ILLINOIS POLLUTION CONTROL BOARD
December
13,
1979
J,
ROYDEN PEABODY,
JR.,
D,
IRVING
LONG
and
JANE
PEABODY
DURHAM,
)
Petitioners,
PCB
79—165
ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent,
MR. JOHN P. MEYER AND MR. RICHARD
M. DOGGETT,
ATTORNEYS AT
LAW,
APPEARED ON BEHALF OF THE PETITIONERS.
MR. PATRICK
J,
CHESLEY, ASSISTANT ATTORNEY GENERAL, APPEARED
ON
BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by Dr. Satchell):
This matter
comes
before the Board upon a petition
for vari-
ance filed on August 17,
1979 by J. Royden Peabody, Jr.,
D.
Irving
Long and Jane Peabody Durham,
Several citizen
objections
were
filed.
The Environmental Protection Agency
(Agency)
filed a
recommendation on September 14,
1979.
A hearing was held in
Dan-
ville, Illinois on November
6,
1979.
Petitioner in this case was the Respondent in
PCB 77-24.
That case was settled by a stipulated agreement which was
accepted
by the Board on November 16, 1978
(32 PCB 71).
In that
proceeding
Petitioner was found to have caused water quality violations
in
Grape Creek by runoff from an abandoned mining operation on agri-
cultural land owned by Petitioner.
Petitioner is now requesting a
variance from the date of completion of the stipulated
pollution
abatement project.
Two gob piles on Petitioner~s land were
to be
graded, neutralized,
covered and vegetated by December
1,
1979.
Petitioner is now asking a one year delay to December
1,
1980 to
provide further time to get government funding to help
pay for
the reclamation of the site,
The stipulated agreement states that the
Petitioner-Respondent
would apply for a grant under the Federal Mine
Reclamation Act.
However,
the reclamation plan set out in the agreement
is not
con-
tingent upon receiving the grant.
Petitioner did apply for assist-
ance from the Rural Abandoned Mine Program
(RAMP),
Petitioner~s
land was given a priority number of
3.
In 1979 only priority
numbers Land
2 received funding.
Petitioner~s application is
still pending
CR.
31).
Petitioner has also applied for a
change
37—2 1
to priority 2.
If
Petitioner receives assistance from RAMP it
would
cover
the cost of eighty-five to ninety-five percent of the
reclamation,
Petitioner cannot receive reimbursement under the
program
for
work already done.
In May, 1978 the work was estimated to cost $43,000
(R.
33,
93),
In the spring of 1980 because of inflation the cost is
estimated to be approximately $76,900
CR.
93,
101),
Petitioner has also applied for funds under a federal program
administered by
the
Department of the Interior
(R.
166,
170).
In
1978 Petitioner attempted to obtain assistance from the Illinois
Abandoned Mine Council; however,
at that time Petitioner was in-
eligible
CR,
171).
Since then there has been a change in the law
effective June
1,
1980,
Because of this change Petitioner may be
able
to. get assistance from the Illinois Abandoned Mine Council
CR,
171,
172),
Petitioner has no assurances that any program
will provide funds
for next year
(R,
87),
Although Petitioner presented a good deal of evidence at the
hearing, the facts remain essentially the ~ame as at the time of
the stipulated agreement.
No additional hardship is claimed,
other than inability to obtain funding.
It is pointed out
in the
reco~dthat to complete the project
(including the seeding)
now
would be futile,
Winter weather would cause erosion and the pro-
cess would have to be repeated in the spring
CR.
35).
There were numerous citizens at the hearing to object to
further delay in abating the pollution.
One citizen stated at
the end of the hearing that she and a number of others had no
objection to a six month extension because of the winter weather
(R.
189).
The stipulation provided that runoff from the gob piles
contains acid, manganese,
zinc,
iron, sulfates, unnatural sludge,
material which creates bottom deposits and unnatural color or
turbidity and that these are in violation of water quality stand-
ards,
Rules 203(a), 203(b)
and 203~(f) were found to be violated.
Petitioner~sexpert,
Dr. Edward H.
Tyner, on the basis of single
samples taken upstream and downstream from the gob piles,
found
the stream polluted in both areas
CR.
132),
Dr. Tyner noted that
iron
is the primary contribution coming from the gob piles
(R.
132).
Upstream iron was measured at 1,2 ppm and downstream at 61 ppm
CR,
129),
Petitioner~stests show pH 7.1 upstream and 6,4 down-
stream
CR.
126),
The downstream
number
is below the Board~sRule
203(b)
standard of a range from 6.5 to 9,0.
The Board notes that
a single grab sample cannot be given much weight.
37—22
—3—
Petitioner has applied for funds but no actual steps have
been taken to abate the pollution.
The Board agrees that
to
attempt to vegetate cover material during the winter months
would be futile,
Erosion would result a~dthe process would
have
to
be repeated,
This would
be an
arbitrary and unreasonable hard-
ship at this time,
The Board~sinterest
is to have the site
cleaned up effectively; therefore,
the Board will grant Petitioner
a variance to
June
30,
l980.~ Petitioner has not shown sufficient
hardship for a longer variance.
Petitioner has no assurances of
ever receiving government funding
while the
costs will continue
to
rise with inflation,
Delay may only increase the difficulty
of abatement.
This Opinion constitutes the Board~s findings of fact and
conclusions
of law in this matter,
ORDER
It is the Order of the Pollution Control Board that
J.
Royden
Peabody,
Jr.,
D,
Irving Long and Jane Peabody Durham
are granted
a variance until June 30,
1980 from the completion date in the
stipulated compliance plan
in PCB 77-24
to correct violations
of
Chapter
3:
Water Pollution Rules 203(a)——freedom from unnatural
sludge or bottom deposits, floating debris, unnatural color or
turbidity,
203 Cb)-—pH and 203(f)——manganese,
zinc,
iron and
sulfate,
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, herçby certify ,~heabove Opinion and Order were
adopted on the
~
day of
1979 by a vote of
4/’.C.
~trolBoard
37—23