ILLINOIS POLLUTION CONTROL BOARD
March 26,
1992
WHITE
COUNTY BOARD,
)
)
Petitioner,
)
v.
)
PCB 91—119
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by J.C. Marlin):
This matter comes before the Board upon a December
9,
1991
second amended petition for variance filed by the White County
Board
(“County”).
The County requests variance for a period of
five years from 35 I11.Adm.Code 406.106
(Effluent Standards)
and
406.108
(Non-point Source Mine Discharges)
to develop a pilot
program for the use of covered mine waste as roadway embankment
core material.
On that same date, the Board found the variance
petition deficient in several areas and ordered the County to
submit additional information.
The Illinois Environmental
Protection Agency (“Agency”)
filed its Amended Recommendation
(“Rec.”)
in this matter on March 10,
1992,
and recommended that
variance be granted to the County subject to conditions.
Petitioner waived its right to a hearing on the petition and no
hearing was held.
PROCEDURAL HISTORY
Petitioner was previously granted variance from 35
I11.Adm.Code 406.106 and 406.108 in a Board Opinion and Order
dated March 27,
1986
(PCB 85-174)
and a Supplemental Opinion and
Order dated June 5,
1986.
The petitioner alleges that the
original variance was not used because the mine waste material
was too wet and not suitable for road construction.
The mining
company recently installed equipment which “de—waters” the waste
material so that it
is suitable for roadway construction
purposes.
(Am.Pet., par.
33)
Where appropriate this Opinion and
Order follows the reasoning contained in our original and
supplemental Opinions and Orders dated March 27 and June 5,
1986
respectively.
BACKGROUND
Petitioner
is
a
governmental
entity
which
provides
public
services, including the maintenance of a county—wide
transportation network for a population of more than 17,000
county residents and more than 1,000 industrial,
commercial and
business customers serviced by Petitioner.
The County employs
approximately 90 p?rsons and expends approximately $3.5 million
•as a consequence of its operations.
(Aiu.Pet., par.
9)
The County is seeking variance relief in this case in order
to construct a roadway embankment utilizing mine refuse as core
13
1—477
2
material.
The proposed project is located on County Highway 12
in White County,
Illinois.
The project begins 336 feet north of
the intersection of County Highway 12 and State Highway 14, and
continues north along County Highway
12 a distance of 2290 feet.
Petitioner proposes to use approximately 18,900 cubic yards of
mine refuse from White County Coal Company as the core material
for the embankment, which is being built in order to raise County
Highway 12 above the high water elevation.
The coal company
currently disposes of this refuse by burying it.
Approximately
5,400 cubic yards of soil will be utilized as a two foot “cover”
over the mine refuse and as a vegetative growth medium.
(Am.
Pet., par.
10)
The County originally submitted an application for a mining
permit to the Illinois Department of Mines and Minerals.
Permits
of this nature are subject to the approval of the Agency,
and it
was the Agency that first notified the County
(by letter dated
August 20,
1985)
that the nature of the County’s proposed actions
would require variance from certain of the Board’s mine related
water pollution regulations.
(Am.Pet.,
p.
13)
APPLICABLE
LAW AND
REGULATIONS
The County is seeking variance for a five year period from
35 Il1.Adm.Code 406.106 and 406.108.
Section 406.106 provides
that:
Section 406.106
Effluent Standards for Mine
Discharges
a)
The effluent limitations contained in 35
I11.Adm.Code 304 shall not apply to mine
discharges or non—point source mine discharges.
b)
Except as provided in Section 406.109 and 406.110,
a mine discharge effluent shall not exceed the
following levels of contaminants:
Storet
Constituent
Number
Concentration
Acidity
00435
(Total acidity
shall not
exceed total
alkalinity)
Iron (total)
01045
3.5 mg/i
Lead (total)
01051
1 mg/i
Ammonia Nitrogen
00610
5 mg/i
(as
N)
pH
00400
(range
6 to
9)
Zinc
(total)
01092
5 mg/i
Fluoride (total)
00951
15 mg/l
Total suspended solids
00530
35 mg/l
Manganese
01055
2.0 mg/i
1)
The ammonia nitrogen standard is applicable
only to an operator utilizing ammonia in
131—478
3
wastewater treatment.
2)
The manganese effluent limitation
is
applicable
only to discharges from facilities
where chemical addition is required to meet
the iron or pH effluent limitations.
The
upper limit of pH shall be 10 for any such
facility that is unable to comply with the
manganese limit at pH 9.
The manganese
standard
is not applicable to mine discharges
which are associated with areas where not
active mining, processing or refuse disposal
has
taken
place
since
May
13,
1976.
C)
New source coal mines shall be subject to a total iron
limitation of 3.0 mg/i in addition to the requirements
of subsection
(b)
above.
Section
406.108, which relates to non—point source mine
discharges,
states
that:
Surface
drainage
from
the
affected
land
of
a
coal
mine,
including disturbed areas which have been graded,
seeded or
planted,
shall be passed through a sedimentation pond or a
series of sedimentation ponds before leaving the facility.
The Board found, as~a threshold matter,
in its March 27,
1986 Opinion and Order that,
absent variance relief, Petitioner
would indeed need to comply with Section 406.106 as that section
is applicable to the activity being undertaken by the County in
this instance.
Section 406.106 sets out effluent standards for
“mine discharges”.
“Mine discharges” are defined by Section
402.101 as:
Any point source discharge, whether natural or man-made,
from a mine-related facility.
Such discharges
include...seepage from mine or mine refuse areas...
Section 402.101 defines “Mine Refuse Area” as:
Any land used for dunmina, storage or disiosal of mine
refuse
(emphasis added)
Thus,
Section 406.106 must be applied to the use of mine
refuse as a construction material.
The Board’s regulations,
as
described above, clearly define seepage from mine refuse areas as
a point source discharge subject to the effluent limitations of
Section 406.106.
Section 406.108 requires that surface drainage from the
affected land of a coal mine be passed through a sedimentation
pond.
Section 402.101 defines “affected land” as:
Any land owned or controlled or otherwise used by the
operator in connection with mining activities except
the surface area above underground mine workings that
is not otherwise used for mining activities.
The term
131—479
4
does
not
include
off-site
office
buildings
and
farming
operations
or
recreational
activities
on
undisturbed
land.
Land described in a certificate of abandonment
issued by the Agency under Section 405.110(e)
is no
longer part of the affected land.
Section 402.101 defines “Operator”
as “a person who carries
out mining activities”.
That section defines “affected land” as
“any
land
owned
or
controlled
or
other~dse
used
by
the
operator
in connection with mining activities...” Section 402.101 defines
“mining activities” as:
all
activities
on
a
facility
which
are
directly
in
furtherance
of
mining,
including
activities
before,
during and after mining...
The term includes, but is
not limited to...
Construction of mine related
facilities which could generate refuse, result in a
discharge or have the potential to cause water
pollution...
Ownership
or control of a mine related
facility...
Generation
or
disposal
of
mine
refuse...”
(emphasis added).
Section 402.101 in turn defines “mine related facility” as
portion of a facility which is related to mining
activities.
The term includes, but is not limited
to...
Mine refuse area(s)
...“
(emphasis added).
As we held in our June
5,
1986
supplemental
Opinion and
Order, as a consequence of the construction activity proposed by
petitioner, the County will,
for the purposes of Board
regulations, become an operator engaged in mining activities.
The construction site at issue here is thus most properly viewed
as “affected land”, meaning that the County must receive variance
relief from 406.108 in order to proceed with the project.
ENVIRONMENTAL IMPACT
The petitioner asserts that any environmental impact
resulting from petitioner’s activity will occur only during the
period of construction of the embankment, which the County
proposes to undertake during the normally drier summer months.
The County estimates needing less than six months to complete
construction, and has proposed several measures to reduce any
adverse environmental impact stemming from the project.
(Am.Pet.,
pars.
25,
26)
First, during construction the County intends to move the
mine refuse directly from the mine to placement in the
embankment.
No additional mine refuse storage or disposal will
occur at the construction site.
Second, petitioner proposes to
utilize a series of hay or straw ditch checks to control runoff
from the affected area.
(Ain.Pet., par 24)
Drainage from the
area is by ditches tributary to Seven Mile Creek, the Skillet
Fork, the Little Wabash and the Wabash River,
sequentially.
Finally, after the embankment is raised, two feet of soil will be
placed over the mine refuse and the area will be fertilized,
131—480
5
seeded and mulched to promote vegetative growth.
The top of the
embankment will be rcadway, an impervious material.
Petitioner believes that variance relief in this instance
would impose no adverse environmental impact on human life, plant
or animal life.
(Am.Pet., par.
20)
In addition the Agency has
concluded that “Little if any of the contaminants in the mine
refuse will affect ground or surface water”.
(Rec., par.
16)
The Agency cites the findings of the leachate test conducted on
samples of the mine refuse material
(see Petitioner’s Exhibit
F)
as
support
for
its
belief
that
the
leachate
will
not
likely
exceed effluent standards.
(Rec., par.
11)
It should be noted that although the County states that
environmental impact will result only during the construction
period of six months or less, petitioner requests variance relief
for a five-year period.
The petitioner requests the additional
time be granted so as to allow, during the variance term, the
petitioner to fully analyze and review the effect of using two
alternative methods of compliance consisting of construction of
sedimentation ponds or diversion of run—off surface water.
HARDSHIP
Without variance relief from Section 406.106, the County
would be required to comply with the effluent limitations of that
section.
Such complianQe might of practical necessity require
petitioner to install
a sedimentation pond as the only means of
complying with 406.106.
Petitioner alleges that the use of a
sedimentation pond for this project is impractical due to the
cost involved.
The County submitted cost estimates for two
alternative sedimentation pond designs.
Routing the entire
drainage area through a single sedimentation pond is envisioned
to cost $140,000, while routing only the project drainage through
the sedimentation pond and rerouting the rest of the drainage
areas around the project would cost $45,000.
The County alleges
that if variance relief is not provided, the additional cost of
compliance will make the project too expensive to undertake.
The
Agency concedes that construction of a sedimentation pond would
be ineffective anyway,
since the project area is low lying and
subject to flooding; thus, any pond constructed at the site would
be subject to inundation.
CONCLUSION
The Board finds that White County Board has presented
adequate proof that compliance with Section 406.106 and 406.108
of the Board’s regulations would impose an arbitrary or
unreasonable hardship.
Such hardship would not be justified by
any anticipated environmental impact resulting from construction
of the embankment.
Moreover, the project will put to productive
use a material that had only been refuse previously.
The Board
will therefore grant petitioner variance relief from Sections
406.106 and 406.108, subject to conditions.
The Board further finds that, given the circumstances of the
case,
five years
is an appropriate variance period.
The
construction phase of this project is scheduled to last only six
131—48 1
6
months.
However, given the uncertainties the County faces
regarding the date construction will begin,
it is reasonable for
the Board to allow the County some leeway in the duration of the
variance period.
From the environmental perspective, the impact
of the project will be the same regardless of whether
construction takes place in the summer of 1992 or the summer of
1997.
Finally, the Board will impose a semiannual sampling
requirement upon the petitioner.
Petitioner’s request is a pilot
project to demonstrate a technology never before tried in
Illinois.
Therefore, the Board believes it prudent that
petitioner sample as set forth in the terms of the Order for
a
period of 5 years.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The White County Board is hereby granted variance from 35
Ill.Adm. Code 406.106 and 406.108 until March 26,
1997 or until
completion of the roadway embankment which is the subject matter
of this variance proceeding, whichever occurs first,
subject to
the following conditions:
1.
The operation plan submitted with the project permit
application sh~allbe implemented as submitted.
2.
After completion of phase
1, all disturbed areas shall
be
mulched
or
erosion
control
blankets supplied.
All
disturbed
areas
that
will
not
be
redisturbed
during
phase
2
shall
be
mulched
and
seeded.
3.
In consultation with the Agency,
a semiannual surface
water and sediment sampling program shall be
implemented.
At a minimum one sample each of surface
water and sediment shall be collected from each stream
determined to be subject to the runoff from the
project.
A chemical analysis of iron,
lead,
pH,
zinc,
fluoride, TSS and manganese shall be performed as
appropriate for each sample.
A description of the
sampling
techniques,
sampling locations,
and the
results
of
chemical
analysis
shall
be included in the
quarterly
project
report
identified
in condition 4.
This sampling shall be performed for the duration of
the variance.
4.
Quarterly project reports shall be submitted to the
Agency until project completion.
Reports shall include
general progress and sediment control structure
maintenance work completed during the quarter and
sampling.
Project
reports
shall
be
submitted
to the
address
in
condition 5.
5.
Petitioner
shall
submit
the
quarterly
project
reports
and execute a certificate of acceptance in the
following form:
131—482
7
Within forty-five
(45)
days after the date of the Board Order the
Petitioner shall execute and send to:
Joyce Munie
Mine Waste Program
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois
62706
a Certificate of Acceptance and agreement to be bound to all
terms and conditions of the granted variance.
This forty—five
(45) day period shall be held in abeyance for any period during
which this matter is being appealed.
Failure to execute and
forward the Certificate within 45 days renders this variance void
and of no force and effect.
The form of the certification shall
be
as
follows:
CERTIFICATION
I
(We),
,
hereby
accept and agree to be bound by all of the terms and conditions
of the Order of the Pollution Control Board in PCB 91-119, March
26,
1992.
White County Board
Petitioner
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1991,
ch.
111 1/2, par.
1041, provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
Court establish filing requirements.
IT IS SO ORDERED.
131—483
8
I, Dorothy M.
Gunn,
Clerk, of the Illinois Pollution Control
Board,
hereby
ce~tiiythat
the
above
Opinion
and
Order
was
adopted
on
the~~_~-
day
of
,
1992,
by
a vote of
7~
~/~T/~:i~.
~
Dorothy
M.
~(inn,
Clerk
Illinois
Pollution Control Board
13 1—484