ILLINOIS POLLUTION CONTROL BOARD
April 21,
1994
MARVIN DANRON,
)
Petitioner,
)
v
)
PCB 93—215
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY
AND TOMAHAWK
GROUP,
INC.,
)
)
Respondents.
MR. MARVIN DAMRON APPEARED PRO SE;
MR. RICHARD C. WARRINGTON APPEARED ON BEHALF OF ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY.
OPINION
AND
ORDER OF THE BOARD
(by G.
P. Girard):
On November 10,
1993, Marvin Dainron filed
a petition for
review of a national pollutant discharge elimination system
(NPDES) permit
(No. IL0069949)
granted by the Illinois
Environmental Protection Agency (Agency) to Tomahawk Group,
Inc.
(Tomahawk)
(collectively “respondents”).
On December 2,
1993,
petitioner filed an amended petition for review.
Hearing
was
held before hearing officer Deborah Frank on February 8,
1994,
in
Kewanee, Henry County, Illinois.
The petitioner’s brief was
received by the Board on March 17,
1994, and the Agency’s brief
was filed on March 21,
1994.
Tomahawk did not file a brief.
The
Agency also
filed
a motion to supplement the record on March 21,
1994.
The Board grants that motion.
The Board’s responsibility in this matter arises from
Section 40 of the Environmental Protection Act
(Act).
415
ILCS
5/40
(1992).)
The Board is charged, by the Act, with a broad
range of adjudicatory duties.
Among these
is adjudication of
contested decisions made pursuant to the permit process.
More
generally,
the Board’s functions are based on the series of
checks and balances integral to Illinois’ environmental system:
the Board has responsibility for rulemaking and principal
adjudicatory functions, while the Agency is responsible for
carrying out the principal administrative duties,
inspections,
and permitting.
Based on a review of the record, the Board affirms the
Agency’s issuance of the NPDES permit No. 1L0069949 to Tomahawk.
BACKGROUND
This
is a third-party appeal of the issuance by the Agency
of a NPDES permit to Tomahawk Group.
Tomahawk applied for a
permit from the Illinois Department of Mines and Minerals (IDMM)
2
to remove coal from Tomahawk’s property in Henry County,
Illinois.
(Ag. Br.
at
1;
R. at
2.)1
The Agency reviewed the
IDMN application, viewed the site and commented on the
application, pursuant to an interagency agreement.
(Ag.
Br.
at
i.; R. at 27.)
On September 2,
1992,
IDNM issued a permit to
Tomahawk to remove coal from its property.
(R.
at 67.)
In
August 1992, while the IDMM permit application was
pending, Tomahawk filed an application for a NPDES permit for
discharges
from
the
surface
mine
subject to the IDMM permit.
(R.
at 35—66.)
The Agency caused public notice of the permit
application to be published and posted.
(R. at 123-125.)
Upon
receipt of a request for
a public hearing
(R. at 135-136),. the
Agency held a hearing on August 2,
1993.
(R. at 154-344.)
On
October 15,
1993, the Agency issued a final NPDES permit No.
1L0069949 to Tomahawk.
(R. at 593—600.)
On November 10,
1993,
Mr. Damron filed this permit appeal.
Mr. Damron owns property within one mile of the site of the
Tomahawk surface coal mine.
Mr. Damron participated in the
public hearing held August
2,
1993.
(Pet.
at 1;
R.
at
185.)
REGULATORY
FRAMEWORK
Board
Review
of NPDES Permits
Section
39(b)
of the Act allows the Agency to issue NPDES
permits
“for
the
discharge
of contaminants from point sources
into
navigable
waters
.
.
.
or into any well”.
The Agency may
include
effluent
limitations
and
other
requirements
established
under
the
Act
or
Board
regulations.
(Section 39(b) of the Act.)
Section
40
of
the
Act
allows for Board review of an Agency
decision
regarding
a permit.
The Board’s rules at 35
Ill.
Adin.
Code
309.105
set
forth
the
conditions
under which an NPDES permit
may not be issued.
Those provisions are:
a)
The permit would authorize the discharge of
a
radiological, chemical or biological warfare agent
or high—level radioactive waste;
b)
The discharge would,
in the judgement of the
Secretary of the
Army
acting through the Chief of
Engineers,
result in the substantial impairment of
anchorage and navigation;
1The Agency’s Brief will be cited as “Ag.
Br. at
_“;
the
Agency Record will be cited as “R.
at
_“;
the Petition will be
cited as “Pet.
at
“;
Petitioners Brief will be cited as “Pet.
Br. at
“;
the Board Hearing Transcript will be cited as “Tr. at
3
c)
The proposed permit is objected to in writing by
the Administrator of the U.S. Environmental
Protection
Agency
pursuant
to
any right to object
given to the Administrator under Section 402(d)
of
the
CWA;
d)
The
permit
would
authorize
a
discharge
from
a
point
source
which
is
in conflict with a plan
approved
under
Section
208(b)
of the CWA;
or
e)
The applicant has not provided proof to the Agency
that
he
will
meet
any schedule of compliance which
may
be
established,
in
accordance
with the Act and
regulations,
as
a
condition
of
his
permit.
Standinc~ in
Third
Party
Appeals
The
Board’s
rules
allow
for
third-party
appeals in an NPDES
permit
proceeding.
~
35
Ill.
Adm.
Code
105.102.)
Of
particular
relevance
in
this case are subsections
(b) (3) and
(b)(8).
Specifically, Section 105.102(b) (3)
allows that “any
person other than the applicant who has been a party to or a
participant at an Agency hearing with respect to the issuance or
denial of an NPDES permit by the Agency
.
.
.
may contest the
final decision of the Agency.”
The Board has consistently
interpreted the provisions of Section 105.102(b) (3) to allow
third-party NPDES permit appeals as proper under the Board’s
rules and the Act.
(See,
Village of Sauget and Monsanto v.
IEPA,
71 PCB 38, PCB 86—57 and 86—62,
(July 11,
1986); Village of
Gilberts v. Holiday Park Corporation and the IEPA,
65 PCB 283,
PCB 85—96 (August 15,
1985); and Citizens Utilities Company of
Illinois and Village of Plainfjeld v
IEPA and Village of
Bolingbrook~, PCB 93-101,
—
PCB
—
(June 17,
1993), Appeal
pending, No. 3—93—0736.(Third District).)
Mr.
Dainron has demonstrated that he participated at the
hearing held by the Agency on the NPDES permit application.
Therefore, pursuant to Section 105. 102 (b) (3), Mr. Damron has
standing to appeal the Agency’s decision.
Standard and Scope of Review
When reviewing an Agency determination regarding the
issuance or non—issuance of an NPDES permit, Section
105.102(b) (8) provides:
The hearings before the Board shall extend to
all questions of law and fact presented by
the entire record.
*
*
*
If any party
desires to introduce evidence before the
Board with respect to any disputed issue of
fact, the Board shall conduct a de nova
4
hearing
and
receive
evidence
with
respect
to
such
issue
of fact.
Section
105.102(b)
(8)
has
been
interpreted
to
allow
review
at
hearing
of
evidence
beyond
the
scope
of the Agency record
providing
it
was
relevant.
(~,
City of East Moline
v.
PCB,
188
Ill.
App.3d
349,
544
N.E.2d
82
(3d
Dist.
1989)
and
Citizens
Utilities
Co.
V.
PCB,
193
111.
App.3d
93,
549
N.E.2d
920
(3d
Dist.
1990).)
Thus,
the
Act
and
the
Board’s
rules
allow third-
party
appeals
and
de
novo
review
of the record in reviewing an
Agency
determination
regarding
an
NPDES permit.
Although
the
scope
of review
is unique in an NPDES permit
proceeding,
the
standard
of review remains the same.
The
petitioner
bears
the
burden
of proof in a permit appeal.
When
the
applicant
is
the
petitioner,
the
petitioner
must
establish
that
the
application,
as submitted to the Agency,
would not
violate
the
Act
or
the
Board’s regulations
if
the
requested
permit
were
issued.
This
standard
of review was enunciated in
Browning-Ferris
Industries
of
Illinois,
Inc.
v.
Pollution
Control
Board,
179
Ill.
App.
3d
598,
534 N.E.
2d 616,
(Second District
1989)
and
reiterated
in
John
Sexton
Contractors
Company v.
Illinois
(Sexton),
PCB
88—139,
February 23,
1989.
In this case
the
petitioner,
a
third-party,
is challenging the issuance of the
permit
by
the
Agency.
Therefore,
the
petitioner,
in
this
case,
must
show
that
the
permit,
as
issued
by the Agency, would violate
the
Act
or the Board’s regulations.
DISCUSSION
Mr. Damron challenges the issuance of the NPDES permit
alleging that:
1)
Tomahawk group failed to submit an
application which satisfied state
requirements;
2)
The Agency failed to exercise its authority
and fulfill its obligations sufficiently to
prompt
Tomahawk
to meet those requirements or
withdraw its application; and
3)
Operation of the proposed Tomahawk mine on
the
terms
established
under
this
permit
would
result in violation of Section 12(a)
and
(d)
of the Act.
(Pet.
Br. at 1.)
In presenting his arguments,
Mr. Damron pointed to alleged
unacceptable application responses to support his challenges
under points #1 and #2 above.
Several additional insufficiencies
were alleged by Mr. Damron in support of his assertion that
5
Section 12(a)
and
(d) of the Act would be violated by the
issuance of the permit.
Section 12(a) and
(d) prohibit water
pollution
in
Illinois.
Alleged
Unacceptable
At~lication
ResPonses
Mr.
Damron
argues
that
the
permit application “contained
unacceptable
responses
to
a
number
of questions”.
(Pet.
Br. at
2.)
Mr.
Damron
alleges
that
the
responses
were either
“a blank
space
or
inappropriate
or
unsupported
or
contradictory
or
inaccurate”.
(Pet.
Br. at 2.)
Mr.
Damron
supports
his
allegations
by
citing
to
the
record
at several points.
(R.
at
35—36;
41;
45;
46;
49;
50;
and
51.)
Mr.
Damron
argues
that
the
application
questions
regarding
abandoned
mines
in
the
area
and
the
number
of wells in the area
were
“incorrect”.
Mr.
Damron
points
to
Board
hearing
testimony
which
established
that
an
abandoned
drift
mine exists within a
short
distance
of
the
proposed
Tomahawk
minepit
(Tr.
at
182-184;
Pet.
Br.
at
6-7)
and
testimony
which
establishes
that
Tomahawk
failed
to
list
22
wells which exist within one mile of the
proposed
site.
(Tr.
at
27;
Pet. Br. at 7.)
The
Agency
maintains
that the permit application and the
hearing
conducted
by
the
Agency
prior
to
the
issuance
of
the
permit
provided
sufficient
information
for
the
Agency to issue an
NPDES
permit.
(Ag.
Br.
at
7.)
The
Agency
states
that
the
application
forms
contain
questions
to
identify
many
items
of
information
that
may
be
useful
in
reviewing
any
mining
applications.
(Ag.
Br. at
7.)
Any
deficiencies
in
information
were
made
up
at
hearing
and
with information provided before the
issuance of the final permit according to the Agency.
(Ag.
Br.
at
7.)
Thus,
the
Agency
argues
that
Mr. Damron’s concerns
regarding
the
sufficiency
of answers to the questions about wells
and
abandoned
mines
is not “relevant to establishing discharge
limitations
for
this
application”.
(Ag.
Br.
at 7.)
The
Agency
also
argues that the record establishes that the
flow
of
shallow
groundwater
in the area indicates that the
groundwater
flows
into
the
stream,
and
not
from
the
stream
into
the
ground.
(Ag.
Br. at 5-6.)
Thus,
the
discharge
into
the
stream
is
unlikely
to
contaminate
the
groundwater.
(Id.)
The
Agency
further
asserts
that
the
abandoned
mine in the area
is
approximately
200
feet away from the proposed excavation and no
evidence
was
submitted
which
would
indicate
that
contamination
would
approach
or
enter
the
abandoned
mine shaft.
(Id.)
After
reviewing
the
application
submitted
to
the
Agency
by
Tomahawk
and
reviewing
the
record of hearing, the Board finds
that
the
failure to respond to all the questions on the permit
application
did
not
require
withdrawal
of the application.
It
is
clear that Tomahawk made the pertinent information available at
6
the
public
hearing.
(R.
at
403
and
260.)
Further,
the
NPDES
permit
establishes
limitations
on
effluent
discharges,
and
the
direction
of
the
shallow
groundwater
flow
in
the
area
make
it
clear
that
the
additional
wells
are
not
in
danger
of
contamination.
Nor
does
the
existence
of
the
abandoned
mine
indicate
that
contamination
of
groundwater
could
occur.
Therefore,
the
Board
finds
that
the
Agency
was
supplied
sufficient
information
to
determine
whether
or
not
a
violation
of
the
Board’s
rules
or
the
Act
would
occur
if
the
permit
were
issued.
Additional
Alle~ed Insufficiencies
in
Application
Mr.
Damron
has
challenged
the
permit
issuance
by
questioning
the
adequacy
of
the
settling
pond,
the
possibility
of
acidic
discharge
and
the
placement
of
overburden
piles.
First,
Mr.
Damron
argues
that
the
settling
pond
is
inadequate.
(Pet.
Br.
at
3..)
The
inadequacy
arises,
according
to
Mr.
Damron,
because
Tomahawk’s
estimate
of
ninety
thousand
gallons
of
water
likely
to
enter
the
proposed
exploratory
mine
pit
in
a
day
is
“one-third
of
the
minimum”
estimated
by
IDMM.
(Pet.
Br.
at
4.)
Petitioner
argues
that
IDMM’s
figures
were
arrived
at
using
a
“professionally
approved
method,
but
Tomahawk’s
figure
comes
without
evidence
of
derivation”.
(Id.)
The
petitioner
further
argues
that
“accepting
IDNN’s
figures”
the
daily
pit-pumpage
would
overwhelm
the
holding
pond
and
negate
the
pond’s
ability
to
serve
as
a
settling
basin,
thereby,
resulting
in
discharge
of
contaminated
water
into
the
receiving
stream.
(Pet.
Br
at
3-4.)
Mr.
Dainron
further
asserts
that
there
are
no
provisions
against
an
acidic
discharge
from
the
pit
except
“testing
and
reporting”
requirements.
(Pet.
Br.
at
5.)
Mr.
Damron
contends
that
the
process
of
testing
and
reporting
would
not
be
complete
until
after
exploratory
mining
was
completed;
thus,
he
alleged
that
the
permit
does
not
protect
the
receiving
stream.
(Pet.
Br.
at
5.)
Mr.
Damron
next
argues
that
the
placement
of
overburden
piles
and
surface
runoff
are
potential
problems
as
well.
(Pet.
Br.
at
5—6.)
Mr.
Damron
maintains
that
the
overburden
piles
are
shown
on
maps
in
and
near
the
pond
which
would
reduce
the
capacity
of
the
pond
for
a
settling
basin.
(Pet.
Br.
at
5.)
The
overburden
would
further
contaminate
the
pond
and
“this
added
pollution
would
reach
the
receiving
stream
when
the
minepit
was
pumped
at
a
rate
sufficient
to
make
extraction
of
coal
practicable”.
(Pet.
Br.
at
5—6.)
According
to
Mr.
Damron,
the
surface
runoff
from
storage
piles
and
other
parts
of
the
ininesite
“is
to
be
directed
to
the
minepit,
thence
to
be
pumped
into
the
settling
pond”
and
that
this
will
lead
to
contaminated
water
discharges
into
the
receiving
stream.
(Pet.
Br.
at
6.)
The
Agency
states
that
Tomahawk
has
provided
analyses
of
the
7
well
water
currently
present
at
the
site
and
such
well
water
“would
be
likely
to
give
water
similar
in
quality
to
that
expected
to
be
pumped
out
during
mining
operations”.
(Ag.
Br.
at
3.)
The
Agency
admits
that
the
water
is
slightly
alkaline
and
the
alkalinity/acidity
measurements
indicate
that
the
discharge
would
be
classified
as
alkaline
mine
drainage.
(Ag.
Br.
at
3.)
The
Agency
therefore
included
the
Board’s
effluent
limitations
for
alkaline
mine
drainage
in
the
NPDES
permit
issued
to
Tomahawk.
(Ag.
Br.
at
4-5;
R.
at
593-600.)
The
Agency
further
maintains
that
the
sedimentation
pond
does
not
have
to
contain
the
pit
drainage,
but
rather
it
must
detain
the
pit
pumpage
to
allow
for
settleable
solids
to
settle
in
the
slower
moving
water
of
the
pond.
(Ag.
Br.
at
4.)
The
Agency
notes
that
use
of
the
pond
for
treatment
of
mine
drainage
was
authorized
by
the
Board
in
a
prior
case.
(Ainax
v.
IEPA,
PCB
80—63,64,
Dec.
4
and
18,
1980.)
The
Agency
asserts
that
in
this
case
it
will
take
over
twenty
four
hours
for
the
pit
pumpage
to
traverse
the
pond
and
be
discharged
into
the
receiving
waters.
(Id.)
Further,
the
puinpage
rate
is
controlled
by
Tomahawk,
which
may
vary
the
rate
as
necessary
to
allow
additional
settling
time,
and
in
no
case
may
the
discharge
exceed
the
effluent
limits
established
in
the
Board’s
regulations
or
the
NPDES
permit.
If
Tomahawk
exceeds
those
limits,
Tomahawk
would
be
subject
to
the
penalty
provisions
of
the
Act.
(Ag.
Br.
at
4-5.)
For
each
issue
raised,
as
detailed
above,
the
Agency
has
pointed
to
adequate
information
in
the
record
which
demonstrates
that
the
Act
or
Board
regulations
would
not
be
violated
if
the
permit
were
issued.
Mr.
Damron
has
failed
to
persuade
the
Board
that
Tomahawk’s
NPDES
permit
application
was
fatally
deficient.
CONCLUSION
The
Agency
is
authorized
(Section
39(b)
of
the
Act)
to
issue
NPDES
permits
to
allow
for
discharge
of
effluents
into
waters
of
the
state.
The
Board’s
rules
(35
Ill.
Adm.
Code
309.105)
and
the
Act
(Section
39(b))
set
stringent
standards
for
NPDES
permits
and
the
effluent
limitations
related
to
those
permits.
The
fundamental
issue
in
a
permit
application
is
whether
the
applicant
demonstrates
that
the
facility
will
not
violate
the
Act
or
Board
regulations.
Damron
has
challenged
the
Agency’s
issuance
of
NPDES
permit
No.
1L0069949
to
Tomahawk
on
a
variety
of
grounds.
However,
the
petitioner’s
arguments
do
not
establish
that
the
permit
as
issued
would
violate
the
Act
or
Board
regulations.
Therefore,
based
on
a
review
of
the
record,
the
Board
affirms
the
Agency’s
granting
of
NPDES
permit
No.
1L0069949
to
Tomahawk.
8
ORDER
The
Board
affirms
the
issuance
of
NPDES
permit
No.
IL0069949
by
the
Illinois
Environmental
Protection
Agency
to
Tomahawk
Group,
Inc.
IT
IS
SO
ORDERED.
Section
41
of
the
Environmental
Protection
Act
(415
ILCS
5/40.1)
provides
for
the
appeal
of
final
Board
orders
within
35
days
of
service
of
this
decision.
The
Rules
of
the
Supreme
Court
of
Illinois
establish
filing
requirements.
(But
see
also,
35
Ill.
Ada.
Code
101.246,
Motions
for
Reconsideration.)
I,
Dorothy
N.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
certify
that
the
above
opinion
and
order
was
adopted
on
the~,
~-~-
day
of
_________________,
1994,
by
a
vote
of
-e~.
7/
AL,
~
p
Control Board