ILLINOIS POLLUTION CONTROL BOARD

September 20,

1979

PEABODY COAL

COMPANY,

Petitioner,

v.

)

 PCB 78—296

ENVIRONMENTAL PROTECTION AGENCY,

)

Respondent.

MR. THOMAS

F.

 LINN, ATTORNEY AT LAW, APPEARED ON BEHALF OF THE

PETITIONER.

MR. STEPHEN GROSSMARK, ASSISTANT ATTORNEY GENERAL, APPEARED ON

BEHALF OF THE RESPONDENT.

OPINION

AND

ORDER OF THE BOARD

 (by Dr. Satchell):

This matter comes before the board upon a petition for review

filed January

8,

 1979 by Petitioner Peabody Coal Company

 (Peabody).

The petition seeks, pursuant to §40 of the Environmental Protection

Act

 (Act)

 and Procedural Rule 504(b),

 review of conditions

 of NPDES

Permit No.

 IL 0059480 which the Agency granted Petitioner for four

discharges from a proposed underground coal mine near Tilden in St.

Clair and Randolph Counties.

 Petitioner originally objected to the

inclusion or exclusion of fifteen conditions.

 The Agency subsequent-

iy agreed to modify the permit with regard to four conditions

 (Ex.

6).

Petitbner did not include in its brief any argument with regard to

seven others, six of which are standard NPDES conditions.

 These are

deemed waived.

 The four conditions in dispute are summarized below.

1.

 Discharge monitoring reports are to be retained for six

months and be mailed and received by the Agency biannually

on the fifteenth of the month following the end of the six

month period

 (Pet.

3;

Ex.

2).

2.

 The expiration date of the final permit is December 31,

 1980;

whereas, the draft permit was for “approximately five years”

(Pet.

7;

Ex.

1).

3.

 The effluent concentration of total dissolved solids

is

limited to a level that will not cause the receiving

stream to exceed the water quality level for total dissolved

solids

 (Pet.

2).

4.

 The daily maximum concentration of 7 mg/i for iron

 (total)

is not subject to an exception for bypass discharge from

facilities designed to contain or treat the pit pumpage

and surface runoff which would result from a 10 year,

24-hour precipitation event

 (Pet.

 1; Ex.

2).

‘~

5—~

—2—

A hearing was held at Nashville on April 24,

 1979.

 Peabody

presented two witnesses and exhibits.

 The Agency cross—examined

but presented no evidence.

 The issue

 in a Section

 40 petition

is whether or not, based upon the facts of the application, the

applicant has provided proof that the activity in question will

 not cause a violation of the Act or of the regulations.

 A hearing

before the Board is available in the event there is a disputed

issue

 of fact,

 for instance if the Petitioner wishes to present

evidence that his activity will not cause

 a violation in spite of

the Agency’s conclusion that it will.

 Oscar Mayer

 & Co.

V.

 EPA,

30 PCB

 397.

 In this hearing Peabody’s evidence largely concerned

its difficulty in complying with the permit conditions.

 Although

this would be relevant in a variance or rulemaking proceeding,

it

is irrelevant

 a permit appeal.

REPORTING

The

permit

Special

condition

number

six

requires

that

the

dis-

charge

 monitoring report

 (DMR)

 forms

 “shall be mailed and received”

according to the stated schedule which provides that they are to be

sent twice each year fifteen days after the close of each six month

period.

 In the petition, Peabody contends that this requires that

the forms be mailed and received on the same day, which

 it contends

is impossible and therefore unreasonable, arbitrary and capricious.

However, the language is subject to at least two alternative inter-

pretations:

 The DMR’s are to be received according to the stated

schedule and are to be sent by mail;

or,

 the DMR’s are to be mailed

according to

the

stated schedule so long as they eventually are

received.

 Neither of these is unreasonable on its face.

At the hearing and in its brief, Peabody objected not to the

language chosen, but to the requirement of mailing and receiving

in fifteen days

(R.

 66, Brief 27).

 Testimony was presented to the

effect that some hardship could result if Peabody were required to

report in fifteen days, but that twenty—eight days was fine

(R.

 67).

The Agency contends that during the

permit

process Peabody did not

indicate any preference on reporting date or period,

 did not object

to the date and actually indicated that the date was acceptable

at

some point.

In

its comments mailed to the Agency on December

16,

1978 Peabody listed twenty-nine objections to the draft permit

(Agency Record).

It

did not object to the reporting date or in-

terval.

 Even

 this objection

 is properly raised in the petition,

it

was waived

 failure to object to

it

in the draft permit.

35—

380

—3—

its

brief

the

Agency

suggests

that

Petitioner’s

claims

hardship

should

raised

variance

proceeding.

The

Board

suggests that the reporting requirements are discretionary with

the Agency and could be handled by a supplemental permit application.

EXPIRATION DATE

On August

 9, 1978 the Agency sent a draft permit and public

notice to Peabody.

 These specified that the permit would be for

“approximately five years.t’

 On August 21, 1978 Peabody responded

with several objections to the draft and notice.

 On September 15,

1978 the Agency apparently sent Peabody

 a second public notice

which specified that the length of permit was “approximately two

years.”

 On October 16, 1978 Peabody responded with extensive

comments on the draft permit.

 These do not include any objection

to the two year expiration date

 (Agency Record).

Peabody now contends that it was arbitrary and capricious

for

the

Agency to change the expiration date without notice, reason

or opportunity to comment, even though the second public notice

sent to Peabody contained the altered expiration date and this was

prior to Peabody’s second set of comments.

 However, the Agency

apparently concedes that Peabody had no notice or opportunity to

comment.

 The Board will therefore proceed on the assumption that

 there was no such notice or opportunity to comment.

The Agency made no explanation

 for the change prior to the

filing of the instant petition.

 However, the Agency now cites

the Federal Register dated December

 11, 1978 as requiring that

coal mine permits expire on December 31, 1980

 (40 CFR 124.46;

43

FR 58066).

 Peabody responds that its permit specifies that it

was effective November

8,

 1978 or December 8,

 1978, in either event

prior to the effective date of the regulation.

The comments to the amendment specify that it

 is not retro-

active and the Agency apparently concedes that it had the authority

to

issue the permit for the full five year period but elected to

shorten

the

period for administrative convenience knowing of the

impending rule change.

 The Agency position is that the question is

moot

because

regardless

whether

the

regulation

was

effect

when the permit was issued,

 it is

 in effect now and will be applied

if the Board orders reissuance of the permit at this time.

The

Board rejects this argument.

 Although the Board ordinarily consid-

ers regulatory changes in its deliberations,

 it would be possible

to order the Agency to issue the permit as required by the regu-

lations in effect on the date of the final Agency action.

35—38 1

—4--

The purpose of the amendment is to cause permits for various

industry categories, including coal mining,

 to expire on the dates

on which new best available control technology effluent guidelines

are expected to be promulgated.

 Contrary to its assertion,

 a five

year permit will not enable Peabody to plan ahead upon the assump-

tion that it will not have to meet any more stringent limitations

for five years.

 Paragraph twenty—seven of the permit would require

modification or revocation of the permit when new effluent Limit-

ations

 are issued, assuming that the limitation is different in

conditions or more stringent or controls a pollutant not limited

by the permit.

 It appears that the maximum possible injury to

Peabody from the change in expiration date

 is the cost and admin-

istrative inconvenience of applying for a permit in 1980 even if

the new guidelines do not require any modification of its permit.

Rules

 905 through 909 of Chapter

3:

 Water Pollution

 (Water

Rules), provide for issuance of a draft permit and public notice.

Implicit in this procedure is

 a requirement that the final permit

bear some relation to the draft permit and comments.

 However, Rule

905 does not require that the draft permit specify the expiration

date.

 The date is discretionary with the Agency and the applicant

 has no right to demand any particular date.

 Although there is a

limit to the Agency’s right to unilaterally modify the draft permit

without issuing a new draft or providing some other opportunity for

comment,

 this limit has not been reached here.

 The Board holds

that the Agency may vary the expiration date from that in the draft

permit without providing the applicant an opportunity to comment

where it does in fact have

 a rational reason for the change.

WATER QUALITY RELATED EFFLUENT STANDARD FOR TDS

The permit contains the following condition:

 “The effluent

concentration of TDS shall be limited to

 a level that will not

cause

the

receiving stream to exceed the water quality limit in

Rule 203(f)

 Illinois Pollution Control Board Rules and Regulations,

Chapter

3:

 Water Pollution”

 (Permit,

3).

 Peabody objects to the

inclusion of this condition.

 At the hearing considerable evidence

was given concerning the difficulty of meeting this standard.

 Con-

trary to Peabody’s contention,

it

 is possible to monitor flow and

concentration of waste and receiving stream to assure compliance.

Instantaneous TDS concentration can be accurately estimated by

a

properly calibrated conductometric instrument.

 However, this is

not properly before the Board on

 a permit appeal.

 The information

was not before the Agency when it issued the permit and, further-

 more, does not relate to the question

 at issue on permit appeal.

35—382

—5—

Rule 402 of Chapter 3:

 Water Pollution and Rule 605 of

Chapter

4:

 Mine Related Pollution

 (Water Rules and Mine Rules,

respectively)

 specify that no effluent shall cause a water quality

violation.

 The permit condition restates these as applied to TDS.

These

 rules were adopted by the Board after proper notice and com-

ment and not by the Agency as Peabody contends.

 TDS is not regu-

lated by the United States Environmental Protection Agency and the

limitation is therefore more stringent than the federal limitation,

contrary to Peabody’s contention.

 The Agency is free to include

a

more stringent state limitation in the

permit

 Iwater Rule 910(a).

Peabody also contends that it

is

arbitrary

and

capricious

for

the

Agency to single out TDS as the only water quality related effluent

standard included in the permit.

 The Board assumes that the Agency

determined that there was

 a possibility of Peabody causing a TDS

water quality violation but that the possibility of other water

quality violations was too remote to warrant inclusion in the

permit.

 The Agency clearly has the authority to make this deter-

mination under Section

 39 of the Act.

 The Board will not hold that

the Agency must include the entire body of water law in the language

of the permit.

 To do so would defeat an obvious purpose of the

permit system:

 to spell out with particularity the law applicable

to.a given facility.

Peabody further argues that under the second sentence of Water

Rule 910(b)

 the Agency should have made a waste load allocation in

imposing a water quality related effluent standard:

 “In any case

in which an NPDES Permit applies any more stringent effluent limit-

ation based upon applicable water quality standards,

 a waste load

allocation shall be prepared to ensure that the discharge author-

ized by the permit is consistent with applicable water quality

standards”

 Water

 Rule 910(b).

 In its Opinion accompanying the

adoption of this rule, the Board said that it provided that the

Agency

“

 must

conduct

wasteload

allocations

any

 case where

more stringent standards are applied to a discharge pursuant to

Rule 910(a) (1),

(2)

and

 (3).

.“

(14

PCB

674).

The

comment

does not mention Water Rule 910(a) (4)

 which provides for limitations

adopted pursuant to state water quality regulations.

 However,

although the first sentence of Rule 910(b)

 refers explicitly to

Rules

 910(a) (1),

(2)

and

 (3),

 the second sentence appears to refer

to

Rule 910(a) (4).

 The Agency offers no interpretation of these

rules

 in its brief, but from its actions the Board can infer that

it

believes the waste load allocation is optional in this case.

As

 the permit is written, Peabody is virtually unregulated

during high stream flow,

 but must restrict its discharge during

low flow to avoid causing a water quality violation.

 If the Board

were to determine that the waste load allocation is mandatory in

this case,

 it would not necessarily order the condition excised,

but could order the Agency to make a wasteload allocation.

 At the

35—383

—6—

very least this would be another limitation on Peabody’s permit,

and it could be a very restrictive limitation if the Agency is to

be obliged to specify a number which Peabody must meet at all times

to avoid causing a water quality violation during times of low flow.

Even, though Peabody apparently demands this, the Board is reluctant

interfere

with

Agency

interpretation

which

seems

adequately

protect the environment and which avoids what may well be a harsh re-

 sult.

The

Board therefore holds that Water Rule 910(b)

 does not man-

date a waste load allocation for a water quality related TDS effluent

standard.

Peabody also objects that inclusion of the TDS water quality

condition in the NPDES permit subjects it to greater possible penal-

ties than violation of the water quality standards of Rule 203.

Al-

though the penalties

 for NPDES permit violation are greater than for

violation

 of the Act and rules, the penalties are provided by statute.

Furthermore, one of the purposes of the permit system is to put the

discharger on full notice of its cleanup responsibilities so there is

no question as to inadequate notice or confusion regarding the law’s

requirements.

 NRDC

v.

 Train,

 396 F.

 Supp.

 1393,

1400

 (1975).

The

permit condition in question furthers this policy of notice and

specificity.

CATASTROPHIC RAIN

Peabody objects that the daily maximum concentration for iron

is not subject

exception

for

bypass

discharge

from

facilities

designed to contain a 10 year,

 24-hour precipitation event.

The

permit included the following effluent limitations:

30 Day Average

 Daily Maximum

Total Suspended Solids

 (TSS)

35

 mg/l*

70

 mg/l*

Manganese

 (Total)

 (Mn)

 2.0*

 4.0*

Iron

 (Total)

 (Fe)

35*

7

The parameters marked with an asterisk are subject to the 10 year,

24-hour precipitation exception.

 At the hearing Peabody presented

evidence that sound engineering practice and federal mine safety

regulations require that holding ponds be designed to bypass a 10

year, 24-hour precipitation event

CR.

 31).

 An engineer offered an

opinion that,

 unless the iron daily maximum were also excepted,

it

would be impossible to design to so bypass

(R.

 26).

 Although hard-

ship might be relevant in the. context of a variance or rule change,

it

 is not at issue on permit appeal.

 Peabody also objects that the

permit does not provide for “meaningful

excursions”

from

year,

24-hour event.

 Peabody has not referred the Board to any law which

requires such an excursion or that it be meaningful if given.

The federal regulations cited in the record are based on best

practicable control technology currently available.

 More stringent

35—

384

—7—

new source performance standards have been promulgated for the coal

 mining point source category.

 The record

 is silent as to why these

were not applied to Peabody’s new mine.

 The Board assumes that the

Agency

 is correct

 as to the applicable federal

 law.

 The following

table

summary

the

federal

and

state

effluent

limitations

(Mine

Rule

606

and

CFR

434.42).

Federal

 Illinois

Day

Average

Daily

Maximum

TSS

mg/l*

mg/11’2

(Total)3

2.0*

4.0*

(Total)

35*

7.0*

*Subject to

 10 year,

 24-hour precipitation event exception.

1Applicable at all times unless treatment is provided

 Mine

Rule 601(d) (2)1.

2Applicable at all times except during a rainfall which is

demonstrated

have

caused

violation

the

standard;

which

event

150

mg/l

applicable.

3Applies

only

acid

mine

 drainage

(40

CFR

434.30).

Prior

the

hearing

the

Agency

agreed

delete

the

manganese

limit-

ation because Peabody’s drainage will be alkaline.

 Manganese

is included in this table only

 for purposes of discussion.

In writing an NPDES permit, the Agency must apply the more

stringent of the federal or state limitations

 Water

 Rule 910(a)

and Sections 301(b) (1) (c)

 and 510 of the Federal

Water

Pollution

Control Act (FWPCA).

 In Peabody’s permit it appears that the

Agency has applied the federal limitations

 to all the parameters

except

iron

(total)

daily

maximum,

where

has

applied

the

state standard of

 7 mg/i with no 10 year,

 24—hour exception.

Part of Peabody’s complaint is that the Agency has applied fed-

eral law to two parameters but state law to the third.

 Apparently

the Agency has

determined that the federal limitation is more strin-

gent than the state with regard to TSS and manganese.

 Peabody does

not object to this conclusion but contends that application of a more

stringent federal limitation to one parameter implies that the re-

maining parameters are also subject to federal law.

 The Board rejects

this argument.

 In writing a permit,

 the Agency must divide the permit

into sections, determine section by section whether state or federal

regulation

stringent

and

apply

the

stringent

rule

that

section.

The

Agency

has

apparently

done

this.

The

record

this

case

presents

further

question

what

extent

the

permit

should

subdivided

application

Water

Rule

910(a).

Although

the

 parties have not briefed this question,

it

merits discussion.

—8—

Since

Peabody

will

apparently

provide

treatment

other

than

impoundment, the Illinois standard of

 7 mg/l for iron

 (total)

is

applicable

 at all times

(R.

10).

Therefore

Illinois

requires

that

the

thirty

day

average

and

daily

maximum

also

not

exceed

mg/l.

this

conclusion

accepted,

the

federal

and

state

standards

for

iron

can

 compared:

Day

Average

Daily

Maximum

Illinois

mg/i

Federal

35*

7.0*

Permit Condition

 3~5*

7

*Subject to

 10 year,

 24—hour precipitation event exception.

If

mine

discharged

 for thirty consecutive days

 a uniform

5.0

mg/l

iron,

would

violate

the

federal

standard

but

not

the

Illinois

rule.

appears

then

that

the

federal

rule

usually

stringent.

However,

the

event

discharge

mg/i

for

one

day

period

during

year,

24-hour

precipita-

tion

event,

the

Illinois

standard

would

violated

but

not

the

 federal standard.

 The Agency’s position is that the federal stand-

ard is more stringent on a thirty day average,

 but the state stand-

ard is more stringent on

 a daily maximum because it is not subject

to the exception.

 The Agency has written a permit condition which

includes part of both the state and federal rules.

 The permit

condition has been made sufficiently stringent

 so that compliance

with it assures that there will not be a violation of either the

federal

state

standard

under

any

circumstance.

In the case of manganese there

 is no question but that the

federal

standard

always

stringent

than

the

state

standard.

However,

this

not

clear

the

case

TSS.

The

Agency

has

permitted

discharge

daily

maximum

mg/l

TSS.

This

could

violation

the

state

standard

mg/i

which

must

met

all

times.

With

regard

iron

the

Agency

has

combined

the

standards

and

written

permit

condition

which

stringent

than

either

the

state

federal

limitation.

However,

the

case

TSS

the

Agency

has

apparently

 determined that the federal regulation is more

stringent

and

then

applied

the

federal

averaging

rule

and

exception,

ignoring

possible

violations

that

could

result

from

application

the

Illinois

averaging

rule.

The

different

treatment

iron

and

TSS

raises

further

 question of the proper interpretation of “more

stringent

limitation.”

The

Board

will

defer

decision

since

the

parties

have

not

addressed

this

issue

the

briefs.

35— :386

—9—

The Board has examined Peabody’s contentions and finds them

 without merit as grounds for a permit appeal.

 A related regula-

tory proceeding is before the Board

 (R76—20 and R77-lO, consoli-

dated).

 There is a proposal for an interim regulation relaxing

the TDS effluent limitation in water quality limited situations.

the

same

proceeding

the

Agency

proposes

change

the

mine

effluent

standard

for

iron

conform

with

the

federal

regulation.

This

Opinion

constitutes

the

Board’s

findings

fact

and

conclusions

law

this

matter.

ORDER

the

Order

the

Pollution

Control

Board

that

the

Agency’s

grant

NPDES

Permit

No.

0059480

Peabody

Coal

Company

affirmed

with

conditions

written.

Christan

Moffett,

Clerk

the

Illinois

Pollution

Control

Board, ,~erebycertify

he

 bove Opinion and Order were adopted on

the

~

 day ~

 1979 by

 a vote of~O

Christan

Moffet

,~~1erk

Illinois

Pollution

‘S~troi Board

•:~