May 24,
2001
Ms . Dorothy M. Gunn, Clerk of the Board
ILLINOIS POLLUTION CONTROL BOARD
100 West Randolph Street, Suite 11-500
James R. Thompson Center
Chicago, IL 60601
Re
:
Prairie Rivers Network v. Illinois
EPA & Black Beauty Coal Cc : PCB 01-112
(Appeal From IEPA Decision Granting
NPDES Permit)
Dear Ms. Gunn
:
Enclosed please find an original and nine copies of Post-Hearing
Memorandum by Vermilion Coal Company (Amicus
Curiae)
and Notice
of Filing said Post-Hearing Memorandum in the above cause
.
Sincerely yours,
Fred L. Hubbard
FLH :jml
enc :Post-Hearing Memorandum (Original & 9 Copies
:Notice of Filing (Original & 9 Copies)
~ltonne
at Yaw
495
4"oil%t
w4ww'w
9-4eet
9. G.
°Imc 92
gan'vd4, #&&4o4 69854-0072
297-446-0944
Sax: 297-477-0575
RECEKVED
CLERK'S OFFICE
MAY 2 5 2001
STATE OF ILLINOIS
Pollution Control Board
BEFORE THE ILLINOIS POLLUTION
PRAIRIE RIVERS NETWORK
Petitioner,
V
.
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY and BLACK BEAUTY COAL
COMPANY
Respondents
.
FRED L . HUBBARD
Attorney at Law
415 N. Gilbert Street
PO Box 12
Danville, IL 61834-0012
Telephone: (217) 446-0144
.
Printed on Recycled Paper
NOTICE OF FILING
PLEASE TAKE NOTICE that on this date, May 24, 2001, I filed
with Ms . Dorothy M. Gunn, Clerk of the ILLINOIS POLLUTION CONTROL
BOARD, James R. Thompson Center, 100 West Randolph Street, Suite
#11-500, Chicago, IL 60601, the attached POST-HEARING MEMORANDUM
BY VERMILION COAL COMPANY
(AMICUS
CURIAE), which document was
filed by mail
.
PCB 01-112
(APPEAL FROM IEPA
DECISION GRANTING
NPDES PERMIT)
RECEIVED
CLERK'S
OFFICE
MAY 2 5 2001
STATE OF ILLINOIS
CONTROL BOARD
Pollution Control Board
Fred L . Hubbard (Reg
. No
.
1275682)
Counsel for Vermilion Coal Company
415 N. Gilbert Street,
Danville, IL 61834
PO Box 12
BEFORE THE ILLINOIS
PRAIRIE RIVERS NETWORK
)
Petitioner,
)
PCB 01-112
v
.
)
(APPEAL FROM IEPA
DECISION GRANTING
ILLINOIS ENVIRONMENTAL PROTECTION
)
NPDES PERMIT)
AGENCY and BLACK BEAUTY COAL
)
COMPANY
)
Respondents
.
)
POST-HEARING MEMORANDUM BY
VERMILION COAL COMPANY(AMICUS CURIAE)
VERMILION COAL COMPANY cites the following facts, history,
legal authorities and arguments with the intent to aid the
Illinois Pollution Control Board in resolving the issues before
it in this matter pursuant to the Petition of Prairie Rivers
Network
.
References :
RECi jW
;
CLRRWs
P
m=J" t
MAY 7 5 ?.0(11
POLLUTION CONTROL BOARD
STATE OF ILLINoJfj
Pollution Contra! figm,
PRAIRIE RIVERS NETWORK :
An Illinois not-for-profit
corporation referred
to in this Memorandum as PRAIRIE
RIVERS
.
The corporation has among its stated purposes the
conservation and preservation of waterways in the State of
Illinois
.
BLACK BEAUTY COAL COMPANY : Referred to in this Memorandum
as BLACK BEAUTY. A corporation having its principal office
in the State of Indiana and being authorized to do business
in the State of Illinois, including the mining of coal
.
BLACK BEAUTY is the applicant for a series of permits to
permit the operation of a coal mine in Vermilion County,
Illinois, known as the VERMILION GROVE MINE . The NPDES
Permit related to that mine is the subject of this
proceeding
.
VERMILION COAL COMPANY: A corporation authorized to do
business in the State of Illinois which owns the coal
subject to the Permit in this matter to be mined by BLACK
BEAUTY. VERMILION COAL also owns one or more surface sites
and has sought to intervene in this proceeding . That
intervention was denied. In this Memorandum, VERMILION COAL
COMPANY shall be referred to as VERMILION COAL
.
2
ILLINOIS EPA :
The ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
is the agency having the principal responsibility of
investigating, reviewing, conducting hearings, receiving
comments and,
otherwise,
issuing any permit pursuant to the
NPDES rules. For the purpose of this Memorandum, the
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY is referred to as
the AGENCY
.
U . S. EPA: The national agency responsible for
implementation of environmental laws, including the Clean
Water Act and the Clean Air Act, is referred to in this
Memorandum as U . S. EPA .
ILLINOIS POLLUTION CONTROL BOARD
:
The ILLINOIS POLLUTION
CONTROL BOARD is referred to in this Memorandum as THE
BOARD .
History
:
BLACK BEAUTY filed an application for a surface coal mining
and reclamation operations permit dated March 8, 2000,
received by the AGENCY May 15, 2000 (R.616-632) . The Permit
includes 447 .6 acres in Vermilion County, Illinois, near an
unincorporated Village of Vermilion Grove . That Permit was
addressed to the provisions of Subtitle D of Title 35 of the
3
Illinois Administrative Code, being the section entitled
"Mine Related Water Pollution". An NPDES Draft Permit was
issued. The Draft Permit appears as IEPA Exhibit 4(R .10-
21 and R.759) . Notices were given. Public hearing was
held and comments were received by the AGENCY . The issues
raised by PRAIRIE RIVERS in their petition in this matter
were set forth in a letter dated October 27, 2000, directed
to the AGENCY designated as IEPA Exhibit 59(R .388-393)
.
Substantial economic benefit and need was shown (R .320 and
R.933) . On October 30, 2000, the U . S . EPA communicated an
objection to the Permit (R .931) . On December 22, 2000, the
U . S. EPA sent a letter to the AGENCY withdrawing its
October 30, 2000, objection conditioned on a Final Permit
being identical to a draft sent December 12, 2000 (R .942-
951) . The Final Permit was issued in the form approved by
the U . S. EPA and PRAIRIE RIVERS appealed that decision to
THE BOARD. Throughout this process, numerous comments,
correspondence, reports and documents . of every kind and
nature were received by the AGENCY and made a part of the
record, consisting of approximately one thousand pages
.
After PRAIRIE RIVER'S appeal, a hearing was scheduled
.
Numerous depositions were taken. Two days of testimony were
received into evidence, along with substantial evidentiary
depositions and exhibits
.
4
Standinq
:
The Environmental Protection Act provides, with regard to an
appeal of this type that
a third party may appeal a
determination by the AGENCY (EPA) with a petition pursuant
to Section 40(e)(1) and
(2)
.
The petition must be filed
within thirty-five (35) days of the date of the AGENCY'S
decision and must include
:
"A. a demonstration that the petitioner raised the
issues contained within the petition during the
public notice period or during the public hearing
on the NPDES permit application, if a public
hearing was held; and
B .
A demonstration that the petitioner is so situated
as to be affected by the permitted facility ."
The language "so situated as to be affected by the permitted
facility" has not been determined in any court . While
several of the members of PRAIRIE RIVERS would appear to
have individual interests that might be affected in that
their residences are near the mine site, some of them are
connected to the Georgetown public water supply, and some
5
of them have testified with regard to recreational use of
the Little Vermilion River, there is no testimony that
PRAIRIE RIVERS itself, as a corporation, is so situated as
to be affected by the permitted facility . PRAIRIE RIVERS,
as appears from the record, is headquartered in Champaign,
Illinois, which is not within the watershed of the Little
Vermilion River as appears from ordinary maps, including
those admitted into evidence in this matter . There is no
evidence that PRAIRIE RIVERS is or was created by a group of
affected citizens . Post cards received in this case by THE
BOARD indicate that PRAIRIE RIVERS members reside at all
boundaries of the state . The only way in which PRAIRIE
RIVERS is affected by the permitted facility is the same way
that all concerned citizens are affected by any mine and its
attendant operations . If the Legislature intended that the
concern most of us have in a desire for a clean environment,
including water and air, is sufficient to permit an appeal,
the language should probably have been written as
"interested party" . To interpret the word "affected" as
suggested by PRAIRIE RIVERS is to permit every person, firm
or entity to seek an appeal . It is suggested that the
Legislature intended something more than a general public
interest or interest in clean air and water and endangered
species, particularly, as an interest that was "affected"
6
sufficient to permit an appeal
.
To define as being
"affected" as liberally as would be required to permit the
PRAIRIE RIVERS' petition could inundate the AGENCY and THE
BOARD with numerous and conflicting appeals
.
Draft Permit
.
The application (R .616-632) and the draft permit (R .759-765)
that were issued were both filed and issued pursuant to
35 Ill . Adm. Code Part 406 in addition to other parts of the
Code. Part 406 of Title 35 Subtitle D includes the rules
and regulations promulgated by THE BOARD with regard to mine
waste effluent and water quality standards . VERMILION COAL
contends that Subtitle D is the law governing the issuance
of the permit . A permit issued within the standards set
forth in Part 406 would appear to comply with the applicable
law, including rules and regulations . In this case, because
of concerns raised by other governmental agencies, depart-
ments, commissions and concerns raised by the public and
other persons commenting, including PRAIRIE RIVERS, the
AGENCY modified the Final Permit in a more restrictive way
to decrease certain discharges and to impose special
conditions developed in conjunction with the U . S . EPA
(R.942, R.972) . The Final Permit (R .972 at 973) still
references 35 Ill . Adm. Code Part 406. The fact that more
7
restrictive language from other parts of Title 35 was used
in the Final Permit does not mean that Part 406 does not
continue to apply . Because standards may have been used
from Subtitle C does not mean that all provisions from that
Subtitle must be applied to the Final Permit
.
Biological or Toxicity Monitoring
.
There is nothing in 35 Ill . Adm. Code SubTitle D that
requires any prescribed biological or toxicity monitoring
except that provided by Section 406 .102 . That monitoring is
included within the Permit. In urging requirement for
biological or toxicity monitoring, PRAIRIE RIVERS is
attempting to impose requirements not contained within the
Administrative Code as adopted by THE BOARD. More particu-
larly, there is no scientific evidence that such testing
would improve water quality
.
The Record Supports The Final Permit as Issued .
PRAIRIE RIVERS has not introduced any evidence in
contradiction of any point in the record on which the Permit
relies. Evidence in support of a petition is well-
documented, such as statements of economic and social
impact (R.612 and R .320), the Stormwater Mixing Zone
Evaluation (R.981 and R.596) and the AGENCY'S Public Hearing
8
Responsiveness Summary
(R.555)
.
The petition raises
drafting questions,
factual interpretation questions, and
whether or not analyses were complete or adequate .
PRAIRIE
RIVERS introduced no evidence as to any proper mixing zone
.
It introduced no evidence as to proper assumptions if any
assumptions were wrong . It assumed there would be
violations without any evidence to that effect . If the
anti-degradation analysis was incomplete and inadequate,
there was no evidence showing how it was incomplete or in-
adequate and what a complete and adequate analysis might
have revealed. There is no evidence as to the exacerbation
of water quality for the water supply of the City of
Georgetown. The record includes many statements of
objection and raises numerous questions
.
The Hearing in May, 2001, added little to PRAIRIE RIVER'S
evidence. The testimony in support of the PRAIRIE RIVERS
petition consisted of testimony by Mr . Moore and testimony
by Rosa Ellis. Mr. Moore's testimony was to the effect that
other permits in other jurisdictions have, from time to
time, had different requirements or conditions and that he
thinks that adequate testing and supervision is important
.
His testimony did not show any expertise on his part with
9
regard to proper mixing zones, proper analyses and evalu-
ation. There has been no testimony whatsoever with regard
to an adverse impact on the water supply for the City of
Georgetown other than guess and conjecture . The only way
Mr. Moore's testimony could be construed as commenting on
the impact on the water supply of the City of Georgetown is
that he discussed water quality generally (Testimony
Transcript R.12-43) . The other witness on behalf of PRAIRIE
RIVERS was Rosa Ellis whose testimony was quite brief and
consisted of a comment that she saw frothy-looking water on
April 5th and April 11th (2001) . There is no issue or
evidence that suggests this facility is not of substantial
economic benefit to the area and a source of coal for needed
electrical generation
.
Burden of Proof
:
PRAIRIE RIVERS concedes that it has the burden of proof
.
(Prairie Rivers. Brief 212, 415 ILCS 5/40(e)(3) . PRAIRIE
RIVERS' attempts to pass that burden of proof to BLACK
BEAUTY by asserting that the underlying record and
regulations do not support the Permit . PRAIRIE RIVERS
cites no authority that the burden of proof shifts . The
Permit was applied for under standards set forth in 35 Ill
.
Adm. Code, Subtitle D, the applicable regulatory section
.
10
The Draft Permit was issued subject to
35 Ill
. Adm
.
Code
406 .106,
406 .202 and with specific reference to 406 .203
.
The Final Permit had additional modifications and conditions
incorporating further protective measures for the Little
Vermilion River, its tributaries, and flora and fauna in the
area. While there are conflicting positions taken by the
witnesses and advocates, the Advent Report (R.981) and
the AGENCY'S investigations, expertise, experiences and
analyses as reflected in the Final Permit (R .968),
Responsiveness Summary (R.555) and approved by U . S. EPA
(R.942), are all substantial evidence of a supporting
record. The Permit was clearly issued within the evidence
and in compliance with the applicable regulations
.
Mixing Zone
.
PRAIRIE RIVERS contends that no adequately defined mixing
zone is described in the Permit and, therefore, violates
35 Ill . Adm. Code 302.102(D)(6) and
(10)
.
The point
is not well taken in the following respects . Discharge is
to be extremely intermittent only under conditions of more
than three to one dilution and in an extremely rare rainfall
event. For that reason, the zone of passage is available a
majority of the time completely unimpeded . 35 Ill . Adm .
Code 302 .102(b)(6) does not state that the zone of passage
1 1
must be allowed one hundred percent of the time
.
35 Ill
.
Adm .
Code 302 .102(b)(10)
is cited for the proposition that
the single outfall would be used totally for the mixing
.
In
this case, a reference to a standard topographical map,
of
which numerous copies are
in the record (R.997, R .760; Black
Beauty Coal Exhibit from Hearing 43 ; Black Beauty Coal
Hearing Exhibit 49 ; and Black Beauty Coal Hearing Exhibit
62 (denied admission, but attached to VERMILION COAL's
Comment), all show that the unnamed tributary designated 003
extends approximately three miles from its opening into the
Little Vermilion River and that the point of discharge, when
discharge occurs, is approximately one-half mile from the
mouth of the tributary. Accordingly, it would appear that
the tributary is not totally used for mixing as to its
volume and that it is not totally used for mixing on a time
basis. It is not totally used for mixing since at least a
three to one ratio is required for discharge . The Permit,
therefore, does not violate the terms and provisions of 35
Ill . Adm. Code 302 .102(b)
.
Antidegradation
.
The AGENCY wrote two non-degradation analyses (R .710,
R.766) . While these were criticized, there was no counter
evidence introduced as to any specific flaws in the analyses
1 2
with accompanying evidence as
to what a correct analysis
would have been
.
The Advent Report
(R.981)
is not evidence
that the first two analyses were inadequate or incorrect
.
The fact that BLACK BEAUTY's analysis corroborated the
AGENCY'S analyses,
or supplemented them,
is evidence of
a sufficient record to support the Permit
.
PRAIRIE RIVERS
then proceeds to argue that pending changes in Illinois
antidegradation procedures
should be considered. The
law is
well settled that changes in substance should be prospective
only and not take effect until they are adopted
.
Orlicki
vs
.
McCarthy,
4
Ill .2d
342,
122 N .E.2d513
(1954)
.
Laws,
rules, and regulations restricting common law rights
should be construed consistently and with a clear intent
according to generally accepted and consistent meanings .
Moran
v
.
Katsinas, 16Ill.2d169, 157N .E.2d38
(1959)
.
Laws that impose penalties such as violations of the Clean
Water Act should be definite and certain
so that persons may
know what liability that they may be expected to meet. To
suggest that a Permit should be issued based upon
regulations that have not yet been adopted for a particular
use is contrary to the principle that laws should be applied
fairly and equally. It is contrary to the principle that
the public ought to know and understand the terms and
1 3
conditions that they are expected to meet
.
Monitoring :
The AGENCY, using its skill and expertise, has imposed
monitoring standards. PRAIRIE RIVERS requests different
monitoring standards. Under the terms and conditions of the
Permit, discharge is only to occur during heavy rain
activity so as to meet the three to one mixing ratio . There
is an additional provision to permit discharge for a
precipitation event in a twenty-four hour period greater
than the ten-year twenty-four hour precipitation event,
which is considered to be 4 .26 inches . Any monitoring
required under applicable regulations is found in 35 Ill
.
Adm. Code 406 .102 . PRAIRIE RIVERS cites no authority
requiring further and additional monitoring and does not
suggest what that monitoring might be other than to grant it
further authority to review and continue to review each and
every draft and modification in the Permit . Unlike the
Sauget case, Village of Sauget v . Illinois Pollution Control
Board, 207 Ill.App.3d 974, 566 N .E.2d 724, 152 Il1 .Dec . 847
(5th Dist
.
1990),
the appellant in this case has partici-
pated in the hearings, the comment process, and now in the
appeal . It can hardly be found that the Hearing in this
case was inadequate with the substantial volume, time
1 4
involved, comment period,
and the extensive record .
PRAIRIE
RIVERS made its positions known prior to the issuance of the
Final Permit .
The fact that PRAIRIE RIVERS
is even
permitted
to participate
in
a third party appeal is
predicated on the fact that it did, indeed, raise these
issues prior to the issuance of the Permit . To suggest that
there should be further hearings and comment periods after
the AGENCY has acted on all of the evidence, studies,
testimony, documents and arguments is to suggest a never-
ending process until a Permit is issued in language
acceptable to all of the participants, or an impasse
declared. There are no rules regarding an impasse. The
permit process would totally break down if the applicant and
each and every person, firm or entity "affected by the
permitted facility" had the opportunity to have further
hearings and further input as to the language adopted. It
may be suggested that only major differences or changes in
the permit should be so considered for further hearing,
comment or input . One person's major is another person's
minor and vice-versa. The skill and expertise of the AGENCY
personnel must be given some credibility . PRAIRIE RIVERS
raised all of the questions considered by the Final Permit
and they, undoubtedly, were considered by the AGENCY
.
PRAIRIE RIVERS had its hearing participation under the
15
Sauget case, VillageofSauget v. Illinois Pollution Control
Board, 207 Ill .App.3d 974, 566 N .E.2d 724
(5th Dist
.
1990
.
The result is the Permit as issued
.
For the reasons set forth in this Memorandum of Law,
VERMILION COAL suggests that the Permit was properly issued
in final form and that THE BOARD should enter a finding to
that effect
.
RESPECTFULLY SUBMITTED,
VERMILION COAL COMPANY
Fred L. Hubbard (Reg . No.1275682)
Counsel for Vermilion Coal Company
415 N . Gilbert Street, 20 Box 12
Danville, IL 61834-0012
16
