ILLINOIS POLLUTION CONTROL BOARD
December 19, 1980
AMAX
COAL
COMPANY,
a division
of AMAX,
INC.,
Petitioner,
v.
)
PCB 80—63,
—64
ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
J~1ESSRS.
ROBERT L. TRIERWEILER
AND
STEPHEN HANSELL, ATTORNEYS AT
LAW,
AMAX
COAL
COMPANY,
APPEARED
ON
BEHALF
OF THE PETITIONER.
MS.
MARY
E.
DRAKE,
ASSISTANT
ATTORNEY
GENERAL,
AND
MR.
SCOTT
0.
PHILLIPS,
ATTORNEY
AT
LAW,
APPEARED
ON
BEHALF
OF
THE
RE-
SPONDENT.
OPINION OF THE BOARD
(by D. Satchell):
This matter comes before the Board upon two petitions for
review filed by Amax Coal Company
(Amax)
on April 7,
1980.
The
petitions seek review of denials by the Illinois Environmental
Protection Agency
(Agency)
of permits required under the old
Chapter 4:
Mine Related Pollution.
Four hearings have been
held.
Since the transcripts are not numbered sequentially it
will be necessary to preface page numbers with a Roman numeral
indicating the day on which the hearing occurred.
For example,
(1:141) means page 141 of the transcript of the hearing held on
the first day.
The following are the dates and locations of the
hearings:
I
August
5,
1980, Lewiston, pp.
1—202
II
August 6, 1980, Lewiston, pp.
203—241
III
August
8, 1980, Springfield, pp.
2—113
IV
August
9, 1980, Springfield,
pp. 113—254
The first two hearings were held in Fulton County where the
subject facility is located
Section
40(a), Environmental Pro-
tection Act
(Act)
~.
The third and fourth hearings were held in
Springfield for the convenience of the parties and the Hearing
Officer.
The public was offered an opportunity to appear and
testify.
Few members appeared, none testified
and
there was no
demand on the part of the public that the hearing be continued
in Lewiston
(111:3)
40—175
—2—
Amax
received permit denial letters on February 21 and
March 10, 1980
(Resp. Ex,
1,
2).
The denials involve supplement-
al permits required by Rule 201 of Chapter 4:
Mine Related Pol-
lution, effective May 23, 1972.
The Board has since adopted a
new Chapter 4 which supersedes the old Chapter
4
(R76-20;
R77-l0;
Orders of May 15 and July 24,
1980; effective date August
7,
1980)
Amax
possesses NPDES permits for
the
subject facility.
It
will therefore be exempt from the state permit requirement.
Chap-
ter
4 requirements will be written into an NPDES permit
(Rules
302 and 402).
Under Rule 703, outstanding Chapter 4 permits will
expire upon expiration of any NPDES permit for the facility or
upon issuance of any
permit under
the new Chapter
4.
Whether the Agency erred jn denying the permit is governed
by the old Chapter
4.
However,
since the permit in question is
no longer required this case is moot.
The Board will therefore
remand the permit to the Agency for reconsideration based upon
the new Chapter
4.
Since
it
appears that
an NPDES permit modifi-
cation will be required,
l½max will be authorized to submit such
additional application
forms
as may be necessary.
The issue in this case centers upon the construction of
sedimentation basins by damming
streams
which may be waters of
the State.
Since the parties have invested considerable effort
in arguing this question, the Board will consider it to give
guidance on remand,
The Board will address the question as
a
matter of interpretation of the new Chapter 4,
since that is now
the
applicable regulation.
This permit appeal concerns applications
for
Chapter 4 mining
permits for the Sunspot surface coal mine operated by imax in
Fulton County.
The facility
is
contained within
T.
3,
4
and
5 N.,
R.
1 E., and T.
3
and
4
N.,
R.
2 E.,
4 PM
(Pet.
Ex.
1).
The facil-
ity comprises three
areas lying along a north—south line about
eight miles
long.
Active mining takes place in the northern and
central areas.
The
southern
contains
at
least two inactive pits.
Coal is transported from
the
northern and central mining areas to
a preparation plant located
in
the southern area
(Resp.
Ex.
1,
Ex.
B, Review Sheet).
Drainage has historically been alkaline
(Resp.
Ex.
1, Ex.
B, IV.3.G.4j.
Drainage from the northern area enters Francis Creek and
that from the central and
southern
areas,
Otter Creek,
Francis
Creek is tributary to
the
Spoon River approximately three miles
northwest of the Ipava field,
Otter Creek is tributary to the
Illinois
River approximately sixteen miles southwest of the
preparation plant area,
40—176
—3—
IPAVA FIELD
The northern area
is called the “Ipava Field.”
It is
largely
contained within Secs.
27,
28, 29,
32,
33 and 34 of T.
5 N., R.
1
E. in Sec.
4,
T.
4 N.,
R.
1
E.
(Pet.
Ex.
1).
Water in the Ipava Field is collected to the “Ipava basin,”
or “Francis Creek Basin,”
a thirty-two acre sediment basin formed
by damming Francis Creek
(1:10,
36).
The Ipava basin discharges
via discharge point 003 to Francis Creek.
Discharge point 003
is
situated in the NE
¼,
NW
¼,
Sec.
27,
T.
5
N.,
R.
1 E.
(Pet.
Ex.
1).
Amax possesses
an NPDES permit for 003.
The location of the
discharge point in the permit
is
erroneous
(1:141).
On September
28,
1976 the Agency issued permit l972-MD—l673—OP-l.
This permit
added the Ipava field to the Sunspot mine.
PCB 80-63 involves an
application to modify
this
permit
to add new areas to the east
and
west
and
the
existing
sediment
basin
in
Francis
Creek
to
the
permit area
(Resp.
Ex.
1,
Ex,
A, Log 8022-79,
p.
4).
The watershed draining to 003
is
about 4500 acres, of which
1100 is affected by mining and 1600 by row crops
(1:36).
Amax
has presented discharge data which shows that its effluent from
the Francis Creek basin is
within
applicable effluent standards.
In addition the sediment basin reduces levels of some constitu-
ents from those
found upstream of the mining area
(1:81).
Upstream
Downstream
Sulfate
133 mg/l
111 mg/i
TDS
495 mg/i
385 mg/l
pH
8.0
8,1
Iron
2.9 mg/l
2
mg/i
TSS
57.6 mg/I
28.4 mg/I
NORTHEAST FIELD
The central area of
the Sunspot mine
is referred to as the
“Northeast Field.”
The Northeast Field is largely contained
within Secs.
9,
10,
11,
14, 15,
16,
21 and 22
of
T.
4 N,
R.
1 E.
(Pet. Ex.
1).
The Northeast Field is associated with existing
discharge points
002 and 004.
In addition, there is
a proposed
discharge point 004.
Most of the Northeast Field lies between the East and West
Branches of Otter Creek which flow south and merge near the
southern edge of the Northeast Field
(Pet.
Ex.
1).
Other areas
40—177
—4—
of the
field also lie to the east and west of the eastern and
western branches,
respectively.
Discharge point 002 is associated
with the West Branch and discharge points
004 are associated with
the
East
Branch.
The drainage control system associated with 002 consists of
a series of three basins:
the first or upstream basin is located
directly north of the pit in the N
½,
Sec.
9,
T.
4 N.,
R.
1 E.;
this discharges to a second basin directly west of the active pit
in the
S
½,
Sec.
9;
this discharges
to the third,
an abandoned
incline directly
south of the existing pit (1:23).
The third
basin
discharges
via
002
to
the
western
branch
of
Otter
Creek
in
the
SE
¼,
Sec.
16,
T.
4 N.,
R.
1
E.
(1:23).
The
coal
under
the
Western
Branch
has
been
mined
in
the
vicinity
of
002
(Pet.
Ex.
1;
Resp.
Ex.
1, Ex,
C, map 7903).
Mining in the Northeast Field is proceeding from south to
north.
Natural drainage flows from the north toward the active
mining in the south.
An upstream diversion collects runoff from
the unaffected area before it reaches the active mining area.
The
system of basins associated with 002 collect this upstream runoff
and route it around the western side of the Northeast Field toward
discharge point 002
(1:103,
134),
Amax has no Chapter 4 permit for the Northeast Field
(1:156).
Discharge point 002 is authorized under a current NPDES permit.
PCB 80-63 involves a request for a supplemental Chapter
4 permit
for the Northeast Field and for the treatment works associated
with discharge point
002,
Situated on the eastern edge of the Northeast Field is
existing discharge
point 004
which
discharges to the East Branch
of Otter Creek in the
SE
¼,
SW
¼,
Sec.
11,
T.
4 N.,
R.
1 E.
This
is
a
small
settling
basin which
collects drainage from the unaf-
fected area in the Northeast Field
(1:46, Pet. Ex.
1).
Existing
discharge 004 was constructed in response to negotiations with
the Agency concerning permits for the Northeast Field
(1:43).
Existing discharge 004 is apparently authorized by a current
NPDES permit
(Pet.
Ex.
I).
If the sedimentation basin associated with proposed discharge
004 is constructed, the existing 004 will discharge to the new
larger basin.
PCB 80-64 deals with the proposed new sediment
basin referred to as the “Otter Creek Basin.”
This is to be
formed by constructing a dam across the eastern branch of Otter
Creek.
The resulting sediment basin will discharge via 004 to
the eastern branch of Otter Creek in the NE
¼
of the NW
¼
of
Sec.
22,
T.
4 N.,
R.
1 E.
(1:11,
40,
43,
94; Pet. Ex.
1).
This
is apparently already covered by an NPDES permit
(Resp.
Ex.
2,
SD—l,
IV.
6.
G.
b).
40—178
—5—
The proposed Otter Creek basin will last the life of the
proposed mining activity on the east side of the Northeast Field
and will collect runoff from the affected area, pit pumpage and a
portion of the unaffected drainage
(1:95).
In addition to col—
lecting drainage from the present active area between the East
and West Branches, the Otter Creek Basin will collect drainage
from the proposed mining activities to the east of the East 3ranch
of Otter Creek
(1:44),
The watershed above 002
is about 4000 acres.
Twelve hundred
acres are affected by mining and 2000 acres by row crops
(1:23).
At 002 Otter Creek is
an intermittent stream
(1:23,
103,
105, 151).
The watershed draining to 004 is approximately 2900 acres.
Four-
teen hundred acres
are affected by mining and 1300 by row crop
cultivation
(1:41,
102)
The Agency has objected to these figures as being inconsistent
with the data presented in the application which recites that the
total disturbed area tributary to 002 is 187 acres
(Resp.
Ex.
1,
Ex.
C, Table 2.1).
However, this figure refers to the area to be
mined during the first one to two years.
The figures cited by
~Axnaxrefer to the area to be ultimately mined in the watershed.
These areas seem to be roughly those indicated on the map
(Pet.
Ex.
1)
*
Amax has
a long historical record of the composition of dis-
charge
002.
It anticipates that the discharge from 004 will be
similar
(1:97).
Background levels of 121 mg/l sulfate and 465
mg/l total dissolved solids
(TDS)
are unaffected by the sediment
pond.
pH is about
8.1 which is about the same as the upstream pH.
Iron and total suspended solids
are
around 1.0 and 30 mg/i, re-
spectively.
These are about the same as the levels in the water
entering the sediment basin from upstream (1:97,
103,
105).
PREPARATION
PLANT AREA
The southern area of the Sunspot mine contains the preparation
plant area (1:73;
Pet.
Ex,
I).
The preparation plant includes the
inactive Vermont and
Williams pits
(Pet,
Ex.
1).
On the maps the
preparation plant area appears to be mined out.
It is not clear
if active mining presently takes place there.
The preparation
plant area is largely contained within Secs.
32,
33,
34,
35 and 36
of T.
4 N.,
R.
1 E.;
Sec.
31 of T.
4
N.,
R.
2 E.; Secs.
6 and 7 of
T.
3 N.,
R.
2 E.; and Secs,
1,
2,
3,
4,
5,
9,
10,
11 and 12 of T.
3 N.,
R.
1 E.
Slurry from the preparation plant is piped to the slurry pond
along with discharge from ancillary areas.
The slurry pond ap-
parently consists of an old incline and last cut pit.
This over-
40—179
—6—
flows to the
“freshwater
lake.”
Makeup water is drawn from the
freshwater lake.
This discharges to a third pond prior to dis-
charge into the South Branch of Otter Creek via discharge point
001
in
the
NW
¼
of the SE
¼
of Sec.
3,
T.
3 N., R.
1
E.
(Pet.
Ex.
1; 1:74).
Discharge 001 is
an
intermittent
discharge
which
occurs
only in response to large precipitation events
(Resp,
Dx.
1, Ex.
A, Schedule ME).
On December 22,
1972 the Agency issued permit l972-MD-1673-OP
to cover active mining in the Vermont pit and Williams pit.
On
the
same
date
the
Agency
issued
a
one
year
permit
l972-EA-1674-OP
to
cover
the
processing
plant
and
related
water
circuit.
This
permit
was
renewed
and
replaced
by
permit
l976-EB-l382-OP,
issued
September 22,
1976, which expired September 22,
1979.
An issue
in
PCB
80-63 involves renewal of this latter permit
(Resp.
Ex.
1,
Ex.
A, Log number 8022-79, p.
1).
PERMIT DENIAL
LETTERS
On February 21,
1980
the Agency
issued “permit denial B”
from
which
Amax
appeals
in
PCB
80-63
(Resp.
Ex.
1,
Ex.
A,
last
two pages).
This permit denial resulted from the consolidation
of three previous permit applications which had previously been
denied.
Amax then submitted additional information which led up
to permit denial
B.
One reason for the denial of February 21, 1980 was the “in-
formation must also be provided to indicate that the discharge
from the slurry pond will meet the applicable Chapter 3 effluent
standards prior to entrance into the freshwater lake.”
This
refers to the water circulation circuit in connection with the
preparation plant.
At the hearing the Agency agreed that Amax
has now submitted sufficient information to satisfy this objection
by reference to a previous variance
(Amax v.
IEPA, PCB 78—99;
30
PCB 553; June 22,
1978),
On March 10,
1980 the Agency issued a denial letter concerning
the proposed discharge 004 on the eastern branch of Otter Creek.
This
is a subject of PCB 80-64
(Resp.
Ex.
2,
last two pages).
One
reason for this denial concerns the failure of Amax to waive the
Agency decision period provided by Section
39(a) (4)
of the Act.
The parties have resolved
this
difference.
The principal reason
for denial as cited in both letters
is
essentially the same.
The following is quoted from PCB 80-63:
Part VI of Chapter 4 requires that discharges meet the ef-
fluent standards before entrance to or mixture with the
waters of Illinois.
This Agency
is of the opinion that
40—180
—7—
the use of Francis Creek and Otter Creek as sedimentation
ponds is prohibited by the Illinois Pollution Control
Board.
Information must be provided to indicate all dis-
charges will meet the effluent standards of Chapter
4
prior to discharge into Francis Creek and Otter Creek.
Section 39(a)
of the Act requires that the Agency transmit to
the applicant a specific detailed statement as to the reasons the
permit application was denied.
The effect of Section 39(a)
is to
limit the Agency to those grounds which are cited in the letter
of denial (Environmental Site Developers v.
IEPA,
PCB 80-15;
38 PCB 443; June 12, 1980).
A fair reading of the denial letter is
as follows:
Amax must
either submit additional information to convince the Agency that
the proposed sediment ponds were not located within waters of the
State or must submit additional information to indicate that dis-
charges to the basins would meet the effluent standards prior to
discharge.
The Agency cannot expand the scope of the denial letter
before the Board by offering additional reasons for denial.
The
Agency did not contend that the effluent standards will not be met
at the discharge from Amax’s sedimentation basins or that there
will be violations of the water quality standards downstream.
ISSUE ON
APPEAL
Amax has spent considerable time seeking to demonstrate that
the
Agency
in
the
past
has
issued
permits
for
sediment
basins
lo-
cated
in natural waterways, in connection both with the Sunspot
Mine and other facilities,
In an appeal
of a permit
denial
the
issue is whether or not the permit applicant presented sufficient
facts to the Agency to show that the facility in question will be
constructed or operated so that there will be no violation of the
Act or Rules
Oscar
Mayer v.
IEPA, PCB 78-14,
30 PCB 397;
32 PCB
243; June
8 and December 14,
1978; Peabody Coal Co.
v.
IEPA, PCB
78-296,
38 PCB 131, May 1,
1980; Environmental Site Developers v.
IEPA (supra).
Section 39(a)
does not allow issuance of permits
in violation of the Act or Board rules.
The
fact
that the Agency
may have issued other permits based on erroneous interpretations
of the law does not prevent the Agency from correcting its error
and certainly does not control the Board’s interpretation of the
law.
However, the previous permit history for the facility in
question is usually relevant.
Amax has constructed the facilities involved in PCB
80-63 with-
out resorting to the permit applications required by Board rules.
Amax cannot claim reliance on previous Agency interpretations such
as that which the Board found in DuPont v.
IEPA, PCB 79-106,
August 21,
1980.
At some points Amax sought to introduce evidence which was
not before the Agency when it considered the application.
The
40—18 1
—8—
Board has long held that the issue on appeal of a permit denial is
whether the Agency erred and not whether new material which was
not before the Agency persuades the Board that a permit should be
granted
tSoil Enrichment Materials v.
IEPA, PCB 72-264,
5 PCB 715
(1972);
Oscar Mayer, Environmental Site Developers,
(supra).
EXEMPTION FOR WASTE
Amax has contended that mine runoff is beyond the Board’s
jurisdiction because of language added to Section 3(ff)
of the
Act by PA 81-856, the definition of “waste”:
Any
garbage,
sludge from a waste treatment plant,
water
supply
treatment plant,
or air pollution control facility or other
discarded material, including solid, liquid, semisolid,
or
contained gaseous material resulting from industrial,
com—
mercial,mining and agricultural operations,
and from community
activities, but does not include
,
.
.
any solid or dissolved
material from a facility subject to the Federal Surface Mining
Control and Reclamation Act of 1977 PL95-87 or the rules and
regu1ati~iisadopted by the State of Illinois pursuant thereto.
lEmphasis added
This definition speaks of “garbage,”
“sludge” and “other dis-
carded material” which are regulated for the most part pursuant to
Title V:
Land Pollution and Refuse Disposal.
Section 13(a) (3)
of
Title III of the Act authorizes the Board to adopt regulations pre~-
scribing “standards for issuance of permits
for construction, in-
stallation, or operation of any equipment
(or) facility
*
.
.
cap-
able of causing or contributing to water pollution or designed to
prevent water pollution or for the construction or installation of
any sewer or sewage treatment facility or any new outlet for con-
taminants into the waters of this
State,”
The term
“waste”
is not
used in the grant of authority under Title III, which speaks of
“contaminants,” regardless of whether they are “waste.”
Board regulation under old Chapter
4 is based in part on stat-
utory authority from Title III:
Water Pollution.
The new Chapter
4, effective August
7,
1980 is based exclusively on statutory
authority pursuant to Title III.
The Board has acknowledged that
coal mines may no longer be subject to regulation under Title V:
Land Pollution and Refuse Disposal.
Board regulation of coal mine
refuse disposal practices is now based solely on Title
III
(R76—20,
R77—lO, Rule 101, Opinion of July 24, 1980,
p.
8).
In this partic-
ular case the sedimentation
basins which are in dispute are treat-
ment facilities which expressly fall under Section 13 of the Act.
WATERS OF THE STATE
Definitions of “waters” are found both in Section
3 of the Act
and in Rule 104 of Chapter
3.
These are incorporated by reference
40—182
—9—
into both the old
and
new versions of Chapter
4.
In Chapter
3 the
underlined language has been added to the definition found in the
Act:
“Waters” means all the accumulations of waters, surface and
underground, natural, and artificial, public and private,
or
parts thereof, which are wholly or partially within,
flow
through, or border upon the State of Illinois, except that
sewers and treatment works are not included except as specif-
ically mentioned; provided, that nothing herein contained
shall authorize the use of natural or otherwise protected
waters as sewers or treatment works except that in—stream
aeration under Agency permit is allowable.
As used in the Act and Chapter
3 the definition of waters
is
broad.
Francis
Creek
and
Otter
Creek
are
waters
of
the
State
up-
stream
of
the
points
where
Amax
has
or
will
dam
them.
Furthermore,
they are waters of the State even upstream of the points where the
Agency itself has suggested creating smaller impoundments.
The
Agency denied the permit in part because it believed deftu-
ition of “waters”
in Chapter
3 includes language forbidding the use
of waters of the State as
a treatment works.
Amax contends
that
the Board is without authority to modify the statutory definition
of “waters.”
The definition of “waters” found in the Act includes waters
contained within sewers and treatment works.
The Act authorizes
the Board to impose water quality standards on waters found there-
in.
However, the Board in adopting the water quality standards
of
Part II of Chapter
3 elected
not
to impose water quality standards
on sewers and treatment works.
Accordingly sewers
and
treatment
works were excepted from the definition of “waters” used in Chap-
ter 3.
This exception is not a modification of the statutory
definition, but rather is a limitation defining what portion of
its jurisdiction over waters the Board is exercising in Chapter
3
(CIPS
v.
IEPA, PCB 73—384;
11 PCB 677; March 28, 1974;
36
Ill. App.
3rd 397, 344 NE 2d 229; Commonwealth Edison Co.
v. IEPA PCB 73-
248;
13 PCB 69, July l8,I~~Y
“Waters” as defined in the Act comprises the following compon-
ents:
“waters”
as defined in Chapter
3 and waters found in sewers
or treatment works.
All of these waters are within the Board’s
jurisdiction.
The question as to whether the water is
a Chapter
3
water or, alternatively, water found in a sewer or treatment works
does not go to the question of the Board’s jurisdiction.
It deter-
mines whether the water quality standards of Part II are applicable
and determines the downstream limit for monitoring and application
of the effluent standards to Part IV of Chapter
3.
The Agency contends that the Board has previously construed
the definition of waters
as
a direct prohibition against placement
40—183
—10—
of the treatment works within waters of the State
(League of Women
Voters
v. North Shore Sanitary District, PCB 71-7,
12,
13 and 14,
1 PCB
369).
This case actually involved application of Sanitary
Water Board rules rather than Chapter
3.
The Board in later cases
declined to find such
a prohibition in Chapter
3 in cases involv-
ing use as cooling ponds
of artificial lakes formed by damming
streams
CIPS
v. IEPA, Commonwealth Edison Co.
v. IEPA,(supra).
The denial letters state
in addition that Amax failed to demon-
strate compliance with the effluent standards prior to discharge to
waters of the State.
Rule 605 of new Chapter
4 requires that
mine
discharges not cause violation of water quality standards.
Rule
602 requires that samples to determine compliance with the effluent
standards be taken prior to mixing with waters of
the
State.
Amax has demonstrated that various federal and state regulations
require or encourage the use of sedimentation basins.
Rule 608 of
the new Chapter 4, which became effective August
7,
1980, requires
the use of sedimentation ponds.
As the term sedimentation pond was
used by regulatory authorities and the coal mining industry at the
time of adoption of Chapter
4,
it included basins formed by damming
a stream or ravine
(Pet,
Ex.
5)
.
In
requiring sedimentation ponds
in Rule 608 of new Chapter
4,
the Board did not expressly intend
that they be limited to perched ponds or other facilities which are
not formed by damming a stream or ravine.
These particular sedi-
mentation ponds in intermittent streams fall within the exception
for treatment works
in Rule 104 of Chapter
3 and are not “waters
of the State.”
In adopting this holding the Board does not intend that there
should be no limit on the acceptable size of streams which may be
dammed or the amount of upstream drainage from unaffected areas
which they may receive.
The Board will decide
this
on a case-by-
case basis.
The Board notes that the effluent standards of Rule
606
of new Chapter
4 contain an exception for discharges resulting
from 10-year, 24-hour precipitation events.
This effectively re-
quires sedimentation ponds to be designed to contain the runoff
from a slightly smaller
precipitation event.
For larger streams it
will be impracticable to contain such a
rainfall
and
meet the
ef-
fluent standards.
In various meetings held before
the
permit denials, the Agency
suggested diversion of upstream drainage and
the
construction of
smaller sediment basins further upstream than those proposed
by
Amax (1:24,
30,
40,
42).
Amax objected to the expense and loss of
reserves this would entail
(1:32,
40,
44),
The Agency’s proposals
would involve more disturbance and would not last the life of the
proposed mining activity
(1:44, 93).
Small settling basins have
insufficient detention time to be effective for sediment control
(1:93).
Amax cannot consistently meet the effluent standards with
small basins
(1:100)
.
Amax believes its proposal is more effectiv3
in improving water quality
(1:94).
The Board has not addressed
the alternative methods of compliance.
40—184
—11—
The
Agency
has
authority
to
regulate
surface drainage by
permit
condition
under
Rule
505
of
the
new
Chapter
4.
Rule
604
prohibits
dilution
of
effluents,
provides
for
recomputation
of
concentrations to correct for dilution and authorizes the Agency
to require segregation of wastestreams.
Similar authority exists
in old Chapter 4 and in Rule 401 of Chapter
3.
This holding in
no way limits the Agency’s authority to review the permit applica-
tion and impose such permit conditions as may be necessary or re-
quired to accomplish the purposes of the Act.
On remand
the
parties may be able to agree to an acceptable combination of
upstream diversion,
small and large basins, and pretreatment of
aggressive waters.
If not, any issued permit will be appealable
to the Board.
On November 6,
1980 the Illinois Coal Association
(ICA)
filed
an amicus brief supporting reversal of the permit denial.
On
November 12, 1980 the Agency filed a motion to strike the brief.
On November 20,
1980 the ICA filed a motion
for leave to file the
amicus brief and a supporting memorandum.
The motion to strike
is granted.
On December 15,
1980 the Agency filed a motion for
extension of time, until thirty-five days after
the
date of this
Opinion, in which to file a motion for reconsideration of the
Board’s December 4, 1980 Order.
The motion is granted.
This Opinion, supplementing the Board’s Order of December
4,
1980,
constitutes the Board’s findings of fact and conclusions
of law in this matter.
I, Christan L.
Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that the above Opinion was adopted
on the
j ~
~
day of
~
1980 by a vote of
Christan L.
Noffett, C~k~’
Illinois Pollution Control Board
40—185
