ILLINOIS POLLUTION CONTROL BOARD

April

24, 1986

IN THE MATTER OF:

)

PROPOSED AMENDMENTS TO TITLE

35,

)

R84—29

SUBTITLE

D:

MINE RELATED WATER

)

POLLUTION,

CHAPTER

I,

SECTION

)

406.106

ORDER OF THE BOARD

(by R.C. Flemal):

This matter comes before the Board upon an April

4,

1986,

motion

(hereinafter “Agency motion”)

filed by the Illinois

Environmental Protection Agency

(“Agency”)

to request that the

Department of Energy and Natural Resources

(DENR) revise

the

economic impact analysis prepared

in this proceeding.

That

analysis

is entitled “Economic

Impact Analysis

of R84—29: Mine—

Related Water Pollution Regulations”.

DENR filed

a response

on

April

9,

1986,

requesting that

the Board deny the Agency’s

motion.

The Illinois Coal Association

(ICA)

filed

a memorandum

in opposition

to the Agency’s motion on April

10,

1986.

For the

reasons discussed below,

the Board will deny the Agency’s motion.

The ICA initiated

this proceeding on May 31,

1984, when

it

petitioned

the Board

to amend

35

Ill.

Adm.

Code 406.106 by

deleting

the

forir~er provision relating

to discharges during

rainfall events.

The ICA’s substitute proposal exempts

discharges from the requirements of

406.106(b)

(except pH), but

imposes

a

.5

rnl/l settleable solids

(SS) limitation on any

discharge or increase

in the volume

of a discharge caused by

precipitation within any 24—hour period less than or equal

to

the

l0—ye~r24—hour precipitation event

(or snowmelt of equivalent

volume).

The

.5 ml/1 SS standard

is

the current federal

standard.

The impetus for the ICA proposal

is that it would

allow mine operators

in Illinois to utilize smaller

sediment

ponds.

On March 15,

1985,

the Agency submitted an alternative

proposal which would eliminate the total suspended solids

monitoring requirement

for mine discharges and

instead provide

two design criteria alternatives for treatment of

alkaline

surface drainage.

The alternatives

are:

the design and

construction of 24—hour detention ponds for runoff from the 10—

year 24—hour

storm event

(known as Alternative “A”);

or

the

design and construction of sediment ponds capable of

removing 80

of sediment from the

10—year 24—hour storm event

(known as

Alternative

“B”).

69-311

---

—2—

The economic

impact analysis or

study

(EcIS) ,prepared for

this proceeding pursuant

to Ill.

Rev. Stat.

Ch.

96’/2

par.

7404

was done by the firm of Huff

& Huff,

Inc.

The EcIS considered

and discussed

the economic impact of both

the ICA proposal and

Alternative

“A”

of the Agency’s proposal, but not

the economic

impact of Alternative

“B”

of the latter proposal.

The Agency

alleges that this omission caused

the EcIS

to understate

the

economic benefit of the Agency proposal

(Agency motion,

p.

3),

and consequently caused

the EcIS to inaccurately compare the

savings that would result from either proposal.

The Agency also argues that the EcIS

is defective due

to

what

it claims are “analyses and conclusions”

in the document

which

could

lead the Board

to make inaccurate findings of fact on

the proposed regulations

(Agency motion, par.

14).

The “analyses

and conclusionst’

in the EcIS which

the Agency believes are

erroneous are noted in paragraphs

15—18 of

the Agency motion, and

include the use

of

a 20—year

life for

an underground mine,

rather

than 30 years;

the conclusion

that no particular adverse effects

have been identified

in other

states adopting the

.5 rnl/l

rule

change, which

is inconsistent with the data found

in Table

3—5 of

the EcIS;

the use for comparison purposes of an acre—feet per

acre disturbed unit of measurement, which

the Agency contends is

an

inadequate criterion because

it does not account

for all

drainage

to

a sedimentation pond when part of

a basin remains

undisturbed;

and the EcIS’ failure

to include the costs of sample

collection,

data handling, and compliance report preparation in

the determination of

costs savea under

the Agency proposal due

to

the elimination of some sampling requirements

(the Agency alleges

that omission of

these costs results

in an inaccurate analysis

of

the savings derived from its proposal).

The Agency contends that the aforementioned alleged

shortcomings of the EcIS prevent

the Board from determining,

as

required by

27

of the Illinois Environmental Protection Act

(“Act”), whether

the proposed regulations have any adverse

economic impact on

the people

of the State

of Illinois.

A recent Appellate Court case,

Citizens Utilities Company

of

Illinois

v.

Illinois Pollution Control Board, 479 N.E.

2d 1213

(1985)

clarified the Board’s

responsibilities pursuant

to

27

of

the Act.

In that case the Third District held that

27 requires

the Board

to determine the economic impact of any proposed

regulation,

and that such determination must

be based on the EcIS

and other

evidence

in the record.

The Board first

finds

that the concerns noted

by the Agency

regarding some “analyses and conclusions”

of the EcIS (Agency

motion, par. 15—18) are not sufficiently substantive to support

a

determination that the Board

is unable

to make its economic

determination as

a consequence of

them.

Moreover,

through

its

motion the Agency has alerted the Board

to these “analyses and

69-312

---

—3—

conclusions”, thereby greatly reducing the possibility

that these

alleged faults would

lead the Board

to make inaccurate findings

of fact.

The EcIS’

failure to address Alternative

“B”

of the Agency

proposal, on the other hand, might have substantially hindered

the Board’s ability

to adequately consider the comparative

economic

aspects of the ICA and Agency proposals.

However,

the

potential

shortcoming of the EcIS

in this regard

was remedied at

hearing by extensive questioning on what the economic

ramifications

of Alternative

“B” would

be.

Section

27(b) of

the

Act states

in part that:

In adopting any such new regulation,

the Board shall

consider those elements detailed

in the Department’s study

and other

evidence

in the public hearing record,

as

to

whether the proposed regulation has any adverse economic

impact on the people of the State of Illinois

(emphasis

added).

Therefore,

it appears

that

the Board

will be able, on the record

as

a whole,

to make

a determination of the economic aspects of

the Agency proposal.

The Board

is constrained from granting the relief requested

by the Agency for another

reason as well.

The Board

is unaware

of any statutory authority empowering

it

to order DENR to revise

or

supplement an EcIS

(In the matter of Proposed Site—Specific

Water Pollution Rules

and Regulations Applicable

to Citizens

Utilities Company

of Illinois Discharge to Lily Cache Creek,

R8l—

19,

_____

PCB

_____,

April

10,

1986).

However,

for the reasons

stated above

such

a lack of authority

is not troublesome

in this

instance.

The Agency motion

is therefore denied.

IT

IS SO ORDERED.

I,

Dorothy M.

Gunn, Clerk

of the Illinois Pollution Control

Board, hereby certify that the above Order was adopted on

the

~74~-day

of

—

,

1986,

by a vote

of

7—Ci

y7~

/~

Dorothy

M. Gi~nn, Clerk

Illinois Pollution Control Board

69-313