ILLINOIS POLLUTION CONTROL BOARD

September 2, 1982

AMAX COAL CO.,

)

Petitioner,

PCB 81~2O3

ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY,

)

Respondent

R,

STEPHEN

HANSELL AND ROBERT L. TRIERWEILER APPEARED ON

OF

PETITIONER; AND

LISA ELIN MORENO AND

MARY E. DRAKE APPEARED ON BEHALF OF

RESPONDENT

OPINION AND ORDER OF

THE BOARD (by J. Anderson):

This matter involves

a petition filed

by Amax Coal Co., a

division of

Amax, Inc. (Amax) for review of

NPDES Permit No.

1L0060364 issued

by the Illinois

Environmental Protection Agency

(Agency) on November

18, 1981. The facility involved is Amax’

Sun Spot Mine located

in Fulton County.

All but

one of the issues presented for review in the

original December

21, 1981 petition have been

resolved by the

parties.

The March 9, 1982 amended petition identifies the sole

remaining issue

for review as being whether the

Agency correctly

determined that

discharges from and

through Discharge Point No.

003

(the Ipava

Basin) do not qualify

for

the

“rainfall exemption”

of Rule 606 of Chapter

4:

Mine

Related Pollution (since codified

as Section 406.106

“Effluent Standards”, Ill, Adm. Code,

Title 35,

Subtitle D, Chapter

1).

Hearing was

held April 21, 1982, following

which the parties

submitted closing briefs,

Amax’s main brief

was filed June 7,

1982,

the Agency’s

brief on July 8,

1982 and Amax’s reply brief

on July 28, 198~2. In

their briefs, the parties have

requested

review of certain of

the Hearing Officer’s rulings concerning

admissibility of testimony and exhibits, which the Board will

address

before proceeding to consider the substantive issue.

Amax objects to the Hearing Officer’s admission into

evidence

of

the Agency’s Group Exhibit 6, and testimony of Agency

witness

Harry

Chappel

concerning this exhibit (R. 164~168).

Amax requests

48~71

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2

that this exhibit,

which consists of three Discharge Monitoring

Reports (DMR)

for three months following granting of the permit,

be stricken~ The

Agency argues that the DMR~sare relevant to

the issue

of whether the Ipava Basin is properly designed and

constructed

to treat runoff in such manner as to qualify

for the

rainfall

exemption.~ While agreeing that the DMR’s were not before

the Agency

at the time of the permits~ issuance, the

Agency

essentially

argues that, in as much

as

Amax had stipulated to

the admission

at hearing of some facts not

originally before the

Agency (e.g.

Joint Ex. 1), that it has waived objections to all

such facts.

Amax disagrees.

The Board strikes this evidence, finding that Amax has made

no such general

waiver, and that the relevancy of this

information

is questionable.

Most

of the facts in this case are stipulated. The Ipava

Basin is a

30.4 acre sedimentation basin formed by the damming

of

Francis

Creek, and discharges via discharge point 003 to Francis

Creek.

(Construction of this sedimentation basin

was the subject

of a prior

Board permit appeal proceeding, Amax Coal Co.

v IEPA,

PCB 80—63,

64 (December 4 and 19, 1980). ~

run—off

is tributary to the Basin is 4068.7 acres, of

which 1090

acres are

currently permitted for mining operations. The

volume

of

runoff

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

to be 4.6 inches/hour,

from the entire tributary area is 540.3

acre/feet, and from the p~mitted area is 170.8 acre/feet. The

volume

of water actuallyTãTflii~uponthe Basin itself

is

11.65

acre/feet. The Basin has the capacity to capture and retain

about 220 acre/feet (Joint Ex, 1).

It

is stipulated that, given the above, the

Ipava Basin as

designed and

constructed has the capacity to

contain

the

volume

of

runoff from the 1090 acre permitted area and the volume of

rainfall

falling on the Basin itself, “provided that the runoff

from the unaffected

area of 2978.7 acres were not tributary

to

it.” The Basin

removes suspended solids from the waters

it

contains by

means of natural gravitational settling; no

flocculation,

aeration, coagulation, or any other chemical or

mechanical

methods for solids removal are employed (Joint

Ex, 1).

Rule 606(b) establishes mine discharge effluent

standards.

Footnote 3 to

the Rule, provides that

“Any overflow, increase in volume of a discharge or

discharge

from a by—pass system caused by precipitation

or snowmelt

shall not be subject

to the limitations

covered

by this footnote, This exemption shall

be avail-

able only

if the facility is designed, constructed

and

maintained

to contain or treat the

volume of water which

would fall on the areas covered by this subpart during

a 10—year, 24—hour or larger precipitation event (or

snowmelt or equivalent volume), The operator shall have

the burden of demonstrating that the prerequisites to an

exemption set

forth in this subsection

have been met.”

48-72

---

3

It is the Agency’s position in

this action

that, to qualify

for this exemption, the Basin would

need to

have the capacity to

contain about 557 acre/feet of water,

the

volume of run—off from

the entire tributary area plus the volume of rain falling upon

it. Amax’ position is that

the

Basin~s 220 acre/feet capacity,

which can contain the volume of run-off from the tributary

permitted area plus the volume of

rain falling

upon the basin

itself, is sufficient to so qualify.

The Rule 606(b), note 3, exemption was taken from the federal

standard of 40 CFR 434, as adopted December 28, 1979 (44 CFR 76788-

76793). Rule 606(b), note 3 was intended, at the time of its

adoption, to track then—current federal regulations as closely as

possible “In the Matter of: Proposed Amendments to Chapter 4”,

R76—20, R77—10 (Opinion of July 24, 1980, 39 PCB 196 at 255).

While USEPA has proposed changes in its exemption rule (46 FR 3136,

January 13, 1981, and 46 FR 28873,

May

29, 1981), no final rule

has been promulgated to supersede the December 28, 1979 rule.

The dispute here centers around the interpretation of the

phrase in 606(b), note 3, “volume of water which would fall on

the areas covered by this subpart”. Also in dispute is the

meaning of the words “contain or treat”.

At the time of the adoption of Rule 606, no subparts existed

in the Board’s rules. Each of the parties has forwarded arguments

as to what the word “sub-part” would have been intended to mean in

the context of Chapter 4. As use of the word “sub—part” was clearly

a drafting error resulting from incorporation of federal language

without change, the Board will not outline these arguments. To

strain to give a meaningless word meaning would be absurd. As

the Board’s intent was to track the referenced federal regulations,

the scope of the rule’s intended coverage should be determined by

reference to the federal rule.

40 CFR 434.42(a) establishes effluent limitations; 434.42(b)

contains the “rainfall” exemption word for word as contained in

Rule 606(b), note 3; 434,42(c) contains a “commingling” provision.

The parties agree that the reference of 40 CFR 434.42(a) to “areas

covered by this subpart” would be areas covered by Subpart D-—

Alkaline Mine Drainage Subcategory, in which the exemption is

found (Amax Main Br. p. 5, Agency

Br, p. 6). Read together, the

definitions contained at 40 CFR 434.11(c, d, g), indicate that

Subpart D refers to alkaline water drained, pumped, or siphoned

from

an

active mining area, Drainage

from

other than active

mining areas is thus excluded from

the

Subpart’s coverage by

However, the “commingling” provision of 40 CFR 434.24(c)

48-73

---

4

“Drainage which is

~ornanactivemininar~!a

shall not be required to meet the limitations set

forth in paragraph (a) of this section so long as such

drainage is not commingled with untreated mine drainage

which

is supject to the limitations in paragraph (a)

of this

section” (emphasis added),

Therefore,

the effect of this provision, by its language is

to

include

otherwise unregulated drainage which becomes commingled

with

drainage from “areas covered by this subpart D”,

In its “Summary and Basis of Regulations” statement, USEPA

explained

that:

“Process waste waters generated from coal

preparation plants include fine~coal and mineral

particles such as clays, which may remain suspended in

the

waste water and cause serious pollution problems

for receiving waters. ,.,The elementary technique for

removing suspended solids from mine drainage and pre-

paration plant process waste water involves the use of

a sediment basin, ...A sediment pond operates

on the

principle that as the sediment loaded water passes

through the pond, the solid particles will settle to

the bottom and be trapped. ,.,Thus, in order to meet

a

specific TSS effluent quality, the pond will have

to be constructed and operated to detain sediment—laden

water long enough to settle all particles of a specific

size (and larger). This “detention time” is a critical

factor in sediment pond efficiency and effluent quality,

and is a function primarily of the pond surface area

and flow rate into the pond.

The effectiveness of a given sediment pond will

depend upon the specific design features and practices

employed

to optimize detention time, For example,

the

pond

should be designed and operated to maximize the

opportunity for quiescent settling of solids; .,.and

minimize the potential for “short-circuiting”

—

that

is, the condition where influent to the pond may move

rapidly to the discharge point without being detained

in the pond long enough to permit optimal settling of

solids” (44 FR 76789, Agency Rec, at 107).

On

May 2, 1980 (prior to the Board~sJuly adoption

of

Chapter

4) USEPA, by letter, issued “Guidance for Establishing

Relief

from Effluent Limitations for the Coal Mining Point

Source

Category”

(Agency Rec. Item 17, p. 112), In this guidance,

USEPA

makes

clear that:

1, The words “contain” and “treat” are not

synonomous and

that

“treat” means “the addition of flocculants in

addition to

physical

settling” (Id. p. 116);

48-74

---

2. In deterninin~, a ba~”1i

rta~r~,

the

operator and the per’nitt~n

~

~ icr the actual

“volume of watei which Ia fa’

~i

ci

a~ea’~’as

stated in the re~1~~~cn~

:

r~rfaIl does

not go into ruroft~’ Id p

3, In eic ~r’~

area to be inciude~ ~ t c

is commingled with t ~

(Ibid.), includir~g by

and land undergoir

(The Board notc

roposed, but

not yet adopted, a~ A a~

~ :o taptc~r4 as Ill.

Adm, Code Title 35, ‘tbt U

J~t~ap~b, Subpart D

§450,401—405; 5 ~

~.

at. ~otice, May 8,

1981),

To effectuatc. t

d tug the ~rainfall”

exemption to a) “tra~U

~ ~c t r~ a~db) provide relief

from strict effluent

3

r

d$rU

a r a:~ng adverse environ-

mental effect, the Bo~r

lit

prU tt~ Pu e ~~oC61b),note 3

exemption as requi~

S

i

~

ba~ir

o cortain or treat

the surface runoff

~

r

Ury to the basin,

as well an the rain±~

j~c

I a

To hold otherwise

would be to detea~tt

~ ol ~ ~i~a lat ontaminated

drainage be reta~red

i

-r b

t

~rthtine to permit

settling of soli a t I. ci~

~i

s extc t ,r ~icable even under

unusually ucavy pu ~

Havi~j ~xe a

ow~ro~defining

the scope of ita reauI~t~or

F

‘~Ptv 10 B ~c ~e

~,

the Board may

easily adjudica:e thU pdrt ~u a~casa~ As Arnax stipulates that

it does not. “treat~

it.~ ~

i

in ~ie Ipava basin by means

of flocculati~n an

tU~

tn ~3

ii

r ca~ic-ityto capture and

retain only aoou~ ~2J o~ ~-ha

~5i

~ore/rcet of the runoff tributary

to it and rainfall f Iti~~u jr

t~z~o~rdupholds the Agency~s

permitting dec~s~urt

nar I ~n t~o 003 does not qualify

for the Rule 6~6(b x r tior

*In USEPA~ssubseiu~

3

n ~rj 1. 81. prposal to modify the

exemption becauo, o~ hc~

~.

fi~ir

~~i9 i

fiol the options to

either “contains r -~r-~rt ~r-~~treat option was proposed to

be eliminated to rake n~des gi criteria more clear (46 FR 3144,

Agency Rec p~ l34)~ In ~ May, ~98~ proposal, USEPA noted that

the January prp al r~ d

have

requrcd a basin to contain all

surface waters draunir~mU it ~ rcl’idur.g wa ~rs from the

undisturbed (virgia)

tiOo~’

a d ~ractive (reclained) area, in

addition to the actuve mununj ara~, ?he lay proposal was to

require containment o~y of q~ e~v nes fran active and

reclaimed areas (16 ~R 2~874, AJeraj

~

p. 150),

a

‘

ortain~’, the

I

~nage area which

a e r~

a 1.ve mining area”

y oI aiu~

c~

r~g iroi ~virgin land

n~t r

l~

*

---

6

The Board

notes that Max has

nr

dented arguments based

on testimony

that it did not rely upon the USEPA “Guidance”

in

designing

its Basin, and that it is physically impossible

to

separate the

run—off tributary to tie lUcia. from unaffected areas

and from

permitted areas (R. 77-77, 98), and on Agency

testimony

that the

Agency was having difficulty in nterpreting

the exemption

“not only.

.

.in Amax~scase but in other cases” during the

period

(R. 146)

of review of Max permit epplira~lon, Such

arguments,

which are

certainly appropriate in the context of

a petition for

relief by

way of variance or site-spccifu~rule, may

not be

recognized

by the Board in this perrrit appeal proceeding.

This

Opinion constitutes the findLig ol facts and

conclusions

of law of the

Board in this matter,

The

Agency~sNovember 18, 1981 determination in

NPDES Permit

No, 1L0060364

that Discharge Point No, 3 does not qualify

for the

Chapter

4, Rule 606 “rainfall exemption” is sustained.

IT IS

SO ORDERED.

I,

Christan L. Moffett, Clerk of the Illinois

Pollution

Control Board,

hereby certify that the above Opinion

and Order

was adopte~on

the ~

day of

~

1982 by

Illinois PolL

Control Board

48 76