RECEIVED

CLERK'S OPF!CE

MAY 2 5 2001

vii

Gpvl

ae

STATE OF

ILLINOIS

Vermilon Coal Company

Pollution Control Board

Public Comments &Exhibits

Before the Illinois Pollution Control Board,

Case PCBO 1-112; Prairie Rivers Network v

IEPA and Black Beauty Coal Company

"2

~01,

May 14, 2001

(Amended May 24, 2001)

.

F= A A.._ + :F p

OCT 1 5 2001

CLERK OF THE

APPELLATE COURT, 4m DISt

---

Vermilion Coal Company

1979 Johns Drive

Glenview IL 60025

Tel: 847.832.9007

Fax: 847.832.9010

May 14, 2001

Amended May 24, 2001

Illinois Pollution Control Board

c/o Dorothy Gunn, Clerk

100 W. Randolph St .

Street Suite 11-500

Chicago IL 60601

Re: PCB 01-112; Prairie Rivers Network v

IEPA and Black Beauty Coal Company

Public Comments by Vermilion Coal Company

Ladies and Gentlemen

:

Vermilion Coal Company makes these comments pursuant to the rules regarding

public comment following the hearing on appeal in this matter

.

Prairie Rivers Network ("Appellant") has appealed as a third-party the issuance of

an NPDES ("Permit") to Black Beauty Coal Company ("Permittee") for the occasional

discharge of treated storm water into an unnamed tributary of the Little Vermilion River

("River") from the surface area of Permittee's new Vermilion Grove Mine (`Mine") an

underground coal mine, by the Illinois EPA

(`IEPA") . Frederick Keady, President of

Vermilion Coal Company (`Vermilion") provided public and written comments at one or

more of the public hearings during the processing of Permittee's application. Vermilion

sought standing as a party in this matter, which was denied. Vermilion was given the

opportunity to submit this public comment and intends to file an amicus curiae brief in

accordance with the briefing schedule in this matter

.

The Permit Has Significant Environmental Benefits :

The

Mine

will

have

significant environmental benefits. Production and use of more than 40 million tons of coal

from the proposed mine will avoid the emission of an estimated 1,600,000 tons of sulfur

dioxide, relative to typical 3 .5% sulfur Illinois coal

.

The proposed coal mining and processing complex is a paragon of enlightened

environmental engineering . Underground mining operations and coal preparation, storage

and shipping will be conducted in accordance with the strictest environmental standards

.

Treated storm water would be infrequently discharged pursuant to the Permit (and only

due to heavy storms, when large quantities of storm water from other sources ensures

substantial dilution)

.

Petitioner has contended that storm water discharged pursuant to the Permit would

degrade the quality of the River . Petitioner is urging standards based on NO degradation

of any kind. Such a position is not the rule applicable to this Permit . The River is known

to suffer from high nitrates and sediments as a result of sustained uncontrolled agricultural

Printed on Recycled Paper

1

---

u

runoff, and questions have been raised about phosphates and pesticide residues . The

relatively small and intermittent discharges authorized pursuant to the Permit will not

contain any of these substances, and are certain to be cleaner in certain respects and

smaller in quantity than the runoff from the previous land use or the surrounding lands

.

The Permit Has Significant Energy Benefits :

The coal to be produced by Permittee

will be used to produce more than 100 billion kilowatt-hours of electric energy, at less

than one-fifth the fuel cost of natural gas. The unprecedented uptake of natural gas for

electric power generation has crowded out consumers and resulted in a serious natural gas

price shock. Natural gas is primarily a space-heating fuel for homes and commercial

buildings, and supplies are inadequate to service a major part of the electric utility

industry's fuels requirement. Recent uptake of natural gas by electric utilities has crowded

out city-gate uses of natural gas and resulted in prices exceeding $10.00/mcf. Electric

energy shortages here during the past few summers are ample evidence that Illinois is

precariously close to an electric energy crisis like California is now suffering

.

Vermilion's Property Rights Would be Adversely Affected : Vermilion is the owner of

the coal and mineral to be mined under lease by Permittee . Vermilion also owns 32 acres

of fee land whose surface comprises most of the north bank of Lake Georgetown, and

whose coal is included in Permittee's lease. Virtually all of the coal leased by Permittee

from Vermilion is within the watershed of the Little Vermilion River . Production of

Vermilion's coal will require one or more NPDES permits to be issued to Permittee for

storm water discharge into the River or its tributaries, regardless of where Permittee's

surface facilities are sited. Accordingly, denial or significant impairment of Permittee's

permit is constitutes a taking of Vermilion's property

.

Vermilion's Property Is Very Valuable: The coal to be mined at the Mine includes at

least 40 million saleable tons of Vermilion's coal. Vermilion has a contractual and business

expectation of receiving an estimated $1 .00 per ton in earned royalties in regard of this

coal, in addition to additional revenues as minimum royalties and wheelage fees. This

income is expected to accrue at the rate of $250,000 per month from the time the Mine

reaches its capacity until the coal is exhausted

.

The coal lands to be mined by Permittee are part of one of the largest low-sulfur

coal reserves in the State of Illinois. Vermilion and its predecessors have owned these

lands since 1920. More than 80 million tons of low-sulfur coal was produced between

1920 and 1972, and a similar quantity remains to be produced

.

Vermilion and its

predecessors have paid millions of dollars in property taxes to the Vermilion County, the

State of Illinois, and various other taxing bodies. Proceeds arising from the lease between

it and Permittee are Vermilion's principal source of revenue

.

Vermilion HasMade Substantial

Financial

Commitments :

Vermilion has an

investment of $20 million in its property. The property is secured by a $4,425,000 deed of

trust mortgage from a local bank. The balance of the investment was provided by

predecessor companies and by borrowings and equity investments of shareholders of Iron

Printed on Recycled Paper

2

---

Carbide Technologies Inc ., Vermilion's parent corporation. These corporations are not

publicly traded and constitute a substantial part of the assets of their investors

.

In addition to investment, these coal interests are assessed as real estate and pay

substantial real estate taxes to the taxing bodies of Vermilion County, Illinois, including

schools, aid to the poor, roads, bridges, fire protection and general local government

.

Denial of the permit will not only substantially injure the owners, but it will have a material

adverse impact on the value of the coal and the real estate tax due from it .

Vermilion Has Relied On Existing Regulations

:

Vermilion made its financial

commitments in express reliance upon the established permitting rules and regulations of

the IEPA, USEPA, IL PCB, Illinois Department of Natural Resources (`9DNR"), and US

Office of Surface Mining; and for the express purpose of making available substantial

quantities of coal that would permit electric utilities to comply with the acid rain

provisions of the Clean Air Act Amendments of 1991 . The Permit should not be judged be

standards not yet adopted or effective

.

Vermilion May Have Been Denied Its Right to Due Process

:

The facts set forth in

this letter are well documented and would have been placed into evidence if Vermilion had

been granted status as a party in the above captioned case. Vermilion made all reasonable

efforts to obtain party status in the case and to participate pursuant to applicable rules

.

The only way in which Vermilion can express its interests and concerns is through the

public comment process . Vermilion remains ready, able and willing to prove these facts

.

IEPA Acted Properly : It is Vermilion's position that the IEPA lawfully and properly

issued the Permit; and that IEPA relied on the rules and regulations of the State of Illinois

and the United States Government, its own experience and a vast body of scientific and

engineering know-how. IEPA acted within its reasonable discretion. The USEPA

expressly consented to issuance of the Permit. From a practical standpoint, the issuance of

the Permit will have a beneficial effect on the Little Vermilion River and the public in

general by monitoring presently unmonitored runoff, generating needed electricity with

lower sulfur emissions, creating jobs, contributing to the coal industry in Illinois, and

contributing to the financial health of the State of Illinois, Vermilion County, and local

political subdivisions .

Any Errors Or Omissions By IEPA Were Immaterial And The Permit Should

Remain in Force : Appellant alleged procedural errors by IEPA, and insists that it be

given a greater role in the permitting process for NPDES and similar permits . Appellant

claims it was disadvantaged by IEPA's reliance on its substantial expertise in water quality

matters because that expertise is not documented in the record . If every thought process

and knowledge were strictly documented, the record would be unreadable . Prior

discussions in adopted rules and the professional judgment and background of the Agency

employees should be given credence in the absence of proof to the contrary . Excerpts of

prior IL PCB Rulemaking Proceedings are attached as Tabs I and 2 as documentation of

the expertise and intelligence incorporated in the determination of protective rules

Printed on Recycled Paper

3

---

consistent with property rights and human needs for goods services and the amenities of

our life style under the existing rules

.

Permit Denial May BeAGovernmental Taking of Vermilion's Property

: Denial or

impairment of the Permit will certainly result in a drastic loss of value of Vermilion's coal

property. Vermilion conducted extensive due diligence on Illinois and United States

environmental regulations, and relied upon those laws and regulations in undertaking to

commit its investment in its Vermilion County coal rights . Acceding to the demands of

Appellant would require arbitrary changes in the letter or the spirit of these laws and

regulations subsequent to the time of Permittee application

.

Permit Denial Would Be Bad Public Policy : Ironically, Vermilion's investment in these

coal lands was for the express purpose of increasing production of Illinois low-sulfur coal

in order to facilitate the efforts by Midwestern electric utilities to comply with the acid rain

provisions of the Clean Air Act Amendments of 1991 . If such supply-side investments are

perceived at risk of being nullified by arbitrary and unpredictable changes in regulatory

policy, producers of all forms of energy and environmental goods will invest elsewhere, or

will require higher returns to compensate for higher regulatory risks .

The Governor and the legislature officially encourage coal mining in Illinois

.

The pending Mine is a source of employment, tax revenue, and fuel to generate electricity

for homes, schools, government entities and business

.

Mining History Along The River :

The River has maintained its qualities despite

continuous contact with the coal and mined lands. It flows naturally, as it always has,

through the coal seams that subcrop in Eastern Vermilion County . The area along the

River has been extensively mined over the last century, with little regulation or

reclamation, by slope, shaft and strip methods

.

The Flierman nature preserve is within one-quarter mile of the former Sharon Coal

Brick and Tile Mine. The Babe Woodyard nature area was a former strip mine donated by

the Peabody Coal Company. The former Cherokee Hills Boy Scout Camp, now owned by

the Department of Natural Resources was owned and mined by the Cherokee Mining

Company. Kickapoo State Park includes parts of the Middlefork River which has been

designated a National Wild and Scenic River and is a highly rated river .

That park is

reclaimed coal strip mine property.

The map attached as Tab 3 prepared from public mining records in Vermilion

County and the State of Illinois shows numerous old mines in the River's watershed

.

These former mine sites show that regulated storm water runoff pursuant to this Permit

should be more than adequate to protect the environment

.

Zoning History :

Elwood Township, in which the facility is located, overwhelmingly

defeated a motion for Township Zoning in August 2000 . A copy of the newspaper article

Printed on Recycled Paper

4

---

reporting that vote is attached as Tab 4 . Prairie Rivers represents only a small portion of

the affected residents

.

Vermilion Coal Company respectfully requests that the appeal be denied

.

Vermilion Coal Compan

Frederick D. Keady, President

Printed

on

Recycled Paper

5

---

Before the Illinois Pollution Control Board, Case PCBOI-112

Prairie Rivers Network v IEPA and Black Beauty Coal Company

Exhibit List to Public Comments of Vermilion Coal Company

Tab 1

:

IL PCB Rulemaking Proceedings (1981)

Tab 2

:

IL PCB Rulemaking Proceedings (1983)

Tab 3

:

Little Vermilion Riverbed Map (dated 4-23-2001) prepared by Black

Beauty Coal Company Showing the Drainage Area of the Little Vermilion

River and Identifying the Location of Mining Activity in the Vicinity of that

River .

Tab 4 :

News item describing defeat of zoning measure in Elwood Township

This document is printed on recycled paper .

Printed on Recycled Paper

6

---

Exhibit 1

---

RPR.19.2001

12:47PM

I

LEXSEE 1980 111, ENV LEXIS 379

IN THE MATTER OF, PROPOSED AMENDMENTS TO CHAPTER 4 OF THE

REGULATIONS OF THE

ILLINOIS POLLUTION CONTROL BOARD

Nos . R76-20; 77-10

Illinois Pollution Control Board

1980 111. ENV LSXTS 379

January 24, 1980

OPINIONPY :

[*1)

SATCHELL

OPINION, PROPOSED OPINION OF THE BOARD (by Dr. Satchell),

This' matter comes before the Board upon two proposals for regulatory change

.

On September 21, 1976 Ohio Power Company filed a petition for a change in the

definition of mine storage facility, docketed R76-20 . On April 20, 1977 the

Environmental Protection Agency (Agency) filed a petition proposing to repeal

Chapter 4; Mine Related Pollution and substitute a new version, docketed R77-10

.

OpkAugu$t 18, 1977 the proceedings were consolidated on motion of Ohio Power

Company, The proposal in R76-20 was published in Environmental Register Number

135 on August 15, 1976, R77--10 was published in Environmental Register Number

146 on May 2, 1977. Public hearings on the proposal were held in Springfield on

October 31, 1977 and in Carbondale on November 2 and 3, 1977. During the course

of these hearings, two amended proposals were presented by the Agency

.

On November 21, 1978 the institute of Natural Resources (Institute), pursuant

to suggestion made by the Illinois Coal Association at the merit hearings, filed

with the Board a proposal for interim regulations (R . 141) . On December 14,

1978 the Board ordered the record in this

(*21

proceeding held open to take

evidence on the proposal for an interim regulation concerning total dissolved

solids in mine discharge (Rule 605 ; 32 PCB 321)

.

An Economic Impact Study (ECIS) was prepared by the institute. Public

hearings on the EcIS were held

in Springfield on July 31 and in Carbondale on

August 2, 1979 . At these hearings evidence was also taken on the merits of the

Institute's interim proposal . On September 5, 1979 the Agency filed a third

amended proposal . on October 2, 1979 the Illinois Coal Association filed a set

of comments. On October 4, 1979 Monterey Coal Company filed its comments . On

that same date the Illinois Mine Related Pollution Task Force filed a position

paper. On October 11, 1979 the Board received the comment of Directors Michael

Mauzy of the Agency and Brad Evilsizer of the Illinois Department of Mines and

Minerals .

The hearings were attended

by members

of the public and representatives of

-various coal companies and the Illinois Coal Association (Coal Association)

.

Some of the latter were also members of the Task Force, The Industry

representatives presented testimony and cross-examined witnesses .

,4UMMAfy OF PROPOSED CHANGES

The Cjiapter (*31 4 revisions, drafted on the Order dated December 13,, 1979,

are largely to accommodate the NPDES permit requirement . Currently mines

require two environmental permits in Illinois: they must have a Chapter 4 state

NO . 683

P.2/34

---

RPR.19.2001 12:47PM

NO.683

P.3/34

permit, and, in most cases, an NPDES permit under Chapter 3, The new Chapter 4

provides Specifically for Chapter 4 NPDES permits . The Agency regards this

permit requirement as essentially duplicative., The new Chapter 4 will exempt

from the state permit requirement those mines hich hold an NPDES permit (Rule

402)

The Proposal also contains a significant expansion of the scope of Chapter 4

to include coal transfer stations. This was the proposal of Ohio Power company

which was denominated R76-20 and consolidated with the Agency's proposal, This

will allow coal transfer and similar facilities to take advantage of the more

lenient effluent standards contained in Part VI of Chapter 4 (Rule 2011 "Mining

Activities") . Since the inclusion of coal transfer facilities under Chapter 4

would represent a significant expansion of the permit requirement, there are

also provided exemptions from the permit requirement for smaller facilities

(Rule 493)

.

,

The Affluent limitations contained [*4] in Chapter 4 have been revised to

more closely follow the federal guidelines. The averaging rule has also been

changed to be similar to that found

in

federal guidelines and in the proposal in

R76-21 (Rules 601, 606) .

The present Chapter 4 requires an abandonment permit before a mine is

abandoned. The Agency has found these provisions to be unworkable. The new

Chapter 4 will provide for an abandonment plan which is filed with the permit

application and incorporated into the permit as a condition (Rule 509)

.

Most of the technical rules governing coal mining have been removed from

Chapter 4 . The remaining document is largely procedural . There is, however,

provisign for publication of an Agency guidance document which would contain

design criteria for coal mines and treatment works (Rule 501) . There is a

similar provision in the water rules (Water Pollution Rule 967)

.

Most of the controversy has controversy has centered around Rule 605 which is

unchanged from the old Chapter 4. This rule requires that coal mine effluents

not cause violation of the water quality standards contained in Chapter 3

.

Apparently most of the coal mines in the state cause such water quality

violations [*5] with respect to total dissolved solids (TDS), chloride and

sulfate. late in the proceeding the Institute of Natural Resources and the

Agency proposed a temporary rule to exempt coal mines from Rule 605 into the

year 1981, at which time the institute intends to propose an alternative to Rule

605 (32 PCB 321)

.

In the interim, compliance will be required with good

housekeeping practices contained in a code of good mining practices promulgated

The following outline determines into which permit category a facility will

fall

;

,

by a joint government-industry task force,

STATE OR NPDES PERMIT

Although elimination of duplicate permits and provision 'for exemption from

the state permit requirements will result in dollar savings to the Agency and to

the industry, it adds considerable complexity to Chapter 4 . A facility carrying

out mining activities may fall into one of the following categories

;

1 .

Combined chapter 3 and Chapter 4 NPDES permit

;

2 .

chapter 4 NPDES permit ;

v

3

.

State permit; or

I

4

.

Exempt from state permit (and not required to have an NPDES permit)

.

---

I.

u

N

APR.19.2001

12:47PM

NO-683

P.4/34

1

.

Does the applicant already possess a Chapter 4 state or NPDES permit for the

facility?

-- If so, is [*6] permit modification required under Rules 304(b) or 407?

2 . If not, does the applicant propose to carry out "mining activities" within

the meaning of Rule 201?

-- If the applicant does not propose to carry out mining activities a Chapter 4

permit is not required under Rule 401

.

3 . If the application proposes mining activities, then does the applicant

already possess a Chapter 3 NPDES permit for the facility [Rule 402(a)]?

-- if so, then the chapter 4 requirements will be written into the Chapter 3

NPDES permit (Rule 302)

.

4. If the applicant has no NPDES permit, then does the application propose a

discharge from a point source into navigable waters within the meaning of the

FWPCA (Rule 402)?

-- If so, then under Rules 300(a) and 302 the requirements of Chapter 3 and

Chapter 4 will be written into one NPDES permit fox the facility subject to the

standard for permit issuance contained in Rule 502

.

5. If an NPDES permit

is

neither held nor required, then does the facility

qualify for an exemption from the state permit requirement under Rule 403?

-- If not, a state permit is required under Rule 401

.

6. If go, has the Agency notified the facility that a state (*7] permit is

nevertheless required udder Rule 403(c)?

-- If sq, a state permit will be written pursuant to Rule 401, subject to the

general standard for permit issuance contained in Rule 502 ; otherwise, a Chapter

4 permit is not required, provided the operator notifies the Agency of the

location of the facility and claims exemption prior to the filing of an

enforcement

action [Rule 403(b)] .

There are also construction permits (Rule 401) and construction

authorizations (Rule 304) . These Are special, limited state and

NPDES

permits,

respectively. In the case of a facility which already has a chapter 4 permit,

their issuance will amount to a permit modification in the above outline .

TA

the case of a new Chapter 4 facility, the state or NPDES permit first issued

will ordinarily be a

construction

permit or authorization, although there is

flexibility on this point .

ACONQMIC IMPACT STUDY

The Economic Impact Study was prepared for the Institute by Dr . William. C .

Hood and

Dr .

Donald W. Lybecker, The study found few identifiable costs and

benefits and concluded that the economic impact of proposed changes would be

minimal . The specific

findings

will be discussed with the individual [*8]

sections which were found to have an economic impact

.

The transcripts of the two sets of hearings are not numbered sequentially

.

It is therefore necessary to distinguish page numbers, "A" refers to a page

---

APR.19.2001

12:48PM

NO.sea

p

. 5i34

number in the economic impact hearings, while "R" refers to a page number in the

merit hearings

.

AGE1 CY PROPOSAL

At the hearings it was suggested that the Agency's proposal needed to be more

carefully drawn (R . 119) . It was further suggested that for clarity it was

desirable to separate the provisions applicable to : (1) NPDES permits, (2) state

permits and (3) both (R . 100) . The Agency's response to these criticisms was

three amended proposals which adjusted specific rules to meet specific

objections . The Agency suggested that the editorial changes were up to the

Board (R. 120) . Accordingly, the Board has regrouped the provisions from the

arrangement in the Agency proposal. After the proposal had been rearranged it

became apparent that its lack of structure had hidden a number of circular

definitions and conflicting provisions . An effort has been made to eliminate

these difficulties. Specific alterations in the Agency's proposal will be

discussed with each section. [*9]

To

aid in cross referencing the proposed

Opinion and Order to the proposal and the old Chapter 4, the comparable section

numbers have been listed in parentheses after the heading of each rule in this

Opinion, For example, "p-305" refers to Rule 305 in the Agency proposal and "0-

605" is Rule 605 in the old Chapter 4

.

PART I : GENERAL, PROVISIONS

101 Authority (F-101 ; 0-101)

Rule 101 sets forth the Board's authority to regulate mine related pollution

under 3 .0 12 and 13 of the Act which concern water pollution. The old Chapter

4 also listed 3 f3 9, 21, and 22 of the Act

which

related to air pollution and

land pollution and refuse disposal: These have been omitted from the revision

.

Mining activities are subject to these provisions of the Act and to the Board

regulations adopted under them -- Chapter 2: Air Pollution Control Regulations

and Chapter 7

: Solid Waste Rules and Regulations, as well as other Board

regulations (R . 43)

.

Mine refuse disposal is regulated by Chapter 4 pursuant to A 12(d) of the

Act which concerns depositing contaminants upon the land so as to cause a water

pollution hazard, It is arguable that mine refuse is also "refuse"

within

the

meaning of 5 13 21 and [*10] 22 . However, it is not the Board's intention that

disposal of mine refuse on a permitted Chapter 4 facility be subject to Chapter

7 as well as Chapter 4 .

Since Chapter 3 and Chapter 4 both govern water pollution there must be

special rules establishing the respective jurisdictions . Chapter 4 governs

mining activities which include mine related facilities as defined by Rule 201

.

Part VI establishes effluent limits for mine discharges (Rule 600), Other

discharges and facilities are regulated under Chapter 3

.

102 Policy (P-102 ; 0-102)

This is largely unchanged from the Agency proposal and the old Chapter 4 .

The wording has been changed to include the defined terms "mining activities"

and "mine related facility" (R . 201)

.

103 Purpose (P-103) 0-102)

This has been taken largely unchanged from the second paragraph of old Rule

102

.

---

I

RPR.19.2001 12:48PM

NO.683

P.6/34

104 Compliance with other Laws Required (P-105 ; 0-701)

This has been changed to indicate required compliance with "The Surface Coal

Mining Land Conservation and Reclamation Act ." The title of the law passed in

1979 differs slightly from the old title (R . 43, 58, 67) .

105 Validity Not Affected (P-106 ; 0-702)

This is unchanged .

106 Repealer [*11]

This has been added to the Agency proposal. There is a proviso that if the

entire Chapter 4 is found invalid or

if

its

enforcement is stayed, then the old

Chapter 4 will again come into effect . There is also a provision in Rule 704

which continues the abandonment permit requirements of old Rule 502 until

permits containing abandonment plans are issued .

PART II; DEFINXTIONS

200 Terjs Defined Elsewhere

This contains a listing of terms used

in chapter 4 which are defined in the

Act, chapter 3 or the FWPCA .

201 Definitions

Abanc)on: The definition of abandon has been enlarged to include "transfer of

ownershilp ." An operator who sells a mine may be obliged to execute an

abandonment plan under Rule 509 . Under the old Chapter 4 persons attempted to

evade their responsibilities for properly closing a site by transfer to a party

with insufficient resources to close the site. This change seeks to remedy this

(R .

9, ; R. 41) .

The Agency proposal included "fail to open" under the definition Of

abandonment. This has been deleted on the Agency's motion, Failure to open

will not therefore require execution of the abandonment plan . However, any

construction activity related to [*12] preparation for mining amounts to

opening a mine. Therefore, execution of the abandonment plan will be required

unless the operator takes no action whatsoever preparatory to mining .

Acid-producing Material ; The definition has been changed slightly to clarity

the relationship between pyrite, iron and sulfur. Pyritic compounds include

pyrite, marcasite and other compounds of iron and sulfur . These are acid-

producing. Other compounds of sulfur include sulfates and organic sulfur .

Sulfates are totally oxidized and hence do not, as such, produce acid. Organic

and elemental sulfur do not occur in large amounts in Illinois coal, but are

acid-producing. The definition has also been changed slightly to specify

consideration of the "quality of drainage produced by mining on sites with

similar soils.I' This is in recognition of the fact that little mining actually

.occur$ in the soil itself (R. 84)

.

Affected Land: The definition has been expanded to include all land owned,

controlled or used by the operator in connection with mining activities with the

exception

of

the surface area above underground mines, The old definition

included only the actual mined area, refuse area, etc, [*13] The definition

has also been altered to exclude land once it has been reclaimed and abandoned

to the satisfaction of the-Agency (R. 10) . Under Role 513 the affected land

cannot be outside the permit area during the permit term .

---

U

RPR.19.2001

12 :48PM

NO-6e3

P.7/34

Coal Transfer Facilities or Coal Storage Yard : This is a new definition .

Transfer and storage facilities have been included in the definitions of mining

activities and mine related facilities and have thus been brought under chapter

4 regulation. These facilities have much in common with coal mines and often

Are larger than small mines and pose a similar pollution threat . Effluents from

these facilities will now be regulated under Part

VI

rather than under Chapter

3, Facilities which have NUNS permits will now fall under Part III rather than

the permitting provisions of Chapter 3. Facilities which are not required to

have NPDES permits may be required to obtain a state permit under Part IV (R .

10, 19, 60; E. 41, 45, 49, 61 (

101)

.

This modification potentially represents a large expansion of the permit

requireptent. However, Rule 403 provides exemptions from the state permit

requirements for domestic retail sales yards and consumer stockpiles . [*141

Larger facilities are probably already required to have an NPDES permit, in

which event Chapter 4 provisions will be written into the Chapter 3 permit

.

The Agency proposal specified that coal transfer facilities and coal storage

yards were included not only in the definition of "mining activity," but also in

"mining" and "mine area." This usage was in conflict with the general

definitions of these terms in the proposal and it is not clear what its purpose

was . These have therefore been deleted . However, the definition has been

expanded to specify that transfer faoilities and coal storage yards are "mine

related facilities ."

The Economic Impact study concluded that inclusion of coal transfer

facilities and storage yards under Chapter 4 would result both in costs and

benefits to the industry. They would have to prepare an abandonment plan at a

cost of a few hundred to a few thousand dollars . On the other hand, they will

not have to invest as much to construct larger treatment facilities to meet the

more stringent effluent standards of Chapter 3 (ECIS 35 ; E . 41, 45, 61) . The

looser effluent standards would have some negative effect on the environment

.

However, most of these facilities [*15J are located near major rivers where

ample dilution

is

available (EelS 17; E . 49, 101)

.

Construction

Authorization: Authorization under Rule 304 to prepare land for

mining activities or to construct mine related facilities . construction

authorization is issued to a person who holds or is required to have an NPDES

permit (R. 11)

.

Construction Permit; A permit under Rule 401 allowing the operator to prepare to

carry out mining activities or to construct mine related facilities

(R.11) . A

construction permit is a state permit issued to an operator who does not hold an

NPDES permit. Under Rule 304 it is possible to issue a construction permit to a

person

who

may be required to apply for an NPDES permit . This will not affect

the requirement to obtain an NPDES permit for operation, but

may

simplify

administration in case there is doubt as to which type of permit is required

.

construction of mine related facilities is a mining adtivity . construction

may therefore be permitted by an operating permit as well as a construction

permit. The question is not what the title of the permit is but what the

.language of the permit allows. The construction permit is a special type of

(*16J operating permit which

will

usually be issued for a short period of time

to allow the operator to undertake something out of the ordinary routine of

mining. The construction permit contemplates eventual application for an

operating permit before daily operation is begun

.

It would be better to exclude from the definition of mining activities the

construc ion of mine related facilities . Mining could be separated neatly into

two worlds of construction and operation, each with its own permit . However,

---

APR.19.2001

12:49PM

such definition would be difficult because mining is essentially an ongoing

construction process. It is not the Board's intent to require operators to make

continuous application for construction permits or authorizations as mining

proceeds

(Comments of Coal Association)

.

Domestic Retail Sales Yardt A coal stockpile which supplies only homeowners,

businesses or small industries or other institutions for individual consumption

.

This does not include a sales yard located at a mine or mine related facility .

On the Agency's motion, a specific exclusion for sales yards Which supply large

industrial operations has been excluded from the proposal . The word "small" has

been inserted (*17] in front of industries in the first half of the definition

.

This does not change the meaning (R . 11, 28) N. 43) .

Domestic retail sales yards are excluded from the state permit requirement by

Rule 403 . This does not, however, exempt such a facility from the requirement

of obtaining an NPDES permit it the facility is otherwise required to obtain

such a permit, in which case the coal pile will be permitted under Part III of

Chapter IV (2 . 84)

.

Drainage Course: Definition unchanged .

yacility: This definition has been added to the Agency proposal

. . The term

was used in that proposal, although undefined, along with "mine," "mining

facility," and "operation." A facility is a contiguous area of land, including,_

all strpctures above or below ground, which

is

owned or controlled by one

person. Two permits are required if there are either two isolated pieces of

land with one operator or adjacent tracts with two operators

.

The definition of mining activity in the proposal specified "activities on

land owned or controlled by the operator .

" This has been changed to

'%

"activities on a facility ." The implication that a permit is limited to one

operator on one site is now contained (*18) in the definition of facility

.

The

one-site/one-operator

limitation, although self-evident, is of central

importance deserving clarification in a separate definition. Furthermore, it is

logically remote from the definition of mining activity, except to the extent

that offsite activities are not mining activities within the meaning of Chapter

4

The Aacility may be larger than the affected land. It may include

undisturbed land and contain within it facilities which are regulated under

Chapter 3 as well as mine related facilities. The permit area must be contained

within gne facility, but the permit area may be less than the entire facility,

It

is

the Board's intention that a site under control of one operator but

bisected by a roadway or other easement should be one facility . In the event

~,

there axe two closely related, but noncontiguous facilities under the control of

one operator, the Agency may allow a combined permit application and issue

combined permits, if it is convenient to do so . In the

event

there are separate

surface installations serving a single mine, there will be one facility .

The phrase "owned or controlled" does not require permits of both the owner

of record (*191 title and, for instance, a lessee. However, in the event

control of mining activities is in dispute, the owner may be required to obtain

a permit also. Otherwise the permit will be required of the person in control

of the mining activities. The fact that two or more persons may be in control

of part of the facility is irrelevant so long as only one controls mining

activities ;

e.g., utility easements or farm operations have no effect on

"control" for the purpose of determining the extent of the facility,

During the hearings the Agency sought to amend the proposed definition of

"operator" to specifically include co-op preparation plants (R . 12, 29 ; Agency

NO.683

P.8/34

---

RPR.19.2001

12:49PM

Amendment)

.

The argument had been made that, since there was no one operator,

Chapter 4 was not applicable to the co-op . However, "operator" has been

redefined to include any person who carries out mining activities . The question

centers not on the legal character at the person, but on whether he carries cut

mining activities. Even if a co-op falls under no other characterization in the

definition of "person" in the Act, then it will probably be a partnership within

the meaning of Chapter 106 1/2, b 6, Illinois Revised Statutes

.

('"20]

if the

facility if physically separated, then multiple permits may be required .

However, if one site is operated by several persons, the Agency may require them

to enter into a formal agreement fixing control prior to permit issuance

.

Mine Area or Mined Area : Although the definition is largely unchanged, it has

been altered to exclude the unmined surface land directly above underground mine

workings that is not otherwise disturbed by mining activities . The changes in

wording more clearly state the definition (R . 91)

.

Mine Discharge: Part VT regulates mine discharges . The production of a mine

discharge is a mining activity. The AGency proposal did not include a

definition of mine discharge . This definition has been taken from Rule 600 (P-

301) . Since the definition is fairly long it was thought better to set it forth

in definitions and then simply use the term "mine discharge" in Part VI

.

The proposal brings preparation and milling plant effluents into chapter 4

for the first time (R. 15) . The definition has also been expanded somewhat to

include discharge from affected land and runoff from land . The Agency

definition was somewhat more limited in scope . This [*21] may have been

inadvertently omitted from the Agency proposal since it is contained in the old

version of Chapter 4 [0-601(a), P-301(x)]

(R .

51)

.

Coal mining is closely connected with activities affecting the land . The

exclusion of runoff from part of the affected land from Chapter 4 regulation

could have unintended results. it could be argued under the Agency proposal

that runoff from the affected land other than from the mining area or the mine

refuse area or processing plant, eta., would be regulated by Chapter 3 . This

could be used to justify required segregation of waste streams where there was

no sound environmental reason for doing so . This is not intended, however, to

limit the Agency's power under Rule 604 to require segregation of waste streams

.

A definition of other discharges is also included . These include sanitary

sewers and discharges-from facilities and activities which are not directly

related to mining activities .. other discharges are regulated under Chapter 3

.

If a facility with an NPDES permit has both mine discharges and other

discharges, they will be regulated by Chapter 4 or Chapter 3 respectively,

although there will be one permit only (Rule 302) . [*22]

Mine Refuse; Definition unchanged (R . 48) .

Mine Refuse Area : Definition unchanged .

Mine Refuse Pile ; Definition unchanged .

Mine pelated Facility :

A

portion of a facility which is related to mining

activities, This is a new definition taken from the Agency's amended proposal,

the rule

on

construction authorization (Rule 304 ; P-204) . That amendment

required a construction permit for "any facilities related to mining

activities ." This has been shortened to "mine related facility" and used

throughout. There may be several mine related facilities within a facility

.

There may also be other facilities, including facilities regulated under Chapter

3 .

Mining: The Agency proposal contained an exception from the definition of

mining far "dredging operations contained solely in natural

bodies

of water." In

No.6ea

r

. 7~w

---

I

RPR.19.2021

12:50PM

N0 .SS3

P.10i34

a letter to the Board dated September 26,

1917 the Illinoip Department of

Conservation objected to this exemption . At the hearings the Agency was unable

to explain why this was excluded from the definition of mining (R . 97), This

exception has therefore been deleted from the proposal. These operations may,

however, be exempt from the state permit requirement under [*23) Rule 403, An

example of a regulated dredging operation is found

in Votava v. Material Service

Corp., 2<d> District, 078-489 (July 19, 1979)

.

The wording of the definition has bean somewhat changed to include the

surface and underground extraction or processing of natural deposits of coal,

clay, fluorspar, gravel, lead bearing ores, sand, stone, peat, zinc bearing ores

or other minerals, It was pointed out at the hearing that lead and zinc do not

occur in their native state in Illinois and that peat is mined in Illinois (R .

93)

,

Mining Activitiest All activities on a facility which are directly in

furtherance of mining . This definition, together with the permit requirement of

Rule 401, defines the scope of chapter 4 (R. 11, 70) . The Agency's definition

has been essentially adopted . However, a listing of specific mining activities

mentioned in the proposal have been listed with the definition

.

The Agency proposal contained many permit requirements (P-200, 201, 204, 251,

256, 257, 259, 260, 261, 262, 263 and Z65) . All of these wars in conflict with

the requirement of an operating permit to carry out mining activities . Many

also conflicted with other permit requirements [*24) through the use of

different

language

to cover similar activities . These have been brought

together under the

definition

of mining activities . There is now only one

permit requirement, the state permits of Rule 401 . NPDnS permits have been made

an exception to Rule 401. This has eliminated conflicting language and provides

a simple statement of the scope of Chapter 4

.

The Agency's proposal contained several rules stating generally that a permit

was required to carry out mining activities or to carry out a special type of

mining activity, The proposed chapter 4 contains several rules of the forms "Do

not do 4 or

a."

where B 'is a subset of A. These have been retained for clarity

even thqugh they are redundant (Rules 304, 400, 401, 501, 502, 505) . it is

possiblq to interpret this

as

excluding the special type from the definition of

mining activity. Therefore the definition of mining activities has been altered

to make it clear that the special type is still a mining activity

.

Opening a Mines Any construction activity related to the preparation for

mining on a facility . This is a new definition. Once a mine has been opened,

it cannot be abandoned without execution of the (*25) abandonment plan as

provided by Rule 510 (R. 11) . Outstanding permits fox mines which have never

been opened expire on the effective date of this Chapter as provided by Rule

703 . Permits issued in the future will include a definite expiration date as

provided by

Rules

301 and 409 .

The Agency proposal specified

preparation

for mining on "the affected land ."

This has been changed to "facility" to avoid logical problems since the land

cannot bs affected prior to opening a mine .

opening a mine is a mining activity and hence a state permit, construction or

operating, is required under Rule 401, A construction permit is required by

that section to "Prepare to carry out mining activities or construct a mine

related facility which could generate refuse, result in a discharge or have the

potential to cause water pollution - , ," ordinarily a permit will be obtained

before the mine is

opened .

Whether a permit is required for construction

activity preliminary to that specified in Rule 401 depends on

..intent. Turning a

spadeful of earth or driving a nail with the intent of ultimately mining is

opening a

mine, which is a mining activity requiring

a

state permit. However,

---

RPR.19.2001

12:50PM

the question of (*26) intent vani§hes once

;t can be said that a mine related

facility has been constructed which could generate refuse, etc . In this case a

construction permit is required even if the operator has no intention of mining

.

Operating Permit: A state permit required of a person carrying out mining

activities as required

. by Rule 401 . An operating permit is not required for a

person holding an NPDES permit as provided by Rule 402 . Other exemptions from

state permit requirements are provided by Rule 403

.

Construction permits and operating permits are referred to jointly and

severally as state permits. Since mining activities include construction, an

operating permit may authorize construction . There is no legal significance to

the designation "operating permit" or "construction permit ." The language of the

permit controls what is permitted

.

Operator: A person who carries out mining activities, An operator must have

a state, permit under Rule 401 unless one of the exemptions of Rules 402 and 403

applies

.

The definition has been considerably shortened from the Agency proposal which

listed various sorts of persons . This list is quite similar to that found in

the definition of "person" (*27) found in the Act . This term has been

substituted for the list for clarity. It is doubtful the Board has the power to

regulate any person who falls outside the scope of the Act (R . 12)

.

The proposal specified "engages in mining or the generation or disposal of

mine refuse or the operation of any coal storage yard or stockpile area." This

has been expanded to include all mining activities, The listed practices have

been moved to the definition of mining activities

.

Under

the

Agency proposal state permits were required of operators who

carried out mining activities (P-251, 256, 257) . Apparently there were two

tests; Was the person an operator; and,

(or?) was he carrying out mining

activities? This confusion has been eliminated by making the permit requirement

depend on the definition of mining activity only

.

Permittee: A person who holds a state or NPDES permit . This is a new term

taken from the new Reclamation Law .

.The Agency proposal spoke of "persons" and

"operators." Where from the context a rule seems to apply only to permit holders

the term "permittee" has been substituted. A person who holds a combined

chapter 3 and Chapter 4 NPDES permit will be a "permittee" since (*28) he will

hold an NPDES permit issued under Chapter 4

.

slurry: This definition has

been

somewhat changed and expanded to include

mill tailings

.

Spoil; This definition is unchanged, but has been clarified to include

"mineral seams or other deposits ." This is in recognition of the fact that some

minerals do not occur in seams, but occur

in

lenses or other formations

(R .

99)

.

State Permit; A construction permit or operating permit .

Surface Drainage controls This definition has been added to the original

proposal. An Agency

amendment

expanded the scope of Rule 505 beyond diversion

of surface water around the active mining area to include diversion around mine

refuse areas and diversion, redirection or impoundment of streams, At this

point it became simpler to define a term for use in the operative rule .

Surface drainage control also includes flow augmentation and controlled

release cf effluents. These are suggested methods of avoiding violation of the

DOS

water quality standards which involve stream diversion and/or impoundment,

They will require a permit under Rule .401

.

NO.683

P .11/34

---

1

•

PPR.19.2001

12:SSPM

Surface Mining; Definition unchanged .

Congideration has been given to bringing this definition (*29) into line

with the similar definition in the Reclamation Act . However, that act refers

only tq coal mining, while Chapter 4 covers mining activities in

general. it is

the Board's intention to include "surface mining operations" as defined by 5

1.03(24) of the Reclamation Act within the definition of "surface mining" used

in Chapter 4

.

Underground Mining: The definition has been changed slightly for

clarification

(R.

12)

.

Underground Water Resources : Definition unchanged .

Use of Acid-producing Mine Refuse : This definition is derived from the

Agency's proposal (Rule 500 ; P-259) . Use of acid-producing mine refuse has been

included in the definition of "mining activity" and the permit requirement, by

implication, moved to Rule 401: State permits . . Under the

old

Chapter 4, use of

acid-producing mine refuse was illegal (0-404) . Under the proposal, the Agency

may

issue

permits (R. 112)

.

PART III: NPDES PFRMIT$

300 Preamble (P-.200)

The wording of the original proposal has been changed to clarify the

NPnUS/state permit relationship . Part

III

applies to mining activities carried

out by any person who holds an NPDES permit, regardless of whether he is

required to have [*30) an NPDES permit because of his mining activities. This

part dogs not seek to alter the law of who must obtain an NPDES permit

.

However, if a person must obtain an NPDES permit, the Chapter 4 requirements

will be

•written into that permit (R. 12, 19

(

69, 100, 103, 167 ; B. 43, 82, 84)

.

Take, for example, a large mining operation which would not be subject to the

NPDE$ permit requirements'except for a small sanitary waste facility . If the

sanitary waste facility must have an NPDES permit, then the entire facility is

governed by Part III and any Chapter 4 requirements will be written into the

NPDES permit, The facility will be exempt from the requirement of obtaining a

state permit under Rule 402,

Part III also applies to mining activities carried' out by persons required to

obtain ap NPDES

permit. it will be a violation of Part

III

to carry out mining

activities without an NPDES permit if those activities are required to have such

a permit . In this case there will also be a violation of Part IV since the

exemption from obtaining a state permit

will

not be applicable if there is no

NPDES pa}1ait .

301 Incorporation of NPDES Water Rules (P-202)

Except to the extent contradicted [*$1] in Chapter 4, the rules contained in

subpart A of Part tX of Chapter 3 apply to Chapter 4 NPDES permits . This

incorporates Rules 901-956 of Chapter 3 into Chapter 4, The permit requirement

of Rule 901 is identical to the permit requirement of Rule 302 . The application

requirement of Rule 902 has been supplanted by the requirements of Rule 504

.

Rule 903tis incorporated. Rules 904 through 909 set forth the permit

application procedure before the Agency, These are generally incorporated

except tq the extent they may be contradicted

.

Rule 910(a) on general conditions is included in Chapter 4 subject to the

special conditions and Agency guidance document provided by Rule 501, Rules

910(b), (a) and (d) concerning water quality standards, wasteload allocation,

NO.683

P.12/34

---

RPR.19.2001

12.51PM

11

NO-683

P.13/34

effluent limitations and new source standards of performance are included

.

Rules 910(e),

(f),

(g) and (h) concerning duration of permits, reporting and

monitoring, entry and inspection, schedules of inspection and compliance are

included. Rules 910(i) and (j) are generally incorporated . Rule 910 (k) on

maintenance and equipment

is

incorporated subject to the Agency guidance

document of Rule 501 . Rules 910(1) and (m) an (*321 toxic pollutants and deep

well disposal are incorporated. Rule 910(x) on authorization to construct is

supplanted by Rule 304 .

Rules 911 through 915 are generally included . These are appeal, authority to

suspend,

modify or revoke, revision of scheduled compliance, variance and public

access to information. Rule 916, effective date, is not applicable

.

Rule 301 generally incorporates procedural rules applicable to NPDES permit

applications except to the extent that these are contradicted by the more

particular provisions applicable to mines. This is to be contrasted to Rule 600

which concerns the applicability of the effluent and water quality standards of

Parts 12, 111 and IV of Chapter 3 . The standards contained in chapter 3 are

generally inapplicable to mine discharges unless otherwise provided

.

302 NPDNS Permit Required of Certain Discharges (P-201)

Rule 302 establishes the requirement of an NPDES permit for a Chapter 4

discharger, This merely repeats Rule 901 of Chapter 3 and the requirements of

section 301(a) of the FWPCA as applicable to

mining

activities .

The Agency proposal also specified that an NPDFJS permit was required of all

discharges of pollutants or combination (*331 of pollutants from

all point

sources as defined in the FWPCA into navigable waters . The Board does not

disagree with this statement of the NPDES permit requirement . However, this

language has been omitted out of concern that it might be construed not as a

guideline to aid persons unfamiliar with the permit requirement but as a new

standard for the permit requirement. It

is

not the Board's intention to change

the NPDES requirements In this Chapter 4 . Whether the permit is required will

be judged solely by Chapter 3 and the FWPCA

.

303 App!3,cation ('-203)

Rule 303 requires a person to apply for an NPDES permit if he is to engage in

a mining' activity requiring such a permit. This rule contradicts the present

Rule 902(c) of chapter 3 .

303(b) makes it clear that a person who has applied for an NPDES permit need

not apply for a state permit . If a person is in doubt as to whether an NPDES or

state permit is required, he should first apply for an NPDES permit . if the

Agency determines that a state permit

is

required, it will notify the person and

request ,him to apply for a state permit . There will be no penalty for

application for the wrong permit .

303(b) will also be applicable (*341 in the event the Agency loses NPDNS

authority and notifies the permit holders that state permits are required as

provided by

, Rule 402 .

304 Construction Authorization (P-204)

Rule $04(b) provides for modification of a mining activity or mine related

facility for which the operator already holds an NPDEIS permit. Modification can

be undertaken only pursuant to a construction authorization which will take the

form of a condition of a new or supplemental NPDAS permit (R . 13, 68)

.

i

---

.A

RPR.19.2301

12:51PM

Rule 304(a) covers the more complicated case in which a persons

1. Seeks to open a mine for which an NPDES permit will or may be required; or

2 . Seeks to modify a' facility in such a manner that an {NPDES permit will be

required after the modification but was not before, either because it operated

under a state permit or was exempt ; or

3

.

Seeks to modify a facility in such a manner as to bring part of it under

Chapter

4

where the facility prior to modification held an NPDES permit but was

regulated under Chapter 3

.

Rule 304(b) covers the usual situation in which a person,operating under an

NPDES permit seeks to modify. This will be handled exclusively with a

construction authorization. However,

[*35]

flexibility is allowed in the less

common situation involving new construction which will bring a facility under

Chapter 4 for the first time. These situations . could result in confusion. They

may be handled either by construction authorization or state construction permit

as provided by Rule 401. Rule

304(o)

provides that application must be made at

least 180 days in advance. Rule 304(d) provides that a person seeking

construction authorization will proceed just as though he were applying for an

NPDES permit . The Agency may provide construction criteria in its guidance

document promulgated, pursuant to Rule 501

.

The original proposal contained a requirement that the construction

authorization not cause a violation of the conditions of the NPDES permit . This

has been deleted . The standard for issuance of a construction authorization

will be the same as the standard for the issuance of a permit . The question

will be whether the modified facility will cause a violation of the Act or

Rules, if not, the conditions of the permit

will

be adjusted to allow the

modification. Similar requirements have been dropped from USEPA regulations [40

C .r.R. S 124.52(b) ; 44 Fed. Reg. 32,854, [*36]

32,899

(June 7,

1979))

.

However, Rule 301 incorporates a similar provision from the present Rule 902(i)

of Chapter

3

.

On December

13, 1979

the Board proposed to delete this in

R79-13

.

The Agency proposal was also specifically conditioned on the validity of

existing permits . This has been deleted as unnecessary . The term permit always

means valid permit unless otherwise specified. Subsequent to the hearings the

Agency proposed an amended version of this rule

[P-204(a))

.

This amendment has

been substantially adopted in altered form .

Deleted

(P-205)

The Agency proposal contained a rule listing the rules which were applicable

to NPDES permits (P-205) . This rule has been deleted since the chapter has been

restructured to make this clear (R. 101) .

PART IVs STATE PERMITS

400 Preamble (P-250; 0-203(a))

Part IV governs

in theory all mining activity and hence anything regulated

under Chapter 4 . However, the exemptions for holders of NPDES permits and for

domestic retail sales yards, consumer stockpiles and some small mines will, as

things presently stand, relegate Part IV to a minor role (R . 69) . However, in

the event the Agency loses NPDES authority, this will become the (*371

principal part of Chapter IV .

401 Construction and Operating Permits : State Permits

(P-251, 256,

257 ; 0-201)

NO.583

P.14/34

---

v

PPR.19.2001 12:52PM

N0.683

P.15/34

Rule 401 sets forth the

requirements

of state permits, There are two types

of state permits -- construction permits and operating permits. These are

referred to individually or collectively as state permits (R . 12) . Rule 401(c)

provides for a joint construction and operating permit to be issued whenever it

is not worth the administrative trouble to issue separate permits

.

An operating permit is required for a person to carry out mining activities

.

The definition of mining activities includes construction activities . Therefore

an operating permit is sufficient for construction . However, Rule 401(a)

provides for a separate construction permit . There has been difficulty with the

old Chapter 4 in that it is not clear that construction is a mining activity,

in some cases, coal has actually been removed from the ground and sold . Persons

have claimed that this was construction and not governed under Chapter 4 so as

to require an operating permit., A construction permit is provided in order to

make this clear (R. 33)

.

The separate construction permit will also allow E *381 the Agency to review

and inspect a facility prior to issuance of the operating permit . In some

instances this will provide more flexibility in the permitting process

.

it makes no legal difference whether a state permit is denominated a

construction permit or an operating permit . The language of the permit will

determine what is permitted regardless of the name

.

The Agency's original proposal contained two separate rules for when a

construction permit was required (P-251, 256) . The standard adopted is from the

Agency's amended proposal

(A.P .-251)

.

The standard for issuance of a joint permit in the Agency's proposal was that

the activities were "sufficiently standard to obviate the need" for separate

construction and operating permits . This has been changed to allow a joint

permit "for administrative convenience ." The Agency should issue a joint permit

not only when a standard design is involved, but also in the case of an

innovative design if it is more efficient to issue the joint permit . The Agency

may also require two permits even if the design is standard (P-251, 256)

.

The original proposal specified various mining activities for which a permit

was required . This has been [*391 changed to include all mining activities as

defined by Rule 201 . The specifics have been moved to the definition of mining

activities

.

402 Exemption from State Permitf NPDES Holder (P-252, 200)

Rule 402 provides that an operator who holds an NPDES permit for a facility

need not have a state permit for mining activities on the facility . whatever

mining activities an NPDES permit holder engages in

will

be permitted under Part

III (R. 12, 19, 69, 100, 167 ; E. 84) . The

NPDES

exemption will terminate when

and if the Agency ceases to administer the NPDES permit program. The Agency's

proposal set forth the requirements of the PWPCA and specified that the

exemption would not apply unless they were met . even though the exemption and

the Agency's NPDES authority might be conditioned upon the same facts, this

construction would raise the possibility of an inconsistent determination of the

facts. The proposal has been changed to provide that the exemption ceases

whenever the Agency ceases to administer the program for any reason whatsoever

.

Rule 402(b) also provides for notice to the NPDES permit holders by the

Agency in the event the Agency ceases to administer the program . This (*40J

is the only way of guaranteeing that the permit holders will learn that a state

permit is required. The notification procedure also allows the Agency to

determine whether or not it has NPDES authority . The Agency need not give

r

notice

until

it is convinced it has actually lost the authority with sufficient

r

i

---

RPR.19.2001 12:52PM

NO-683

P.16/24

certainty to justify the inconvenience of processing a large number of state

applications . The wording has also been changed to givq the Agency authority to

set dates upon which applications must be received for state permits. It the

Agency, deems it necessary, it may spread these dates out over a period for

administrative convenience .

The Eels concluded that elimination of the present system of requiring

duplic4te state and NPDES permits would result in an annual savings to the

Agency of $ 3000 to $ 5000 and $ 200 to $ 400 to the mines (E . 43)

.

403 Exemption from State Permit: Coal Piles and Small Mines (P-252)

Rule 403 provides a further exemption from the state permit requirement for

some Small mines, domestic retail sales yards and consumer stockpiles located at

the consuming facility . The revision has increased the scope of Chapter TV by

including under the definition (*41] of mining activities coal transfer

facilities and coal storage facilities . These definitions would include

domestic retail sales yards and consumer stockpiles. They are also able to take

advantage of the more lenient discharge standards found in Part Vi . However, it

would unduly burden retail sales yards to require them to obtain permits (R . 13,

20, 28, 104) . Although consumer stockpiles could include very large facilities,

it is expected that most of these will already have NPDES permits . This

provision does not create exemption from the NPDES permit requirement (R . 64 ; E .

84) . However, Chapter 4 requirements concerning, for example, a consumer

stockpile will be written into the NPDES permit . The Agency retains the right

to require a state permit in the event a non-NPDES facility threatens to cause

water pollution or violation of the regulations .

Rule 403(a) (3) provides an exemption for any mine affecting less than ten

acres of land per year which is not a coal, fluorspar, lead or zinc mine. It is

contemplated that among other things, this will provide an exemption for small

sand and gravel operations. since there is a large potential for abuse, the

Board has added to (*42) the Agency's proposal the requirement of notification

by a small mine. This will afford the Agency an opportunity to investigate and

will allow it to maintain an accurate list of mining operations in the state,

Since the exemption will date only from the time the Agency is notified of

the claim of exemption, this provision will be of limited utility as a defense

to operation without a permit. For the exemption to apply, operators who have a

mine with a doubtful exemption will have to notify the Agency and submit

themselves to an inspection in advance of an enforcement proceeding .

Rule 403(c) sets forth the requirement that the Agency notify the operator

that a permit is required and that the exemption is found inapplicable. in the

event the operator promptly applies for a permit, he can continue operating

without being subject to an enforcement action for operating without a permit .

404 Applications : .Deadline to Apply (P-253)

A person who is required to have a state permit must file the application at

least ninety days before the data on which the permit is required . This is

similar to rules found in Chapter 3 (Rules 902 and 960) . Under the

Administrative Procedure Act, [*43j if a timely permit application is made,

the old permit continues in effect after expiration until the new permit is

issued [Ill . Rev. Stat . ch 127, E 1016 (1977)] . An applicant will not be able

to avail himself of this statute if the application is not filed ninety days

prior to expiration .

405 Permit Applications : Signatures and Authorizations Required (P-254)

---

APR.19.2001 12:53PM

I

v

NO.683

P.17/34

This rule is virtually Identical with Rule 902(h) of Chapter 3 which is

applicable to NPDES permits

.

406 Permit Applications : Registered or Certified Mail or Head Delivery Required

(P-255)

This rule is similar to Rule 959 of Chapter 3

.

407 Supplemental State Permits [P-251, 263) 0-203(b)]

Rule 407 sets forth the rule for when supplemental state permits are

required. Rule 407(a) specifies that an operator may apply for a new or

supplemental permit whenever circumstances arise such that there could be a

violation of the previous permii

.

The Agency's amended proposal specified that additional state permits are

required "whenever mine drainage, mining or mine refuse disposal enters an area

not covered by a previous permit or when the treatment or pollution control

plans are modified in design or operation" (AP-251) . [*44] This provoked

comment from the Illinois Coal Association and Monterey Coal Company . They

objected to dropping the word "substantially" before "modified in design or

operation" and to the proposal to require a supplemental permit whenever the

mine entered any "area" as opposed to a "new drainage area,"

The supplemental permit requirement on entering a-new drainage area is taken

from the old Chapter 4

[0-203(b)) .

Under that rule an operator could mine for

an indefinite period at a given location once a permit was issued. The only

limitation was a new permit when a new drainage area was entered . The new

Chapter 4 is different in that the permit can have a duration of not more than

five years, It is possible to project the progress of the mining with greater

specificity for a limited period of time . Therefore, Rule 513 has been added to

the Agency's proposal . This requires that a state or NPD9S permit specify a

permit area, the maximum, extent of the affected land during the permit term

.

From the coal operators' comments', this appears to make Chapter 4 more in

agreement with the Department of Mines and Minerals' permitting system .

The Agency's proposal contained a substantive (*45] rule requiring

supplemental permits under certain circumstances . However, application for

supplemental permit is a defensive move on the part of an operator . Therefore

;

a rule requiring a supplemental permit is unnecessary . Rule 407 has been

modified to make it clear that an operator may apply for a new or supplemental

permit whenever a change occurs such that there could be a violation of his

permit .

Under the Agency proposal, for example, an operator mining beyond the

permitted area would violate not only the rule requiring an additional permit,

but also the rule against violating a permit condition . The redundancy is

unnecessary. The permit should specify with some particularity what it permits

.

If the operator goes outside the bounds of the permit it is a violation of the

permit condition. He must either cease the activity or apply for a supplemental

permit .

.

Inspection of Chapter 3 reveals no similar rule applying to state permits . A

substantive rule requiring supplemental permits is not only unnecessary but is

'redundant and conflicts with the various permit requirements contained in Part V

of Chapter 4 . For instance, Rule 506 requires a supplemental permit before

implementation [*46] of a revised disposal plan . Retention of a rule requiring

supplemental state permits could also be used as a defense to a complaint

alleging operation in violation of a permit condition not specifically listed in

the rule requiring supplemental permits . An operator could contend that under

---

w

I

I

I

RPR.19.2001

12:53PM

NO-683

P.18/34

his circumstances a supplemental permit was not required and therefore he

could

change his method of operation without applying for a supplemental permit .

The modified rule gives the Agency control by permit over the supplemental

permit requirement, For example, under Rule 501 the Agency is authorized to

impose special conditions, which could include details of the design and

operation of treatment or pollution control plans . The Agency can be more or

less specific about these details in the permit . The degree of specificity will

determine the latitude within which the permittee can operate without making a

supplemental application .

408 Violation of conditions or Standards in a Permit (P-270 ; 0-206)

Rule.408 requires operators to comply with conditions of their state permit

.

Rule 400(b) provides for revocation

of

permits .

The agency proposal merely stated that a permit could be revoked (*47]

without giving any standard for revocation, in the Proposed Order, four

circumstances warranting permit revocation are listed. These are taken in part

from Rule 912(b) of Chapter 3 and

in part by analogy with case law developed in

connection with solid waste permits,(EPA v. Harold Broverman, et al., 28 PCB

123, November 10, 1977)

.

In connection with an enforcement action, the Board may revoke a state permit

if, because of existing geological conditions, an operator cannot carry out

mining activities so as not to cause a violation of the law; or, the complainant

demonstrates a history of chronic disregard by the permittee of the mining

regulations; or, the complainant demonstrates that the permit was obtained by

misrepresentation or failure to disclose fully all relevant facts ; or, the

complainant demonstrates affirmatively that the general standard for permit

issuanco contained in Rule 502 would not be met if a new application for permit

were made. This last circumstance is intended to be the converse for the

general standard far permit issuance,

409 State Permit Term [P-268 ; 0-203(a)]

Rule 409 provides that state permits shall be of a duration not to exceed

five yedrs (*48] as specified in the permit. The Agency may specify any

expiration date up to five years from the effective date of a state permit

(R.267) . The Agency proposal specified that permits had a duration of one to

five years. This has been changed to remove the requirement that the permit

have a duration of at least one year. Rule 910(e), Chapter 3 specifies that

NPDES permits be issued for specific terms not to exceed five years. In the

past the Agency has issued to coal mines NPDES permits expiring

less than one

year after issuance. (See EPA v. Zeigler Coal Company, PC$ 79-123, Order of

November 1, 1979) . The minimum requirement has been dropped in keeping with the

general policy of this revision of keeping the NPDES and state permits as

similar as possible .

The Agency's proposal specified that operating permits, but not construction

permits, could have such duration except as provided in paragraph d of Section

33 of the Act. That section establishes the Board's authority to revoke

permits . It is unclear why the Board should not have the authority to revoke

construction permits also. This exception has been dropped from the rule since

it is not only redundant, but appears (*49] to conflict with the general rule

on revocation of permits found in Rule 407

.

The Agency proposal also contained a provision that all operating permits now

in effect expire when the earliest NPDES permit expires, but not later than

three years after the effective date of this Chapter, This has been moved to

---

APR.19.2001

12:53PM

NO.683

P.19/34

Part

V$z

.

Not only is this

•.

a temporary rule that doesn't belong with the body

of the Chapter, but also it does not apply to state permits within the meaning

of Part

IV.

An Agency amendment to the rule on duration of permits which

specifies a 180 day period for abandonment plans after effective date of this

regulation has also been moved to Part VIT .

410 Permit No Defense to Certain Violations (P-269 ; 0-207)

Rule 410 provides that possession of a state permit is not a defense except

to a complaint alleging mining activity without a permit

.

This

is

similar to

Rule 966 in chapter 3 and Rule 207 of the old Chapter 4 . In an amendment the

Agency also sought to expand this rule to cover NPDES permits. The Board

rejects this change. Rule 966 of Chapter 3 is not applicable to NPDES permits

and there is no similar provision covering NPDES permits . Although the Hoard

has not (*50] so held, there

is

authority for the proposition that compliance

with the conditions of an NPDES permit is a defense to a complaint charging

violation of related regulations .

On mption of the Agency, language relating to abandonment plans has been

stricken. Under the original proposal, operator compliance with its abandonment

plan was a defense to abandonment violations . This language was vague and

unnecessary since abandonment plans are covered in Rule 509 (R. 53, 77) . The

Illinois Coal Association objected to this proposed modification . However, the

modification is in keeping with the general rule that Illinois permits are no

defense to complaints charging violation of the Act or rules

.

411 Permit Review (P-272 ; 0-703)

This follows the general policy of the other Chapters that grant of a permit

with objectionable conditions is a permit denial under section 40

of

the Act

allowing the applicant to appeal. This provision is substantially unchanged

from thq old Chapter 4, although the language has been altered from that and

from that of the Agency proposal. Language has been inserted providing that

Agency notification of modification or revocation of an existing permit is also

[*51]

d permit denial. Rule 503 covers permit modification when new

regulations are adopted. The added language will allow a permit appeal in the

event of Agency notification of modification in such a case. In some cases Rule

503 notification of modification could amount to revocation of the permit .'

Language has been added to make certain that there is a right to appeal in this

case also .

PART V: STATA AND NPDES

PERMITS

600 Preamble

Part V governs mining activities and issuance of permits to operators

regardless of whether they hold a state or NPDES permit

.

501 Special Conditions; Agency Guidance Document (P-261, 266 ; 0-205(c)]

Rule 501(a) allows the Agency to impose special conditions on a permit which

are consistent with the rules and necessary to accomplish the purposes of the

Act. Thos restates the Agency's authority under 5 39 of the Act to translate

the body of water pollution law into specific requirements which a discharger

must meet

.

The Agency proposal with regard to special conditions has been reworded to

track the language of 4 39 of the Act (Rule 501(a), P-205(b) and P-266] . The

---

APR-19-2001 12:54PM

NO.683

P .20i34

requirement found in B 39(a) that permit conditions not be inconsistent with

the (*52] Board rules was not included in the Agency proposal and has been

added .

section 39 of the Act sets forth the Agency's authority to impose special

conditions in permits . The wording is slightly different depending on whether

the permit is state or NPDES . Section 39(a), which applies to permits required

by Board regulations, reads as follows: "In granting permits the Agency may

impose such conditions as may be necessary to accomplish the purposes of this

Act, and as are not inconsistent with the regulations promulgated by the Board

hereunder." However,

fl

39(b) of the Act sets forth that; "All NPDES permits

shall contain those terms and conditions, including but not limited to schedules

of compliance ( which may be required to accomplish the purposes and provisions

of this Act.'] Therefore, assumipg 3 39(a) of the Act is inapplicable to NPDES

permits, the Act does not require NPDES permit conditions to be not inconsistent

with Board regulations . This does not necessarily imply that the Agency must

ignore poard rules in writing NPDES permit conditions, Section 39(a) provides

that the Agency "may impose" conditions necessary to accomplish the Act's

purpose which are not inconsistent (*53] with Board rules . However, B 39(b)

provides that, in the case of NPDES permits, the Agency "shall impose"

conditions required to accomplish the Act's purposes . The Act is silent about

what additional conditions the Agency may impose in NPDES permits

.

Rule 501(b) allows the Agency to adopt permitting procedures . These should

include rules of procedure and application forms . They shall be included in the

Agency guidance document provided for below .

Rule 501(c) allows the Agency to adopt engineering criteria which will be

published with the Agency guidance document . These should represent minimal

designs and practices which the Agency will accept for permit issuance .

Rule 501(e) has been added to the Agency proposal . Although B 39 of the Act

confers authority on the Agency to adopt rules governing permit procedures, the

Agency has no authority to promulgate substantive rules pursuant to B B 12 and

13 of the Act. This authority is given to the Board and there is no authority

for subdelegation to the Agency

(E .

80) . Rule 501(e) has been added to clarify

the nature of the criteria which the Agency may promulgate,

The Iygency necessarily has the power to develop guidelines for (t54] permit

issuance to be used within the Agency . Rules 501(c) and (d) contemplate

publication of these guidelines as criteria. The criteria will represent a

formal statement of what the Agency will not challenge in a permit application

.

The criteria are not rules and will not bind any party other than the Agency .

Although these are not rules in the usual sense of the word, they are rules

within the meaning of the Administrative Procedure Act, Ill . Rev. Stat. eh. 127,

B. 1003.091

"Rule" means each Agency statement

of

general applicability that implements,

applies, interprets, or prescribes law or policy, but does not include (a)

statements concerning only the internal management of an agency and not

affecting private rights or procedures available to persons or entities outside

the agency,

(b)

informal advisory rulings issued pursuant to Section 9, (o)

intra-agency memoranda or (d) the prescription of standardized forms

.

The c;iteria will amount to an Agency statement that interprets law or

policy. They will be of general applicability and not informal advisory rulings

issued tp individual petitioners as contemplated

by

B 1009 of ch, 127 .

Publication of the rules in conformity with j*55] the Administrative Practices

Act is therefore required (E . 82; Third Amended Proposal) .

---

RPR.19.2001

12:54PM

NO . 6B3

r.C17S4

502 Standard for Permit Issuance or Certification (P-267 ; 0-202)

Rule 502(a) sets forth the standard for permit issuance. This is the usual

standard for permit issuance that the operator present evidence to demonstrate

that there will not be a violation of the Act or rules (S 39 of the Act)

.

Rule 502(b) further sets forth the function of the Agency guidance document

.

Where the guidance document contains criteria with respect to some part-or

condition of the permit, then the applicant may demonstrate conformity with the

criteria of the guidance document in lieu of demonstrating that there will be no

violation of the Act or Rules. However, since the guidance document does not

constitute rulemaking, nonconformity with the criteria will not be grounds for

permit denial, provided the general standard for issuance is met . For an Agency

interpretation of the comparable Rule 967 of Chapter 3, see 3 511 . Reg. 36, p .

226 (September 7, 1979) .

'

As an examplee of the function of the guidance document, consider that the

Agency might issue criteria to the effect that refuse piles shall have a slope

no [*56] greater than 108 . The permit applicant will be free to'offer evidence

that a slope of 12% under the circumstances will not cause a violation of the

Act or Chapter 4. However, the Agency will not be allowed to argue that under

the circumstances a maximum slope of 8% is required. The function of the

guidance document is to provide guidance by permitting the Agency to set forth

minimal standards . An applicant can assure himself of prompt permit issuance by

conforming to the criteria of the guidance document

.

The Agency's proposal required that as a condition for permit issuance the

applicant demonstrate that he had conformed with all conditions

in

the

construction permit. If such a requirement is to be imposed at all, it should

also be applicable to construction authorizations, However, it has been deleted

from the proposal altogether . The permit will be issued if it is shown that no

violation will occur regardless of whether the applicant conformed to the

conditions of the construction permit. If the applicant breached the

construction permit this will be grounds for an enforcement action, but standing

alone it should not prevent issuance of an operating or NPDES permit if [*57]

the general standard for permit issuance is met . Revocation of the permit

could, however, be imposed as a sanction in the enforcement action in an

appropriate case under Rule 408 or under Rule 916 of Chapter 3 .

503 Permit Modifications when New Regulations Are Adopted (P-271)

Rule 503 provides that the Agency may issue a supplemental permit setting

forth affected terms and conditions in the event the Hoard adopts new

regulations (R . 116) . This has been completely changed from the Agency's

proposal which would have provided for modification of permits by operation of

law. Violation of permit conditions frequently carries more severe penalties

than violation of regulations . The more severe penalties are warranted in part

because the operator has been afforded notice of particular provisions in

regulations by way of the permit and because regulations have been made more

specific when incorporated into the permit . Modification of the permit' by

operation of law would defeat these policies of the permit system, Rule 503 as

adopted conforms with the similar provision contained in Rule 968 of Chapter 3

.

504 Permit Applications (p-258 ; 0-204)

Rule 504 sets -forth what information [*581 must be provided in a permit

application. This is further specified

in

the sections which follow (E. 26)

.

The Agency proposal specified that soil classification was to be according to

Grandt and Lang, Reclaiming Illinois Strip Coal Land with Legumes and Grasses

.

s

---

i

RPR.19.2001

12:55PM

NO.683

P.22/34

This book is out of print. The

Agency

will reproduce it in the guidance

document (R. 106)

.

The Agency proposal specified that the application must comply with the

conditions of the Agency guidance document . This has been deleted. If the

Agency were empowered to specify conditions which had to be met, the result

would be an improper delegation of rulemaking authority. However, the Agency is

permitted to request more information or more particular information than that

listed in Rule 504 . It may do this either through an application form, the

Agency guidance document or specific requests for

information,

However, failure

to comply with criteria of the guidance document or inability to' supply all

information will not alone be grounds for permit denial absent a showing that

the criteria or information' is necessary in the particular case . The Coal

0perato;s' comment that this is,°beyond the bounds of reason" is answered [*59]

by the requirement of "necessary information ."

Subsequent to the hearings the Agency specified certain additional

information. This has been rearranged and incorporated into Rule 504 . The Coal

Operators' comments are discussed in connection with Rule 505,

505 Surface Drainage Control [k-260 ; 0-301(a), 301(b)]

Rule 505 provides for control of surface drainage by permit . Surface

drainage must be diverted around or away from the active mining area. Other

.mining activities and mine refuse disposal must be planned to minimize contact

with waters of the state if such contact could result in pollution . Stream

diversion is to be avoided,

The original proposal provided only for diversion around the active mining

area, An Agency amendment expanded the scope of Rule 505 to include diversion,

redirection or impoundment of streams and a rule requiring that mining

activities and deposition of spoil be conducted so as to avoid contact or

interference with waters of the state . These amendments have been incorporated

in altered form .

The Agency amendment sought to expand the scope of Rule 505 to afford the

Agency the level of control it presently has under old Rule 301 of Chapter 4

.

(*60] Apparently in its original proposal the Agency restricted its authority

inadvertently .

Some hpecific requirements' of old Rule 301 have

been

omitted. These include

certain mandatory diversion and impoundment provisions . In dropping these

requirements the Hoard does not intend to disavow them. They are mining

practices which carry a risk of water pollution . The Agency may provide for

these matters in the Agency guidance document and may write specific

requirements into permits to prevent water pollution .

Rules 505(b), (o) and (d) set forth

substantive

rules governing the conduct

of mining activities. Rule 504(b)(7) requires a plan for surface drainage

control as part of a permit application . This plan will be incorporated into

the permit as a condition. Rule 201 defines surface drainage control as control

of surface water on the affected land by a person who is engaged in mining

activities. Surface drainage control includes the practices governed by Rule

505(b), (c) and (d) . In permitting surface drainage control, the Agency shall

consider not only whether compliance with the requirements of Rule 505 has been

shown, but also whether the plan will avoid other violations of (*61] the Act

and Chapter 4

.

The definition of surface drainage control has been expanded to include flow

augmentation and controlled release of effluents as a kuethod of avoiding

violation of the TDS and related water quality standards. These practices may

---

RPR.19.2001

12:55PM

N-

u

I .

NO-683

P.23/34

previously have been considered illegal, although this Opinion clarifies this

.

They will require a permit under Rule 401 since they will involve stream

diversion or impoundment. There is no special rule governing permit issuance in

this case other than the general standard of Rule 502 .

Rule

505(a) requires the Agency to impose a surface drainage plan as a permit

.

condition. The Coal Association objected to this and in general to the

incorporation of the specific rules on stream relocations . Their

contention

was

that

this

was provided in the Department of Mines and Minerals permit and

application form which was reviewable by the Agency . They also objected that

the Agency did not presently have control over the permitting of stream

relocations. However, inspection of the old Chapter 4 at Rule 301(a) and (b)

reveals that the Agency does presently have such control

.

At the hearings the Agency indicated that the various state agencies (*62]

responsible for permitting coal mines would develop a single application form

which would be circulated. The Coal Association's objection that the surface

drainage control provisions would be burdensome is answered by their contention

that the application is already required by Mines and Minerals (R . 27)

.

The Coal Association's comments further infer that there is a legislative

intent in the Reclamation Act to exempt coal operators from the permit

requirements of the Act . Of course the bulk of the coal mines are required to

have NPDES permits and the state permit requirement will be inapplicable to

them. it is beyond the power of the state legislature to provide exemptions

from th4 NPDES permit requirement .

The Reclamation Act does, as the Coal Association contends, provide for

Agency input and commeht in the mines and minerals permitting procedure

.

However, a careful examination of the Reclamation Act indicates that the

Agency's function

is

advisory. There is no provision for a veto by the Agency

in permit issuance from Mines and Minerals . Furthermore, section 3 .20 of the

Reclamation Act provides that "all requirements of the Illinois Environmental

Protection Act and rules [*63] and regulations thereunder shall be complied

with fully at all times during mining, reclamation and after reclassification ."

The Board

cannot

find from this a legislative intent to exempt coal mines from

the state permit requirements

.

506 Refuse Disposal (P-262 ; 0-401, 402)

Rule 506(a) requires that a state or NPDES permit contain a refuse disposal

plan. An applicant must submit a plan under Rule 504(b) (12) . The plan will be

made a permit condition if it satisfies the standard for permit issuance

contained in Rule 502, The applicant must show that there will be no violation

of the Act or rules, including Rules 504(c), (d) and (e) which are substantive

rules governing

mining .

The Agency may promulgate mine refuse criteria under

Rule 501

.

Rule 506(0) provides that runoff, etc ., from the affected land must meet the

standards contained in Part VI . Note that runoff from the affected land is a

mine dispharge under Rule 201 (0-401 (a) (1)] . Rule 506(d) provides that refuse

areas must not be located

in

an area of natural springs or aquifer recharge area

or intercept a drainage course without special protective measures (0 .401(a)

(2)]

.

Rule 506(e) establishes rules on spreading [*64] and compacting . These are

reminiscent of the solid waste rules . The original proposal specified only that

said producing solid mine refuse be spread and compacted and covered when

necessary with "non-acid--producing material .",This has been modified to include

the word "suitable" before "non-acid-producing material ." Impermeable clay would

---

.2y)

I

i

RPR.19.2001 12:55PM

NO.683

P.24/34

be a suitable cover material in that it Would prevent water and air from

reaching the-acid-producing material, However, the Agency may approve other

suitable materials . Rule 506(e) permits alternate refuse disposal methods at

the Agency's discretion (R. 15, 114) . These will be subject to Rule 502

.

Rule 506(f) and (g) govern revised refuse disposal plans . This establishes a

special. rule on when a new or supplemental permit

is

required. A new permit is

required if the revised plan contains any change from the permitted plan. Rule

506(d) requires that a revised disposal plan result in a new permit application

which must be made prior to implementation of the revised plan, ninety days

before for a state permit and 180 days for an NPDES permit

.

The original proposal defined revised disposal plan as one with a

"substantial" change. On the Agency's [*65] motion and over the Coal

Association's objections the word "substantial" has been deleted . A new permit

is required before there is any deviation from the permitted plan . Of course

the Agency can be more or less specific in permit conditions as required to

assure that the standard of Rule 502 will, be met

.

The original proposal also required application to be made ninety or 180 days

prior tp "completion" of the plan . The Agency recommended deletion of this

word, but the amended proposal could. still have been interpreted to require

application ninety or 180 days prior to mere possession of the plan. This would

be difficult to administer since submission of a plan is a necessary condition

for the new application under Rule 504 . The adopted rule specifies

"implementation" of the plan . Implementation will occur when the first action

is taken pursuant to the revised plan and contrary to the permitted plan .

507 Experaxnental Permits for Refuse Disposal (F-264; 0-403)

Rule-507 provides for experimental permits for refuse disposal. The standard

for issi+ance of experimental permit is not the same as usually applied to permit

issuances by Rule 502. The experimental permit may issue [*663 if the operator

demonstrates a reasonable chance for compliance with the Act and Chapter 4 . The

rule sets forth special monitoring and reporting requirements . The procedure is

laid out for notice and termination of the experimental permit (R. 114) .

The original proposal required that the disposal area not be the "principal

area for disposal of acid-producing refuse unless approved by the Agency," This

language has been deleted. it adds nothing to the proposal since no permit

would issue without Agency approval . It is not the Board's intention, however,

that experimental permits should often be issued for a principal disposal area

.

508 Permit for Use of Acid-producing Mine Refuse (P_-259 ; 0.404)

Rule 508 requires that a state or NPDES permit include as a condition a plan

for the use of acid-producing mine refuse if the operator is to use such, The

definition of acid-producing mine refuse has been moved from its place in the

proposal to definitions . Use of acid-producing mine refuse is a mining activity

as defined by Rule 201 for which a permit is required under Rule 401 (R. 112)

.

The original proposal specified that use of acid-producing mine refuse was

restricted to holders (*67] of operating permits . On the Agency's motion, this

requirement has been deleted . There is no obvious reason why this rule should

not also:be applicable to holders of NPDES and construction permits

.

Rule 504(b) (17) requires a plan for use of acid-producing mine refuse in a

permit application. The Agency may set forth in an Agency guidance document

under Rule 501 criteria for the use of acid-producing mine refuse. The standard

---

APR.19.2001

12:56PM

NO-6e3

P.25/34

for issuance of a permit for use of acid-producing mine refuse is that contained

in Rule 502 .

Rule 404 of the old Chapter 4 contained an absolute proscription of use' or

offer of acid-producing mine refuse . This proposal would allow

such

use by

permit

.

509 Abandonment Plan (P-261) 0-502)

Rule 509 prov~4,es that an application for a permit include an abandonment

plan. The permit will include an adequate plan as a condition . This represents

a drastic departure from Ghe present chapter 4 which requires an abandonment

permit subsequent to abandonment of the mine . The Agency has

had

considerable

difficulty with

enforcing the requirement

of an abandonment permit . Requiring

the abandonment plan will force the operator to confront the problem prior to

abandonment (*66) and the operator will no longer

be

able to claim Ignorance of

the requirement to take steps on abandonment

(R .

14, 20, 39, 54, 66, 78 (

112) .

The ECIS was able to quantify the economic costs of this,

This

represents

one of the few identifiable costs associated with this revision . An abandonment

plan likely involves an engineering fee of $ 1000 or more . This fee will have

to be paid prior to application for the permit

.

This

requirement therefore

increases the capital

investment

required to open a mine and obtain a permit

.

The cost of mining is increased somewhat by the cost of tying up this capital

for the period of time the mine is open (E . 42, 44, 99)

.

Rule 509(b) defines an adequate abandonment plan . The plan must provide a

time schedule for completion of abandonment work within one year . Subsequent to

abandonment, however, the Agency may approve departures from the plan that would

allow fqr completion over a period of more than one year .

Rule 509(c) provides that the Agency may further define an adequate

abandonment plan by means of the Agency guidance document. However, the Agency

must approve an abandonment plan upon a demonstration that it will provide

protection against (*69)~

violations regardless of whether it conforms with the

Agency guidance document.

Rules 509(d) and (e) provide for revised abandonment plans . A revised

abandonment plan is one constituting a substantial change from

the

permitted

one. Substantial will be defined on a case by case

basis. it will be a

violation if an operator implements a revised abandonment plan without having

applied for a revised permit ninety days prior to implementation (R . 166, 168)

.

510 Cessation; Suspension or Abandonment (P-261) 0-501(a)]

Rule 510 covers cessation, suspension or abandonment . The original proposal

covered the abandonment plan, permitting requirements and substantive rules on

abandonment in one rule, These have been separated intp two rules

.

Rule 510(a) provides that the operator notify the Agency within thirty days

of abandonment, cessation or suspension of mining . The original proposal

provided that notification was unnecessary if abandonment was caused by a labor

dispute . The language has been clarified and the labor dispute section applies

only to cessation or suspension. The Agency must be notified of abandonment

regardless of the cause

.

Rule 510(b) makes it clear that the operator (*70) must provide interim

impoundment, etc. to avoid violations of the Act during cessation or suspension

of active mining. The operator will also be required to avoid violations during

exeution,of the abandonment plan

.

---

RPR.19.2001 12:56PM

N-

\.;

NO.683

P.26i34

Rule 510(c) sets forth the rule that the abandonment plan must be executed

upon abandonment. The definition of abandonment includes transfer of ownership.'

This represents a substantial change from the existing Chapter 4 . In the past

operators have avoided their responsibilities foF properly abandoning a mine by

transfer of ownership to an insolvent corporation. Such a transfer will be an

abandonment under the new Chapter 4 and the transfer will not allow the operator

to escape responsibility for adequately closing the site

(R. 14, 20, 39, 54, 66,

7B, 112)

.

Rule 510(c) provides a defense to the requirement to execute the abandonment

plan in the event the operator demonstrates that the transfer of ownership was

to a responsible party. A responsible party is someone who has already obtained

.

permits to operate the same mine . If the mine is transferred to a party who

does not have a permit at the time of transfer but subsequently obtains one, the

transferor will be [*71] relieved of the obligation of further executing the

abandonment plan. However, it the transferor has failed to perform part of the

plan during the interim, there will have been

a

breach of the permit condition

which will not be excused.

It is assumed that a transferree who will be financially unable to execute an

abandonment plan will be unable to obtain the necessary permits to operate the

mine. In particular he will be unable to meet the banding requirements of the

Mine Reclamation Act,

511 Emergency Procedures to Control Pollution (P-265 ; 0-205(a), 205(b)]

Rule 511 sets forth emergency procedures. The original proposal requited

that the operator notify the Agency "immediately" of an emergency situation .

The requirement of immediate notification has been changed to notification

within Qne hour. it is feared that immediate notification may be impossible and

hence would not be enforced. it appears that notification within one hour would

be in all events possible and hence enforceable (R . 114)

.

u

The Agency proposal was also limited to "sudden discharges ." This has been

changed to include any discharges caused or threatened by an emergency. The

Agency should be notified at [*72] any emergency that could result even in a

slow leak .

512 Mine Entrances [0-301(a) and (c)]

Bore holes, openings, drill holes, entrances to underground mines and auger

or punch mine entries must be plugged and sealed to the extent necessary to

avoid the threat of water pollution . This is taken from the old version at

Chapter 4, Rule 301. It has been added to the Agency proposal on the assumption

that it was inadvertently omitted in the revisions

.

513 Permit Area (P-263; 0-203(b)]

Rule 513 requires that a state or NPDES permit specify a permit area. During

permit term no portion of the affected land may be outside the permit area

.

This is a new provision which was not in the Agency proposal. The term "permit

area" is taken from the Reclamation Act,

Subsequent to the hearing, the Agency sought to amend its proposal to specify

that additional state permits were required whenever mine drainage, mining or

mine refuse disposal entered an area not covered by a previous permit. The Coal

Association objected to this and apparently construed it to mean a new

application was required each time a shovel took a bite out of a coal seam .

Consideration of this dispute led to the recognition [*73] that there was no

---

APR.19.2001

12:57PM

provision in the Agency proposal requiring that the permit . specify a

geographical area. Accordingly, Rule 513 has been added to clarify this

.

Under Rule 504(b)(1) the permit applicant must specify the location of

the

affected land and the maximum extent of the affected land during the term of the

requested permit. If there is some area in the proximity of the facility into

which mining cannot proceed without violation of the general standard for permit

issuance under Rule 502, the Agency should exclude that area from the permit

area. otherwise the Agency should grant a permit area which will be consonant

with the permit term .

PART VT: EFFLUENT AND WATER QUALITY STANDARDS [P-301) 0-601(a)]

600 Preamble

Part VI applies to mine discharges as defined by Rule 201 . If a mining

activity has both a mine discharge and another discharge, it will be subject to

both Chapter 3 and Chapter 4 . Chapter 4

will

govern the mining activities,

including mine discharges . Chapter 3 will govern the other discharges (R . 15)

.

Rule 600(b) provides that except to the extent provided

in Part VI, Parts II,

III, and IV of Chapter 3 are inapplicable to mine discharges . In particular

(*74] the effluent standards of Part IV are inapplicable to mine discharges and

are supplanted by the discharge limitations specified in Rule 606 . The old

Chapter 4 did not make this altogether clear . The parameters of Chapter 3 which

are not mentioned in Rule 606 are unregulated for, mine discharges (E . 56) . The

water quality standards of Parts II and III arm incorporated by Rule 605 which

provides for water quality related effluent standards . This is substantially

unchanged from the present Chapter 4 .

Part VI applies to mine discharges from facilities even if they may be exempt,

from thg state permit requirements under Rule 403 . Likewise Part VI applies to

any incidental mine discharge from a facility which possesses a Chapter 3 NPDES

permit .

601 Averaging (P-301; 0-601(d)]

Rule 601 sets forth the averaging procedure . compliance with the numerical

standards is determined by averaging 24-hour composite samples over a calendar

month. No 24-hour composite sample may exceed two times the numerical standard

and no grab sample may exceed five times the standard

.

Op motion of the Agency the period was changed from thirty consecutive days

to a calendar month. This is in line with (*75] federal rules and R76-21

where objection was voiced to the thirty day period. Although the calendar

month is somewhat arbitrary, it is in line with other reporting requirements and

eliminates one degree of freedom in determining compliance (R. 15,,51 ; first

Amended Proposal)

.

This averaging rule is a substantial change from the averaging rule set forth

in

Rule 601(d)(1) and (2) of the old Chapter 4 . The old rule made a distinction

as to whether treatment other than impoundment is provided, Where no other

treatment was provided, the discharge limits had to be met at all times, but

where treatment other than impoundment was provided, the standards were

determined on the basis of 24-hour composite samples with no grab sample over

five times . This has been eliminated .

In the Agency proposal the averaging rule was contained within the rule on

reporting and monitoring. It has been placed in a separate rule to emphasize

importance of averaging and to more clearly distinguish the difference between

NO.683

P.27/34

---

APR-19-2001 12:57PM

NO.683

P.28/34

averaging and reporting. Averaging

is

a substantive rule of evidence whereas

reporting and monitoring are rules relating to permits and permit

conditions .

in addition, placement of the (*76) averaging rule within the provision for

reduced monitoring and reporting after demonstration of sample reliability

implied that the averaging rule itself could be altered by permit . This is not

the case .

602 Sampling, Reporting and Monitoring (P-301, 302 ; 0-601(b) and (c), 603, 604)

Rule 602 prpvides for sampling, reporting and monitoring. A similar

provision is Rule 501 of Chapter 3 . Rules 602(a) and (c) provide for sampling

points . Where treatment is provided, sampling is to be between final treatment

and mixture with waters of the state. Where treatment is not provided, samples

are to be taken at the nearest point of access,. but again before mixture with

the waters. Rule 602(b) provides that the operator shall design and modify

structures so as to permit the taking of effluent samples . The Agency proposal

only required design and modification of "structures for discharging treated

wastes." This has been changed to "structures" in general . It may be necessary

to design or modify structures other than the discharge facility itself in order

to provide access .

Rule 602(d) provides that an operator report the actual concentration or

level of any parameter identified in the (*77) permit at a reasonable frequency

to be determined by the Agency. The reporting requirement will be specified in

the permit (R. 16) . Recent cases have challenged the authority of the Agency to

require monitoring and reporting of parameters other than those for which

effluent limits are specified in the permit . The intent of this section is that

the Agency may specify not only those parameters for which effluent limits are

set, but also parameters for which water quality levels are set by regulation or

any other parameter it deems necessary to have monitored

.

Rule 602(e) sets forth that reporting and monitoring are presumptively on the

basis

of

24-hour composite samples averaged over a calendar month, Kowever, the

Agency may permit lesser reporting. Rule 602(f) provides for monitoring after

abandonment . Rule 602(g) incorporates the USEPA's current manual of practice

.

This was a separate section under the Agency proposal, but it has been included

since it logically relates to reporting and monitoring .

603 Background Concentration (P-303 ; 0-601(e))

Rule 603 provides that the background level of contaminants in intake water

are not to be deducted in order to determine compliance (*78) with the effluent

standards. This is the same as Rule 601(e) of the old Chapter 4 and is largely

the same as Rule 401(b) of Chapter 3 (R. 16)

.

Because mining activity necessarily disturbs the land and the flow Of water

over and through the land it is the intent of this Chapter to regulate certain

disohar#es which in other contexts might be deemed background concentrations

.

As used in this Chapter, background concentration does not include contaminants

naturally occurring in underground waters

which

are brought to the surface as a

result of mining activity or which are pumped from one underground formation to

another . Also it does not include contaminants picked up by surface water as it

flows through the affected area

.

604 Dilution (P-304; 0-602)

Rule 604 provides that dilution of effluents is not an acceptable treatment

method. This is similar to Rule 602 of the present Chapter 4 and virtually

identical with Rule 401(a) of Chapter 3 (R . 17, 116), Language relating to

---

U

RPR.19.200i

12:57PM

NO.683

P.29/34

place of sampling has been deleted from the Agency proposal, This language is

also contained in Rule 401(a) in Chapter 3 . It has been eliminated because it

is provided in and may conflict with the sampling [*79] point rules provided by

Rule 602 .

The dilution rule interacts with Rule 605 which provides that effluents may

not cause a violation of water quality standards . In the hearings on this

proposal and in R76-7, concern was expressed that the dilution rule prevents

certain treatment methods for chlorides, sulfates and TDS . In particular it was

feared that controlled release of impounded water was proscribed by this rule

.

Controlled release of high TDS water during periods of naturally occurring high

flow in streams is not dilution. In this case the mixing occurs at a point

after the discharge .

Another possible technique

of

avoiding a TDS water quality violation would be

impounding surface water during wet periods and augmenting the flow of the

receivipg stream during dry periods to dilute effluents . This would not

constitute a violation of the rule against dilution. However, it could

constitute surface drainage diversion. A permit would be required under Rule

401

.

605 Violation of Water Quality standards [P-305 ; 0-605(a)]

Rule 605 incorporates the water quality standards contained in Parts ii and

III

of Chapter 3 into Chapter 4 . This is the same as Rule 605(a) of the present

[*80] Chapter 4 and is similar to Rule 402 of Chapter 3

.

The second sentence of Rule 605 provides that the Agency shall take

appropriate action under Section 31 or 39 of the Act, This is redundant because

under the remainder of Chapter 4 the Agency must take such action . However,

'

certain operators have recently contended before the Board that incorporation of

water quality related effluent standards is not authorized by Board regulations

.

The second sentence is to make it clear that water quality related effluent

standards can be incorporated into permit conditions (R . 17),

605 .1 Temporary Axemption from Rule 605

This rule will allow the Agency to issue permits through July 1, 1981 to

authorize discharges which violate Rule 605 by causing water quality violations

of TDS, chloride, sulfate, iron and manganese . For the remainder of the

discussion of this rule only, these will sometimes be referred to collectively

as TDS. An operator desiring such exemption may apply for a new state or NPDI'±S

permit containing the exemption . Rule 605 .1(c) sets a special standard for

permit issuance different from that contained in Rule 502 . The burden will be

on the Agency to demonstrate significant [*81) adverse effect on the

environment in and around the receiving water in order to deny the permit . The

operator, however, will have to submit adequate proof that the discharge will

not adversely affect any public water supply,

In order to qualify for the

exemption the operator will have to adopt "good mining practices," housekeeping

measures designed to minimize TDS discharges

.

Rule 605.1 was first proposed on November 21, 1978 by the institute . This

was after merit hearings on the proposal were concluded. On December 14, 1978

the Hoard ordered the record in this case held open to take evidence on

Rule

605 .1 . Merit hearings on the proposal were held at the same time as the

economic impact hearings. This proposal has generated the bulk of the

controversy in this proceeding .

Mine discharges are often high in TDS. Much of this comes from water pumped

exam mine areas or runoff from spoil banks .

A

substantial number of mines in

---

I

RPR.19.2001 12:58PM

NO . 6E33

P.30/34

the state produce mine discharges which cause water quality violations in the

receiving streams . Coal mines can seldom be located adjacent to large rivers,

but rather must be located where coal deposits are located . Their discharges

are frequently into [*82) intermittent streams so that the discharge comprises

the bulk of the flow o£ the stream. Therefore the discharge is limited, not by

the effluent standards of Rule 606, but by the more stringent water quality

standards referenced in from Chapter 3 (R . 129, 142, 151 ; E. 6, 11)

.

In a related proceeding, R76-7 the Coal Association sought to exempt coal

mines from application of Rule 605 with respect to TDS . Entry of a Final Order

in that proceeding has been stayed pending final resolution of this proceeding

.

Presently relief from Rule 605 is available only through the variance

procedure. At the hearings, the Coal Association stated that a variance

application can cost as much as'$ 10,000 (E. 126) . There was discussion at the

hearings of a class action variance . However, this was rejected (E . 19, B0)

.

Under the auspices of the Institute

a

joint agency/industry group called the

Mine Related Pollution Task Force has been formed . The Task Force is conducting

a study to propose an eventual permanent replacement for Rule 605 . It expects

to present this proposal before July 1, 1981 (E . 106)

.

A large amount of earth must be disturbed during the process of coal mining

.

Some of the [*B3) TDS in the discharge results from direct leaching of soluble

minerals from the rock by groundwater or rainwater falling on spoil banks, This

is the source of chlorides, which is not generally the main problem in

Illinois

.

Much of the problem in Illinois is sulfates . These are formed when air or

dissolved oxygen comes into contact with sulfur-containing minerals which have

been disturbed. Sulfuric acid is formed, producing acid mine drainage

.

Neutralization of that discharge to moat the pH requirements of Rule 606 may

further increase the TDS concentration of the discharge

.

The Economic Impact Study

in

R76-7 has been incorporated into this proceeding

by reference (E . 103 ; Economic Impact of Dissolved solids Regulation upon the

Coal mining industry, Institute Document No . 77/28) . Although there is

treatment available to reduce the iron and manganese levels, treatment to reduce

the soluble componentss of TDS is not economically available . Available

technology includes reverse osmosis and distillation . These are energy

intensive and very expensive on a scale that would be required to meet most mine

discharges . The Economic Impact Study in R76-7 concluded that for the mines in

[*84) the state to meet the present TDS water quality standard would involve a

capital investment of $ 136 .4 million and annual operating costs of $ 37 .4

million (E . 69)

.

The Task Force has promulgated, as an interim measure, a code of good mining

practices. The approach taken is not end-of-the-pipe treatment of the

discharge, but rather a series of housekeeping measures which are likely to

reduce the TDS concentration resulting from mining activities . These are

summari;ed on page 4 of Exhibit 4 . These involve practices which may minimize

water from coming in contact with disturbed areas, including bypass diversions,

slope and gradient reduction, stabilization, sealing o£ bore holes, introduction

of mine barriers, special steps for disposal of potential contaminant producing

materials and fracture zone sealing, There are also measures involving

retention and control of waters exposed to disturbed materials, including

erosion and sedimentation controls, reuse of discharges and minimization of

exposure of water to disturbed materials. Other methods include a rerouting of

discharges to larger streams where the dilution would be provided, augmentation

of flow of receiving streams to provide [*85) dilution and controlled release

of effluents during times of high flow when there is ample dilution .

---

RPR.19.2001 12:56PM

N0.683

P.31/34

Many of these practices are novel and reliable cost estimates are not

available. Therefore it is not possible at this time to do an actual economic

impact study evaluating the cost of requiring the code of good operating

practices. However, the Board incorporates the economic Impact Study in R76-7

as an economic impact study on Rule 605 .1. Although that study does not address

the code of good operating practices, it does conclude that enforcement of the

present standard by requiring end-of-the-pipe treatment would be very expensive

.

There is expert testimony in the record to substantiate that, although the costs

of good operating practices are unknown, they will be substantially

less than

the cost of end-of-the pipe treatment (A. 146)

.

The eventual rule may include some combination of these good housekeeping

procedures together with the proposal to increase the water quality standard for

TDS in intermittent streams receiving coal drainage (E . 73, 110, 128)

.

The Board notes that none of the parties in

these

proceedings has addressed

the dilution rule (Rule 604) . Part of the [*86) rationale of the rule against

dilution of effluents goes to accumulation of toxic pollutants . Chlorides and

sulfates are generally soluble and should not accumulate under ordinary

circumstances. Furthermore, they are not at all toxic below a certain

concentration. Therefore, the Board suggests the Task Force consider amending

Rule 604 to allow dilution of effluents by permit where good housekeeping

practices cannot reduce the TDS levels to an acceptable level, However,

dilution of effluents should not be permitted where groundwater must be used for

the dilution or where there is available only surface water which has more

valuable uses,

.

Concern was expressed at the hearing that the Board was being asked to adopt

a rule requiring compliance with a code of good operating practices which had

•

not yet been promulgated (A . 111, 134) . Subsequent to the economic impact

hearings, the code was completed and submitted to the Board . Further concern

was expressed that the record was deficient

in that there was no technical

testimony to the effect that compliance with the code of good operating

practices would in fact reduce water pollution (E . 17, 80, 144) . Control of

mining practices which [*87) are not related to the Board's statutory

jurisdiction would, of course, be beyond the Board's authority . Further

consideration of this problem led to the recognition that the proposed version

of Rule 605 .1 required compliance with the code and that this was an

unauthorized delegation of rulemaking authority to the Agency . The proposal has

therefore been rewritten to provide that the Agency issue the exemption if the

operator submits proof that he is utilizing good mining practices designed to

minimize. discharge of TDS. The Agency is authorized to promulgate the code of

good mining practices . Compliance with the code will be deemed evidence that

the operator is utilizing good mining practices, However, should the Agency

deny the exemption due to non-compliance with the code, the operator will be

tree on permit appeal to argue that

his practices, though not conforming to the

code, are designed to minimize the discharge of TDS . With this construction,

the Boa;d

is

not requiring compliance with the code and therefore technical

evidence to substantiate the code is not required . If provisions of the code

are not reasonably related to prevention of water pollution, this will be an

(*88) issue before the Board upon permit appeal .

Rule 605 .1(b) has been added to the Agency proposal . This provides

specifically that the permittee requesting exemption must file a permit

application. The Agency indicated at the hearing that this was the case and it

has-been added to the proposal for clarity

(n

.

26, 121)

.

The Agency proposal was vague on the question of the burden of proving

adverse effect on the environment. At the hearing the parties agreed that the

Agency should have the burden of demonstrating adverse effects . This is at

a

---

RPR.19.2001

12:59PM

NO.683

P.32/34

variance with the usual burden of proof in permit issuance. Section 39 of the

Act provides that it shall be the duty of the Agency to issue such a permit

"upon proof

.

.

. that the facility

. will not cause a violation of this Act

or regulations hereunder." The Board in this situation is by regulation

reversing the burden of proof (E . 16, 30, 34, 37, 79, 81, 212, 118)

.

At the hearings there was a discussion of whether the intent of the proposal

was that the Agency fix an interim limitation on the ?DS. The conclusion was

that under the proposal the Agency could not set such an interim limit. If the

Agency can demonstrate significant adverse [*89] effect on the environment,

then it must deny the exemption . In this case the applicant

will

have to

proceed by way of the variance route (E . 74, 78)

.

The original proposal specified "significant adverse effects on aquatic life

or existing recreational areas bf the receiving streams." This has been changed

to "effect on environment in and around the receiving water." The exemption

should be denied if there is significant adverse effect to riparian areas and in

general to the environment in and around the receiving water (E . 115)

.

606 Effluent Standards (P-306 ; 0-606)

Rule 606 sets effluent standards for mine discharges. Rule 606(a) has been

added to the Agency proposal. This makes it clear that the effluent limitations

contained in Part IV of chapter 3 do not apply to mine discharges . This has

always been the law. However, it is not clearly set forth

in

the proposal or

the Old Chapter 4 (E. 56)

.

Compliance with the effluent standards other than acidity and pH is

determined by the averaging rule contained in Rule 601 . Compliance is based on

a thirty day average with no 24-hour composite exceeding two times the standard

and no grab sample exceeding give times the standard . [*90]

New Storet numbers have been specified for acidity, ammonia nitrogen, zinc

and fluoride . The old Rule 606 regulated nitrogen at 5 mg/l whereas the new

rule specifies ammonia titrogen, measured as 11 .

The standards for zinc, lead and acidity are unchanged except for the Storet

number, The

pa

range has been tightened from five to ten to

six to nine (E. 45,

51) . The actS concluded that this would benefit the environment (EcIS 27 ; E

.

52) . The cost will be minimal since only one additional mine will be out of

compliance with the new standard (EatS 6, 39)

.

The standard for iron has been decreased from 7 to, 3 .5 mg/l and the standard

for total suspended solids (TSS) has been tightened from 50 to 35 mg/l (R. 46,

51, 53) . These changes are environmentally beneficial

-(EcIS 25, 32 ; R. 51, 53),

Under

the

averaging rule, these standards must be met on a thirty day average

.

They are doubled when measured on a daily composite. The new numbers are the

same as, federal guidelines applicable to coal mines under 40 CFR 434 . A recent

permit appeal to the Board revealed that there is some dispute as to whether the

federal or the existing chapter 4 standards are more stringent (Peabody coal

[*91] Co. v . EPA) PCB 78-296, September 20, 1979) . This is because the federal

standard, when coupled with the averaging rule and precipitation exception,

sometimes yields a higher number on. a 24-hour composite. However, the Board

concludes that it is more difficult to meet the lower thirty day average than

what the discharger must now meet and that this is a more stringent standard

(SOTS 25) . The economic impact will be minimal since most mines subject to the

rule must meet the federal guidelines anyway (EaIS 42)

.

Footnote 3 provides an exception for flows resulting from a 10-year, 24-hour

precipitation event. This exception applies only to a facility designed,

constructed and maintained to contain or treat discharge from less than a 10-

---

N-

APR.19.2001 12:59PM

year,

24-hour precipitation event, but designed to bypass a larger precipitation

event., This exception is taken from the federal standards of 40 CFR 434 .

Federal mine safety regulations mandate that holding ponds be designed to bypass

such rainfall for safety reasons . This exception has been added in order to

bring the effluent standards into line with these other regulations (E. 47, 56,

124)

.

The original Agency proposal was unclear as to which [*92] parameters were

subject, to the exception in footnote 3, During discussion of the EctS it became

clear that the Agency's intent was that the 10-year, 24-hour footnote apply to

all parameters except pH and acidity (E. 124) . The federal guidelines

appare;tly except pH and acidity also . pH and acidity are not exempt under this

version of Rule 606 . However, one would not expect to see excursions with

respect to these parameters during overflows caused by a large rainfall . The

large rainfall should not result in increased production of said

in disturbed

materials. A large flux of water has some buffer capacity and should dilute the

acidity so as to moderate p8,

The Economic Impact Study found that it would cost $ 40,000 to $ 90,000 per

mine to construct holding basins to contain a 10-year, 24-hour storm

(EatS

42)

E .

56, 124) . However, this conclusion may be affected by confusion in the

proposal concerning the extent of footnote 3 to Rule 606 . It has been argued by

the industry that the old Chapter 4 required Construction of indefinitely large

holding basins and that 10-year/24-hour basins therefore represent a cost

savings over the present requirements of Chapter 4 (Peabody Coal (*93] Co, v

.

EPA, op. cit .)

The fluoride standard has been increased £row B mg/l to 15 mg/i . In the

hearings evidence was presented to substantiate this relaxation of the standard

.

The old standard was based on experiments which were done in deionized water

containa.nq fluoride. In water containing other ions of hardness equivalent to

typical Illinois mine drainage water, the fluoride is not nearly so toxic to

aquatic life as had been previously believed (R . 117 ; 9. 52)

.

607 Offensive Discharges [P-307: 0-605(b)]

Rule 607 proscribes drainage containing settleable solids, floating debris,

visible oil, grease, scum or sludge solids . Color, odor and turbidity should he

reduced below obvious levels . This is Rule 605(b) of the present Chapter 4 and

Rule 40$ of Chapter 3 (R. 47, 51)

.

608 Deleted (P-308)

i

The Agency proposal contained a rule to the effect that an operator shall

conduct mining activities so as not to violate the Act and chapter 4 . This has

been deleted. A number of substantive rules are set forth in Chapter 4 and the

Act. it is unnecessary to make a rule against violating the other rules

.

Furthermore, a charge in a complaint that an operator had violated this [*94)

rule could be a Violation of due process in that it would not adequately inform

him of what he had done .

PART VII: COMPLIANCE AND EFFECTIVE DATES

Part VII contains transitional rules covering situations

which will arise

after the effective date of Chapter 4

.

Rule 701 provides that the chapter will

become effective ten days after filing with the Secretary of State . Rule 703

provides that the state permit requirement of Rule 401 becomes effective only on

expiration of outstanding permits . Outstanding permits will expire no later

NO .683

P.33i34

---

PPR.19.2001

1:00PM

NO.683

P.34/34

than three years after the effective date or upon the first' expiration of an

NPDES permit held for the facility

.

Rule 702 provides that a person holding an outstanding permit may make

application for a new permit either before. or after the effective date of this

Chapter. it is anticipated that operators of coal transfer and storage

facilities will want new permits . After the effective data the Agency may

require a new permit application on 180 days notice, Rule 703(d) provides for

expiration of the outstanding permit if the application is not made by this

date . Rule 703(0) provides for expiration upon issuance of a new state or NPDES

permit for the [*95) facility . if the Agency denies the new permit or takes no

action, the outstanding permit will remain effective for up to three years as

provided by Rule 703(x)

.

The NPDES permit requirement' of Rule 302 is the same as that found in Rule

901 of Chapter 3 . There is no need to stay enforcement of that rule since this

revision does not impose an NPDES permit requirement on any additional

facilities,

The provisions of Chapter 4, other than Rule 401 : State Permits, are

effective ten days after filing. At thistime the other rules of Chapter 4

become immediately effective. This includes all of Part vi, including the new

effluent standards of Rule 606. Holders of outstanding operating permits may be

subject to enforcement actions based on Rule 606 as provided by Rule 410 even if

their discharges conform with their old permit conditions

.

Rule 704 provides the requirement of old Rule 502 of an abandonment permit

continues to apply to operators who have opened

mines

prior to the effective

date. This will continue indefinitely until the operator is issued for the

facility a state of NPDES permit which contains an abandonment plan. Such a

permit may be issued under the procedures of Rule [*96) 702 and 703

.

This opinion, together with the Hoard Order of December 13, 1979, constitute

the Proposed Opinion and order of the Board in this proceeding .

-.-- -'Al

---

Exhibit

2

---

Rr.13.2001

12s31PM

oPINIONBY ;

[*1J

ANDERSON

OPINION; PROPOSED RULE. FIRST NOTICE

PROPOSED OPINION OF THE BOARD (by D . Anderson) ;

On February 7, 1983 the Illinois Environmental Protection Agency (Agency) and

the Illinois Coal Association (ICA) proposed that the Board amend 35 Ill . Adm .

Code 405 and 406 to add an effluent standard for manganese and to set a

permanent rule specifying the application of water quality standards to coal

mine discharges, Amended proposals were filed on May 27 and August 26, 1983

.

The proposal was the result of a joint industry/government group called the

-

Mine-Related Pollution Task Force

(MRP) .

On May 5, 1983 the Board designated this proposal as Docket A of R83-6

.

Docket B was utilized to extend the expiration date of Section 406 .201 beyond

July 1, 1983 (Final Order, Adopted Rule, October 6, 1983 ; 7 Ill . Reg. 14515,

October 28, 1983) .

Public hearings were held on May 12, 1983 at Springfield, and on May

27, 1983

at Ina. Since the pages are not numbered sequentially, Roman numerals will be

used to indicate the volume. Thus, (II-17) will refer to page

17 of the second

day of hearings

.

On Jply 5, 1983 the Department of Energy and Natural Resources notified the

Board that a negative declaration [*2) had been made . On August 26, 1983 the

Hearing 0£fieer closed the record except for final comments (Section 102 .163)

.

No comments were received during this period

.

Summary of the Proposal

The proposal will be discussed in detail in the order of sections affected

.

The fol4owing is a summary in

a

more informative order .

The proposal adds an. effluent standard of 2 .0 mg/l manganese, with a modified

pH standard where necessary for manganese treatment (Section 406 .106)

.

The proposal repeals the temporary exemption from the water quality standards

contained in section 406.201 .

This is replaced with a permanent procedure .

Mine discharges

will

have permit conditions based on the permanent procedure for

total dissolved solids (TDS), chloride and sulfate if ;

1

.

There is no impact on public water supplies ;

LEXSEE 1983 111

.

ENV Lb1XIS 72

IN THE MATTER OF ,. PROPOSED AMENDMENTS' TO TITLE 35, SUBTITLE

D; MINE RELATED WATER POLLUTION, CHAPTER I, PARTS 405 and

406

No . R83-6 (Docket A)

Illinois Pollution Control Board

1983 111 . ENV LEXIS 72

December 15, 1983

190 -. yG- P ~

---

RPR.13.2001

12:31PM

If the discharge exceeds the numerical levels, the permittee will need to prove

no adverse effect to the receiving stream (Section 406 .203) .

Finally, the proposal extends the TDS water quality provisions to abandoned

mine [*3) impoundments and discharges (Sections 409,109 and 409 .110)

.

Discussion of Proposed Amendments

Section 405 .109 Abandonment Plan ,

Paragraphs (b) (3) and (b) (4) have been added, and the old paragraphs with

these numbers moved down. These paragraphs specifically address the impact of

the special TPS provision of Section 406 .203 on discharges from abandoned mines

and on waters remaining in impoundments at such mines . This point first arose

in a Case decided during the process of adoption of new chapter 4 (IEPA v

.

Material Service Corp, and Freeman United Coal Mining Co ., PCB 75-4B8, 37 PCB

275, February 7, 1980)

(1-42)

.

strip mines frequently leave a final out which fills with water after

abandonment; slurry ponds and other impoundments may also be left

(1-40)

.

Some

of these may have a surface water discharge. Paragraph

(b)(3)

addresses the

discharge, while paragraph

(b)(4) addresses the waters in the lake or

impoundment .

Discharges from abandoned impoundments will have to meet the effluent

standards of Section 406 .106. if there was no TDS water quality condition

imposed under special procedures during active mining, the discharge will have

to avoid water quality violations. [*4] If there was such a TDS water quality

condition, the waters of the impoundment will have to meet the effluent

standards and make a part'of the showing required under the TDS water quality

Section 406.203(e)(1) and

(c)(2)

(1-38, 11-10, 14, 18)

.

Paragraph

(b)(4) applies to the waters in the impoundments, Which may not be

required to meet water quality standards during active mining, as for example,

treatment lagoons and settling basins . Impoundments which will not meet such

standards on abandonment will be required to meet the effluent standards after

abandonment, and to make part of the showing under the TDS water quality Section

406 .203

(c)(1) and

(o)(2)

(11-21)

.

section 406 .109(b)(4) applies the effluent standards as though they were

water quality standards (1-38, 11-11, 14, 18) . This will be sufficient to

ensure that any discharge will at least meet the effluent standards

.

The second and . third proposals limited the TDS procedure to impoundments

which did not meet the water quality standards during active mining . The Board

has deleted this requirement, since the water quality problems in a final cut

lake may not appear until after abandonment

(1-40)

.

.

The Board has added paragraph (*5] (e) to the proposals this requires

conditions in abandonment,plans to assure continued application of the TDS water

quality procedure

(1-37) .

section 405.110 cessation, Suspension or Abandonment

Paragraph

(e)(2) has been added to specifically require a showing that

Sections 405 .109(b)(3) and (b)(4) have been met before a certificate of

NO. 592

P.3/8

2 .

and,

The applicant utilizes "good mining practices" to reduce TDS production

;

U

3,

The discharge is less than 1,000 mg/l chloride and 3,500 mg/l sulfate

.

---

Section 406 .104 Dilution

This section was taken from Section 304 .102, which it tracks almost verbatim .

Paragraph (a) has been amended to make it clearer that the dilution rule refers

only to the effluent standards . This may have been lost when the language was

moved from Fart 304 to Part 406, which deals with both effluent and water

quality standards . Section 302,l02 allows dilution in a mixing zone before

application of the water quality standards

.

The Board does not construe Section 406 .104 as in any way limiting dilution

after tre ent in order to avoid, violation of water quality standards. This

dilution *6] may take place prior to discharge to waters of the State, so long

as it does not

interfere

with contaminant removal efficiency (1-62

(

67). If

effluent doncentrations are measured beyond the dilution point, concentrations

would have to be corrected .

Section 406 .105 has been renumbered to 406 .202: the water quality rule and

special TDS procedure

will be

placed together in a separate Subpart .

'APR.13.2001 12:31PM

NO. 592

P.4/s

abandonment is issued. The

permittee will

have to show that those sections will

be met to get approval of the abandonment plan, and also show that they were in

fact met before the certificate of abandonment is issued (1-37, 11 .10, 15)

.

Section 406,106 Effluent standards

An eff~uent standard of 2 .0 mg/1 manganese has been added to the table .

Manganese lie frequently regulated as an effluent parameter, and its omission

from the evised mine waste rules may have been an oversight caused by the

ambiguitylas to whether the effluent standards table of old Chapter 4

supplemented or superseded the effluent standards of old Chapter 3

(I-55)

.

The

Board regulates manganese in

effluents

other than mine waste at 1,0 mg/l

(Section 804 .124) . Federal regulations impose a limitation of 2 .0 mg/l on

mining activities, including, for example,, the acid mine drainage category (40

CFR 434.Ap(a)),

Tree

t for manganese is similar to iron,

involving

addition of alkali to

cause prgpipitation, followed by sufficient detention to allow settling . [*7]

Unlike iron, manganese may be too soluble at pH 9 to precipitate sufficiently to

,,,rrt'the

2 .0 mg/1 standard. Effluents will be allowed to go to

pB

10 if

necessary to meet the manganese standard (1-36)

.

(For related discussion, see

section 304 .125; R76-21, Opinion of September 24, 1981, 43 PCB 367, 6 Ill . Reg .

563),

The Board regulates manganese as a water quality standard at 1 .0 mg/i

(Section 302 .208) . The standard was based on fish toxicity (R71-14, 3 PCB 755,

4 PCB 3, March 7, 1972)

.

In her study of several streams impacted by mine

discharges, which is discussed below, Dr . Allison Brigham found that manganese

was found to account for the greatest amount of variance of Species diversity

and richness of several variables studied (II-31)

.

The manganese effluent standard will not apply to mine discharges which are

associated with areas where no mining activities have taken place since May 13,

1976 . This date is taken from Federal regulations regulating manganese

discharges from coal mining (1-36

)

54; 11-10, 12)

.

Section 406 .202 Violation of Water Quality Standards

This section has been moved from Section 406,105 . Subpart A of Part 406 will

deal only with effluent rules, (*8] while Subpart B will deal with water

---

APR.13.2001

12:32PM

NO . 592

P.5/8

quality rules . The TbS procedure of the next Section will thus appear next to

the Section which it modifies .

Section 406 .203 Water Quality-based TDS Permit Conditions

TDS includes all material dissolved in water, as opposed to total suspended

solids. in Illinois coal mine discharges TDS consists mostly of chloride and

sulfate

(1-49) .

Underground mines often have high chloride levels from saline

water encountered in mining. Surface mines often produce sulfuric acid from the

action of air and water on sulfur minerals exposed in mining . Neutralization of

the acid produces sulfate salts, and further increases the TDS because of the

dissolved solids in the alkali which must be added

.

The problems with treating for

TDS have been adequately addressed in prior

Board Opinions, The Board repealed the TDS effluent standard in R76-21, supra,

finding that the only treatment technologies involved large amounts of energy

consumption, and produced concentrated brines which still required ultimate

disposal. Regulation of TDS discharges was left to enforcement of water quality

standards of Section 302 .208

:

[*91

In R76-20, 17-10, the Board recognized that coal mines faced a special

problem with TDS an that they produced high TDS discharges, but were often

forced to locate upland, away from major rivers with dilution adequate to avoid

violation of water quality standards. In response, the Board adopted the

temporary exception procedure now found at Section 406 .201 (Opinion and Order of

July 24, 1980, 39 PCB 196, 260)

.

The permanent TDS rule follows the temporary exemption in some respects ; the

applicant is required to demonstrate that he is utilizing "good mining

practice$", and that there will be,,rig„ apadt on, public water Supplies

(I-30)

.

However, unct~er the pesmarieri

su1e,

the permutes, rathSf1 haii'the Agency, will

be required to demonstrate no impact on the receiving stream

.

The TDS procedure creates a presumption of no adverse impact on the stream if

discharge levels are less than 3500 mg/1 sulfate and 1000 mg/1 chloride

(I-30)

.

if levels are higher, the permittee will have to prove,pg,advgrse

..impaot. This

will involve actual stream Studies

to

be"done'bp the permittee, involving a

demonstration of the effect of the existing or proposed discharge levels an the

stream, not a showing [*10] of compliance with water quality standards (1-31,

46,61)

.

Ig,.)},ca4000,and 3,500 mg/l numbers are met, it is assumed that there ip 49

adverse impact on the fecoi"v.,ng'stream. This is a presumption which could be

rebutted by boiler"dvidenbe £ntrddueed into the record in the permit proceeding

before the Agency .

If the water quality-based TDS condition is granted, the discharge will not

be subject to the, water quality standards for sulfate, chloride and total

dissolved solids. The permit will contain conditions requiring monitoring for'

these parameters and limiting discharge concentrations (1-47, Ii-17)

.

The proposal would have allowed exemption from the water quality standards

for iron and manganese, as well as the TDS related contaminants . The Board has

dropped this from the proposal . The logical relationship between the

presumptive sulfate and chloride levels and the iron and manganese levels is

tenuous at best. Furthermore, there exists a simple, relatively inexpensive way

to treat for iron and manganese. As noted above, manganese concentration was

chloride

500 mg/1

Sulfate

500 mg/i

TDS

1000 mg/l

---

APR.13.2001

12:32PM

found to be adversely affecting stream conditions in sites affected by mine

discharges. These discharges will have to avoid causing [*11] water quality

violations,

General Use

Effluent Std .

Water Quality Stdg

.

Iron

3 .5 mg/l

'1,0 mg/l

Manganese

2 .0 mg/l

1,0 mg/1

The presumptive levels refer to concentration of sulfate and chloride, with

no TDS level specified .

As

a matter of experience, TDS is mostly these two ions

(1-49)

.

Sulfate and chloride concentrations generally correlate better with

environmental impacts than

TDS

(1-33 ; Ex. E, p . 29, 11-32) . Monitoring of TDS

will continue to provide a check for the possible presence of large

concentrations of some other material (I-41, 11-17)

.

Exhibit E is a study entitled "Acute Toxicity of Chlorides, Sulfates, and

Total Dissolved Solids to Some Fishes in Illinois" by Paula Reed and Ralph Evans

of the State Water Survey. They studied effects of TDS and constituents on

channel catfish fingerlings, large mouth bass fingerlings and blue gill

fingerlings . They found the following 96-hour median tolerance limits (1-33,

Ex. E,

Sulfate

11,000 to 13,000 mg/l

Chloride

8,000 to 8,500 mg/1

`,

TDS (sulfate)

14,000 to 17,500 mg/l

TDS (chloride)

13,000 to 15,000 mg/l

The presumptive values for sulfate are set at about one-third of the 96-hour

[*12] median tolerance limit ; those for chloride at about one-eighth (1-33) .

This is less stringent than the general practice of setting water quality

standards at one-tenth the median tolerance limit (Section 302 .210) ; however,

this departure is justified for these contaminants, which are highly soluble,

not toxic in the usual sense and not expected to accumulate or have any chronic

effect .

The presumptive levels are also well below the levels considered safe for

livestock watering

(1-34)

.

If the discharge is above the presumptive levels, the operator could elect to

treat the effluent, or to obtain a source of fresh water to dilute it to below

the presumptive levels (1-61, 67) . However, the thrust of the proposal is to

allow permittees to adopt operating practices designed to reduce TDS production,

rather than to require end-of-pipe treatment .

The Ardency is to approve the water quality-based TDS condition only if the

permittee proves that it is utilizing "good mining practices" designed to

minimize TDS production. The Agency may promulgate a code of good operating

practices, in which case eomplianae with the code would be prima facie proof of

use of good mining practices .

A

"final" (*13] draft of the code has been

filed as Exhibit H. The 9oard has proposed Sections 406 .204 through 406 .208 as

a definition of "good mining practices" . These are taken from Exhibit H.

Section 406 .204 defines "good mining practices." The Agency is to consider

whether the operator is utilizing the following practices,

NO. 592

P.6/8

---

RPR

. 13.2001

12:33PM

1 .

Practices which may stop or minimize water from coming into contact with

disturbed areas

.

2. Retention and control within the site of waters exposed to disturbed

materials

.

3 . Control and treatment of waters discharged from the site

.

4, unconventional practices

.

These practices are each further defined in Sections 406 .205 through 406 .208 .

These Sections are not intended to require that each of these practices be

carried out at each site; indeed, some of the practices would exclude the use of

others. What the Board intends is that the Agency review each of these

practices to determine if the operator is doing all that is economically

reasonable at the site to prevent the production of TDS discharges or to

minimize their impact .

The proposal is in practice a modification to the Illinois NPDES program,

since all mines with point source Surface discharges [*14] are presently

required to have NPDES permits . Section 302(b) of the Clean Water Act allows

the State to establish procedures whereby dischargers can avoid application of

water quality standards where the discharger demonstrates at a public hearing

that "there is no reasonable relationship between the economic and social costs

and benefits to be obtained ." The procedures of Section 406 .203 will arise in

the context of NPDES permit modification . Hearings required by the Clean Water

Act will be provided pursuant to section 406 .203(a)

.

Based on the record before it, the Board has determined that, for coal mine

discharges taken as a class, which have levels of chloride and sulfate less than

the presumptive levels, which are not upstream of public water supplies and

which are engaged in good mining practices, the cost of treatment outweighs the

value of any .improvement in stream quality by many orders of magnitude .

Furthermore, the societa]4 costs associated with the effective prohibition of

mining in much of Illinois would be enormous (R 50, 64) . The proposed

procedures allow the Agency to confirm this conclusion in particular cases, with

an opportunity for a public

hearing. in the [*15] case of discharges which

exceed the presumptive level, the Agency will make

-a case-by-case determination

pursuant to permit application including actual stream studies conducted by the

applicant (Proposed section 406.203(c)(4)

.

in rune, 1963 there were 45 active coal mines in Illinois, 19 surface and 26

underground. Of these, 31 are operating under the current exemption of Section

406 .201, 24 surface and 17 underground (Agency comment of August 3, 1983 in R83-

6B) . The remaining 14 are assumed to be able to meet the current water quality

standards and are not impacted at all by the permanent TDS procedure

.

The 31 mines operating under the temporary exemption should be able to easily

demonstrate that they are using good mining practices and that they are not

adversely impacting public water supplies, since these requirements are not

altered. The mines with less than 1000 mg/1 chloride and 3500 mg/l sulfate will

qualify under the permanent procedure automatically . The main difference will

be the mines which are above the presumptive levels . They will be required to

demonstrate no adverse impact on the receiving stream. This could cost quite a

lot of money. If they are unable [*161 to make the showing, expensive

treatment may be required for continued operation

.

As

noted, the 31 potentially affected mines include 14 surface and 17

underground mines . Sulfate should be the limiting factor for surface, chloride

NO . 592

P.7/8

---

I

u

RPR.12.2001

12:33PM

NO.592

P.8/8

for underground

mines .

It appears that at the time Exhibit

C

was prepared, no

surface mines exceeded the 3500 mg/l sulfate level, but that four underground

mines' exceeded the 1000 mg/i chloride' level (II-52) . Thus a maximum of four

underground mines are expected to have to make stream studies. These are likely

to cost in excess of $ 10,000 each .

The coat of complying with the Part 302 water quality standards through

application of end-of-pipe treatment technology was discussed at 39 PCB 251

.

updating these costs to the fourth quarter of 1982 infers construction costs of

$ 195 million and annual operating costs of $ 52 .8 million (11-56) . However,

the number of

mines

in the State has decreased, possibly reducing the aggregate

estimates

.

Any

costs associated with compliance with the exemption procedure

must be judged as savings with respect to the cost of current regulations

.

costs of various good mining practices are

estimated

in Nxhibit C, although

[*17) it is difficult to summarize these concisely . These costs are less than

the cost of treatment }Sy orders of

magnitude .

The initial costs have already

been met under the temporary rule, although there may he continuing costs

associated with some practices .

The proposal creates a special TDS water quality rule for a category of

dischargers. The Board has proposed to treat these dischargers differently for

several reasons unique to this industry group . Section 28 of the Act allows the

Board 'to make "different provisions as required by circumstances for different

contaminant sources and for

different

geographical areas"

.

At the outset, the Board notes that coal mines represent an easily defined

category of dischargers. It is the only industry group with high TDS discharges

which has made itself known to the Board by filing a general proposal . The

Board would consider

granting

special rules by industry category to any group

should that group propose rules to it

(Section

28 of the Act and 35 111, Adm

.

Code 102.120)

.

Havipg .defined a category of TDS dischargers, it is possible to be more

specific as to the identity of the

TDS

constituents: it is either primarily

chloride or sulfate, (*'18) and not often both . This allows the use of

chloride and sulfate toxicity data, which is better defined than . for TDS in

general

.

Since there is no economically reasonable treatment available for TDS

discharges, compliance with the water quality standards depends on process

changes and location close to large rivers with adequate dilution. Existing

facilities have the variance and site-specific rulemaking procedures to ease any

difficulties . However, it has proven possible to propose a general regulation

for mines, both new and existing

.

The most unique feature of coal mines is their relative inability to locate

close to major rivers} instead, they must locate where coal deposits are

located. Thus choice of location is largely eliminated for this category of

dischargers

.

Restricting consideration to a single industry group allows the Board to

adopt meaningful regulations taking account of the processes which produce the

TDB. It would not be feasible to address such a problem for industry in

general .

Conclusion

In a separate Order the Board proposes to adopt the amendments to 35 Ill .

Adm. code 405 and 406 discussed above . The record will remain open for comment

for a period (*191 of 45 dayS after publication in the Illinois Register

.

This Proposed opinion supports the Board's Proposed Order of this date .

---

Exhibit 3

---

---

Exhibit

4

---

05(24/2001 12:10

21747705

FRED HUBBARD

PAGE 02

MattHuberICOmmerciai-News

iouay'sstudents,even those

Mentiofferingsinanaverage 3

Students from Northeast Elements Magnet School eat In eelementary nding bet scb

are week could include submarine n

demademanding better tas. ..j and sandwiches, Aizzasandchicken n

their lunoh at the school . Tha .U

•S

. Lepartment'of Agricul- more nutritious school lunches, tenders- a ii student favorites fl

lure requires that school meals meet recommended daily' Brenda Demos, the Danville and one "Sunday dinner-type

nutrition requirements .

District 118 food service dines- meal" on Wednesdays, Demos

. bi

Zoning

Preparing for Gas, and Ste

P, 4j

am S

opposed

in Elwood

Township

Staff Writer

RIDGE FARM - Elwocd

Townshi voters made it clear

WednMy night that they

don't want zoning .

By a vote of-11, township

officials were told that the

Ridge Farm, Vermilion Grove

and Olivet areas do not want to

.

be considered far zoning .

c,?, An effort to institute zoning

had developed, Township

Trustee Roger Kink said, from

.

a group concerned about how a

s

roposed mine near Vermu

P. ?

rove. would affect the Little

H

.

. . . Vermilion River

.

But Rose Elrs,"representing

a group opposing the proposed

mine, said her group,opposea

.

zoning.

"Noonehaseversaldthatour

up is forzoting,'Ellissaid . "I

11 vote by ha21 d vote against

aon3ng. I am not ashamed of

i tat believe ."

"

•R

ick Rnight a county boaiCt .

tjiember from Indianola and

x(fimg opponent, said "zoning

causes landervmers to lose cun-

trol of pr$nerty;and that proper-

ty. can only be used for certain

purposes°

How many people would Gore t o address nation 4,

.ion to

hand over their checkbook with

signed checks to someone you

didn't know?"Knight said."Zon-

the

ing does the same thing to yow The Associated Press

property rights forever."

you

He said he has spent the last LOS ANGELES - Democ- rreeal,I

four years collecting data on ratic presidential nominee At G

zoning.

Gore a political understudy no

day -

He said that if zoning is more, is urging Americans to bled

enacted Ridge Farm would be reject Republicans who would frien

under direct control of a zoning take them "bade, to the past,"

board and taxes would increase. and promising to deliver pros-

°tom

Healsosaidthat zoningdoesnot perity, progress and positive

balm

Please see ZONING/Page 2A change if he wins the White

u o i name

House

Se

We're the new guard," the

Core'

In the twin vice president said in a preview conve

of the nationally televised ticke,

address hedellvers tonight at

Associate) Press P

.

Areas In Vermilion

:

.;

rog,

the Democratic Na acceptance

that have ZDYr !

Vice President Al Gore surprises his daughter, Karenna Gore ship i

i

That acce eptance

fng .regulfltions''

speeclxi

. :

speesavitalstepinGiscomt Schiff.aftershF .mnkoi~+~~^^

Laurv G

Norman Sklnrr®r works atop, a acaifold, setting new rafters on .a round barn at his farm near Perr

Guilt in 1918, was moved to the farm from Alvin last year and is one of many historical farm iter

play during this weekend's Gaa and Steam Show,, located three miles west of Perrysville on in

---

2174770573

FRED HUBBARD

1

-p

the Lime he spent unaer the Vietnam

dozen, u

m

campaign a

ar

•

sun;: Bay~ess said.

rever the

anaeswith(

reseionalcandi arcs

exposurewas,itwasove, ,aeatsome

advisers

rk

Ie still plans to cam-

i n

a9/orSen.MikeDcWlile

7

.

•

t

°

7

in.fhefutuie.g

. .p

one

our

r

s

°

"~

f

a

-0

m

After

the

December

1993

n 2oo0 Aaenwaath"r,

no :

supports (McCa[n's GOP pttsideu

•

m anoma surgery t

e

r

ai

c

s

,

,

tie! campaign

Those

who

havetalkedtoMcCain

McCainregularly hashadauspicious

or his wife. Cindy, said he was upbeat often basal

o

carcinoma,

meremoved

he has a very good

where

-

hls has

y goo

d to lots of here

a

aggressive and most common type of

stands- or at least he thinks he

skin cancer.

'

dues," said Sert John Kerry, I3-Mass

.,

The American Cancer Society

who talked to Mrs, McCain on

estimates 47,700 Americans will be

Wednesday Kerry

•

appeared on

diagnosed with melanoma this year,

CNNsZarryKingLfr

and7,700willdie

"I can asswe you he's in wonderful

The more sunburns, particularly

spirits. Beyond that. I can't tell you early in life, the higher your risk .

anythi g"said DebGullettaformer lair-skinned people, consequently,

McCain staffer and longtime friend

are at highest risk Also at high risk

The news of McCain's cancer

are people with more than 20 moles

calve on the third day of the Democ- scattered around their body,

U

u {

As the system pushes further

east, rain was predicted over east-

ern New York and Pennsylvania,

down to West Virginia and Ken-

tucky, and across Into Missouri,

Kansas, and northern Oklahoma .

Showers also were expected

over the Northeast and Atlantic

seaboard. Maine, New Hampshire,

Vermont and Massachusetts were

forecast to bear the brunt of the

storms.

Illinois numbers (Wednesday)

Pick Three-Midday 3',3 .9

Pick Three-Evert_nw&O

.0

Pick Four Midday; §-7

.

0.5

Pick Four-Evening 7-245

Little Lotto: 1&24-25-26-28

Lotto. 1-34-20-3648

Lotto Jackpot $3 million

Big Game: $21 million

TAL-NEWS

2

(217) 446-1000

No.125,136tb year

"l

Commexc(alNews(U8PSO48-580)Is

publidiod

daily

by

the Commercial-News,

17W; Zae

thSt„telephone(217)446&(000.

FeftgdiC bostaeepaid inDanville,It

618

a> : :

:;P()STM'ASTPRn,17

NWon

ortorth

c

StS

to

U

";CSIMI

ie

clal.News,Wt:

;paaa911c.IL6]832

U

Newspaper Holdings, Inc

.

'

GwomercioLNew,by5wn.weekdaysand7amweek-

4&9C4Am(0W)7292992before7psscsoekdavvand

2

U thin vermarooCounty andpoeoais,o sonsiaeazs20OSO

9t P5oaaeremitbyoheokar7relalmoory'mt..

U forconterbm So1ivoo tS3bDperwetmetorroute

Zoning

Lunch,

Continued from Page I A ,

restrict such enterprises as hog

farms and landfills from coming into

town,

No one spoke on behalf of zoning.

A petition for a special meeting to

consider zoning was signed by the

required 15 residents, and a meeting

eras conducted Aug. 9, with 32 pre-

sent

It looked like they might pass

zoning (on Aug. 9) ;' Knight Said.

"That was a reason why I pushed to

extend the meeting to (Wednesday

night)."

Seventeen residents that night

voted to continue the meeting; 15

voted against it

"There were a whole bunch of us

who wanted more lrnowledge before

we voted" Township Supervisor Jan

•

ice Truelove said. 'This week has

given us time to get that. We needed

this week, You can see the difference

between 32 voters and 382 (the nurn-

Continued from Page 1A

for a soda

Aquicklookinalunchsack today

might reveal cheese and crackers,

chips and salsa or fresh raw vegeta-

bles.

KolbyRiggle,thedire~ptorofenvi-

ronmental health at the Vermilion

County Health Department, howev-

er, warns that there are some things

parents should avoid while packing a

lunch -

milk, eggs and

non-

processedmeats, such as fried

chick-

en and tuna salad These foods spoil

too quickly and can cause aa child to

get sick

Bologna, ham and most cheeses

are processed and

.

have a longer life

exnectancu Rinnle said .

berwhovoted Wednesdaynigbt)'

Township Trustee Roger Klink . a

zoning advocate and moderator of

the meeting, said those supporting

zoning were intimidated .

There was no purpose to be

served in becoming a target," said

Klink, who petitioned for the special

meeting,

The attempt to get zoning

installed is to protect local communi-

ties, their citizens and environment,

People feel that they are going to

have their rights taken away, rather

than strengthened,inmyopinion,'he

said

I am not disheartened by the

vote. The purest form of govern-

ment is the grassroots movement

and that is what this is. The meet

,

ing served as an education medium

and as a basis to start further dis-

cussion,"

Truelove said there are about

1,100 registered in the township . It

appeared more than 400 . people

attended Wednesday night's meet-

ing,but ally 382 were eligible to vote,

Truelove said

beginning and end of the school year,

even these precautions might not be

enough

"On hot days, it would be better to

send peanut butter and jelly if your

kids will eat it," Riggle said 'Overall.

thouAltissaferformostkidstobuy

school lunches." The Scri}rps Howard

News Service contributes! to this earti-

do.

Pawerball

(Wednesday)

15-16-27-44-47

Ball: 14

Jackpot $10 million

Corrections

The CommercialNews will correct

errors occurring in itc flaws

slrsya. If

PAGE

03

Avenue .

•

Take Off Pounds Sans

meeting following, senior

Gill :

•

Danville RenotTeam 1

Aug .

EVE

DA

noon,)

CH

]age p

farmer

-,f

open

COVINGTON, Ind . :

F

RIDGE FARM: tiende

-3 p.m . : Crafts, flea ma .

-4:30-7:30 p.m . : Lions C

- .5-9 p.m . : Cruise in/car

7-10p.m, : Class Reunic

-

8 p.m.

:

Awards presen

Submit Items for the cat

Commercial-News, PO. Bc

$

31

For Only

Let

your PEP

you the cash fi

any good purpos

Contact Kathy

in ©anville 217-

PERS(

l FIN]

8

PCIdy

25

PCIdy

Phoenix

Pinaeourgh

110

75

e

69

PC(*

PCIdy

2

Pertly

Polhlrd,MaI,w 76

65

,82PCIdy

49.M Ch

49

Rein

Portw4om . 79

ss

64

Or

,S2

Or

Providence

42

57

Rein

Ralaw

93

68

Mr

47

sir

RapdCky

87

69

Cedy

Cir

Rely

97

55

CIr

6

.01

Cl,

Rld,mmd

02

N

CIr

56

Cloy

6acremento W

59

Or

77

PCIdy

St Leud

91

77

Me,

78

CIr

71

Papa

belt Laka Cny 9e

W

75

PCIdy

CIr

ear Mlonlo

97

72

son 0109>

54

70

PCIdy

W

Po

wy

Wn

58

ctr

58n Frondew 78

51

.OS Rein

Son Juon,P.R. 80

77

PCIdy

74

PCIdy

6ontsPo

91

55

PCIdy

75

Polity

St Ste Maria

04

57

Clay

7e

Pcldy

Seattle

Shrvveport

M

1p2

75

C¢

70

Cb

75

PCby

61WXFall,

78

60

A5 CIW

Is

PCIdy

spokpno

82

50

CIr

76

off

SY."

75

67

AiPCIdy

78

.119Play

Tw nrP

97

16

Powy

72

play

Topeka

104

76

PCIdy

Tuam

MS

79

POW

si N clay

Tulsa

500

78

PCIW

72

Pcldy

Waehn93P .C,64

72

Cir

is

PCIdy

WIptna

103

72

POW

5

CIr

WIltos-Sayte 70

87

.07PCIdy

71

.12

CIr

WIImnnAel.0s

71

.02

CIr

SI

CIr

71

Cir

55

CI,

Nslimal Te npbfMure EXIremoF for

ARIO+fo to Doath Veil,y Ca

It

Foley

60

Clt

71

CIr

•

M

Low 25 at Tmkee Ca