ILLINOIS
POLLUTION
CONTROL
BOARD
January
7,
1982
ILLINOIS
ENVIRONMENTAL
PROTECTION
I
Complainant,
JAMES
JOBE,
d/b/a Peacock
Coal Company~
MS~CHRISTINE ZEMAN, ASSISTANT ATTORNEY GENERAL, APPEARED
ON BEHALF OF THE COMPLAINANT;
MR~ROBERT
L~ BUTLER,
ATTORNEY
AT
LAW,
APPEARED
ON
BEHALF
OF THE RESPONDENTS
OPINION AND
ORDER OF THE BOARD
(by J~D~Dumelle):
This matter
comes before the Board on
a
November 17,
1980
complaint
filed by the Illinois Environmental Protection
Agency
(Agency)
alleging that
James Jobe had violated the Environmental
Protection
Act
(Act) and the Board~sChapters
3 and 4:
Water
Pollution and
Mine Wastes,
respectively,
Hearings were held
on April
23,
April
24,
and May
22,
1981 at which both parties
presented testimony and exhibits,.
At the close of Complainant~s
case,
Jobe moved for dimissal
(3R,
218),.
That motion is hereby
denied
The Agency alleges that Jobe violated the “no~~~discharge”
condition
of his mine’~’relatedpeinnit issued by the Agency to
Jobe
for Peacock Mine
#2,
which is located southeast of the
Village of Crab Orchard in Williamson County,
It further
alleges
that Jobe failed to obtain a required NPDES permit
for
the point source discharge of wastewater from a holding
pond
to an unnamed tributary of the Saline River~
Finally,
it
alleges that Jobe~sdischarge violated the effluent standards
of
(old)
Chapter 4:
Mine Wastes,
for acid, iron and pH~
The
parties stipulated to the admission of certain facts
and documents (R~
5~7and Comp, Ex~s1 and 2) which narrow
this case
to two issues:
whether the discharge of wastewater
from Peacock
Mine
#2 was into
a
water of the State, and
whether
such discharges violated
effluent criteria as alleged,
•
er
MJNl1~~
/~
APflftria
~
\‘~j
~
A,
A
A~w’
/~
A
At all relevant times
Jobe owned 39
acres of land in a
valley southeast of Crab Orchard
which had been
previously
mined
for coal by
both
surface and
underground
mining.
The
surrounding area consists of several
hundred
acres which
has been similarly mined,
A
ditch which is an
unnamed tributary
of
the
South
Fork
of
the
Saline
River,
flows
diagonally
across
Jobe~s property
from
the
northwest
to
the
southeast.
About
midway
along
the
ditch
is
a
body
of
water
formed
as
a
result
of
previous
mining
operations
(Pond No,
3
or
freshwater lake).
Some 6—8 feet above
Pond
No,.
3
and near this same
ditch
is
another body of
watar
usually referred to as an
“isolated
pond”
or
“isolated
lake~
Slightly
to
the
north
and
east,
respectively,
of
these
two
bodies
of
water
lies
“sediment pond
#2”
(See Resp.
~x,
1,
R~
60,
79,
83,
122,
194,
207,
and
271,
and
3R.
224
),
This
Pond
No.
2
:iies
immediately
west of
the
permitted
site
and
al :Legealy
receives
wastewater
from
Pond
No~ 1
which is
on~siteand receives wastewater
pumped
from
the
pit area
where the mining
is done
(see diagram).
*Transcripts of the
April
23
and
24
hearings
are
numbered
consecutively from
I
to
320
while
the
May
22 hearing transcript
begins with p~170,
Therefore,
references
to
the
last
transcript
will
be
in
the
form
of
(3R.
ppJ.
P34
U
~,
~
A
,‘
—
~••_~
‘,~•‘
I
/,
A
I
~
~
#,—~.
I,
•L,~4L~,~
PR,
t~
~
/~5~~14
Jobe
was engaged in the business of mining
coal pillars
as well as coal
left
from
the
previous
mining
operation
(R.
15).
The
violations
alleged result from this activity.
Johe
argues
that the Agency has failed to
prove that
there was
any
discharge to a water of the State,
He argues
that
this must
be
true because there is no proof
that
any water
from
Jobe’s mine site ever reached the South Fork
of
the
Saline
River.
The Agency, however, alleges that the discharge
was to
the
unnamed tributary and that the tributary
is
a
water
of
the
State as well as the South Fork
(R.
94,
213 and Ex.
2,
¶13),
Section
3(u)
of the Act defines “Waters” to mean
“all
accumulations
of
water,
surface and underground,
natural,and
artificial,
public and private, or parts thereof, which
are
wholly
or partially within,
flow through, or border
upon
this
State.”
Section 104 of Chapter
3:
Water Pollution,
(which
is
made
applicable to Chapter
4 by Rule 200 of Chapter
4)
limits
the Act’s definition by excluding “sewers and treatment
works,”
Jobe admitted prior to hearing “that the unnamed
tributary
to
the South
Fork
of
the
Saline
River
traversing
the
Peacock
Mine
#2
site is an accumulation of water which
is neither a
treatment
works
nor
(a
sewer”
(First
Request
for
Admission,
para.
13;
Resp. Response,
para.
1),
Recognizing that
it
is
not
bound
by
Jobe~s
admission of
a legal conclusion,
the
Board finds
that
the
unnamed tributary falls under this
expansive
definition
of
a
water of the
State,
~thile
the
Board
has
in
some
cases
limited
this
definition on a case by case basis, the facts of this
case
demonstrate
that the unnamed tributary is
properly
considered a
water
of
the
State.
In
Meadowlark_Farms,
Inc,v,PCB,
17 Ill.
App.
3d
851,
308
N.E.
2d
829
(1974),
the Court affirmed the Board’s
finding
of pollution
of
waters of the State where those waters
consisted
of
an
intermittent tributary of Bushy Creek
(an intermittent
stream).
Also,
in
C,E,E~ v.
St2~an Chemical
Co,.,
PCB
74~201,
15
PCB
445
(February
14,
1975),
the
Board
found
“that
an
inter-
mittent
water
course
does
exist
and
tlat
waters
of
the
State
flow
through
the
culverts.,,and
this
intermittent
stream,,.is
deserving
of
the
dame
protection
as
Cedar
Creek”
(C,B.E.,
supra,
at
459),.
Other
cases
which
have
considered
this
issue
include
Allied
Chemical
~
v~ EPA,
PCB
73—382,
11
PCB 379
(February 28,
1973)
and
ArmakCo,v,EPA,
PCB
79—153,
37
PCB
543
(March
20,
1980),
among
others,.
These
cases
give rise to
what
has
been
referred
to
as
an
“industrial
ditch”
exception.
While
the
cases
are
not
entirely
consistent,
which
is
to
be
expected
of
“case~by—case” decisions,
certain
factors
do
recur
in
the decisions, most
notably:
1.
Whether
the
stream
or
ditch
is
a
natural
depression
or waterway rather than artificially constructed
or maintained;
2.
Whether
there
is
public
access to or use of the
waters;
and
3.
Whether
the
waters
support
aquatic
life.
Further,
it
is
clear
that
the
designation of
a
water
of
the
State
is
not
determined
by
whether
the
stream
or ditch is
intermittent
or
whether
it
flows
over
public
or
private
property,
though
these
factors
may
well
affect
the
above—noted
factors.
In
this
case
Jobe
does
not
contend
that
the “ditch”
or
“unnamed
tributary” was artificially
constructed
or
maintained.
Further,
the
testimony
and
exhibits
indicate
that
the
stream
meanders
to
the
South
Fork
of
the
Saline
River, which indicates
a
natural
waterway
(Resp.
Ex,
I
and
R.194
and
203).
Certainly,
the
tributary
was
not
constructed
by
Jobe
since
it
starts
up-
stream
of
his
site,.
The
tributary
extends
for
3~5 miles
prior
to
reaching
the
South
Fork
of
the
Saline
River,
traversing
property
not
owned
by Jobe
(R.
194
and
203),
This
is
the
oniy evidence
in the
record as to
the
public
access
except
that
“a
portion
of”
this segment runs
through previously
mined areas
(R.
203—4)
and passes under
a roadway
(Resp.
Ex.
1).
From
this
the Board
can conclude only that there may be public access.
Unfortunately, the record
is even more deficient regarding
aquatic
life in the unnamed
tributary.
The only evidence upon
which the Board could base any finding consists of photographs,
all of which were taken in
or
near
the
Jobe~ssite
(Compl.
Ex’s.
4,11,13,15,22 and 28—34),
and
which
show
no indication
of aquatic life in
that
area.
This
evidence is insufficient,
however, to support
any finding regarding the tributary
as
a
whole,
or
of
the
state
of
the
tributary
prior
to
Jobs’s operations.
Thus,
the
Board
finds
that
Jobe
has
failed
to
demonstrate
that
the
unnamed
tributary
falls
under
the
“industrial
ditch”
exception
and
that
the unnamed tributary is a water
of
the
State
and
should
be
afforded
appropriate
protection.
Further,
since
the
unnamed
tributary
runs
into
and
discharges
from
Pond
No,
3,
that
pond
must
be
considered
an
accumulation
of
water
which
is
also
a
water
of
the
State,
Jobe
further contends
that
the
Agency
has
failed
to
prove
discharge to a water of
the
State
in
that
no
showing
was
made
that the intermittent stream contained water at the time of
discharge.
However, since the Board considers Pond No.
3 to
be, in effect, an accumulation
of
water
within the tributary,
and since there
is
no
indication
the
Pond
No,
3 was ever dry,
this argument
must
also
fail.
In addition, Section 12(d)
of the Act proscribes the deposition of “any contaminants upon
the land in such place and manner as to create a water pollution
hazard.”
Clearly, the discharge of contaminants to
a dry
45—1.6
—5—
stream
bed
cannot be allowed where that stream is expected to
have water running
in it at a future date.
The
remaining issue
before the Board, then,
is whether Jobe discharged contaminants
to these waters
in
violation
of
effluent
criteria
as alleged.
William C.
Ryan, an Illinois Environmental Protection
Specialist working for
the Agency,
testified
that he inspected
Jobe’s site
on
August
2,
1978,
at
which
time
he
observed a
six-inch pump pumping
pit water into Pond
No.
1 which was
discharging to
Pond
No,
2
(R.
27)
He
further
observed Pond
No.
2
discharging
to
Pond
No,.
.3
and from there to the
unnamed
tributary
(R.
28),
He sampled
these
latter
two
discharges
(R.
28).
The
sample
of
the
Pond
No,
3
discharge
was found to
have
a
pH
of 4,4,
total
iron content of 1.1 mg/l, and an
estimated
flow of
50—60
gpm (gallons per minute)
(Compi,
Ex,
7A).
While
this
discharge is indicated to be
from
the fresh water pond,
that body
of water is also referred to as Pond No,
3
(Compl.
Ex.
16),
The sample of the Pond No,
2 discharge showed a
flow of
25—30 gpm,
iron of
31 mg/I,
a pH of 6.3,
no
alkalinity
and
acidity of either
55
or 75
(Compl.
Ex. 6A).
Ryan
testified
to
similar
discharges
on
August
8,
1978,
from
each
pond
and
into
the
unnamed
tributary
(R,
36-7),
No
samples,
however,
were
taken
at
that
time,
The remainder of
Ryan’s
evidence
concerning
the
discharges
at Jobe’s site, as well as supportive laboratory reports which
were entered as exhibits, is summarized by the table on the
following page.
Jobe attempts to show that “Ryan contradicts himself
ad nauseum
ad infinitum”
(Resp. Br~ 6).
However,
for
the
most part his
testimony appears consistent.
Given
that
his
testimony goes
back
as
much
as
three
years,
and
further
given
the number of
visits
to
the
site,
the
length
of time which
had
passed prior to
his
testifying,
and
the confusing and
inconsistent
terminology
used to describe the waters
in and
near Jobe’s
site,
it
is not
surprising to find some apparent inconsistencies,
However,
any inconsistency in Ryan’ s
testimony
is
more than
overcome by
the exhibits which are generally clear and
understand-
able.
In Count
I
Jobs is charged with having discharged
wastewater
from a point
source at Peacock Mine
#2 to the unnamed
tributary
of the South
Fork of
the
Saline
River
in
violation of Special
Condition
1
of his
permit,
and
thereby
in
violation of Section
12(b) of the Act and Rule
206 of
Chapter
4~
Mine Wastes,
That permit condition
allowed no discharge from
the site to waters
of the State
(Compl.
I~c.
1B),
On July 19,
1978,
Ryan observed water being pumped from the
pit to Pond No.
1,
which in turn was discharging to Pond No.
2
(R.
16—17 and Compi.
Ex.
.4),
On
August
2,
1978, he observed
similar discharges and a discharge from Pond No.
2 to Pond No.
3,
a water of the State
(R.
28),
The
discharge from Pond No.
2 was
channelized, and,
therefore,
a
point
source,
45~-i
7
*
55 mg/l appears to
at p.
14), but this
**
(Ag. Brief
EXHIBIT
NUMBER
RECORD
CITATION
OBSERvATION
DATE
DISCHARGE
POINT
IRON
(mg/I)
ph
(units)
TOTAL
ACIDITY
(mg/I)
TOTAL
ALKALINITY
(mg/I)
FLOW
(gpm)
3
R,
17
7/19~78
Pond #1
65,0
6~5
55
0
75—100
5A
H.
26—29
2/2/78
Pond
#1
100.0
6.3
75
0
50~~
60
hA
H.
26—29
o/2/78
Pond #2
.31,.
b..3
“
35
0
25—30
7A
H.
26—29
2/2/78
Pond
#3
1,1
4,4
20
0
50—60
~,.
‘~
8,9,10
18,
19A
18,
20A
H,.
39—44
H,.
67~~72
R.
67—72
2/1•/79
6/13/79
6/13/79
Pond #2
Pump hose
Pond #1
14,.6
71,.
79.
5..~.8
6~2
6.3
45
0
0
0
28
95
50~6O
~s—o
U
50—60
18,
21A
H.
67—72
6/13/79
Pond
#2
57.
6.4
0
95
50—60
23,
24
R.
78—84
11/2/79
~*
Pond
#2
0,4
7.2
0
200
23,
25
H.
78—84
11/2/79
Isolated
Lake
27,2
3~4
310
0
23,
26
R.
78—84
11/2/79
Pond
#3
7,8
6.0
0
140
27
R.
84—87
10/22/80
Pit
70.
3.0
640
0
none
be the concentration indicated and is
so indicated by the Agency
may be 75 mg/i since the laboratory analysis form is ambiguous.
Mr.
Ryan indicated uncertainty as to the location of this sampling point.
Similar
observations
were made on
August
8,
1978
CR.
36,
37 and 40),
August
11,
1978
(H,
38), February
1,
1979
(R.
39—40,
44—48 and Compl.
Inc,
11),
April
12,
.1979
(R.
63),
June
13,
1979
(R.
70),
and June 18,
1979
(H,
73—76),
Each time he observed
a
discharge
from Pond No,
I to Pond No.
2, he
also observed a
discharge
from
Pond
No,
2
to
either
Pond No.
3
or the existing
stream,
including
April
21,
:1979
(H.
63), June 13,
1979
CR.
70
and
Cornpl.
Ex.
22), and June 18,
1979
(H.
73—74),
Ryan’s testimony i~also supported by
that
of
Perry
L.
Pursell,
Surface
Mining Reclamation Specialist with
the
Office
of
Surface
Mining
CR,
282),
and Jobe
himself.
Ryan
testified
to
having
observed similar flows on June 25,
1979
(H.
284—289 and
Compi.
~s.
28—30) and September 13,
1979
(H.
295—296),
Jobe
himself
testified that water from Pond
No,
2 “could escape into
No.
3 if
it got
high enough”
(3R.
235).
Therefore,
the
Board
concludes
that
Johe
did
violate
the
no-discharge
provisions
of
his
permit
on
the
dates
indicated
above.
In Count
II
Jobs
is
charged
with
discharging
from a
point source without
an
NPDES
permit.
Jobe
does not contest
the fact that he had
no such permit, and
based upon the same
evidence considered
under Count I, above,
the Board finds that
Jobe has discharged
without the required NPDES permit
in
violation
of Sections
12(h) and 12(f) of the Act,
Rule 901 of Chapter 3:
Water Pollution,
and
Rule 206 of Chapter
4:
Mine Wastes.
In Count
III
Jobs is charged with
having violated the
effluent criteria for
acid,
total
iron
and
pH as set forth in
Rule 606(a)
of
the Board’s
(old) Chapter
4.
Based upon the data
from the table
above,
the
Board
finds
that
Jobs
has
violated
the
effluent
criteria for each of the contaminants
alleged on one or
more of the
dates alleged.
First, the
Agency
has
proven
that
Jobs
violated
the
5—10 pH
requirment of Rule 606 on
August
2,
1978 by
discharging
water of pH
4.4 from Pond No.
3
t.o the unnamed
tributary.
However,
the
3oard
cannot
find
violations
of
the
pH limitation
on November
2,
1979 or October 22,
1980
in that there
is
insufficient
proof
of discharge.
Second,
the
Agency
ha:; proven that Jobe
violated the
7.0
mg/I
limitation
for iron
in
the
effluent
discharged
from
Pond
No.
2
to
the
unnamed
tributary
or
Pond
No,
3
on
August
2,
1978;
February
1,
1979;
and June 13,
1979, at
concentrations
of
31,
14.6
and
57 mg/I,
respectively.
The Board
cannot
find
violations
on other dates
due
to Inadequate
proof
of disc1~arqe.
Third, the
Agency
has
proven
that Jobe
discharged waters
into waters
of
the
State
in
which
total
acidity
exceeded
total
alkalinity
on August
2,
1978
(from both Pond
No.
2
and
Pond
45—19
)
at
aS
Wi
It
,,.
606. These
respectively,
raperly
U’
at
.c.
at’
14
t
a
.tal
ete
U
214
aO
2~2
~.
u~t~
272).
1
Exam.
to
the
r
ery a
25 c.
ate
of
thc.
a
sanj’
Standa
lenditg
c
of dire
this
r
SUflZ
F..
1-ave
nc.
t iror
uc.h
a
Yoart
the wa e
(see Rut
P-v
alleged
a
Sectior
be impo’.
WI
inter f-ic
and
phy.
The
Ltt°
quality
upon th’
who cause
that
prtr..
~.
achievablc
of poliw rt
dischargc.&
However
tic
other hand
caused dan
t.
i
c.
to not correspond
~.
.~“al3.flity
and
8 10).
Jobe
ations offered
£
c
n..dt.
John
tme between
rimnce
in
at
be
•
v
R. 236aM
ebts
are
(11. 269—
;
tie
•
“that
0
14,
a
tyat
.
which
‘6
‘a
city of
ys
‘
rthan
3
sort
acidity,
pta,
and
not
flora
Ir. 13).
rthe
r
that
lluted.
urder
t
bould
eltare
1
a
presumed.
n
sice the
iftects
those
r
ionof
i.
economically
r
amounts
t.r fore,
i~c’radation.
c
groat.
On the
nay
well have
I
I
I
,
?~ions
The social and econorric ~a1u~
YE
the pollution
source is
unquestioned, as
is the suitability of the site to its
location.
The site and the surrounding area have been previously
mined,
there is no indication of downstream uses of the unnamed
tributary
rcnning
through
the bite, an~t’~owl~u1~
area typically
has acid
run—off
(3R.
286—288).
Further,
lobe ha~now ceased
his
~inirtg
operations
at the site
has re~1otnocthe area and seeded it,
substantially improvirg the pr
vrol’tely barren acreage
(3R.
259—262),
On tIre other h~id,
i~
i’
ilco uque~t~onodthat it was
technically
practicable and econoaically reasonable
for
Jobs to
eliminate
the dischd ‘gee,
~o’rc~
‘he abatement procedures wore
proposed by Jobe hirtecit ~n his 3econd permit application
which
showed no discharge.
Re ~~v~’rbui t t~eproposed ditches
and
allowed
the ponds to become filled with sediment,
thereby
reducing
their storage capa~ity (R,
70,
76,
196—197,
303,
3R.
184
and Comp.
Ex.
1D, Standard Condition
5,
and Compi.
Ex,
11),
Treatment
measures were also available
(3R 188),
Most
importantly, Jobe showed a blatant
disregard
for
the
necessity
of operating his site in accordance with
his
permit
requirements.
He admits having said ‘~youdo what you
have
to
do
to mine coal”
(H.
296,
3R.
240).
That statement
flies
in the face
of one of the mainstays of an effective environmental
control pro-
gram
in the State:
voluntary compliance.
All
Jobe
had
to
do
was
what
he
said
he would do.
1±that became overly burdensome,
he
could
have
attempted to nodify his permit.
However,
he
did
neither,
and that cannot be tolerated.
In terms
of
the
penalty
which
will
be asse~’sod, the possible harn~which can
flow from
a failure to abide ly the State
a permit’ing procedures
must be
added
to
the
direct ervircnrcrttal consequences of
Jobe’s
actions,
For
this
rea~onthe Boo d
~a1l o’s
•
a penalty of
$2,000.
This
Op~nionconstitute’
the Boa d’s findings of
fact
and
conclusions
of
law
ir
this
na tar.
1.
James Jobe
15
her by found to have violated
Sections
12(b) and 12(f) of the EnvIronmental Protection
Act,
Ruleo
206 and 606(a)
.f
(old) Chapter
4:
Mine
Wastes,
and Rule °01of Chapt~
3,
Water Pol1ution~
2.
Jobs shall cease ord d~sietall such vio1ations~
and
3,
Wittlu 45 day~of the date
of this Order,
Jobe
shall
pay,
by ce~til~d
cek or money order
payable
to the
State of Illinois
o penalty of $2,000 which
is
to
he
sent to:
Illiroic Environmental Protection
Agency,
Fiscal bervicc3 Div
eio’i
2200 Churchill
Road,
Springfield,
Illinois 42’06
IT
IS
SO ORDERED.
D,
Anderson
concurrec.
~ol
lution
or
C
ted Order
3Slbya
V
C
‘1
‘C 1
Board
