3072 Sharon silt loam, 3108 Bonnie silt loam, 3382 Belknap silt loam.

Flooding of these areas introduces potential for the inundation of ponds and washing away of

and movement of pollutants.

Mine pumpage. IEPA did not consider the additional loading of pollutants from pumping of the

underground mine acres (>10,000) We have seen both in writing and have been told by Agency

personnel that activities associated with underground mining operations are outside of the scope

of Subtitle D regulations and therefore not to be considered part of the NPDES permit process.

We respectfully disagree. Our review of Subtitle D regulations finds the following (emphasis in

italics):

401.403. Purpose

The purpose of this Subtitle D is to prevent pollution of water of Illinois caused by the

failure to plan proper environmental safeguards for the location, preparation, operation

and abandonment of mining activities, mining and mine refuse operations. A permit

system is established to control the multitude of contaminating point and non-point

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source discharges, visible and hidden, continuous and fluctuating, which are potentially

present in mining activities, mining and mine refuse operations.

402.101. Definitions

“mine discharge”:

any point source discharge, whether natural or manmade, from a mine

related facility. Such discharges include but are not limited to mechanical pumpages, pit

overflows, spillways, drainage ditches, seepage from mine or mine refuse areas, effluent

from processing and milling or mineral preparation plants.

“mining activities”: all activities on a facility which are directly in furtherance of

mining, including mining activities before, during and after mining. The term

includes, but is not limited to, the following:

Preparation of land for mining activities;

Construction of mine related facilities which could generate refuse, result

in a discharge or have the potential to cause water pollution;

Ownership or control of a mine related facility;

Ownership or control of a coal storage yard or transfer facility;

Generation or disposal of mine refuse;

Mining;

Opening a mine;

Production of a mine discharge or non-point source mine discharge;

Surface drainage control; and

Use of acid-producing mine refuse.

“mining”:

the surface or underground extraction or processing of natural deposits of coal,

clay, fluorspar, gravel, lead bearing ores, peat, sand, stone, zinc bearing ores or other

minerals by the use of any mechanical operation or process. The term also includes the

recovery or processing of the minerals from a mine refuse area.

405.100. Preamble

Part 405 governs the issuance of both state and NDPES permits and contains

substantive rules governing mining activities and construction of mine related

facilities.

405.104. Permit Applications

(b) An application for a state or NPDES permit shall include:

(15) The location of all mine discharge points and non-point source mine discharge

sources, method or type of sediment basins, erosion control devices and wastewater

treatment facilities for all mine related facilities including designation of collection points

for water discharged from all mechanical pumping or gravity flow systems used for

draining the mine and mine refuse area.

Permit determination does not reflect previous water pollution by Sugar Camp Energy

parent company and subsidiaries.

In light of prior violations of Williamson Energy, LLC, a subsidiary to Foresight Energy (also

owners of Sugar Camp Energy LLC), IL EPA should impose much more stringent permit terms

and conditions on Sugar Camp Energy, LLC.

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The Illinois Environmental Protection Act authorizes the IL EPA to consider a permit applicant’s

past acts of non-compliance in making permit determinations. The Act states:

“In making its determinations on permit applications under this section the

Agency may consider prior adjudications of noncompliance with this Act by the

applicant that involved a release of a contaminant into the environment. In

granting permits, the Agency may impose reasonable conditions specifically

related to the applicant’s past compliance history with this Act as necessary to

correct, detect, or prevent non-compliance.”

415 ILCS 5/39(a).

A list of violations of subsidiaries of Foresight Energy between July 1, 2003 and June 1, 2006 is

located in the Sugar Camp Mine application #382 to IDNR, on page 65. The list includes 31

violations in West Virginia and 4 violations in Illinois. All four of the Illinois Violations are

water related violations of the Pond Creek permit # 275. The nature of the first Notice of

Violation, number 28-1-05

vii

was “Disturbed area drainage was leaving the permit area without

passing

through a siltation structure”. The nature of the second Notice of Violation, number 37-

5-05

viii

was “Sedimentation Pond 001 is discharging prior to the department receiving a PE

Certified as-built inspection report”. The nature of the third Notice of Violation, number 37-6-

was “Failure to submit quarterly groundwater monitoring reports for third quarter 2005.”

And finally, the nature of the forth Notice of Violation, number 37-1-06

was “Conducting

mining activities on surface land not currently permitted”.

IEPA should require more stringent requirements in the Sugar Camp permit in order to prevent

such violations from occurring again. Proposals for additional monitoring and special conditions

to be imposed in the NPDES permit are included in our Recommendations section below.

Recommendations

Proposed Permit Must Minimize Increases in Pollutant Discharges

The Middle Fork of the Big Muddy River is impaired due to manganese, low dissolved oxygen

and sedimentation/siltation. Baseline Surface Water Sample Site Data

, sites SW-MF 1, 2 and 3

and SW-AC 1, 2 and 3, shows many existing water quality problems including total suspended

solids, total dissolved solids, pH, alkalinity vs. acidity, iron, and manganese. Further pollutant

loading to a waterbody already impaired violates Illinois anti-degradation policy which is

designed to protect water bodies from further degradation. Under Illinois law, which incorporates

the requirements of the Clean Water Act, increased discharges of a pollutant are not allowed into

a water body that is already violating standards as to that pollutant. 33 Ill. Adm. Code 304.105,

309.141(d), 40 CFR 122.44(d), In the Matter of the Cities of Annandale and Maple Lake

NPDES/SDS Permit Issuance for the Discharge of Treated Wastewater, 702 N.W.2d 768; (Mn.

Ct. App. 2005)

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1902 Fox Drive, Suite G

Champaign, Illinois 61820

217 / 344-2371

217 / 344-2381 fax

www.prairierivers.org

Page 9 of 13

Illinois Antidegradation Rule has not been satisfactorily addressed in the draft NPDES

permit in that alternatives for minimizing increases in pollutant loadings (sulfate, chloride, iron,

manganese, etc) have not been fully explored. 35 IAC Section 302.105(c) (2) states that in

making the antidegradation assessment, “the Agency must: (B) Assure the following: (iii) All

technically and economically reasonable measures to avoid or minimize the extent of the

proposed increase in pollutant loading have been incorporated into the proposed activity.”

Further, under 35 IAC Section 302.105(f) (1) “A permit application for any proposed increase in

pollutant loading that necessitates the issuance of a new, renewed, or modified NPDES permit or

a CWA Section 401 certification must include, to the extent necessary for the Agency to

determine that the permit application meets the requirements of this Section, the following

information : (D) Assessments of alternatives…may include: (i) additional treatment levels,

including no discharge alternatives; (ii) Discharge of waste to alternate locations, including

publicly –owned treatment works and streams with greater assimilative capacity; or (iii)

Manufacturing practices that incorporate pollution prevention techniques.” The applicant has not

considered, nor has the Agency required them to, alternatives to the use of sedimentation ponds

for treating runoff from raw and clean coal storage areas as well as other areas on the mine site,

including a coal refuse storage area. Alternatives to sedimentation exist that could facilitate the

avoidance or minimization of increased discharges of sulfates, chlorides, manganese, iron,

mercury, selenium, cadmium, other metals and suspended solids.

The Illinois Chapter of the Sierra Club, however, has committed resources to do complete

some of what state regulations define as the applicant and the Agency’s responsibility. The

attached memo from Carpenter Environmental Associates (CEA)

xii

provides information on

treatment

opportunities for preventing unnecessary new pollution as our Tier 2 antidegradation

policy requires. We request these alternatives be evaluated to “assure…all technically feasible

and economically reasonable pollutant loading [be] incorporated into the proposed activity.” 35

Ill. Adm. Code 302.105 (c) (2) (B) (iii). (Papers (without online access) referenced in the CEA

Separate

treatment basins from stormwater basins

The draft permit describes eight outfalls, all of which are from sedimentation ponds. As

described in the antidegradation assessment, “The sedimentation ponds will treat runoff from

refuse and both raw and clean coal storage areas as well as other areas on the mine site. Later in

the assessment, “Sedimentation ponds will be constructed using best management practices and

are the only option available to mines for controlling stormwater runoff…Other alternatives do

not exist for treatment or control of runoff from mine areas.” We are unclear as to which

purpose the basins will be designed: treatment or for controlling stormwater. We understand

from the engineering perspective that a basin cannot be designed to serve in both capacities.

Please see the following excerpt from Unit 9 of the Soil Erosion and Sedimentation Control

Training Manual, available from the Michigan Department of Environmental Quality, Water

Bureau at http://www.deq.state.mi.us/documents/deq-land-sesc-trainingmanual.pdf

THE DIFFERENCE BETWEEN STORM WATER BASINS

AND SEDIMENTATION BASINS

Electronic Filing - Received, Clerk's Office, January 5, 2009

* * * * * PCB 2009-046 * * * * *

1902 Fox Drive, Suite G

Champaign, Illinois 61820

217 / 344-2371

217 / 344-2381 fax

www.prairierivers.org

Page 10 of 13

It is important to draw a distinction between storm water basins and sedimentation

basins. Storm water basins are permanent structures designed to replace the

natural water storage of a site and provide some water quality improvement after

the site is completed. Historically, the primary purpose of storm water basins was

to reduce on-site and downstream flooding by controlling the rate of storm water

discharge. Secondary benefits include water quality improvement such as

sediment removal, aesthetics, and recreational opportunities. Many of these

secondary benefits are now being incorporated into the design of storm water

basins. However, it is important to remember that most storm water basins are not

designed to remove sediment and they generally do not work well for that

purpose.

Sedimentation basins are used during construction and are specifically designed to

control off-site migration of sediment. The primary purpose of basins is to trap

sediment and other coarse material. Secondary benefits can include controlling

runoff and preserving the capacity of downstream reservoirs, ditches, diversions,

waterways, and streams. Once construction is completed, sedimentation basins are

often filled to match the final site grade or converted to function as storm water

basins.

It is imperative that the type of basin to be constructed is identified in the project-

planning phase, i.e. sedimentation or storm water. There are distinct design

criteria to achieve these different functions. If the intention is for a storm water

basin to serve as a temporary sedimentation basin during construction, then the

design criteria to maximize sediment settling must be incorporated in the initial

design. Some storm water basins control higher design flows and allow smaller

design flows to pass through. To be used as sedimentation basins, they would

need to control the smaller flows as well. This unit describes sedimentation basin

review criteria; other manuals should be consulted for the review and design of

storm water basins.

We request the basins at the Sugar Camp site to be constructed according to the distinct design

criteria required to achieve the desired function, either treatment to improve water quality

through settling or control of stormwater runoff. In addition, all stormwater runoff from this

industrial site should be controlled. We are concerned that Special Condition No. 10 indicates

that the release of some stormwater from the site will not be controlled.

Best Management Practices to prevent coal spillage and control dust should be required of

Sugar Camp Mine No. 1

From an article in

Power Engineering International, May 1999

, we see that there are several

ways

in which fugitive dust can be controlled. Considering that fugitive dust control is under the

jurisdiction of the Illinois EPA (as well as the Illinois Department of Natural Resources), we

request that these opportunities to control and reduce fugitive dust at the Sugar Camp mining site

Electronic Filing - Received, Clerk's Office, January 5, 2009

* * * * * PCB 2009-046 * * * * *

1902 Fox Drive, Suite G

Champaign, Illinois 61820

217 / 344-2371

217 / 344-2381 fax

www.prairierivers.org

Page 11 of 13

be evaluated and considered for implementation in order to reduce the amount of pollutants

running off and settling into waters of the state.

We are aware of several coal mining facilities in the United States that employ measures and

mechanisms for controlling fugitive dust including the use of coal storage silos at Cordero Rojo

Coal Mine, WY (Coal storage facilities consists of 65,400 T-capacity in six silos

Gibson

County Coal in Princeton, IN (5,000 Ton Raw Coal Silo and 10,000 Ton Clean Coal Silo) and at

the Cline Mining Corporation-owned New Elk Coal Company in Colorado. The North Antelope

Rochelle Mine, WY uses both plastic-enclosed conveyors and coal storage silos.

Best Management Practices discussed at the public hearing need to be incorporated into

the NPDES permit

A number of best management practices (BMP) and ground and surface water protection

measures are not reflected in the conditions of the draft NPDES permit. We request that the

following items be incorporated into the permit:

•

We learned at the Deer Run hearing that five of the seven proposed sedimentation ponds

for the Deer Run site are to be lined. According to Larry Crislip, “Sediment ponds that

are receiving runoff from refuse area and coal stockpiles, they are also receiving

compacted clay liners.” (Transcript at p. 84, Deer Run hearing) and “As I recall, the

application indicates that any ponds receiving refuse or coal runoff will be lined, so

basically, if you looked at our permit and take a look at the outfalls that get mercury

monitoring, those likely are the ones that will be lined.” (Transcript at p. 194). Following

and applying this logic to the design and operations of the Sugar Camp Mine No. 1, we

request that sedimentation basins including 001, 003 and 004 also be required in the

NPDES permit to use compacted clay liners.

We request that Special Condition No. 7 be revised to describe the clay liners planned for

sedimentation basins 001, 003, and 004 as well as the specifications for construction and

testing of the compacted clay liners.

In addition, we ask that the Agency evaluate the potential need for liners in the four other

planned basins (or any additional basins installed as result of our recommendation above

that separate basins for treatment and stormwater runoff management be incorporated

into the site design) based on the potential for coal contaminants or other contaminants

such as oil or grease to enter unlined ponds due to surface runoff.

•

The Antidegradation Assessment states “"Management practices for minimizing sulfate

formation and chloride leaching are available and will be required as part of an ongoing

Illinois EPA effort to reduce pollutant loading from coal mines." We request that the

described BMPs to be utilized at the mine site be incorporated in the NPDES permit as

special conditions.

Electronic Filing - Received, Clerk's Office, January 5, 2009

* * * * * PCB 2009-046 * * * * *

1902 Fox Drive, Suite G

Champaign, Illinois 61820

217 / 344-2371

217 / 344-2381 fax

www.prairierivers.org

Page 12 of 13

•

The soil stockpile northeast of the Freshwater Lake, Stage 1, does not appear to have any

drainage control. Title 35 IAC Section 406.108 covering non-point source mine

discharges states “Surface drainage from the affected land of a coal mine, including

disturbed areas which have been graded, seeded or planted, shall be passed through a

sedimentation pond or a series of sedimentation ponds before leaving the facility.” We

request that the permit be modified to ensure compliance with Section 406.108.

•

We request that the constituents to be monitored quarterly per IDNR/OMM requirements

in monitoring wells Nos. GW-1 through GW-12 be listed in the permit.

* * * * *

We appreciate your consideration of these comments in addition to previously submitted written

comments and oral testimony.

Sincerely,

Traci L. Barkley

Water Resources Scientist

CC:

Sugar Camp Energy LLC

Dr. Cynthia Skrukrud, Illinois Chapter of the Sierra Club

Kathy Andria, American Bottoms Conservancy

Critical Trends Assessment Phase II, Inventory of Resource Rich Areas in Illinois: An Evaluation of Ecological

Resources. Available at http://www.inhs.uiuc.edu/cwe/rra/rra.html.

Letter from IDNROREP to IDNROMM re impact of dredging

iii

Pre-filed Testimony of Richard P. Cobb from R08-18: Proposed Amendments to Groundwater Quality Standards,

35 IL. Adm. Code 620

Groundwater Monitoring Well Data, Sugar Camp Mine

Parcels and Structures within and adjacent to Shadow Area

Letter from IEPA to IDNR indicating Class I Groundwater at Sugar Camp Mine

vii

Williamson violations 28-5-01

viii

Williamson violations 37-5-05

Williamson violations 37-6-05

Williamson violations 37-1-06

Baseline Surface Water Sample Site Data

Electronic Filing - Received, Clerk's Office, January 5, 2009

* * * * * PCB 2009-046 * * * * *

1902 Fox Drive, Suite G

Champaign, Illinois 61820

217 / 344-2371

217 / 344-2381 fax

www.prairierivers.org

Page 13 of 13

xii

CEA No. 08047 Treatment Technologies for Coal Mine Runoff

xiii

Acid Mine Drainage - Innovative Treatment Technologies

xiv

DOE & NETL - The Passive Treatment of Coal Mine Drainage

Applications of Passive Treatment to Trace Metals Recovery

xvi

Rapid Manganese Removal from Mine Waters Using an Aerated Packed-Bed Bioreactor

xvii

Treatment Technology Summary for Critical Pollutants of Concern in Power Plant Wastewaters

xviii

VSEP Filtration of Acid Mine Drainage

xix

VSEP Treatment of RO Reject from Brackish Well Water

Fugitive dust control

Electronic Filing - Received, Clerk's Office, January 5, 2009

* * * * * PCB 2009-046 * * * * *

Hearing Officer Kent Mohr #21

Illinois Environmental Protection Agency

1021 N. Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

Kent.Mohr@illinois.gov

Re: comments on the NPDES permit No. IL0078565, Notice No. 4953c for the

proposed Sugar Camp Mine No. 1 for Sugar Camp Energy, LLC

I will be sending these comments by Email before midnight today, October 23,

2008, with a hard copy being sent through the U.S. Postal Service.

Dear Mr. Mohr:

As chair of Shawnee Group Sierra Club, and as a resident of southern Illinois, I

am concerned about the effects of the proposed longwall mine on the health and

welfare of our members and other citizens in Franklin and Hamilton Counties,

and also on the environment in the watershed of the Middlefork of the Big

Muddy River. In addition, I live in the watershed of the Big Muddy River,

downstream from the proposed discharges of Sugar Camp Mine. I even

occasionally canoe on the Big Muddy River, and take hikes along the Big

Muddy River, such as in the Little Grand Canyon area in Shawnee National

Forest. Shawnee Group Sierra Club has held hikes and canoe outings on the Big

Muddy River, and will likely continue to do so in the future.

I wish to go on record as opposing this water discharge permit as currently

proposed for the reasons given below.

Anti-degradation of Surface Waters

This permit as it is proposed is inadequate for the purpose of protecting the

water quality of Akin Creek and the Middlefork of the Big Muddy River. The

permit proposes to use only settling ponds and moats - the most basic means of

pollution control to keep heavy metals, sulfates, chlorides and sediments from

being washed into public waters of the state.

Electronic Filing - Received, Clerk's Office, January 5, 2009

* * * * * PCB 2009-046 * * * * *

The sedimentation ponds are especially inadequate for reducing discharge of

dissolved pollutants whenever the ponds may overflow due to a heavy rain

event. To completely satisfy anti-degradation policies, it seems the IEPA is

really required to evaluate the best available technology in order to reduce the

discharge of dissolved pollutants into our waters. A variety of methods has been

suggested, including: filtration, bioremediation, ion exchange, reverse osmosis,

coagulation to precipitates, and the Cost Effective Sulfate Removal process.

IEPA should require additional method(s) to add another level of protection

from mine refuse and sedimentation pond areas.

The concern of IEPA should be elevated because global warming is predicted to

continue to cause extremes of weather events, such as droughts and heavy

rainfall. It is no longer uncommon to have eight inches of rainfall within 2-3

days, thus increasing the episodes of discharge of polluted water from settling

ponds and refuse piles. Damage to dams and moats would increase the need for

repairs, and also a need to have more levels of protection to contain pollutants.

Another reason to raise your level of concern is the recent seismic activity near

the proposed mine. This year, there was an earthquake of 5.2 magnitude, with

several aftershocks, caused by a fault by the Wabash River, near Olney, Illinois.

Earthquakes could easily cause a fracture in the clay lining of a sediment pond.

This area is also affected by the New Madrid Fault, which has caused

earthquakes of 3 to 5 magnitude or more within the last twenty years.

Geologists have found that earthquakes not only can cause mine collapse, but

also that mine collapse can cause earthquakes. So, the proposed mine activity

could even increase the incidence of earthquakes in southern Illinois.

Non-degradation of groundwater

IEPA should be giving better protection for sources of current and future

drinking water, including groundwater. Even if there presently are not many

private or public wells in the area of the proposed mine, water sources should be

protected for future use and future generations. During times of drought, more

people may be forced to turn to groundwater for household use, especially

considering the very real threat of climate instability that is sure to increase with

the increase in global warming.

In the case of this proposed permit, a major concern is that the slurry

impoundment is proposed to be located over a high quality groundwater area.

The groundwater under the permit area has been identified as potable resource

groundwater that is Class I Groundwater.

Electronic Filing - Received, Clerk's Office, January 5, 2009

* * * * * PCB 2009-046 * * * * *

The threat of earthquakes from the New Madrid and Wabash area faults also

increases our level of concern for the protection of the groundwater.

Considering that small amounts of some pollutants found in coal mining (such

as mercury) can contaminate large bodies of water, extra precautions should be

taken to protect our groundwater resources. It is our understanding that the

IEPA Division of Public Water Supplies has proposed upgrading groundwater

quality standards. Thus, even an area that IEPA presently considers

"impermeable" may develop cracks caused by seismic activity in this area,

which is close to two major faults. In addition, underground aquifers have not

been adequately mapped in Illinois, and connections of aquifers to other

aquifers, plus connections between groundwater and surface waters are not

completely known. Thus, slurry ponds and sedimentation ponds are really not

failsafe in this area- even if they have a thick clay lining.

Another consideration which raises concern is the change in hydrology that

would be caused by the longwall mining and the resulting subsidence. The

proposed permit is not adequately considering those impacts. In fact, the change

in hydrology brought on by this proposed mining operation has not really been

examined. Changes in hydrology could affect the level of pollution discharges.

Monitoring and Enforcement Concerns

Consultants for Sugar Camp Energy have stated that manganese concentrations

could reach almost to 4.0mg/L. However, the water quality standard is 1.0mg/L.

How will IEPA ensure that the mining company will in fact somehow control

the manganese concentrations in runoff from the coal mine? How will IEPA be

able to make sure these high concentrations of manganese do not in fact

discharge into state waters? Will there be monitoring wells that record

concentrations of manganese? How will any measurements by the mining

company be checked for accuracy? Will IEPA make periodic checks on

manganese concentrations?

I am especially concerned about enforcement, because I have personally

witnessed inadequate management practices at Pond Creek Mine, which is

owned and managed by the same people who own Sugar Camp Energy. A berm

around the Pond Creek Mine operations was obviously very eroded by

overtopping of water runoff. It was obvious that the mining company was not

planting vegetation or placing other means of erosion control on the berm

surrounding the moat. In addition, the company was just beginning to put

vegetation on their huge refuse pile, thus exposing the coal refuse to rain and

wind erosion.

Electronic Filing - Received, Clerk's Office, January 5, 2009

* * * * * PCB 2009-046 * * * * *

I am also concerned about proposed "future refuse areas." At the hearing in

September, we were told that since the future refuse areas on the map were

located on two tributaries of Akin Creek, they would be eliminated. We are glad

to hear that, but that then raises the question of the new location of the future

refuse areas. Please clarify the location(s) on the map.

On the grounds of enforcement of the Illinois anti-degradation regulations, plus

the protection of surface and groundwater resources of the Middlefork of the Big

Muddy River, and as a user of waters in the Big Muddy River downstream of

the mining area, I strongly urge you to deny the issuance of the proposed permit.

Sincerely,

Barbara McKasson, Chair

Shawnee Group Sierra Club

Electronic Filing - Received, Clerk's Office, January 5, 2009

* * * * * PCB 2009-046 * * * * *

Attachment 1

MIDDLE FORK OF THE BIG MUDDY

The marsh rice rat is semiaquatic,

inhabiting marshes, swamps, and

shores of lakes and ponds. Because

of the loss of many natural

wetlands, rice rats make use of

available areas of standing water

with emergent, herbaceous

vegetation found in areas such as

roadside ditches, farm ponds, and

railroad rights-of-way in Illinois.

Despite its extensive range in the

U.S., the rice rat is uncommon in

Illinois (it is a state-threatened

species) and limited to the southern

part of the state.

Map of Site

Land Cover Map of Site

SIZE:

114,908 acres; 180 square miles

LOCATION:

Southern Illinois; Franklin, Hamilton, and Jefferson counties

The Middle Fork of the Big Muddy River RRA is a small, single watershed site. The

significant natural features are the large tracts of forest located along the river.

LANDCOVER :

Approximately half the landcover in this RRA is cropland. It ranks fifth

in percentage of grassland, which accounts for 27% of the land area. Nineteen percent of

the area is wooded. This RRA ranks eighth for percentage of bottomland woods and 15th

for percentage of nonforested wetlands.

Electronic Filing - Received, Clerk's Office, January 5, 2009

* * * * * PCB 2009-046 * * * * *

NATURAL AREAS :

The Freeman Coal Company Forest is the only Natural Area.

BIOLOGICALLY SIGNIFICANT STREAMS :

There are no BSS streams.

HERITAGE SITES :

Two Heritage sites, a floodplain forest and one animal species, are

located in the RRA.

STATE AND FEDERAL LAND :

A 22-acre site, Ten Mile Creek Fish and Wildlife

Area, is the only state or federal land.

NATURE PRESERVES :

No Nature Preserves are located in the site.

NATURAL DIVISIONS :

The Middle Fork of the Big Muddy River RRA is entirely

within the Southern Till Plain Division.

SUMMARY OF SITE CHARACTERISTICS: SIZE, BIOLOGIC RESOURCES,

Biologically Significant Stream Mileage

Natural Heritage Sites

State Land

State Parks

State Conservation Areas

State Forests

State Fish & Wildlife Areas

Electronic Filing - Received, Clerk's Office, January 5, 2009

* * * * * PCB 2009-046 * * * * *

ILLINOIS NATURAL AREAS INVENTORY SITES

Acres

Freeman Coal Company Forest

388

BIOLOGICALLY SIGNIFICANT STREAMS

None

NATURAL HERITAGE