ILLINOIS POLLUTION CONTROL BOARD
    April 19, 2001
    PRAIRIE RIVERS NETWORK, )
    )
    Petitioner, )
    )
    v. ) PCB 01-112
    ) (Permit Appeal – NPDES, Third Party)
    ILLINOIS ENVIRONMENTAL )
    PROTECTION AGENCY and BLACK )
    BEAUTY COAL COMPANY, )
    )
    Respondents. )
    DISSENTING OPINION (by S.T. Lawton, Jr. and N.J. Melas):
    We respectfully dissent from the Board’s order issued today in this matter. We believe
    that the Board abused its discretion by not permitting Vermilion Coal Company (VCC) to
    intervene in this matter. Indeed, we find it difficult to conceive of a factual situation that more
    clearly conforms to the regulatory predicate that the purported intervenor “may be adversely
    affected by a final Board order.” 35 Ill. Adm. Code 101.402(d)(3).
    VCC alleges in its March 5, 2001 motion to intervene that it owns the coal that Black
    Beauty Coal Company (BBCC) seeks to mine pursuant to the National Pollutant Discharge
    Elimination System (NPDES) permit at issue in this matter. VCC argues that its ownership of
    the coal creates a substantial economic interest in the status of the NPDES permit. VCC Mot. at
    1.
    1
    VCC states a basis for an allowance that is consistent with the Environmental Protection Act
    (Act) and the Board’s regulations.
    VCC filed a supplemental petition to intervene in this matter on April 11, 2001,
    2
    in
    response to the Board order on April 5, 2001, requesting more information on the issue. VCC
    included in the supplemental petition a copy of a title insurance commitment for the coal to be
    mined by BBCC in this matter, the lease of its coal interests to the Catlin Coal Company (which
    was transferred to BBCC), and an affidavit by Frederick Keady, president of VCC. VCC alleges
    in the April 11, 2000 petition that the coal referenced in the title insurance commitment has a
    value upwards of $30 million if it is mined, and no value if it is not mined. Supp. Pet. at 1.
    Keady, in his affidavit, reaffirms that VCC has a $ 30 million interest in the coal, and alleges that
    VCC and its affiliates invested over $20 million to acquire, preserve, and maintain its coal rights
    in Vermilion County, Illinois. Supp. Pet. Exh. C. VCC alleges in the supplemental petition that
    1
    VCC filed a motion to intervene with the Board on March 5, 2001, which will be referred to as
    “VCC Mot. at ___.”
    2
    The VCC supplemental petition for leave to intervene, filed on April 11, 2001, will be referred
    to as “Supp. Pet. at ___.”
    2
    it “will suffer substantial and irreversible damage by a reversal of the [Agency’s] decision to
    issue the NPDES permit that is the subject matter of these proceedings.” Supp. Pet. at 2.
    VCC satisfied the general requirements of intervention, pursuant to Section 101.402(d) of
    the Board’s procedural rules. See 35 Ill. Adm. Code 101.402(d). The Board has the discretion to
    allow VCC to intervene in this matter because it provided information, which demonstrates that
    it meets the third factor of the regulation, in that VCC may be adversely affected by a final Board
    order. See 35 Ill. Adm. Code 101.402(d)(3). VCC argues in its motion that its alleged
    ownership interest in the coal, which BBCC would mine in accordance with the NPDES permit
    in this matter, may be adversely affected by the final Board order. Since the motion by VCC to
    intervene in this proceeding is timely, and meets the requirements under 35 Ill. Adm. Code
    101.402(d), the Board should have granted the motion by VCC to intervene in this proceeding.
    For these reasons we respectfully dissent.
    Samuel T. Lawton, Jr.
    Board Member
    Nicholas J. Melas
    Board Member
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the
    above dissenting opinion was submitted on the 20th day of April 2001.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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