V

AMES

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SI

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OAL

COIIPANY

~L

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rr

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(I

13

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r

t

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n

a

case

invol’-

0

‘~perty

on a bluff

110

v~

IEPA,

),

f1i~1Tft3W~irried

~ras

of

plant

a

before

its

tiary~

The

able

to

the

ditch,

n

permit

require-

targa

was

to

an

fication

is

to

at.

ty

standards

i

hcundary~

he

effluent

I

ii

was

treated

a

ant

process

~ I

advantage

of

t

cater

quality

B

ii

p

x~:i

is

fal

it

cuixements

to

standards~

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a

defense

to

ILLIN

s

v

PROTE

I

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i

dc.

I

£

dl

i

violation

ue it

standards

old

.~hapterL

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4

~~licable

to this

I

..on~rr-

J’

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I

~

a

d

permit

reguir’ne

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industr3a..

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se,

ever

as

ar

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Lb

rc~

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us

v

nook

n,

I

~

73

3hi?

1

£

ly

th°

p

pert

I

flue

v

zd

held

I

a

I

I

---

these

vnolations

..

-

application

of

tin

wat

-

Jobe

is

otvi’u’l-

-~

•

yc

permit

in

nolatloL

Oi

tt~

ohii

argue’~ i-nat

tin..

s’n’~r

the

die

panic

p~

x

a

ur

DV?~

requiranent

and

e ~f hi

r

cc.

Tn

sacana

pa

a

ap~

Oi

ill

in

part

as

f~lJows

I

r

Chapter

4)

In

ary

case

ma

~uneT

a

to

detenmsia

C

II

snsl

hI

nLeRa

t

final

treatnart

pro-

witere,

uris

cc

ax

t

Agency

in

ax

.r

of

the

clenat

t

It

is

ot

n

~aft

‘hi

.

pont

of

drscharje

t

Rule 40l(aj

n~q~

is,

-

final

tneatrient pnoc’~s

s

r

cd

the state0

In tie more gene

ax. ca

between the final trea

~rt arhi

r

The effluent stand

B

nu

stretch, not

at

h

the state0

lxi

d

1

the effluent

3

a

arc

I

and the Ohio

Ri

r

The indus

~i

theAce

~

aj

ç

because they arc

of ultimata di~c

proved

that

catc

.‘

to

waters

wnich

an

ahi’

point

of

dir

~ii

-

effluent

stan Fr

-

of

the

industnia.

Br

Jobs

also

F-

to

which

t

..c.1

a

defen~e is

n

t

ditch”

aefense

i’

0

the

point

of

a

‘‘c,

4

e

point

without

a

c

a

~dandc

It

could

be

mt

be

used

to

move

n

~.

n.n

of

the

permit

i.

i

ilotalse,

Ciapter

3

reads

n

oar

xi

Fd

and

new

danF-

apply

at

the

it

us

is

not

what

I

a~

a

0chere

the

Jy

B

a

ent

to

waters

of

t

a~

is

some

distance

a4

iJ

other

waters.”

B

lrning

of

this

1

njc

an

waters

of

r hi

o

comply

with

I

i.e

final

treatment

a

i

~‘

to

contradict

t

Levels

r

B

be

the

point

I

,.

Ager cy

has

will

carry

it

at

It

the

itch

and

pond

c

s

This

c

a

the

“industrial

)

d

-r

r

r

an

centrations

a

~

~tandards

iJ

:‘llowing

the

txt

a

with

other

u

ed

BI

the

t

Co

sideration

‘tgr

rh0

1.

1

.1

4;

the

an

r

c

a

crtine

length

I

---

Industrial ditches

exist

only

between

the

point

of

final

treatment

and

waters

of

the

state.

Waters

before

the

point

of

final

treatment

fall

within

the

“treatment

works”

exception

to

the

definition

of

“waters”

in

Chapter

3

This

is

incorporated

into

old

and

new

Chapter

4

by

reference.

A

claim

that

some~

thing

is

an

“industrial

ditch~

contradicts

any

claim

that

it

might

be

a

“treatment

works”.

Under

new

Chapter

4

waters

from

coal

operations

must

pass

through

sedimentation

ponds

prior

to

discharge.

Under

certain

circumstances

free

flowing

st.reans

-may

he

utilized

as

sedimentation

ponds

(Amax

v.

IEPA,

PCB

80—633

64,

December

4

and

December

18,

1980).

However,

the

new

10

year,

24

hour

exception

for

applica-

tion

of

the

Chapter

4

effluent

standards

effectively

limits

this

practice.

it

is

not

cLear

from

the

facts

in

this

case

whether

the

ponds

in

this

case

would

be

peninittable

as

treatment

works

under

the

Amax

decIsion,

T.n

any

event.,

the

Agency

has

authority

to

impose

~effluent.

standards

prior

to

discharge

to the

sedimentation

pond

even

if

it

as

not

waters

of

the

state

~406.,i02(a)

Both

the

“treatment

works”

and

“industrial

ditch”

exceptions

are

intrinsically

tied

to

the

permit:

requirement:

anyone

operating

one

of

these

must

either

have

an

NPDES

permit

or

a

state

permit

under

Subpart.

:B

of

Part

IX

of Chapter

3

or

under

Chapter

4.

He

should

be

required

to

identify

these in

a permit

application.

The

Board

should

not

allow

these

to

become

defenses

to

enforcement

actions.

Anyone

claiming these as

a defense is

either

operating

a treatment

works

without

a

permit

or

is

relying

on

an

adjusted

discharge

point.

Rule

401(a)

allows adjusted

discharge points only by permit.

Jobe

has

acted

in

bad faith if

he did not raise these

c:Iaims

in

a

permit

application.

Jobe seems to be

taking

the

position

that

the

Agency

~S

case

has

failed because

the

Agency

has

failed

to demonstrate that the

discharge

is

not to an

industrial

ditch.

The

Board

should

clearly

hold that, to the extent in may

be.

a

defense,

the

industrial

ditch exception is

an

affirmative

defense

t.o

be

proved

by

the

Respondent.

The

Agencyt s

burden

is

only

to

show

discharge

to

waters

as

defined

in

the

Act

“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

thee

state”.

Once

this

has

been

shown,

the

burden shifts to the Respondent

to

show

that

some

exception

applies.

The

majority

has

in

fact

treated

this

as

an

affirmative

defense,

although

this

is

not

clearly

stated.

The

“industrial

ditch”

exception

has

always

45~25

---

—4.-.

been

claimed

in

the

past

in

the

context

of

a

permit

appeal

or

variance,

where

the

burden

of

proof

is

always

on

the

person

claiming

application

of

the

exception.

ThE

burden

of

proof

must be clarified if

the

exception

is

to

be

reäognized

in

an

enforcement action where the burden is on the Agency in general.

~

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

Control Board, do hereby certi~fythat the above Concurring

Opinion was filed on

the

/‘-f~

day of

“

Illinois Pollution

Board