ILLINOIS POLLUTION CONTROL

BOARD

January 24, 1980

IN

THE

MATTER OF:

)

)

PROPOSED AMENDMENTS TO CHAPTER

4

R7

-

OF THE REGULATIONS OF THE ILLINOIS

R

-

0

POLLUTION CONTROL BOARD.

)

PROPOSED OPINION OF THE

BOARD

(by

Dr. Satchell):

This

matter

comes

before

the

Board

upon

two

proposals

for

regulatory

change.

On

September

21,

1976

Ohio

Power

Company

filed a petition for a change in the definition of mine storage

facility, docketed R76-20.

On April 20,

1977 the Environmental

Protection Agency (Agency) filed a petition proposing to repeal

Chapter 4:

Mine Related Pollution and substitute a new version,

docketed R77-10.

On August 18, 1977 the proceedings were con-

solidated on motion of Ohio Power Company.

The proposal in R76—20

was published in Environmental Register Number 135 on August 15,

1976.

R77—10 was published in Environmental Register Number 146

on May 2,

1977.

Public hearings on the proposal were held in

Springfield on October 31,

1977 and in Carbondale on November 2

and 3, 1977.

During the course of these hearings,

two amended

proposals were presented by the Agency.

On

November

21, 1978 the Institute of Natural Resources

(Institute), pursuant to suggestion

made

by the Illinois Coal

Association

at

the

merit

hearings,

filed

with

the

Board

a

proposal

for interim regulations (R. 141).

On December 14, 1978 the Board

ordered the record in this proceeding held open to take evidence

on

the

proposal

for

an

interim

regulation

concerning

total

dis-

solved

solids in mine discharge (Rule 605; 32 PCB 321).

An Economic Impact Study (EcIS) was prepared by the Institute.

Public hearings on the EcIS were held in Springfield on July 31

and

in

Carbondale

on August 2, 1979.

At these hearings evidence

was also taken on the merits of the Institute’s interim proposal.

On September 5, 1979 the Agency filed a third amended proposal.

On October 2,

1979 the Illinois Coal Association filed a set of

comments.

On October 4,

1979 Monterey Coal Company filed its

comments.

On that same date the Illinois Mine Related Pollution

Task Force filed a position paper.

On October 11, 1979 the Board

received the comment

of

Directors

Michael

Mauzy

of

the

Agency

and

Brad

Evilsizer of the Illinois Department of Mines and Minerals.

37—211

---

The hearings were attended by members of the public and

representatives

of various coal

companies and the Illinois Coal

Association

(Coal Association).~ Some of the latter were also

rnem.bers of the Task Force.

The industry representatives pre~

sented testimony and cross~examinedwitnesses.

SUMMARY OF_PROPOSED CHANGES

The Chapter

4 revisions, drafted on the Order dated December

13,

1979, are largely to accommodate the NPDES permit requirement.

Currently mines require two environmental permits

in Illinois:

they

must have a Chapter

4 state permit,

and,

in most cases, an NPDES

permit under Chapter

3.

The new Chapter

4 provides specifically

for Chapter

4 NPDES permits.

The Agency regards this permit require~

ment

as essentially duplicative.

The new Chapter

4 will exempt

from the state permit requirement those mines which hold an NPDES

permit

(Rule 402),

The Proposal also contains a significant expansion of the

scope of Chapter

4 to include coal transfer stations.

This was

the proposal of Ohio Power Company which was denominated R76-20

and consolidated with the Agency~sproposal.

This will

allow

coal

transfer and similar facilities to take advantage of the

more

lenient effluent standards contained in Part VI of Chapter

4

(Rule 201:

“Mining Activities”),

Since the inclusion of coal

transfer facilities under Chapter

4 would represent a significant

expansion of the permit requirement,

there are also provided ex-

emptions from the permit requirement for smaller facilities

(Rule

403).

The effluent limitations contained

in Chapter

4 have been

revised to more closely follow ~the federal guidelines.

The

averaging rule has also been changed to be similar to that found

in federal guidelines and in the proposal

in R76~21 (Rules

601,

606).

The present Chapter 4 requires an abandonment permit before

a mine

is abandoned.

The Agency has found these provisions

to be

unworkable,

The new Chapter

4 will provide for an abandonment

plan which is

filed with the permit application and incorporated

into the permit

as

a condition (Rule

509),

Most of the technical rules governing coaL mining have been

removed from Chapter 4.

The remaining document

is largely pro~

cedural,

There is, however, provision for publication of an

Agency guidance document which would contain design criteria for

coal mines and treatment works

(Rule 501),

There is a similar

provision in the water rules

(Water Pollution Rule 967).

---

Most of the controversy has centered around Rule 605 which

is unchanged from the old Chapter

4.

This rule requires that

coal mine effluents not cause violation of the water quality

standards contained in Chapter

3.

Apparently most of the coal

mines in the state cause such water quality violations with

respect to total dissolved solids

(TDS), chloride and sulfate,

Late in the proceeding the Institute

of Natural Resources

and

the Agency proposed a temporary rule to exempt coal mines from

Rule 605 into the year

1981,

at. which time the Institute intends

to

propose

an alternative to Rule 605

(32 PCB 321).

In the

interim, compliance will be required with good housekeeping

practices contained in a code of good mining practices promul~

gated by a joint government—industry task force.

STATE OR NPDES PERMIT

Although elimination of duplicate permits and provision

for

exemption from the state permit requirements will result in dollar

savings

to the Agency and to the industry,

it adds considerable

complexity to Chapter

4.

A facility carrying out mining activi~

ties may fall into one of the following categories:

2.

Chapter

4 NPDES permit;

4,

Exempt from state permit

(and not required to have an

NPDES permit).

The following outline determines

into which permit category

a facility will fall:

I,

Does the applicant already possess a~Chapter4 state or

NPDES permit for the facility?

~If

so,

is permit modification required under Rules

304(b)

or 407?

2,

If not,

does the applicant propose to carry out “mining

activities” within the meaning of Rule 201?

~—If

the applicant does~not propose to carry out mining

activities

a Chapter

4 permit is not required under

Rule 401.

---

3,

If the appli~cationproposes mining activities, then does

the applicant already possess

a Chapter

3 NPDES permit

for the facility

Rule

402(a))?

~If

so, then the Chapter

4 requirements will be written

into the Chapter

3 NPDES permit

(Rule 302),

4,

.If the applicant has no NPDES permit, then does the

application propose a discharge from a point source into

navigable waters within the meaning of the FWPCA

(Rule

402)?

~If

so, then under Rules

300(a)

and 302 the requirements

of Chapter

3 and Chapter

4 will be written into one NPDES

permit for the facility subject to the standard for

permit issuance contained in Rule

502.

5,

If an NPDES permit is neither held nor required,

then

does the facility qualify for an exemption from the state

permit requirement under Rule 403?

~If

not,

a state permit

is required under Rule

401.

6,

If so, has the Agency notified the facility that a state

permit

is nevertheless required under Rule

403(c)?

~If

so, a state permit will be written pursuant to Rule

401, subject to the general standard for permit issuance

contained in Rule 502;

otherwise,

a Chapter

4 permit is

not required, provided the operator notifies the Agency

of the location of the facility and claims exemption

prior

to the filing of an enforcement action

Rule

403(b),

There are also construction permits

(Rule 401)

and construction

authorizations

(Rule

304),

These are special, limited state and

NPDES permits, respectively.

In the case of a facility which al~

ready has a Chapter

4 permit, their issuance will amount to a permit

modification in the above outline,

In the case of a new Chapter

4

facility,

the state or NPDES permit first issued will ordinarily be

a construction permit or authorization,

although there

is flexi~

bility on this point.

ECONOMIC IMPACT_STUDY

The Economic Impact Study was prepared for the Institute by

Dr. William C, Hood and Dr.

Donald W.

Lybecker.

The study found

few identifiable costs and benefits and concluded that the economic

impact of proposed changes would be minimal,

The specific findings

---

will be discussed with the individual sections which were found

to have an economic impact.

The transcripts

of the two sets of hearings are not numbered

sequentially.

It is therefore necessary to distinguish page

numbers.

“E” refers to

a page number in the economic impact

hearings, while “R” refers to~a page number in the merit hearings.

At the hearings it was suggested that the Agency~sproposal

needed to be more carefully drawn

(R,

119).

It was further sug~

gested that for clarity it was desirable to separate the provisions

applicable

to:

Cl)

NPDES permits,

(2)

state permits and

(3) both

CR.

100).

The Agency’s response to these criticisms was three

amended proposals which adjusted specific rules to meet specific

objections.

The Agency suggested that the editorial changes were

up to the Board

CR,

120).

Accordingly, the Board has regrouped the

provisions

from the arrangement in the Agency proposal.

After the

proposal had been rearranged it became apparent that its lack of

structure had hidden a number of circular definitions and con-

flicting provisions,

An effort has been made to eliminate these

difficulties,

Specific alterations in the Agency’s proposal will

be discussed with each section,

To aid in cross referencing the

proposed Opinion and Order to the proposal and the old Chapter

4,

the comparable section numbers have been listed in parentheses

after the heading of each rule in this Opinion.

For example,

“P~305”refers

to Rule 305

in the Agency proposal and “0~605” is

Rule 605 in the old Chapter

4.

Rule 101 sets forth the Board’s authority to regulate mine

related pollution under §512 and 13 of the Act which concern water

pollution.

The old Chapter 4 also listed §~9, 21, and

22 of the

Act which related to air pollution and land pollution and refuse

disposal.

These have been omitted from the revision,

Mining

activities are subject to these provisions of the Act and to the

Board regulations adopted under them~ Chapter

2:

Air Pollution

Control Regulations and Charter

7:

Solid Waste Rules and Regu’-

lations, as well as other Board regulations

CR.

43),

---

Mine refuse disposal is regulated by Chapter

4 pursuant to

§12 Cd)

of the Act which concerns depositing contaminants upon the

land so as to cause a water pollution hazard,

It is arguable that

mine refuse

is also “refuse” within the meaning of §821 and 22,

However,

it is not the Board’s intention that disposal of mine

refuse on a permitted Chapter

4 facility be subject to Chapter

7

as well

as Ch.apter 4,

Since Chapter

3 and Chapter

4 both govern water pollution

there must be special rules establishing the respective jurisdictions.

Chapter

4 governs mining activities which include mine related

facilities

as defined by Rule

201.

Part VI establishes effluent

limits for mine discharges

(Rule

600).

Other discharges and

facilities

are regulated under~Chapter 3.

102

Policy

CP—l02;

0—102)

This

is largely unchanged from the Agency proposal and the

old Chapter

4.

The wording has been changed

to include the

defined terms “mining activities”

and “mine related facility”

CR.

201)

103

Purpose

(P—103;

0—102)

This has been taken largely unchanged from the second para~-

graph of old Rule

102,

104

Compliance with Other Laws Required

(P—lOS;

0—701)

This has been changed to indicate required compliance with

“The Surface Coal Mining Land Conservation

and Reclamation Act.”

The title of the law passed in 1979 differS

slightly from the

old title

CR.

43, 58,

67).

105

Validity Not Affected

(P—106;

0—702)

This is unchanged.

106

Repealer

This h~sbeen added to the Agency proposal.

There

is a

proviso that if ~the entire Chapter

4 is

found invalid or if its

enforcement is stayed,

then the old Chapter

4 will again come

into effect,

There

is also a provision in Rule 704 which con-

tinues the abandonment permit requirements of old Rule 502 until

permits containing abandonment plans are issued.

---

200

Terms Defined Elsewhere

This contains a listing of terms used in Chapter

4 which are

defined in the Act, Chapter 3 or the FWPCA,

Abandon

:

The definition of abandon has been enlarged to

inclu~’~~sfer of ownership.”

An operator who sells a~mine

may be obliged to execute

an abandonment plan under Rule

509,

Under the old Chapter

4 persons attempted to evade their respon-

sibilities for properly closing a site by transfer to a party

with insufficient resources

to close the site.

This change seeks

to remedy this

CR,

9,;

E.

41).

The A~encyproposal included “fail to open” under the defin-

ition of abandonment,

This has been deleted on the Agency’s

motion.

Failure to open will not th.erefore require execution of

the abandonment plan.

However,

any construction activity related

to preparation for mining amounts to opening a mine.

Therefore,

execution of the abandonment plan will be required unless the

operator takes no action whatsoever preparatory to mining.

Acid- roducin

Material:

The definition has been changed

slight y

to clan

y tte reiationship between pyrite, iron and

sulfur.

Pyritic compounds include pyrite, marcasite

and other

compounds of iron and sulfur,

These are acid—producing.

Other

compounds of sulfur include sulfates and organic sulfur,

Sulfates

are totally oxidized and hence do not,

as such,

proddce acid.

Organic and elemental sulfur do not occur

in .large amounts

in

Illinois coal, but are acid-producing.

The definition has also

been changed slightly to specify consideration of the “quality of

drainage produced by mining on sites with similar ~soi1s,”

This

is in recognition of the fact that little mining actually occurs

in the soil itself

CR,

84)

Affected Land:

The definition has been expanded to include

all land owned, controlled or used by the operator in connection

with mining activities With the exception of the surface area

above underground mines,

The old definition included only the

actual mined area,

refuse area,

etc.

The definition has also

been altered to exclude land once it has been reclaimed and

abandoned to the satisfaction of the Agency

CR..

10),

Under Rule

513 the affected land cannot be outside the permit area during

the permit term,

---

—8—

Coal Transfer Facilities or Coal Storage Yard:

This is a

nev

definition.

Transfer

and

storage fatuities have been in-

cluded

in

the

definitions

of

mining

activities

and

mine

related

facilities

and

have

thus

been

brought

under

Chapter.

4

regulation.

These

facilities

have

much

inconmion

with

coal

mines

and

often

are

larger

than

small

mines

and

pose

a

similar

pollution

threat.

Effluents

from

these

facilities

will

now

be

regulated

under

Part

VI

rather

than

under

Chapter

3.

Facilities

which

have

NPLES

permits

will

now

fall

under

Part

In

rather

than

the

permitting

provisions

of Chapter 3.

Facilities which are not required to

have

NPDES

permits

may

be

required

to

obtain

a

state

permit

under

Part

IV

CR.

10,

19,

60;

E.

41,

45,

49,

61,

101).

This

modification

potentially

represents

a

large

expansion

of

the

permit

requirement.

However,

Rule

403

provides

exemptions

from

the

state

permit

requirements

for

domestic

retail

sales

yards

and

consumer

stockpiles.

Larger facilities are probably already

required

to

have

an

NPDES

permit,

in

which

event

Chapter

4

pro-

visions

will

be

written

into

the

Chapter

3

permit.

The Agency proposal specified that coaj. transfer facilities

and coal storage yards were included not only in the definition

of “mining activity,” but also in “mining” and “mine area.”

This

usage

was

in conflict with the general definitions of these terms

in the proposal and it is not clear what its purpose was.

These

have

therefore been deleted.

However, the definition has been

exp anded

‘to

specify

that

transfer

facilities

and

coal

storage

yards

are

“mine

related

facilities.”

The

Economic

Impact

Study

concluded

that

inclusion

of

coal

transfer

facilities

and

storage

yards

under

Chapter

4

would

result

both

in

costs

and benefits

to

the

industry.

They

would

have

to

prepare

an

abandonment

plan

at

a

cost

of

a

few

hundred

to

a

few

thousand

dollars.

On

the

other

hand,

they

will

not

have

to

invest

as

much

to

construct

larger

treatment

facilities

to

meet

the

more

stringent

effluent

standards

of

Chapter

3

(EcIS

35;

E.

41,

45,

61)

The

looser

effluent

standards

would

have

some

negative

effect

on

the

environment.

However,,

most

of

these

facilities

are

located

near

major

rivers

where

ample

dilution

is

available

(EcIS

17;

E.

49,

101).

Constructian

Authorization:

Authorization

under

Rule

304

to

prepare

land

for

mining

activities

or

to

construct

mine

related

facilities.

Construction

authorization

is

issued to a person who

holds

or

is

required

to

have

an

NPDES

permit

CR.

37—2 18

---

—9--

Construction

Permit:

A permit under Rule 401 allowing the

operator to prepare to carry out mining activities or to construct

mine related facilities (R11),

7~construction permit

is a state

permit issued to an operator who does not hold an NPDES permit.

Under Rule 304 it is possible to issue a construction permit to a

person who may be required to apply for an NPDES permit,

This

will not affect the requirement to obtain an NPDES permit for

operation, but may simplify administration in case there

is doubt

as to which type of permit is required.

Construction of mine related facilities

is a mining activity,

Construction may therefore be permitted by an operating permit as

well

as

a construction permit.

The question is not what the title

of the permit

is hut what the language of the permit allows,

The

construction permit is a special type of operating permit which

will

usually be issued for a short period of time to allow the

operator to undertake something out of the ordinary routine of

mining,

The construction permit contemplates eventual

appli-.

cation for an operating permit before daily operation is begun.

It would he better to exclude from the definition of mining

activities the construction of mine related facilities,

Mining

could be separated neatly into two worlds of construction and

operation, each with its own permit,

However,

such definition

would

be difficult because mining

is essentially an ongoing

construction process.

It

is not the Board’s intent to require

operators to make continuous application for construction permits

or authorizations as mining proceeds ~(Comments of Coal Association).

Domestic Retail Sales Yard:

A coal stockpile which supplies

only homeowners,

businesses or small industries or other institu-.

tions for individual consumption,

This does not include a sales

yard located at a mine or mine related facility,

On the Agency’s

motion,

a specific exclusion for sales yards which supply large

industrial operations has been excluded from the proposal,

The

word “small” has been inserted in front of industries

in the

first half of the definition,

This does not change the meaning

(H,

11,

28;

E.

43),

Domestic retail

sales yards are excluded from the state

permit requirement by Rule 403.

This does not, however, exempt

such

a

facility

from

the

requirement

of

obtaining

an

NPDES

permit

if the facility is otherwise required to obtain such a permit,

in

which case the coal pile will he permitted under Part III of Chapter

IV

(E,

84),

37—219

---

Drainage Course:

Definition unchanged,

Facility:

This definition has been added to the Agency

proposal.

The term was used in that propQsal,

although undefined,

along with “mine,”

“mining facility,” and “operation.”

A facility

is

a contiguous

area of land,

including all structures above or

below ground, which

is owned or controlled by one person.

Two

ermits

are

required

if

there

are

either

two

isolated

pieces

of

land with one operatot or adjacent tracts with two operators.

The definition of mining activity in the proposal specified

“activities on land owned or controlled by the operator

.

.

This has been changed to “activities on ~a facility,”

The impli-

cation that a permit is limited to one operator on one site

is

now contained in the definition of facility.

The one-site/one-operator limitation,

although self-evident

is of central importance deserving clarification in a separate

definition.

Furthermore,

it is logically remote from the

Jefinition of.mining activity, except to the extent that offsite

activities are not mining activities within the meaning of

Chapter

4.

The facility may be larger than the affected land,

It may

include undisturbed land and contain within it facilities which

are regulated under Chapter

3 as well as mine related facilities.

The permit area must be contained within one facility, but the

permit area may be less than the entire facility.

It is the Board’s intention that a site under control of

one operator but bisected by a roadway or other easement should

be one facility.

In the event there are two closely related, but

noncontiguous facilities under the control of one operator,

the

Agency may allow a combined permit application and issue combined

permits, if it

is convenient to do so,

In the event there are

separate surface installations serving a single mine,

there will

be one facility,

The phrase “owned or controlled” does not require permits

of both the owner of record title and,

for instance,

a lessee,

However,

in the event control of mining activities

is in dispute,

the owner may be required to obtain

a permit also,

Otherwise the

per~mitwill be required of the person in control of the mining

activities,

The fact that two or more persons may be

in control

of part of the facility is irrelevant so long as only one controls

mining activities;

e.g,,

utility easements or farm operations have

no effect on “control”

for the purpose of determining the extent

of the facility,

---

—11--

During the hearings the Agency sought to amend the proposed

definition

of

“operator”

to specifically include co—op preparation

plants

(H,

12,

29; Agency

Amendment).

The argument had been made

that,

since there was no one operator,

Chapter

4

was not applic-

able to the co—op.

However, “operator” has been redefined to

include any person who carries out mining activities.

The question

centers not on the legal character of the person,

but on whether

he carries out mining activities,

Even if a co—op falls under no

other characteri~zationin the definition of “person” in the Act,

then it will probably be a partnership within the meaning of

Chapter 106 1/2,

§6, Illinois Revised Statutes,

If the facility

if physically separated,

then multiple permits may be required.

However,

if one site is operated by several persons, the Agency

may require them to enter into a formal agreement fixing control

prior to permit issuance,

Mine Area or Mined Area:

Although the definition

is

largely

unchanged,

it has been altered to exclude the unmined surface

land directly above underground mine workings that is not other--

wise disturbed by mining activitites,

The changes

in wording more

clearly state the definition

(H,

91),

Mine Discharge:

Part VI regulates mine discharges,

The pro--

duction of a mine discharge is a mining activity,

The Agency pro--

posal did not include a definition of mine discharge.

This defin-

ition has been taken from Rule 600

(P—30l).

Since the definition

is fairly long it was thought better to set it forth in definitions

and then simply use the term “mine discharge”

in Part VI.

The proposal brings preparation and milling plant effluents

into Chapter

4 for the first time

(R,.~ 15).

The definition has also

been expanded somewhat to include discharge from affected land

and runoff from land,

The Agency definition was somewhat more

limited in scope,

This may have been inadvertently omitted from

the Agency proposal since it is

contained in the old version of

Chapter

4

P--601(a),P--301(a)

CR.

51),

Coal mining is closely connected with activities affecting

the land,

The exclusion of runoff from part of the affected land

from Chapter

4 regulation could have unintended results.

It could

be argued under the Agency proposal that runoff from the affected

land other than from the mining area or the mine refuse area or

processing plant, etc., would be regulated by Chapter

3.

This

could be used to

justify required segregation of waste streams

where

there was no sound environmental reason for doing so,

This

is not intended, however, to limit the Agency’s power under Rule

604

to require segregation of waste streams,

37—221

---

—12—

A definition of other discharges is also included.

These

include sanitary sewers and discharges from facilities and act-

ivities which are not directly related to mining activities.

Other discharges are regulated under Chapter

3.

If a facility

with an NPDES permit has both mine discharges and other discharges,

they will be regulated by Chapter

4 or Chapter

3 respectively,

although there will be~one permit only

(Rule

302),

Mine Refuse:

Definition i~nchanged CR..

48),

Mine Refuse Area:

Definition unchaged.

Mine Refuse Pile:

Definition unchanged.

~

A portion of a facility which is

related to mining activities,

This

is a new definition taken

from the Agency’s amended proposal,

the rule on construction

authorization

(Rule

304; P—204),

That amendment required a con-

struction permit for “any facilities related to mining activities.”

This has been shortened to “mine related facility” and used

throughout.

There may be several mine related facilities within

a facility,

There may also be other facilities,

including

facilities regulated under Chapter

3,

Mining:

The Agency proposal contained an exception from the

definition of mining for “dredging operations contained solely in

natural bodies of water,”

In a letter to the Board dated Septem-

ber 26,

1977 the Illinois Department of Conservation objected to

this exemption.

At the hearings the Agency was unable to explain

why this was excluded from the definition of mining

CR.

97).

This exception has therefore been deleted from the proposal.

These operations may, however, be exempt from the state permit

requirement under Rule

403,

An example

of a regulated dredging

operation

is found in Votava v, Material Service Corp.,

2d Dis-

trict,

#78—489

(July ITY

The wording of the definition has been somewhat changed

to

include the surface and underground extraction or processing of

natural deposits of coal,

clay,

fluorspar,

gravel,

lead bearing

ores,

sand,

stone, peat,

zinc bearing ores or other minerals.

It

was pointed out at the hearing that lead and zinc do not occur

in

their native state in Illinois and that peat is mined in Illinois

CR.

93)

37—222

---

—13--

All activities on a facility which are

directly

in furtherance of mining~

This definition,

together with

the permit requirement of Rule 401,

defines the scope of Chapter

4

(H,

11,

70).

The Agency’s definition has been essentially adopted,

However,

a listing of specific

mining activities mentioned in the

proposal have

been listed with the definition,

The Agency proposal contained many permit requirements

(P--

200,

201,

204,

251,

256,

257,

259,

260,

261,

262,

263 and 265).

All of these were in conflict with the requirement of an operating

permit to carry out mining activities,

Many also conflicted with

other permit requirements through the use of different language

to cover similar activities,

These have been brought together

under the definition of mining activities,

There

is now only one

permit requirement,

the state permits of Rule

401,

NPDES permits

have been made an exception

to Rule 401.

This has eliminated con--

flicting language and provides a simple statement of the scope of

Chapter

4.

The Agency’s proposal contained several

rules stating

generally

that a permit was required to carry out mining activities

or to carry out

a special

type of mining activity.

The proposed

Chapter 4 contains several rules of

the form:

“Do not do A

or

B,”

where B is

a subset of A.

These have

been retained for clarity

even though they are redundant

(Rules

304,

400,

401,

501,

502,

505),

It

is possible t~interpret this

as excluding

the special

type from

the definition of mining activity.

Therefore the def--

inition of

mining activities has been altered to make it clear

that the special type is

still a mining activity.

Opening

a Mine:

Any construction activity related to the

preparation for th~~gon a facility.

Thi~sis a new definition.

Once

a mine has been opened, it cannot be abandoned without cxc--

cution of the abandonment plan as provided by Rule 510

(R.

11).

Outstanding permits for mines which have never been opened expire

on the effective date of this Chapter as provided by Rule 703.

Permits issued in the future will include a definite expiration

date

as provided by Rules 301 and 409,

The Agency proposal specified preparation for mining on

“the affected land,”

This

has

been changed to “facility”

to

avoid

logical problems since the land cannot be affected prior to open--

ing a mine,

37—223

---

--14--

Opening a mine

is

a mining activity and hence a state

permit, construction or operating,

is required under Rule 401.

A construction permit is required by that section to “Prepare to

carry out mining activities or construct a mine related facility

which could generate refuse, result in

a discharge or have the

potential to cause water pollution

.

.

.“

Ordinarily a permit

will be obtained before the mine is opened.

Whether a permit is

required for construction activity preliminary to that specified

in Rule 401 depends

on intent.

Turning a spadeful of earth or

driving a nail with the intent of ultimately mining

is opening

a mine, which is

a mining activity requiring a state permit.

However,

the question of intent vanishes once it can be said

that a mine related facility has been constructed which could

generate refuse, etc.

In this case a construction permit is

required even if the operator has no intention of mining.

~

A state permit required of a person

carrying out mining activities as required by Rule 401,

An

operating permit is not required for a person holding an NPDES

permit

as provided by Rule 402,

Other exemptions from state

permit requirements

are provided by Rule 403,

Construction permits and operating permits

are referred to

jointly and severally as state permits,

Since mining activities

include construction,

an operating permit may authorize construction,

There is no legal significance to the designation “operating permit”

or “construction permit.”

The language of ~thepermit controls what

is permitted.

Operator:

A person who carries out mining activities.

An

operator must have

a state permit under Rule 401 unless one of the

exemptions of Rules

402 and 403 applies.

The definition has been considerably shortened from the

Agency proposal which listed various sorts of persons.

This list

is quite similar to that found in the definition of “persoh”

found in the Act.

This term has been substituted for the list

for clarity.

It

is

doubtful the Board has the power to regulate

any person who

falls outside the scope of the Act

(R.

12),

The proposal specified “engages in mining or the generation

or disposal of mine refuse or the operation of any coal storage

yard or stockpile area,”

This has been expanded to include all

mining activities,

The listed practices have been moved to the

definition of mining activities,

37—224

---

--15

Under the Agency proposal state permits were required of

operators who carried out mining activities

(P--25l, 256,

257).

Apparently

there were two tests:

Was the person

an operator;

and,

(or?)

was he carrying out mining activities?

This confusion

has been eliminated by making the permit requirement depend on

the definition of mining activity only.

Permittee:

A person who holds a state or NPDES permit.

This

is a new term taken from the new Reclamation Law,

The Agency

proposal spoke of “persons” and “operators.”

Where from the con--

text a rule seems to apply only to permit holders the term “per--

mittee”

has been substituted,

A person who holds

a combined

Chapter

3 and Chapter

4 NPDES permit will be

a “permittee” since

he will hold an NPDES permit issued under Chapter

4.

Slurry:

This definition has been somewhat changed and

expanded to include mill tailings.

Spoil:

This’ definition

is unchanged, but has been clarified

to incl~ë~mineralseams or other deposits.”

This

is

in recog--

nition of the fact that some minerals do not occur in seams, but

occur in lenses or other formations

CR,

99).

State Permit:

A construction permit or operating permit.

~

This definition has been added

to the original proposal.

An Agency amendment expanded the scope

of Rule 505 beyond diversion of surface water around the active

mining area to include diversion around mine refuse areas and

diversion, redirection or impoundment of streams.

At this point

it became simpler to define a term for use in the operative rule.

Surface drainage control also includes

flow augmentation

and controlled release of effluents.

These are suggested methods

of avoiding violation of the TDS water quality standards which

involve stream diversion and/or impoundment.

They will require a

permit under Rule

401,

Surface Mining:

Definition unchanged,

Consideration has been given to bringing this definition

into line with the similar definition in the Reclamation Act.

However,

that act refers only to coal mining, while Chapter

4

covers mining activities

in general.

It is the Board’s intention

to include “surface mining operations”

as defined by §1,03(24)

of the Reclamation Act within the definition of “surface mining”

used in Chapter

4.

37—225

---

—16—

~~~oundMini~:

The definition has been changed

slightly

for

clarification

(R.

12),

Underground Water Resources:

Definition unchanged.

Use of Acid-producing Mine Refuse:

This definition is

~

508; P--259).

Use of

acid--producingmine refuse has been included in the definition

of “mining activity” and the permit requirement, by implication,

moved to Rule 401:

State Permits,

Under the old Chapter

4,

use

of acid-producing mine refuse was illegal

(0--404), Under the

proposal, the Agency may issue permits

(R.

112),

PART III:

NPDES PERMITS

300

Preamble

(P--200)

The wording of the original proposal has been changed to

clarify the NPDES/state permit relationship.

Part III applies

to mining activities carried out by any person who holds an NPDES

permit, regardless of whether he is required to have an NPDES

permit because

of his mining activities,

This part does not seek

to alter the law of who must obtain an NPDES permit,

However,

if

a person must obtain an NPDES permit, the Chapter

4 requirements

will be written into that permit

(R. 12,

19,

69,

100,

103,

167;

B.

43,

82,

84),

Take,

for example,

a large mining operation

which would not be subject to the NPDES permit requirements cx--

cept for a small sanitary waste facility.

If the sanitary waste

facility must have

an NPDES permit,

then the entire facility is

governed by Part III and any Chapter 4 requirements will be

written into the NPDES permit,

The facility will

be

exempt from

the requirement of obtaining a state permit under Rule 402,

Part III also applies

to mining activities carried out

by

persons required to obtain an NPDES permit.

It will be a violation

of Part III to carry out mining activities without an NPDES permit

if those activities are required to have such a permit.

In this

case

there

will

also

be

a

violation

of

Part

IV

since

the

exemption

from

obtaining

a

state

permit

will

not

be

applicable

if

there

is

no

NPDES

permit.

301

Incorporation of NPDES Water Rules

(P--202)

Except to the extent contradicted in Chapter

4,

the rules

contained in subpart A of Part IX of Chapter

3

apply to Chapter 4

NPDES permits.

This incorporates Rules 901--916of Chapter

3 into

Chapter

4.

The permit requirement of Rule 901 is

identical to the

37—226

---

—17—

permit

requirement

of

Rule

302.

The

application

requirement

of

Rule

902

has

been

supplanted

by

the

requirements

of

Rule

504.

Rule

903

is

incorporated.

Ruleè

904 ‘through

909

set

forth

the

permit

application

procedure

before

the

Agency.

These

are

gen-

erally

incorporated

except

to

the

extent

they

may

be

contradicted.

Rule

910(a)

on

general

conditions is included in Chapter 4

subject

to

the

special

conditions

and

Agency

guidance

document

provided

by

Rule

501.

Rules

910 (b),

(c)

and

(d)

concerning

water

quality

,

wasteload

allocation,

effluent

limitations

and

new

source

standards

of

performance

are

included.

Rules

910 (e),

(f),

(g)

and

(h)

concerning

duration

of

permits,

reporting

and

monitoring,

entry

and

inspection,

schedules

of

inspection

and

ccnipliance

are

included.

Rules

910(i)

and

(j)

are

generally

incorporated.

Rule

‘910

(k)

on

maintenance

and

equipment

is

incorporated

subject

to

the

Agency

guidance

document

of

Rule

501.

Rules

910(1)

and

(m)

on

toxic

pollutants

and

deóp

well

disposal are incorporated.

Rule 910(n) on authorization to

construct

is

supplanted

by

Rule

304.

Rules 911 through 915

are

generally

included.

These

are

appeal, authority to suspend,

modify

or

revoke,

revision

of

scheduled

ccmpliance,’

variance

and public

access

to

infcrmation.

Rule

916,

effective

date,

is

not

applicable.

Rule

301

generally

incorporates

procedural

rules

‘applicable

to NPDES permit applications except

to

the

extent

that

these

are

contradicted by the more particular provisions applicabLe to

mines.

This is to be contrasted to Rule 600 which ‘concerns the

applicability

of

the

effluent

and water

quality

standards

of

Parts

II,

In

and

IV

of

Chapter

3.

The

standards

contained

in

Chapter

3

are

generally

inapplicable

to

mine

discharges

‘unless

otherwise

provided.

302

NPDES

Permit

Required

of

Certain

Dischargers

(P-20l)

Rule

302

establishes

the

requirement

of

an

NPDES

permit

for

a

Chapter

4

discharger.

This

merely

repeats

Rule

901

of

Chapter

3

and

the

requirements

of

section

301 (a)

of

the

FWPCA

as

applicable

to

mining

activities.

The

Agency

proposal

also

specified

that

an

NPDES

permit

was

required

of

all

discharges

of

pollutants

or

combination

of

pollutants

from

all

point

sources

as

defined in the

FWPCA

into

navigable

waters

•

The

Board

does

not

disagree

with

this

statement

of

the

NPDES

permit

requirement.

However,

this

language

has

37—227

---

—18--

omitted out of concern that it might be construed not as a

guideline to aid persons unfamiliar with the permit requirement

but as

a new standard for the permit requirement.

It

is not the

Board’s

intention to change the NPDES requirements in this Chapter

4.

Whether the permit is required will be judged solely by Chap--

ter

3 and the FWPCA.

303

Application

(P--203)

Rule 303 requires a person to apply for an NPDES permit

if he is to engage in a mining activity requiring such a permit.

This rule contradicts

the present Rule 902(c)

of Chapter

3.’

303(b)

makes it clear that a person who has applied for

an NPDES permit need not apply for a state permit.

If a person

is in doubt

as to whether an NPDES or state permit

is required,

he should first apply for an NPDES permit,

If the Agency deter-

mines that a state permit is required, it will notify the person

and request him to apply for

a state permit.

There will be no~

penalty for application for the wrong permit.

303(b) will also be applicable in the event the Agency

loses

NPDES

authority

and

notifies

the

permit

holders

that

state

permits are required as provided by Rule 402,

Construction Authorization

(P--204)

Rule 304(b)

provides

for modification of a mining activity

or

mine

related

facility

for

which

the

operator

already

holds

an

NPDES permit,

Modification can be undertaken only pursuant to a

construction authorization which will take the form of a condition

of a new

or supplemental NPDES permit

(H.

13,

68).

Rule 304(a)

covers the more complicated case

in which a

person:

1.

Seeks to open a mine for which an NPDES permit will

or

may be required; or

2.

Seeks

to modify

a facility in such a manner that an

NPDES permit will be required after the modification

but was not before, either because it operated under

a state permit or was exempt; or

3.

Seeks to modify a facility in such a manner

as

to bring

part of it under Chapter

4 where the facility prior to

modi.fication held an NPDES permit but was regulated

under Chapter

3,

37—228

---

—19--

Rule 304(b)

covers

the

usual situation

in which a person

operating under an NPDES permit seeks to modify,

This will be

handled

exclusively

with

a construction authorization.

However,

flexibility

is allowed in the less common situation involving new

construction which will bring a facility under Chapter

4 for the

first time.

These situations could result in confusion.

They may

be handled either by construction authorization or state construc--

tion permit as provided

by

Rule

401,

Rule 304(c) provides that

app1icat~onmust be made at least 180 days in advance.

Rule 304(d)

provides that a person seeking construction authorization will

proceed just as though he were applying for an NPDES permit.

The

Agency may provide construction criteria in its guidance document

promulgated pursuant to Rule

501,

The original proposal contained a requirement that the con--

struction authorization not cause a violation of the conditions of

the NPDES permit.

This has been deleted.

The standard for issu--

ance of a construction authorization will be the same as the

standard for the issuance of a permit.

The question will be

whether the modified facility will cause a violation of the Act

or Rules,

If not,

the conditions of the permit will be adjusted

to allow the modification,

Similar requirements have been dropped

from USEPA regulations

140 C,F.R.

§124,52(b);

44 Fed.

Reg.

32,854,

32,899

(June

7, 1979),

However, Rule 301 incorporates a similar

provision from the present Rule 902(i)

of Chapter

3.

On December

13,

1979 the Board proposed to delete this

in R79--l3.

The Agency

proposal was also specifically conditioned on the validity of

existing permits,

This has been deleted as unnecessary.

The term

permit always means valid permit unless otherwise specified.

Sub--

sequent to the hearings

the Agency proposed an amended version of

this rule

1P-204(a).

This amendment has been substantially

adopted in altered form.

Deleted

(P--205)

The Agency proposal contained a rule listing the rules

which were applicable

to NPDES permits

(P--205).

This rule has

been deleted since the chapter has been restructured to make this

clear

(H.

101)

PART

IV:

STATE PERMITS

400

Preamble

P--250;

0--203(a)

Part IV governs

in theory all mining activity and hence

anything regulated under Chapter

4.

However,

the exemptions for

holders of NPDES permits and for domestic retail sales yards,

con--

sumer stockpiles and some small mines will,

as thin~gspresently

37—229

---

—20--

stand,

relegate

Part IV to a minor role

(H,

69).

However,

in

the event the Agency loses NPDES authority, this will become the

principal part of Chapter IV,

401

Construction and Operating Permits:

State Permits

(P--25l,

256,

257;

0--201)

Rule 401 sets forth the requirements of state permits.

There are two types of state permits----constructionpermits and

operating permits.

These are referred to individually or col--

lectively as state permits

(R,

12),

Rule 401(c)

provides for

a

joint construction and operating permit to be issued whenever it

is not worth the administrative trouble to issue separate permits.

An operating permit is required for

a person to carry out

mining activities,

The definition of mining activities includes

construction activities.

Therefore an operating permit is suf--

ficient for construction.

However, Rule

401(a)

provides for a

separate construction permit.

There has been difficulty with the

old Chapter

4 in that it is not clear that construction is a mining

activity.

In some cases, coal has actually been removed from the

ground ‘and sold,

Persons have claimed that this was construction

and not governed under Chapter

4 so as

to

require

an

operating

permit.

A construction permit is provided in order to make this

clear

CR.

33),

The separate construction permit will also allow the Agency

to review and inspect

a facility prior to issuance of the operating

permit,

In some instances this will provide more flexibility in

the permitting process,

It makes no legal difference whether a state permit is

denominated a construction permit or an operating permit.

The

language of the permit will determine what is permitted regardless

of the name.

The Agency’s original proposal contained two separate rules

for when a construction permit was required

(P--251, 256),

The

standard adopted is from the Agency’s

amended proposal

(A.P.--25l).

The standard for issuance of

a joint permit in the Agency’s

proposal was that the activities were “sufficiently standard to

obviate the need”

for separate construction and operating permits.

This has been changed to allow a joint permit “for administrative

convenience.”

The Agency should issue

a joint permit not only when

a standard design is involved, but also

in

the case of an innovative

design if it is more efficient to issue the joint permit.

The

Agency may also require two permits even if the design

is standard

(P—25l,

256)

37—230

---

--21--

The original proposal specified various mining activities

for which a permit was required.

This has been changed to in-

clude all mining activities

as defined by Rule 201,

The specifics

have been. moved to the definition of mining activities,

402

Exemption from State Permit:

NPDES Holder

(P—252,

200)

Rule 402 provides that an operator who holds

an NPDES

permit for a facility need not have a state permit for mining

activities on the facility.

Whatever mining activities

an NPDES

permit holder engages

in will be permitted under Part III

(H.

12,

19,

69,

100,

167;

E,

84),

The NPDES exemption will terminate

when and if the Agency ceases to administer the NPDES permit

program.

The Agency’s proposal set forth the requirements of

the FWPCA and specified that the exemption would not apply unless

they were met,

Even though the exemption and the Agency’s NPDES

authority might be conditioned upon the same facts,

this con--

struction would raise the possibility of an inconsistent deter—

mination of the facts,

The proposal has been changed to provide

that the exemption ceases whenever the Agency ceases to administer

the program for any reason whatsoever,

Rule 402(b)

also provides for notice to the NPDES permit

holders by the Agency in the event the Agency ceases to administer

thu program.

This

is the only way of guaranteeing that the permit

holders will learn that a state permit is required.

The notifica-

tion procedure also allows the Agency to determine whether or not

it has NPDES authority.

The Agency need not give notice until

it

is convinced it has actually lost the authority with, sufficient

certainty to justify the inconvenience of processing a large num-

ber of state applications.

The wording has also been changed to

give the Agency authority to set dates upon which applications

must be received for state permits.

If the Agency deems it necess-

ary,

it may spread these dates out over a ‘period for administrative

convenience.

TIi’e EcIS concluded that elimination of the present system

of requiring duplicate state and NPDES permits would result in

an annual savings

to the Agency of $3000 to $5000 and $200 to

$400 to the mines

(E,

43),

403

Exemption from State Permit:

Coal Piles and Small Mines

(P—252)

Rule 403 provides a further exemption from the state permit

requirement for some small mines, domestic retail sales yards and

consumer stockpiles

located at the consuming facility.

The revi--

sion has increased the scope of Chapter

IV

by including under the

37—231

---

—22---

definition of mining activities coal transfer facilities and

coal storage facilities.

These definitions would include domes--

tic retail sales yards and consumer stockpiles.

They are also

able to take advantage of the more lenient discharge standards

found in Part VI,

However,

it would unduly burden retail sales

yards to require them to obtain’permits

CR.

13, 20,

28, 104).

Although consumer stockpiles could include very large facilities,

it is expected that most of these will already have NPDES permits.

This provision does not create exemption from the NPDES permit

requirement

CR,

64;

E.

84),

However, Chapter 4 requirements

concerning,

for example,

a consumer stockpile will be written

into the NPDES permit,

The Agency retains the right to require

a state permit in the event a non-NPDES facility threatens

to

cause water pollution or violation of the regulations.

Rule 403(a) (3) provides an exemption for any mine affect-

ing less than ten acres of land per year which

is not. a coal,

fluorspar,

lead or zinc mine,

It is contemplated that among

other things,

this will provide

an exemption for small sand and

gravel operations.

Since there

is a large potential for abuse,

the Board has added to the Agency’s proposal the requirement of

notification by a small mine,

This will afford the Agency an

opportunity

to investigate and will allow it to maintain an

accurate list of mining operations

in the state,

Since the exemption will date only from the time the Agency

is notified of the claim of exemption,

this provision will be o~

limited utility as

a defense

to

operation without a permit.

For

the exemption to apply, operators who have a mine with a doubtful

exemption will have to notify the Agency and submit themselves

to an inspection

in advance of an enforcement proceeding,

Rule 403(c)

sets forth the requirement that the Agency

notify the operator that a permit is required and that the cx-

emption is found inapplicable.

In the event the operator prompt--

ly applies for a permit,

he can continue operating without being

subject to an enforcement action for operating without a permit.

404

Applications:

Deadline to Apply

(P--253)

A person who is

required to have a state permit must file

the application

at least ninety days before the date on which the

permit

is required.

This is similar to rules found in Chpater

3

(Rules 902

and. 960),

Under the Administrative Procedure Act,

if

a timely permit application is made,

the old permit continues

in

effect after expiration until the new permit

is issued. Ill.

Rev,

Stat,

cli 127,

§1016

(1977),

An applicant will not be able to

avail himself of tnis

statute if the application is not filed

ninety days prior to expiration,

37—232

---

--23--

405

Permit

Applications:

Signatures

and

Authorizations

Required

(P-254)

This rule is virtually identical with Rule 902(h)

of

Chapter

3 which

is applicable

to NPDES permits~

406

Permit Applications:

Registered or Certified Mail or

Hand Delivery Required

(P--255)

This rule

is similar to Rule 959 of Chapter

3.

407

Supplemental State Permits

P--25l,

263;

0--203(b)

Rule 407 sets forth the rule for when supplemental state

permits are required,

Rule 407(a) specifies that an operator may

apply for a new or supplemental permit whenever circumstances

arise such that there could be a violation of the previous permit.

The Agency’s amended proposal specified that additional

state permits are required “whenever mine drainage, mining or mine

refuse disposal enters an area not covered by a previous permit or

when the treatment or pollution control plans are modified in dc--

sign or operation”

(AP-25l),

This provoked comment from the

Illinois

Coal

Association and Monterey Coal Company.

They objected

to dropping the word “substantially” before “modified in design or

operation” and to the proposal to require

a supplemental permit

whenever the mine entered any “area”

as

opposed to a “new drainags~

area.”

The supplemental permit requirement on entering a new drain--

age area is taken from the old Chapter

4

0--203(b),

Under that

rule an operator could mine for an indefinite period at a given

location once a permit was issued.

The only limitation was

a new

permit when a new drainage area was entered,

The new Chapter

4

is different in that the permit can have

a duration of not more

than five years.

It is possible to project the progress of the

mining with greater specificity for a limited period of time.

Therefore, Rule 513 has been added to the Agency’s proposal.

This

requires that a state

or

NPDES permit specify a permit area,

the

maximum extent of the affected land during the permit term,

From

the coal operators’

comments,

this appears

to make Chapter

4 more

in agreement with the Department of Mines and Minerals’ permitting

system.

The Agency’s proposal contained a substantive rule requiring

supplemental permits under certain circumstances,

However, appli--

cation for supplemental permit is a defensive move on the part of

37—233

---

—24---

an operator,

Therefore,

a rule requiring a supplemental permit

is unnecessary.

Rule 407 has been modified to make it clear that

an operator may apply for a new or supplemental permit whenever a

change occurs such that there could be a violation of his permit.

Under the Agency proposal, for example,

an operator mining

beyond the permitted area would violate not only the rule requir--

ing an additional permit, but also the rule against violating a

permit condition.

The redundancy is unnecessary~

The permit

should specify with some particularity what it permits.

If the

operator goes outside the bounds of the permit it is

a violation

of the permit condition,

He must either cease the activity or

apply for a supplemental permit.

Inspection of Chapter

3 reveals no similar rule applying

to state permits,

A substantive rule requiring supplemental

permits is not only unnecessary but

is redundant and conflicts

vlith the various permit requirements contained in Part V of

Chapter

4,

For instance, Rule 506 requires

a supplemental per--

mit before implementation of a revised disposal plan.

Retention

of a rule requiring supplemental state permits could also be used

as

a defense to a complaint alleging operation in violation of a

permit condition not specifically listed in the rule requiring

supplemental permits,

An operator could contend that under his

circumstances

a supplemental permit was not required and therefore

he could change his method of operation without applying for a

supplemental permit.

The modified rule gives the Agency control by permit over

the supplemental permit requirement.

For example, under Rule 501

the Agency is authorized to impose special conditions, which could

include details of the design and operation of treatment or pol--

lution control plans.

The Agency can be more or less specific

about these details

in the permit.

The degree of specificity will

determine the latitude within which the permittee can operate

without making a supplemental application.

408

Violation of Conditions or Standards in a Permit

(P--270;

0--206)

Rule 408 requires operators to comply with conditions of

their state permit.

Rule 408(b) provides for revocation of

permits.

37—234

---

The Agency proposal merely stated

that a permit could be

revoked without giving any standard for revocation.

In the

Proposed Order,

four circumstances warranting permit revocation

are listed,

These are taken in part from Rule 912(b)

of Chapter

3 and in part by analogy with case law developed in connection

with solid waste permits

(EPA v.

Harold Broverman,

et al.,

28

PCB 123, November

10,

1977).

In connection with an enforcement action,

the Board may

revoke a state permit if, because

of existing geological condi--

tions,

an operator cannot carry out mining activities so as not

to cause a violation

of the law; or, the complainant demonstrates

a history of chronic disregard by the permittee of the mining reg--

ulations;

or, the complainant demonstrates that the permit was

obtained

by

misrepresentation or failure

to disclose fully all

relevant facts;

or, the complainant demonstrates affirmatively

that the general standard for permit issuance contained in Rule

502 would not be met if a new application for permit were made,

‘This last circumstance

is intended to be the converse for the

general standard for permit issuance,

409

State Permit Term

P—268;

0—203(a)

Rule 409 provides that state permits shall be of a duration

not to exceed five years

as specified in the permit.

The Agency

may specify any expiration date up to five years from the effective

date of a state permit

(H.

267).

The Agency proposal specified

that permits had a duration of one to five years.

This has been

changed to remove the requirement that the permit have a duration

of at least one year.

Rule 910(e), Chapter

3

specifies that NPDES

permits be issued for specific terms not to exceed five years.

In

the past the Agency has issued to coal mines NPDES permits expiring

less than one year after issuance,

(Sec EPA v.

Zeigler Coal Company,

PCB 79--12

3,

Order of November 1,

1979).

The minimum requirement has

been dropped in keeping with the general policy of this revision of

keeping the NPDES and state permits as similar as possible.

The Agency’s proposal specified that operating permits, but

not construction permits,

could have

such duration except as pro--

vided

in

paragraph

d

of

Section

33 of the

Act.

That section

establishes the Board’s authority to revoke permits,

It is unclear

why the Board should not have the authority to revoke construction

permits also,

This exception has been dropped from the rule since

it is not only redundant,

but appears

to conflict with the general

rule on revocation of permits

found in Rule

407,

37—235

---

--26--

The Agency proposal also contained

a provision that all

operating permits now

in effect expire when the earliest NPDES

permit expires, but not later than three years after the effective

date

of this Chapter.

This has been moved to Part VII.

Not only

is this a temporary rule that doesn’t belong with the body

of

the

Chapter, but also

it does not apply to state permits within the

meaning of Part IV,

An Agency amendment to the rule on duration

of permits which specifies a 180 day period for abandonment plans

after effective date of this regulation has also been moved to

Part VII.

410

Permit No Defense to Certain Violations

(P-—-269;

0-207)

Rule~410 provides that possession of a state permit is not

a defense except to a complaint alleging mining activity without

a permit.

This

is similar to Rule 966

in Chapter

3

and Rule 207

of the old Chapter

4,

In an amendment the Agency also sought to

expand this rule to cover NPDES permits.

The

Board

rejects this

change.

Rule 966 of Chapter

3

is not applicable to NPDES permits

and there is

no

similar provision covering NPDES permits.

Al--

though the Board has not

so

held,

there is authority for the

proposition that compliance with the conditions of an NPDES permit

is

a defense

to a complaint charging violation of related regula--

tions,

On motion of the .Agency, language relating to abandonment

plans has been stricken,

Under the original proposal,

operator

compliance with its abandonment plan was

a defense to abandonment

violations.

This language was vague and unnecessary since abandon--

ment plans are covered in Rule 509

(H,

53,

77),

The Illinois Coal

Association objected to this proposed modification,

However, the

modification

is

in keeping with the general rule that Illinois

permits are no defense

to complaints charging violation of the Act

or rules,

411

Permit Review

(P—272;

0--703)

This follows the general policy of the other Chapters that

grant of a permit with objectionable conditions

is

a permit denial

under

section

40

of

the Act allowing the applicant to appeal.

This

provision is substantially unchanged from the old Chapter

4, al--

though

the language has

been altered from that and from that of the

Agency proposal.

Language has been inserted providing that Agency

notification of modification

or

revocation of an existing permit is

also a permit denial,

Rule 503 covers permit modification when new

regulations

are

adopted.

The added language will allow a permit

appeal in the event of Agency notification of modification in such

37—236

---

--27--

a case.

In

some cases Rule 503 notification of modification

could amount to revocation of the permit,

Language has been added

to make certain that there

is a right to appeal in this case also.

PART V:

STATE

AND

NPDES

PERMITS

500

Preamble

Part

V governs

mining activities

and issuance of permits

to operators regardless of whether they hold a state or NPDES

permit.

501

Special Conditions;

Agency Guidance Document

P--26l,

266;

0--205(c)

Rule 501(a)

allows the Agency to impose special conditions

on a permit which are consistent with the rules and necessary to

accomplish

the

purposes of

the Act,

This restates the Agency’s

authority under

§39 of

the

Act to translate

the

body of

water

pollution law into specific requirements which a discharger

must

meet.

The Agency proposal with regard to special conditions has

been reworded to track the language of

§39

of the Act

Rule

501

(a), P--205(b)

and

P--266,

The

requirement found

in

§39(a)

that

permit conditions not be inconsistent with the Board rules was

not included in

the

Agency proposal

and

has been added,

Section

39 of the Act sets forth

the

Agency’s authority to

impose special conditions in permits,

The wording is slightly

different depending on whether

the permit

is state or NPDES.

Sec--

tion 39(a), which applies to permits required by Board regulations,

reads

as follows:

“In

granting permits

the

Agency may impose

such

conditions

as may be necessary to accomplish the purposes

of

this

Act, and as are not inconsistent with the regulations promulgated

by

the

Board hereunder,”

However,

§39(b)

of the Act sets forth

that:

“All NPDES permits shall contain those terms and conditions,

including but not limited to schedules of compliance, which may be

required to accomplish the purposes and provisions of this Act,”

Therefore,

assuming §39ça)

of the Act is inapplicable to NPDES

permits,

the

Act does not require’ NPDES permit conditions to be

not inconsistent with Board regulations,

This does not necessarily

imply that the Agency must ignore Board rules in writing NPDES

permit conditions,

Section 39(a)

provides that the Agency

“may

37—237

---

--28--

impose” conditions necessary to accomplish the Act’s purpose

which are not inconsistent with Board rules.

However,

§39(b)

provides that,

in the case of NPDES permits, the Agency “shall

impose”

conditions required to accomplish the Act’s purposes.

The Act is silent about what additional conditions the Agency

may impose

in NPDES permits,

Rule 501(b)

allows

the Agency to adopt permitting procedures.

These should include rules of procedure and application forms.

They shall be included in

the

Agency guidance document provided for

below.

Rule 501(c)

allows the Agency to adopt engineering criteria

which will be published with the Agency guidance document.

These

should represent minimal designs and practices which the Agency

will accept for ‘permit issuance.

Rule 501(e) has been added to the Agency proposal.

Al--

though §39 of the Act confers authority on the Agency to adopt

rules governing permit procedures,

the Agency has no authority

to promulgate substantive rules pursuant to §~l2and

13 of the

Act,

This authority is given to the Board and there is no author--

ity for subdelegation to the Agency

(E,

80).

Rule 501(e)

has been

added to clarify the nature of the criteria which the Agency may

promulgate.

The Agency necessarily has the power to develop guidelines

for permit issuance to be used within the Agency,

Rules

501(c)

and

Cd)

contemplate publication of these guidelines

as criteria.

The

criteria will represent a formal statement of what the Agency will

not challenge in a permit application.

The criteria are not rules

and will not bind any party other than the Agency.

Although these are not rules

in the usual sense of the word,

they are rules within the meaning of the Administrative Procedure

Act,

Ill.

Rev, Stat,

ch.

127, §1003,09:

“Rule” means each Agency statement of general

applicability that implements,

applies, interprets,

or prescribes law or policy, but does not include

(a)

statements concerning only the internal manage--

ment of an agency and not affecting private rights

or procedures available to persons or entities out--

side the agency,

(b)

informal advisory rulings issued

purusant to Section

9,

(c)

intra--agencymemoranda or

(d)

the prescription of standardized forms,

37—238

---

--29--

The criteria will amount to an Agency statement that in--

terprets law or policy.

They will be of general applicability

and not informal advisory rulings issued to individual petitioners

as contemplated by §1009 of ch.

127,

Publication of the rules

in

conformity with the Administrative Practices Act

is therefore re--

quired

(E.

82; Third Amended Proposal).

502

Standard for Permit Issuance or Certification

(P--267; 0—202)

Rule 502(a)

sets forth the standard for permit issuance.

This

is the usual standard for permit issuance that the operator

present evidence to demonstrate that ‘there will not be

a violation

of the Act or rules

(839 of the Act).

Rule 502(b)

further sets forth the function of the Agency

guidance document,

Where the guidance document contains criteria

with respect to some part or condition of the permit,

then the

applicant may demonstrate conformity with the criteria of the

guidance document in lieu of demonstrating that there will be no

violation of the Act or Rules.

However,

since the guidance docu--

ment does not constitute rulemaking, nonconformity with the cri-

teria will not be grounds for permit denial, provided the general

standard for issuance is met,

For an Agency interpretation of

the comparable Rule 967 of Chapter

3, see

3 Ill,

Reg,

36,

p.

226

(September

7,

1979),

As

an example of the function of the guidance document,

consider that the Agency might issue criteria to the effect that

refuse piles shall have a slope no greater than 10.

The permit

applicant will be free to offer evidence that a slope of 12

under

the circumstances will not cause

a violation of the Act or Chapter

4.

However,

the Agency will not be allowed to argue that under the

circumstances

a

maximum slope of

8

is required.

The function of

the guidance document is

to provide guidance by permitting the

Agency to set forth minimal standards,

An applicant can assure

himself of prompt permit issuance by conforming to the criteria of

the guidance document,

The Agency’s proposal required that as

a condition for

permit issuance the applicant demonstrate that he

had

conformed

with all conditions

in the construction permit.

If such a re--

quirement is to

be imposed at

all, it should also be applicable

to construction authorizations.

However, it has been deleted

from the proposal altogether,

The permit will be issued if it is

shown that no violation will occur regardless of whether the

37—239

---

--30--

applicant conformed .to the conditions’ of the construction permit,

If the applicant breached the construction permit this will be

grounds for an enforcement action, but standing alone it should

not prevent issuance of an operating or NPDES permit if the

general standard for permit issuance is met,

Revocation of the

permit could, however,

be imposed as a sanction in the enforcement

action in an appropriate case under Rule 408 or under Rule

916 of

Chapter 3.

503

Permit Modifications When New Regulations Are Adopted

(P--27l)

Rule 503 provides that the Agency may issue a supplemental

permit setting forth affected terms and conditions in the event

the Board adopts new regulations

CR.

116),

This has been com-

pletely changed from the Agency’s proposal which would have pro--

vided for modification of permits by operation of law.

Violation

of permit conditions frequently carries more severe penalties

than violation

of regulations,

The more severe penalties are

warranted in part because the operator has been afforded notice

of particular provisions

in regulations by way of the permit and

because regulations have been made more specific when incorporated

into the permit,

Modification of the permit by operation of law

would defeat these policies of the permit system.

Rule 503 as

adopted conforms with the similar provision contained in Rule 968

of Chapter

3.

504

Permit Applications

(P—258;

0--204)

Rule 504 sets forth what information must be provided in

a permit application,

This

is further specified in the sections

which follow

CE.

26),

The Agency proposal specified that soil classification was

to be according to Grandt and Lang,

Reclaiming Illinois Strip Coal

Land with Legumes and Grasses,

~

~

guidance document

CR,

106).

The Agency proposal specified that the application must

comply with the conditions of the Agency guidance document.

This

has been deleted,

If the Agency were empowered to specify condi--

tions which had to be met, the result would be an improper dde--

gation of rulemaking authority,

However,

the Agency is permitted

to request more in’~lmationor more particular information than

that listed in Rule 504,

It may do this either through an appli--

cation

form, the Agency guidance document or specific requests

for

---

--31--

information.

However,

failure to comply with criteria of the

guidance document or inability to supply all information will

not alone be grounds for permit denial absent a

showing that

the criteria or information is necessary in the particular case.

The Coal Operators’

comment that this

is “beyond the bounds of

reason”

is answered by the requirement of “necessary information.”

Subsequent to the hearings the Agency specified certain

additional information.

This has been rearranged and incorporated

into Rule

504.

The Coal Operators’ comments are discussed in

connection with Rule

505,

505

Surface Drainage Control

P--260;

0--301(a), 301(b)

Rule 505 provides for control of surface drainage by permit.

Surface drainage must be

diverted around or away from the active

mining area.

Other mining ~activities and mine refuse disposal

must be planned to minimize contact with waters of the state

if

such contact could result in pollution.

Stream diversion is to

be avoided,

The original proposal provided only for diversion around

the active mining area.

An Agency amendment expanded the scope

of Rule 505

to include diversion, redirection or impoundment of

streams and a rule requiring that mining activities and deposition

of spoil be conducted so as to avoid contact or interference with

waters of the state.

,

These amendments have been incorporated in

altered form,

The Agency amendment sought to expand the’scope of Rule 505

to afford the Agency the level of control it presently has under

old Rule 301 of Chapter

4.

Apparently in its original proposal

the Agency restricted it~authority inadvertently,

Some specific requirements of old Rule 301 have been omitted.

These include certain mandatory diversion and impoundment provi~

sions,

In

dropping these requirements the Board does not intend

to disavow them,

They are mining practices which carry a risk of

water pollution.

The Agency may provide for these matters in the

Agency guidance document and may write specific requirements into

permits

to prevent water pollution,

Rules

505(b),

Cc)

and

(d) set forth substantive rules gov--

erning the conduct of mining activities,

Rule 504(b) (7)

requires

a plan for surface drainage control as part of a permit application.

This plan will be incorporated into the permit as a condition,

37—241

---

—32—

Rule 201 defines surface drainage control as control of sutface

water

on

the

affected

land

by

a

person

who

is

engaged

in mining

activities,

Surface drainage control includes the practices

governed

by

Rule 505(h),

Cc)

and

Cd).

In permitting surface

drainage control, the Agency shall consider not only whether

compliance with the requirements of Rule 505 has been shown, but

also whether the plan will avoid other violations of the Act and

Chapter

4.

The definition of surface drainage control has been expanded

to include flow augmentation and controlled release of effluents

as a method of avoiding violation of the TDS and related water

quality standards.

These practices may previously have been con-

sidered illegal, although this Opinion clarifies

this,

They will

require

a permit under Rule 401 since they will involve stream

diversion

or

impoundment,

There is no special rule governing

permit issuance in this case other than the general standard of

Rule

502,

Rule 505(a)

requires the Agency to impose a surface drainage

plan as a permit condition,

The Coal Association objected to this

and

in

general to the incorporation of the specific rules on stream

relocations.

Their contention was that this was provided in the

Department of Mines and Minerals permit and application form which

was reviewable by the Agency.

They also objected that the Agency

did not presently have control over the permitting of stream relo-

cations.

However, inspection of the old Chapter

4 at Rule 301(a)

and

(b)

reveals that the Agency does presently have such control.

At the hearings

the Agency indicated that,the various state

agencies responsible for permitting coal mines would develop a

single application form which would be circulated.

The Coal Assoc--

iation’s objection that the surface drainage control provisions

would be burdensome

is answered by their contention

tha,t the

application is already required by Mines and Minerals

(H.

27).

The Coal Association’s comments further infer that there

is

a legislative intent in the Reclamation Ant to exempt coal

operators from the permit requirements of the Act,

Of course the

bulk

of

the

coal

mines

are

required

to

have

NPDES

permits and the

state permit requirement will be inapplicable to them,

It

is

beyond the power of the state legislature to provide exemptions

from the NPDES permit requirement.

37—242

---

33—

The Reclamation Act does,

as the Coal Association contends,

provide for Agency input and comment in the mines and minerals

permitting procedure,

However,

a careful examination of the

Reclamation Act indicates that the Agency’s function is advisory.

There is no provision for a veto by the Agency in permit issuance

from Mines and Minerals.

Furthermore, section

3.20 of the Reclam-

ation Act provides that “all requirements

of the Illinois Environ-

mental Protection Act and rules and regulations thereunder shall

be complied with fully at all times during mining,

reclamation

and after reclassification.”

The Board cannot find from this a

legislative intent to exempt coal mines from the state permit

requirements.

506

Refuse Disposal

(P—262;

0—401,

402)

Rule 506(a) requires that a state or NPDES permit contain

a refuse disposal plan.

An applicant must submit a plan under

Rule 504(b)(l2).

The plan will be made a permit condition if it

satisfies the standard for permit issuance contained in Rule

502,

The applicant must show that there will be no violation of the

Act or rules,

including Rules 504(c),

Cd)

and

Ce) which are sub-

stantive rules governing mining.

The Agency may promulgate mine

refuse criteria under Rule

501,

Rule 506(c) provides that runoff,

etc.,

from the affected

land must meet the standards contained in Part VI.

Note that

runoff from the affected land is a mine discharge under Rule 201

0-401(a)

(1).

Rule 506(d)

provides that refuse areas must not

be located in an area

of

natural springs or aquifer recharge area

or intercept a drainage course without special protective measures

0—401(a)

(2),

Rule 506(e) establishes rules

on spreading and compacting.

these are reminiscent of the solid waste rules,

The original pro—

Dosal specified only that acid producing solid mine refuse be

spread and compacted and covered when necessary with “non—acid—

Droducing material.”

This has been modified to include the word

~suitable” before “non—acid—producing material.”

Impermeable

clay would be a suitable cover material in that it would prevent

water

and air from reaching the acid—producing material.

However,

the Agency may approve other

suitable materials,

Rule 506(e) per-

mits

alternate

refuse

disposal

methods

at

the

Agency’s

discretion

(R,

15,

114),

These

will

be

subject

to

Rule

502.

37—243

---

--34--

Rule 506(f)

and

(g)

govern revised refuse disposal plans,

This establishes

a special rule on when a new or supplemental

permit

is required.

A new permit is required if the revised plan

contains any change from the peririitted plan.

Rule 506(d)

requires

that a revised disposal plan result in a new permit application

which must be made prior to implementation of the revised plan,

ninety days before for a state permit and 180 days for an NPDES

permit,

The original proposal defined revised disposal plan as one

with a “substantial” change.

On the Agency’s motion and Over the

Coal Association’s objections the word “substantial” has been

deleted.

A new permit is required before there

is any deviation

from the permitted plan.

Of course the Agency can be more or

less specific in permit conditions as required to assure that the

standard of Rule 502 will be met.

The original proposal also required application to be made

ninety or 180 days prior to “completion” of the plan.

The Agency

recommended deletion of this word, but the amended proposal could

still have been interpreted to require application ninety or 180

days prior to mere possession of the plan,

This would be diffi--

cult to administer since submission of a plan is

a necessary con--

dition for the new application under Rule 504,

The adopted rule

specifies “implementation”

of the plan.

Implementation will occur

when the first action is taken pursuant to the revised plan and

contrary to the permitted plan.

507

Experimental Permits for Refuse Disposal

(P--264; 0--403)

Rule 507 provides for experimental permits for,refuse

disposal.

The standard for issuance of an experimental permit

is not the same as usually applied to permit issuances by Rule

502,

The experimental permit may issue

if the operator demonstrates

a reasonable chance for compliance with the Act and Chapter

4.

The

rule sets forth special monitoring and reporting requirements.

The

procedure is

laid out for notice and termination of the experi--

mental permit

CR.

114).

The original proposal required that the disposal area not

be the “principal area for disposal of acid~producingrefuse unless

approved by the Agency.”

This language has been deleted.

It adds

nothing to the proposal since no permit would issue without Agency

approval.

It is not the Board’s intention, however, that experi--

mental permits should often be issued for a principal disposal

area.

37—244

---

—35--

508

Permit for Use of Acid—producing Mine Refuse

(P--259; 0-404)

Rule 508 requires that a state or NPDES permit include as

a condition a plan for the use of acid--producingmine refuse if

the operator is to use such.

The definition of acid--producing

mine refuse has been moved from its place

in the proposal to

definitions.

Use of acid—producing mine refuse is a mining

activity as defined by Rule 201 for which a permit is required

under Rule 401

CR,

112),

The original proposal specified that use of acid--producing

mine refuse was restricted to holders of operating permits,

On

the Agency’s motion, this requirement has been deleted,

There

is

no obvious reason why this rule should not also be applicable to

holders of NPDES and construction permits.

Rule 504(b) (17) requires

a plan for use of acid—producing

mine refuse in

a permit application.

The Agency may set forth in

an Agency guidance document under Rule 501 criteria for the use

of acid—producing mine refuse.

The standard for issuance of a

permit for use of acid—producing mine refuse is that contained

in Rule 502,

Rule 404 of the old Chapter

4 contained an absolute pro--

scription of use or offer of acid—producing mine refuse.

This

proposal would allow such use by permit.

509

Abandonment Plan

CP--26l; 0--502)

Rule 509 provides that an application for a permit include

an abandonment plan.

The permit will include an adequate plan as

a condition.

This represents

a drastic departure from the present

Chapter

4 which requires an abandonment permit subsequent to aban--

donment of the mine,

The Agency has had considerable difficulty

with enforcing the requirement of an abandonment permit.

Requiring

the abandonment plan will force the operator to confront the prob—

1cm prior to abandonment and the operator will no longer be able

to claim ignorance of the requirement to take steps on abandonment

(R,

14,

20,

39, 54,

66,

78, 112).

The EcIS was able to quantify the economic costs of this,

This represents

one

of

the

few identifiable costs associated

with

this revision,

An abandonment plan likely involves an engineering

fee of $1000

or more.

This fee will have to

be

paid prior

to

37—245

---

—36—

application for the permit.

This requirement therefore increases

the capital investment required to open a mine and obtain a permit.

The cost of mining is increased somewhat by the cost of tying up

this capital for the period of time the mine

is open

CE.

42,

44,

99)

-

Rule 509(b)

defines an adequate abandonment plan.

The

plan must provide a time schedule for completion of abandonment

work within one year.

Subsequent to abandonment, however,

the

Agency may approve departures from the plan that would allow fqr

completion over a period of more than one year.

Rule 509(c)

provides that the Agency may further define

an adequate abandonment plan by means of the Agency guidance docu-

ment.

However,

the Agency must approve

an abandonment plan upon a

demonstration that it will provide protection against violations

regardless of whether it conforms with the Agency guidance

document.

Rules

509(d)

and

(e)

provide for revised abandonment plans.

A revised abandonment plan is one constituting a substantial

change from the permitted one,

Substantial will be defined on a

case by case basis,

It will be a violation if an operator imple--

ments a revised abandonment plan without having applied for a

revised permit ninety days prior to implementation

(H,

166,

168).

510

Cessation; Suspension or Abandonment

(P--26l; 0--501(a)

Rule 510 covers cessation, suspension or abandonment.

The

original proposal covered the abandonment plan, permitting re--

quirements and substantive rules

on abandonment in one rule.

These

have been separated into two rules.

Rule 510(a) provides that the operator notify the Agency

within thirty days of abandonment, cessation or suspension of

mining,

The original proposal provided that notification was

unnecessary if abandonment was caused by a labor dispute.

The

language has

been

clarified and the labor dispute section applies

only

to

cessation or suspension,

The Agency must

be

notified

of

abandonment regardless of the cause.

Rule

510(b)

makes it clear that the operator must provide

interim impoundment, etc. to avoid violations of the Act during

cessation or suspension of active mining,

The operator will also

be required to avoid violations during execution of the abandonment

plan.

37—246

---

--37--

Rule 510(c)

sets forth the rule that the abandonment plan

must be executed upon abandonment.

The definition of abandonment

includes transfer of ownership.

This represents a substantial

change from the existing Chapter

4.

In the past operators have

avoided their responsibilities for properly abandoning a mine

by

transfer of ownership to an insolvent corporation.

Such a trans-

fer will be an abandonment under the new Chapter

4 and the trans--

fer will not allow the operator to escape responsibility for

adequately closing the site

CR.

14,

20,

39,

54,

66, 78,

112).

Rule 510(c) provides a defense to the requirement to execute

the abandonment plan in the event the operator demonstrates that

the transfer of ownership was to a responsible party.

A responsi-

ble party

is someone who has already obtained permits

to oDer.ate

the same mine.

If the mine

is transferred to a party who does not

have a permit at the time of transfer but subsequently obtains

one, the transferor will be relieved of the obligation of further

executing the abandonment plan.

However, if the transferor has

failed to perform part of the plan during the interim, there will

have been a breach of the permit condition which will not be

excused.

It is assumed that a transferree who will he financially

unable to execute

an abandonment plan will be,unable to obtain

the necessary permits to operate the mine,

In particular

he, will

be unable to meet the bonding requirements of the Mine Reclamation

511

Emergency Procedures to Control Pollution

P—265;

0—205(a),

205 (b)

I

Rule 511 sets forth emergency procedures.

The original

proposal required that the operator notify the Agency “irnmediate1y~

of an emergency situation.

The requirement of immediate notifi-

cation has been changed to notification within one hour.

It is

feared that immediate notification may be impossible and hence

would not be enforced.

It appears that notification within one

hour would be

in all events possible and hence enforceable

(R.

114

The Agency proposal was also limited to “sudden discharges

This has been changed to include any discharges caused or threat-

ened by an emergency,

The Agency should be notified of any emerg

37--247

---

512

Mine Entrances

0—301(a)

and

(c)

Bore holes, openings,

drill holes, entrances to underground

mines and auger or punch mine entries must be plugged and sealed

to the extent necessary to avoid the threat of water pollution.

This

is taken from the old version of Chapter 4,

Rule

301.

It

has been added to the Agency proposal on the assumption that it

513

Permit Area

P—263;

0—203(b)

Rule 513 requires that a state or NPDES permit specify

a

permit area.

During permit term no portion of the affected land

may be outside the permit area.

This

is

a new provision which

was not in the Agency proposal,

The term “permit area”

is taken

from the Reclamation Act.

Subsequent to the hearing, the Agency sought

to amend its

proposal to specify that additional state permits were required

whenever mine drainage, mining or mine refuse disposal entered

an area not covered by a previous permit.

The Coal Association

objected to this and apparently construed it to mean a new appli-

cation was required each time a shovel took a bite out of a coal

seam.

Consideration of this dispute led to the recognition that

there was no provision

in the Agency proposal requiring that the

permit specify a geographical area.

Accordingly,

Rule 513 has

been added to clarify this.

Under Rule 504(b) Cl)

the permit applicant must specify the

location of the affected land and the maximum extent of the affected

land during the term of the requested permit.

If there is some area

in the proximity of the facility into which mining cannot proceed

without violation of the general standard

for permit issuance under

Rule 502,

the Agency should exclude that area from the permit area.

Otherwise

the Agency should grant a permit area which will be

consonant

PART VI:

EFFLUENT AND WATER QUALITY STANDARDS

P-301;

600

Preamble

Part VI applies

to mine discharges

as defined by Rule

201.

If a mining activity has both a mine discharge and another dis-

charge,

it will be subject to both Chapter 3 and Chapter

4.

Chapter

4 will govern the mining activities,

including mine discharges.

Chapter

3 will govern the other discharges

(R.

37—248

---

—39—

Rule 600(b)

provides that except to the extent providt

Part VI,

Parts

II, III,

and IV of Chapter

3 are inapplicable

mine discharges~

In particular the effluent standards of Par

are inapplicable to mine discharges and are supplanted by the

charge limitations specified in Rule 606.

The old Chapter

4

not make this altogether

c,lear,

The parameters of Chapter

3 ~

are not mentioned in Rule 606 are unregulated for mine dischar

CE,

56).

The water quality standards of Parts

II and III are

incorporated by Rule 605 which provides for water quality relat

effluent standards,

This is substantially unchanged from the

present Chapter

4,

Part VI applies to mine discharges from facilities even if

they may be exempt from the state permit requirements under Rule

403,

Likewise Part VI applies to any incidental mine discharge

from a facilitiy which possesses

a Chapter

3 NPDES permit.

601

Averaging

IP—30l;

0--601(d)

Rule 601 sets forth the averaging procedure.

Compliance

with the numerical standards

is determined by averaging 24-hour

composite samples over a calendar month.

No 24—hour composite

sample may exceed two times the numerical standard and no grab

sample may exceed five times the standard,

On motion of the Agency the period was changed from thirty

consecutive days to a calendar month,

This is in line with feder

rules and R76—2l where objection was voiced to the thirty day

period.

Although the calendar month

is somewhat arbitrary,

it is

in line with other reporting requirements

and eliminates one degn

of freedom in determining compliance

(H,

15,

51; First Amended

Proposal).

This averaging rule

is

a substantial change from the aver--

aging rule set ‘forth in Rule

60l(d)(l)

and

(2)

of the old Chapter

The old rule made a distinction as

to whether treatment other than

impoundment

is

provided.

Where no other treatment was provided,

the discharge limits had to be met at all times, but where treat—

ment other than impoundment was provided, the standards were

determined

on

the basis

of

24—hour

composite samples with

no

grab

sample

over

five times,

This has been eliminated,

In the Agency proposal the averaging rule was contained

within the rule on reporting and monitoring.

It has been placed

in a separate rule to emphasize importance

of averaging and to

more clearly distinguish the difference between averaging and

reporting.

Averaging

is a substantive rule of evidence whereas

37—249

---

--40—

reporting and monitoring are rules relating to permits and permit

conditions,

In addition, placement of the averaging rule within

the provision for reduced monitoring and reporting after demon--

stration of sample reliability implied that the averaging rule

itself could be altered by permit.

This is not the case.

602

Sampling, Reporting and Monitoring

P—30l,

302;

0—601(b)

and

Cc),

603,

604

Rule 602 provides for sampling, reporting and monitoring.

A similar provision is Rule 501 of Chapter

3.

Rules

602(a) and

Cc) provide for sampling points.

Where treatment is provided,

sampling is

to be between final treatment and mixture with waters

of the state.

Where treatment is not provided, samples are to be

:aken at the nearest point of access, but again before mixture

Tith the waters.

Rule 602(b)

provides that the operator shall

lesign and modify structures so as to permit the taking of effluent

3amples.

The Agency proposal only required design and modification

f “structures for discharging treated wastes,”

This has been

thanged to “structures” in general.

It may be necessary to design

r

modify strp.ctures other than the discharge facility itself in

rdér to provide access,

Rule 602 Cd)

provides that an operator report the actual con-

centration or level of any parameter identified in the permit at a

reasonable frequency to be determined by the Agency.

The reporting

requiremei~twill be’ specified in the permit

CR.

16).

Recent cases

have challenged the authority of the Agency to require monitoring

and reporting of parameters other than those for which effluent

limits are specified in the permit.

The intent of this section is

that the Agency may specify not only those parameters for which

effluent limits are set, but also parameters

for which water quality

levels are set by regulation or any other parameter it deems

necessary’ to have monitored,

Rule 602(e)

sets forth that reporting and monitoring are

presumptLvely on the basis

of 24—hour composite samples averaged

over a calendar month,

However,

the Agency may permit lesser

reporting.

Rule 602(f) provides for monitoring after abandonment.

Rule

602(g)

incorporates the USEPA’s current manual of practice.

This was

a separate section under the Agency proposal, but it has

been included since it logically relates to reporting and monitoring.

37—250

---

--41--

603

Background

Concentration

P—303;

0—601(e)

Rule 603 provides that the background level

of contaminants

in intake water are not to be deducted in order to determine com-

pliance with the effluent standards,

This

is the same as Rule

601(e)

of the old Chapter 4 and

i’s

largely the same as Rule 401(b)

of Chapter

3

(H.

16).

Because mining activity necessarily disturbs the land and

the flow of water over and through the land it is the intent of

this Chapter to regulate certain discharges which in other con--

texts might be deemed background concentrations,

As

used in this

Chapter, background concentration does not include contaminants

naturally occurring in underground waters which are brought to

the surface

as a result of mining activity or which are pumped

from one underground formation to another,

Also it does not

include contaminants picked up by surface water

as it flows

through the affected area,

604

Dilution

(P—304;

0--602)

Rule 604 provides that dilution of effluents

is

not an

acceptable treatment method,

This

is similar to Rule 602 of the

present Chapter

4 and virtually identical with Rule

401(a)

of

Chapter

3

CR,

17,

116).

Language relating to place of sampling

has been deleted from the Agency proposal.

This language

is also

contained

in

Rule 401(a)

in Chapter 3.

It has been eliminated

because

it is provided in and may conflict with the sampling point

rules provided by Rule

602.

The dilution rule interacts with Rule 605 which provides

that effluents may not cause

a violation of water quality standards.

In the hearings on this proposal and in R76--7,concern was expressed

that the dilution rule prevents certain treatment methods for

chlorides,

sulfates and TDS,

In particular it was feared that

controlled release of impounded water was proscribed by this rule.

Controlled release of high TDS water during periods of naturally

occurring high flow in streams

is not dilution,

In this case the

mixing

occurs

at a point after the discharge,

Another possible technique of avoiding a TDS water quality

violation would

be

impounding surface water during

wet

periods and

augmenting the flow of the receiving stream during dry periods

to

dilute effluents,

This would not constitute a violation of the

rule

against

dilution,

However,

it could constitute surface

drainage diversion.

A permit would be required under Rule 401,

37—251

---

--42—

605

Violation

of

Water Quality standards

P--305;

0--605(a)

Rule

605

incorporates

the water quality standards contained

in Parts

II and III of Chapter

3 into Chapter

4.

This is the same

as Rule 605Ca)

of the present Chapter 4 and is similar to Rule 402

of Chapter

3.

The second sentence of Rule 605 provides that the Agency

shall take appropriate action under Section 31 or

39 of the Act.

This

is redundant because under the remainder of Chapter 4 the

Agency must take such action,

However,

certain operators have

recently contended before the Board that incorporation of water

quality related effluent standards

is not authorized by Board

regulations.

The second sentence is to make it clear that water

quality

related

effluent standards can be incorporated into

permit conditions

(H,

17),

605,1

Temporary Exemption from Rule 605

This rule will allow the Agency to issue permits through

July 1,

1981 to authorize discharges which violate Rule 605 by

causing water quality violations of TDS, chloride, sulfate, iron

and manganese,

For the remainder of the discussion of this rule

only, these will sometimes be referred to collectively as TDS.

An

operator

desiring

such exemption may apply for a new state or

NPDES permit containing the exemption,

Rule 605.1(c)

sets

a

special standard for permit issuance different from that contained

in Rule 502.

The burden will be on the Agency to demonstrate sig--

nificant adverse effect on the environment

in and around the re--

ceiving water in order to deny the permit.

The operator, however,

will have to submit adequate proof that the discharge will not

adversely affect any public water supply.

In order to qualify for

the exemption the operator will have to adopt “good mining pract—

ices,” housekeeping measures designed to minimize TDS discharges.

Rule 605.1 was first proposed on November 21,

1978 by the

Institute.

This was after merit hearings on the proposal were

concluded.

On December 14,

1978 the Board ordered the record in

this case held open

to take evidence on Rule 605.1,

Merit hearings

on the proposal were held at the same time

as the economic impact

hearings.

This proposal has generated the bulk of the controversy

in this proceeding.

37—252

---

—43—

Mine discharges

are often high in TDS.

Much of this comes

from water pumped from mine areas or runoff from spoil banks,

A

substantial number of mines

in the state produce mine discharges

which

cause

water

quality violations

in the receiving streams.

Coal mines

can seldom be located adjacent to large rivers, but

rather must be located where coal deposits are located,

Their

discharges

are

frequently into intermittent

streams

so

that the

discharge comprises the bulk of the flow of the stream.

Therefore

the discharge is limited, not by the effluent standards of Rule

606, but

by

the more stringent water quality standards referenced

in from Chapter

3

CR,

129,

142,

151;

E.

6,

11).

In a related proceeding,

R76--7the Coal Association sought

to exempt coal mines from application of Rule 605 with respect to

TDS,

Entry of a Final Order in that proceeding has been stayed

pending final resolution of this proceeding.

Presently relief from Rule 605

is available only through

the variance procedure.

At the hearings, the Coal Association

stated that a variance application can

cost

as

much

as $10,000

CE.

126),

There was discussion at the hearings of a class action

variance.

However,

this

was rejected

CE.

19,

80).

Under

the auspices of the Institute a joint Agency/industry

group called the Mine Related Pollution Task Force has been formed.

The Task Force is conducting a study to propose an eventual per--

manent replacement for Rule 605,

It expects to present this

proposal before July

1,

1981

CE.

106),

A large amount of earth must be disturbed during the process

of coal mining,

Some of the TDS in the discharge results from

direct leaching of soluble minerals from the rock by groundwater

or rainwater falling on spoil banks,

This

is the source of chlor--

ides, which is not generally the main problem in Illinois,

Much

of the problem in Illinois

is sulfates,

These are formed when air

or dissolved oxygen comes into contact with sulfur—containing

minerals which have been disturbed,

Sulfuric acid is formed,

pro--

ducing

acid

mine drainage.

Neutralization of that discharge to

meet the pH requirements of Rule 606 may further increase the TDS

concentration

of the discharge.

The

Economic

Impact

Study

in

R76--7has been incorporated

into this proceeding by reference

CE.

103;

Economic Impact of

Dissolved Solids Regulation upon the Coal Mining Industry,

Instit—

ute

Document

No,

77/28),

Although

there

is treatment available to

reduce

the

iron and manganese levels, treatment to reduce the solu--

ble

components

of TDS

is not economically available.

Available

37—253

---

--44—

technology includes reverse osmosis and distillation,

These are

energy

intensive

and

very

expensive

on

a

scale

that

would

be

required to meet most mine discharges.

The Economic Impact Study

in R76-7 concluded that for the mines

in the state to meet the

present TDS water quality standard would involve

a capital invest--

ment of $138.4 million and annual operating costs of $37.4 million

(E.

69)

The Task Force has promulgated,

as an interim measure,

a

code of good mining practices.

The approach taken is not end--of--

the—pipe treatment of the discharge, but rather a series of house--

keeping measures which are likely to reduce the TDS concentration

resulting from mining activities.

These are summarized on page

4

of Exhibit

4.

These involve practices which may minimize water

from coming in contact with disturbed areas, including bypass

diversions, slope and gradient reduction, stabilization, sealing

of bore holes,

introduction of mine barriers, special steps for

disposal of potential contaminant producing materials and fracture

zone sealing.

There are also measures involving retention and

control of waters exposed to disturbed materials,

including

erosion and sedimentation controls, reuse

of discharges and mini-

mization of exposure of water to disturbed materials,

Other

methods

include a rerouting of discharges to larger streams where

the dilution would be provided, augmentation of flow of receiving

streams to provide dilution and controlled release of effluents

during times of high flow when there

is ample dilution.

Many of these practices are novel and reliable cost estimates

are not availab1e~ Therefore it is not possible at this time to

do an actual economic impact study evaluating the cost of requiring

the code of good operating practices.

However,

the Board incorpor—

ates the Economic Impact Study in R76--7 as an economic impact study

on Rule 605.1,

Although that study does not address the code of

good operating practices,

it ‘does conclude that enforcement of the

present standard by requiring end-of-the—pipe treatment would be

very expensive.

There is expert testimony in the record to sub--

stantiate that, although the costs of good operating practices are

unknown, they will be substantially less than the cost of end—of-the

pipe treatment

CE,

146),

The

eventual

rule

may include some combination

of

these good

housekeeping procedures together with the proposal

to

increase the

water quality standard for TDS in intermittent streams receiving

coal drainage

CE,

73,

110,

128).

37—254

---

--45--

The Board notes that none of the parties in these proceed-

ings has addressed the dilution rule

(Rule 604),

Part of the

rationale of the rule against dilution of effluents goes to ac--

cumulation of toxic pollutants.

Chlorides and sulfates are

generally soluble and should not accumulate under ordinary circum--

stances.

Furthermore,

they are not at all toxic below a certain

concentration,

Therefore,

the Board suggests the Task Force con-

sider amending Rule 604

to allow dilution of effluents by permit

where good housekeeping practices cannot reduce the TDS levels to

an acceptable level.

However, dilution of effluenbs should not

be permitted where groundwater must be used for the dilution or

where there is available only surface water which has more

valuable uses,

Concern was expressed at the hearing that the Board was

being asked to adopt a rule requiring compliance with a code of

good operating practices which had not yet been promulgated

CE.

111,

134).

Subsequent to the economic impact hearings,

the code

was completed and submitted to the Board.

Further concern was

expressed that the record was deficient in that there

was no

technical testimony to the effect that compliance with the code

of good operating practices would in fact reduce water pollution

CE.

17,

80,

144).

Control of mining practices which are not

related to the Board’s statutory jurisdiction would,

of course,

be beyond the Board’s authority.

Further consideration of this

problem led to the recognition that the proposed version of Rule

605,1 required compliance with the code and that this was an

unauthorized delegation of rulemaking authority to the Agency.

The proposal has therefore been rewritten

to provide that the

Agency issue the exemption if the operator submits proof that he

is utilizing good mining practices designed

to

minimize discharge

of TDS.

The Agency

is authorized to promulgate the code of good

mining practices,

Compliance with the code will be deemed evidence

that the operator is utilizing good mining practices.

However,

should the Agency deny the exemption due to non-compliance with

the code,

the operator will be free on permit appeal to argue

that his practices,

though not conforming to the code,

are designed

to minimize the discharge of TDS,

With this construction, the

Board

is not requiring compliance with the code and therefore

technical

evidence

to substantiate the

code

is

not

required.

If

provisions of the code

are

not reasonably related

to

prevention of

water pollution,

this will be an issue before the Board upon permit

appeal.

37—255

---

—46—

Rule

605.1(b)

has

been

added

to

the

Agency

proposal.

This

provides

specifically

that

the

permittee

requesting

exemption

must

file

a

permit

application.

The

Aqency

indicated

at

the

hearing

that

this

was

the

case

and it

has

been

added

to

the

proposal

for

clarity

CE.

26,

121).

The

Agency

proposal

was

vague

on

the

question

of

the

burden

‘of

proving

adverse

effect

on

the

environment.

At

the

hearing

the

parties

agreed

that

the

Agency

should

have

the

burden

of

demon-

strating

adverse

effects.

This

is

at

variance

with

the

usual

burden

of

proof

in

permit

issuance.

section

39

of

the

Act

provides

that

it

shall

be

the

duty

of

the

Agency

to

issue

such

a

permit

~‘upon proof

.

.

.

that

the

facility

•

.

.

will

not

cause

tion

of

this

Act

or

regulations

hereunder.”

The

Board

in

this

situation

is

by

regulation

reversing

the

burden

of

proof

CE.

16,

30,

34,

37, 79, 81, 112,

118).

At

the

hearings

there

was

a

discussion

of

whether

the

intent

of

the

proposal

was

that

the

Agency

fix

an

interim

limitation

on

the

TD5

•

The

conclusion

was

that

under

the

proposal

the

could

not

set

such

an

interim

limit.

If

the

Agency

can

strate

significant

adverse

effect

on

the

environment,

then

it

must

deny

the

exemption.

In

this

case

the

applicant

will

have

to

pro-

ceed

by

way

of

the

variance

route

CE.

74,

78).

The

original

proposal

specified

“significant

adverse

effects

on

aquatic

life’

or

existing

recreational

areas

of

the

receiving

streams.”

This

has

been

changed

to

“effect

on

environment

in

and

around

the

receiving

water.”

The

exemption

should

be

denied

if

there

is

significant

adverse

effect

to

riparian

areas

and

in

general

to

the

environment

in

and

around

the

receiving

water

CE.

115).

606

Effluent standards (P—306; 0—606)

Rule 606 sets effluent standards for mine discharges.

Rule

606 (a)

has

been

added

to

the

Agency proposal.

This makes

it

clear

that

the

effluent

limitations

contained

in

Part

IV

of

Chapter

3

do

not

apply

to

mine

discharges.

This

has

always

been

the

law.

How-

ever,

it

is

not

clearly

set

forth

in

the

proposal

or

the

old

Chapter

4

CE.

56).

37—256

---

—47--

Compliance with the effluent standards other than acidity

and pH is determined by the averaging rule contained in Rule

601.

Compliance

is based on a thirty day average with no 24—hour

composite exceeding two t~nnesthe standard and no grab sample

exceeding five times the standard.

New Storet numbers have been specified for acidity, ammonia

nitrogen,

zinc and fluoride,

The old Rule 606 regulated nitrogen

at

5 mg/I whereas the new rule specifies ammonia nitrogen, measured

asN.

The standards for zinc,

lead and acidity are unchanged

except for the Storet number,

The pH range has been tightened

from five to ten to six to nine

CE,

45,

51).

The EcIS concluded

that this would benefit the environment

(EcIS 27;

E.

52),

The

cost will be minimal since only one additional mine will be out

of compliance with the new standard

(EelS

6,

39).

The standard for iron has been decreased from 7 to 3.5

mg/i and the standard for total suspended solids

(TSS)

has been

tightened from 50 to 35 mg/i

CR,

46,

51,

53),

These changes are

environmentally beneficial

CEcIS 25,

31;

B,

51,

53).

Under the

averaging rule,

these standards must be met on a thirty day

average.

They are doubled when measured on a daily composite.

The new numbers

are the same as federal guidelines applicable

to

coal mines under 40 CFR 434,

A recent permit appeal to the Board

revealed that there

is some dispute

as to whether the federal or

the existing Chapter

4 standards are more stringent (Peabody Coal

Co.

v, EPA

PCB 78--296,September 20,

1979).

This

is because the

federal standard, when coupled with the averaging rule and pre--

cipitation exception, sometimes yields a higher number on a 24—

hour composite.

However, the Board concludes that it is more

difficult to meet the lower thirty day average than what the dis--

charger must now meet and that this

is a more stringent standard

(EelS

25),

The economic impact will be minimal since most mines

subject to the rule must meet the federal guidelines

anyway

(EelS

42)

Footnote

3

provides

an exception for flows resulting from

a 10--year,24—hour precipitation event,

This exception applies

only to a facility designed, constructed and maintained to con-

tain or treat discharge from less than a 10—year, 24--hourprecip—

37-257

---

—48--

itation event, but designed to bypass

a larger precipitation event.

This exception

is taken from the federal standards of

40 CFR 434.

Federal mine safety regulations mandate that holding ponds be

designed to bypass such rainfall for safety reasons.

This ex--

ception has been added in order to bring the effluent standards

into line with these other regulations

(E,

47,

56, 124),

The original Agency proposal was unclear as to which para—

meters were subject to the exception in footnote

3.

During dis--

cussion of the EelS

it became clear that the Agency’s intent was

that the 10—year, 24—hour footnote apply to all parameters except

pH and acidity

CE.

124),

The federal guidelines apparently cx--

cept pH and acidity also,

pH and acidity are not exempt under

this version of Rule

606,

However,

one would not expect to see

excursions with respect to these parameters during overflows

caused by a large rainfall,

The large rainfall should not result

in increased production of acid in disturbed materials.

A large

flux of water has some buffer capacity and should dilute the

acidity so as to moderate pH.

The Economic Impact Study found that it would cost $40,000

to $90,000 per mine to construct holding basins to contain a

10—year, 24-hour storm

(EelS

42;

B.

56,

124),

However, this con--

elusion may be affected by confusion in the proposal concerning

the extent of footnote

3 to Rule

606.

It has been argued by the

industry that the old Chapter

4 required construction

of mdc--

finitely large holding basins and that lO—year/24--hourbasins

therefore represent a cost savings over the present requirements

of Chapter 4

(Peabody Coal Co.

v. EPA,

op.

cit.)

The fluoride standard has been increased from

8 mg/I to

15 mg/i.

In the hearings evidence was presented to ‘substantiate

this relaxation of the standard.

The old standard was based on

experiments which

were done

in deionized water containing

fluoride.

In water containing other ions of hardness equivalent to typical

Illinois mine drainage water, the fluoride is not nearly so toxic

to aquatic life as had been previously believed

CR.

117;

E,

52),

37—258

---

—49—

607

Offensive

Discharges

P—307;

0--605(b)

Rule 607 proscribes drainage containing settleable

so’lids,

floating debris, visible qil, grease, scum or sludge solids.

Color, odor and turbidity should be reduced below obvious levels.

This

is Rule 605(b)

of the present Chapter

4 and Rule 403 of

Chapter

3

CR,

47, 51).

608

Deleted

(P--308)

.

The Agency proposal contained a rule to the effect that an

operator shall conduct mining activities

so as not to violate the

Act and Chapter 4,

This has been deleted,

A number of substantive

rules are set forth

in Chapter

4 and the Act,

It is unnecessary to

make a rule against violating the other rules,

Furthermore,

a

charge

in

a complaint that an operator had violated this rule

could be a violation of due process

in that it would

not adequately

inform him of what he had done.

PART VII:

COMPLIANCE AND EFFECTIVE DATES

Part VII contains transitional rules covering situations

which will arise after the effective date of Chapter

4,

Rule 701

provides that the Chapter will become effective ten days after

filing with the Secretary of State.

Rule 703 provides that the

state permit requirement of Rule 401 becomes effective only on

expiration of outstanding permits.

Outstanding permits will cx--

pire no later than three years after the effective date or upon

the first expiration

of an NPDES permit held for the facility.

Rule 702 provides that a person holding an outstanding

permit may make application for a new permit either before or

after the effective date of this Chapter.

It

is

anticipated that

operators of coal transfer and storage facilities will want new

permits.

After the effective date the Agency may require a new

permit application on 180 days notice.

Rule 703 Cd) provides for

expiration of the outstanding permit if the application is not made

by

this

date.

Rule 703(c) provides for expiration upon issuance of

a

new

state

or

NPDES permit for the facility.

If the Agency denies

the

new

permit

or

takes

no

action,

the outstanding permit will

remain effective for up to three years

as provided by

Rule 703(a),

The NPDES permit requirement of Rule

302

is the same as that

found in Rule 901 of Chapter

3,

,There is no need to

stay

enforce--

ment of that rule since this revision does not impose an NPDES

permit requirement on any additional facilities,

37—259

---

--50--

The provisions

of Chapter

4, other than Rule 401:

State

Permits, are effective ten days after filing.

At this time the

other rules of Chapter 4 become immediately effective,

This

includes all of Part VI, including the new effluent standards

of Rule 606.

Holders of outstanding operating permits may be

subject to enforcement actions based on Rule 606

as provided by

Rule 410 even if their discharges conform with their old permit

conditions,

Rule 704 provides the

requirement of old Rule 502 of an

abandonment permit continues to apply to operators who have opened

mines prior to the effective date.

This will continue indefinite—

ly until the operator is

issued for the facility

a state or NPDES

permit which contains an abandonment plan.

Such a permit may be

issued under the procedures of Rule 702 and 703,

This Opinion, together with the Board Order of December 13,

1979, constitute the Proposed Opinion and Order of the Board in

this proceeding,

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, her~ycertify the above Proposed Opinion was

~te1on

the

~

day ~

1980 by a vote of

~stanL,MoffOlerk

Illinois Pollution Control Board

37—260