ILLINOIS POLLUTION CONTROL BOARD
April
9,
1992
MONTEREY COAL COMPANY,
)
)
Petitioner,
)
v.
)
PCB 91—251
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER
OF THE BOARD
(by B.
Forcade):
This matter comes before the Board on a petition for
variance
(Pet.), filed on December 19,
1991,
by Monterey Coal
Company (Monterey).
Monterey seeks a variance from the chloride
discharge limit specified in 35 Ill.
Adju. Code Sec. 406.203
(c) (1) (A) and embodied in the petitioner’s NPDES permit.
(Pet.
Ex.
1.)
petitioner is requesting a variance to increase the
current 1,000 milligrams per liter
(mg/i) discharge limit of
chloride to 1,200 mg/l at its No.
2’mine for a period not to
exceed two years.
The purpose of this variance is to allow
petitioner to demonstrate, through the use of actual stream
studies, that increasing the discharge limit to 1,200 mg/i will
not cause an adverse effect on the environment in and around the
receiving stream (the Grassy Branch of Sugar Creek).
(Pet.
at 1.)
The petitioner waived its right, to a hearing on the merits
of
the variance petition and no hearing was held.
(Pet.
10).
On
January 22,
1992,
the Environmental Protection Agency
(Agency)
filed its recommendation (Ag. Rec.)
in support of granting the
variance with certain conditions.
The conditions recommended by
the Agency require the petitioner to perform certain studies,
manage discharges and submit progress reports to the Agency.
Pursuant to Section 37 of the Environmental Protection Act
(Act)
the Agency caused notice to be published and sent to the
required parties.
(Ag. Rec. at 3.)
The Agency received one
comment from a neighboring landowner expressing concern about the
effects of increased chloride levels on groundwater quality and
livestock in the area approximately one mile northeast and
upstream from the water discharge point.
(Res.
Ex.
1.)
THE FACILITY
Monterey is an operating division of Exxon Coal USA,
Inc.,
operating two large underground mines in the state of Illinois.
(Pet.
at 1.)
The No.
2 mine is located one mile south of the
City of Albers in Clinton County, Illinois.
(Pet.
at 2.)
This
operation employs approximately 453 people at the mine with
a
support staff of 56 people in Monterey’s Carlinville office.
132—107
2
(Pet.
at 2.)
Petitioner mines between five and six million tons
of coal a year,
approximately one-half of which is produced by
the No.
2 mine.
(Pet.
at 2.)
Monterey discharges water, used in its coal processing,
into
Grassy Branch, approximately 4,600 feet from the stream’s
confluence with Sugar Creek.
(Ag.
Rec. at.5.)
Grassy Branch is
classified as a 7—day,
10—year, zero flow stream.
(Ag. Rec. at
5.)
Sugar
Creek., near the confluence,
is classified as a 7—day,
10 year,
low flow of 0.2 Cf
5.
Sugar Creek discharges into the
Kaskaskia River.
(Ag. Rec.
at 5.)
The nearest public water
supply intake is approximately 10 miles downstream.
(Ag. Rec. at
5.)
The use of the downstream water is limited primarily to
livestock watering.
(Ag. Rec. at 5.)
BACKGROUND
Water and chlorides are contained in the coal and rocks
which are unavoidably mined with the coal.
(Pet. at 2.)
During
the coal cleaning process, chlorides go into solution in the
process water and build up in the coal preparation plant water
circuit.
(Pet. at
2.)
Clean coal goes.into clean coal silos and
is later loaded onto unit trains for customer delivery.
(Pet.
at
2.)
Coarse refuse
(from 28 mesh to 4” diameter) washed from the
coal is transferred to ~a‘refuse disposal area by conveyor and
trucks.
(Pet.
at 2.)
Fine refuse
(less than 28 mesh)
is pumped
into a slurry pond.
(Pet. at 2.)
Solids settle to the bottom of
the slurry pond and clarified water is decanted to a
recirculation lake.
(Pet. at 3.)
Water is pumped from the
recirculation lake to the coal preparation plant for reuse
in
processing more coal.
(Pet.
at 3.)
As the process is repeated
and more coal is cleaned, the chloride concentration in the coal
preparation plant water circuit increases.
(Pet.
at 3.)
To
decrease the concentration of chlorides the water is discharged
from the recirculation lake into Grassy Branch.
(Pet. at 4.)
When there
is sufficient rainfall or alternate sources of
dilution water to be added to process water exhibiting
significant chloride levels, petitioner is able to maintain its
discharge of water within the 1,000 mg/i limit.
(Pet.
at 3.)
However, petitioner believes there will not be enough
precipitation in the future to operate in compliance with the
1,000 mg/i limit.
(Pet. at 3.)
Petitioner has studied and
continues to study the surface and groundwater sources of
potential dilution water, but currently believes the available
quantity
is insufficient to operate in compliance with the
chloride standard.
(Ag. Rec. at 3.)
The petitioner believes that
if
a chloride variance of 1,200 mg/i is granted, by applying
existing dilution sources,
it will be able to discharge on a
dependable basis without violating its permit or adversely
impacting the receiving stream.
(Pet.
at 4.)
132—108
3
APPLICABLE
LAW
Section 406.203(c) (1) establishes procedures water quality
based permit conditions for mine operations and reads as follows:
(c)
The Agency shall establish permit conditions under this
Section if all of the following conditions are met:
1. The applicant proves to the Agency that the
discharge will not cause an adverse effect on the
environment in and around the receiving stream, by
either:
A. Demonstrating that the discharge will contain a
concentration less than or equal to 3500 mg/i
sulfate and 1000 mg/i chloride;
or,
B. Through actual stream studies.
Monterey is presently operating .with a NPDES permit
that
allows discharges with
a concentration of chloride under 1,000
mg/i.
(Pet.
Ex.
1.) Monterey has not reported any discharges
above the discharge limit.
(Pet.
Ex.
2.)
Monterey is requesting
a variance in order to conduct the stream studies required by
Section 406.203(c) (1) (B) to allow a discharge level above the
1,000 mg/l limit.
(Pet.
at 1.)
The variance requested is for a
period of two years to conduct an intensive stream survey (twelve
months), analyze data and prepare report (six months), and obtain
a permit modification based upon that study
(six months).
(Ag.
Rec. at
6.)
The study will include impact on human, plant and
animal life in the affected area,
including water quality.
(Pet.
at 6.)
HARDSHIP
In considering any variance the Board determines whether a
petitioner has presented adequate proof that immediate compliance
with the Board regulations at issue would impose an arbitrary and
unreasonable hardship.
(Ill. Rev. Stat.
1991,
ch.
111 1/2, par
1035 (a).)
Furthermore, the burden of proof is upon the
petitioner to show that the claimed hardship outweighs the public
interest in attaining compliance with regulations designed to
protect the public.
(Willowbrook Motel v. Pollution Control Board
(1977),
138 Ill. App. 3d 343, 481 N.E.2d 1032.)
When sufficient dilution water is not available to be added
to the plant circuit, Monterey is unable to reliably discharge
within the permit conditions and chloride levels build up in the
preparation plant circuit at or above the 1,000 mg/i discharge
level.
(Pet. at 3.)
As more coal is processed the chlorides
continue to build up in the system and petitioner is unable to
discharge without risking a violation of the permit condition.
132—109
4
(Pet. at 3.)
As chlorides build up in the plant water circuit,
deterioration of plant equipment will occur, due to the corrosivE
effects of chloride.
(Pet. at 5.)
Currently, the recirculation pond is exhibiting chloride
levels at or slightly above concentrations of 1,000 mg/l.
(Pet.
Ex.
3.)
The slurry ponds are experiencing concentrations
approximately at or in excess of 1,200 mg/i.
(Pet.
Ex.
3.)
Dne
to excess chloride concentration in the coal preparation water
circuit, petitioner is currently storing in excess of 200 million
gallons ~f water on its property.
(Pet. at 4.)
Petitioner
currently has insufficient sources of dilution water, to reduce
the chloride content of this excessive water inventory.
(Pet. at
4.)
Petitioner believes that it will not have sufficient
rainfall or dilution water from other sources in the future to
discharge water from the system on a dependable basis and in
compliance with the discharge requirements.
(Pet.
at 3.)
It is not practical for petitioner to continue to store
process water in order to remain in compliance due to the space
requirements of storing such quantities of water.
(Pet. at 5.)
If water is not discharged the concentration of chlorides
continues
to. increase requiring a greater amount of dilution
water to be added to the plant circuit to maintain discharges at
the 1,000 mg/i limit.
(Pet. at 5.)
The accumulation of chlorides
in the process water circuit will also result in deterioration of
plant equipment.
(Pet.
at 5.)
ENVIRONMENTAL IMPACT
The Agency is unaware of any public water supplies which
would be adversely affected if this variance request is approved.
(Ag. Rec. at 5.)
Stream studies conducted by other’ coal
producers in Illinois have demonstrated that increases in the
chloride levels to the magnitude requested do not adversely
affect stream conditions.
(Pet. at 7.)
The petitioner is
requesting a 20
increase in the discharge limit of chloride
permitted by 406.203
(c) (1) (A).
The Agency is unaware of any
studies which link elevated chloride levels with adverse effects
on livestock.
(Ag. Rec. at 5.)
The Agency believes that the
impact on the environment will be minimal.
(Ag. Rec. at 6.)
COMPLIANCE
PLAN
A
variance by its nature is a temporary reprieve from
compliance with the Board’s regulations.
(Monsanto Co.
v. IPCB
(1977),
67 Ill.2d 276, 367 N.E.2d 684.)
A variance petitioner
accordingly is required, as a condition to grant of variance, to
commit to a plan that is reasonably calculated to achieve
compliance within the term of the variance.
(City of Mendota
V.
IPCB
(1987),
161 Ill.App.
3d 203,
514 N.E.2d 218.)
Nevertheless, the Board has found that in some exceptional
132—110
c
circumstances variance m~ybe granted even though petitioner does
not have a final compliance plan.
Included have been the
circumstance where technology for compliance did not exist,
and
petitioner
.
sought the time provided under the variance to search
for new technologies
(e.g., Mobil Oil v. IEPA
(Sept.
20,
1984,
60
PCB. 99;
IJ’C, Clinton Plant v. IEPA (May 22,
1989), PCB 88-97,
100
PCB 181); where additional time was necessary for a proper
assessment of environmental impact
(e.g., Amerock v. IEPA (Nov.
11,
1985), PCB 84—62,
66 PCB 411; Zeigler Coal v. IEPA (Aug.
22,
1991),
PCB 91-12,
slip op.); or where the term of the variance
was of an exceptionally short duration
‘e.g. General Motors
Electromotive Division v. IEPA (February 19,
1987), PCB 86—195,
576 PCB 59.)
Moreover,
in each of these exceptional
circumstances the Board has required assurance,, commonly through
conditions attached to the grant of variance, that negative
environmental impact during the term of the variance be minimal
and temporary.
Monterey proposes during the term of variance to assess,
through an intensive stream survey, the impact of possibly higher
chloride concentrations on the receiving stream, and to use these
data to design a long-term solution to its chloride problem.
Additionally, the Agency recommends, and Monterey accepts, that
Monterey carry out the following additional investigations:
a.
The possibility of constructing additional groundwater
wells to provide dilution water for the recirculation
lake..
b.
The construction of a pump station on Grassy Branch for
pumping dilution water during periods of high flow,
either as a
primary source or to augment other surface or groundwater
sources.
c.
The construction of a pump station on Sugar Creek for
pumping dilution water either as a primary source or to augment
pumpages from other surface or groundwater sources.
d.
A study of the current water handling and storage
capabilities, to include the possibility of increasing the volume
of water in the Slurry #2 area from low chloride surface and
groundwater sources.
e.
The feasibility of constructing a discharge pipeline
directly to Sugar Creek or the Kaskaskia River ‘to discharge
higher chloride water directly to thos’e higher flow streams.
The results of these studies are to be used in developing a
compliance plan incorporating the information obtained from two
or more of the above studies.
132—111
6
CONSISTENCY WITH FEDERAL LAW
Petitioner states that the variance requested is consistent
with the Clean Water Act
(33 U.S.C. 251 et. seq.) ,USEPA Effluent
Guidelines and Standards and other Federal Regulations, or any
area-wide waste treatment management plan approved by the
Administrator of the US~PA,pursuant toSec.
208 of the Clean
Water Act.
(Pet. at 9.)
The Agency finds that there is no
conflict in granting this variance with other state or federa)
laws.
(Ag. Rec. at 6.)
DISCUSSION
The Board does not grant variance where there is no need for
variance, as for example where there is no demonstration that the
petitioner is out of compliance with the standard at issue.
(Village of Wheeling v. IEPA (July 10,
1980), PCB 80—59,
39 PCB
53; City of Roiling Meadows v. IEPA (July 10,
1980), PCB 80—60,
39 PCB 62; The Village of Elk Grove v. IEPA (January 10,
1985),
PCB 84-158,
62 PCB 295; City of West Chicago v. IEPA (June 13,
1985),
PCB 85—2,
64’ PCB 249; Village of Minooka v. IEPA
(September 20,
1985), PCB 85—100,
65 PCB 527; City of Spring
Valley v. IEPA (January
5,
1989), PCB 88—181, 95 PCB 57; Village
of North Aurora v. IEPA (February 8,
1990),
PCB 89—66,
108 PCB
25.)
However, the Board did grant a variance in Sonoco Products
Co. v IEPA (September
8,
1988), PCB 88-60,
92 PCB 97, where the
petitioner was in compliance but would have been in noncompliance
at anticipated increased production levels.
Sonoco had definite
programs to increase production and achieve compliance during the
variance period.
The Board found that in light of this and other
factors the petitioner would suffer ‘arbitrary or unreasonable
hardship if the variance were denied.
(~.
at 92 PCB 102.)
In the case at hand, while Monterey is presently in
compliance, Monterey’s retained water exceeds discharge
limitations.
The accumulation of chloride in the process water
circuit will damage plant equipment.
Monterey does not presently
have additional sources available to dilute this water which must
be discharged to avoid equipment damage.
Under the present
circumstances we find that noncompliance, as in Sonoco,
is
imminent.
Thus we conclude that Monterey has shown the variance
to be necessary.
Further, the denial of the variance would
prohibit Monterey from conducting a stream study to show whether
an increase in the chloride discharge level would cause an
advers.e effect on the environment.
Without the results of the
stream study, Monterey would be unable to obtain a change in the
allowed discharge level in its NPDES permit.
The Agency-
recommended conditions of this variance provide a program to
monitor the stream study and achieve compliance.
The
Board has also held that difficulty in maintaining
compliance and uncertainty of success in achievina continued
132—112
7
compliance are insufficient grounds for grant of a variance.
(Marathon Oil Co.
v. IEPA (January 9,
1992), PCB ‘91-173,
_____
PCB
____.)
In Marathon the petitioner sought a variance for the
time period necessary for the completion of a site—specific
rulemaking pending before the Board and was not related to
petitioner’s plan to achieve compliance.
Compliance would be
achieved through the BOard’s grant of site-specific relief.
Fiere, unlike the situation presented in Marathon, ultimate
compliance with the regulation is intended to be achieved through
the variance.
Another distinction that can be made between
~4arathon~and Monterey is that while both are able to comply with
the applicable standard, the conditions at Monterey show that
non—compliance is imminent while Marathon’s non—compliance was
purely speculative.. Monterey is presently experiencing excessive
concentrations of chloride which Monterey is unable to discharge
where Marathon was concerned with the possibility of future
increases to its current levels.
Monterey has requested that the variance cover a period of
two years.
The two year period is based on one year to collect
data, six months to compile and analyze data and six months to
obtain ~achange in the permit condition.
After the data has been
collected, Monterey is capable of complying with the discharge
standard.
Compliance with the 1,000 mg/i discharge level is
possible while the stream study report isbeing prepared and
while a permit modification is being sought.
Monterey has been
able to maintain compliance and has presented no reason why it
could not continue to do so, even though compliance may be
difficult until a modified permit is issued.
Granting the
variance for the time period after the stream study has been
performed would result in this variance becoming a form of
interim relief while Monterey was seeking a permit modification,
when compliance is possible.
CONCLUSION
The Board finds that the petitioner has presented adequate
proof that immediate compliance with Section 406.203
(C)
(1) (A)
of
the Board’s rules and regulations would impose an arbitrary or
unreasonable hardship.
The steadily increasing concentrations in
the processing water along with insufficient sources of dilution
water demonstrate that non—compliance is imminent.
The variance
is written to grant an increase in allowable chloride discharge
concentrations to 1,200 mg/l.
The variance will be issued to
cover a 15 month period in which Monterey is to conduct a one
year stream study.
Fifteen months is allowed in order for
~4ontereyto arrange the study and assure that sufficient data is
collected.
Without the stream study, envisioned by Section
406.203
(c) (1) (A), petitioner cannot demonstrate the
environmental impact that an increase in the chloride discharge
level will have on the receiving stream.
A demonstration
of
the
132—113
8
environmental impact is necessary for Monterey to apply for a
permit with a modified discharge level.
Finally, the variance is
written with additional conditions which require the Monterey to
explore additional sources for ‘dilution water.
This opinion constitutes the Board’s finding of fact and
conclusions of law in this matter.
ORDER
Monterey is hereby granted a variance with conditions from the
chloride discharge limit in 406.203
(c) (1) (A) and contained in
its NPDES permit.
This variance authorizes a chloride discharge
limit of 1,200 mg/l.
This variance applies only to discharges
from Monterey’s No.
2 mine in Clinton County,
Illinois.
The
variance is subject to the following conditions:
a.
The variance shall terminate on July 9,
1993 or upon
the completion of the collection of data in the 12 month
intensive stream study, whichever shall occur first.
b.
Petitioner shall conduct a stream study sufficient to
determine if the discharge of elevated chloride will or will not
cause an adverse effect on the environment in and around Grassy
Branch, the receiving stream.
c.
Petitioner will confine, to the extent practicable,
its
discharges to periods where the Grassy Branch has enough flow to
avoid or minimize any impact of higher chloride concentrations.
Further, dilution from existing sources must continue to be used
to manage concentration levels.
d.
Concurrently with the intensive stream survey, the
petitioner shall conduct the following studies addressing the
reduction of chloride in the discharge water, or the controlled
discharge to a higher flow stream:
1.
The construction of additional groundwater wells
to provide dilution water for the recirculation lake.
2.
The construction of a pump station on Grassy
Branch for pumping dilution water as either a primary source or
to augment pumpages from other surface of groundwater sources.
3.
The construction of a
pump, station on Sugar Creek
for pumping dilution water either as a primary source or to
augment pumpages from other surface or groundwater sources.
4.
A study of the current water handling and storage
capabilities, to include the, possibility of increasing the volume
of water in the Slurry #2 area from low chloride surface and
132—114
9
groundwater sources.
The feasibility of constructing a discharge
pipeline directly to Sugar Creek of the Kaskaskia River to
discharge higher chloride water directly to those higher flow
streams.
e.
Together with the results of the intensive stream
survey and the studies addressed above,
the petitioner shall
submit to the Agency either:
1.
~n application requesting an increase in the
permit e~ffluentlimitations for chlorides,
in accordance with 35
Ill.
Adm. Code 406.203, or
2.
An application which includes a complete
compliance plan to reduce the chloride concentration to less than
1,000 mg/i, to comply with 35 Ill. Adm. Code 406.203(c) (1) (A).
f.
Petitioner shall make interim progress reports to the
Agency at 90-day intervals beginning at 90 days from the Board
order.
These interim progress reports shall address all th~e
aforementioned studies and should be sent to:
Illinois Environmental Protection Agency
Mine Pollution Control Program
2200 Churchill Road,
P.O. Box 19276
Springfield,
Illinois 62794—9276
g.
All other uncontested provisions of the NPDES permit
and effluent limitations shall be met.
h.
Petitioner must send to the above address, a
certificate of acceptance of this variance by which it agrees to
be bound by the terms and conditions contained herein.
This variance will be void if the petitioner fails to
execute and forward the certificate within the 45 day period.
The 45 day period shall be in abeyance for any period during
which the matter is airnealed.
The form of the certification
~ha11 be
as foiiow~
132—115
10
CERTIFICATE
OF
ACCEPTANCE
I,
(We), _______________________________,
having
read the opinion and order of the Illinois Pollution Control
Board,
in PCB91-251, dated April 9,
1992, understand and accept
the said opinion and order, realizing that such acceptance
renders all terms and conditions thereto binding and enforceable
Petitioner
By:
Authorized
Agent
Title
Date
Section
41
or
trie 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 of Illinois establish filing requirements.
IT IS SO ORDERED.
I, Dorothy M.
Gunn, Clerk of the Illinois POllution
Control Board, hereby,~ertifythat th~above opinion and order
was adopted on the
“1~
day of
~
,
1992,
by a
vote of
7-c
.
Dorothy M.
Gj.~4n, Clerk
Illinois PoIl&ition ContrOl Board
132—116
