Prairie Rivers Network v. POLLUTION CONTROL

• Decision Date: 24 October 2002
• Docket Number: No. 4-01-0801.,4-01-0801.
• Citation: 781 N.E.2d 372,269 Ill.Dec. 575,335 Ill. App.3d 391
• Court: United States Appellate Court of Illinois
• Parties: PRAIRIE RIVERS NETWORK, Petitioner, v. The ILLINOIS POLLUTION CONTROL BOARD; The Illinois Environmental Protection Agency; and Black Beauty Coal Company, Respondents.

781 N.E.2d 372

335 Ill. App.3d 391

269 Ill.Dec. 575

PRAIRIE RIVERS NETWORK, Petitioner, v. The ILLINOIS POLLUTION CONTROL BOARD; The Illinois Environmental Protection Agency; and Black Beauty Coal Company, Respondents.

No. 4-01-0801.

Appellate Court of Illinois, Fourth District.

October 24, 2002.

Albert Ettinger (argued), Environmental Law & Policy Center, Chicago, for Prairie Rivers Network.

James E. Ryan, Attorney General, Joel D. Bertocchi, Solicitor General, Diane M. Potts, Assistant Attorney General (argued), Chicago, for Pollution Control Board.

W.C. Blanton, Blackwell Sanders Peper Martin LLP, Kansas City, MO, for Black Beauty Coal Company.

Fred L. Hubbard, Danville, for Amicus Curiae Vermilion Coal Company.

Thomas G. Safley, Cassandra I. Karimi, Hodge Dwyer Zeman, Robert A. Messina, Ill. Environmental Regulatory Group, Springfield for Amicus Curiae Ill. Environmental Regulatory Group.

Justice STEIGMANN delivered the opinion of the court:

In December 2000, respondent, the Illinois Environmental Protection Agency (IEPA or agency), issued a final National Pollutant Discharge Elimination System (NPDES) permit to respondent Black Beauty Coal Company (Black Beauty). In January 2001, petitioner, Prairie Rivers Network (Prairie Rivers), a river conservation group, filed a petition with respondent, the Illinois Pollution Control Board (Board), requesting that the Board set aside the final NPDES permit issued to Black Beauty. In August 2001, the Board denied Prairie Rivers' petition and affirmed the IEPA's issuance of the final permit.

Prairie Rivers appeals, arguing that the Board erred by denying Prairie Rivers' petition because (1) the IEPA failed to provide it with a meaningful opportunity to participate in the final NPDES permit-writing process; (2) the final permit did not include certain required conditions; and (3) the IEPA improperly relied on documents produced by Black Beauty after the public comment period. We affirm.

I. BACKGROUND

Vermilion Grove Mine is a new coal mine located a few miles southeast of Georgetown, Illinois. Black Beauty leases the Vermilion Grove Mine from Vermilion Coal. In May 2000, the IEPA received Black Beauty's "Application for Surface Coal Mining and Reclamation Operations Permit," in which Black Beauty sought an NPDES permit to discharge groundwater and storm water into an unnamed tributary of the Little Vermilion River. Black Beauty's plans showed that it intended to (1) drill a hole in the ground to establish the mine entrance, (2) create air shafts for ventilation, (3) establish sediment basins to control drainage in the disturbed areas, and (4) build a preparation plant, a rail loop and load-out facility, and an office building. According to the plan, the coal would be moved by conveyors from the underground mine to a processing area, where it would be cleaned, screened, and crushed. All storm water runoff from the mine would be collected into three connected basins (designated as "003," "003A," and "003B"). In the event that the basin system reached its capacity due to heavy rainfall, the water that could not be held in the basins would be diverted through a discharge point (outfall 003) into the unnamed tributary.

On August 4, 2000, the IEPA issued a public notice, pursuant to section 309.109 of Title 35 of the Illinois Administrative Code (Code) (35 Ill. Adm.Code § 309.109 (Conway Greene CD-ROM June 2002)), that after reviewing Black Beauty's application, the agency had tentatively decided to issue Black Beauty an NPDES permit. The public notice also included a copy of the draft NPDES permit.

Although the United States Environmental Protection Agency (U.S. EPA) has generally waived its right to review NPDES permits issued by the IEPA to coal mine operators, on August 29, 2000, the U.S. EPA exercised its preemptive rights under section 123.44(a)(1) of the Code of Federal Regulations (40 C.F.R. § 123.44(a)(1) (2000)) and requested 90 days to review the draft permit.

Based on the degree of public interest in its tentative decision, the IEPA determined that a public hearing was required under section 309.115 of Title 35 of the Code (35 Ill. Adm.Code § 309.115 (Conway Greene CD-ROM June 2002)). On September 20, 2000, the agency and the Illinois Department of Natural Resources conducted a public meeting at Georgetown-Ridge Farm High School to inform the public about the proposed permit and prepare those citizens who planned on participating in the subsequent public hearing. On September 27, 2000, a public hearing on the draft permit was held at the Georgetown-Ridge Farm High School. Prairie Rivers attended and participated in both the public meeting and the hearing.

On October 6, 2000, in response to concerns raised at the public hearing and other comments on the draft permit, an IEPA employee asked Black Beauty to provide the agency with additional information regarding the permit. In response, Black Beauty hired a consultant, Advent Group, Inc. (Advent), to perform a study and prepare a report. On October 20, 2000, Advent issued its report, in which Advent's scientists concluded that the anticipated infrequent discharge through outfall 003, which would only occur during significant rainfall, would not harm the environment.

The public comment period on the IEPA's tentative decision closed on October 27, 2000. During the public comment period, several agencies and groups submitted comments regarding the IEPA's tentative decision and suggested changes to the draft NPDES permit. On October 27, 2000, Prairie Rivers submitted comments that criticized the draft permit and advocated for stringent monitoring conditions.

On October 30, 2000, the U.S. EPA objected to the draft NPDES permit. The IEPA considered all input and suggested changes to the draft permit, discussed and reached a consensus with the U.S. EPA, and developed a final NPDES permit. On December 22, 2000, the U.S. EPA withdrew its objection to the draft permit and approved the final permit. On December 27, 2000, the IEPA issued the final permit and issued a public notice of its decision and a responsive summary, which addressed all concerns raised by citizens and organizations, including Prairie Rivers and the U.S. EPA.

The final NPDES permit issued to Black Beauty was generally more restrictive and contained more conditions than the draft permit. In particular, the final permit included the following changes: (1) the effluent limitation for sulfate was reduced to a more restrictive level (1,000 milligrams per liter, as compared to the previous 3,500 milligrams per liter); (2) the potential for Black Beauty to avoid sulfate and chloride monitoring was eliminated; (3) discharge monitoring requirements were increased from one sample per storm water discharge event (with a total requirement of three per quarter), to daily monitoring of all storm water discharge events; (4) all references to mine discharges being exempt from water quality standards were removed; (5) additional sedimentation pond operation and maintenance restrictions were included; and (6) biological inventory and water quality monitoring of the Little Vermilion River and the unnamed tributary were added.

In January 2001, Prairie Rivers filed a petition with the Board, requesting that the Board set aside the final NPDES permit issued to Black Beauty. In that petition, Prairie Rivers alleged the following: (1) during the September 27, 2000, public hearing and during the public comment period, Prairie Rivers and its members identified legal and scientific flaws in the draft NPDES permit; (2) the final permit contained "certain conditions and limits that were not contained in the draft permit that was subject to public review"; (3) the final permit contained "most of the defects that were identified by [Prairie Rivers] in the draft permit"; (4) the final permit contained ambiguous provisions regarding monitoring and no operation plan was set forth regarding how provisions related to precipitation events would be implemented or enforced; (5) a proper antidegradation analysis had not been completed; and (6) Prairie Rivers' members "will be affected adversely when pollution discharged under the permit injures the ecology of the Little Vermilion watershed as a result of [the IEPA's] failure to require protective effluent limits, monitoring, antidegradation analysis and mixing zone delineation."

In May 2001, the Board conducted a hearing, at which the parties introduced evidence and presented oral argument. In addition, members of the public provided comments both during and after the hearing. Following the hearing, the parties submitted written briefs. In August 2001, the Board denied Prairie Rivers' petition and affirmed the IEPA's issuance of the final NPDES permit to Black Beauty.

In September 2001, Prairie Rivers filed a notice of appeal. This court has allowed the Illinois Environmental Regulatory Group and the Vermilion Coal Company to file briefs as amici curiae.

II. ANALYSIS

A. The Illinois NPDES Permit Program

"The history and goals of the Federal Water Pollution Control Act [(Clean Water Act)] and its amendments have been chronicled in numerous judicial opinions. See, e.g., American Frozen Food Inst. v. Train, 176 U.S.App. D.C. 105, 111-22, 539 F.2d 107, 113-24 (1976); California v. EPA, 511 F.2d 963 (9th Cir.1975). Congress' ultimate objective was `to restore and maintain the chemical, physical, and biological integrity of the Nation's waters,' [(33 U.S.C. § 1251(a) (1976))], and it established a permit program, the NPDES, to achieve this goal. Under this program, any pollutant discharge into navigable waters without [a US] EPA authorization permit is banned, and the [US] EPA was instructed to make the pollution controls inherent in its permits increasingly stringent over time.

Although the administration and enforcement of the permit program initially was vested entirely in the [US] EPA, Congress intended that much of

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