ILLINOIS POLLUTION CONTROL BOARD
March 22, 1973
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v.
)
PCB 71—377
FREEMAN COAL MINING COMPANY,
Respondent.
Larry
R.
Eaton, Assistant Attorney General, on behalf of the
Environmen±alProtection Agency;
Reese Elledge, on behalf of Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr. Lawton):
I:
INTRODUCTION
The Environmental Protection Agency
(hereinafter “Agency”)
filed a complaint alleging various water pollution violations
against Freeman Coal Mining Company
(hereinafter “Freeman”)
on
December
3,
1971.
After protracted prehearing discussions,
a
hearing was held in Hilisboro,
Illinois on September 22,
1972;
a stipulation, from which the following summary of facts is
taken, was filed with the Board on January 13,
1973;
and a brief
was filed with the Board by the Agency on February
7,
1973 and
by Freeman on February 13,
1973.
The complaint alleged violations
of Sections 12(a),
12(b),
12(c)
and 12(d)
of the Environmental Protection Act (hereinafter
“Act”);
violations
of Rules 1.03,
1.05(b),
1.07 and l.08(10)(b)
(3),
10(c)
and 11(c)
of the Rules and Regulations of the Sanitary
Water Board, SWB-l4, remaining
in effect pursuant to Section 49
(c)
of the Act; and violations
of Permit #l969-MO-65 issued by
the Sanitary Water Board on February
3,
1969.
An amended complaint,
which omitted the Section 12(b), 12(c), and SWB permit violations,
was included as part of the Stipulation.
The amended complaint
charged violations
on eleven dates, from February 11,
1970
to
August 24,
1971.
The Freeman mine is located near Farmersville, Illinois.
Associated with this mine,
at which mining operations ceased in
September of 1971,
is a 70 acre acid-producing mine refuse pile.
The pile is composed of mine refuse generated by the operation
7
—
337
of a coal preparation plant Freeman formerly used to separate
the
coal
from
the
refuse.
Operation
of
the
coal
preparation
plant
ceased
at
the
same
time
as
did
the
mining.
The mine refuse pile is situated at the top of a small
watershed and receives no drainage from other areas.
The only
source of waters emanating
from the pile is precipitation.
The
acid water is treated before discharge to an unnamed branch of
Macoupin Creek.
It is the failure of Freeman’s treatment system
which allowed the discharge of inadequately treated or untreated
water which allegedly polluted the unnamed branch of Macoupin
Creek and Macoupin Creek itself.
Freeman’s treatment system was constructed in 1966.
The
system was designed to capture all the drainage from the mine
refuse pile,
then channel the drainage to a treatment pond, where
the drainage would be treated with hydrated lime and mechanical
aeration.
Thus treated, the drainage was then channeled to
a
settlement pond before final discharge to the unnamed branch of
Macoupin Creek.
The system was apparently the first of its type
in Illinois to be used by
a coal mine operator for the sole pur-
pose of capturing and treating mine refuse pile runoff before
discharge to Illinois waters.
Freeman concedes that the system did not always work.
In
late 1971 Freeman redesigned
and rebuilt the system to correct
the deficiencies
that Agency inspections had disclosed.
The re-
designed system incorporates a new holding pond upstream of the
former treatment and settlement ponds.
The acid discharge is
di~ectedto the new holding pond and is treated with a lime slurry
as it is pumped from the new pond to one of the old ponds, which
will be used solely as holding areas.
The redesigned system is
designed to direct any accidental overflows of untreated acid dis-
charges from the new pond to one of the old ponds,
thus insuring
that no totally untreated acid discharge will flow directly into
the waters of the State.
The redesigned system can accomodate approximately 90 acre
feet of water.
The new holding pond has a capacity of approximately
50 acre feet, which is equivalent
to a six inch rain on appi~oxi—
mately 100 acres of drainage
(70 acres for the mine refuse pile
and 30 acres for the holding area).
The new treatment facility
can withdraw and treat 1,000 gallons per minute of the acid water
from the new holding pond.
At that rate,
the volume of water
introduced to the 100 acre area by a one-half inch rainfall would
be treated in a
24 hour period, and the volume of water similarly
introduced by 15 inches of rain would be treated in a 30 day period.
No water, other than from precipitation, can be introduced into
the system.
As redesigned, the system is large enough to handle
all but unprecedented precipitation:
the maximum 24 hour precipi-
tation in the area,
based on United States Weather Service records
—2—
7
—
338
at Springfield,
Illinois, was 5.94 inches on June 14,
1917;
and
the same records indicate the maximum monthly precipitation was
13.39 inches in October, 1941.
The nature and costs associated with the new system illus-
trate the scope of the project.
Outfalls from the old ponds had
to be removed.
Dams were constructed.
Earthen banks were
repaired.
Silt was removed from drainage ditches surrounding
the refuse pile,
and the ditches were enlarged.
The new pond was
excavated.
The new lime slurry treatment facility was built.
Pumps, pipes, switches, bearings and wiring were purchased and
installed at a cost of nearly $20,000.
The equipment used in the
corrective work cost Freeman more than $17,000.
The labor costs
associated with the redesigned system exceeded $45,000.
The
maintenance and operation of the system, including the lime slurry,
is expected to cost more than $25,000 per year.
The only problem with the redesigned system is whether the
discharges therefrom will meet the requirements
of the Act and
Regulations.
The Agency and Freeman agree that the effluent
levels in Rule
606 of Chapter IV: Mine Related Pollution will be
met if the system is properly maintained and operated, and Freeman,
although asserting that the Rule is inapplicable to this site,
has promised to so operate and maintain the system.
Freeman has
also promised to operate and maintain the system so that Rule 203
of Part II: Water Quality Standards of Chapter III: Water Pollution
Regulations will be met.
However, the Rule will not be met in the
branch to which the discharge flows, but only in Macoupin Creek
after using all of the branch and some of Macoupin Creek as
a
mix-
ing zone,
a distance of roughly 2,500 feet.
The Agency asserts
that such a mixing zone is excessive.
It is the Board’s job to
determine,
in accordance with Rule 201, what size mixing zone is
reasonable.
That question will be addressed in the discussion of
the legal issues present in this complex case.
II:
THE ALLEGED VIOLATIONS
The amended complaint charged Freeman with violations
of
the
following provisions:
Sections 12(a)
and
(d)
of the Act:
No person shall:
(a)
Cause or threaten or allow the discharge of any
contaminants into the environment in any State so
to cause or tend to cause water pollution in Illinois,
either alone or in combination with matter from other
sources,
or so as
to violate regulations or standards
adopted by the Pollution Control Board under this Act;
—3—
7
—
339
(d)
Deposit any contaminants upon the land in such
place and manner
so as to create a water pollution
hazard;
Rule 1.03 of SWB-l4:
Rule 1.03
MINIMUM CONDITIONS
These Minimum Criteria shall apply to all waters
at all places and at all times in addition to specific
criteria applicable to specific sectors.
(a)
Free from substances attributable to
municipal,
industrial or other discharges that will
settle to form putrescent or otherwise objectionable
sludge deposits;
or which will form bottom deposits that
may be detrimental to bottom biota
(such as coal
fines,
limestone dust,
fly ash,
etc).
(b)
Free from floating debris, oil, scum and
other floating materials attributable
to municipal,
industrial or other discharges in amounts sufficient to
be unsightly or deleterious;
Oils, grease and floating solids shall be reduced to
a point such that they will not create fire hazards, coat
hulls of watercraft, injure fish or wildlife or their
habitat,
or will adversely affect public or private recrea-
tional development or other
ligitimate shoreline develop-
ments or uses.
(c)
Free from materials attributable
to municipal,
industrial or other discharges producing color, odor or
other conditions
in such degree as to create a nuisance;
(d)
Free from substances attributable
to muni-
cipal, industrial or other discharges in concentrations
or combinations which are toxic or harmful
to human,
animal, plant or aquatic
life.
Rule 1.05(b)
of SWB—l4:
Rule 1.05
FOR AQUATIC LIFE SECTORS
The following criteria are for evaluation of conditions
for the maintenance of a well—balanced, warm—water fish
population.
They are applicable at any point in the stream
except for areas immediately adjacent to outfalls.
In such
areas cognizance will be given to opportunities for the
admixture of waste effluents with river water.
The Sanitary
Water Board may declare specific streams or head water sections
of streams to be unsuitable for sustaining fish and aquatic
life.
—4—
7
—
340
(b)
pH:
No values below 6.0 nor above 9.0,
and daily average
(or median)
values preferable between
6.5 and 8.5.
Rule 1.07 of SWB-l4:
Rule
1.07
FOR AGRICULTURE OR STOCK WATERING
The
following
criterion
is
for
the
evaluation
of
stream quality at the point at which water is withdrawn
for use for agriculture or stock watering purposes:
1.
Free from substances attributable to
municipal,
industrial or other discharges that will settle
to form putrescent or otherwise objectionable sludge
deposits;
2.
Free from floating debris,
oil, scum and other
floating
materials attributable to municipal,
industrial
or other discharges in amounts sufficient to be unsightly
or deleterious;
3.
Free from materials attributable
to municipal,
industrial or other discharges producing color, odor or
other conditions
in such degree as to create a nuisance;
4.
Free from substances attributable
to municipal,
industrial or other discharges
in concentrations or
combinations which are toxic or harmful to human, animal,
plant or aquatic life.
Rule 1.08(10) (b)(3),
10(c), and
(11) Cc)
of SWB—l4:
Rule 1.08
IMPLEMENTATION AND ENFORCEMENT PLAN
10.
Treatment Requirements and Effluent Criteria
In order to establish
a basis for treatment works
design, municipal and industry representatives and consult-
ants frequently inquire regarding the limits or effluent
standards that must be met.
The adoption of stream water
quality criteria as required by the Federal Water Quality
Act of 1965
(PL 89—234 amendments to PL 84—660;
33 U.S.C.
446)
emphasizes the need to relate stream quality
to effluent
quality and treatment requirements.
The expressed goals
established by this Act are to protect and upgrade water
quality; any wastes amenable to treatment or control must
receive the best practicable treatment or control prior to
discharge into any interstate water.
The same goals have
been,
and continue to be, basic under the Sanitary Water
Board Act for all waters of Illinois.
Both the Federal Law
and the Illinois Act prohibit the use of any stream or
—5-.
7
—
34~
portion thereof for the sole or principal purpose of
transporting wastes.
b)
All facilities for the treatment of sewage,
industrial
wastes,
or
other
wastes shall provide for the
following:
(3)
Removal of color,
odor,
or turbidity to
below obvious
levels.
c)
Storage facilities for materials which are
hazardous to health and welfare, and for oils,
gases,
fuels or other materials capable of causing water pollu-
tion if accidentally discharged,
shall be located so as
to minimize or prevent any spillage
or
leakage
that might
result in water pollution.
Structures and devices to
contain
spillage,
such
as
catchment
areas,
relief
vessels,
or entrapment dikes, should be installed at existing
facilities, shall be installed at all new facilities,
and
shall be required following any discharge resulting in
pollution.
11.
Guidelines Regarding Range of Treatment
c)
Within design limitations, operation shall be
of such quality to obtain the best possible degree of
treatment works.
Every effort must be made to eliminate
all system bypasses and overflows, otherwise measures must
be taken to provide treatment units
such as lagoons,
detention or holding basins, and chlorination.
Installa-
tion of new combined sewers are prohibited.
Existing
combined sewer systems should be patrolled;
overflow regu-
lation devices shall be adjusted to convey the maximum
practicable amount of combined flow to treatment facilities.
Excess infiltration into the sewer system should be
eliminated
to keep dry weather flow within design limits
of conduits and treatment works.
Freeman
asserts
that
there
can
be no finding of
a violation
of Sections 12(a) and 12(d)
against it because most of the mine
refuse pile was placed there by Freeman prior to the passage of
the Environmental Protection Act.
Freeman further asserts that
finding
a violation under such conditions would be a retrospective
application of the law in violationof Freeman’s rights under the
Illinois Constitution
(Article
I,
Section
2)
and the United States
Constitution
(Fourteenth Amendment)
We disagree with Freeman’s assertions.
We have consistently
held that ownership of land places upon the owner a responsibility
for conforming to the requirements of
the Act.
In EPA v.
Kienstra
Concrete,
Inc.,
PCB72-72,
the Respondent had purchased land on
—6—
7
—
342
which mining activities had ceased more than 25 years ago.
Furthermore,
the Respondent had never conducted or participated
in any mining activities.
The Respondent was found to have vio-
lated the Act.
In the Freeman case,
the Respondent not only owns
the land, but admittedly performed the activities which admittedly
degraded waters of the State.
We therefore hold that Sections
12(a)
and 12(d)
are applicable in this case.
Whether or not
such violations actually occurred will be considered
in our
discussion of the individual dates for which such violations
are
alleged.
III:
THE INSPECTIONS
The allegations regarding February 11,
1970, April
1,
1970,
September 15,
1970,
October 21,
1970, February 24, 1971 and April
29,
1971 are easily resolved.
Inspection reports
for these dates,
introduced
as Exhibit
H, describe water samples taken somewhere
on or around the Freeman site.
However, the reports are silent
as to where the samples were taken, and no amplification or
explanation of these reports is found in the record.
Without
knowing what the samples purport to describe, we cannot find any
violations for those six dates.
We therefore find no violations
of any of various SWB-l4 charges for all six dates, dismiss the
Section 12(a)
charges for the two dates charged which were prior
to July
1,
1970,
the effective date of the Act, and find no
violation of Section 12(a)
for the remaining four dates.
The allegations concerning a continuing violation of Section
12(d)
of the Act are also easily resolved.
There
is no doubt
that the refuse pile constituted a water pollution hazard
(see
discussions of Exhibits C,
D,
E,
F and G,
supra).
The placement
of acres of
toxic materials in close proximity to waters of the
State without providing for adequate protection of
those waters
is clearly
a situation Section 12(d) was intended to cover.
See
EPA v. Ayreshire Coal Co., PCB 71—323
(April 25,
1972); EPA v.
James McHugh Construction Co., PCB 71-291
(May 17, 1972).
However,
no refuse was added to the pile after September 31,
1971,
the date on which active mining ceased on the Freeman property.
Accordingly, we find that Freeman did deposit contaminants upon
the land in such place and manner so as
to create a water pollu-
tion hazard from July
1,
1970 to September
31,
1971.
We find violations of Section 12(a)
of
the Act for May 20,
1971,
July 8,
1971, July 23,
1971,
and July 29,
1971.
That
Freeman caused water pollution on those dates is admitted in
the
Stipulation;
there is
no reason to reject the admission.
May 20, 1971
(Exhibit C):
Freeman admits that its facility
caused water pollution on this date.
An Agency inspector was
surveying Macoupin Creek regarding another matter when he dis-
covered drainage from the mine refuse area turning Macoupin Creek
orange and turbid.
He entered the site and discussed the problem
—7—
7
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343
with Freeman’s treatment system operator.
A blockage in the old
lime mixing tank which caused partially untreated drainage to over-
flow was diagnosed as the cause and was corrected.
The inspector
took water samples
in Macoupin Creek upstream of where the over-
flowing drainage entered the Creek and 100 feet downstream of the
point of entry.
The upstream samples disclosed a
pH
of 7.3, an
iron content of 1.2 mg/l,
and brown but fairly clear water.
The
downstream samples disclosed a
pH
of 3.1,
an iron content of 115 mg/l,
and orange and turbid water.
The inspector returned on June
7,
1971,
and noted that the treatment system was working and discharging clear
water, but took no samples.
We find no violation of Rule 1.03.
Although Macoupin Creek was
rendered orange and turbid,
there is no evidence that this discharge
had the detrimental effects required by Rule 1.03 to find such a
violation.
It could be argued that the mere existence of an orange
color in a stream expected to be green or brown is nuisance enough.
The existence of the color itself might be
a nuisance
in causing an
aesthetic clash to the senses.
But the record should show such clash
through the inspector’s testimony or report and does not in this case.
We find no violation of Rule 1.07 for the same reason we found
no violation of Rule 1.03.
We find a violation of Rule 1.05(b).
The
pH of Macoupin Creek had been lowered from a very satisfactory 7.3
to
a very unsatisfactory 3.1.
The conditions described in Rule 1.05(b)
are clearly applicable
to this situation.
We
find
a
violation
of
Rule 1.08(b) (3).
Freeman asserts that its system did “provide for...
(3) removal of color, odor or turbidity to below obvious levels,” and
that accordingly,
it has not violated the rule.
We disagree.
“Provide”
implies that the system will work.
Here,
the system clearly did not.
We find a violation of Rule l.08(lO)(c).
Freeman asserts that
because its storage facilities were located
“so as to minimize or
prevent any spillage or leakage that might result in water pollution,”
it has not violated that rule.
We disagree.
“Minimize or prevent”
again implies success.
The obvious degradation of Macoupin Creek on
May 20,
1971, caused by Freeman clearly shows
that Freeman did not
“prevent” and was unsuccessful
in its attempts
to
“minimize”.
We find no violation of Rule l.08(ll)(c).
Freeman asserts that
the rule
is inapplicable
to the type of treatment system used by Free-
man.
Prior Board decisions are silent on this point: however,
a close
reading of the Rule indicates that Freeman’s assertion
is meritorious.
The Rule discusses
such things as chlorination and combined sewers, which
are irrelevant
to Freeman’s acid water treatment system.
July
8,
1971
(Exhibit D):
An inspection of the site area made on
this date disclosed continued environmental degradation.
A
sample of the treated acid water, which was clear and colorless,
disclosed
a pH of 3.8, an iron content of 11 mg/i,
and a sulfate
content of
2,330 mg/l.
A sample from a ditch carrying untreated
bypassed water, which was also clear,
to the unnamed branch, dis—
—8—
7
—
344
closed
a
pH
of
3.3,
an iron content
of
95
mg/i and
a sulfate
content
of
2,270
mg/i.
A
sample
from
the
unnamed
branch
was
taken downstream of
the discharge,
and disclosed clear
water
with orange
bottom
deposits,
a
ph
of
3
.
2,
an
iron
content
of
32 mu/I,
and
a sulfate
content
of 1,809 ma/l,
A sample was
taken
to
Maccucin
Creek
upstream
ci
the confluence with
the
unnamed branch
and
disclosed
a
pH
of
8
.
5,
an iron
content
of
05
mci/I,
a sulfate content
of
32
mg/i,
and
brown
water
with
a
trown
eeL:
stream
cottom.
A sampLe was taken
oc
Hacoupin
Lreei~
downstream of
its
confluence
wtth
the
unnamed
branch
and
dis-
closed
a
oh of
6.6,
an iron content
ci
~63
eq/I,
a
sulfate
content
of
116
mg/1,
and
brown
water
with
some orange deposits.
t
was
also
noted
that
the
unnamed
branch~
which
according
to
United
States
Geological
Survey
maps
is
classified
as
inter-
mittent,
consisted
almost
entirely
of
seepage
from
the
Freeman
holding
pcnd
until
it
was
-~oined by
tne
treated
discharge
from
the
Freeman
facility.
The
Branch,
downstream
from
the
discharge
point, was
surrounded
by
dead
trees
and
silt
flats,
which
the
Lnspector
concluded
were
caused
by
layers
of
the
mine
refuse
wastes flooding
the
area.
We
find
no
violations
of Rules
1.03,
1.07 and 1,08(11)
Cc)
for
the
same
reasons
we
found no such violations on May
20,
1971.
Aitnough
there
was
evidence
of
harm
to
life,
there
Is
no
showing
that the discharges
on
July
8,
1971 caused
the harm.
There
is
no allegation that
the damage resulted
from
a con-
tinuing violation,
so we are precluded from finding a violation
on that basis.
We find no violation of Rule 1.05.
The pH of
the
unnamed
branch downstream of the discharge was a very low 3.2, but with
no upstream reading, we cannot find that Freeman~sdischarge
caused the
low
pH.
The pH of Macoupin Creek had decreased after
it
was joined by the unnamed branch, but was still
a satisfactory
6.6.
We find violations
of Rules 1.08 (10) (b) (3)
and l.08(l0)(c)
for
the
same reasons we found such violation for May 20,
1971.
Treatment facilities
such as Freeman’s must provide for raising
the
pH of acid waste to something more than 3.8, especially as
the untreated acid waste on that day had a pH 3.3.
Furthermore,
facilities
to minimize or prevent spillage or leakage must be
better than those described here:
the leakage was so great it
provided almost all of
the flow of
the unnamed branch upstream
of the treatment system’s discharge point.
As
we
noted in Environmental Protection Agency v.
Ayreshire
Coal Company, PCB 71—323,
acid discharges
to low flow streams
have very significant effects on the recycling stream because
the possibility for dilution is minimal and the assimilative
capacity of the receiving stream is
small.
As
long as acid waters
—9—
7
—
345
are entering the receiving stream, ~thepollutional impact will
be lessened only if rainfall significant to provide substan-
tial dilution occurs.
The margin for environmental error is
reduced as the size of the stream decreases;
in this case the
margin for error
is very small.
July
23, 1971
(Exhibit B):
The Agency inspector returned
to the Freeman site and found that the treatment system was
working very poorly with resulting pollution of both the unnamed
branch and Macoupin Creek.
The extensive water samples taken
by the inspector dramatically portray the results Freeman’s
ill-functioning system had on the waters of the State.
Upstream of the mine property, the unnamed branch, although
having a rather low flow, exhibited the characteristics of an
environmentally balanced stream.
There were frogs and turtles,
a normal river bottom of fine brown mud,
a pH
of
6.7,
an iron
content of
.8 mg/l,
and a sulfate content of
280 mg/l.
Once
inside the mine boundary, seepage or overflow from untreated
acid water flowed into it, turning the branch a deep rust color
while increasing its volume.
A sample of the branch adjacent
to the retention pond disclosed
a pH of 3.1,
an iron content of
115 mg/l,
a sulfate content of 1,550 mg/l,
and a turbid, brilliant
yellow—orange condition.
The treated effluent was even worse, disclosing
a pH of 2.7,
an iron content of 250 mg/l and a sulfate content of
3,800 mg/l.
Water being bypassed through
a bypass channel disclosed
a
pH
of
3.2,
an iron content of 40 mg/l,
and a sulfate content of 2,200
mg/l.
The samples described above indicate a poorly operated and
maintained treatment system.
Serious seepage and bypassing were
evident, although because the lime treatment system was working
so miserably,
the untreated water was no worse than the treated
water.
The effect, the malfunctioning system
on
the
unnamed
branch
is evident from a sample taken from it one hundred yards
downstream of the discharge point.
The pH,
formerly 6.7 up-
stream of the mine property, was
2.9.
Iron content had increased
from
.8 mg/l to 150 mg/l, and sulfate content had increased from
280 mg/l to 2,900 mg/i.
The water was a deep red color.
Freeman also caused pollution of Macoupin Creek.
Upstream
of its confluence with the unnamed branch, the Creek was fairly
clear, brown in color, with a bottom of fine brown silt,
a pH
of
6.9,
an iron content
of
1.2
mg/I,
and
a
sulfate
content of
55 mg/l.
Downstream of the confluence, Macoupin Creek was orange
and turbid, with a pH of
5,
an iron content of
26.3 mg/l and a
sulfate of 440 mg/i.
We
find
violations
of
Rules 1.05,
1.08(10) (b) (3) and 1.08
(10)
(c)
for
the
same
reasons
as
we
found such violations on May
20, 1971
on
July
8,
1971.
Although the July 23 samples
were
taken after a rainy period which might have increased the dilution
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7
—
346
of the offensive acid water, no such dilution was apparent.
The degradation continued unabated.
We find no violations
of Rules
1.03,
1.07 and 1.08 (11) (c)
for the same reasons as discussed above.
July 29, 1971
(Exhibit E):
The inspector summarized the
situation of July 29:
“precisely the same conditions of gross
and mine waste water pollution existed on that date as were
observed on July 23”.
Samples taken by the inspector confirm his conclusion.
The
unnamed branch upstream of the discharge point was clear and
colorless
with
a
brown mud bottom,
a pH of 6.5,
an iron content
of
.6 mg/l,
and a sulfates content of 400 mg/i.
The treated
mine waste waters were red—orange, with a pH of
2.9, an iron
content of
135, and a sulfates content of 4,000 mg/i.
The
unnamed branch 100 yards downstream of the mine had deteriorated
in quality to an orange color,
a pH of 3.1, an iron content of
45 mg/i and a sulfates content of 1,800 mg/i.
Macoupin Creek
upstream of its confluence with the unnamed branch was clear with
a brown tint,
a pH of 7.1, an iron content of
.5 mg/i,
and a
sulfates content of 65 mg/i.
150 feet downstream of the con-
fluence, the water was a turbid yellow, with yellow fioc and
scum,
a pH of
5.9, an iron content of
10 and a sulfates content
of 380.
A further one and one—half miles downstrea, Macoupin
Creek
still
had
a
low
pH
(5.4)
but
was
clear
and
colorless
and
had otherwise recovered from the Freeman discharges.
We find
the same violations occurred on July 29, 1971 as
occurred on July 23,
1971.
We find no violations of the same
provisions for which no violations were found to have occurred
on July 23,
1971.
August 24, 1971
(Exhibit G):
An Agency biologist collected
biological
samples
from
Macoupin
Creek
and
the
unnamed
branch.
The unnamed branch downstream of the mine site had a pH of less
than 4, and the only form of life he found were larvae from the
midge fly.
His samples from Macoupin Creek upstream of its
confluence with the unnamed branch showed a pH of 7.6, midge fly
larvae, worms, algae, and minnows and small fish.
A few miles
downstream, the results were similar, except no fish life was
observed, and approximately
5 miles downstream,
an even more
diversified aquatic population was found.
From this data,
it is clear that Freemants activities
caused water pollution of the unnamed branch in violation of
Section 12(a)
.
The poor quality of life found in the unnamed
branch is attributable to only one source of contamination
—
the
discharges into it from the Freeman facility.
We also find violations of Rule 1.03(d), Rule 1.05(b), and
Rule 1.07(4).
The pH of the branch was lower than
6, and the
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347
acid discharges
had rendered
the branch unfit for all
but
the
midge
fly
larvae.
We
are
unable
to
find violations
of
the other
SWB—l4
charges
because Exhibit F does not contain information as
to the efficiency of
the Freeman treatment system on
August
24,
1971.
IV:
FREEMAN’S FUTURE
PROGRAM
With
slight modification,
the
abatement program proposed
by
Freeman in the Stipulation
is
acceptable.
The
abatement
program
consists of Freeman’s redesigned water treatment system, des-
cribed at pp.
2-3 of this Opinion.
The modification
to
the
program is as follows:
the
mixing zone for Freeman’s discharges
shall not exceed
the
distance from
the
point of discharge into
the
unnamed branch to the confluence
of the unnamed branch and Macoupln
Creek.
We are not permitting Freeman to use any of Macoupin Creek
as a mixing zone because Macoupin Creek is apparently
a relatively
healthy body of water, although not as healty downstream
of the
confluence as upstream.
There is no reason to take
any
chance
of
compromising the quality of Macoupin Creek.
We are allowing the use of the unnamed branch as
a mixing
zone.
If Freeman’s discharges
are able
to meet the effluent
criteria set forth in Rule
606 of Pollution Control Board Regula-
tions:
Chapter
4:
Mine Related Pollution, as Freeman assures
us they will,
there should be no further deterioration of the
unnamed branch,
and in fact,
there may be improvement.
Underlying all of the above discussion is
the
premise that
the consistent malfunctions
so manifest in Freeman’s old water
treatment system will not occur in the future.
The
maintenance
and operation must be significantly better under
the
new system
than it was under the old, otherwise Freeman’s system will con-
tinue to degrade the waters of the State,
thereby causing further
violations of the Environmental Protection Act and Pollution
Control Board Regulations.
The
Agency has contended that Freeman is subject to Chapter
4: Mine
Related Pollution.
We agree
in part and disagree in part.
The lime sludge constantly being created by Freeman’s water
treatment system is clearly mine refuse as defined in Chapter
4:
Mine Related Pollution.
Freeman will be ordered to apply to the
Agency for a permit to operate its water treatment system pursuant
to the Mine Related Pollution Regulations on a basis consistent
with our Opinion and Order.
The
70 acre mine refuse pile was created in its entirety
before the effective date of the Mine Related Pollution Regula-
tions, and therefore
is not covered by those regulations.
This
does not mean that Freeman may not in the future be required to
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further
pollution
abatement action.
Such further action
may
or may
not
include covering the mine refuse pile, which
according to affidavits
filed with the Agency’s brief,
is
feasible
and
effective,
albeit quite costly.
However,
at this
time,
we
are satisfied that
if Freeman’s system works as well as
Freeman
has claimed, there will not be continued water pollution.
Because of
the
uncertainties involved in Freeman’s control
program,
we are requiring Freeman
to post
a performance bond or
other security in the amount of $25,000.
This security shall be
released by the Agency when and if the Agency certifies that
Freeman’s discharges are meeting the effluent criteria in Rule
606 of the Mine Related Pollution Regulations,
and the Water
Quality Standards in Chapter
3:
Water Pollution Regulations.
Accordingly, Freeman will be required to submit monthly reports
to the Agency,
regarding the Rule
606 effluent criteria and the
Chapter
3: Water Quality Standards.
For the repeated and consistent slipshod method in which
Freeman operated and maintained its water treatment system through-
out the summer of
1971, which resulted in marked degradation in
the
quality of the waters of
the State, we are imposing a penalty
oI
$5,000.
The amount of the fine would be greater were it not for
Freeman’s rapid attempts to correct the problems after being
notified of them by the Agency.
This opinion constitutes the findings of fact and conclusions
of law of the Board.
ORDER
1.
Freeman shall cease and desist from violations of
SWB—l4,
Rules 1.03,
1.05(b), 1.07,
l.08(lO)(b) (3)
and
l.08(lO)(c)
;
and
from violations
of Sections
12(a)
and
(d)
of the Act.
2.
Freeman shall pay a penalty of $5,000 for violations
of
Sections 12(a)
and
(d)
of the Act and Rules 1.03,
1.05(b), 1.07,
1.08(10) (b)
(3)
and l.08(10)(c)
of SWB—14.
Payment,
to be made
within
35 days from the date of this Order, shall be made by
check or money order
to:
Fiscal Services Division, Environmental
Protection Agency,
2200 Churchill
Road, Springfield,
Illinoi 62706.
3.
Freeman shall apply to the Agency for a permit pursuant
to Part II:
Permits of Chapter
IV:
Mine Related Pollution,
to
operate its water treatment system, the requirements of
said permit
to be consistent with the Opinion.
4.
Freeman shall operate and maintain its water treatment
system
as
described in the Stipulation so as to meet the effluent
criteriaof Rule 606 of Chapter
IV:
Mine Related Pollution,
and
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7
—
343
the
Water Quality Standards of Chapter III:
Water Pollution,
the
Water
Quality Standards to be met after
use
of a mixing zone as
described in the Opinion.
5.
Freeman shall
file monthly reports with the Agency describing
its discharges in relation to Rule 606 of Chapter IV:
Mine Related
Pollution,
and in relation to the Water Quality Standards of
Chapter III:
Water Pollution.
6.
Freeman shall post with the Agency
a performance bond or
other security in the amount of $25,000
in a form acceptable to the
Agency.
This bond shall be posted within
35 days from the date of
this Order, and shall be mailed to:
Fiscal Services Division,
Environmental Protection Agency,
2200 Churchill Road,
Springfield,
Illinois 62706.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control Board,
certify that the above Opinion and Order was adopted by the Board on
the
~
day of
________________,
1973,
by a vote of
____—
to
_____
—
l~
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